Appeal from the Circuit Court of Lake County; the Hon. John
Hughes, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
On June 3, 1985, after a jury trial in the circuit court of Lake County, defendant, Gregory Randle, was found guilty of two counts of armed violence and was sentenced to concurrent extended terms of 50 and 30 years' imprisonment. On appeal defendant argues: (1) that the trial court erred in allowing the State to impeach a defense witness with the witness' prior misdemeanor convictions; and (2) that the trial court erred in refusing to consider his potential for rehabilitation in sentencing him.
At approximately 7:30 p.m. on November 3, 1982, Henry Armstrong, Billy Peet and Mack Dixon entered the Handy Liquor Store located at 817 Tenth Street in North Chicago. While the three men were standing near the service counter, defendant, along with three other men, entered the store. While the testimony at trial differed over what occurred next, it is clear that a fight broke out between the two groups, during which Armstrong, Peet and Dixon each received lacerations to the face and head. The primary issue at trial was whether defendant's group entered the store armed and started the fight or whether defendant's group was unarmed and acted in self-defense.
Denise Handy, an employee at the liquor store at the time of the fight, testified that while Armstrong, Peet and Mack were in the store defendant, along with three other men, entered the store carrying baseball bats and a "silver flash." Handy testified that defendant had the "silver flash" in his hand and that she saw defendant attack Armstrong, Peet and Dixon, all of whom were bleeding from the head area after the fight. On cross-examination Handy stated that several windows in the store were broken, that one specific plexiglass window was broken when struck by Dixon's head, and that there was broken glass all over the store. Handy also stated that she could not recall who actually started the fight.
Dr. Jehangir Mistry testified that he treated Armstrong, Peet and Dixon on the night of the incident. Peet had four lacerations, two on the scalp and two on the face. The lacerations required a total of 44 stitches to close. Dixon had one laceration on the face which was muscle deep and required 15 stitches to close. Armstrong had one laceration on the back of the head which required eight stitches. Dr. Mistry also testified that the lacerations to Peet and Dixon were made by an instrument with a very sharp edge such as a razor, that he found no glass fragments while cleaning the wounds, and that the wounds were not consistent with having been caused by a broken plexiglass window. On cross-examination Dr. Mistry admitted that wounds similar to those received by Peet and Dixon could be caused by a sharp piece of glass such as a broken beer bottle. Dr. Mistry also stated that Armstrong's wound could have been caused by a razor or similar sharp object, or by a baseball bat or similar blunt object.
Billy Peet testified that while he was in the liquor store, defendant, along with three other men, entered the store, left, and returned shortly thereafter carrying weapons. One man was carrying a two-by-four and defendant was carrying a "flash." Peet stated that a dispute arose between defendant and Dixon and that he attempted to break it up by standing between the two men. When he did so defendant struck him, knocking him to the ground. As he looked up from the floor, he saw that defendant was carrying something that looked like a razor. He then lost consciousness for a short time. Peet further stated that when he regained consciousness he again became involved in the fight for a short time until it ended. After the fight was over, he noticed that he had been cut on the face. Lastly, Peet testified that he was not armed during the fight and was carrying only his cane when the fight began. Peet required a cane to walk because of a broken back he had incurred in a car accident in 1976.
On cross-examination Peet admitted that he had previously stated, both to a police officer shortly after the offense and at a prior trial, that he could not describe any of his attackers. Further, Peet admitted that he did not see who actually cut him because he was unconscious at the time, but that he did not believe he had been cut by a beer bottle. Peet also stated that he did not remember any bottles being thrown around during the fight because there were no bottles in the customer area of the store to be thrown around.
Henry Armstrong, who was also handicapped and could not walk more than a short distance without crutches, testified that the defendant's group entered the liquor store, left without incident and returned shortly thereafter carrying weapons. One man was carrying a large stick, a two-by-four or a bat, while the other three were carrying razor blades or knives. Armstrong stated when defendant's group entered the store the second time they immediately attacked Peet, cutting him and knocking him down. Defendant then attacked him (Armstrong), cutting him on the back of the head, while the three other men attacked Dixon, cutting him also. On cross-examination Armstrong admitted that he did not know who actually started the fight and that he did not actually see a weapon in defendant's hand, but stated that it must have been defendant who cut him because defendant was the only one close enough at the time of the cutting to have done it.
The primary witness for the defense was Earnest Smith. Smith testified that he was with defendant in the liquor store at the time in question and that the fight started when Dixon struck him in the face. Smith also testified that after the fight started people came into the liquor store off of the street to join into the fight and that there was glass flying everywhere during the fight. Lastly, Smith stated that neither he nor any of the men with him had any type of razor blade, knife or similar weapon during the fight. On cross-examination the prosecution, over defendant's objection, was allowed to introduce Smith's prior battery and aggravated-assault convictions to show his propensity to violence.
The jury found defendant guilty of aggravated battery and armed violence to Dixon and Peet and not guilty of aggravated battery and armed violence to Armstrong. The cause proceeded to sentencing, where the court considered the testimony and arguments of counsel along with the presentence report. After assessing the factors in aggravation and mitigation, the court imposed extended term sentences of 50 years' imprisonment for the armed-violence conviction stemming from the injuries to Peet, and 30 years' imprisonment for the armed-violence conviction stemming from the injuries to Dixon. Defendant thereafter filed this appeal.
• 1 The first issue raised is whether the trial court erred in admitting evidence of Smith's prior misdemeanor convictions for battery and aggravated assault. Defendant argues that since both convictions are misdemeanors and do not involve dishonesty, they were improperly used for impeachment under People v. Montgomery (1971), 47 Ill.2d 510, and People v. Stover (1982), 89 Ill.2d 189.
Both Montgomery and Stover dealt with impeachment of a witness by evidence of a prior conviction. Under Montgomery, where the court adopted Proposed Federal Rule of Evidence 609, a prior misdemeanor not involving dishonesty or false statement may not be used to attack the credibility of a witness. Under Stover, such a misdemeanor conviction based on a plea of guilty may not be used to impeach a witness who was involved in the same offense even if the conviction would arguably amount to a prior inconsistent statement.
In the present case, however, Smith's prior convictions were not used to impeach him. That is to say, they were not used "`[f]or the purpose of attacking the credibility of a witness'" (People v. Montgomery (1971), 47 Ill.2d 510, 516) as governed by proposed Rule 609. Rather, Smith's prior convictions were used as substantive evidence to show his propensity to violence and therefrom infer that ...