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People v. Whirl

June 15, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KEMO D. WHIRL, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Du Page County. No. 01--CF--1934 Honorable Perry R. Thompson, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice McLAREN

[8]  Following a trial by jury, defendant, Kemo D. Whirl, was convicted of two counts of residential burglary (720 ILCS 5/19--3(a) (West 2000)) and one count of possession of a controlled substance (720 ILCS 570/402(c) (West 2000)) and sentenced to the Illinois Department of Corrections. Defendant now appeals his convictions. We reverse his convictions and remand in part for a new trial.

[9]  Defendant first contends that the trial court erred in allowing the State to use all of his prior convictions for impeachment at trial. Before trial, defendant moved in limine to exclude from evidence,"or at least limit the manner in which they are introduced and the number introduced," 10 convictions that he had received between 1993 and 1999. Included in this list were a conviction of residential burglary, two of burglary, several of theft, and two involving controlled substances. The trial court noted that both defendant's criminal history and the current case included controlled substance charges and "the same type of charge in here, I mean the same word of 'burglary.' " The court then denied the motion, explaining:

[10]   "These are all within a 10-year period of the alleged commission in [sic] this offense, and I think that's one of the things people bring to the stand. They bring the entire past to the stand."

[11]   At trial, defendant testified during his case in chief that he had been convicted of some crimes, including felonies and "charges of a theft nature." On cross-examination, the State asked specifically if he had been convicted of "theft of a stolen [sic] motor vehicle," burglary, residential burglary, possession of a controlled substance, delivery of a controlled substance, deceptive practices, and theft. After each charge listed by the State, defendant answered, "Correct."

[12]   The State argues that this issue is waived because defendant did not object at trial to the State's use of the prior convictions. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (defendant waives an issue on appeal unless he objects at trial and includes the issue in a posttrial motion). However, an issue is preserved for appeal if there has been either an objection at trial or it has been raised in a motion in limine, and it is also raised in a posttrial motion. People v. Hudson, 157 Ill. 2d 401, 434-35 (1993); People v. Barajas, 322 Ill. App. 3d 541, 553 (2001). As defendant moved in limine and raised the issue in his posttrial motion, the issue is properly preserved for appeal.

[13]   Evidence of prior convictions is admissible for impeachment purposes if (1) the witness's crime was punishable by death or by imprisonment for more than one year, or the crime involved dishonesty or false statement regardless of the punishment; (2) the witness's conviction or release from confinement, whichever date is later, occurred less than 10 years before the date of trial; and (3) the danger of unfair prejudice does not substantially outweigh the probative value of the conviction. People v. Montgomery, 47 Ill. 2d 510, 516 (1971). This last element involves a balancing of probative value and prejudicial effect. People v. Cox, 195 Ill. 2d 378, 383 (2001). In balancing these factors, the trial court should consider the nature of the prior crimes, the length of the criminal record, the age and circumstances of the witness, and, most importantly, 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 to know of a prior conviction. Cox, 195 Ill. 2d at 383. Convictions of the same crime for which a defendant is on trial should be admitted sparingly. Cox, 195 Ill. 2d at 384. The trial court has discretion in the balancing test and in determining whether a prior conviction is admissible. Cox, 195 Ill. 2d at 383. However, the trial court should not apply the balancing test mechanically (Stokes v. City of Chicago, 333 Ill. App. 3d 272, 279 (2002)), and the record must include some indication that the trial court was aware of its discretion to exclude a prior conviction (People v. Elliot, 274 Ill. App. 3d 901, 907 (1995)).

[14]   The record in this case reveals a complete abdication by the trial court of its role in balancing the probative value and prejudicial effect of defendant's prior convictions. The court simply noted that the convictions were within 10 years of the trial, then ruled that defendant's entire history was fair game. If anything, the only real consideration the court seemed to give to any factor was that prior convictions of the crimes for which defendant was on trial should especially, rather than sparingly, be used. We cannot find that the trial court abused its discretion, because the court failed to exercise its discretion. This is the type of mechanical application of a rule, without the exercise of discretion, that a trial court is to avoid. In the absence of an exercise of discretion, we cannot defer to the trial court and assume that the probity of the admitted convictions of possession of a stolen motor vehicle, burglary, residential burglary, possession of a controlled substance, delivery of a controlled substance, deceptive practices, and theft outweighed their prejudice to defendant.

[15]   The State argues that, even if admission of the convictions was error, it was harmless error, as the outcome of the trial would not have been different. Without detailing the evidence in this case, we decline to conclude that forcing defendant to admit to seven different felonies, including some prior convictions of the crimes for which defendant was on trial, did not adversely affect the integrity of the criminal process. That much information regarding defendant's criminal history provides little more information to the jury than the fact that defendant likes to commit crime. The trial court had the opportunity to weigh the factors and explain its reasoning in allowing all the convictions to be used. However, the court demonstrated no evidence that it weighed the factors or exercised discretion. Therefore, defendant's convictions must be reversed and the cause remanded for a new trial.

[16]   The trial court's abdication of its responsibilities is further demonstrated by its actions in the next two issues raised by defendant. On October 15, 2001, defendant filed a motion claiming ineffective assistance of counsel on the part of Senior Assistant Public Defender Steve Dalton. Defendant alleged that Dalton would not return his telephone calls, had seen defendant only two or three times, refused to talk about the case, and failed to file any motions; thus, there was a complete breakdown in communication. Dalton requested "some sort of finding on the merits of the motion. Granting it. Appoint another counsel, or find it has no merits." The court continued the case for two weeks and told defendant that, if he was still dissatisfied, they would talk again.

[17]   On January 4, 2002, Dalton informed the court that he had received three communications from defendant asking him to withdraw from the case. Dalton filed a motion to withdraw as counsel, which the court granted without comment. The court then gave the public defender one week to determine if another assistant could be appointed without a conflict. On the next court date, Theresa Rioux of the office of the public defender appeared on defendant's behalf. The court told defendant that he would have "two counsels who will be first chair." The court also refused defendant's request for appointment of a private attorney. Ms. Rioux appeared on the next court date but never again appeared on the case. Dalton continued his representation through the remainder of the case, even after defendant filed a complaint against him with the Attorney Registration and Disciplinary Commission and another motion alleging ineffective assistance of counsel, by both Dalton and Rioux. After trial, defendant filed a pro se motion to amend his previous motion alleging ineffective assistance of counsel, adding 13 new allegations, and a five-page motion claiming ineffective assistance of counsel--posttrial. While the trial court denied a motion for a new trial that Dalton filed, the court never ruled on defendant's motions.

[18]   The court was aware of defendant's dissatisfaction with Dalton and eventually allowed Dalton to withdraw. However, the court never gave explicit reasons as to why it granted Dalton's motion to withdraw. Although the trial court allowed Dalton's withdrawal and appointed Rioux, Rioux appeared only twice and provided no substantive representation. The court then allowed Dalton to continue what was in essence his solo representation of defendant. The court made no effort to ensure that the attorney that it appointed actually represented defendant, and it allowed a withdrawn attorney, whom defendant accused several times of ineffective assistance, to represent him through a jury trial and sentencing.

[19]   After trial, defendant filed two pro se motions alleging ineffective assistance of counsel, yet the court neither investigated the claims nor ruled on the motions. A trial court must conduct some type of inquiry into the underlying factual basis, if any, of a defendant's pro se posttrial claim of ineffective assistance of counsel. People v. Moore, 207 Ill. 2d 68, 79 (2003). Some interchange between the court and trial counsel is usually necessary, but the court may also base its decision on a discussion with the defendant and its own knowledge of counsel's performance at trial. Moore, 207 Ill. 2d at 78-79. On appeal, where no such investigation occurred, a case must be remanded to the trial court for that purpose. Moore, 207 Ill. 2d at 79.

[20]   In these instances, the trial court again abdicated its role, allowing Dalton's continued representation after he was removed from the case and never addressing defendant's pro se allegations of ineffective assistance of counsel. The trial court's dereliction of duty in its failure to address the posttrial motions is magnified by the history of Dalton's representation before, during, and after trial, even after he had withdrawn from the case. We are in no way determining that Dalton's representation was ineffective; however, the trial court failed in its duty to provide defendant with appointed counsel when it removed Dalton from the case yet allowed him to represent defendant throughout the case, and then it compounded its failure when it ...


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