APPEAL from the Circuit Court of Tazewell County; the Hon.
RICHARD E. EAGLETON, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendant Marvin Dale Yost from a conviction for the offense of murder after trial by jury in the circuit court of Tazewell County.
On December 9, 1976, the defendant was charged by indictment with three counts of murder and one count of voluntary manslaughter for the death of his wife. During his trial and specifically on February 7, 1977, the defendant testified in his own behalf. At that time the State over objection of the defendant was allowed to impeach his testimony by having the jury informed of a 10-year 11-month-old conviction which the defendant had received in the State of Michigan for the offense of felonious assault. For the Michigan conviction the defendant received a sentence of not less than two nor more than four years. The record is cloudy and unclear as to what portion if any of the Michigan sentence was served by the defendant. It was the position of the State that there existed a presumption that the defendant served at least the minimum term of two years and thence this prior conviction was admissible for purposes of impeachment. The record is clear that the trial judge permitted the introduction of evidence as to the defendant's prior Michigan conviction on the grounds that the probative value of the conviction outweighed its prejudicial effect.
1 We find it unnecessary to consider all the issues raised by the defendant in this appeal for we are of the opinion that the defendant's right to an impartial jury trial was prejudiced by the improper admission of his nearly 11-year-old Michigan conviction for the commission of a felony.
We reach this conclusion because the trial court failed to follow the principles or guidelines pertaining to the admission into evidence of prior conviction as set forth in People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695. The principles set forth in Montgomery were derived from a proposed draft of a rule made by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. The draft relied upon by our supreme court is set forth in full in Montgomery and reads as follows:
"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.
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure, and (2) the procedure under which the same was granted or issued required a substantial showing of rehabilitation or was based on innocence.
(d) Juvenile Adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The judge may, however, allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(e) Pendency of Appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible." People v. Montgomery (1971), 47 Ill.2d 510, 516-17, 268 N.E.2d 695, 698.
It should be noted that the draft set forth in Montgomery differs significantly from the Federal Rule of Evidence 609 which was ultimately adopted by the United States Supreme Court. The difference is illustrated by the language in paragraph (b) of the adopted rule, which reads:
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction ...