{ "id": 927587, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC BRAMLETT, Defendant-Appellant", "name_abbreviation": "People v. Bramlett", "decision_date": "1995-11-30", "docket_number": "No. 4\u201494\u20140149", "first_page": "201", "last_page": "214", "citations": [ { "type": "official", "cite": "276 Ill. App. 3d 201" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "650 N.E.2d 298", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "301" } ], "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 57", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 252858 ], "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0057-01" ] }, { "cite": "583 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "519" } ], "opinion_index": 0 }, { "cite": "145 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596242 ], "pin_cites": [ { "page": "364-65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0353-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "698" } ], "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "weight": 2, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "641 N.E.2d 296", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "pin_cites": [ { "page": "311-12" }, { "page": "312" }, { "page": "313" }, { "page": "310" } ], "opinion_index": 0 }, { "cite": "161 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783181 ], "weight": 5, "pin_cites": [ { "page": "38-39" }, { "page": "39" }, { "page": "41" }, { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0001-01" ] }, { "cite": "348 N.E.2d 170", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "173-74" } ], "opinion_index": 0 }, { "cite": "63 Ill. 2d 354", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426040 ], "pin_cites": [ { "page": "358-60" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0354-01" ] }, { "cite": "596 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "1249" }, { "page": "1249" } ], "opinion_index": 0 }, { "cite": "232 Ill. 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ERIC BRAMLETT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nDefendant appeals from his conviction and sentence for armed violence (720 ILCS 5/33A \u2014 2 (West 1992)) alleging (1) the trial court erred in denying a continuance to secure the presence of an alibi witness; (2) he is entitled to a new trial based on the prosecutor\u2019s reference to the absence of defendant\u2019s alibi witnesses; and (3) the court abused its discretion in allowing impeachment of defendant with his prior convictions.\nFollowing return of the information, the defendant filed an answer to the State\u2019s pretrial discovery order on October 20, 1993, indicating he would rely on an alibi defense and might call William Matthews and Randy Hines to testify as to his whereabouts at the time of the offense. On November 12, 1993, defendant issued a subpoena for William Matthews which had not been served by the time of trial on November 22, 1993, because Matthews could not be found. On that date, defendant filed a motion for a continuance, indicating Matthews had an outstanding arrest warrant on unrelated charges and he believed Matthews would be apprehended by the time the case was again set for trial. Defendant\u2019s counsel stated that he had interviewed Matthews, who would testify that \"the defendant was at [home] rather than at the scene of this shooting.\u201d The prosecutor stated that when Matthews had been identified as an alibi witness in October, the Decatur police had unsuccessfully attempted to locate him for an interview and there was no indication he would ever be available as a witness. The court denied the motion and the trial commenced.\nAt trial, William Broadnax, the owner of Mr. B\u2019s liquor store, testified that shortly before midnight on July 23, 1993, defendant came to his store and they got into an argument regarding employment. Broadnax had known the defendant since defendant was a child due to Broadnax\u2019 relationships with defendant\u2019s aunt and father. As defendant left the premises he threatened Broadnax that he was going to \"get something to blow the damned place up.\u201d Broadnax called the Decatur police but when an investigator arrived, defendant could not be located and the officer left.\nBroadnax testified that while he was totalling up the receipts, sometime before 2 a.m. on July 24, he heard a gunshot and looked out the drive-up window into the well-lit parking lot. He saw defendant with a long gun in his hands straddling the fence separating the parking lot from the adjacent residential area. He then saw defendant fire a second shot at the passenger side of Broadnax\u2019 red pickup truck, which was parked in the lot immediately across from the drive-up window. Defendant then climbed off the fence and fled. When Broadnax inspected his truck, he found two gunshot holes in the door and window.\nRandy Hines, who admitted a conviction for attempt (burglary) in 1987, testified on behalf of the defendant. He stated that in the early morning hours of July 24 he was visiting at defendant\u2019s house, which was just around the corner from Mr. B\u2019s. Shortly before 2 a.m., Hines drove to Mr. B\u2019s to purchase liquor. As he left the store\u2019s parking lot through the alley, he heard a shot and ducked down. After hearing a second shot, he looked and saw a lot of people lying on the ground in the parking lot, but he did not see the defendant. He returned to the defendant\u2019s residence and defendant was there.\nThe defendant testified that he had gotten into an argument with Broadnax at Mr. B\u2019s shortly after midnight on July 24, after which he returned to his home. He denied making any threats or ever returning to Mr. B\u2019s later that morning. He stated Mr. B\u2019s was less than a three-minute walk from his home, where he had been drinking and playing cards with friends. On direct examination, he identified those friends as \"Allen,\u201d \"Maurice,\u201d Randy Hayes and Hines. On cross-examination, he stated those present included Randy Hayes, \"Maurice or Torice,\u201d \"Clarence,\u201d and his stepfather, William Matthews.\nAt the instruction conference following the close of the State\u2019s case, the prosecutor indicated that he intended to impeach defendant with evidence of his prior convictions for aggravated battery and unlawful restraint should he testify. Defendant\u2019s counsel objected, stating that neither conviction impacted defendant\u2019s veracity and both were unduly prejudicial. Without analysis, the court held the prior convictions would be admitted and, following the close of both the State\u2019s and defendant\u2019s case, the judge informed the jury as to the nature of both convictions.\nDefendant first argues the trial court erred in denying his request for a continuance to secure the presence of Matthews as an alibi witness since he was diligent in attempting to secure his presence by issuing a subpoena as soon as the trial date was set and by disclosing Matthews\u2019 identity in sufficient time to secure his statement. The State points out that the Decatur police had unsuccessfully attempted to locate Matthews since October and, due to the outstanding arrest warrant, there was no indication Matthews would ever be available as a witness. Moreover, he still had not been located by the time of the hearing on post-trial motions, six weeks after trial. The State also notes that the offer of proof on Matthews\u2019 anticipated testimony failed to indicate whether Matthews was personally present with defendant at the time of the shooting and so lacks materiality for affording an alibi defense. During his trial testimony, defendant stated he had been at his home with four additional persons at the time of the shooting, any one of whom might have testified to the same purported defensive matters. See People v. Ladas (1957), 12 Ill. 2d 290, 296, 146 N.E.2d 57, 60.\nThe denial of a request for a continuance sought to secure the presence of a witness should be reviewed under the following factors: (1) whether defendant was diligent in attempting to secure the witness for trial; (2) whether defendant shows that the testimony was material and might affect the jury\u2019s verdict; and (3) whether the failure to grant the continuance would prejudice the defendant. (People v. Ward (1992), 154 Ill. 2d 272, 307, 609 N.E.2d 252, 266.) The granting or denial of such a motion lies in the sound discretion of the trial court. (People v. Cobb (1983), 97 Ill. 2d 465, 477, 455 N.E.2d 31, 36.) The denial of a motion for continuance is not an abuse of discretion where there is no reasonable expectation that the witness will be available in the foreseeable future. People v. Watts (1990), 195 Ill. App. 3d 899, 917, 552 N.E.2d 1048, 1060 (defendant given five days to locate a witness before trial and the court denied a continuance where there were clear indications she was unwilling to testify and had purposely absented herself from the jurisdiction).\nA reviewing court can sustain the decision of the trial court on any grounds called for by the record, regardless of whether the circuit court relied on those grounds. (Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 148, 478 N.E.2d 384, 389.) The facts support the trial court\u2019s denial of defendant\u2019s motion for a continuance. Matthews had not been apprehended from October through the post-trial hearing in late December 1993. Defendant did not subpoena any other of the witnesses who purportedly could have testified to defendant\u2019s whereabouts at the time of the offense nor did he provide the State access to them by revealing their full names or addresses. The trial court did not abuse its discretion in denying the motion.\nDefendant next argues he is entitled to a new trial because the prosecutor referred to the absence of his alibi witnesses. The State contends the issue is waived because defendant failed to object to the prosecutor\u2019s sole reference to the \"long list\u201d of alibi witnesses disclosed for the first time during defendant\u2019s direct testimony, and to the prosecutor\u2019s closing argument referring to that list of witnesses followed by the oblique statement \"Well, what happened?\u201d We agree with the State that the issue may be deemed waived (see People v. Cloutier (1993), 156 Ill. 2d 483, 507, 622 N.E.2d 774, 786); however, we find the statements did not constitute error.\nWhile it is improper for the State to comment unfavorably on the defendant\u2019s failure to produce a witness equally accessible to the State, where the witness has material alibi evidence more accessible to the defendant the State may properly comment on defendant\u2019s failure to call him. People v. Melton (1992), 232 Ill. App. 3d 858, 861, 596 N.E.2d 1246, 1249; see People v. Blakes (1976), 63 Ill. 2d 354, 358-60, 348 N.E.2d 170, 173-74 (it was not error for the prosecutor to cross-examine the defendant on the identity of patrons at a club where he professed to be at the time of the offense or to comment that the persons identified had not been called to testify).\nHere, the prosecutor never directly referred to the absence of Matthews (a witness potentially inaccessible to both parties) but merely to the \"long list\u201d of alibi witnesses defendant had referred to in his direct testimony. Since defendant referred to those witnesses by their first names only and disclosed neither an identifying address nor phone number, it must be presumed they were accessible only to him (see Melton, 232 Ill. App. 3d at 861, 596 N.E.2d at 1249), and the prosecutor\u2019s questions and comments did not constitute error.\nDefendant last contends the trial court improperly allowed impeachment of his testimony by the introduction of his prior convictions for aggravated battery and unlawful restraint, because both are violence-related crimes, rather than crimes impacting his veracity, and their admission increased the likelihood the jury -viewed the convictions as evidence of a propensity to commit crimes. Defendant contends such indiscriminate admission has been disapproved in People v. Williams (1994), 161 Ill. 2d 1, 641 N.E.2d 296 (prior conviction for voluntary manslaughter erroneously admitted at defendant\u2019s trial for murder).\nAs an initial matter, the State contends the issue is waived for defendant\u2019s failure to preserve it in his post-trial motion. (See Cloutier, 156 Ill. 2d at 507, 622 N.E.2d at 786.) However, due to the potential for unfairness, we elect to review the matter under, the plain error doctrine pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)).\nIn People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, the supreme court repudiated the then-prevailing practice which obligated the trial judge to admit evidence of all prior convictions for impeachment purposes, concluding instead that admission was discretionary if (1) the crime is punishable by death or imprisonment in excess of one year (a felony), or (2) the crime involved dishonesty or false statement regardless of the punishment, unless (3) in either case the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. (Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.) In Williams, the supreme court revisited the Montgomery rule in light of subsequent case law, criticizing an apparent \"regression toward allowing the State to introduce evidence of virtually all types of felony convictions for the purported reason of impeaching a testifying defendant\u201d (Williams, 161 Ill. 2d at 38-39, 641 N.E.2d at 311-12) and often summarily justified by the \"rationale that a felony of any type evinces a disrespect for societal order and thus adversely affects the defendant\u2019s veracity\u201d (Williams, 161 Ill. 2d at 39, 641 N.E.2d at 312). The Williams decision decried the \"mechanical application\u201d of this premise, emphasizing that the Montgomery focus was on crimes impacting the defendant\u2019s testimonial credibility.\nWhile dicta in Williams suggests that prior felonies unrelated to veracity must be relevant for some proper purpose other than impeachment, the court nevertheless reaffirmed the Montgomery principles (pursuant to which the first prong permits the use of any prior felony conviction for impeachment purposes), as the law to be applied in this State. (Williams, 161 Ill. 2d at 41, 641 N.E.2d at 313.) Since the genesis of the Montgomery rule arose in the context of impeachment evidence (see 725 ILCS 125/6 (West 1992); Williams, 161 Ill. 2d at 36, 641 N.E.2d at 310), it is unclear from the Williams analysis what other \"proper purpose\u201d there could be. While prior offenses are independently admissible where relevant for some purpose other than to show the defendant\u2019s propensity to commit crime, such as to prove modus operandi, criminal intent, identity, motive, or absence of mistake (see People v. Illgen (1991), 145 Ill. 2d 353, 364-65, 583 N.E.2d 515, 519), they may be admitted as substantive evidence.\nWe adhere to our previous interpretation of Williams expressed in People v. Maxwell (1995), 272 Ill. App. 3d 57, 62, 650 N.E.2d 298, 301, wherein we concluded the Williams court was expressing concern about the indiscriminate admission of all prior felonies for impeachment purposes absent application of the critical balancing test mandated by Montgomery. Here, since there is no evidence of record that the trial court weighed the probative value of the defendant\u2019s prior convictions against their prejudicial effect, it erred in admitting them as evidence for purposes of impeaching the defendant\u2019s credibility.\nNevertheless, even though we conclude admission of defendant\u2019s prior convictions was error, in light of the overwhelming evidence of defendant\u2019s guilt, we find the error was harmless. The defendant was well-known by the victim, who observed him in a brightly lit area and saw him fire the second shot into the victim\u2019s truck. Less than two hours prior to the incident, defendant had come to the victim\u2019s liquor store and threatened to blow the place up. Defendant\u2019s witness failed to provide an alibi, since he stated only that he did not see defendant at the liquor store after the shots were fired and that defendant was at his residence, located a half block from the scene of the offense, when the witness returned.\nAccordingly, the judgment of the circuit court is affirmed.\nAffirmed.\nENECHT, P.J., concurs.", "type": "majority", "author": "JUSTICE McCULLOUGH" }, { "text": "JUSTICE STEIGMANN,\nspecially concurring:\nI agree with the decision to affirm but write separately on the issue of defendant\u2019s impeachment by his prior convictions for three reasons: (1) defendant waived this issue, and the admission of defendant\u2019s prior convictions for impeachment does not constitute plain error; (2) the trial court could have \u2014 and should have \u2014 avoided the error the majority found by handling defendant\u2019s prior convictions differently, and more appropriately; and (3) I disagree with the majority\u2019s reading of Williams and reject defendant\u2019s argument on the merits.\nI. NO PLAIN ERROR\nThis court should take the supreme court at its word: plain error exists only in exceptional circumstances in which a true injustice may have resulted, or as recently stated, when \" 'the error is of such magnitude that the commission thereof denies the accused a fair and impartial trial.\u2019 \u201d (People v. Robinson (1995), 167 Ill. 2d 53, 67, quoting People v. Young (1989), 128 Ill. 2d 1, 47, 538 N.E.2d 461, 471.) Plain error is not a \"catchall\u201d to be used \u2014 as defense counsel increasingly use it on appeal \u2014 for any claim of error that counsel can possibly find when combing the record. Nor should this court find plain error, as the majority does, merely \"due to the potential for unfairness\u201d (276 Ill. App. 3d at 206). See Robinson, 167 Ill. 2d at 67.\nII. THE \"MERE FACT\u201d APPROACH TO IMPEACHMENT BY PRIOR CONVICTION\nThe trial court could have avoided any error. Almost six years ago, the specially concurring opinion in People v. Kunze (1990), 193 Ill. App. 3d 708, 728-36, 550 N.E.2d 284, 297-303 (Steigmann, J\u201e specially concurring), described, in detail, a procedure that trial courts, in their discretion, could use for handling prior convictions for impeachment purposes that would inform the jury only of the \"mere fact\u201d that the defendant was a convicted felon, not of the specific offense of which he was convicted. (Kunze, 193 Ill. App. 3d at 736, 550 N.E.2d at 303 (Steigmann, J., specially concurring); see also People v. Taber (1995); 271 Ill. App. 3d 576, 580, 648 N.E.2d 342, 344-45 (wherein a panel of this court directed the \"mere fact\u201d approach be used on retrial).) Trial courts have increasingly used the \"mere fact\u201d method of impeachment and no court of review has ever found error when a trial court has done so.\nRegrettably, the trial court here did not use the \"mere fact\u201d method, instead permitting the jury to learn that defendant, charged with armed violence, had previously been convicted of two other crimes of violence, aggravated battery and unlawful restraint. By doing so, the trial court maximized the potential prejudice to defendant.\nThe \"mere fact\u201d method is not inconsistent with the concerns expressed in Williams about the need for trial courts to engage in the Montgomery balancing test. As stated in the special concurrence in Kunze, the \"mere fact\u201d method should be utilized only when the trial court has already determined such evidence is admissible under Montgomery. Kunze, 193 Ill. App. 3d at 731, 550 N.E.2d at 299 (Steigmann, J., specially concurring).\nIII. POST-WILLIAMS IMPEACHMENT OF TESTIFYING DEFENDANTS\nA. Williams'. Analysis in Context\nIn Williams, the supreme court criticized the indiscriminate admission of prior felonies for impeachment purposes. The precedential scope of a decision is, of course, limited to the facts before the court. (People v. Flatt (1980), 82 Ill. 2d 250, 261, 412 N.E.2d 509, 515.) Bearing this precept in mind, I note the argument the supreme court faced in Williams'.\n\"Defendant asserts that, in violation of the rule announced in [Montgomery], the trial court [(1)] not only failed to weigh the prejudicial effect against the probative value of the evidence but, [(2)] in fact, admitted it for the very purpose that prior convictions may not be admitted, i.e., to show defendant\u2019s propensity for violent criminal behavior.\u201d Williams, 161 Ill. 2d at 33-34, 641 N.E.2d at 309.\nThe court reviewed the origin and rationale of the Montgomery rule, disapproved its increasingly mechanical application, and then in the case before it (a direct appeal in a death case), noted the trial court\u2019s remarks: \" 'it\u2019s of great probative value in a case of this nature,\u2019 \u201d and \" 'it[\u2019]s highly probative of the nature of the offense\u2019 \u201d (Williams, 161 Ill. 2d at 40, 641 N.E.2d at 312). These remarks revealed that the trial court admitted defendant\u2019s 1983 voluntary manslaughter conviction for an improper purpose, namely, as relevant to defendant\u2019s guilt of the 1987 murder for which he was on trial, rather than his credibility. (Williams, 161 Ill. 2d at 40-41, 641 N.E.2d at 312-13.) However, although the court found error, it did not reverse because evidence of defendant\u2019s guilt was so overwhelming that admission of the prior conviction could not have been a material factor in the verdict.\nB. Montgomery Balancing: What\u2019s a Court To Do After Williams?\nThe court\u2019s language and approach in Williams have become the subject of disagreement between panels and districts of the appellate court. In People v. Fomond (1995), 273 Ill. App. 3d 1053, 1068, 652 N.E.2d 1322, 1332, a first district panel construed Williams narrowly, \"as holding that a judge may not admit past felonies for the purpose of showing a defendant\u2019s propensity to commit a crime.\u201d In People v. Elliot (1995), 274 Ill. App. 3d 901, 909-10, 654 N.E.2d 636, 646-47, Justice Wolfson outlines the split of authority, including the third district (Housh v. Bowers (1995), 271 Ill. App. 3d 1004, 1006-08, 649 N.E.2d 505, 506-07 (reversible error in denying motion in limine and permitting use of prior drug conviction against personal injury plaintiff)). The Elliot court read Williams much more expansively than did the Fomond panel, stating Williams established at least three requirements, with the first being the following:\n\"First, the prior conviction must bear on the defendant\u2019s truthfulness as a witness. Crimes involving deceit, fraud, cheating, or stealing press heavily on the probative value side of the scale. Crimes of violence, on the other hand, ' \"generally have little or no direct bearing on honesty and veracity.\u201d \u2019 (Williams, 161 Ill. 2d at 37, quoting Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936, 940.) That is, if the trial court determines the prior conviction is a pure act of violence, and has no element of dishonest conduct, it should not be placed on the scale at all.\u201d (Emphasis added.) Elliot, 274 Ill. App. 3d at 908-09, 654 N.E.2d at 642.\nIn Maxwell, this court read Williams far differently than the Elliot court, stating:\n\"From our examination of Williams, we conclude the Supreme Court of Illinois was not abandoning the well-settled interpretation given Montgomery, which provides in the first prong that all felonies may be used for impeachment, and in the second prong allows nonfelonies to be used for impeachment if they relate to truth or veracity. Both the first and second prongs are subject to the third prong, which provides for a determination that the impeaching offense has a probative'value not substantially outweighed by its prejudicial effect. *** *** Williams also warns that close attention should be given to whether prior felonies actually have the ability to impeach veracity \u2014 and this should be done when determining whether the probative value is outweighed by the prejudicial effect.\u201d (Emphasis added.) Maxwell, 272 Ill. App. 3d at 62, 650 N.E.2d at 301-02.\nAs this discussion demonstrates, uncertainty abounds in the appellate and trial courts regarding the message of Williams. Because this issue of impeachment by prior conviction arises in a large percentage of all felony trials, clarification of Williams is needed on two distinct points.\n1. Is the First Prong of Montgomery Still Valid?\nIn the 24 years since Montgomery, trial, courts have permitted impeachment by prior conviction in thousands of cases when those convictions did not directly reflect the defendant\u2019s \"dishonesty or false statement\u201d \u2014 the \"second prong\u201d of Montgomery \u2014 as would, for example, convictions for perjury and deceptive practices. Note that Montgomery identified two separate bases \u2014 or \"prongs\u201d \u2014 for possible admission of a prior conviction to impeach a testifying defendant: (1) the crime was punishable by death or imprisonment in excess of one year, or (2) the crime involved dishonesty or false statement regardless of the punishment. (Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.) Did the supreme court in Williams really mean to render all \"first prong\u201d prior convictions \u2014 such as for felony drug offenses and crimes of violence \u2014 henceforth unusable per se to impeach a testifying defendant? Such a ruling would be a dramatic change in Elinois law, and surely the supreme court would state it emphatically and clearly. Williams did not do so.\nAt issue in Williams was the use of the defendant\u2019s conviction for voluntary manslaughter at his trial for first degree murder. Although the supreme court held that \"[ujnder the rationale of Montgomery, evidence of defendant\u2019s conviction of voluntary manslaughter should not have been admitted at trial,\u201d the court also stated: \"We do not hold that there are no circumstances under which a voluntary manslaughter conviction may be admitted at a murder trial.\u201d Williams, 161 Ill. 2d at 41, 641 N.E.2d at 313.\nIn context, the supreme court seems to be saying there are some circumstances under which a voluntary manslaughter conviction may be admitted at a murder trial to impeach the testifying defendant. If the court was considering some context other than Montgomery for admitting a defendant\u2019s voluntary manslaughter conviction at his murder trial (and I can think of none), then the placement of that sentence in the middle of a Montgomery discussion is peculiar. On the other hand, if the court was speaking in a Montgomery context and specifically rejecting the argument that there are no circumstances under which a voluntary manslaughter conviction may be admitted at a murder trial to impeach defendant, that observation appears inconsistent with everything the court said previously in its analysis of Montgomery. In other words, if trial courts should focus solely upon felony convictions involving \"dishonesty or false statement\u201d because only such second-prong convictions \"bear upon the defendant\u2019s truthfulness as a witness\u201d (Williams, 161 Ill. 2d at 39, 641 N.E.2d at 312), then how could a voluntary manslaughter conviction possibly be either?\n2. What Is the Rationale for Permitting Impeachment of a Defendant by Prior Conviction?\nThe Williams court also seems to disapprove of the rationale that felony convictions evince a disrespect for societal order and thus adversely affect the defendant\u2019s veracity. In People v. Medreno (1981), 99 Ill. App. 3d 449, 453, 425 N.E.2d 588, 591, then-appellate Justice Heiple specifically rejected a first district decision (People v. Siebert (1979), 72 Ill. App. 3d 895, 390 N.E.2d 1322) that required a prior conviction, even for a felony offense, to bear a direct relationship to the honesty of the witness (the \"second prong\u201d of the Montgomery criteria). The Medreno court cited approvingly a decision of this court which held that a defendant\u2019s prior rape conviction was probative of his likelihood to commit perjury because a serious felony conviction \"evinces a disrespect for societal order and thus adversely affects his veracity.\u201d Medreno, 99 Ill. App. 3d at 452, 425 N.E.2d at 591, citing People v. Warfel (1979), 67 Ill. App. 3d 620, 385 N.E.2d 175.\nThe rationale for impeachment by prior conviction was also discussed in the concurring opinion in Kunze:\n\"Another way of looking at this issue is to view it as one of expectations. A jury may reasonably expect that a person who takes the witness stand and is sworn to tell the truth will feel moral and societal pressures to do so. Telling a jury that a witness has a prior felony conviction informs the jury that on some occasion in the past, this witness has seriously violated societal (and probably moral) rules, thereby permitting the jury to infer, if it so chooses, that this witness may feel fewer moral and societal pressures to tell the truth than would be felt by a witness who has no prior felony conviction. If the jurors draw this inference, they may use it along with all the other evidence in the case as they evaluate the credibility of that witness. In sum, a convicted felon may be less worthy of belief solely because of that felony conviction than a witness who is not a convicted felon.\u201d (Emphasis in original.) (Kunze, 193 Ill. App. 3d at 735, 550 N.E.2d at 302 (Steigmann, J., specially concurring).)\n(See also People v. Armstrong (1995), 275 Ill. App. 3d 503, 507, 655 N.E.2d 1203, 1206.) The Kunze special concurrence also quoted from Campbell v. Greer (7th Cir. 1987), 831 F.2d 700, 707, in which the Seventh Circuit discussed the rationale underlying impeachment by prior conviction:\n\"Rule 609 and the common law tradition out of which it evolved rest on the common-sense proposition that a person who has flouted society\u2019s most fundamental norms, as embodied in its felony statutes, is less likely than other members of society to be deterred from lying under oath in a trial by the solemnity of the oath, the (minuscule) danger of prosecution for perjury, or internalized ethical norms against lying. If so, this is something a jury should be permitted to take into account in evaluating a witness\u2019s believability.\u201d\nIf the supreme court were to reject a principle of law \u2014 namely, the mere possibility that a defendant\u2019s prior \"first prong\u201d felony conviction could be used to impeach him if he testifies at trial\u2014 which has for decades been part of the fabric of this State\u2019s law, then again not only would it do so clearly and explicitly, but surely it would provide an explanation for why it repudiates the \"common law tradition\u201d and the \"common-sense proposition\u201d (in the Seventh Circuit\u2019s words) upon which this long-standing legal doctrine rests.\nC. Application of Montgomery to the Present Case\nDefense counsel suggested at the instruction conference that the court and counsel go through the Montgomery process. The prosecutor then advised the court of defendant\u2019s prior convictions and that he would tender authenticated copies of his convictions. Defense counsel argued that the offenses did not involve veracity, truth, or moral turpitude and asked the court to exclude both convictions, but if they were found admissible, to advise the jury of only one. In response, the prosecutor argued that the probative value was not so outweighed by the danger of unfair prejudice and asked that both convictions be admitted. The court ruled that if defendant testified, the exhibits would be admitted.\nThe crux of this case was the credibility of the complaining witness versus that of defendant and his alibi witness, another convicted felon. In closing argument, the prosecutor emphasized these prior convictions as important factors to use when the jury assessed the believability of the witnesses.\nA trial judge\u2019s remarks should be taken in context, including the context of the arguments of counsel. (People v. Ward (1986), 113 Ill. 2d 516, 526-27, 499 N.E.2d 422, 425-26.) We generally do not assume the trial judge failed to engage in the proper analysis simply from a lack of his recitation of particular words. In fact, the supreme court rejected an argument that the trial court did not perform the requisite balancing test where counsel argued it and the trial court merely said it understood the appropriate test and ruled that all the convictions could be introduced. People v. McKibbins (1983), 96 Ill. 2d 176, 188, 449 N.E.2d 821, 826.\nHere, the Montgomery balancing test was invoked and no one suggests the trial court expressly stated the prior convictions would be admitted for any legally improper reason. Thus, the record shows no error. The prosecutor\u2019s argument that defendant\u2019s prior convictions affected his believability came within the scope of permissible argument. Further, the prosecutor said not one word about the nature of the convictions of defendant and his alibi witness, focusing solely on their effect on the witnesses\u2019 believability relative to that of the victim. We also note that the court correctly instructed the jury with Illinois Pattern Jury Instructions, Criminal, Nos. 3.12 (impeachment of a witness by a prior conviction) and 3.13 (impeachment of a defendant by previous convictions) (3d ed. 1992).\nReviewing courts ought not presume error by the trial court from a lack of \"magic words.\u201d Williams does not require a contrary result; nor does it mean that the State cannot impeach a testifying defendant with prior felony convictions other than those going directly to truth and veracity.", "type": "concurrence", "author": "JUSTICE STEIGMANN," } ], "attorneys": [ "Daniel D. Yuhas and Donald J. Casper, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Lawrence R. Fichter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC BRAMLETT, Defendant-Appellant.\nFourth District\nNo. 4\u201494\u20140149\nOpinion filed November 30, 1995.\nSTEIGMANN, J., specially concurring.\nDaniel D. Yuhas and Donald J. Casper, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nLawrence R. Fichter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0201-01", "first_page_order": 221, "last_page_order": 234 }