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May 9, 1997


Appeal from Circuit Court of Vermilion County. No. 94CF101. Honorable Thomas J. Fahey, Judge Presiding.

As Corrected June 2, 1997. As Corrected September 23, 1997.

Honorable Robert W. Cook, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable Frederick S. Green, J. - Dissent. Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Following a jury trial, defendant Dale Atkinson was convicted of burglary in violation of section 19-1(a) of the Illinois Criminal Code of 1961 (720 ILCS 5/19-1(a) (West 1992)). Defendant was sentenced to six years' imprisonment. Defendant appeals, alleging (1) the trial court erred in failing to employ the Montgomery balancing test before allowing the State to impeach him with his prior convictions, (2) the trial court erred in refusing to allow the "mere fact" approach to impeaching with a prior conviction, and (3) that the inclusion of this evidence was reversible error. We reverse and remand.

In March 1994, Nathan Reitsman was driving around with three friends in a 1984 Chrysler LeBaron. When the car stalled and Nathan could not get it started again, he and his friends left the car to go call Nathan's mother. Upon their return 15 minutes later, they discovered that a window had been "pried down" and the dashboard had been torn apart. The AM-FM cassette stereo and an equalizer were missing.

On the same day, Herb Simmons was driving around with defendant, Dale Juvinall, and Steve Robbins. They passed Nathan's car and stopped. According to defendant, Simmons and Juvinall thought the car may have a stereo and a "fuzz buster." Juvinall and defendant exited Simmons' car; defendant claimed he did so at Juvinall's request. Simmons drove away because he did not want his car to be seen "if they did something."

Juvinall entered Nathan's car and removed the stereo and the equalizer. According to Juvinall, he removed the AM-FM cassette player, which he then handed to defendant. Juvinall said he never touched the AM-FM cassette player again. Juvinall then removed the equalizer. Defendant claimed that he stood by the side of the road the entire time because he "wasn't going over to the vehicle." Defendant testified that he was not acting as a "lookout" for Juvinall. Simmons then returned and both Juvinall and defendant got back into Simmons' car. Simmons testified that Juvinall had both the AM-FM cassette player and the equalizer under his coat when he got back into the car.

According to defendant, the group then returned to his trailer. Defendant testified that the AM-FM cassette player and the equalizer were held together with black electrical tape and that Juvinall separated the two components at defendant's trailer. Although it is unclear when it happened, at some point that evening the group tried to sell the equalizer to "JR," one of defendant's friends. "JR" did not buy the equalizer, so Juvinall kept it. Defendant kept the stereo.

After defendant's testimony, and over defendant's objection, the State impeached defendant with evidence of defendant's two prior burglary convictions. The jury found defendant guilty and the court sentenced him to six years' imprisonment. Defendant now appeals.

The admission of prior convictions to impeach a witness is problematic. This is especially true where the witness is a defendant in a criminal trial.

"If [a criminal defendant] testifies and is impeached with prior convictions, he risks conviction upon the current charge simply because the jury thinks he is a bad man. *** If the defendant, in the alternative, chooses to remain silent, the jury may conclude that he is guilty despite instructions that no inference is to be drawn against him given his failure to testify. [Citation.] On the other hand, in support of the use of prior convictions, it is asserted 'that it would be misleading to permit the accused to appear as a witness of blameless life.' McCormick, Evidence § 42 at 153 (4th ed. 1992)." M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 609.1, at 411 (6th ed. 1994) (hereinafter Graham).

Addressing this problem in People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971), the supreme court embraced the balancing test set forth by Rule 609 of the Federal Rules of Evidence (Fed. R. Evid. 609).

The Montgomery court provided that, for the purposes of attacking a witness' credibility, evidence of a prior conviction is admissible only if (1) the crime is punishable by death or imprisonment in excess of one year, or (2) the crime involved dishonesty or false statement regardless of the punishment. In either case, however, the evidence is inadmissible if the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. Additionally, the Montgomery rule prohibits admission of this evidence if a period of more than 10 years has elapsed since the date of conviction or release of the witness from confinement, whichever is later. Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698. The supreme court has reaffirmed the Montgomery rule in two recent cases. People v. Williams, 161 Ill. 2d 1, 641 N.E.2d 296, 204 Ill. Dec. ...

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