Docket No. 88860-Agenda 8-November 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DERICK A. COX, Appellant.

Opinion filed April 19, 2001.

JUSTICE FITZGERALD delivered the opinion of the court:

Following a jury trial in the Champaign County circuit court,the defendant, Derick Cox, was convicted of unlawful possessionof a stolen vehicle and sentenced to 15 years' imprisonment. Theappellate court affirmed the defendant's conviction and sentence.No. 4-99-0122 (unpublished order under Supreme Court Rule23). We granted the defendant's petition for leave to appeal. 177Ill. 2d R. 315(a).

The central issue in this case involves the continuing use ofthe "mere-fact" method for impeaching a criminal defendant withprior conviction evidence after our opinion in People v. Atkinson,186 Ill. 2d 450 (1999). We reverse the defendant's conviction andremand for a new trial.

BACKGROUND

On May 23, 1998, a Nissan Pulsar owned by David and RoseSherer and loaned to their son, Zachary Fisher, a University ofIllinois student, disappeared from a student housing complex inChampaign. A week later, the car reappeared in Rantoul, crashedinto a construction sign and stopped near a roadside tree. As aRantoul police officer approached the accident, he noticed thedefendant walking toward the car. The defendant saw the officerand ran. The officer and his police dog pursued the defendant intoa nearby residence where he was arrested. The defendant wasindicted for burglary, criminal damage to property, and unlawfulpossession of a stolen vehicle. Before trial, the State dismissed theburglary and criminal damage to property counts. A jurydeadlocked on the unlawful possession of a stolen vehicle count,and the court declared a mistrial.

The State chose to retry the defendant, and another jury foundhim guilty of unlawful possession of a stolen vehicle. The courtsentenced the defendant to 15 years' imprisonment. The appellatecourt affirmed the defendant's conviction and sentence. Thisappeal followed.

ANALYSIS

The defendant raises four issues in his appeal. We focusinitially on the first issue: whether the appellate court incorrectlysanctioned the trial court's use of the "mere-fact" method toimpeach the defendant's credibility with his prior felonyconvictions. Under the mere-fact method, "only the 'mere fact' ofthe felony conviction is to be brought to the jury's attention, asopposed to informing the jury of the precise offense of which thedefendant has been convicted or the circumstances surroundingthat prior conviction or both." People v. Kunze, 193 Ill. App. 3d708, 733 (1990) (Steigmann, J., specially concurring). Thedefendant contends that this court barred mere-fact impeachmentin Atkinson.

Immediately before trial, defense counsel filed a motion inlimine to bar all evidence of the defendant's five prior felonyconvictions: two 1989 theft convictions, a 1990 burglaryconviction, a 1994 theft conviction, and a 1996 burglaryconviction. Defense counsel argued that these convictions wereclosely related to the unlawful possession of a stolen motor vehiclecharge. According to defense counsel, if the jury heard evidenceof these convictions, it would believe that the defendant had apropensity to commit these types of offenses. The court stated:

"The court always weighs the prejudicial impact ofinforming the jury about the Defendant's priorconvictions against the probative value. And if thisDefendant wishes to testify, the jury is going to be toldthat their duty will be to judge the credibility of thewitnesses. And I am of the opinion that it's only fair thatthe jury be aware that the Defendant does have priorfelony convictions when they weigh his credibility, shouldhe choose to testify.

I will, however, not specifically tell the jury of theburglary convictions and the theft conviction. I willmerely tell the jury the Defendant has a prior theft andfelony convictions, as opposed to-well, theft, this is astolen car. I will not even go so far as to say theft. I'm justgoing to say felony convictions if he's going to beimpeached with his prior record."

On direct examination of the defendant, defense counselasked, "[Y]ou have a couple of prior felony convictions, don'tyou?" The defendant answered that he did. In a post-trial motion,the defendant asserted that the court erred in allowing evidence ofhis prior convictions to reach the jury. The trial court denied thismotion.

The appellate court held that, despite our decision in Atkinson,the trial court did not abuse its discretion in admitting the merefact of the defendant's prior convictions because the defendantagreed to mere-fact impeachment. No. 4-99-0122 (unpublishedorder under Supreme Court Rule 23). We, however, see no suchagreement on the record. To the contrary, the defendant filed amotion in limine asking the court to exclude any evidence of hisprior convictions and a post-trial motion reiterating that position.The prior conviction issue was properly preserved for review. SeePeople v. Enoch, 122 Ill. 2d 176, 187 (1988).

Before addressing Atkinson, we review briefly Illinois lawconcerning impeachment of a witness though the use of priorconvictions, beginning with People v. Montgomery, 47 Ill. 2d 510(1971). In Montgomery, we adopted the 1971 proposed draft ofFederal Rule of Evidence 609. Montgomery, 47 Ill. 2d at 519.Under this rule, evidence of a prior conviction is admissible forimpeachment purposes if (1) the witness' crime was punishable bydeath or imprisonment for more than one year, or the crimeinvolved dishonesty or false statement regardless of thepunishment; (2) the witness' conviction or release fromconfinement, whichever date is later, occurred less than 10 yearsfrom the date of trial; and (3) the danger of unfair prejudice doesnot substantially outweigh the probative value of the conviction.Montgomery, 47 Ill. 2d at 516.⁽¹⁾ This final factor involves abalancing test: probative value versus prejudicial effect. Inperforming this test, trial courts should consider " 'the nature ofthe prior crimes, *** the length of the criminal record, the age andcircumstances of the [witness], and, above all, the extent to whichit is more important to the search for truth in a particular case forthe jury to hear the defendant's story than to know of a priorconviction.' " Montgomery, 47 Ill. 2d at 518, quoting Luck v.United States, 348 F.2d 763, 769 (D.C. Cir. 1965). We concludedthat the trial court has discretion in conducting this balancing testand determining whether a witness' prior conviction is admissible.Montgomery, 47 Ill. 2d at 517-18.

In People v. Williams, 161 Ill. 2d 1 (1994), we revisited theMontgomery balancing test. We found "a regression towardallowing the State to introduce evidence of virtually all types offelony convictions for the purported reason of impeaching atestifying defendant." Williams, 161 Ill. 2d at 38-39. Noting thattrial courts often mechanically applied the balancing test to allowmore prior-conviction evidence, we stated, "The Montgomery ruledoes not, however, allow for the admission of evidence of any andall prior crimes. The focus of Montgomery was on crimes whichbear on the defendant's truthfulness as a witness." Williams, 161Ill. 2d at 39. Trial courts should not tip the balancing test towardprobative value simply because all felonies show a disrespect forsociety and, thus, indicate a willingness to lie on the witness stand.Williams, 161 Ill. 2d at 39. More importantly, trial courts shouldnot admit prior-conviction evidence as probative of guilt, ratherthan credibility. Williams, 161 Ill. 2d at 40. We reaffirmed thattrial courts, in exercising their discretion to admit evidence of adefendant's prior convictions, should consider the nature of theprior crime, its recency and similarity to the current charge, andthe length of the defendant's criminal record. Williams, 161 Ill. 2dat 38; accord People v. Redd, 135 Ill. 2d 252, 325 (1990).Convictions for the same crime for which the defendant is on trialshould be admitted sparingly. Williams, 161 Ill. 2d at 38, quotingGordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967).Williams, however, did not modify Montgomery. People v.Williams, 173 Ill. 2d 48, 82 (1996).

In the wake of Williams, an appellate court panel sanctionedthe mere-fact impeachment method if trial courts found theMontgomery balancing test leaned toward excluding the priorconviction evidence as unfairly prejudicial. See People v. Taber,271 Ill. App. 3d 576, 580 (1995). Several years later, in anothercase from the same appellate court district, the propriety of mere-fact impeachment finally reached this court.

In Atkinson, the defendant was charged with burglary of amotor vehicle. After the defendant testified at trial, the Statesought to present evidence of his two prior burglary convictionsfor impeachment purposes. Defense counsel objected, arguing theprejudicial effect of these convictions outweighed their probativevalue. Defense counsel asserted that the jury should learn only thatthe defendant had two prior felony convictions. The trial courtdenied defense counsel's request, and the State impeached thedefendant with evidence of his two burglary convictions. The jurylater found the defendant guilty.

The appellate court reversed and remanded for a new trial,holding the trial court erred in permitting the State to reveal thenature of the defendant's prior convictions. People v. Atkinson,288 Ill. App. 3d 102, 107 (1997). Instead, the appellate courtdetermined that the trial court should have factored the mere-factmethod of impeachment into its Montgomery balancing test.Atkinson, 288 Ill. App. 3d at 107. The jury should have heard onlythat the defendant had two prior felony convictions. Atkinson, 288Ill. App. 3d at 107.

We reversed the appellate court and reinstated the defendant'sconviction. Atkinson, 186 Ill. 2d at 451. After reviewing theMontgomery balancing test, we declined to adopt the mere-factmethod of impeachment. Atkinson, 186 Ill. 2d at 458. We noted,"Our case law interpreting Montgomery suggests that it is thenature of a past conviction, not merely the fact of it, that aids thejury in assessing a witness' credibility." Atkinson, 186 Ill. 2d at458. Mere-fact impeachment, by eliminating evidence regardingthe nature of the prior conviction and, thereby, inhibiting the jury'sevaluation of witness credibility, undermines Montgomery.Atkinson, 186 Ill. 2d at 458. We further noted the potentialprejudice to the defendant in using the mere-fact approach:

"Under the mere-fact approach, the jury hears direct proofthat the accused has been convicted of a felony, the exactnature of which is excluded from the jury. This bareannouncement unavoidably invites jury speculation aboutthe nature of the prior crime. There is a potential dangerthat the jury would speculate that the defendant waspreviously convicted of a more serious crime.Consequently, the mere-fact approach may result in unfairprejudice to the defendant arising from jury speculation asto the nature of the prior unnamed crime. Under theMontgomery rule, however, there is no potential forspeculation by the jury. Moreover, the possibility ofresulting prejudice to the defendant from revealing thenature of the prior conviction is controlled by the judicialbalancing test set forth in the third prong of Montgomery.Under that test, if prejudice to the defendant substantiallyoutweighs the probative value of admitting theimpeachment evidence, the prior conviction must beexcluded." Atkinson, 186 Ill. 2d at 459.

Atkinson, which was decided while the defendant's appealwas pending, applies to this case. See People v. Linder, 186 Ill. 2d67, 75 (1999) ("As a general rule, this court's decisions apply toall cases that are pending when the decision is announced, unlessthis court directs otherwise").

The State attempts to limit our holding in Atkinson. The Statecontends Atkinson did not instruct that a trial court could notconsider mere-fact impeachment as a means to lessen theprejudicial effect of a defendant's prior convictions within thecontext of the Montgomery balancing test. In Atkinson, however,we held that "trial courts should not consider the mere-fact methodof impeachment." (Emphasis added.) Atkinson, 186 Ill. 2d at 461.We find no suggestion in this unequivocal language that a trialcourt's discretion encompasses mere-fact impeachment.Additionally, the State contends Atkinson only governs cases inwhich a trial court declined to consider a defendant's request formere-fact impeachment. Again, we see no such limitation.⁽²⁾

Admitting the mere fact of the defendant's prior felonyconvictions was error. In order to determine whether thisevidentiary error was "a material factor in his conviction such thatwithout the evidence the verdict likely would have been different"(Williams, 161 Ill. 2d at 42), we turn to the evidence presented attrial and the second issue raised by the defendant: whether theState failed to prove him guilty beyond a reasonable doubt.

"A criminal conviction will not be set aside unless theevidence is so improbable or unsatisfactory that it creates areasonable doubt of the defendant's guilt." People v. Collins, 106Ill. 2d 237, 261 (1985). In viewing the sufficiency of the evidence,we will not retry the defendant. People v. Smith, 185 Ill. 2d 532,541 (1999). Instead, our inquiry is limited to "whether, afterviewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt."(Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 318-19,61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89 (1979); accordPeople v. Schmalz, 194 Ill. 2d 75, 80-81 (2000).

The State called Ira Philbeck as its first witness. Philbecktestified that she was watching television with her two grandsonsaround 3:30 p.m. on May 30, 1998, when the defendant came tothe front door of her house. He looked upset and sweaty fromrunning. The defendant told Philbeck that he had been in a fightand hurt someone, though he did not appear injured. He asked touse the telephone, and she pointed toward her phone. Before thedefendant could place a call, Philbeck saw a police officer in herdriveway and suggested she and the defendant speak with him.The defendant ran down a hallway and asked Philbeck to hidehim. When she refused and told him to leave, he shut himself inthe bathroom. Two police officers entered the house with a policedog. Eventually, they arrested the defendant.

Rantoul police officer Sawlaw testified that he responded toa traffic accident call on May 30, 1998. As Officer Sawlawapproached the accident scene, he observed the defendant walkingtoward a Nissan Pulsar sitting against a tree. The defendant,wearing a green hat, stopped in the middle of the road and lookedat Officer Sawlaw, then turned and ran in the opposite direction.On his radio, Officer Sawlaw learned from another officer that asmall back window on the car was shattered and the steeringcolumn was peeled, indicating that the car had been stolen. Withhelp from his police dog, Dutch, and witnesses directing him afteran African-American man in a green hat, he tracked the defendantto Philbeck's house. Officer Sawlaw spoke with Philbeck, whoadvised him that the defendant was inside the house. Dutch beganbarking at the bathroom door, and Officer Sawlaw told thedefendant, "Come out with your hands up or you will be bitten."Officer Sawlaw heard glass breaking from inside the bathroom andanother officer ordering the defendant to stick his arms out thebroken window so he could be handcuffed. The Rantoul chief ofpolice told Officer Sawlaw to back Dutch away from the bathroomdoor. The defendant emerged, handcuffed and crying; he wastaken into custody immediately.

Rantoul Police Sergeant Glenn Williams testified that heassisted Officer Sawlaw in his pursuit of the defendant. AtPhilbeck's house, Sergeant Williams discovered the defendant wasbarricaded in the bathroom, breaking the window. SergeantWilliams ran outside the house and saw a foot protruding from thebathroom window. He ordered the defendant to put his hands outthe window so he could be handcuffed. The defendant screamed,"[G]et the dog back," and threatened to cut Dutch with a shard ofbroken glass. After 10 minutes, the defendant was handcuffed andtaken into custody.

Rantoul police officer Charles Smith testified that he receiveda call that a car accident had occurred and the driver had fled thescene. At an intersection Officer Smith saw a Nissan Pulsar haddriven over a construction sign, off the road, and into a tree. Henoticed a small back window of the car was broken and thesteering column was peeled. He also found two screwdrivers usedto start the stolen car on the passenger seat. Officer Smith laterjoined Officer Sawlaw at Philbeck's house. Inside the bathroom,the defendant was yelling and threatening Dutch. After 10minutes, the defendant was handcuffed by police officers outsidethe house, and Officer Smith took him into custody.

Fisher and Rose Sherer testified about the condition of the carbefore and after it was stolen. Both testified that the defendant didnot have permission to drive the car.

Champaign police officer James Clark testified that heprocessed the car for evidence. He pulled some fingerprints fromthe car, including a print from the inside of the driver's window.Champaign police officer Charles Claudill testified that the printmatched the defendant's right thumb print. Gary Harvey, aforensic scientist at the Illinois State Police lab in Springfield,agreed with Officer Claudill.

The defense called Harold Phipps as its first witness. Phippstestified that he heard a car crash near his house on May 30, 1998.When he went to investigate the noise, he saw an empty car sittingby a tree and called the police. While waiting for the police, henever clearly saw the driver of the car, but, from his driveway, hemay have seen somebody leaving the accident scene. On cross-examination, the State asked Phipps if he told the police that hesaw an African-American man wearing a green hat run from thewreck. Phipps stated that he could not remember giving such astatement.

The defendant testified that he was working at the Solo CupCompany on the night the car was stolen. On May 30, 1998, hewas painting mobile homes for his cousin. His cousin dropped himoff in Rantoul that afternoon. The defendant was socializing witha group of people at an apartment building when he heard a noiseand saw a car jump the curb and stop beside a tree. A dark-skinnedman with long hair ran from the car to the apartment building andinto a nearby apartment. According to the defendant, he and a fewacquaintances proceeded to that apartment to ask about theaccident. The driver appeared upset and stated that he had lostcontrol of the car. The driver requested a cigarette and told thedefendant that he had left a pack in the wrecked car. The defendantwanted a cigarette too, so he agreed to return to the car.

At the car, the defendant could not find any cigarettes, so hewent back to the apartment. The driver said the cigarettes wereunder the seat. The defendant returned again to the car and founda pack of Newports under the passenger seat. According to thedefendant, he did not notice the stripped steering column or thescrewdrivers on the passenger seat. Walking back to theapartment, the defendant saw a police officer driving toward him.The defendant went to the apartment to alert the driver that thepolice were in the area, then left the apartment to elude the policebecause he had an outstanding arrest warrant for a fight with afriend. After a short walk the defendant started jogging when hesaw a police officer with a dog pursuing him. The defendantdenied that he ever had possession of the car.

The defendant testified that he went to Philbeck's house.Philbeck let him in, and he asked to use the telephone. Thedefendant called his cousin for a ride. When he saw OfficerSawlaw and Dutch outside Philbeck's house, he told Philbeck thatthe police were chasing him in connection with a fight. Accordingto the defendant, Philbeck told him that he could not stay, and shewalked to the back of the house to talk with the police. OfficerSawlaw entered the house with Dutch, and the defendant fled tothe bathroom. Officer Sawlaw attempted to kick in the door, andthe defendant kicked out the bathroom window and grabbed apiece of glass for protection from the dog. Eventually, thedefendant stuck his hands out the window and allowed the policeto handcuff him. On cross-examination by the State, the defendanttestified that he did not realize the police were chasing himregarding the car until after his arrest.

In rebuttal, Officer Sawlaw testified that he interviewedPhipps after the defendant's arrest. Phipps told him that anAfrican-American man in a green hat ran from the wrecked car,walked back toward the car, and ran away from the car again.Officer Smith also testified in rebuttal that he interviewed Phippswhen he first arrived at the accident scene. Phipps told him anAfrican-American man in a green hat ran from the wrecked car.

To obtain a conviction for possession of a stolen motorvehicle (see 625 ILCS 5/4-103(a)(1) (West 1998)), the State wasrequired to prove, beyond a reasonable doubt, that the defendantpossessed the vehicle, that he was not entitled to possess thevehicle, and that he knew the vehicle was stolen. People v.Anderson, 188 Ill. 2d 384, 389 (1999). The defendant neverdisputed that he did not have permission to drive the NissanPulsar, and the evidence presented at trial was sufficient for thejury to conclude that he possessed the car and that he knew the carwas stolen. The evidence, however, was not overwhelming, andthe improper mere-fact impeachment evidence may have been amaterial factor in the jury's decision. Cf. Williams, 161 Ill. 2d at41-42. We remand for a new trial.⁽³⁾

Finally, the defendant raises two issues concerning the lengthof his sentence. These issues are unlikely to recur on retrial, andwe decline to address them.

CONCLUSION

For the reasons we have discussed, we reverse the judgmentsof the appellate and circuit courts and remand the cause to thecircuit court for a new trial.

Reversed and remanded.

The circuit court, in the exercise of its discretion, found thatthe mere-fact method of impeachment was the most appropriateapproach in presenting evidence of defendant's five prior felonyconvictions to the jury. The majority, relying upon People v.Atkinson, 186 Ill. 2d 450 (1999), concludes that the circuit court'sdecision constitutes reversible error.

In Atkinson, this court held that, as a matter of law, it isalways improper for a circuit court to employ the mere-factmethod to impeach a testifying defendant. Justice Rathje and Idissented from this holding. As the dissenting opinion in Atkinsonexplained,"[h]istorically, this court has vested the trial court withgreat discretion to determine what evidence should be presentedat trial." Atkinson, 186 Ill. 2d at 464 (Rathje, J., dissenting, joinedby McMorrow, J.). In holding that circuit courts are prohibitedfrom considering the mere-fact impeachment method, the Atkinsonmajority unwarrantedly departed from our traditionaljurisprudence by "remov[ing] from the trial court the discretion todetermine whether or to what extent evidence is admissible."Atkinson, 186 Ill. 2d at 472 (Rathje, J., dissenting, joined byMcMorrow, J.). I continue to adhere to my position that thedecision of whether or to what extent evidence of a priorconviction may be admitted for purposes of impeachment is withinthe circuit court's sound discretion. It is within the wide discretiontraditionally afforded the circuit court to permit the use of mere-fact impeachment if the court determines that it is the mostappropriate impeachment method.

For the reasons stated, I respectfully dissent from the opinionof the majority.

1. ¹Rule 609 ultimately was enacted in a different form. In federalcourt, the danger of unfair prejudice need not substantially outweigh theprobative value of the conviction. See Fed. R. Evid. 609(a)(1). Theproposed rule, however, has remained the touchstone for admittingevidence of the defendant's prior convictions in Illinois. See People v.Elliot, 274 Ill. App. 3d 901, 907 (1995).

2. ²We do not reach the question of whether a defendant can challengean Atkinson violation when he requests or agrees to improper mere-factimpeachment. We note, however, "an accused may not ask the trialcourt to proceed in a certain manner and then contend in a court ofreview that the order which he obtained was in error." People v. Lowe,153 Ill. 2d 195, 199 (1992); accord People v. Payne, 98 Ill. 2d 45, 50(1983) (a defendant who invites or acquiesces to the admission ofimproper evidence cannot complain).

3. ³Following People v. Taylor, 76 Ill. 2d 289, 309-10 (1979), we makeno implication concerning the defendant's guilt which would be bindingon retrial. Our finding is intended only to protect the defendant fromdouble jeopardy. People v. Holloway, 177 Ill. 2d 1, 12 (1997).