NO. 5-97-0409

October 20, 1998

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In September 1996, the State charged defendant, Wesley L. Owen, with possession of a controlled substance (less than 15 grams of a substance containing cocaine) (720 ILCS 570/402(c) (West 1996)). In March 1997, a jury convicted him of that offense, and the trial court later sentenced him to three years in prison. Defendant appeals, arguing only that the court erred by denying his motion in limine, which sought to bar the State from impeaching him with his prior convictions for robbery and attempt (obstruction of justice). We affirm.

I. BACKGROUND

On January 14, 1997, the trial court conducted a preliminary hearing on the charge against defendant, found probable cause, and arraigned him. After defendant pleaded not guilty, the court entered a written discovery order directing the parties to provide discovery information to each other in accordance with supreme court rules. The court also allotted the case for trial on March 18, 1997, and set a status hearing for February 11, 1997. At that hearing, the court scheduled a "jury pretrial" for March 3, 1997. After conducting the "jury pretrial" on March 3, the court reaffirmed the jury trial setting for March 18, 1997.

On the morning of March 18, 1997, prior to the start of defendant's jury trial, defendant filed a motion in limine, which sought to bar the State from impeaching him with his two prior convictions. The two convictions at issue were for robbery and the misdemeanor offense of attempt (obstruction of justice). Defendant's motion stated that the prosecutor had informed defendant's attorney the previous day that the prosecutor intended to use these two convictions as rebuttal evidence to impeach defendant if he were to testify. The motion contended that "the only purpose of such impeachment evidence is an attempt to prejudice the [d]efendant unfairly and to attempt to influence the jury herein to return a verdict of guilty in this case." The motion also stated that "it is necessary for the [d]efendant to know if the [c]ourt will allow such evidence so that he can determine whether he will take the stand or not and whether he should attempt to minimize such impeachment by bringing it out on his direct evidence while he is testifying if he decides to testify."

We note parenthetically that although the motion states the prosecutor informed defense attorney only the day before that the prosecutor intended to use these two convictions to impeach defendant, the motion does not indicate when the State informed defense counsel that defendant had these two prior convictions. The State has attempted to supplement the record with a bystander's report purporting to show that the State provided that information two months earlier at the time of defendant's arraignment, but we have sustained defendant's objection to that motion because it failed to comply with the provisions of Supreme Court Rule 323(c) (166 Ill. 2d R. 323(c)). In any event, our disposition of this case would not be affected even if the record contained the date on which the prosecutor disclosed the two prior convictions.

The record shows that the proceedings in the trial court began on March 18, 1997, with the court calling the case by name, noting the presence of the defendant and the attorneys, and then stating the following: "Motion in limine filed this date by the defendant. Motion not timely. Motion denied. Statement of nature of the case on file. Any chance to resolve this case?" When the prosecutor indicated that he did not think so, the very next line of transcript shows proceedings occurring in open court in the presence of the jury, during which the court introduced the jury to the case it was about to hear.

The State's only witness was a Decatur police officer who found a plastic bag containing cocaine under the backseat of his patrol car after he had arrested defendant as a result of a traffic stop and had taken defendant to the Macon County jail. At the scene of defendant's arrest, the officer noticed defendant sliding down in the seat at an odd angle and moving his hands behind his back. The officer had searched the backseat of his squad car before he placed defendant in it and no cocaine was then present. He found the cocaine in the backseat after he delivered defendant to the Macon County jail. After the officer testified, the parties stipulated (1) to the chain of evidence on the exhibit taken from the police car, and (2) that a forensic scientist identified the exhibit as .05 grams of a substance containing cocaine.

The State then rested, and the trial court denied defendant's motion for directed verdict. The following dialogue then occurred.

"[Defense counsel]: Then, regarding my motion in limine, your Honor, so I can determine whether to put the defendant on.

THE COURT: The motion was not timely made. The motion is denied. The discovery order entered in this case provided for filing motions prior to trial. You filed your motion on the day of trial. It is not timely. The motion is therefore denied.

[Defense counsel]: I believe that motions in limine can be made at any time.

THE COURT: I don't believe you are right.

[Defense counsel]: In any event, your Honor, at this time we are going to call the defendant."

Defendant then testified as the only defense witness and denied that the cocaine found in the police car came from him. He explained that he was sitting at an odd angle within the police car because he is tall (5 feet 11 inches). At the conclusion of defendant's direct examination, defense counsel elicited from defendant that he was convicted of robbery in 1992 and attempt (obstruction of justice) in 1993.

During closing argument, the prosecutor referred to defendant's prior convictions and told the jury that it was entitled to take them into account when it determined defendant's credibility as a witness. The prosecutor then stated the following:

"And you have to ask yourselves, is someone who is likely to have committed these crimes, likely to be a believable witness? The kind of person who is going to get on the witness stand and tell you the truth about what happened. You can take that into account. The law says you can take that into account."

The trial court appropriately instructed the jury regarding the limited purpose for which evidence of defendant's prior convictions could be considered (see Illinois Pattern Jury Instructions, Criminal, No. 3.13 (3d ed. 1992)), and the jury found defendant guilty as charged. Defendant subsequently filed a motion for new trial, asserting in part that the court erred in not allowing a hearing on, or granting the relief asked for in, the motion in limine defendant filed on the day of trial. The court denied that motion and sentenced defendant to three years in prison. This appeal followed.

II. ANALYSIS

Defendant argues that the trial court erred by not granting his motion in limine, which sought to bar the State from impeaching him with his prior convictions. In so arguing, defendant contends that he

"moved in a timely manner to bring [the prior conviction issue] to the court's attention outside the presence of the jury. Once the court was aware of the State's intention, the burden was placed on the State--as the proponent of the evidence--to show that the prior convictions were probative of some issue in the case."

Defendant then asserts that when the court rejected his motion as untimely, it committed error by "relieving the State of its burden to show probative value [of defendant's prior convictions]." Defendant also argues that "[t]he trial court explicitly based its ruling upon the pre-trial `timeliness' of the defendant's objection to the State's potential impeachment evidence--an improper legal standard." However, defendant never explains why a trial court's decision not to entertain a motion in limine on the grounds that it is not timely is improper.

Defendant's position assumes that a trial court is obligated to consider a motion in limine on the merits and decide it. That assumption is wrong.

Motions in limine are designed to call to the attention of a trial court, in advance of trial, some evidence which, because of its potentially prejudicial nature, cannot be discussed in the jury's presence until the court has determined it is admissible. The most common examples of such evidence in criminal cases are the defendant's prior convictions (as in this case) and the State's wish to present other-crimes evidence. Motions in limine are commonly used to obtain a pretrial order excluding inadmissible evidence and barring any questioning of witnesses regarding such evidence. Kutchins v. Berg, 264 Ill. App. 3d 926, 930, 638 N.E.2d 673, 675 (1994). Even though the title--motion in limine--suggests that such motions may be used only to seek to bar or limit evidence, they may also be used by the proponent of the evidence to obtain a pretrial ruling in appropriate circumstances, such as when the State wishes to present the trial court with other-crimes evidence the State will want to introduce at trial. See M. Graham, Cleary & Graham's Handbook of Illinois Evidence