ok the first case center call this morning is agenda number six please number one zero four zero zero i'm sorry one zero four zero seven seven one four four four five people of the state of illinois versus robert patrick at all it's my intention i'm sarah curry from the office of the state of poet defender i represent robert patrick my intention is to take the first ten minutes and talk about issues pertaining to mr patrick's case and then turn the argument over to mr gentry who will be talking about m prior to trial and again prior to taking the stand robert patrick  regarding prior convictions until after the defendant has testified judge facts stated quote i do not give advisory opinions if patrick testifies and i determine after he testifies that the prior convictions are admissible the state can introduce them via certified copies i don't make exceptions for anybody that includes robert patrick or anybody else patrick was then forced to decide whether or not to testify on his own behalf without knowing whether or not the state would be able to introduce his prior convictions to impeach its credibility patrick did decide to testify in following his testimony judge sachs ruled that the state would be able to introduce three out of his five prior convictions judge that's blank refusal to rule on motions in limine a regarding the admissibility of prior convictions is a roni and not only is such a role directly at odds with this court's decision in montgomery it negatively and unnecessarily impacts the defendant's decision whether or not to exercise his right to testify a defendant has a right to testify it is fundamental in fact this court has held that the decision whether or not to of such importance that while usually made after consultation with counsel the ultimate decision belongs to the defendant alone certainly knowing whether testimony will be impeached with a prior conviction in the it is a significant the court bound by that ruling throughout the course of the trial certainly not motions in limine they are motions made prior to the introduction of evidence that's what they are by definition and if the case unfolds in a way that is different than the way it was presented up until the ruling on the motion then certainly a judge has the he may change his ruling once the evidence is actually introduced it does not find out until the evidence is actually introduced throughout  the course of the trial so it in your case if the judge should grant of the motion in limine a tube or some prior convictions the judge could later change that decision certainly with i mean there would have to be a reason for the change in ruling but yes the judge could change his mind if the trial progressed in a way differently than was presented at the time of the motion eliminate would the defendant not be prejudiced more greatly by that scenario not ruling a well certainly the there would have to be a good reason for the change in ruling so that would you know it would depend on what the reason for the change in ruling would be but assuming that there is not going to be a change in ruling if the evidence progresses the trial proceeds in the way that everyone has portrayed it and he at least will have been able to make a decision whether or not to testify with a better understanding of whether his prior convictions will be introduced against him or not least the defined would have some understanding that they could and that would be more knowledge in deciding whether or not to exercise his right to testify then having no knowledge at that point and it's unlikely situation that the state's not going to introduce the prior convictions that the court has said are admissible i don't believe i've ever seen a case where that's happened and certainly then the defendant at least knows that it's possible and he has more knowledge in deciding whether or not to testify then had the judge not ruled on the motion at all because doesn't the defendant know going in doesn't you know his own party or convictions on this and you know what his testimony is going to be silly he has all the information at hand so does the judge and that's why the motion should there's no reason not to rule on the motion before he testifies yes i mean as in this case there were the state was seeking to introduce five of pat patrick's prior convictions one for  motivic motor vehicle and four for possession of controlled substance patrick didn't know which how many of these prior convictions might be and method by the court and as it turned out it was only three but the risk of having the jury hear about a possession of a soul motor of the vehicle conviction is is very great and since there is this balancing to be done the defendant can match does not know for sure whether or not the prior convictions will be not have testified at the motion in limine in progress i think we do she renewed his motion just prior to taking the stand which certainly signifies the importance that whether his convictions would come in or not it's was playing in this decision whether or not to testify on his own behalf right up until the very moment that he took the stand they said the defense was asking the judge please rule on this motion please let us know whether these convictions will come in so yes role of evidence six o nine to be used as a guide for illinois trial courts when deciding whether a defendant's prior conviction should be admitted this court quoted approvingly from the advisory committee of the six rules six zero nine advisory committee which said quote there may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the different story than by the defendants foregoing that opportunity because of the fear of prejudice founded upon a prior conviction thus according to montgomery the most important factor for a trial court to consider is whether the finance testimony is so important to the trial that it's not worth risking the possibility that the defendant will choose not to testify by admitting the prior convictions against him the consideration of this factor presupposes that the balancing is defense and therefore his testimony was not critical to his claim of self defense it was important but this makes the this makes the delay in ruling the refusal to rule that much more  agree just because his state of mind was certainly at issue as he was arguing self defense and so his testimony was important however it's also was important that the jury believe his testimony and therefore knowing whether he's going to be impeached with  matter is a great way to be i think they put the great weight of already would i would say the great weight of authority says that absent very very unusual rare circumstances that the judge should rule in advance here we have a blanket refusal this is this is not a case where the for some reason for some reason specific to the facts of this case judge saxton say you know what i'm really torn i can't decide i really need to hear the defendant's testimony before i can rule on these five prior convictions he didn't say anything like that in every single case every defendant who walks into judge saxes courtroom cannot get a ruling on a motion in limine and this is it's unfair simply put that it's luck of the draw which courtroom you assigned to whether you will know whether your prior convictions are coming in or well you won't know if you end up with judge facts you're not going to get a ruling if you end up with most of the other judges you probably well this case is far outside of  any discretionary situation that a judge might have in deciding whether or not to rule he judged x plane has a blank a refusal to rule in all cases and that cannot be upheld under the mandates of my comrie which says that it is necessary for the judge to consider the importance of the defendant's testimony in deciding whether or not to allow the prior convictions to come in that factor to be considered has to be considered before the defendant is testif said he said that i don't make exceptions for i mean i've anybody this is what i do in every single case moreover there is no reason to and every reason that we would like we want to rule in favor of you on your case it would be limited to the facts of your case you may rule on in favor of my case limited to the fact want me to but it's and it's significant because you it is your case is that this is the case it's going to destroy all the cases in which the defendant testifies this is going to be the case that the sides in this whether or not the judge has to demonstrate he has discretion to make the ruling correct is a different kind of a different issue it is i it's an easier issue if you if you think of it a judge shouldn't be able to up have a blanket refusal to not consider the monk amerie factors prior to the defendant testifying on cases it simply flies in the face of montgomery there is no reason to delay a ruling and every reason to rule in advance by ruling in advance the defendant will be for a ride with the critical information necessary to decide whether or not to exercise his right to testify by ruling in advance the defense will be able to present the defendant in opening statement in an accurate light and  disclose the prior convictions a strategy that has been approved of by this court and the court as i said has all of the information necessary and if he feels or she feels that they don't have all of the information necessary certainly they good morning steve in general represent as eco philips there was no legitimate reason for the trial court in mr phillips case to refuse on his pretest money a motion to bar the use of his prior convictions as impeachment of his credibility generally here we have a situation where the judge did not rule and again as i said for no legitimate reason can i follow up and justice watson who wrote i think wrote the opinion here majority opinion here talked about the great weight of authority the other issue is the prejudicing of the defendant's very decision of whether or not to take the stand perhaps the most one of the most important decisions the defendant has a decision that this court has held is the defendant and the defendant's alone to make and what when the judge refuses to rule in the side of the situation the defendant is put in a horrible position because on the one hand the defendant can choose to remain silent and run the huge risk that the jury is going t guilt from that silence on the other hand the defendant can take the stand and and risk again having his case sunk by the admission into evidence of prior crimes that the jury could and might very well said that he wanted to hear mr felt's testify before making that decision but really there was nothing that his testimony could have provided the court that the court would have needed to make the decision it was very the  put in front of the jury was was obvious similarly the importance of mr phillips testimony to the discovery of truth at issue in the case could not have been more significant either then after your client testified changed his mind and the judge do that then allowed the prior convictions to come in for impeachment if there were something to happen during the course of the trial prejudicial to your client if he were if he was relying on the judge's ruling that the priors would not come in the lex to testify and then the priors come in wouldn't that be more prejudicial under your based on your argument it would be number one the issue wouldn't be preserved for appeal number two other clients decision making would that the defendant's choice as to whether or not to testify would not  d not be impacted because the defendant would know given what the court knew at that time that that the priors were would not come in and could use that in making the decision to testify if that were to change later there would be a reason for it and certainly if the if the defendant's testimony veered wildly from from what was expected that would that would be such a reason but i don't anticipate that this would would happen with any frequency and in fact i cannot think of a single example of how to how that would happen but would your client if your client is relying on the judge's ruling on the motion and lemony granting the motion and  trial court changing the ruling it does build the possibility of error in changing the ruling and certainly whatever is on the record prior to the change in the ruling would be of assistance to courts of review in determining whether that changes warranted now where where the where the where the ruling is made  where the ruling is not made there's the end and the defendant is does not testify on account of the cloud of uncertainty over the value of this testimony this  also in your case then the judge excluded least one of the prior the judge excluded one on the basis that it was time barred but did not conduct the my gum or any balancing test of the danger of unfair prejudice what point did the trial judge make that ruling the judge apparently made a ruling before trial it's not in a reported however just after the the defense witnesses had testified to the facts which which gave the court a clear understanding of what the defendant would testify to that he was attacked with a two by four before he stabbed the complainant the defendant then renewed the motion philip's conviction and sentence criminal defendants do not have a constitutional right to know prior to test firing whether or not their prior convictions can be used against them in the instant case is the trial court's proper exercise of discretion not impinge on any constitutional rights the risk of impeachment is a risk that every defendant must weigh in deciding whether or not to testify as the united states permitted to have a better defense or decide to testify that you think is the court's duty to these articulate some reason instead of having a blanket rewrite the the trial court has no duty to  make the defendant's trial strategy more convenient or to even lift the burden off the fan than a trial court has the discretion to grant or tonight or to refuse ruling on a motion let me off together a motion in limi a's are inherently advisory pinions third designed to assist trial strategy but this one the defendant's decision to testify isn't that a different kind of motion whether decision to testify or it would be speculative your honor to assume that the trial court's ruling on emotionally many would be the only or even the most important factor in the defendant's decision to testify one can speculate that in patrick acted in self defense but this defense witness admitted that she was a drug user that she was i'm drugs at the time she witnessed the incident one can speculate that mr patrick had to testify notwithstanding the motion and l judge normally has the experience to make these determinations of a trial judge feels that i did defendant's testimony is is a relevant factual consideration in making that determination to trial courts should have that discretion the law in that the judge in the patrick case had a blanket policy never not ruling on these yes the record indicates pretty clearly that judge saks does have a policy of not making but that is consistent with a trial judge's discretion a trial judge as i mentioned earlier i have instruction to refuse ruling on women a motion i judge sachs has this policy based on his experience in other cases it is an exercise discretion his policy not to make advisory opinions is based on his own experiences the trial judge that is by no means an abuse of discretion a violation of the rights of mr kim to leave on an abuse of discretion is the exercise of discretion to be done before the motions even filed i mean in effect if he has a blanket advisory opinions because motion when he sent his a paper a factual context they anticipate the adventure issue because before has become right judge sachs may have a policy and yes defendants in his court may understand that the judge will not be rolling  only motion but that does not mean at all that the defense that the judge when the adventure issue becomes right when the state seeks to introduce evidence would rule one way or the other that determination i'm certain that the trial court would make it given correct factual context of back case but in the cases that look at an abuse of discretion to those cases and i look at the various factors that way and to justify whether there is an abuse or not  discretion in other words do you not have to look at the facts in a particular case as it's presented certainly certain motion when they may require a fad but i so far as i can recall big cases do not are trying to maintain this facade of a constitutional right to know of this information that certainly is not the case but the defendants are actually arguing here is that due to that the trial court abuse its discretion because the trial court's exercise of discretion burden their trial strategy and that is certainly not in the use of discretion counsel of if i may i think the position of the defense was and i like them to correct me if i'm wrong is that the reason that there was there was an abuse of discretion is that there was no discretion exercise and when there's no discretion exercise there's there there can't be it has to be an abuse of discretion because there is no discretion and i think that's the argument in the case where the judge announces as the judge did here that he doesn't grant motions in limine then i'm going to do the i think he went beyond it and said i items put it another way did he make an independent judgment in this case to you to not rule on the motion limiting the record reflects that he has a blanket policy your honor so i am not certain if he the record is silent as to the judge claims in their briefs the standard review is not at the novo standard i don't know review is only appropriate if the trial court completely misapplied the relevant standards of law and that certainly did not happen in these cases in both cases the trial courts i correctly state at the purpose of an eliminate motion it is important to draw distinctions between the unlimited motion and the adventure issue with anticipates a motions in limine are right for consideration when the trial court chooses to entertain the motion and as as i ripe when the proponent the evidence seeks to introduce the evidence in question as such a trial court possesses the discretion to change its initial in the ruling particularly if the facts of the case have been told in the way substantially different from what was anticipated a trial court is only opportunity to to apprise the jury of this on their own the only thing a deferred ruling dies in heard in reference to that session is that it makes it harder it's a burden on the trial strategy just because convictions once the factual context has become clear once the prosecution has maybe believed that it would be better not to introduce this evidence the fact is this information that the defendants seek the issue is front the prior convictions is maybe a little harder to make without them when the ruling but certainly isn't a foregone conclusion mr you know we discourage trial by ambush encourage discovery so th decision by defense counsel would be easier to make however the defense counsel nor did the friend in this entitle to the information the trial court is it is by no means required to make their trial strategy any  easier as a final note defendant's claims both defendants claims are purely speculative as many courts have recognized including the supreme court in loose versus united states the first district in many cases people versus men and others fourth district and people versus own ballad most recently people versus de berry the decision to testify seldom turns on the resolution of any one factor i review in court cannot assume that an adverse ruling  or on the fan this decision whether or not to testify as i mentioned earlier it be speculation to to guess as to what factors were to rank which factors were more important one side to find this decision whether or not to testify i'm  defending phillips case we have the additional problem of addressing harmless error because the defendant cannot testify the loose court observe that without a defendant's testimony it is impossible to conduct the harmless error analysis it would be against another it's again  of speculation and speculation as to how to defend would testify that speculation as to how the court would have ruled on the motion and speculation as to whether or not the prosecution would have even sought to introduce that evidence but shriners worthy  time if he says the magic words before each case if he says i'm exercising my discretion because in these type of cases i feel that it is prudent to hear the defendants as bored wait till the defendant rest make the ruling that it's ok we're he's actually saying he's exercising his discretion made his discretion go further than case by case this discretion go well in all these cases i feel it is all we what does it look like i mean would circumstances of the specific case i don't think it's an it's not an exercise of discretion if you're not looking at the case at hand that is not an exercise of discretion that's a blanket rule never to roll the rule that the rule that could be formulated would be that only in the way arrest of circumstances would there be a reason not to not to rule in advance as or as i said that it's court has all of the information and it's an important it's  important burden on the defendant's right to testify that these are the two things that the state overlooks this isn't just a motion in limine a regarding you know a little bit of evidence this is a motion in limine and that the refusal to rule on implicates and burdens his constitutional right to decide whether or not to testify on his own behalf that's a pretty significant right and burden but not  state produce the prior conviction is any more prejudiced because he thought he was going to be able to testify i mean that's why it's an exercise in this earth he may or may not be more prejudiced but that's a different issue the the point is at the time of the motion in limine i the judge has all of the information there would have to be some very unusual thing to happen throughout the course of the rest of the trial that would cause the judge to change to have a valid reason to change his ruling and at that point if you know if that was the defendant's testimony or something that was done by defendant that forced the court to change its ruling then that's the defendant's problem but at least he was able to make that decision whether or not to testify with the information about whether spare convictions were going to come in whether the court based on the information that it had at the time of the motion and let me believed that the convictions could should come in and there is no reason there's nothing that the court does not have no information that the court doesn't have or can't get by asking for an offer of proof the state doesn't even point out what information possibly could the court might need to in order to wait for the defendant testimony ask for an offer what is the difference testimony going to be if the defendant's testimony changes then certainly the court can change its ruling but there is nothing else and the importance of this information on the defendant's decision whether or not to testify  significant it's just there's no reason for it and a blanket ruling certainly doesn't take into account any of this it's a it's a way to get out of ruling on it until the end of the case and maybe you won't have to at that point or or for trial in advance of the defendant's testimony at least so it wouldn't be necessarily abuse of discretion if the judge says i want to hear the testimony and then and then if the defendant determines is going to testif what i would say so i'm trying to get at what's what's the rule that you think this court should adopt that absent a rare and unusual circumstances the trial court should rule on the motion in limine a at the time that it's presented to the court at that point the judge has all the information necessary to rule and the defendant can then decide whether or not to testify with of the significant information at hand there's nothing speculative about the damage that a trial court's refusal to rule on a motion to bark prior convictions for impeachment there's nothing special about the harm that that does to a defendant's decision making process as to whether or not to testify that it's just good policy for the trial court to make an advance ruling and it benefits not only defense the defense but also the prosecution in preparation for its case allowing the court and the base is no basis whatsoever to defer ruling when all of the montgomery factors are known to the court  simply puts some defendants were unlucky enough to be put in front of such a judge at a horrible disadvantage over other defendants  likewise to use the fact that a defendant has not testified as a basis for denying relief to a defendant whose decision to testify has been burdened in such a manner is simply unfair