The opinion of the court was delivered by: Justice Kilbride
Docket Nos. 89106, 89760, 90278 cons.-Agenda 4-January 2002.
The primary issue in these three consolidated cases concerns the trial courts' use of the mere-fact method of impeachment. The defendants, Derrick Harvey, Noah Barefield, and Maurice G. Lyons, were separately convicted of various crimes. All three defendants appealed, challenging the trial court's use of mere-fact impeachment as violating this court's holdings in People v. Atkinson, 186 Ill. 2d 450 (1999), and People v. Cox, 195 Ill. 2d 378 (2001).
The First District of the appellate court affirmed Harvey's conviction, finding he had waived the issue. Harvey, No. 1-99-0637 (unpublished order under Supreme Court Rule 23). The Fourth District of the appellate court affirmed Barefield's conviction, finding he requested the trial court use mere-fact impeachment. Barefield, No. 4-98-0838 (unpublished order under Supreme Court Rule 23). Likewise, the Fourth District affirmed Lyons' conviction, finding he agreed to the trial court's use of mere-fact impeachment. Lyons, 315 Ill. App. 3d 959.
We allowed the defendants leave to appeal (177 Ill. 2d R. 315) primarily to determine whether the trial court's use of mere-fact impeachment amounted to plain error in any of the cases. We affirm the appellate court decision in Harvey, No. 1-99-0637 (unpublished order under Supreme Court Rule 23). We affirm in part, reverse in part, and remand the appellate court's judgment in Barefield, No. 4-98-0838 (unpublished order under Supreme Court Rule 23), with directions to vacate Barefield's four convictions for unlawful possession of a motor vehicle. Lastly, we affirm the appellate court decision in Lyons, 315 Ill. App. 3d 959.
Harvey was charged, in part, with two counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1, now 720 ILCS 5/9-1 (West 2000)) and two counts of aggravated kidnapping (Ill. Rev. Stat. 1991, ch. 38, par. 10-2, now 720 ILCS 5/10-2 (West 2000)) as a result of the disappearance and deaths of Stanton Burch and Michael Purham. The evidence at trial established Harvey was a member of the Unknown Vice Lords street gang. At the time of the events at issue, the gang had recently split into two opposing groups and were battling for control of drug trafficking.
On September 12, 1993, Willie Lloyd, one of the group leaders, allegedly stole money and drugs from a street dealer working for Tyrone Williams, the leader of the other faction. The next day, Eunice Clark, a member of Williams' faction, was selling drugs on a street corner when she was approached by Burch and Purham, members of Lloyd's faction. According to Clark, Burch and Purham told her the corner was now controlled by Lloyd. Soon thereafter, Artiss Thigpen, a member of Williams' faction, and two other individuals arrived at the corner by car, armed with guns. Harvey and 10 to 15 armed individuals then arrived at the corner on foot. Clark stated the armed individuals placed Burch and Purham in the vehicle and drove away.
Police Officer Robert Schaefer testified that on the following evening, September 14, 1993, he and another officer arrested Harvey after observing him in the front passenger seat of a car with a shotgun between his legs. At the police station Harvey informed Detective Kristin Kato that he could show the officers where the bodies of Burch and Purham were located. Harvey led four officers to the victims' bodies and upon returning to the police station Harvey gave a signed, handwritten statement detailing his involvement in the murders.
Harvey's statement corroborated the information given by Clark. He further described his membership in the Unknown Vice Lords, his role as a drug dealer, the controversy within the gang about who was allowed to sell drugs at the corner, and Lloyd's attack on one of Williams' street dealers. Harvey also described the events surrounding the murders of Burch and Purham. Harvey stated he believed he shot one of the victims in the leg.
At trial, however, Harvey repudiated his statement, claiming the statement was coerced and false. Harvey claimed he was struck by Detective Kato prior to giving his statement and that Detective Kato promised him he would be released if he gave a statement. Harvey testified he was not involved in the shootings.
Following the close of evidence, the State tendered a jury instruction pertaining to evidence of defendant's prior conviction. See Illinois Pattern Jury Instructions, Criminal, No. 3.13 (3d ed. 1992). Defense counsel objected and the following colloquy took place:
"MR. STANTON [Assistant Public Defender]: We object to that
based on the fact the State *** rested its case in rebuttal after
we rested our case-in-chief and at that point in time the State
did not put in any conviction of the defendant so for that purpose
we are objecting.
THE COURT: Objection is overruled. [The jury instruction] will
be given since I am allowing the State to reopen their case for
the purpose of entering two exhibits which [will] be read to the
jury. People's 12 given over objection.
MR. STANTON: So the record is clear we're objecting to Your
Honor allowing the State to do that.
THE COURT: Okay. As to each of the certified copies of
conviction looking at what the underlying offenses [were] *** that
defendant was convicted for on an earlier occasion, weighing the
probative effect that would be to the jury and taking into account
any possible prejudice that might inure given the testimony of the
defendant that he was in fact and did engage in the selling of
drugs I'll allow for the purposes of rebuttal the introduction of
those exhibits which *** tell the jury about two prior convictions
of the defendant which were for drug related offenses.
However, I'm going to limit the State, as I've already told
them, to telling the jury that the defendant was convicted of a
felony offense and the date that the conviction was given. That
would be the nature that they'll be allowed to present those
exhibits to the jury."
In the presence of the jury, the State then made the following comment:
"In rebuttal, Your Honor, the State would stipulate as follows:
That on the date of June 1st of 1992, the defendant was convicted
of a felony offense. And on the date of June 4th of 1992, the
defendant was convicted of another felony offense."
The jury acquitted Harvey of both first degree murder counts and convicted him of both aggravated kidnapping counts. Harvey filed a posttrial motion arguing, in part, that the trial court erred in allowing the State to introduce evidence of Harvey's prior felony convictions after the State's case. Harvey's posttrial motion was denied and he was sentenced to two concurrent 30-year terms of imprisonment.
The appellate court affirmed, finding the State agreed to defense counsel's offer to stipulate defendant was convicted of two felonies without disclosing the nature of the crimes. The appellate court reasoned it was only in hindsight that defendant asserted his counsel's strategy was defective and the State should have been allowed to reveal the true nature of his crimes.
Harvey now appeals, arguing he did not stipulate or agree to the use of mere-fact impeachment. According to Harvey, the trial court's sua sponte decision to use mere-fact impeachment was reversible error.
Barefield was charged with four counts of unlawful possession of four stolen motor vehicles (625 ILCS 5/4-103(a)(1) (West 1996)) and one count of aggravated possession of stolen motor vehicles (625 ILCS 5/4-103.2(a)(1) (West 1996)), relating to the same four motor vehicles.
Prior to trial, Barefield's counsel presented an oral motion in limine to preclude the State from introducing evidence of his prior felony conviction for burglary to a motor vehicle. In the alternative, Barefield requested that the mere-fact method of impeachment be used to inform the jury only that Barefield had a prior conviction and the year of that conviction. The State agreed to the mere-fact method of impeachment.
The trial court granted Barefield's request to use mere-fact impeachment. Barefield testified during direct examination that he had a prior felony conviction from "a couple of years ago." He further testified he had no knowledge any of the automobiles were stolen, and he denied possessing any of the stolen automobiles.
The jury found Barefield guilty of all five offenses. The trial court sentenced Barefield to 15 years in prison for the aggravated possession count and four 7-year prison terms for each of the simple possession counts, all to run concurrently. Barefield filed a posttrial motion but did not contest the trial court ruling on his motion in limine.
On appeal, Barefield argued the trial court erred by using the mere-fact impeachment method. He further argued his four convictions for simple possession should be vacated as carved from the same physical acts that formed the basis of the aggravated possession conviction.
The appellate court found Barefield had waived both issues. As to the mere-fact impeachment issue, the appellate court held Barefield induced the error and, in light of the overwhelming evidence of guilt, the error was harmless. The appellate court further held Barefield's convictions did not violate the one-act, one-crime rule of People v. King, 66 Ill. 2d 551 (1977). The appellate court reasoned that, unlike the simple possession counts, the aggravated possession count required proof of possession within a certain time period. The appellate court further reasoned the two statutes at issue specifically provide that each individual offense shall not include the offense set forth in the other provision.
The dissent disagreed that Barefield had induced the error concerning mere-fact impeachment, but concurred that defendant had not been prejudiced by the error because the trial court had balanced the prejudicial effect of the convictions against their probative value. The dissent also determined that the four simple possession convictions were subsumed by the aggravated possession conviction and should be vacated.
Barefield appeals, essentially renewing the arguments he made before ...