The opinion of the court was delivered by: Justice Theis
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justice Freeman concurred in the judgment and opinion.
Justice Burke specially concurred, with opinion.
Justice Thomas dissented, with opinion, joined by Justices Garman and Karmeier.
¶ 1 Defendant Victor Villa was convicted by a Boone County jury of aggravated battery with a firearm and aggravated discharge of a firearm under an accountability theory and was sentenced to concurrent terms of imprisonment of 14 years and five years, respectively. The appellate court affirmed the trial court. 403 Ill. App. 3d 309. The principal issue before this court is whether reversible error occurred when the State was allowed to impeach defendant, who testified at trial, with his prior juvenile adjudication for burglary.
¶ 2 We hold that a juvenile adjudication is typically not admissible against a testifying defendant, defendant did not "open the door" to admission of his juvenile adjudication, and the erroneous admission of defendant's juvenile adjudication was not harmless. Thus, we reverse and remand for a new trial.
¶ 4 In October 2007, a Boone County grand jury indicted defendant on one count of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2006)), a Class X felony (720 ILCS 5/12-4.2(b) (West 2006)), and one count of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)), a Class 1 felony (720 ILCS 5/24-1.2(b) (West 2006)). The charges stemmed from a drive-by shooting in Belvidere, Illinois, on August 8, 2007, during which one person was injured.
¶ 5 Prior to trial, defendant moved in limine to prohibit the State from introducing evidence regarding his August 2006 juvenile adjudication for burglary. In his written motion, defendant argued that the probative value of such evidence was greatly outweighed by the danger of unfair prejudice. During argument, the State indicated that it sought to use the juvenile adjudication for impeachment should defendant testify. The following colloquy then took place:
"THE COURT: Is there any case law that says you cannot use a juvenile delinquency finding for impeachment?
[Assistant Public Defender] LEE: No. In fact, I believe the case law specifically says-
THE COURT: (Interrupting) Says you can? So we're in the normal balancing.
¶ 6 The trial court determined that the burglary adjudication, which was entered less than a year prior to the current offenses, related to defendant's truth and veracity and that its probative value outweighed any prejudice. The trial court thus denied defendant's in limine motion.
¶ 7 At trial, 17-year-old Adrian Cazares testified that on August 8, 2007, at 10 or 11 p.m., he and four friends-Hector, Capone, Poyo, and Casper-were driving around in Hector's car in the Belvidere neighborhood where defendant lived. Capone threw a water bottle out the car window at Joe Follis, a friend of defendant, nearly knocking Follis off of his bicycle. Capone exited the car and chased Follis on foot. Cazares testified that he spotted defendant on the sidewalk and told his companions "it was just going to be me and him." The group exited the car and "everybody started getting rowdy." Defendant had a "tube," later identified as a ceremonial knife with a sheath. Cazares and defendant "started going at it," and Cazares admitted kicking and hitting defendant numerous times. Cazares was adjudicated a delinquent minor for aggravated battery in connection with this incident.
¶ 8 After the fight, Cazares and his companions retreated to Cazares's house, which was two blocks away, and remained outside in the driveway. Also present was Cazares's uncle, Luis Perez. Cazares and Perez both testified that they watched a vehicle slowly approach the house, and then come to a complete stop in front of the driveway. One of the passenger windows rolled down and multiple shots were fired from inside the vehicle toward the house. Cazares described the vehicle as a black SUV with tinted windows.
¶ 9 Perez further testified that the first bullet that was fired hit the trunk of his vehicle, and the second bullet hit the back of his arm and exited through his chest and shoulder, lodging in his shirt. Police recovered the bullet which hit Perez, and also recovered two spent rounds that hit Cazares's house. All three rounds were .30/.32 caliber and were fired from the same firearm, probably a revolver. A fourth round went into the attic of Cazares's house and was not recovered. The following day police located a vehicle that matched the description of the vehicle from which the shots were fired. The vehicle was parked in the driveway at the home of defendant's friend, Angel Hernandez.
¶ 10 Several weeks later, on September 26, 2007, defendant learned that police were looking for him. Defendant voluntarily went to the Belvidere public safety building, where police arrested him. The following morning, Detectives Woody and Wallace spoke with defendant. After being advised of his Miranda rights, defendant, who had just turned 18 three weeks earlier, gave police an oral statement, which Detective Woody transcribed verbatim on a computer. Defendant reviewed and signed the statement. In this statement, which was read to the jury, defendant provided the following description of the events leading up to the shooting:
"On the 8th of August like 9:30 at night I was outside talking on the phone to my girl and I seen a dude passes by on a bike a car pass by after him. All I heard was 'whats up nigga'. I heard a bottle smash on the ground. I thought the dude on the bike was my boy Joe so I went into my house to get my knife and ran out there. I got into the street and I got surrounded. I swung my knife and at the same time I got hit in the mouth.
Some guy pulled me down and started beating the shit out of me. I had lumps and bruises on my head and face and elbows. I couldn't do anything and they kept hitting and kicking me. I got up and they started running down the street toward some white dude's house. The car that dropped them off was in the parking lot. The car started driving up the street toward Logan so I ran and that's when I seen Joe. I asked him, 'what the fuck dude where were you?' Joe looked at the car and put his hand under his shirt and said, 'should I blast them.' I told him no. I called Angel on my cell phone and I told him that I got my ass whooped. Angel said, 'Alright I'll be through there.' Angel drove his mom's or sister's black SUV and parked into the parking lot. He got there he asked if I was alright. I showed him my arms and head. Angel said, 'Let's ride around.' We got into the car and I noticed Angel's girlfriend was in the front passenger seat. We drove toward Adrian's house. It was dead silence until we got by Adrian's house and we started slowing down. My window rolled down and I saw a bunch of cars and people in the front of the house. I told Joe, 'Get them Nigga's'. Angel said, 'Yeah, get them Nigga's'. Joe was sitting behind the driver and got close to me then pointed his hand out the window and shot multiple times. We took off to Joe's house and Angel dropped me and Joe there."
¶ 11 In a subsequent question and answer session that was also transcribed, defendant clarified that "Joe" was Joe Follis, "Angel" was Angel Hernandez, and "get them niggas" meant "Blast them." Defendant also clarified that he first noticed that Follis had a gun as they were driving to Cazares's house. Defendant described the gun as a black revolver. When asked by police why defendant, Follis, and Hernandez went to find Cazares, defendant stated, "I was really mad; I wanted to fuck them up." The following questions and answers were also transcribed as part of defendant's statement:
"Q. Why are you telling us this today?
A. Because it's the truth and I want the best outcome for me and my mom.
Q. Is there anything in your statement you want to add or delete from your statement?
A. I'm sorry about this man. I wished it had never happened. I wish I would've listened to my mom and stayed in my house that night."
¶ 12 Defendant testified on his own behalf, stating that only part of the statement he gave to police was true. According to defendant, the only reason he called Hernandez was to drive Follis home, whom defendant believed might be in danger. Upon arriving, Hernandez told defendant to forget about the fight. Hernandez's girlfriend was sitting in the front passenger seat, and defendant and Follis got into the backseat of the car. Follis was seated behind Hernandez. Defendant testified that Follis told Hernandez to drive down the street, which was in the direction of Cazares's house. As they approached the house, Follis told Hernandez to slow down. Defendant testified, "when we got right in front of the house, Joe [Follis] rolled down the window and just pulled out a gun and started shooting." Defendant testified that everyone in the car was scared and surprised, defendant "didn't expect that to happen," and he was "mad" at Follis. Defendant denied seeing the gun at any time before the shooting and denied telling Follis to "get them niggas."
¶ 13 Defendant also testified that he initially told Detectives Woody and Wallace that he did not tell Follis to shoot anyone, but the detectives said they did not believe him. According to defendant, he was scared and "started throwing some things in" to make his story more believable. When asked on direct examination why he would sign a statement that contained false information, defendant answered:
"I don't know. You know, I honestly didn't know what to say. I was scared. You know, I just-all I can say is I was scared. I've never been in a situation like this before. You know. I gave-I gave them that statement because, you know, they were saying that I was looking at prison time and stuff like that. I've never been in prison or nothing like that."
¶ 14 On cross-examination, the State challenged defendant's testimony that he had "never been in a situation like this before." Defendant admitted that on January 19, 2006, he had been interviewed by the same detectives at the Belvidere police department on another case and had given a typewritten statement in that case. Defendant insisted that the two situations were "nowhere near the same," and on redirect explained that in 2006 he was 16 years old and was questioned as a juvenile. In contrast, when he was questioned by police in 2007, he had already turned himself in to police, and he had been arrested and charged as an adult with aggravated battery with a firearm.
¶ 15 In rebuttal, the State published a certified copy of defendant's juvenile adjudication for burglary, entered on August 28, 2006. The State referred to the juvenile adjudication twice during its closing argument and twice more during rebuttal argument, generally asserting that the burglary adjudication was a basis for concluding that defendant's trial testimony was not truthful.
¶ 16 The jury was instructed on the legal theory of accountability and returned a verdict finding defendant guilty of both charged offenses-aggravated battery with a firearm and aggravated discharge of a firearm. In his motion for a new trial, defendant argued, inter alia, that the trial court erred "in allowing the State to present to the jury evidence of defendant's juvenile adjudication." Defendant did not elaborate further in his written motion. During argument on the motion, defense counsel did not assert, as he did in the motion in limine, that the prejudice to defendant of admitting his juvenile adjudication outweighed its probative value. Rather, defense counsel argued for the first time that under People v. Montgomery, 47 Ill. 2d 510 (1971), a juvenile adjudication is not admissible against a testifying defendant. The trial court agreed with the State that this was a new argument, but that defendant's juvenile adjudication was admissible pursuant to statute-an apparent reference to section 5-150(1)(c) of the Juvenile Court Act of 1987 (705 ILCS 405/5-150(1)(c) (West 2006)). The trial court denied defendant's motion and subsequently sentenced him to concurrent terms of 14 years' imprisonment for the aggravated battery with a firearm and 5 years' imprisonment for the aggravated discharge of a firearm. The trial court also ordered defendant to pay Luis Perez $20,083 in restitution.
¶ 17 Defendant appealed, arguing that the trial court erred by allowing the State to impeach him with his juvenile adjudication or, in the alternative, that trial counsel rendered ineffective assistance by failing to proffer a proper objection to that evidence. The appellate court rejected defendant's arguments and affirmed his conviction and sentence. 403 Ill. App. 3d 309. The appellate court held that, pursuant to section 5-150(1)(c) of the Juvenile Court Act of 1987, a juvenile adjudication may be admitted against a testifying defendant for impeachment purposes, subject to the balancing test set forth in Montgomery, and that defendant's juvenile adjudication was properly admitted. Id. at 317. The appellate court further held that defendant's juvenile adjudication was admissible for the independent reason that defendant opened the door to its use. Id. at 318. Finally, the appellate court held that trial counsel's arguments concerning the juvenile adjudication cannot form the basis of an ineffective assistance of counsel claim because defendant's own testimony provided a basis for admission of the juvenile adjudication. Id. at 321.
¶ 18 We allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
¶ 21 Defendant argues that, pursuant to the holding in Montgomery, a juvenile adjudication is not admissible against a testifying defendant, and he was denied a fair trial when the State was permitted to impeach him with his juvenile adjudication. Though defendant first raised this issue posttrial, the State does not argue that defendant has forfeited review or acquiesced in the admission of his juvenile adjudication. Thus, the State has forfeited these arguments. See People v. Lucas, 231 Ill. 2d 169, 175 (2008) ("State may forfeit an argument that the defendant forfeited an issue"). In addition, defendant renews his appellate argument that trial counsel was ineffective by failing to appreciate the "full ...