APPEAL from the Circuit Court of Champaign County; the Hon.
ROGER H. LITTLE, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT: Defendant appeals from his convictions of rape and attempted deviate sexual assault which resulted in concurrent sentences of 5 to 12 years and 4 to 12 years' imprisonment, respectively. The case hinges on the credibility of defendant and the complaining witness, Lillian Mitchell. She testified that he had intercourse with her against her will after forcing his way into her Champaign apartment on the evening of March 1, 1976. She testified that defendant attempted to shove his penis into her mouth but that she dissuaded him from doing so. He denied this but defendant admits having consensual intercourse with her on that occasion. Ms. Mitchell's testimony is corroborated by photographs taken the next day which depict bruises about her neck, shoulders, and legs which she claims were inflicted upon her by defendant in his efforts to force her to have intercourse with him. Also, she made a prompt complaint by phoning the police as soon as defendant left her apartment.
The State, over defendant's objection, moved to admit two prior aggravated battery convictions, both less than two years old. The court admitted the prior convictions and defendant was found guilty.
On appeal, defendant argues that the court abused its discretion in allowing his impeachment with two aggravated battery convictions.
• 1 It is one of the fundamental concepts in our criminal justice system that evidence of past crimes is not admissible to prove defendant's disposition to commit the crime charged. (See McCormick, Evidence § 190 (2d ed. 1972); People v. Richardson (1959), 17 Ill.2d 253, 161 N.E.2d 268.) Of course, the rationale for the rule is the recognition that the jury may convict a defendant based on his prior acts and not solely on the basis of the proof in the case at hand. This rule has many well recognized exceptions (see McCormick, Evidence § 190 (2d ed. 1972)), one of which is impeachment, where defendant takes the stand as a witness. That exception is given definition in Illinois in People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695.
Under Montgomery, where the prior conviction was for a felony or crime involving dishonesty, the trial court has discretion to refuse the impeachment if it believes that the prejudicial effect of the impeachment outweighs the probative value of the prior conviction to the issue of credibility. Montgomery relied heavily on Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 20 L.Ed.2d 287, 88 S.Ct. 1421, and Luck v. United States, 348 F.2d 763 (D.C. Cir. 1965). In Gordon the court stated:
"In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. A `rule of thumb' thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not." 383 F.2d 936, 940.
This language from Gordon was quoted with approval in People v. Ridley (1975), 25 Ill. App.3d 596, 323 N.E.2d 577, a recent first district case where the appellate court held it was not an abuse of discretion to allow defendant, who was on trial for armed robbery, to be impeached with two recent armed robbery convictions. The court in Ridley emphasized that robbery was stealing and involved an element of dishonesty which bears on credibility. Ridley is distinguishable from the present case because aggravated battery has no bearing whatsoever on honesty and veracity.
The State contends that the present case is analogous to People v. Blythe (1974), 17 Ill. App.3d 768, 308 N.E.2d 675, where this court found no abuse of discretion where defendant, on trial for murder had been impeached with prior convictions for manslaughter and assault with intent to commit robbery with a dangerous weapon (both Tennessee convictions less than five years old). Blythe held:
"[T]he two Tennessee convictions, being crimes of violence, do have a bearing directly upon the credibility of the defendant's contention that he killed in self-defense and the credibility of his evidence supporting that defense." 17 Ill. App.3d 768, 770-71, 308 N.E.2d 675, 678.
In the present case the State argues that the issue of consent in a rape case is analogous to the self-defense question in a murder prosecution. On this basis they urge the application of Blythe here. In Blythe, the two prior convictions were not alike. Manslaughter has no bearing on truth and veracity while assault with the intent to commit robbery may, since there was proof of an intent to commit a theft. Theft related offenses obviously involve dishonesty and arguably reflect on a person's likelihood of telling the truth when testifying as a witness. (Gordon.) Irrespective of this distinction, we do not feel that Blythe should be extended further in the context of the present case. We disagree with that court's reasoning that "crimes of violence, do have a bearing directly upon the credibility of the defendant's contention that he killed in self-defense * * *." (17 Ill. App.3d 768, 771, 308 N.E.2d 675, 678.) While that statement is couched in terms of credibility, what it ultimately reduces to is defendant's propensity to commit crimes of violence.
In ruling on this issue in the present case the trial judge said, "While these crimes are not crimes of dishonesty or false statements within the meaning of People v. Blythe, they tend to show the violent nature or capability of the defendant and it appears that they are relevant as tending to show that he may be untruthful in stating that there was no violence committed upon Lillian Mitchell." This statement, while it uses the term credibility, really concerns defendant's propensity to commit crimes with the use of force.
It strikes us as very strange indeed that the State argues defendant's prior aggravated battery convictions have relevancy to his truthfulness and veracity while at the same time they opposed defendant's efforts to have the jury admonished that he pleaded guilty to these charges. Both People v. Holman (1976), 43 Ill. App.3d 56, 356 N.E.2d 1115, and Ridley recognize that while the nature of the impeaching crime itself is what Montgomery directs the trial judge to consider when weighing whether to allow prior convictions for impeachment, the fact that defendant pleaded guilty may be used by him as rehabilitation evidence once the prior convictions are introduced. It would be strange to admit the prior convictions for impeachment with their dubious bearing on veracity, and obvious effect of showing propensity to commit crime, yet not let the jury hear that defendant admitted those crimes. We need not, however, pass on defendant's contention that it was error here to deny him the opportunity to apprise the jury that the aggravated battery convictions resulted from guilty pleas. Defendant waived this issue by not raising it in his post-trial motion. People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840, cert. denied, 402 U.S. 972, 29 L.Ed.2d 136, 91 S.Ct. 1658; People v. Lipscomb (1975), 28 Ill. App.3d 240, 328 N.E.2d 37.
We are unaware of any exception to the general rule barring evidence of prior crimes which would allow the State to introduce defendant's prior convictions for the purpose of showing that the use of force in prior crimes tends to rebut defendant's testimony that he did not use force in the present case. Basically, the trial judge's comments in denying defendant's motion to prevent introduction of the aggravated battery convictions, amounts to the adoption of such a rule. Such a rule confuses the two distinct questions of credibility and propensity to commit crime. Defendant's two prior convictions may have probative value as to his present disposition to use force, albeit inadmissible for that purpose, but have no probative value as to his truthfulness as a witness, which is the only focus of concern here. The trial court's ruling constituted an abuse of discretion in the application of the Montgomery test. In this regard, we note that the batteries here became aggravated, thus felonies instead of nonimpeachable misdemeanors, because in one case the offense occurred in a public place and in the other the victim was a policeman. Montgomery draws the line only between felonies and misdemeanors. In a recent case, Knowles v. Panopoulos (1977), 66 Ill.2d 585, 363 N.E.2d 805, the Illinois Supreme Court held Montgomery applicable to civil cases and reiterated the rule of Montgomery that the trial court must determine whether "`the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.'" (66 Ill.2d 585, 587, 363 N.E.2d 805, 807.) However, defendant's argument that the place where a battery occurs and the identity of the victim have absolutely nothing to do with defendant's credibility seems well taken. That the identity of the victim in one and the place of the battery in the other are all that make these convictions impeachable should mitigate in defendant's favor when the court applies the Montgomery test.
• 2 Since aggravated battery is a felony punishable with imprisonment in excess of a year, it is within the court's discretion to allow or disallow the impeachment under Montgomery. Yet we cannot conceive of what there is about the crime of aggravated battery which is at all probative of the defendant's honesty and veracity as a witness. Balancing zero probative value against the obvious danger of prejudice inherent when the jury is informed that defendant is a convicted felon, we conclude that the danger of prejudice clearly outweighs the probative value of the ...