APPEAL from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendant James R. Owens was convicted of armed robbery and murder in the circuit court of Macon County in 1973 and sentenced to 75 to 150 years imprisonment. On appeal, the convictions were reversed and the cause remanded for further proceedings (32 Ill. App.3d 893, 337 N.E.2d 60). Defendant was retried on the same charges in a jury trial which began on September 29, 1976, and was again convicted of armed robbery and murder. One sentence of 75 to 150 years imprisonment was imposed.
The only issue raised by defendant on appeal is whether evidence of a prior burglary conviction was improperly admitted for purposes of impeachment during his second trial.
At all pertinent times, section 6 of division XIII of "An Act to revise the law in relation to criminal jurisprudence" ("Witnesses") (Ill. Rev. Stat. 1975, ch. 38, par. 155-1), provided in part:
"No person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility."
Prior to People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, the foregoing statute had been construed to permit impeachment of the accused by proof of conviction of only infamous crimes but without restriction as to the nature of the infamous crime (see Cleary, Handbook of Illinois Evidence 137 (2d ed. 1963)). Uncertainty existed as to whether the court was required to admit proof of the conviction or whether it might weigh the probative value of the conviction against the prejudice inevitably resulting to the accused and determine whether introduction or exclusion of the evidence would be more just. No Illinois case had ruled that the time lag between the conviction and its use to impeach was so great as to negate the conviction's probative value or impeachment.
In Montgomery the trial court, reluctantly but considering itself bound to do so, permitted impeachment of an accused by a prior robbery conviction occurring 20 years earlier when the accused was 18 years old. In reversing, the supreme court noted that the conviction was so stale as to have little probative value and that fairness demanded that the trial court be required to balance probative value of the conviction against its prejudice to the accused before determining whether to allow it to be presented to the jury. The court then directed that in future cases, Rule 609 of a draft approved by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States be followed.
That rule was stated in the opinion to provide in part:
"`Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date. * * *'" 47 Ill.2d 510, 516.
Rule 609 of the Federal Rules of Evidence when adopted was not in the same form as the draft but the supreme court has ruled that courts> in this State should nevertheless follow the draft approved in Montgomery. People v. Ray (1973), 54 Ill.2d 377, 297 N.E.2d 168.
Defendant here contends that (1) his prior conviction was too stale to meet the time requirements of proposed Rule 609, and (2) the trial court failed to follow the mandate of the proposed rule that it balance the probative value of the conviction for impeachment against its prejudicial quality before ruling upon its admission.
On January 30, 1962, defendant had pleaded guilty to a charge of burglary and was sentenced to one year probation. He violated that probation and was sentenced to a term of 1 to 10 years imprisonment. He was paroled twice and each time violated his parole and was recommitted. On June 23, 1968, he was conditionally released. Defendant contends that his confinement which ended in 1968 was not specifically the result of his burglary conviction but rather was imposed for his violation of the conditions of his probation. Therefore, he argues that the relevant date ...