The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.
¶ 1 The defendant, Elron Cathey, filed a pro se post-conviction petition in which he alleged he received ineffective assistance of counsel on direct appeal. According to the petition, counsel failed to argue that defendant's trial judge erred when the judge declined to rule on defendant's motion in limine to bar the use of prior convictions for impeachment purposes before defendant testified. The circuit court of Cook County summarily dismissed the post-conviction petition and the appellate court affirmed. 406 Ill. App. 3d 503. For the reasons set forth below, we reverse the judgments of the appellate and circuit courts and remand the cause to the circuit court for further proceedings.
¶ 3 Defendant was charged with attempted first degree murder and aggravated battery with a firearm in connection with the shooting of Maurice Sterling. Prior to trial, defense counsel filed a motion in limine which sought to prevent the State from using defendant's prior convictions for attempted murder and aggravated battery with a firearm for impeachment purposes. Counsel argued that any probative value of the prior convictions would be outweighed by their prejudicial effect under the balancing test set forth in People v. Montgomery, 47 Ill. 2d 510 (1971), because those convictions were identical to the charges in the present case, and further, because defendant was asserting self-defense, it was essential to obtain a ruling on the motion before defendant decided whether to testify:
"any probative value [the prior convictions] may have is substantially outweighed by the prejudice to the defendant in that this is a shooting case and the crime is so similar. The prejudicial effect really hits home in this case because it determines whether or not really [defendant] is going to take the stand or not.
He is trying to allege a self-defense which becomes almost impossible if he doesn't take the stand in his own behalf, but my advice is if the Jury is informed about a prior aggravated battery with a firearm conviction and the attempted murder conviction revolving around a firearm that their ears would be closed to [defendant's] self-defense testimony and only open their eyes to the prior conviction and that I think that that's why we are considering this ruling of such a magnitude that if the Court allows them to get into that conviction then he has to not get on the witness stand and I don't think that's fair."
The trial judge declined to rule on defense counsel's motion before trial, stating:
"[P]art of the balancing test is if other witnesses are going to have convictions and their credibility is going to be judged on the basis of prior convictions, why shouldn't it be done for the defendant?
So I will give you some indication depending on how much impeachment is used on other witnesses and if it is used, if they have similar convictions or of a similar nature, then I think the effect is lessened. I can't make a decision right now, but at this point in time I am going to deny it; but I'm going to revisit the matter after I have heard all the evidence."
Thereafter, the matter proceeded to a jury trial, which was held in February 2006.
¶ 4 Brian Finley testified on behalf of the prosecution. Finley stated that on June 8, 2004, at approximately 10 p.m., he was at a friend's house watching a basketball game when his brother, Xavier, called. Xavier, who had been sitting on a porch with some friends and had seen defendant approach with a group of teenagers, said that defendant was trying to kill him and that Finley should come and get him. After receiving Xavier's call, Finley went to his house, took his mother's car, and picked up Maurice Sterling.
¶ 5 After picking up Sterling, Finley spotted defendant, whom he knew from the neighborhood, with a group of about four teenagers. Finley got out of the car and asked defendant where his brother was. Finley testified that he saw the other teenagers who were with defendant moving around and saw one of the teenagers hand something to defendant which was black and "real big." Sterling then yelled, "He got a gun." Finley and Sterling turned and ran back toward the car. Finley testified that, as Sterling was getting into the car through the passenger side door, there was a loud "pow" and Sterling jerked and fell into the car. Finley then grabbed Sterling, pulled him completely into the car, and drove off. In his testimony, Finley acknowledged that he pled guilty to a felony gun charge in 1998 and that he was currently facing contempt charges.
¶ 6 Maurice Sterling testified that he was shot in the head but that he did not remember anything about the incident.
¶ 7 James Johnson testified on behalf of defendant. Johnson was sitting on a porch when he saw a car pull up and someone get out. Johnson stated there was an argument and then "somebody got to tussling. They was like, kind of like arm wrestling or whatever, and the gun went off." Johnson immediately ran inside. Johnson testified that the argument only lasted for 7 to ...