The opinion of the court was delivered by: Justice Fitzgerald
Docket No. 88860-Agenda 8-November 2000.
Following a jury trial in the Champaign County circuit court, the defendant, Derick Cox, was convicted of unlawful possession of a stolen vehicle and sentenced to 15 years' imprisonment. The appellate court affirmed the defendant's conviction and sentence. No. 4-99-0122 (unpublished order under Supreme Court Rule 23). We granted the defendant's petition for leave to appeal. 177 Ill. 2d R. 315(a).
The central issue in this case involves the continuing use of the "mere-fact" method for impeaching a criminal defendant with prior conviction evidence after our opinion in People v. Atkinson, 186 Ill. 2d 450 (1999). We reverse the defendant's conviction and remand for a new trial.
On May 23, 1998, a Nissan Pulsar owned by David and Rose Sherer and loaned to their son, Zachary Fisher, a University of Illinois student, disappeared from a student housing complex in Champaign. A week later, the car reappeared in Rantoul, crashed into a construction sign and stopped near a roadside tree. As a Rantoul police officer approached the accident, he noticed the defendant walking toward the car. The defendant saw the officer and ran. The officer and his police dog pursued the defendant into a nearby residence where he was arrested. The defendant was indicted for burglary, criminal damage to property, and unlawful possession of a stolen vehicle. Before trial, the State dismissed the burglary and criminal damage to property counts. A jury deadlocked on the unlawful possession of a stolen vehicle count, and the court declared a mistrial.
The State chose to retry the defendant, and another jury found him guilty of unlawful possession of a stolen vehicle. The court sentenced the defendant to 15 years' imprisonment. The appellate court affirmed the defendant's conviction and sentence. This appeal followed.
The defendant raises four issues in his appeal. We focus initially on the first issue: whether the appellate court incorrectly sanctioned the trial court's use of the "mere-fact" method to impeach the defendant's credibility with his prior felony convictions. Under the mere-fact method, "only the `mere fact' of the felony conviction is to be brought to the jury's attention, as opposed to informing the jury of the precise offense of which the defendant has been convicted or the circumstances surrounding that prior conviction or both." People v. Kunze, 193 Ill. App. 3d 708, 733 (1990) (Steigmann, J., specially concurring). The defendant contends that this court barred mere-fact impeachment in Atkinson.
Immediately before trial, defense counsel filed a motion in limine to bar all evidence of the defendant's five prior felony convictions: two 1989 theft convictions, a 1990 burglary conviction, a 1994 theft conviction, and a 1996 burglary conviction. Defense counsel argued that these convictions were closely related to the unlawful possession of a stolen motor vehicle charge. According to defense counsel, if the jury heard evidence of these convictions, it would believe that the defendant had a propensity to commit these types of offenses. The court stated:
"The court always weighs the prejudicial impact of informing the jury about the Defendant's prior convictions against the probative value. And if this Defendant wishes to testify, the jury is going to be told that their duty will be to judge the credibility of the witnesses. And I am of the opinion that it's only fair that the jury be aware that the Defendant does have prior felony convictions when they weigh his credibility, should he choose to testify.
I will, however, not specifically tell the jury of the burglary convictions and the theft conviction. I will merely tell the jury the Defendant has a prior theft and felony convictions, as opposed to-well, theft, this is a stolen car. I will not even go so far as to say theft. I'm just going to say felony convictions if he's going to be impeached with his prior record."
On direct examination of the defendant, defense counsel asked, "[Y]ou have a couple of prior felony convictions, don't you?" The defendant answered that he did. In a post-trial motion, the defendant asserted that the court erred in allowing evidence of his prior convictions to reach the jury. The trial court denied this motion.
The appellate court held that, despite our decision in Atkinson, the trial court did not abuse its discretion in admitting the mere fact of the defendant's prior convictions because the defendant agreed to mere-fact impeachment. No. 4-99-0122 (unpublished order under Supreme Court Rule 23). We, however, see no such agreement on the record. To the contrary, the defendant filed a motion in limine asking the court to exclude any evidence of his prior convictions and a post-trial motion reiterating that position. The prior conviction issue was properly preserved for review. See People v. Enoch, 122 Ill. 2d 176, 187 (1988).
Before addressing Atkinson, we review briefly Illinois law concerning impeachment of a witness though the use of prior convictions, beginning with People v. Montgomery, 47 Ill. 2d 510 (1971). In Montgomery, we adopted the 1971 proposed draft of Federal Rule of Evidence 609. Montgomery, 47 Ill. 2d at 519. Under this rule, evidence of a prior conviction is admissible for impeachment purposes if (1) the witness' crime was punishable by death or imprisonment for more than one year, or the crime involved dishonesty or false statement regardless of the punishment; (2) the witness' conviction or release from confinement, whichever date is later, occurred less than 10 years from the date of trial; and (3) the danger of unfair prejudice does not substantially outweigh the probative value of the conviction. Montgomery, 47 Ill. 2d at 516. *fn1 This final factor involves a balancing test: probative value versus prejudicial effect. In performing this test, trial courts should consider " `the nature of the prior crimes, *** the length of the criminal record, the age and circumstances of the [witness], and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than ...