APPEAL from the Circuit Court of Peoria County; the Hon.
STEPHEN COVEY, Judge, presiding.
MR. JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
The defendant, Derlies Medreno, appeals from his convictions for home invasion, rape, and deviate sexual assault following a jury trial in the Circuit Court of Peoria County. He subsequently received concurrent sentences of 50 years' imprisonment for each conviction. The defendant presents two issues for review: whether the circuit court erred by admitting evidence of the defendant's prior rape conviction to impeach his credibility; and whether the conviction for home invasion must be reversed because the indictment failed to allege that the defendant's entry was without authority.
The evidence presented by the State indicated that the victim, Bonnie Fiers, was a victim of rape, of deviate sexual assault and home invasion. Defendant's evidence was contrary.
Following the defendant's testimony, the defense rested. In rebuttal, the State offered evidence of the defendant's prior conviction for the purpose of impeaching his credibility. In 1973, the defendant was found guilty of rape, burglary, and deviate sexual assault, but he was sentenced only for the rape charge. Over the defendant's objection, the circuit court orally informed the jury that the defendant was convicted of rape in 1973. The court then admonished the jury to consider the conviction only with respect to the defendant's credibility. Later, the jury also received a written instruction containing the same admonishment.
The jury found the defendant guilty of rape, deviate sexual assault, and home invasion. The defendant filed a motion for new trial and in arrest of judgment, which the court denied.
The defendant first contends that the court erred in admitting the evidence of his 1973 rape conviction to impeach his credibility because that offense was not veracity-related and because it was similar to the instant crime.
Prior to People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, once the State offered evidence of any prior conviction and demonstrated that the conviction was for an "infamous crime," the trial judge was required to admit such evidence to impeach the credibility of a defendant who assumed the witness stand. (See, e.g., People v. Buford (1947), 396 Ill. 158, 71 N.E.2d 340.) This rule often presented a defendant in a criminal proceeding with a no-win dilemma; either he took the witness stand and was impeached by any prior conviction available to the State regardless of the conviction's probative value or potential prejudice, or he refused to testify thereby denying the trier of fact the opportunity to hear his side of the story and at the same time implying his guilt from his failure to testify.
Montgomery, which adopted then proposed Rule 609 of the Federal Rules of Evidence, changes this practice in two respects. First, evidence of a prior conviction is admissible for impeachment only if the crime either was punishable by death or imprisonment in excess of one year or involved dishonesty or false statement regardless of punishment. Further, such a conviction is relevant only if a period of less than 10 years has elapsed since the date of the conviction or the release of the witness from confinement, whichever is the more recent date. The philosophy underlying this time limitation is that 10 years of conviction-free living demonstrates sufficient rehabilitation in the witness' credibility to attenuate any probative value, thus making those prior convictions per se inadmissible.
The second change wrought by Montgomery vests discretion in the trial court to exclude a prior conviction, admissible under the general rule, where its prejudicial effect substantially outweighs its probative value on the issue of the witness' credibility. The purpose of this discretion is found in the Advisory Committee's comments to Rule 609:
"The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense. * * * There may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant's foregoing that opportunity because of the fear of prejudice founded upon a prior conviction." (51 F.R.D. 315, 393 (1971).)
Significantly, once the party seeking admission of the prior conviction establishes the first portion of the rule, the burden of persuasion to demonstrate that the prejudicial effect of such evidence substantially outweighs its probative value falls to the party seeking its exclusion. If the conviction is admitted, the impeached party is entitled to a limiting instruction admonishing the jury to consider the conviction only as it affects the witness' credibility.
Thus, the Montgomery rule limits the potential for abuse where the accused elects to take the witness stand, but it still makes prior convictions relevant to the issue of his credibility in part because "it would be unfair to permit the accused to appear as a witness of blameless life." E. Cleary & M. Graham, Handbook of Illinois Evidence § 609.1, at 284 (1979).
Although Montgomery clearly intends for the trial court to engage in balancing on every occasion impeachment by prior conviction is attempted, the factors to be weighed have never been definitely stated nor has the relationship among the commonly listed factors been explicated. Final responsibility for exercising the discretion inherent in the rule lies with "`* * * [t]he experienced trial judge [who] has a sensitivity in this regard which normally can be relied upon to strike a reasonable balance between the interests of the defendant and of the public. * * *'" People v. Montgomery (1971), 47 Ill.2d 510, 518, 268 N.E.2d 695, 699.
Nevertheless, an examination of the case law reveals several commonly accepted factors used in determining whether a prior conviction's prejudicial effect ...