25 August 2000

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JUSTICE STEIGMANN delivered the opinion of the court:

In April 1999, a jury found defendant, Maurice G.Lyons, guilty of vehicular invasion (720 ILCS 5/12-11.1 (West1996)), aggravated battery (720 ILCS 5/12-4(b)(8) (West Supp.1997)), intimidation (720 ILCS 5/12-6(a)(1) (West 1996)), andunlawful restraint (720 ILCS 5/10-3 (West 1996)). In June 1999,the trial court sentenced him to 10 years in prison on thevehicular invasion conviction, 10 years in prison on the aggravated battery conviction, and 10 years in prison on the intimidation conviction, with all sentences to run concurrently. (Thecourt did not enter judgment on the unlawful restraint convictionbecause it was based upon the same physical act as the vehicularinvasion conviction.)

Defendant appeals, arguing that the trial court erredby (1) denying him the right to present evidence purportedlyshowing that the victim had previously been involved in drugbuys, (2) using the "mere-fact" impeachment method, and (3)imposing the recoupment order without first conducting a hearingto determine defendant's ability to pay. We affirm defendant'sconvictions and sentence and vacate the recoupment order andremand with directions.

The evidence at defendant's trial showed the following. Melissa McMullen testified that at around 2:30 in the morning onAugust 9, 1998, she left work in Bloomington, Illinois, and droveto a nearby Jewel-Osco store. She parked in the fire lane nearthe store's entrance and went inside. As she left the store andwalked toward her car, McMullen heard someone walking beside her. When she opened her driver's side car door, a man she had neverseen before (later identified as defendant) approached her andpushed her inside. As defendant held McMullen down inside thecar, he threatened to kill her if she did not shut up. He thenrepeatedly asked for her car keys. With her one free hand,McMullen flashed the headlights and honked the horn in an effortto attract the attention of a taxi driver in the parking lot. Defendant tried to stop her from signaling for help and againthreatened to hurt or kill her.

Defendant then began demanding McMullen's purse andattempted to pull it from her neck. When she told him that shehad no money, defendant told her that he just wanted a ride. McMullen eventually handed the car keys to defendant, who thenrealized that he could not drive her car because it had a manualtransmission. He forced McMullen into the driver's seat and hemoved into the passenger's seat. Defendant told McMullen todrive out of the parking lot. She drove toward the taxi cab butdid not try to talk with the driver because defendant told her hewould kill her if she did. After she pulled out of the parkinglot onto the street, she saw a police car coming toward them. McMullen swerved across traffic lanes, stopped in front of thepolice car, and ran to the officer.

Fred Martin, a Bloomington police officer, testifiedthat on the morning of the incident, he was responding to apossible domestic battery in the Jewel-Osco parking lot when hesaw a car cross the median and stop near his patrol car. Thedriver of the car (McMullen) jumped out and yelled, "Oh, my God,I'm so glad you came by. This guy pushed me in my car and mademe drive away." She then ran toward the patrol car and jumpedin. Martin stated that McMullen was scared, cowering, andspeaking quickly. Martin noticed that she had abrasions andscratches on her neck, shoulder, and arm. Based upon her reaction and statements, Martin believed that she did not knowdefendant. After talking further with McMullen, Martin approached defendant and asked him if he knew McMullen's name. Defendant told Martin that her name was Amy, but he was unable toprovide her last name.

Brian Brown, a Bloomington police officer, testifiedthat after he arrived on the scene, he questioned defendant aboutthe incident. Defendant told Brown that he and McMullen wereboyfriend and girlfriend and they had gotten into an argument atthe Jewel-Osco. Defendant denied hitting McMullen. Brown askeddefendant what McMullen's name was. After staring at Brown forabout a minute, defendant told Brown that her name was Ann. AsBrown transported defendant in the patrol car, defendant complained that McMullen was his girlfriend and she was simply madat him. Brown responded that if she was indeed defendant'sgirlfriend, he should know her name. After they arrived at thecounty jail, defendant told Brown that McMullen's first name wasreally Amber. Brown told him that he was wrong again.

Michael Lusher, a taxi driver, testified that as he satin his taxi in the Jewel-Osco parking lot on the morning inquestion, he saw a man (later identified as defendant) holding acar door open, pushing and hitting a woman into the car, whichwas parked in the fire lane. Each time the woman attempted toget out of the car, defendant shoved her back down and "hit her acouple of more times." Lusher also heard a car horn honking andthe woman yelling for help.

Defendant testified that he first met McMullen inJanuary 1998 at his uncle's house. On that occasion, defendantsold McMullen half a gram of cocaine. Thereafter, McMullencalled defendant on several occasions to arrange cocaine purchases. According to defendant, they would meet in variousparking lots to complete the transactions.

On August 8, 1998, McMullen telephoned defendant andasked if he had any cocaine to sell her. Defendant told her thathe did not have any, but he would call her if he got some. Around 2:30 the next morning, defendant phoned McMullen and toldher to meet him at the Jewel-Osco store in 15 minutes if shewanted to buy some cocaine. Defendant then rode to the Jewel-Osco with his uncle. After waiting for about 10 minutes, defendant went inside the store to phone a taxi cab. He came backoutside and sat in the car with his uncle for another 15 minutesbefore going inside the store to again phone the taxi company. As defendant left the Jewel-Osco, he saw McMullen drive up. Shestarted to get out of her car, and defendant told her to get backin. He then got in the passenger's seat. McMullen told him thatshe only wanted to purchase a half gram of cocaine, but defendanthad the cocaine cut into larger portions. He told her he wouldsell her a larger portion at a reduced rate of $150. She thenwent into the store for about a minute. During that time,defendant moved into the driver's seat. When McMullen came backout, she got in the passenger's seat. He gave her the cocaine,and she gave him $85. Defendant demanded the rest of the money,and she said she would pay him the next day. He returned the $85and a struggle ensued over the cocaine. According to defendant,he was trying to grab her hand when the taxi driver came into theparking lot. McMullen was yelling, and defendant was cursing ather. Defendant blew the car horn to alert the taxi driver thatit was defendant who wanted the cab.

Defendant told McMullen that he thought the taxi driverhad called police, and they decided to tell the police that theywere boyfriend and girlfriend and were just having an argument. As part of the story, defendant would call McMullen Ashley andshe would call him Dee. McMullen got in the driver's seat, andthey drove away from the Jewel-Osco. After she swerved andstopped in front of the patrol car, defendant told the officerstheir agreed-upon story.

During his direct testimony, defendant also testifiedthat he had been convicted of two felony offenses in 1989 as wellas two felony offenses in 1993.

A Jewel-Osco employee testified that on the morning inquestion, defendant twice came into the store to call a taxicompany.

Upon this evidence, the jury convicted defendant, andthe trial court sentenced him as stated. This appeal followed.

Defendant first argues that the trial court erred bydenying him the right to present evidence purporting to show thaton a number of previous occasions, McMullen had bought drugs fromindividuals other than defendant in various parking lots in andaround Bloomington. Specifically, defendant contends that suchevidence impeached McMullen's version of the incident and was"clearly relevant" to the charges against him. We disagree.

Although a witness' testimony may be impeached withevidence that tends to contradict or undermine its believability,such contradictory evidence may not be offered if it is merelycollateral to the issues in the case. "A matter will be deemedcollateral if, but for the fact that it contradicts a statementof a witness, it would be inadmissible or, put another way, thatits only relevance to the underlying action is that it confutesan element of a witness' testimony." People v. Abrams, 260 Ill.App. 3d 566, 579, 631 N.E.2d 1312, 1322 (1994). The decisionwhether a matter is collateral lies within the trial court'ssound discretion, and a reviewing court will not reverse thatdecision unless there has been a clear abuse of discretionresulting in manifest prejudice to the defendant. People v.Breton, 237 Ill. App. 3d 355, 364, 603 N.E.2d 1290, 1297 (1992).

In this case, the prosecutor made a motion in limine toexclude evidence purporting to show that McMullen had previouslyparticipated in drug deals with individuals other than defendant. After considering counsels' arguments, the trial court grantedthe motion, specifically finding that such evidence was collateral to the issues in this case. In so finding, the courtstated, in pertinent part, as follows:

"If [defendant] wants to say he's thereto sell drugs and [McMullen] wants to say no,that's where it ends. You don't get to impeach her with past bad acts. Because that'sthe only purpose you're offering it [for]. ***

*** The jury has to sort out whether ornot she's telling the truth or him. Now, hisresponse, well, I want to show that she's aliar about prior drug sales is offered onlyto contradict. It's not probative of any ofthe issues that the State has to prove."

We fully agree with the trial court. Whether McMullenhad previously purchased drugs from other individuals in variousparking lots was wholly irrelevant to the underlying issues inthis case--that is, whether defendant approached McMullen in aparking lot, shoved her into her own car, threatened to kill her,attempted to take her purse, and forced her to drive away withhim in the passenger seat. Thus, we conclude that the court didnot abuse its discretion in granting the State's motion inlimine, nor did the court's decision result in manifest prejudiceto defendant.

Next, defendant argues that, in light of People v.Atkinson, 186 Ill. 2d 450, 458, 713 N.E.2d 532, 536 (1999) (inwhich the supreme court rejected the mere-fact impeachmentmethod, under which the jury hears only about the existence of aprior conviction and not the specific crime), the trial courtabused its discretion by using the mere-fact method and failingto conduct the Montgomery balancing test to determine if theprobative value of the conviction is substantially outweighed bythe danger of unfair prejudice (People v. Montgomery, 47 Ill. 2d510, 516, 268 N.E.2d 695, 698 (1971)). According to defendant,had the court conducted the Montgomery balancing test and rejected the mere-fact impeachment method, the evidence of at leastsome of his prior convictions would not have been admittedbecause its probative value was outweighed by the risk of unfairprejudice it presented. In response, the State contends thatbecause defendant "clearly agreed" to the court's use of themere-fact impeachment method, he cannot now complain that thecourt erred by doing so. We agree with the State.

"[A]n accused may not ask the trial court to proceed ina certain manner and then contend in a court of review that theorder which he obtained was in error." People v. Lowe, 153 Ill.2d 195, 199, 606 N.E.2d 1167, 1169 (1992). In People v. Dixon,308 Ill. App. 3d 1008, 1018, 721 N.E.2d 1172, 1180 (1999), thiscourt held that a defendant who had requested that the trialcourt use the mere-fact impeachment method could not argue onappeal that the court had erred by doing so. In so holding, westated that "[d]espite its directive to trial courts not to usethe mere-fact method in future cases, the Atkinson court did notindicate that trial courts have erred or abused their discretionwhen, upon either defendant's request or with his agreement, theyused the mere-fact method in the past." Dixon, 308 Ill. App. 3dat 1018, 721 N.E.2d at 1180.

Here, prior to defendant's testimony and outside thejury's presence, defense counsel moved to exclude evidence ofdefendant's two 1993 aggravated battery convictions, as well ashis 1989 burglary and theft convictions. Defense counsel arguedthat the evidence of defendant's aggravated battery convictionsshould not be admitted because its probative value was outweighedby the risk of unfair prejudice it presented. The trial courtresponded that it used the mere-fact impeachment method and wasnot sure the balancing process was even necessary if the jury wasnot to be informed of the specific crimes of which the defendanthad been convicted. The court then asked defense counsel how theprejudicial effect of defendant's prior felony convictionsoutweighed their probative value under the mere-fact impeachmentmethod, and defense counsel responded, "I didn't realize that youallowed us to do it that way, which is fine." Thus, defendant,through his counsel, explicitly agreed to the court's use of themere-fact impeachment method in this case. Accordingly, hecannot now complain about the court's decision to use the precisemethod he agreed to at trial.

Moreover, even accepting defendant's contention thatthe trial court erred by failing to conduct a Montgomery balancing test, we conclude that such error does not require reversal. In People v. Jennings, 279 Ill. App. 3d 406, 411, 664 N.E.2d 699,704 (1996), this court held that despite the trial court'sfailure to conduct such a balancing test, a reviewing court mayuphold a defendant's conviction where the evidence at trialindicates that the verdict likely would not have been differentwithout the evidence of defendant's prior conviction.

A review of the evidence in this case leads us toconclude that the verdict likely would not have been differentwithout the evidence of defendant's prior convictions. Defendanttestified that he and McMullen had known each other for severalmonths and the incident took place after a drug deal between thetwo of them went bad. However, upon questioning by policeofficers, he was unable to provide them with McMullen's real nameand, instead, he gave them three incorrect first names. Inaddition, McMullen testified that she had never met defendantprior to the incident in which he walked up to her in a parkinglot, shoved her into her car, threatened to kill her, and forcedher to drive away. Her testimony about defendant's conduct wascorroborated both by the taxi driver and the responding policeofficers.

Last, defendant argues that the trial court erred byfailing to hold a hearing to assess his ability to pay attorneyfees under section 113-3.1 of the Code of Criminal Procedure of1963 (725 ILCS 5/113-3.1 (West 1996)). In People v. Love, 177Ill. 2d 550, 563, 687 N.E.2d 32, 38 (1997), the supreme courtheld that trial courts are required to conduct hearings intodefendants' financial resources as a precondition to orderingrecoupment. The State concedes that the trial court ordereddefendant to pay $200 for the services of his court-appointedcounsel without first conducting a hearing to assess defendant'sability to pay. We accept the State's concession. Thus, wevacate the recoupment order and remand the cause for compliancewith the requirements set forth in section 113-3.1 and Love.

For the reasons stated, we affirm defendant's convictions and sentence and vacate the recoupment order and remandwith directions.

Affirmed in part and vacated in part; cause remandedwith directions.

McCULLOUGH, J., concurs.

COOK, P.J., dissents.

PRESIDING JUSTICE COOK, dissenting:

A matter is collateral if it is relevant only tocontradict the in-court testimony of a witness, that is, if it isnot relevant for any other purpose. For example, in a caseinvolving a 1970 accident, exactly when in 1973 the witness movedto Tennessee was a collateral issue. O'Brien v. Walker, 49 Ill.App. 3d 940, 364 N.E.2d 533 (1977).

In the present case, evidence that McMullen may havebeen engaged in a drug purchase at the time of the incident isclearly relevant to the issues of the case and is not a merecontradiction of her in-court statement. Defendant did notcommit the offense of vehicular invasion if he entered McMullen'svehicle with her permission to sell her drugs. The evidencewould also have been important to the other charges. Was this acase of a stranger forcing himself into McMullen's car andattempting to take her money? Or was this a case where McMullenargued over the details of a drug transaction with an individualwhom she knew?

The trial court, prior to the presentation of evidence,granted the State's motion in limine:

"Now, if you can tie this--to backtrack,if you can tie it into one of the elements,that's different. But frankly, whether ornot the detention was lawful or not doesn'tturn on whether Melissa McMullen previouslysold crack or bought crack. It just doesn't.If she denies crack that day, buying or selling crack, then that is purely a jury question. They can decide from hearing from thedefendant and from the victim whether or notthat was a crack sale." (Emphasis added.)

It might be argued that evidence that McMullen purchased drugs on other occasions, from other individuals, is notvery probative on the issue whether McMullen was purchasing drugsfrom defendant on the occasion charged. We would admit thatevidence against defendant, however, if he were charged withselling drugs, and argued there was some innocent explanation. Other crimes evidence is admissible, if relevant and not undulyprejudicial, to show anything other than a defendant's merepropensity to commit a crime, such as intent, motive, knowledge,or absence of mistake. People v. Cloutier, 156 Ill. 2d 483, 505,622 N.E.2d 774, 785-86 (1993).

Even evidence of other crimes admitted to show apropensity to commit crime is relevant. The concern with suchevidence is not that it is not relevant, but that it is undulyprejudicial to the defendant. People v. Lucas, 151 Ill. 2d 461,485, 603 N.E.2d 460, 471 (1992) (not because it has no appreciable probative value, but because it has too much). That concernis not present with a witness, such as McMullen. See People v.Paul, 304 Ill. App. 3d 404, 410, 710 N.E.2d 499, 503 (1999)(nondefendant witnesses need less protection against impeachinginformation, because such witnesses have less at stake). If theevidence is relevant, it generally should be admitted.

The majority may believe defendant's evidence thatMcMullen was a participant in a drug deal is weak but that is nobasis for excluding the evidence. The jury, and not the court,is charged with assessing the credibility of the witnesses andweighing the evidence. "In evaluating the incremental probativevalue of the evidence, the trial judge must assume that theevidence will be believed by the trier of fact." M. Graham,Cleary & Graham's Handbook of Illinois Evidence