Appeal from the Circuit Court of Cook County. No. 04 CR 18186 Honorable Marjorie C. Laws, Judge Presiding.
The opinion of the court was delivered by: Justice Howse
JUSTICE HOWSE delivered the judgment of the court, with opinion.
Justices Palmer and Taylor concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Terrance Melton was convicted of possession of a controlled substance and sentenced to two years' imprisonment. On appeal, defendant contended that:
(1) the trial court erred in admitting his prior convictions as impeachment evidence; (2) he is entitled to a new trial because the prosecutor made inflammatory remarks not based in evidence during closing arguments; and (3) his mittimus should be corrected to accurately reflect time served in custody of the Sheriff's day reporting program.
¶ 2 We previously affirmed the trial court's judgment in People v. Melton, No. 1-06-0039 (Oct. 3, 2008) (unpublished order under Supreme Court Rule 23). Defendant subsequently filed a timely petition for rehearing on October 22, 2008, contending: (1) 1-06-0039 appellate counsel was ineffective for failing to challenge, prior to defendant's testimony, the trial court's refusal to rule on the State's motion in limine concerning the admissibility of defendant's prior conviction; and (2) defendant's constitutional right to testify and his due process right to the guiding hand of counsel were violated by the trial court's decision to decide the motion in limine after defendant testified.
¶ 3 In response, we withdrew our prior Rule 23 order filed on October 3, 2008, and, on June 10, 2010, entered a Rule 23 order upon denial of defendant's petition for rehearing. People v. Melton, No. 1-06-0039 (2010) (unpublished order under Supreme Court Rule 23). Defendant subsequently filed a petition for leave to appeal; the supreme court denied the petition but issued a supervisory order directing us to reconsider in light of People v. Mullins, 242 Ill. 2d 1 (2011). People v. Melton, No. 110774 (Sept. 18, 2011). We set a briefing schedule for the parties. We hereby vacate our previous order and affirm the judgment of the trial court.*fn1
¶ 5 Prior to trial, the State made a motion in limine to introduce defendant's prior conviction for possession of a controlled substance and unlawful use of a weapon for purposes of impeachment if he testified. The court deferred a ruling until after defendant testified.
¶ 6 At trial, the State presented evidence that undercover Chicago police officers arrested defendant after observing him engage in three drug transactions. The officers recovered 26 small baggies containing a substance, later confirmed through forensic testing to be heroin, from a plastic bag defendant stuffed into a fence rail. One of the officers testified that drug buyers were lined up near defendant as though they were at a grocery store. The officer said he was 125 feet away from defendant and saw defendant engage in handing each person in line an object out of a clear plastic bag. The officer saw the people hand defendant United States currency. Defendant had on a distinctive shirt and a hairstyle of long braids.
¶ 7 Defendant testified the police arrested him as he walked down the street and confused him with another person who had been carrying the plastic bag found in the fence rail.
¶ 8 After defendant testified on direct examination, the trial court conducted a hearing on the motion in limine. Defense counsel argued that admission of a prior drug-related offense would unduly prejudice defendant because the conviction suggested his propensity to commit the same crime and it did not concern his capacity for truthfulness or the veracity of his testimony. Defense counsel stressed the importance of the balancing test that the court must conduct when determining whether to admit the conviction. The State responded that a conviction for a controlled substance offense would be probative of defendant's credibility because it is reasonable to assume that an individual who obtains drugs does so by "dishonest evasiveness" because the mere possession of drugs violates the law and that the discrepancies with the officer's testimony placed defendant's credibility into issue. The trial court reserved ruling on the motion until hearing defendant's cross-examination testimony.
¶ 9 The court noted the legal authority cited by both parties in their arguments and allowed evidence of the conviction after hearing defendant's cross-examination testimony, finding credibility a central issue. In its finding, the court specifically noted the date of the prior conviction and defendant's age and lengthy criminal record. The court stated to the jury that the conviction could not be used for purposes of establishing a propensity to commit crime.
¶ 10 In the State's closing argument, the prosecutor discussed the housing project where defendant was arrested for selling drugs and societal problems that drugs cause, and stated: "It's disturbing that people like this defendant sell their drugs out in the open to feed the addiction of drugs, make people do crazy things, *** line them up in the streets shamelessly like you are at the local Jewel [or] Dominick's." At no time did defense counsel object to the prosecutor's references to defendant selling drugs or drug buyers lined up as though in a grocery store.
¶ 11 During defendant's closing argument, defense counsel mentioned the officer's testimony, stating "three buyers, this is [the officer's] testimony, in line as if they were in a grocery store."
¶ 12 The trial court admonished the jury before and after closing arguments, and during jury instructions, not to consider the arguments as evidence and to disregard any statements not based on evidence. The trial court also instructed the jury that evidence of a prior conviction may only be considered for weighing defendant's credibility as a witness.
¶ 13 After deliberations, the jury convicted defendant of possession of a controlled substance and the trial court sentenced him to two years' imprisonment. Defense counsel requested credit for time spent in custody and at least half a day credit for every day defendant reported to the Cook County sheriff's day reporting program. The judge awarded defendant credit for the 131 days he spent in actual custody, but not for days when he reported to the day reporting program.
¶ 15 I. Prior Felony Conviction
¶ 16 On appeal, defendant first contends that the trial court abused its discretion when it allowed his prior conviction as impeachment evidence, over his objection, because the danger of unfair prejudice ...