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People v. Atkinson

June 17, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
DALE ATKINSON, APPELLEE



The opinion of the court was delivered by: Justice Bilandic

-Agenda 6-September 1998

Defendant, Dale Atkinson, was charged by information in Vermilion County with one count of burglary for knowingly entering a motor vehicle, without authority, with intent to commit theft (720 ILCS 5/19-1(a) (West 1994)). A jury returned a verdict finding defendant guilty of burglary on the basis of accountability. The trial court sentenced defendant to six years' imprisonment. The appellate court, with one Justice Dissenting, reversed defendant's conviction and remanded for a new trial, finding reversible error in the admission of defendant's two prior burglary convictions for impeachment purposes. 288 Ill. App. 3d 102. We allowed the State's petition for leave to appeal (166 Ill. 2d R. 315) and now reverse the appellate court's judgment and reinstate defendant's conviction and sentence.

FACTS

Evidence adduced at trial showed that on March 17, 1994, around 9:30 p.m., Nathan Reitsma was driving his mother's 1984 Chrysler LeBaron, when the car stalled on Oakwood Avenue in Danville, Illinois. Nathan testified that he parked and locked the car alongside the road and proceeded to a nearby store to call his mother. When he returned to the car about 15 to 20 minutes later, he discovered that a window had been "pried down" and that the dashboard had been torn apart. The AM-FM cassette stereo and an equalizer had been removed from the dashboard.

That same evening, Herb Simmons was driving his car along with three passengers, defendant, Dale Juvinall, and Steve Robbins. Simmons testified that they were in the area of Oakwood Avenue when they noticed a stalled car on the side of the road. Simmons stopped the car, and defendant and Juvinall got out of the car. Simmons left defendant and Juvinall so that his car would not be seen if "they did something." He returned about 10 to 15 minutes later and picked up defendant and Juvinall. Juvinall had stereo equipment inside his coat when he reentered Simmons' car. They proceeded to defendant's trailer, where Juvinall "split up" the stereo and equalizer, which had been connected.

Juvinall kept the equalizer and gave the stereo to defendant. Simmons and Juvinall left in Simmons' car with the equalizer underneath the passenger seat. Later that same evening, the police stopped Simmons and Juvinall and confiscated the equalizer from the car. Dale Juvinall testified for the State that on March 17, 1994, he was riding in a car with defendant, Simmons, and Robbins. Around 10 p.m., they stopped by a stalled car on Oakwood Avenue. Juvinall requested that they stop by the stalled car because he wanted to see if that car had a stereo system. Juvinall and defendant approached the stalled car, which was unlocked. Juvinall opened the door and removed the stereo and equalizer. While Juvinall removed the items from the car, defendant stood next to him. Juvinall handed defendant the stereo, which defendant thereafter kept in his possession. When Simmons returned to pick them up, Juvinall was holding the equalizer and defendant was holding the stereo. After unsuccessfully trying to sell the equalizer, they went to defendant's house and dropped him off with the stereo. Juvinall confirmed that later that evening police arrested him and Simmons after recovering the equalizer from the car.

Mark Drollinger, an investigator with the Vermilion County sheriff's department, investigated the burglary of the Reitsma car. Drollinger interviewed defendant on March 21, 1994. According to Drollinger, defendant consented to his making an audio tape of their interview, which was later admitted into evidence and played to the jury. In that interview, defendant stated that on the evening of March 17, 1994, he was riding in Simmons' car with Juvinall and Robbins. After approaching a stalled vehicle on Oakwood Avenue, Juvinall stated that he saw a "fuzz buster." Juvinall exited Simmons' car and entered the stalled vehicle, which he unlocked by reaching through an open window. Juvinall then removed the stereo and the equalizer from the dashboard. Defendant admitted getting out of Simmons' car because of "stupidity," and standing nearby while Juvinall removed the equipment from the stalled car. Defendant did not go into the stalled car. After Simmons picked them up, they returned to defendant's house and left the stereo there.

Defendant admitted to subsequently trading that stereo to Chris Hunt for a different stereo. Following defendant's interview, Drollinger located Chris Hunt and recovered the stolen stereo from him.

Defendant testified at trial that, on March 17, 1994, he was in Simmons' car with Juvinall and Robbins when Juvinall and Simmons saw a car with personalized license plates, which they thought contained a stereo. Juvinall wanted to see if the car also had a fuzz buster. Defendant admitted on cross-examination that the only reason to check for a fuzz buster was to steal it. Simmons pulled over in front of the stalled car.

Juvinall exited Simmons' car and asked defendant to accompany him. Defendant testified that he stepped out of Simmons' car and stood by the side of the road. Juvinall climbed into the stalled car through an open window and pulled at the bottom of the dashboard. Defendant stated that he did not do anything to assist Juvinall. Defendant also denied being a lookout; however, he did notice that no one was around or was coming down the street. When Juvinall exited the stalled car, he had a stereo and an equalizer, which were taped together with black electrical tape. Simmons picked up Juvinall and defendant and drove them to defendant's trailer, where Simmons separated the stereo and the equalizer. Defendant was given the stereo, which he "got rid of" a few days later.

Following defendant's testimony the State sought to present, for impeachment purposes, evidence of defendant's two prior burglary convictions. Defense counsel objected to their publication to the jury and claimed that the probative value of the two convictions was outweighed by their prejudicial effect. In the alternative, defense counsel asserted that the jury should be informed only that defendant had two prior felony convictions, and the date of the convictions. The trial court denied defendant's requests. Accordingly, the State impeached defendant with evidence of his two prior burglary convictions.

Specifically, the State informed the jury that defendant's two prior convictions were for burglary, and that these convictions occurred in Vermilion County on September 9, 1992, and January 11, 1993. Defendant filed a motion for a mistrial, arguing that the State should not have been allowed to publish the nature of defendant's prior convictions to the jury. The trial court denied the motion for a mistrial. The jury found defendant guilty of burglary on an accountability theory. The trial court entered a judgment on the verdict and sentenced defendant to six years' imprisonment. The trial court denied defendant's post-trial motion for a new trial.

The appellate court, with one Justice Dissenting, reversed defendant's conviction and remanded for a new trial. The appellate court held that the trial court erred when it permitted the State to reveal to the jury the nature of defendant's prior convictions. 288 Ill. App. 3d at 107. The court determined that the trial court should have employed the "mere-fact" method of impeachment as part of its balancing test in deciding whether the probative value of the evidence sought to be admitted is substantially outweighed by the danger of unfair prejudice. 288 Ill. App. 3d at 107. The appellate court found that the jury in this case should have heard only the "mere fact" that defendant had twice been convicted of unidentified felonies. The appellate court concluded that the trial court's error was prejudicial and not harmless to defendant because the evidence of defendant's guilt was not overwhelming. 288 Ill. App. 3d at 108. The appellate court remanded the cause for a new trial. The Dissenting opinion stated that, absent precedent from this court requiring application of the mere-fact approach, defendant's conviction was not obtained in error because the trial court had applied the required balancing test. 288 Ill. App. 3d at 109 (Green, J., Dissenting).

ANALYSIS

The issue before this court is whether the mere-fact method of impeachment should be adopted in Illinois.

This court's opinion in People v. Montgomery, 47 Ill. 2d 510 (1971), generally governs the use of prior convictions to impeach a witness' credibility. In Montgomery, this court adopted the then-proposed Federal Rule of Evidence 609 as the general rule governing the admissibility of prior convictions to impeach the credibility of a witness. Montgomery, 47 Ill. 2d at 519; see also M. Graham, Cleary & Graham's Handbook of Illinois Evidence §§609.1, 609.2 (6th ed. 1994). Under the Montgomery rule, evidence of a witness' prior conviction is admissible to attack the witness' credibility where: (1) the prior crime was punishable by death or imprisonment in excess of one year, or involved dishonesty or false statement regardless of the punishment, (2) less than 10 years has elapsed since the date of conviction of the prior crime or release of the witness from confinement, whichever is later, and (3) the probative value of admitting the prior conviction outweighs the danger of unfair prejudice. Montgomery, 47 Ill. 2d at 516; see also M. Graham, Cleary & Graham's Handbook of Illinois Evidence §609.2 (6th ed. 1994). This last factor requires the trial Judge to conduct a balancing test, weighing the prior conviction's probative value against its potential prejudice.

In conducting this balancing test, the trial Judge should consider, inter alia, the nature of the prior conviction, its recency and similarity to the present charge, other circumstances surrounding the prior conviction, and the length of the witness' criminal record. Montgomery, 47 Ill. 2d at 518; see also 6 L. Pieczynski, Illinois Practice §22.68 (West 1989); M. Graham, Cleary & Graham's Handbook of Illinois Evidence §609.4 (6th ed. 1994). If the trial Judge determines that the prejudice substantially outweighs the probative value of admitting the evidence, then the evidence of the prior conviction must be excluded. The ...


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