Appeal from the Circuit Court of Winnebago County. No. 97-CF-1331 Honorable K. Craig Peterson, Judge, Presiding
The opinion of the court was delivered by: Justice Grometer
Following a jury trial, defendant, Nathanial Slabaugh, was convicted of mob action (720 ILCS 5/25--1(a)(2) (West 1996)), aggravated battery (720 ILCS 5/12--4(b)(6) (West 1996)), and resisting or obstructing a peace officer (720 ILCS 5/31--1(a) (West 1996)). He appeals, contending that (1) the trial court erred by allowing the prosecutor to impeach two defense witnesses with evidence that they pleaded guilty to misdemeanors arising out of the same incident as the charges against defendant; and (2) the prosecutor's closing argument deprived defendant of a fair trial. We reverse and remand.
On June 25, 1997, Kenneth Kloweit and Janet Kloweit held a birthday party for their daughter, Kelly, at the Auto Inn in Rockford. Kelly's fiancé, Corey Jones, and defendant were among the guests. Sometime after midnight a fight broke out. Apparently the fight was initially between Jason Radounis and Sam Stella but soon escalated into a general melee. The fight started in the beer garden and spilled out onto the sidewalk. The police were called. By the time the officers arrived the conflict had subsided, but they attempted to disperse the crowd so that it would not start up again.
Kurt Whisenand was one of the first officers to arrive. He and Jason Cebuhar, another Rockford police officer, told the people gathered in the beer garden several times that they had to leave but received little or no response. According to the police officers, as a few people began leaving the beer garden, Whisenand saw Corey Jones push another man, later identified as Michael Scalise. Cebuhar told Jones that he was under arrest, but Jones responded with a profanity. Whisenand and Cebuhar then grabbed Jones's arms in an attempt to arrest him. Cebuhar and Jones ended up on the ground.
Whisenand testified that, as he and Cebuhar were struggling with Jones, Whisenand saw defendant punch Cebuhar in the midsection. Cebuhar testified that he punched defendant in the face. Meanwhile, two other officers, Kevin Nordberg and David Lee, pulled defendant off Cebuhar and tried to arrest him. Defendant and Lee fell to the ground with defendant on top. Nordberg and Lee testified that defendant punched Lee in the head before they were able to handcuff him. At some point Jolie Swartz stepped in front of Cebuhar and said something like, "This is not necessary." He arrested her for obstructing a peace officer.
The defense witnesses testified that neither defendant nor Jones, who was tried with him but is not a party to this appeal, provoked or assaulted the officers. Janet Kloweit testified that after the fight broke out she and her husband decided it was time to end the party. As she was walking to her car, she saw Jones face down on the sidewalk. A police officer had his knee on Jones's shoulder.
Swartz testified that she saw some officers standing behind Jones, with an officer holding each arm. She later saw defendant on the ground with five or six officers around him punching him and spraying him with mace. Defendant was curled up in a fetal position. She approached one of the officers and told him that what they were doing was not necessary.
Scalise testified that he was standing on the street next to Jones when Jones pushed him in the chest and was immediately arrested. Defendant was standing 5 to 10 feet away. As defendant began to move toward Jones, he was thrown to the ground by four or five officers. Scalise never saw defendant punch or push a police officer.
Michael Rich testified that defendant was telling the officers to calm down because they were being too rough with Jones. Defendant was only trying to get the officers' attention when they tackled him and sprayed him with mace.
Jones testified that after the fight ended he was standing at the entrance to the beer garden with Scalise. The two exchanged words and Jones pushed Scalise. He was then hit in the back of the head by several officers, fell to the ground, and was handcuffed.
Defendant testified that after Jones pushed Scalise several officers threw Jones to the ground and started kicking and kneeing him. He began moving toward Jones and either fell or was knocked down. Officers then began hitting and macing him.
In rebuttal, Vic Olszewski, the owner of the Auto Inn, testified that he saw Jones struggling with police officers who were trying to arrest him. He later saw defendant hit an officer, after which there was a brawl. Defendant fought back before being maced and taken into custody.
After hearing this evidence, the jury found defendant guilty. The court sentenced him to two years' conditional discharge, and this appeal followed.
Defendant first contends that the court erred by permitting the State to impeach two defense witnesses, Swartz and Rich, with evidence that each pleaded guilty to obstructing a peace officer. On cross-examination, Swartz denied that she had ignored several requests by the police to leave the area. However, she admitted that on July 27, 1997, she pleaded guilty to obstructing a peace officer. According to the prosecutor, the complaint alleged that "Officer Cebuhar told Miss Swartz to leave the area several times and she refused the officer's request." Swartz testified that she did not have a lawyer when she pleaded guilty and did not read the complaint. She did not recall the complaint being read to her in open court.
During the prosecutor's cross-examination of Michael Rich, the following colloquy occurred:
"Q: *** Were you told several times to leave the area by officers and did you refuse to leave and attempt to start the fight again?"
A: I never tried to start the fight again. But I was told to leave the area a lot, yes."
However, the prosecutor then asked him whether he had pleaded guilty to a complaint charging that he "was told by officers several times to leave the area. He refused to leave and attempted to start the fight again." He admitted that he pleaded guilty.
In People v. Montgomery, 47 Ill. 2d 510 (1971), the supreme court considered under what circumstances a defendant could be impeached with evidence of his prior convictions. The court adopted proposed Federal Rule of Evidence 609, providing that prior convictions for impeachment purposes should be limited to crimes punishable by imprisonment for more than one year (felonies) or any crimes involving dishonesty. Montgomery, 47 Ill. 2d at 516.
In People v. Stover, 89 Ill. 2d 189 (1982), the court held that Montgomery applied to witnesses other than the defendant. Specifically, Stover held that it was error to permit the impeachment of a defense witness with the fact that he pleaded guilty to charges of obstructing a peace officer that arose out of the same incident as the charges against defendant. Stover, 89 Ill. 2d at 194-95. The court rejected the State's argument that the guilty plea was admissible as a prior inconsistent statement after the witness denied the conduct to which he pleaded guilty. Stover, 89 Ill. 2d at 195.
Stover is indistinguishable from this case. The State impeached both Swartz and Rich with their guilty pleas to obstructing a peace officer. Obstructing a peace officer is a misdemeanor (see 720 ILCS 5/31--1(a) (West 1996)) that does not involve dishonesty or false statement and is therefore inadmissible as impeachment under Montgomery. The State attempts to distinguish Stover on the basis that the guilty pleas here were "judicial admissions" rather than "prior inconsistent statements." This is a distinction without a difference. The plea in Stover was surely a judicial admission also.
The only authority the State cites in support of its contention that the guilty pleas were admissible is a passage from a reference work discussing the admission of guilty pleas in traffic cases during related civil litigation. See M. Graham, Cleary & Graham's Handbook of Illinois Evidence §802.4, at 758-59 (7th ed. 1999). Professor Graham expressly acknowledges and distinguishes Stover.
We note that testimony about his guilty plea did not even impeach Rich, who admitted that the police told him several times to leave. Thus, evidence of the guilty plea was merely cumulative of Rich's testimony during cross-examination. Generally, prior consistent statements are inadmissible. See People v. Emerson, 97 Ill. 2d 487, 500 (1983). Although Rich denied that he attempted to "restart the fight," attempting to restart a fight is not an element of obstructing or resisting a peace officer (see 720 ILCS 5/31--1(a) (West 1996)) and therefore was not admitted by the guilty plea.
Clearly, the witnesses' credibility was the critical issue at trial. Defendant was thus prejudiced by the improper impeachment of the defense witnesses, and his conviction must be reversed.
Defendant also contends that the prosecutor made numerous improper comments during closing argument. Defendant contends that the prosecutor stated repeatedly that defense witnesses conspired to commit perjury, that the jurors should show their support for law enforcement by their verdict, and that defendant was an "animal" and a "maniac."
The State responds that defendant waived his objections to many of the remarks by failing to object to them during trial and that the court sustained several of the objections that were made, thus curing any prejudice. The State contends that the remaining remarks were either proper comments on the evidence or were harmless error. Because we are reversing defendant's conviction on the improper impeachment issue, we address this issue primarily for the benefit of the parties on remand. As a result, we find it unnecessary to distinguish between comments that were objected to and those that ...