July 20, 2001

No. 2--00--0571

Following a jury trial, defendant, Nathanial Slabaugh, wasconvicted of mob action (720 ILCS 5/25--1(a)(2) (West 1996)),aggravated battery (720 ILCS 5/12--4(b)(6) (West 1996)), andresisting or obstructing a peace officer (720 ILCS 5/31--1(a) (West1996)). He appeals, contending that (1) the trial court erred byallowing the prosecutor to impeach two defense witnesses withevidence that they pleaded guilty to misdemeanors arising out ofthe same incident as the charges against defendant; and (2) theprosecutor's closing argument deprived defendant of a fair trial. We reverse and remand.

On June 25, 1997, Kenneth Kloweit and Janet Kloweit held abirthday party for their daughter, Kelly, at the Auto Inn inRockford. Kelly's fiancé, Corey Jones, and defendant were amongthe guests. Sometime after midnight a fight broke out. Apparentlythe fight was initially between Jason Radounis and Sam Stella butsoon escalated into a general melee. The fight started in the beergarden and spilled out onto the sidewalk. The police were called. By the time the officers arrived the conflict had subsided, butthey attempted to disperse the crowd so that it would not start upagain.

Kurt Whisenand was one of the first officers to arrive. Heand Jason Cebuhar, another Rockford police officer, told the peoplegathered in the beer garden several times that they had to leavebut received little or no response. According to the policeofficers, as a few people began leaving the beer garden, Whisenandsaw Corey Jones push another man, later identified as MichaelScalise. Cebuhar told Jones that he was under arrest, but Jonesresponded with a profanity. Whisenand and Cebuhar then grabbedJones's arms in an attempt to arrest him. Cebuhar and Jones endedup on the ground.

Whisenand testified that, as he and Cebuhar were struggling with Jones, Whisenand saw defendant punch Cebuhar in themidsection. Cebuhar testified that he punched defendant in theface. Meanwhile, two other officers, Kevin Nordberg and David Lee,pulled defendant off Cebuhar and tried to arrest him. Defendantand Lee fell to the ground with defendant on top. Nordberg and Leetestified that defendant punched Lee in the head before they wereable to handcuff him. At some point Jolie Swartz stepped in frontof Cebuhar and said something like, "This is not necessary." Hearrested her for obstructing a peace officer.

The defense witnesses testified that neither defendant norJones, who was tried with him but is not a party to this appeal,provoked or assaulted the officers. Janet Kloweit testified thatafter the fight broke out she and her husband decided it was timeto end the party. As she was walking to her car, she saw Jonesface down on the sidewalk. A police officer had his knee onJones's shoulder.

Swartz testified that she saw some officers standing behindJones, with an officer holding each arm. She later saw defendanton the ground with five or six officers around him punching him andspraying him with mace. Defendant was curled up in a fetalposition. She approached one of the officers and told him thatwhat they were doing was not necessary.

Scalise testified that he was standing on the street next toJones when Jones pushed him in the chest and was immediatelyarrested. Defendant was standing 5 to 10 feet away. As defendantbegan to move toward Jones, he was thrown to the ground by four orfive officers. Scalise never saw defendant punch or push a policeofficer.

Michael Rich testified that defendant was telling the officersto calm down because they were being too rough with Jones. Defendant was only trying to get the officers' attention when theytackled him and sprayed him with mace.

Jones testified that after the fight ended he was standing atthe entrance to the beer garden with Scalise. The two exchangedwords and Jones pushed Scalise. He was then hit in the back of thehead by several officers, fell to the ground, and was handcuffed.

Defendant testified that after Jones pushed Scalise severalofficers threw Jones to the ground and started kicking and kneeinghim. He began moving toward Jones and either fell or was knockeddown. Officers then began hitting and macing him.

In rebuttal, Vic Olszewski, the owner of the Auto Inn,testified that he saw Jones struggling with police officers whowere trying to arrest him. He later saw defendant hit an officer,after which there was a brawl. Defendant fought back before beingmaced and taken into custody.

After hearing this evidence, the jury found defendant guilty. The court sentenced him to two years' conditional discharge, andthis appeal followed.

Defendant first contends that the court erred by permittingthe State to impeach two defense witnesses, Swartz and Rich, withevidence that each pleaded guilty to obstructing a peace officer. On cross-examination, Swartz denied that she had ignored severalrequests by the police to leave the area. However, she admittedthat on July 27, 1997, she pleaded guilty to obstructing a peaceofficer. According to the prosecutor, the complaint alleged that"Officer Cebuhar told Miss Swartz to leave the area several timesand she refused the officer's request." Swartz testified that shedid not have a lawyer when she pleaded guilty and did not read thecomplaint. She did not recall the complaint being read to her inopen court.

During the prosecutor's cross-examination of Michael Rich, thefollowing colloquy occurred:

"Q. *** Were you told several times to leave the area byofficers and did you refuse to leave and attempt to start thefight again?"

A. I never tried to start the fight again. But I wastold to leave the area a lot, yes."

However, the prosecutor then asked him whether he had pleadedguilty to a complaint charging that he "was told by officersseveral times to leave the area. He refused to leave and attemptedto start the fight again." He admitted that he pleaded guilty.

In People v. Montgomery, 47 Ill. 2d 510 (1971), the supremecourt considered under what circumstances a defendant could beimpeached with evidence of his prior convictions. The courtadopted proposed Federal Rule of Evidence 609, providing that priorconvictions for impeachment purposes should be limited to crimespunishable by imprisonment for more than one year (felonies) or anycrimes involving dishonesty. Montgomery, 47 Ill. 2d at 516.

In People v. Stover, 89 Ill. 2d 189 (1982), the court heldthat Montgomery applied to witnesses other than the defendant. Specifically, Stover held that it was error to permit theimpeachment of a defense witness with the fact that he pleadedguilty to charges of obstructing a peace officer that arose out ofthe same incident as the charges against defendant. Stover, 89Ill. 2d at 194-95. The court rejected the State's argument thatthe guilty plea was admissible as a prior inconsistent statementafter the witness denied the conduct to which he pleaded guilty. Stover, 89 Ill. 2d at 195.

Stover is indistinguishable from this case. The Stateimpeached both Swartz and Rich with their guilty pleas toobstructing a peace officer. Obstructing a peace officer is amisdemeanor (see 720 ILCS 5/31--1(a) (West 1996)) that does notinvolve dishonesty or false statement and is therefore inadmissibleas impeachment under Montgomery. The State attempts to distinguishStover on the basis that the guilty pleas here were "judicialadmissions" rather than "prior inconsistent statements." This isa distinction without a difference. The plea in Stover was surelya judicial admission also.

The only authority the State cites in support of itscontention that the guilty pleas were admissible is a passage froma reference work discussing the admission of guilty pleas intraffic cases during related civil litigation. See M. Graham,Cleary & Graham's Handbook of Illinois Evidence