Appeal from the Circuit Court of St. Clair County; the Hon.
John J. Hoban, Judge, presiding.
PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
The sole issue presented by the instant appeal is whether the trial court violated the precepts of People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, when it denied the defendant's motion in limine and allowed the State to introduce evidence of the defendant's prior convictions during the course of his trial for murder.
The events leading to these proceedings occurred on the night of February 29, 1984. Angela George testified that the defendant, with whom she and the defendant's mother lived, and another man told her that they were going to go out to make some money. She asked if she could go along. She testified that they then drove her to a store named Guchonies and let her out, saying they were going to get some gas. Ms. George recalled that she went into the store and upon leaving, a man in a white van in the parking lot asked her for a date. According to Ms. George, a price was agreed upon and they drove to a parking area behind the Gomper's Homes. She testified that she and the man climbed into the back of the van and she had removed some of her clothing when "they busted in and said, police." She said that she then jumped up, recognized the defendant as one of the men, jumped out of the van and ran. She said that she heard two or three gunshots as she was running away. Ms. George testified that she recognized the other man as "Roland," and recognized the defendant's gun in his hand. She further testified that later that night at home, the defendant told her not to tell anyone what happened. However, when Detective Carl Brinkley and another officer later questioned Ms. George regarding the murder, she told them what had happened in order to avoid "getting a case." Ms. George subsequently moved to Atlanta, Georgia, and did not return to the defendant's home.
It was shown at trial that the defendant's gun, which was recovered from the defendant's mother, had fired the fatal shots. The defendant's mother testified, however, that the gun had been given to her by Ms. George. The defendant testified that he did not recall his whereabouts on February 29, 1984, that he had not shot the decedent nor did he know anything about the incident. He said that he had loaned his gun to his friend, Melvin Romious, prior to the incident.
In order to impeach Ms. George and establish her motive for implicating the defendant, the defense also presented the testimony of Talia Gayles, a former girlfriend of the defendant who testified that she and Angela George had had words concerning the affections of defendant and that Angela George told Ms. Gayles that "if she couldn't have him [the defendant], wasn't nobody going to have him."
The instant appeal arises out of the following events at trial. The State had presented its case and rested and the defense had presented one witness when the court declared a recess. The following discussion occurred in chambers:
"MR. PORTER [Defense counsel]: Your Honor, I have a motion in limine as to prior convictions.
The defense then completed its presentation of the case consisting of the testimony of three witnesses, including the defendant. When asked, the State indicated that it had no rebuttal, and the court called a short recess for the purpose of holding a jury-instructions conference. In chambers, the assistant State's Attorney said:
"I don't know if I used the magic words, I rest, if I have I'd ask to re-open open [sic] for the limited purpose of introducing an impeachment prior conviction of the defendant. We have a certified copy of the prior convictions in St. Clair County in 1978 for Armed Robbery and Attempted Murder. I'd ask to use the Armed Robbery not the Attempt Murder to read into the record."
The court allowed the State's request over the objection of defense counsel, and the potential need for a limiting jury instruction was discussed. Upon returning to the courtroom, the assistant State's Attorney read the record of the defendant's conviction to the jury as follows:
"Your Honor, I have one piece of rebuttal evidence before we Your Honor, at this time I'd like to read into the record a certified copy of conviction. I'd read into the record that on August 7th, 1978, Jethroe Mosley entered a plea to the offense of Armed Robbery, in St. Clair County Circuit Court and was sentenced for that crime on September 15, 1978."
The court then allowed the certified record of the prior conviction to be entered into the record and the State rested. Closing arguments were made and the jury returned a verdict finding the defendant guilty of the offense of murder.
The defendant argues that the court's "arbitrary and capricious" denial of the defendant's motion in limine was reversible error. This argument is founded upon the principles enunciated by our supreme court in People v. Montgomery (1971), 47 Ill.2d 510, 518-19, 268 N.E.2d 695, 699-700, where it was held that evidence of a defendant's prior conviction is admissible under the terms set forth in proposed Rule 609 of the Federal Rules of Evidence, but only so long as certain conditions are met. One of those conditions is that the judge determine that the probative value of the evidence of the crime substantially outweighs the danger of unfair prejudice in introducing it. In making that determination, the following facts are to be considered: "[t]he nature of the crime, nearness or remoteness in time of the conviction to the present trial, the subsequent career of the person, and whether the crime was similar to the ...