People v. Patrick ( 2009 )

Docket Nos. 104077, 104445 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ROBERT PATRICK, Appellant.–THE PEOPLE OF THE STATE
OF ILLINOIS, Appellee, v. EZEKIEL PHILLIPS, Appellant.
Opinion filed January 23, 2009.
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Garman, and
Karmeier concurred in the judgment and opinion.
Justice Burke concurred in part and dissented in part, with
opinion, joined by Justice Freeman.
OPINION
In these consolidated appeals, we consider whether a trial court
may defer ruling on a motion in limine to exclude a defendant’s prior
convictions from use as impeachment until after a defendant’s
testimony. On appeal, Patrick claimed that the trial court erred in
delaying its ruling on his motion in limine and that the jury
instructions were erroneous. The appellate court held that Patrick was
not prejudiced by the trial court’s delay in ruling on his motion in
limine and that the jury instructions were proper. No. 1–04–1895
(unpublished order under Supreme Court Rule 23).
In a separate appeal, defendant Phillips argued that the trial court
erred in delaying its ruling on his motion in limine and that he was not
given proper in absentia admonishments. In Phillips, the appellate
court found the trial court abused its discretion in refusing to rule on
the admissibility of prior convictions until after Phillips’ testimony,
but declined further review of the error because Phillips did not
testify. 371 Ill. App. 3d 948.
We granted defendants leave to appeal (210 Ill. 2d R. 315) and
consolidated the cases. We now reverse Patrick and remand for a new
trial, and remand Phillips to the appellate court.
I. BACKGROUND
A. Robert Patrick
Patrick was charged by indictment with multiple counts of first
degree murder (720 ILCS 5/9–1(a)(1), (a)(2) (West 2000)), attempted
first degree murder (720 ILCS 5/8–4, 9–1 (West 2000)), and
aggravated discharge of a firearm (720 ILCS 5/24–1.2(a)(2) (West
2000)). Patrick was only tried on the first degree murder counts.
Before trial, Patrick filed a motion in limine seeking to bar the
State from introducing evidence of his prior convictions for purposes
of impeachment. The trial judge refused to rule on the motion in
limine prior to defendant testifying, stating he does not give advisory
opinions.
Before Patrick’s testimony, defense counsel again requested the
judge rule on the motion in limine to bar the State’s use of Patrick’s
prior convictions, but the trial judge refused to make the ruling until
after Patrick’s testimony. The trial judge stated his procedure was not
to make such rulings until after the defendant’s testimony. The trial
judge further stated: “I do this [in] every single case. I do not give
advisory opinions. *** I don’t make an exception for anybody.”
Patrick testified, and his testimony was impeached with three prior
convictions for possession of a controlled substance.
At trial, the court gave the jury defendant’s tendered Illinois
Pattern Jury Instructions, Criminal, Nos. 7.06X and No. 26.01I (4th
ed. 2000) (hereinafter IPI Criminal 4th), the instructions used for first
degree murder, second degree murder, and involuntary manslaughter.
The instructions direct a jury that it must acquit the defendant of first
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degree murder before it may consider the lesser-included offense of
involuntary manslaughter. Patrick did not object to these instructions
at trial and did not raise the issue in his posttrial motion. The jury
found Patrick guilty of second degree murder.
On direct appeal, Patrick argued that the trial court erred in
refusing to rule on his motion in limine seeking to bar the State from
using his prior convictions for impeachment until after Patrick’s
testimony and that IPI Criminal 4th Nos. 7.06X and 26.01I were
erroneous. The appellate court affirmed, holding that Patrick was not
prejudiced by the trial court’s delay in ruling on his motion in limine
and that the jury was fully and fairly instructed on the offenses. No.
1–04–1895 (unpublished order under Supreme Court Rule 23).
B. Ezekiel Phillips
Phillips was charged by indictment with attempted first degree
murder (720 ILCS 5/8–4, 9–1 (West 2000)), armed violence (720
ILCS 5/33A–2(a) (West 2000)), and three counts of aggravated
battery (720 ILCS 5/12–4(A), (B)(1), (B)(8) (West 2000)).
At trial, defense counsel asked the trial court to determine the
admissibility of prior convictions if Phillips should choose to testify.1
The trial judge granted the motion in limine in part and determined
that one of Phillips’ convictions would be excluded, but stated he
could not determine whether three other convictions (armed violence,
aggravated battery, and manufacture or delivery of a controlled
substance) were more probative than prejudicial until he heard
Phillips’ testimony. Based on the trial judge’s ruling, Phillips chose
not to testify.
The jury returned a verdict of not guilty of attempted first degree
murder, but guilty of armed violence and aggravated battery. On
appeal, Phillips argued the trial court abused its discretion in refusing
to rule on his motion in limine and also contended that the trial court
erred in sentencing him in absentia after failing to admonish him of
that possibility. In affirming Phillips’ conviction, the appellate court
found the trial court abused its discretion in delaying its ruling on the
1
Phillips apparently earlier filed a motion in limine, and the trial court
refused to rule on it, but the motion and order were not included in the record.
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motion in limine, but declined further review of the issue because
Phillips did not testify. The appellate court vacated Phillips’
sentences, however, and remanded for a new sentencing hearing,
finding the record did not reflect Phillips was admonished that he
could be sentenced in absentia. 371 Ill. App. 3d 948.
II. ANALYSIS
Before this court, Patrick and Phillips argue that the trial courts
erroneously deferred ruling on their motions in limine to exclude prior
convictions from use as impeachment until after their testimony.
“Generally, evidentiary motions, such as motions in limine, are
directed to the trial court’s discretion, and reviewing courts will not
disturb a trial court’s evidentiary ruling absent an abuse of
discretion.” People v. Harvey, 211 Ill. 2d 368, 392 (2004). “An abuse
of discretion will be found only where the trial court’s ruling is
arbitrary, fanciful, unreasonable, or where no reasonable person
would take the view adopted by the trial court.” People v. Hall, 195
Ill. 2d 1, 20 (2000).
In People v. Montgomery, 47 Ill. 2d 510, 517 (1971), this court
held that prior convictions must be excluded if the trial court
determines that the probative value is outweighed by the danger of
unfair prejudice. In Montgomery, this court adopted then-proposed
Federal Rule of Evidence 609 as a guide for trial courts in deciding
whether a defendant’s prior convictions should be admitted to
impeach credibility. Montgomery, 47 Ill. 2d at 519. Under the
“Montgomery rule,” evidence of a witness’ prior conviction is
admissible to attack the witness’ credibility when: (1) the prior crime
was punishable by death or imprisonment in excess of one year, or
involved dishonesty or false statements, regardless of punishment, (2)
less than 10 years has elapsed since the date of conviction of the prior
crime or release of the witness from confinement, whichever is later,
and (3) the probative value of admitting the prior conviction
outweighs the danger of unfair prejudice. Montgomery, 47 Ill. 2d at
516-17.
Nothing in Montgomery suggests the proper time for ruling on the
admissibility of a prior conviction. This court has, however, permitted
the filing of motions in limine to determine whether the State may
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impeach a testifying defendant with his prior conviction. See People
v. Williams, 161 Ill. 2d 1, 33-34 (1994); People v. Spates, 77 Ill. 2d
193, 200-05 (1979). Nevertheless, this court has not addressed
whether a trial court abuses its discretion by delaying its ruling on the
admissibility of prior convictions until after the defendant’s
testimony.
A criminal defendant’s right to testify on his own behalf, or not
to testify at all, is rooted in the fifth, sixth, and fourteenth
amendments of the United States Constitution. Rock v. Arkansas, 483
U.S. 44, 51-53, 97 L. Ed. 2d 37, 46-47, 107 S. Ct. 2704, 2708-09
(1987). A defendant’s decision whether to testify is an important
tactical determination. Brooks v. Tennessee, 406 U.S. 605, 612, 32 L.
Ed. 2d 358, 364, 92 S. Ct. 1891, 1895 (1972). A defendant who
chooses to testify faces serious risks of impeachment and may open
the door to otherwise inadmissible evidence. Brooks, 406 U.S. at 609,
32 L. Ed. 2d at 362, 92 S. Ct. at 1893. The decision to testify
ultimately belongs to the defendant but is generally made after
consultation with counsel. People v. Medina, 221 Ill. 2d 394, 403
(2006). Making the important decision to testify without an
opportunity to evaluate the actual strength of the State’s evidence
restricts the defense in planning its case. Brooks, 406 U.S. at 612, 32
L. Ed. 2d at 364, 92 S. Ct. at 1895.
Obviously, defendants benefit from rulings on the admissibility
of their prior convictions made before they decide to testify. First,
early rulings provide defendants with the information necessary to
make the critical decision whether to testify on their own behalf and
to gauge the strength of their testimony. See People v. Averett, 381 Ill.
App. 3d 1001 (2008). Second, early rulings permit defendants and
defense counsel to make reasoned tactical decisions in planning the
defense by: (1) informing the jury whether the defendant will testify;
(2) portraying the defendant in a light consistent with prior
convictions being admitted or not admitted; and (3) anticipatorily
disclosing prior convictions during the defendant’s direct
examination, thereby reducing the prejudicial effect. See Williams,
161 Ill. 2d at 35.
Our appellate court has recognized the need for early rulings on
motions addressing the admissibility of prior convictions. In People
v. Rose, 75 Ill. App. 3d 45, 52 (1979), the appellate court noted that
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the defendant’s motion contained sufficient information for the trial
court to make a ruling. Similarly, the decision in People v. Owen, 299
Ill. App. 3d 818, 824 (1998), acknowledged the obvious benefit to
defendants of having a ruling on the admissibility of prior
convictions. The court in People v. Ballard, 346 Ill. App. 3d 532,
544-45 (2004), also concluded that a trial court should rule on a
defendant’s motion in limine on an uncomplicated evidentiary issue
when the prejudicial effect is obvious and noted it was unclear what
more the trial court needed to make a ruling. In Phillips, the appellate
court stated:
“We cannot fathom what more the judge needed in order
to conduct the balancing test and rule on the admissibility of
the prior convictions. The defendant was deprived of the
information he needed to make an informed and intelligent
decision about whether to testify.” 371 Ill. App. 3d at 952.
Recently, the appellate court in Averett also concluded that the trial
court had all the information needed to conduct the Montgomery
balancing test and rule on a motion in limine seeking to bar prior
convictions, stating:
“Courts should not adopt such a blanket policy but, rather,
should engage in the Montgomery balancing test on a case-by-
case basis, giving thoughtful consideration to each factor. It
is a matter of simple fairness that courts should rule on such
motions as soon as is practicable.” Averett, 381 Ill. App. 3d at
1019.
In addition, other jurisdictions examining the issue before this
court have found error in not ruling on the admissibility of a
defendant’s prior convictions until after a defendant’s testimony. See
Settles v. State, 584 So. 2d 1260 (Miss. 1991); State v. Ritchie, 144
Vt. 121, 473 A.2d 1164 (1984); State v. McClure, 298 Or. 336, 692
P.2d 579 (1984). These cases determined that a trial court should rule
on a defendant’s motion to bar prior convictions before the defendant
testifies unless there is some unique or compelling reason to delay the
ruling.
In Settles, the Mississippi Supreme Court held that a trial court
abuses its discretion in refusing to consider the admissibility of a
prior criminal conviction for impeachment purposes when the court
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has all the information necessary to determine the issue before the
defendant testifies. Settles, 584 So. 2d at 1265. The court noted that
some convictions are excludable for reasons that do not require a
balancing: (1) the nature of a defendant’s testimony may usually be
anticipated, and (2) “those convictions that have the highest potential
for prejudice are equally apparent.” Settles, 584 So. 2d at 1263-64.
The court reasoned:
“The dangerous convictions are for crimes which are
substantially similar to the crime charged and those which,
while not similar, have limited application to the issue of
credibility but enormous potential for overwhelming the
relevant facts of the crime charged. A convicted sex offender,
for example, may suffer substantially from that fact in a
shoplifting prosecution.” Settles, 584 So. 2d at 1264.
In Ritchie, the Supreme Court of Vermont held that a trial court
committed error in failing to rule on the defendant’s motion to
exclude evidence of prior convictions. Ritchie, 144 Vt. at 123, 473
A.2d at 1165. The court reasoned:
“[D]eferring decision on a pretrial motion to exclude evidence
of a prior conviction is prejudicial to the defendant because it
leaves the defendant ‘without a basis on which to decide
whether [to] bring the prior conviction to the attention to the
prospective jurors on voir dire.’ [Citation.] *** ‘[W]here the
defendant requests a ruling which will affect defense strategy
from the very inception of the trial, and where there is no
apparent reason to postpone the determination of the motion
other than the desire to avoid a difficult issue, *** the trial
court should rule and the defendant should be entitled to rely
on that ruling.’ [Citation.]” Ritchie, 144 Vt. at 123, 473 A.2d
at 1165.
Similarly, in McClure, the Oregon Supreme Court opined that
trial courts should rule on the admissibility of prior crimes “as soon
as possible after the issue is raised.” McClure, 298 Or. at 340, 692
P.2d at 583. The court recognized:
“It is only after a ruling on the admissibility of a conviction
that the prosecutor and defense counsel can make an informed
decision how to effectively try the case. The decision has a
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significant impact on what questions to ask the jurors during
voir dire, what to say in opening statements and the
questioning of witnesses. Whether the defendant takes the
stand changes the entire complexion of the case.” McClure,
298 Or. at 340, 692 P.2d at 583.
The court concluded: “[i]t is not realistic or necessary for a defendant
to have to wait until he is on the stand to find out whether he will be
impeached with prior crime evidence.” McClure, 298 Or. at 341, 692
P.2d at 583. Under certain circumstances, the court recognized, the
trial court may defer ruling until the defendant testifies, but this
should be the rare occasion. McClure, 298 Or. at 341, 692 P.2d at
583.
We agree with the comments of our appellate court and the courts
of our sister states recognizing defendants’ need for an early ruling
and acknowledging that, in most cases, the trial judge will possess the
information necessary to conduct a Montgomery hearing before trial.
We conclude that a trial court’s failure to rule on a motion in limine
on the admissibility of prior convictions when it has sufficient
information to make a ruling constitutes an abuse of discretion. When
applying the Montgomery rule before trial, a trial judge will certainly
be able to determine whether the prior crime was punishable by death
or imprisonment in excess of one year, or involved dishonesty or false
statements. Likewise, a trial judge can readily ascertain whether less
than 10 years has elapsed since the date of conviction of the prior
crime or release of the witness from confinement. Moreover, in all
but the most complicated cases, a judge will have enough information
before trial to weigh the probative value of admitting the prior
conviction against the danger of unfair prejudice to the defendant. See
Settles, 584 So. 2d at 1263-65; Ballard, 346 Ill. App. 3d at 544-45;
Phillips, 371 Ill. App. 3d at 952.We acknowledge there may be some
rare cases when a trial court cannot effectively conduct a Montgomery
balancing test without hearing the defendant’s testimony. But, those
rare cases should be the exception, and not the rule.
Thus, in those rare cases, we admonish trial judges that it is
essential for appellate review that a sufficient basis be articulated to
support a delay in ruling on a motion in limine on the admissibility of
prior convictions. See People v. Rivera, 221 Ill. 2d 481, 508 (2006)
(“without an adequate record, consisting of all relevant facts, factual
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findings, and articulated legal bases ***, the trial court’s rulings may
be virtually immune from appellate review”).
We now examine whether there was an abuse of the trial court’s
discretion in either of these cases, as well as other issues raised by the
parties.
A. Robert Patrick
1. Motion in Limine
In the case of People v. Patrick, the trial judge summarily refused
to consider the admissibility of any of Patrick’s prior convictions. The
trial judge offered absolutely no justification for delaying his ruling
on Patrick’s motion in limine, stating only that his procedure in every
case, without exception, was not to give advisory opinions. Here,
Patrick merely sought a determination of whether the law as applied
to the facts of his case would permit the use of any or all of his prior
convictions for impeachment. Patrick was at least entitled to have the
trial judge base his decision to defer a determination on the specific
facts of his case, and to determine, before the defendant testified if
possible, whether any of the convictions would be excluded as a
matter of law.
In Patrick’s case, the trial judge’s blanket refusal in every criminal
case to rule on any motions in limine seeking to bar introduction of
prior convictions until after the defendants testified was arbitrary and
without reason. When a trial court’s ruling is arbitrary, we will not
hesitate to find an abuse of discretion. See Hall, 195 Ill. 2d at 20.
In effect, the trial court abused its discretion by refusing to
exercise any specific discretion. There is no justification for a trial
judge’s blanket policy to withhold ruling on all motions in limine on
the admissibility of prior convictions until after a defendant’s
testimony. Here, the trial court’s refusal to rule was not based on any
specific facts. We hold, accordingly, that the court’s application of a
blanket policy of refusing to rule on all motions in limine on the
admissibility of prior convictions until after a defendant’s testimony
amounted to an abuse of discretion.
The State argues that even if the trial court abused its discretion
in deferring its decision on the motion in limine, Patrick was not
prejudiced by the error. In Chapman v. California, 386 U.S. 18, 24,
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17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828 (1967), the Supreme
Court determined that when the error is of a constitutional magnitude,
a defendant is entitled to a new trial if the error was not harmless
beyond a reasonable doubt.
We cannot say that the trial court’s error in Patrick’s case was
harmless beyond a reasonable doubt. Here, Patrick was unjustifiably
required to make a tactical decision without the ability to evaluate the
impact it would have on his defense. Patrick’s counsel was unable to
inform the jury whether Patrick would testify and was anticipatorily
unable to disclose Patrick’s prior convictions to lessen the prejudicial
effect the convictions would have on his credibility. As a result,
Patrick was substantially prejudiced.
Patrick’s decision whether to testify was critical because he relied
on a theory of self-defense. While his testimony was not absolutely
necessary because other testimony corroborated his theory of self-
defense, knowing whether his prior convictions were going to be used
for impeachment was a vital factor that needed to be weighed. If
Patrick had known before testifying that his prior convictions were
going to be admitted, he may have decided not to testify, or at least he
could have informed the jury earlier of the prior convictions to lessen
the negative impact.
The impact of the convictions on Patrick’s credibility is clear
from the State’s focused and repeated argument urging the jury not to
believe a three-time convicted felon. The jury’s verdict of guilty of
second degree murder indicates that, to some degree, the jury believed
Patrick was justified in his use of force. Applying the Chapman
standard, we have no doubt that the error in this case was not
harmless to Patrick. Accordingly, we believe a new trial is warranted,
and we reverse the judgments of the appellate and circuit courts and
remand the cause to the trial court.
We note that Patrick has not argued the evidence in this case was
insufficient to convict him. Thus, there is no double jeopardy
impediment to a new trial. People v. Wheeler, 226 Ill. 2d 92, 134
(2007).
2. Jury Instructions
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Patrick also contends that the jury was erroneously given Illinois
Pattern Jury Instructions, Criminal, Nos. 7.06X and No. 26.01I (4th
ed. 2000), the instructions used for first degree murder, second degree
murder, and involuntary manslaughter. These instructions preclude
the jury from considering involuntary manslaughter unless it acquits
the defendant of first degree murder. Patrick argues that the jury
should have considered first degree murder and involuntary
manslaughter at the same time. The State counters that: (1) Patrick
failed to preserve any objection to the instructions; and (2) the jury
instructions given were proper. Patrick admits that he failed to
preserve this issue, but asks this court to review the issue under the
plain error doctrine.
This court has recognized that “a defendant forfeits review of any
putative jury instruction error if the defendant does not object to the
instruction or offer an alternative instruction at trial and does not raise
the instruction issue in a posttrial motion.” People v. Herron, 215 Ill.
2d 167, 175 (2005). Here, Patrick forfeited the issue by failing to
object to the instructions and failing to raise his claim of error in a
posttrial motion.
Moreover, Patrick waived any objection to the jury instructions
by proffering the allegedly erroneous instructions to the trial court.
Patrick cannot now complain that the instruction he tendered was in
error. See People v. Parker, 223 Ill. 2d 494, 508 (2006) (a defendant
may not directly attack a jury instruction tendered by the defense). We
decline to address Patrick’s plain-error claim because Patrick invited
any error by submitting the jury instruction. See People v. Carter, 208
Ill. 2d 309, 319 (2003) (“Under the doctrine of invited error, an
accused may not request to proceed in one manner and then later
contend on appeal that the course of action was in error.
[Citations.]”). Accordingly, we conclude that Patrick failed to
preserve his claim of error in the jury instructions.
B. Ezekiel Phillips
1. Motion in Limine
In Phillips, the trial judge granted the motion in limine in part and
determined that one of Phillips’ convictions would be excluded but
stated he could not determine if three other convictions were more
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probative than prejudicial until he heard Phillips’ testimony. Based on
the trial judge’s ruling, Phillips chose not to testify. The appellate
court found the trial court abused its discretion in refusing to rule on
the admissibility of prior convictions until after Phillips’ testimony
but declined further review of the error because Phillips did not
testify. 371 Ill. App. 3d 948.
We determine that the issue of the trial court’s refusal to rule on
Phillips’ motion in limine seeking to bar the use of prior convictions
for impeachment was not preserved for review because Phillips chose
not to testify. In Luce v. United States, 469 U.S. 38, 41-43, 83 L. Ed.
2d 443, 447-48, 105 S. Ct. 460, 463-64 (1984), the Supreme Court
held that a defendant who did not testify at trial was not entitled to a
review of the trial court’s denial of a motion in limine seeking to
exclude his prior convictions. The Court reasoned that any possible
harm flowing from the trial court’s denial of a motion in limine to bar
impeachment by a prior conviction is wholly speculative absent the
defendant’s testimony and the prosecution’s attempt to impeach the
defendant through use of the prior convictions.
This court adopted the Luce reasoning in People v. Whitehead,
116 Ill. 2d 425 (1987). In Whitehead, the trial court denied the
defendant’s two motions in limine, seeking to limit cross-examination
of the defendant’s psychiatric expert and defendant’s admissions
made during his treatment concerning prior attacks on young girls.
Whitehead, 116 Ill. 2d at 442-43. The trial court in Whitehead
“indicated that the State would be afforded an opportunity to raise the
earlier admissions of knife attacks on young girls depending upon the
testimony actually elicited on direct examination of [the psychiatrist]
and the defendant.” (Emphasis added.) Whitehead, 116 Ill. 2d at 443.
The trial court also refused the defendant’s offer of proof on the scope
of his direct testimony that defendant argued would have allowed the
trial court to decide the proper scope of cross-examination in limine.
Whitehead, 116 Ill. 2d at 443. On appeal, the defendant claimed these
rulings prompted him to drop his insanity defense and to refuse to
take the stand, and he claimed the psychiatrist was not called to testify
“because evidence of prior crimes would have been allowed.”
Whitehead, 116 Ill. 2d at 443.
In recognizing the trial court’s ruling as conditioned on the direct
testimony actually given, we stated:
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“This court should not speculate what the substance of [the
psychiatrist’s] and the defendant’s testimony on direct
examination would have been or what the prosecution would
have asked during cross-examination ***, and it follows that
no decision on the appropriate scope of cross-examination can
be had on appeal of this case. Counsel must stand on their
objections and call the witnesses, thus opening the possibility
that an erroneous decision on the scope of examination might
occur and require review ***, or forgo calling the witnesses
and adopt an alternative strategy. But defense counsel may not
have it both ways by altering their trial strategy to make the
best of the trial court’s order, depriving the reviewing court of
a reviewable record, and still maintain that the order was
erroneously entered.” (Emphasis added.) Whitehead, 116 Ill.
2d at 443-44.
Although the trial court declined the defendant’s offer to review
the substance of the testimony that would have been given on direct
examination, this court required defense witnesses and defendant to
testify and obtain a definitive ruling before the issue could be
properly reviewed on appeal. This court’s rationale in Whitehead goes
beyond the Luce rationale and provides this court’s independent basis
for requiring a defendant to testify and preserve the issue for review.
In People v. Thompkins, this court also held that a defendant must
testify to preserve a ruling on a motion in limine. Thompkins, 161 Ill.
2d at 193, citing Luce, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460.
In both Whitehead and Phillips, the defendant could not be certain
whether the disputed evidence would be admitted until after the direct
testimony was given. In both cases, the defendants were making
decisions about whether to present direct testimony without knowing
if the unwanted evidence would be admitted. Nonetheless, this court
ruled in Whitehead that defendants must take the risk and present the
testimony for the issue to be reviewable. In light of this court’s
independent rationale in Whitehead, there is no basis for the separate
opinion’s claim that Luce and Thompkins are inapposite and do not
control this case.
Here, Phillips chose not to testify. Accordingly, we hold that
Phillips failed to preserve his right to appellate review of this issue.
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2. Sentencing Hearing
The State seeks cross-relief, arguing the appellate court erred in
remanding the matter for a new sentencing hearing because “[t]he
record [did] not reflect that [the sentencing in absentia] admonition
was given to the defendant.” 371 Ill. App. 3d at 954. The State admits
it initially conceded this issue before the appellate court but now
informs this court that it found a bond slip in the trial court file
(signed by Phillips) that somehow was not included in the record on
appeal. The State sought and was granted leave to supplement the
record on appeal with this bond form. Phillips did not object. The
bond slip warned Phillips of the possibility of trial and sentencing in
absentia. According to the State, Phillips was properly sentenced in
absentia, and he waived his right to be read the section 113–4(e)
admonishment. Therefore, the State requests we affirm Phillips’
sentence.
Here, the appellate court did not have the benefit of the bond slip
in the record when it decided this issue. Accordingly, we remand this
cause to the appellate court for supplemental briefing and a
reexamination of this issue in light of the bond slip that is now part
of the record.
III. CONCLUSION
We hold that the trial court in Patrick abused its discretion by
arbitrarily delaying its ruling on the motion in limine until after
Patricks’ testimony. We further determine that Patrick failed to
preserve the jury instruction issue. Accordingly, we reverse Patricks’
conviction and remand to the circuit court for a new trial.
In Phillips, we hold that Phillips failed to preserve his right to a
review of the trial court’s refusal to rule on his motion in limine by
choosing not to testify. We further remand Phillips to the appellate
court to reexamine the sentencing in absentia issue in light of the
bond slip that is now a part of the record on appeal.
No. 104077–Reversed and remanded.
No. 104445–Cause remanded.
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JUSTICE BURKE, concurring in part and dissenting in part:
The common issue in the two consolidated cases before this court
is whether a trial court abuses its discretion when it refuses to rule on
a defendant’s motion in limine to determine what prior convictions
may be admitted for impeachment purposes until after the defendant
takes the stand and testifies. The majority finds, and I agree, that
when a defendant files a motion in limine seeking to have his prior
convictions excluded for purposes of impeachment, the trial court
abuses its discretion when, without justification, it opts to defer ruling
on the motion until after the defendant testifies. As the majority
recognizes, unwarranted delay in ruling on such motions (1) prevents
the defendant from having information necessary for making the
“critical decision” about whether to testify and (2) hinders the
defendant’s ability to make “reasoned tactical decisions” in planning
his defense. Slip op. at 5.
I also agree with the majority that, henceforth, trial courts should
enter judgment on a defendant’s motion in limine before the
defendant testifies in all but those extremely rare instances where the
court “cannot effectively conduct a Montgomery balancing test
without hearing the defendant’s testimony” (slip op. at 8) and, in such
cases, trial courts should articulate on the record the basis for the
delayed ruling (slip op. at 8). Where I part ways with the majority is
in its inconsistent and inequitable application of this new rule to the
cases at bar.
In Patrick, the defendant was charged with murder for shooting
and killing a man at a laundromat. The defendant claimed he shot the
victim accidentally, after provocation. Prior to trial, the defendant
filed a motion asking the court to exclude, for impeachment purposes,
his three prior convictions–all for possession of a controlled
substance. The trial court refused to rule on the motion until after
defendant testified, at which time the court denied the motion and
permitted the State to impeach defendant’s credibility with the three
prior convictions.
The majority finds, with regard to Patrick, that the trial court
abused its discretion because its only justification for refusing to rule
on defendant’s motion in limine prior to the defendant’s testimony
was its professed “procedure in every case, without exception *** not
to give advisory opinions.” Slip op. at 9. Moreover, the majority finds
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that, because a trial court’s error in failing to rule on such motions in
limine is of “constitutional magnitude” (slip op. at 9), the error will
require reversal unless there is a showing of harmlessness beyond a
reasonable doubt. The majority then concludes that the error here
does not meet this standard and that defendant was “substantially
prejudiced” in that he was “unjustifiably required” to make important
tactical decisions, including whether or not he should testify, without
the benefit of the court’s ruling. Slip op. at 10.
In finding reversible error in Patrick, the majority never looks
beyond the trial court’s error in refusing to rule. In other words, when
deciding that the trial court’s refusal to rule was error which was not
harmless beyond a reasonable doubt, the majority does not engage in
the typical harmless-error review–that is, it does not look to see
whether the defendant suffered no actual prejudice, either because the
trial court’s ultimate ruling on the admissibility of the prior
convictions was correct, or because the evidence overwhelmingly
supported the guilty verdict. Instead, the majority finds, in Patrick,
that the very fact that the court did not rule prior to defendant
testifying was inherently prejudicial and that this prejudice infected
the entire proceeding. As the majority explains:
“Here, Patrick was unjustifiably required to make a tactical
decision without the ability to evaluate the impact it would
have on his defense. Patrick’s counsel was unable to inform
the jury whether Patrick would testify and was anticipatorily
unable to disclose Patrick’s prior convictions to lessen the
prejudicial effect the convictions would have on his
credibility.” Slip op. at 10.
The majority also notes how “critical” is was for Patrick to have
the court rule prior to trial because the defendant relied on a theory of
self-defense and “knowing whether his prior convictions were going
to be used for impeachment was a vital factor that needed to be
weighed” in forming his decision about whether to testify. Slip op. at
10.
Despite the majority’s finding that the failure to rule on such
motions in limine is an error of “constitutional magnitude,” the
majority abandons its harmless beyond a reasonable doubt analysis
when reviewing Phillips. Citing to Luce v. United States, 469 U.S.
38, 41-43, 83 L. Ed. 2d 443, 447-48, 105 S. Ct. 460, 463-64 (1984),
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and this court’s decisions in People v. Whitehead, 116 Ill. 2d 425(1987), and People v. Thompkins, 161 Ill. 2d 148 (1994), the majority
holds, “the issue of the trial court’s refusal to rule on Phillips’ motion
in limine seeking to bar the use of prior convictions for impeachment
was not preserved for review because Phillips chose not to testify.”
Slip op. at 12. I believe this holding is inconsistent with and
contradictory to the majority’s own holding just paragraphs earlier
with regard to Patrick and, therefore, incorrect.
In Phillips, the defendant was charged with attempted murder,
armed violence, and aggravated battery in relation to a stabbing
incident. Here, as in Patrick, the defendant raised the defense of self-
defense, claiming that the victim initially swung at him with a piece
of lumber. As in Patrick, the defendant filed a motion in limine
seeking a ruling on the admissibility of his prior convictions. The trial
court excluded one prior conviction, but refused to rule on the
admissibility of three other prior convictions–armed violence,
aggravated battery, and manufacture or delivery of a controlled
substance.
Here, as in Patrick, the trial court’s refusal to rule on the motion
in limine prior to defendant testifying was an abuse of discretion. As
the appellate court noted, not only did the trial court refuse to rule
prior to trial, it refused to rule even when defendant renewed his in
limine motion after the State finished presenting its evidence and after
defendant’s other witnesses had testified. The appellate court stated,
“this court does not understand what more the trial court needed to
make its ruling.” Phillips, 371 Ill. App. 3d 952.
Moreover, under the court’s own reasoning in Patrick, the error
cannot be harmless beyond a reasonable doubt because Phillips, like
Patrick, was forced to make a critical decision–whether to
testify–without the benefit of information vital to that decisionmaking
process. Unsure what prior convictions the court would let in, the
defendant could not determine what impact the exercise of his right
to testify would have on his defense. Although Phillips chose not to
testify, he could not have made a knowing and intelligent waiver of
his constitutional right to testify because he did not know which, if
any, of his prior convictions would be used for impeachment. Further,
here, as in Patrick, a ruling by the trial court on the motion in limine
was vital because defendant raised a defense of self-defense, a
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defense that is generally better received by the jury when the
defendant testifies.
If, as the majority holds in relation to Patrick, a defendant suffers
“substantial prejudice” as a result of the trial court’s refusal to decide,
prior to defendant testifying, which of the defendant’s prior
convictions will be admitted for impeachment, we must find that
Phillips suffered the same “substantial prejudice” that Patrick
suffered. In addition, because the majority has just held in relation to
Patrick that the trial court’s refusal to rule is an error of constitutional
dimension and that substantial prejudice stems from the fact that a
defendant in this position is unable to make a knowing and intelligent
decision about whether to testify, it cannot be said that the error in
Phillips was harmless beyond a reasonable doubt. Under the
majority’s own analysis in Patrick, the fact that Phillips did not testify
cannot be part of the calculus in any way. Because Phillips suffered
the same prejudice as Patrick, even though he did not testify, the
disparate treatment of the two defendants before this court is not
logical or equitable.
As noted above, in support of its determination that Philips failed
to preserve for review the trial court’s error in failing to rule on the
motion in limine, the majority cites Luce, Whitehead and Thompkins.
I find these cases to be distinguishable.
In Luce the Court held that “to raise and preserve for review the
claim of improper impeachment with a prior conviction [under Rule
609(a) of the Federal Rules of Evidence], a defendant must testify.”
Luce v. United States, 469 U.S. 38, 43, 83 L. Ed. 2d 443, 448, 105 S.
Ct. 460, 464 (1984). In reaching this determination, the Court
reasoned that a decision under Rule 609(a) is a preliminary ruling on
a question “not reaching constitutional dimensions.” Luce, 469 U.S.
at 43, 83 L. Ed. 2d at 448, 105 S. Ct. at 464. The Court further
explained that a defendant must testify to preserve his right to appeal
because, without a complete record, a reviewing court is handicapped
in its efforts to evaluate the propriety of the lower court’s balancing
of the probative value of the prior conviction against its prejudicial
effect. The Court also noted:
“Even if these difficulties could be surmounted, the reviewing
court would still face the question of harmless error. See
generally United States v. Hasting, 461 U.S. 499 (1983). ***
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Requiring that a defendant testify in order to preserve Rule
609(a) claims will enable the reviewing court to determine the
impact any erroneous impeachment may have had in light of
the record as a whole.” Luce, 469 U.S. at 44, 83 L. Ed. 2d at
449, 105 S. Ct. at 465.
Clearly, Luce addressed a different issue from the one before us here.
Luce addressed the propriety of reviewing a trial court’s ruling on the
admissibility of prior convictions for impeachment purposes when the
defendant chooses not to testify. Luce never considered whether it
was error for a trial court to refuse to make an admissibility
determination unless the defendant decided to testify.
More importantly, the rationale employed by Luce to support its
ruling that a defendant must testify to preserve his appeal is not
applicable here based on the majority’s own findings in this same
opinion with regard to Patrick. As noted above, the Luce Court
believed that the propriety of a court’s Rule 609(a) preliminary ruling
was not a question of constitutional dimension, whereas the majority
here holds that the error involved in the cases at bar is one of
constitutional dimension. Further, the majority holds in relation to
Patrick that the error is not harmless beyond a reasonable doubt
simply because the defendant could not have made a knowing and
intelligent waiver of his right to testify. The Court in Luce, however,
held that it was necessary for a defendant to testify to preserve his
right to appeal so that there would be a record which a reviewing
court could use to determine whether the trial court’s ruling on the
admission of prior convictions, if error, was harmless when compared
to the weight of the evidence. The majority, in relation to Patrick,
never engages in this type of harmless-error review–it never weighs
the harm against the weight of the evidence.
Whitehead and Thompkins are similarly inapposite. In both cases,
rulings were entered on the defendants’ motions in limine prior to
trial. In Whitehead, the defendant filed two motions in limine–one to
prevent the State from cross-examining defendant’s expert witness
with regard to admissions defendant had made when he underwent
psychiatric evaluation during an earlier prosecution; the other to
prevent the State from impeaching the defendant with those same
admissions. Both motions were denied. The trial court held that the
earlier admissions could be raised, but made no specific ruling about
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the extent of inquiry that would be permitted. Whitehead, 116 Ill. 2d
at 442-43. The trial court declined the defendant’s invitation to
delineate, prior to trial, the appropriate scope of cross-examination,
finding it would depend on what the defendant and his witness
testified. Whitehead, 116 Ill. 2d at 442-43. As a result of the trial
court’s rulings, neither the defendant nor his expert witness took the
stand. On review, this court, applying the “logic of Luce,” ruled that
no decision could be made regarding the appropriate scope of cross-
examination because defendant’s decision not to testify and to
withhold the testimony of his expert witness deprived the reviewing
court of a reviewable record.
In Thompkins, the defendant, in a postconviction petition, sought
review of the trial court’s unfavorable ruling on defendant’s motion
in limine to preclude his impeachment with prior convictions. In a
two-sentence paragraph, we declined to address the claim, finding it
waived because it could have been raised on direct appeal, and then
noting as an aside that, pursuant to Luce, defendant’s failure to testify
at trial would have meant that the issue would have been waived even
on direct appeal. Thompkins, 161 Ill. 2d at 193.
In these cases which the majority relies on, the defendant obtained
a ruling on his motion in limine–something that the defendants in the
consolidated cases before this court did not receive. They are
distinguishable on that basis. However, even if they were not
distinguishable, they are overruled by the majority’s own judgment
in relation to Patrick. While this court may have adopted the logic of
Luce in Whitehead and Thompkins, the majority, by its decision in
regard to Patrick, has now limited the Luce rationale to situations in
which the defendant has obtained a ruling on his motion in limine
and, thus, any error in the trial court’s exercise of discretion is not of
constitutional dimension.
In sum, I agree with the majority that requiring a defendant to
testify before he can obtain a ruling on his motion in limine to decide
the admissibility of prior convictions for impeachment purposes
results in substantial prejudice to the defendant. As the majority holds
in relation to Patrick, this prejudice stems from the defendant’s lack
of “vital information” which prevents him from making a knowing
and intelligent decision about whether to testify and hinders his
ability to make tactical decisions about how to present his defense.
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Accordingly, the prejudice such defendants suffer prevents them from
receiving a fair trial and, therefore, is not harmless, whether or not
they choose to testify.
CONCLUSION
I agree with the majority that a defendant is substantially
prejudiced when a trial court refuses to rule, prior to trial, on a
defendant’s motion in limine to determine what prior convictions are
admissible for impeachment purposes. Because the prejudice stems
from the lack of information, which prevents the defendant from
making a knowing and intelligent decision about whether to testify,
the trial court’s error is of constitutional dimension and cannot be
deemed harmless. Accordingly, I cannot agree with the majority’s
inconsistent and inequitable holding that a defendant who does not
testify does not preserve the error.
For the above reasons, I concur in the majority’s resolution of the
appeal in Patrick, but respectfully dissent from the majority’s
resolution of the appeal in Phillips.
JUSTICE FREEMAN joins in this partial concurrence and partial
dissent.
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