APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
CAWLEY, Judge, presiding.
MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 12, 1981.
A jury returned verdicts finding defendant Joseph Puente, Jr., guilty of attempt murder, armed robbery and two counts of aggravated battery. Judgment was entered on the armed robbery and attempt murder verdicts, and defendant was sentenced to concurrent fifteen-year terms for these offenses.
It is first contended that the trial court erred in denying defendant's motion in limine to exclude evidence of the delinquency adjudication for burglary of defendant's brother, Jesse Puente, if introduced by the State to impeach him if he testified. Jesse was, in fact, on probation for this offense at the time of the trial. Defendant argues that the ruling of the trial court prevented Jesse from testifying, and that if Jesse had testified he could have corroborated major portions of defendant's testimony, including his alibi that he and Jesse attended a party earlier in the evening and also defendant's denial of the testimony of the victim, Daniel Ortega, that defendant and Jesse met and talked with him shortly before the incident. Defendant's argument is that section 2-9(1) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702-9(1)) prevents the use of a juvenile adjudication to impeach the credibility of a defense witness.
Section 2-9(1) of the Juvenile Court Act provides:
"(1) No adjudication, disposition or evidence given in proceedings under this Act is admissible as evidence against the minor for any purpose * * *. Neither the fact that a minor has been the subject of proceedings under this Act * * * is admissible as evidence against him or his interests in any other court or proceeding * * *."
Our supreme court has held that the protective confidentiality provisions of the Juvenile Court Act do not amount to an absolute prohibition against disclosure of juvenile records. (People v. Norwood (1973), 54 Ill.2d 253, 257, 296 N.E.2d 852.) Norwood cited 3 Wigmore, Evidence § 980 (3d ed. 1940) with approval. That section, in a later (1970) revision, provides:
"A judgment, finding, or proceeding of delinquency in a juvenile court is by modern statutes forbidden to be used `against the child' in any other court [citation]. It would be a blunder of policy to construe these statutes as forbidding the use of such proceedings to affect the credibility of a juvenile when appearing as witness in another court * * * and the revelations in the juvenile court may be the best or even the only means of exposing the testimonial untrustworthiness of the witness. Neither the policy nor the wording of the statute (liberally construed) should forbid such use." 3 Wigmore, Evidence § 980 (Chadbourne rev. ed. 1970).
Both the United States Supreme Court and the Illinois Supreme Court have permitted the impeachment of witnesses on the basis of juvenile records. In Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, the Supreme Court held that in a criminal case the defendant's right to confrontation requires that he be allowed to impeach the credibility of a crucial prosecution witness by cross-examination directed at possible bias deriving from the witness' probationary status as a juvenile delinquent, even if such impeachment would conflict with a State's asserted interest in preserving the confidentiality of juvenile delinquency adjudications. The court reasoned that under these circumstances, the constitutional right to cross-examine effectively an adverse witness is paramount to the State's interest in protecting the confidentiality of a juvenile offender's record. (415 U.S. 308, 319, 39 L.Ed.2d 347, 355, 94 S.Ct. 1105, 1112.) Similarly, in People v. Norwood (1973), 54 Ill.2d 253, 296 N.E.2d 852, the court held that section 2-8 of the Juvenile Court Act did not bar the disclosure of juvenile records of the State's principal witness insofar as they might be relevant to the defendant's claim that the witness' testimony was attributable to lenient treatment which he had received or had been promised.
Several appellate court decisions have also addressed the issue of the use of juvenile records to impeach a prosecution witness. People v. Bingham (1979), 75 Ill. App.3d 418, 394 N.E.2d 430; People v. Holsey (1975), 30 Ill. App.3d 716, 332 N.E.2d 699.
These cases are distinguishable from the case at bar because they involved the impeachment of prosecution witnesses. In the instant case, Jesse Puente would have been a defense witness. Thus, the issue of the accused's right to confront witnesses does not arise.
Here the question is whether a juvenile adjudication can be used to impeach the general credibility of a defense witness. Other jurisdictions deciding this issue have reached opposing conclusions. In State v. Wilkins (1974), 215 Kan. 145, 523 P.2d 728, impeachment of a defense witness was permitted. The court held that the rule permitting use of juvenile records to impeach is a double-edged sword, operating both when a witness is called to testify on behalf of the accused as well as when such a witness is called by the State. Other jurisdictions have reached the opposite conclusion. In State v. Thomas (Mo. App. 1976), 536 S.W.2d 529, the court held that the State's inquiries of a defense witness as to whether he had been known to the juvenile authorities and as to whether a finding of delinquency had been entered against him were improper under the Missouri statute. That court held that the State has no sixth amendment right of confrontation. Courts> of some seven jurisdictions have supported the position that records of juvenile court adjudications cannot be used to impeach a defense witness' credibility. (See Annot., 63 A.L.R.3d 1112, 1140 (1975).) However, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States took the contrary and, we believe, the better view that the question of permitting the use of juvenile records to impeach a witness is addressed to the sound discretion of the trial judge. Proposed Rule of Evidence 609(d) as written by that committee, permits the trial judge to weigh in each case whether the impeaching evidence is needed for a fair trial. It reads as follows:
"(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." 51 F.R.D. 391.
This is consistent with the balancing approach adopted by this court in People v. Holsey (1975), 30 Ill. App.3d 716, 720, where we held:
"[T]he use of juvenile records to impeach a minor witness testifying for the State at the criminal trial of another is neither absolutely forbidden nor absolutely permitted. The scope of cross-examination is within the discretion of the trial court, which should balance the importance of the youthful witness' testimony against the State's policy of preserving the anonymity of a juvenile offender."
Proposed Rule of Evidence 609 has been adopted by our supreme court. In People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, the court held that the provisions of this rule should be followed in future cases. Although Montgomery did not apply subsection (d) of Rule 609, the court quoted the full text of that rule, including subsection (d). In subsequent cases, our supreme court has stated that the "reference to Rule 609 [in Montgomery] was a shorthand expression of our holding, as well as an expression of our view that other provisions in the rule, not concerned in Montgomery should be followed." (People v. Yost (1980), 78 Ill.2d 292, 296, 399 N.E.2d 1283; People v. Ray (1973), 54 Ill.2d 377, 383, 297 N.E.2d 168.) Furthermore, Proposed Rule of Evidence 609(d) is substantially similar to Federal Rule of Evidence 609(d).
While juvenile adjudications before In re Gault (1967), 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428, may have been considered to lack the general probative value of a criminal conviction because of their informality and because of departures from accepted standards for criminal trials, Gault eliminates these characteristics insofar as they are objectionable. Advisory Committee's Note to Proposed Rule of Evidence 609(d), 51 F.R.D. 391, 394.
• 1 In our opinion, a trial court has discretion to allow evidence of a juvenile adjudication of a defense witness to impeach such witness' general credibility when the criteria established by Proposed Rule of Evidence 609 are satisfied. In other words, if a juvenile adjudication is for an offense the conviction of which would be admissible to attack the credibility of an adult and the trial court is satisfied that admission of such adjudication in evidence is necessary for a fair determination of the issue of guilt or innocence, then the trial court may admit for impeachment evidence of a juvenile adjudication of a defense witness other than the accused. In determining whether the admission of a juvenile adjudication is necessary, the trial court should balance the importance of the witness' testimony against the policy of preserving the anonymity of a juvenile offender.
At the time of the trial court's ruling on defendant's motion in limine, it was clear that Jesse Puente's testimony would be critical. Ortega had testified that he had spoken with defendant and defendant's brother shortly before the incident in question. Defendant argues that Jesse could have testified that they did not meet and converse with the victim shortly before the incident. Thus, Jesse's testimony might have severely weakened the identification testimony of Ortega. Furthermore, defendant argues that Jesse could have testified that he and his brother attended a party on the evening in question. Therefore, Jesse could have corroborated major portions of defendant's trial testimony. Under these circumstances, it was important to test Jesse Puente's reliability as a witness. Therefore, we conclude that the trial court did not err in denying defendant's motion in limine to exclude evidence of Jesse Puente's juvenile adjudication for burglary.
Defendant's second argument is that his prior exculpatory statements to Assistant State's Attorney Davidson were not admissible in the State's case in chief. Davidson had testified that he interviewed defendant at 2:45 a.m. on January 8, 1978, and that defendant made two statements relating to his activities the night of the offense. First, defendant said that he had been out on the street with his brother, but after answering a number of subsequent questions, "I don't know," he said that he really was not out on the street, but he had been home watching television with certain members of his family.
The State contends that these statements were properly admissible in its case in chief because they were false exculpatory statements and thus had independent probative value as evidence of defendant's consciousness of guilt. Conversely, defendant contends that these statements should have been admitted only for impeachment if defendant gave exculpatory testimony contrary to the statements.
• 2 The general rule is that "[a] defendant's false exculpatory statement has independent probative value as evidence of consciousness of guilt and is admissible." (People v. Mitchell (1975), 35 Ill. App.3d 151, 162, 341 N.E.2d 153; People v. Wilson (1972), 8 Ill. App.3d 1075, 291 N.E.2d 270; United States v. Lomprez (7th Cir. 1972), 472 F.2d 860.) Wilson is factually similar to the instant case. In that case, the defendant had before arrest stated "that she had no knowledge of how her husband was murdered, that she had last seen him two or three weeks prior to his death, that he had only two life insurance policies, and that she was not dating Dennis Phillips." Later, in a statement made the day after her arrest, the defendant admitted that none of the above statements were true. The court held that defendant's statements were properly admissible because they were false exculpatory statements revealing defendant's consciousness of guilt. The court reasoned that "any attempt to conceal, or otherwise to suppress evidence, or obstruct an investigation of an issue, is relevant upon the trial of that issue as tending to show a consciousness of guilt." The court rejected the defendant's contentions that the admission of her statements as substantive evidence wrongfully forced her to take the witness stand and that her statements should have been used only for impeachment purposes after she had taken the stand. 8 Ill. App.3d 1075, 1079.
• 3 In the instant case, defendant made inconsistent statements to Assistant State's Attorney Davidson. A reading of the two statements reveals that at least one was necessarily false. We conclude that the trial court properly determined that defendant's prior exculpatory statements were admissible in the State's case in chief.
Defendant claims that he was "high, sleepy and scared" at the time of his interview with Davidson and that the inconsistent statements were the result of defendant's innocent effort to correct his mistaken earlier statement. He claims that the statements were made only moments apart, and that they do not, in and of themselves, demonstrate defendant's consciousness of guilt. The general rule which we apply here holds only that a false exculpatory statement has probative value as evidence of consciousness of guilt; the false exculpatory statement is not conclusive evidence of consciousness of guilt. Defendant was not prevented from explaining the inconsistency, and in fact, he did testify to his condition at the time of the interview. The jury was able to consider his explanation together with Davidson's testimony as to defendant's statements. We find no error in the admission of these statements.
Defendant's third argument is that the prosecution's cross-examination of defendant and closing argument improperly referred to his post-arrest silence. The relevant ...