Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois No. 04-CF-897 Honorable James E. Shadid, Judge, Presiding.
The opinion of the court was delivered by: Justice Carter
After a jury trial, defendant, Martez Harris, was found guilty of armed robbery (720 ILCS 5/18-2(a)(2) (West 2004)) and was sentenced to 24 years' imprisonment. Defendant appeals his conviction and sentence and argues that: (1) he was denied a fair trial when the State improperly impeached him in rebuttal with a certified copy of one of his prior juvenile adjudications; and (2) the trial judge erred in sentencing by considering unreliable hearsay testimony regarding defendant's involvement in other criminal activity. We affirm.
Defendant was charged with the August 23, 2004, armed robberies of Steve Johnson (count one) and Mary Helms (counts two and three). The indictment alleged that the defendant committed the offenses while armed with a handgun. The case proceeded to jury trial three times. The first two times ended in a mistrial after the jury was unable to reach a unanimous verdict.
The evidence presented in the third trial, relevant to this appeal, can be summarized as follows. On August 23, 2004, at about 1:00 a.m., Sparky's Ringside Tap in Peoria was robbed. At the time of the robbery, Steve Johnson was working in the bar as the bartender. The lights were on and Johnson had just closed the bar for the evening. Mary Helms was inside the bar visiting with Johnson and was the only other person in the bar. A short, stocky male black subject with frizzy hair and wearing a puffy black winter coat came into the bar. The subject appeared to be about 20 years old. Johnson went up to the subject to tell him that the bar was closed. A second subject came into the bar behind the first. The second subject had a mask on his face and a gun in his hand. Johnson yelled to Helms that the bar was being robbed and told her to duck and run. Johnson and Helms ran out of the back door of the bar and away from the area and called the police.
On the witness stand, both Johnson and Helms identified defendant as the first subject who had entered the bar. Helms testified further that after she ran out of the bar, she saw defendant, the subject wearing the mask, and a third subject running away from the bar. Defendant was carrying Helms's purse and the subject wearing the mask was carrying the cash register from the bar.
Defendant denied committing the armed robbery. During his direct testimony, defendant was specifically asked by his attorney if he committed the crime. Defendant responded:
"No sir. There is no possible way that I could have committed this crime. I mean people who commit robberies, things like that, have a motive, have a reason for doing things like that. But I am a professional man. I work. I go to college. I went to Robert Morris, ICC, Midstate. I mean, it's no reason--I mean I live a productive life. I live just like any of the 12 jurors, like you live. I don't commit crimes."
In rebuttal, the prosecutor sought to introduce evidence of defendant's prior juvenile adjudications for aggravated battery with a firearm, aggravated discharge of a firearm, theft, and possession of a controlled substance. The aggravated battery and aggravated discharge were committed in August of 2000, about one month before defendant's 16th birthday. Sentence was entered in February of 2001 and was upheld by the appellate court. The theft adjudication occurred in 1997 and the unlawful possession of a controlled substance adjudication occurred in 1998 and again in 2000. All five offenses were felonies. The prosecutor argued that defendant had made a false statement and had presented a false portrayal of himself when he told the jury that he does not commit crimes.
The trial judge initially denied the prosecutor's request. However, upon reconsideration, the trial judge granted the prosecutor's request, in part, and decided to allow the prosecutor to impeach defendant's testimony with his prior juvenile adjudication for aggravated battery with a firearm and aggravated discharge of a firearm finding that the admission was "necessary for a fair determination on the issue of guilt or innocence in this case". Defense counsel objected and argued that under the test set forth in People v. Montgomery, 47 Ill. 2d 510, 516-519, 268 N.E. 2d 695, 698-700 (1971), the prior adjudications were too prejudicial to be admitted because of their similarity to the current offense in that the prior offenses and the current offense each involved the use of a gun. The trial judge overruled defense counsel's objection, and in doing so, made the following comments:
"Well, Montgomery requires me to determine that the probative value is not outweighed by the danger of unfair prejudice, and certainly there is some prejudice here. Certainly there is prejudice anytime a prior conviction is brought in as to a witness or a Defendant. In this case I understand your point, [defense counsel], that there is a gun case, that aggravated discharge of a firearm is a gun charge, armed robbery is completely different elements and circumstances, but the Court also cannot overlook the Defendant's testimony that I don't commit crimes as being factored in here. This came up during direct examination. So when weighing the whole, when given the weight and weighing all the factors that I need to weigh, I am going to allow the most recent, the 2000 case ***."
A certified copy of the 2000 adjudication was admitted into evidence and the trial judge informed the jury that the exhibit indicated that defendant had been adjudicated a delinquent for aggravated battery with a firearm and aggravated discharge of a firearm in a juvenile case in February of 2001. Immediately after admitting the prior juvenile adjudication, the trial judge instructed the members of the jury that "evidence of Defendant's previous juvenile adjudication may be considered by you only as it may affect his believability as a witness and must not be considered by you as evidence of his guilt of the offense for which he is charged."
During the instruction phase of the trial, the jury was given a modified version of IPI 3.13 (Illinois Pattern Jury Instruction, Criminal, No. 3.13 (4th ed. 2000)), which read as follows:
"Evidence of a defendant's previous juvenile adjudication(s) may be considered by you only as it may affect his believability as a witness and must not be considered by you as evidence of his guilt of the offense with which he is charged."
After deliberation, the jury found defendant guilty of all three counts of armed robbery. The matter was set for sentencing and a presentence investigation report (PSI) was ordered. The PSI provided further detail on defendant's juvenile record. Only the major offenses are described below.
In June of 1997, defendant was adjudicated delinquent for theft, a Class 3 Felony. The offense occurred in October of 1996. Defendant was sentenced to two years probation in July of 1997. In March of 1998, a petition was filed alleging that defendant had violated his sentence by failing to report to probation. During the pendency of the petition, defendant was placed on electronic monitoring. A warrant was issued for defendant's arrest for violation of home detention. Probation was revoked, and in July of 1998, defendant was sentenced to a new term of probation and to a 30 day period of home detention.
In December of 1998, defendant was adjudicated delinquent for unlawful possession of a controlled substance, a Class 4 Felony. The offense occurred in November of 1998. Defendant was sentenced to three years in the juvenile Department of Corrections. In May of 1999, defendant was put on parole. In June of 1999, defendant was returned to the Department of Corrections on a parole violation and a new offense.
In May of 2000, defendant was adjudicated delinquent for unlawful possession of a controlled substance, a Class 4 Felony. The offense occurred in October of 1999. Defendant was sentenced to three years in the juvenile Department of Corrections in May of 2000. He was paroled in June of 2000. In August of 2000, defendant was returned to the Department of Corrections on a parole violation. Defendant's sentence ...