Docket N os. 104077 , 104445 c ons.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

TH E PEOPLE

OF THE ST

ATE OF I

LLINO IS, Ap

pelle e, v

. ROBERT PATRICK, Appellant.–THE PEOPLE OF TH E STATE OF ILLINO IS, Ap

pellee, v. EZEK

IEL PHIL LI PS, Appella

nt.

Opinion filed January 23, 2009.

JUSTICE KILBR ID E de livered

the judg ment of the

court, with opinion. Chief Just i ce Fitzgerald and Justices Thomas, Garman, and Karmeier concurred in the judg ment and opinion. Justice Burke concurred in part and dissent e d in part, with opinion, joined by Justice Freeman.

OPINION

In these consolidate d appea ls, we co nsider whether a trial cour t may defer ruling on a motion in limine to exclude a defendant’s prior convictions from use as impeachment until after a defenda nt’s testim on y. On appeal, Patrick c laimed tha t the tria l court e rred in delaying it s ruling on his motion in limine and that the jury instructions were e

rroneou s. The appe llate court held that Patrick was notprejudic ed by

the trial court’s delay in ruling on his moti on in limine and that the jury instructions wer e proper. No

. 1–04–1895 (unpublished order under Supreme Court Rule 23).-2- Ina separate appeal, defenda ntPhillips argued that the trial court erred in delaying

its ruling on his motion in limine and that he was not given proper in absenti

a admonishments. In Phillips , t h e appell ate court found the trial court

abused its discretion in refusing to rule on the admissibility of

prior convictions un ti l a ft er Ph il li ps ’ t es ti mo ny, butdecline d furthe

r revie w of the e

rror be cause Ph

ill ips di d not testify. 371 Ill. App. 3d 948. We granted defendants leave to a ppeal (210 Ill. 2d R. 315) and consolidated

the c ases . We now reverse Patrick and remand for a new trial, and remand Phillips to the app ellate c ourt.

I. BACKGROUND A. Robert Patrick Pa tric k was cha rged b y in

dictment w

ith multiple

counts of first degreemurder ( 720 I LCS 5/9–1(a)(1), (a)(2) (West 2000)), attempted first degree murder ( 7 20 IL CS 5/8–4, 9–1 (West 2000)), and aggravated

discharge of a firear

m (720 IL CS 5/24–1.2( a)(2) ( West 2000)). P atrick w as only

tried on the first de gree m urder c ounts. Before trial, Patrick filed a motion in limine seeking to bar the State fromintroduc ing evid ence of his prior convictions for purposes of impeachment. The trial judge refused to rule on the motion in limine prior to defendant

testifying, stating

he does not give advisory opinions. Before Pa tr ic k’ s t es ti mo ny, defense counselagain requested the judge rule on the motion in limine to bar the State’s use of Patrick’s prior convictions, butthe trial judge refused to make th e ruling

until after Patrick’s testimony. The trial judg e stated his procedure was not to make such rulings until after the defendant’s te stimony. The trial ju dge further stated: “I do this [in] every single case. I

do not giv e advisory opini ons. * ** I don’t make an exception for a nybody .” Pa trickt estified, and his testimony was impeac hed with three prior convictions for possession of a controlled substance. At trial, the court g ave the j ury

defenda nt’s t en dered I

llinois Pattern Jur

y I nstructions, Crimina

l, Nos. 7.06X and No. 26.01I (4th ed. 2000) (hereinafter I

PI Criminal 4th), the instructions used for first degreemurder, second degree murde r, and involuntary manslaug hter. The instructions direct a

jury that it must acqu

it the def endant of first1 Phillips apparently earlier fileda motion in limine , and t he trial court refused to rule on i t, but the motion and order were no t included in the record.

-3- degreemurder before it may consider the lesse r-included

offense of involuntary

manslaughter. Patrick did not object to these instructions at trial and did not ra

ise the iss ue in his po sttr ial motio n. The jury found Patrick guilty of

second degree murder. Ondirect appeal, Patri ck argue d that the trial cou rt erre d in refusingto rule on his motion in limine seeking to bar the State from

u sing his prior convictions for impeachment until after Patrick’s testi mony a nd that IPI

Criminal 4th Nos. 7.06X and 26.01I were
errone ous. The appe llate court affirmed, holding that Patrick was not prejudiced

by the trial court’s de lay in ruling on his motion in limine and that the jury was fully

and fairly instructed onthe offenses. No. 1–04–1895 (unpublished order under Supreme Court Rule 23).

B. Ezekiel Phillips Phillips was charged by

indictmentwit h attempted first degree murder (720 IL CS 5/8–4, 9–1 (Wes t 2000) ), armed violence (720 IL CS 5/33A–2( a) (West 2 000)), a nd th ree counts of aggravated battery (720 I

LCS 5/12–4(A), (B)(1), ( B)(8) (West 2000)). At trial, defense c o unsel asked the trial court to determine the admissibil ity

of prior convicti ons if Philli

ps should choose to te st if y. 1 The trial judge granted the motion in limine in part and determined that one of Phillips’ convictions wou ld be e xcluded, but stated he could not determine whether three other convictions (ar med violence, aggravated

ba tt er y, a nd ma nu fa ct ur e o r d el iv er y o f a controlled subs tance) were more probative than prejudicial until he he ar d Phillips’ testimony. Based on the trial judge’ s ruli ng, Phillips cho se no t t o t es ti fy. The jury returne d a verdi ct of not g uilty of attemp ted first

degree murder, but guilty of ar

med viol ence and

aggravated batter

y. On appeal, Phillips argued the trial court abused its discretion in refusing to rule on his motion in limine and also contended that the trialcourt erred in sentencinghim in absenti a after f ailing to admonish

him of that possibility . In a

ffirming Phillips’ convicti on, the ap pellate court found the trial court abused its discretion in delay ing its ruling on the-4- motion in limine , but decline d furthe r revie w of the is sue beca

use Phillips did not testify. The appellate c ourt vac ated Philli ps’ sentenc es, h o wever, and rem anded for a ne w sent encin g hearin g, finding the rec ord did not reflect Phill ips was admonished that he could be sentenced in absenti a . 371 Ill. App. 3d 948.

II. AN ALYS IS Before t his court, Pa

trick and Phillips ar

gue tha t the tria l courts
errone ously

d efer red rulin g on the ir motions in limine to exclude prior
conv ictions from use as impeachment until after their testimon y

. “G en er al ly, evidenti ary

motions, su

ch as motions in limine , are directed to the trial court’s discretion, and reviewing courts will not disturb a trial cour

t’s evidentiary r

uling absent an abuse of discretion.” People v. Harvey , 211 Ill. 2d 368, 392 (2004). “An abuse of discretion will be found only where the trial c ourt’s ru ling is

ar bi tr ar y, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.” People v . Hall , 195 Ill. 2d 1, 20 (2000). In P eople v. Montgome

ry , 47 Ill. 2d 510, 517 (1971), this court held that prior convictions must be excluded if the trial cou rt determines that the probativ e v alue is outweighed by the danger of unfair prejudice. In Mon tgomery , this court adopted then-proposed FederalRule of Evidence 6 09 as a g uide for trial cou rts in dec iding wh ether a defen dant’s pr ior convi ctions sho

uld be adm

itted to im peach credibility. Montgome

ry , 47 Ill. 2d at 519. Under th e

“ Montgome

ry rule,” evidence of a witness’ prior convi c tion is admissible

to attack the witne ss’ cre dibility

when: (1 ) the prior crime
was punishabl e by death or imprisonment in excess of one yea r, or i nvolved dishonesty or false state

ments, regardless of punishm ent, (2 ) less than 10 years has elap sed since the date of conviction of the prior crimeor release of the witness from confinement, whiche ver is later, and (3) the probative value o f admitt ing the prior conviction outweighs the danger of unfair pre ju dice. Montgome

ry , 47 Ill. 2d at 516-17. Nothing in Montgomery sugge sts the proper time for ruling on the admissibil ity

of a prior conviction. This court has , however, p ermitted the filing o f motions in limine to determine whether the State may-5- impeach a testifying

defendant with his prior conviction. See People

v. Willi ams , 161 I ll. 2d 1, 33- 34 (1994) ; People v. Spates , 77 Ill. 2d 193, 200-05 (1979). Nevertheless, this court has not addressed whether a trial court abuses its discretion by delay ing its ruling on the admi ssibility

of prior convictions until after the defendant’s te st im on y. A crimi nal defendant’s right to testify on his own behalf, or not to testify at all, is rooted in the f ifth, sixth, a

nd fourte enth amendme nts of the United

States Constitution. Rock v. Arkansas , 483 U.S. 44, 51-53, 97 L. Ed. 2d 37, 46-47, 107 S. Ct. 2704, 2708-09 (1987). A defenda

n t’s decision whether to testify is an important tactical determination. Brooks v. Tennessee , 406 U.S . 60 5, 6 12, 32 L. Ed. 2d 358, 364, 92 S. Ct. 1891, 1 895 (1972). A defendant who chooses t o testify face s serious risks of impeachment and may

open the door to otherwise inadmissible evidence. Brooks , 406 U.S. at 609, 32 L. Ed. 2d at 36 2, 92 S. Ct. at 1893. The decision to testify ultimately

b elongs to the defendant but is genera lly made after consultation with counsel. People v. Medina , 221 Ill. 2d 394, 403 (2006). Making t

he importa

nt decis io n to testify without an opportuni ty to evalua

te the actual st

rength o f the State’s evidence restric ts the defe

nse in pla nning its case. Brooks , 406 U.S. at 612, 32 L. Ed. 2d at 364, 92 S. Ct. at 1895. Ob vi ou sl y, defendants benefit from rulings on the admi ssibility of their pri or convic

tions made

before they decide t o te st ify . First, early rulings provide d

efenda nts with the

informat ion nece ssary

to make the criti cal dec ision whet her to testify

on their own behal f

and to gauge the

streng th of their testimony. See People v

. Avere tt , 381 I ll. App. 3d 1001 (2 008). Sec ond, ear ly r ulings pe rmit d efen dants and defense counsel to make reasoned tactical decisions in planning the defense by: (1) informing

the ju ry w he th er th e d ef

en da nt wi ll te st if

y; (2) portray

ing the d

efenda nt in a lig

ht consistent with prior convictions being a

dmitte d or not adm

itted; and (3) antic ipatorily disclosing prior convictions during the def en dant’s direct examination, thereby r

educing the prej udi cial effect. See Williams , 161 Ill. 2d at 35. Our appella te court has rec ognized t

he need for ear ly r uli n gs on motions add res si ng t he a dm is si bi li ty of pri or c onv ict io ns. In People

v. Rose , 75 I ll. App. 3d 45, 52 (1979), the appellate court noted that-6- the defendant’s motion contained sufficient information for the trial court to make a ruling. Similarly

, the dec ision in People v. Owen , 299 Ill. App. 3d 818, 824 (19 98), a cknowle dged th e obvious b enefit to defenda nts of hav ing a ruling on the admissibility of prior convicti ons. The court in Pe ople v. B allard , 346 Ill. App. 3d 532, 544-45 (2004), also concluded that a trial court should rule on a defendant’s motion in limine on an uncomplicated evidentiary issue when the prejudicial effect is obvious and noted it was unclear what
more the trial court needed to make a ruling. In Phillips , the appe llate court stated:

“We cannot fathom what more the judge needed in order to conduct the balancing test and rule on the admissibility of the prior con victi ons. The defendant was deprived of the info r mation he needed to make an informed and intellige nt decision about whether to testify .” 371 Ill. App. 3d at 952. Re ce nt ly, the appe llate cou rt in Averett also concluded that the trial court had all the information needed to cond uct the Montgome ry balancingtest and r

ule on a mo tion in limine seeking to bar prior convi ction s, st ating: “Courts should not ado pt suc h a blanket policy but, ra ther, should engage in the Montgome

ry balanci ng test on a c as e- bycasebasis , givi ng t houg ht ful con si der ati on t o ea ch f act or. It is a matter of simple fairness that courts should rule on such motions as soonas is practicable.” Averett , 381 Ill. App. 3d at 1019. Inaddition, other jurisdictions examining the issue b e fore this court have found error i n not ruling on the admissibility of a defendant’s prior convictions until after a defendant’s testimony . See Set tles v. Sta te , 584 So. 2d 1 260 (Miss. 1991); State v. R itchie , 144 Vt. 121, 473 A.2d

1164 (198 4); State v. M

cClure , 298 Or. 336, 692 P.2d579 (1984). These cases determined that a trial court should rul e on a defendant’s motion to bar prior convictions before the defendant testifies unless the

re is some unique or compelling reason to delay the rulin g. In Settles , the Mi ssissippi Supreme Court held that a trial court abuses its discretion in refusing to consider the admissibility of a prior criminal conviction for impeachment purposes when the court-7- has all the information necessary to determine the iss ue before the defendant testifies. Settles , 584 So. 2d at 1265. The court noted that
some convictions are excl udabl e for reasons that do not require a ba lanci ng: (1) the nature of a defendant’s testimony may usually

be anticipated, and

(2) “those convictions that have the highest potential for prejudice are equally

apparent.” Settles , 584 So. 2d at 1263 -6 4. The court reasoned: “The dangerous convictions are for crimes which are substantia lly similar to the crime char ged an d those which, while not similar, have limited applica tion t o the issue of credibi lity

but enormous potential for overwhelming the relevant facts of the crime charge d. A convicted sex offender, for e xample, may suffer substantially from that fact in a shoplifting prosecution.” Settles , 584 So. 2d at 1264. In Ritchie , the Supreme Court of Vermont held that a t rial court committed

error in failing to rule on the defendant ’s motion to exclude evidence of prior convictions. Rit ch ie , 144 Vt. at 123, 473 A.2d at 1165. The court reasoned: “[D]eferringdecision on a pretrial motion to ex clude evide nce of a prior c onviction

is prejud icial to the defenda

nt becau se it leaves the defendant ‘without a basis on which to de ci de whether [to] bring the prior conviction to the attention to the prospective jurors on voir dire.’ [Citation.] *** ‘[W]here the defendant request s a

ruling which will affect

defens e stra tegy fromthe very ince

ption of the trial , and where there is no apparent reason to postpone the determination of the motion other than the desire to avoid a d ifficult issue, *** the trial court should rule and the defendant should be entitled t o rely
on that ruling.’ [Citation.]” Ritchie , 144 Vt. at 123, 473 A.2d at 1165. Si mi la rl y, in McClure , the Oregon Supreme Court opined that trial cou rts should rule on th e admissib ility

of prior crimes “as soon
as possible after the issue is raised.” McClure , 298 Or. at 340, 692 P.2d at 583. The court recognized: “It is only after a r

ul ing on t he admissibility of a conviction that the prose cutor an

d defens e counsel can make an informed decisionhow to eff

ect ively try the case . The dec ision has a-8- significant

impact on what questions to ask the jurors during voir dire, w hat to say in opening sta tements and the questioning of witnesses. Whether the defendant tak es th e stand change s the entire complexion of the case.” McClure , 298 Or. at 340, 692 P.2d at 583. The court concluded: “[i]t is not realistic or necessary for a defendant to have to wait until he is onthe stand to find out whether he will be impeached

with prior

crimeevidence.” McClure , 298 Or. at 341, 692 P.2dat 583. Under c ertain circumstances, the court recog nized, the trial court may

defe r ruling

until the de fendant

testifie s, but this should be the rar e occas ion. McClure , 298 Or. at 341, 692 P.2d at 583. We agree with the comments of our appellate court

and the c ourts of our sister states recognizing defenda nts’ need for an early ruling and acknowl edging

that, in most case s, the tria

l judge w ill possess the informationnecessary

to conduct

a Montgome

ry hearing before trial. We conclu

de that a trial cou rt’s fai lure to ru

le on a motion in limine
on the admissibility of

p rior convictions when it has sufficient informationto make a

ruling constitutes an abuse of discretion. When applying the Montgome

ry rule before trial, a t

rial judg e will ce

rtainly be able to de

termine w hether t he prior crime wa s punishab le by

death
or imprisonme

nt in exces s of one y

ear, or involved d

ishonesty or false statemen ts. Likewise, a tria l jud ge can rea dily ascert ain whether less than 1 0 years ha s elapsed since the date of conviction of the pr io r crimeor release of the witness from confinement. More ove r, in all butthe most complicated

cases, a judge will have enoug h information befor e trial to weigh the probative value of admitting the pr io r convictionagainst the danger of unf air prejudice to the defendant. See Settles , 584 So. 2d a

t 1263-65; Balla rd , 346 Ill. App. 3d at 544-45; Phillips , 371 I ll. App. 3d

at 952.We a

cknowle dge the

re may be some
rare cases when a trial court cannot effectively conduct a Montgome

ry balancingtest

without hearingthe defe

ndant’s t estimony . But, tho se rare cases should be the exception, and not the rule. Thus, in those rare cases, w e admonish trial jud ges tha t it is essential for

appellate review that a sufficient basis be a

rticulat ed to support a delay in ruling

on a motion in limine on the admissibility of prior convictions. See People v . Rivera , 221 Ill. 2d 481, 508 (2006) (“without an adeq uate re cord, consisting

of all relevant facts, factual-9- finding s, and

articulated legal bases ***, the trial court’s rulings may be virtually immune from appe llate review”). We now examine whether there was an abuse of the trial court’s discretionin either

of these cases, as well as other issues raised by the parties.

A. Robert Patrick

1. Motion in Limine Inthe case of

People v. Patrick, the trial judge su mmarily refused to consider the admissibility of any of Patrick’s prior convictions. The trial judge offered absolutely no justification for delaying his ruling
on Patrick’s motion in limine , stating only that his proce dure in every case, without exc eptio n, was n ot to give advisory opinions. Here, Patrick merely soug

ht a determination

of whether the law as applied to the fac ts of his ca se would permit the use of any or all of his prior convictions for

impeach ment. Patrick was at least entitled to have the trial judge base his decision to defer a dete rmination on the spe cific facts of his case, and to determine, before the defendant

testifie d if possible, whether any

of the con victions w ould be exc luded as a matter of law. InPa tr ick’s case, the trial judge’s blanket re fusal in every criminal
caseto rule on

any motions in limine seeking to bar introduc tio n of prior convictions until after the defendants testified was arbitrary

and withoutreas on. When a trial court’s ruling is arbitrary, we will not hesitate to find an abuse of discretion. See Hall , 195 Ill. 2d at 20. Ineffect, the t

ria l court a

bused its d

iscretion by

refusin g to exercise any specific discreti on. T here is no justification for a trial judge’s blanket p olicy

to withhold

ruling on all motion s in limine on the admissibility of prior con vi ctions until after a defendant’s te st im on y. Here, the trial court’s refusal to rule wa s not based on any specific facts. We hold, accordingly , that the court’s application

of a blanket policy of refu sing to r

ule on all motions in limine on the admissibil ity

of prior convictions until after a

defendant’s testimony amounted to an abuse of discretion. The State argues that

even if the trial court abused its discretion indeferring its decision on the motion in l imine , Pa trick was not prejudiced

by th e er ror . In Chapman v . California , 386 U.S. 18, 24,-10- 17 L. Ed . 2d 705, 71 0-11, 87 S. Ct. 824, 828 (1967), t he Supre me Courtdetermined that

when the error

is of a constitutional magnitude,

a defendant is entitled to a new trial if the erro r wa s not harm less bey ond a rea sonable d

oubt. W e cannot say that the tr ial court’s error in Patrick’s case was harmless bey ond a rea sonable

doubt. Here, Patrick was unjustifia bly required to make a ta

ctical de cision wit

hout the a bility to evalua te the impact it would have on his defense. Patrick’s counsel was unable to inform the jury

whether Patrick would testif

y a nd was an ticipator ily unable to disclose Patrick’s prior convictions to lessen the prejudicial effect the convictions would hav e on his cr edibility . As a re sult, Patrick was substantially prejudice d. Patrick’s decision

whether to testify was cr

itical because he relied
on a theory

of self- defense . While his te stimony was not a

bsolutely

n ecessary because other te stimony

corroborated hi s theory

of self

defense, knowing whether his prior convictions weregoing to be used for im pea chm ent was a vi tal fac to r th at n eed ed t o be wei ghe d. If Patrick had known before t estify ing that his prior convictions were goingto be admitted, he may ha ve decided

not to testify, or

at least he could have informed the jury

earlier of the prior convictions to lessen the neg ative impa

ct. The impact of the convictions on Patrick’s credibility is clea r fromthe State’s focused and repeated ar gument urging

the jury not to believe a th ree-time convicted felon. The jury ’s verdict of guilty of second degree murder indicates that, to some deg ree, the jury b elieved Patrick was justif

ied in his u se of for

ce. Appl y ing the C

hapman standard, w e have no doubt that the error in this case was not harmless to Patrick. Accordingly , we believe a new trial is warranted, and we reve rse the judgments of the appellate and circuit courts and remand t he cause to the tria

l court. We note that Patrick has not argued the evidence in this case was i nsufficient

to convic t him. Thus, there is n o double je opard y impedimentto a newt rial. People v. Whee ler , 226 Ill. 2d 92, 134 (2007).

2. Jury Instructions-11- Patrick also contends

that the ju

ry was err oneously given I llinois PatternJury

Instr uctions, Cr

iminal, No s. 7.06X and No. 26.01I (4th ed. 2000), the instructions used for first degree murder, se cond degree murder, and i n voluntary manslaug hter. These instructions preclude the jury fromconsider

ing invol untary manslaug

hter unle ss it acqu

its the defendan

t of first degree murder. Patrick a rgues that the jury sh o uld have considered first degre e murder and involuntary mansl a ughter

at the same time. The State counters that: (1) Patrick failed to preserve any

objection to the instructions; and (2 ) the jury instructions given were proper. Patrick a dmits that he f

ail ed to preserve this issue, but asks this court to review the issue under the plain error doctrine. This court has recognized that “a defendant forfeits review of any putative jury instruction error if the defendant does not object to the instruction or offer an alternative instruction at trial and does not r aise the instruction issue in a posttrial motion.” People v. Herron , 215 I ll. 2d 167, 175 (2005) . Here, P atrick f orfeite d the issue

by f ailing to object to the instructions and fai ling to raise his claim of error in a posttrial motion. Moreover, Patrickwaived any objection to the jury instructions by proffe ring the allege dly errone ous instru

ctions to t he trial c ourt. Patrick cannot nowcomplain that the instruction he tendered was in
error. See People v. Parker , 223 Ill. 2d 494, 508 (2006) (a defendant may not directly attack a

jury instr uction ten dere d by

the defen se). We decline to address

Patrick’ s plain-e

rror cla imbecause Patrick invited any error by submitting the jury instruction. See People v. Carter , 208 Ill. 2d 309, 319 (2003) (“Under the doctrine of invit ed error, an accused m ay not r equest to proceed in one manner and then later contend on appea l th at the course of action was in error. [Citations.]”). Accordingly , we conclude that Patrick fa ile d to preser ve his cla im of err or in the ju

ry instructi ons.
B. Ezekiel Phillips 1. Motion in Limine In Phillips , the trial judge granted the motion in limine in part and dete rmined

that one of Phillips’ convictions would be excluded bu t stated he could not determine if three other convictions were more-12- proba tive than prejudicial until he heard Phillips’ testimony. B ased o n th e tr ial judg e’s rulin

g, Phillip s chose no

t to testify . The app ellate court found the

trial cou rt abuse d its discreti on in ref using to r ule on the admissibility of prior c onv ictions until after Phillips’ testimony b ut dec lined further review of the error be cause Phillips did not testify. 371 Ill. App. 3d 948. We determine that the issue of the trial court’s refusal to rule on Phillips’ motion in limine seeking to bar the use of prior convictions for impeachment was not preserved for review because Phillips cho se notto tes ti fy. In Luce v. United States , 469 U.S. 38, 41-43, 83 L. Ed. 2d 44 3, 4 47-48, 105 S. Ct. 460, 463-64 (1984), the Supreme Court held that a defendant who did not testify at trial was not entitled to a review of the tr ial court’s denial of a motion in limine seeking to
e xclude his prior convictions. The Court reasoned that any possibl e harm flowing from the trial court’s denial of a motion in limine to bar impeachment

by a prior c onv ict ion is wholly speculative absent the defendant’s testimony

and the prosecution’s attempt to impeach the defenda nt throug h use of th e prior c onviction s. This court adopted the Luce reason ing in People v. Whitehead , 116 Ill. 2d 425 (1987). In Whitehead , the trial court denied the defendant’s two motions in limine , seeking to l imit cross-e xamin ation of the defendant’s psy

chiatric expert and defen dant ’s admissions made during his tre atment c oncerni ng prior attacks on young g irls. Whitehead

, 116 Ill. 2d at 442-43. The trial court in Whit ehea d “indicated

that the State wou

ld be aff orded an opportuni

ty to raise the earlier admissions of knife attacks on y oung girls depending upon the testimonyactually

elicited on direct examinationof [the psy chiatris t] and the defendant.” (Emphasis added.) Whitehead , 116 I ll. 2d at 443. The trial court also refused the defendant’s off er of proof on the scope of his direct testimony

that defendant argued would have allowed the trial court to decide the proper scope of cross-examination in limine

. Whitehead

, 116 I ll. 2d at 44 3. On appe al, the de fendant claimed t hese rulin gs pro mpte d him to dro p his insan

ity d efense and to re fuse to take the stand, and

he claime d the psy

chiatris t was not c alled totestify “becau se evidence of prior crimes would have bee n allowed. ” Whitehead

, 116 Ill. 2d at 443. Inrecognizing the trial court’s rulingas conditioned on the direct testimony actually

given, we stated:-13- “This court

sh ould not speculate what the substance of [the psychiatris t’s] and the def en dant’s testimony on direct examination would have been or what the prosecu tion would have asked

during cross-examination ***, and it follows that
no decision on the appropriate scope o f cros s-exa mination can be had on appeal of

this case . Counsel mu st stand on their objections and call

the witnesses, thus openi ng the possib ility that an erroneous decision on the scope of examination might
occur and require review ***, or forg o calling the witnesses and adopt an a

lternati ve s trategy . But defense counsel may not have it both way s b y a ltering their trial strategy to make the best of the trial court’s order, depriving the revie wing court of

a reviewable record, and

still maintain that the order was
errone ously

entere d.” (Emphasis added.) Whitehead , 116 I ll. 2d at 443-44. Alth ough the trial court declined the defendant’s offe r to review the substance of

the testimony that would have bee n given on direct examination, this court required defense witnesses and defendant to testify and obtai

n a defin

itive ruli ng bef ore the i ss ue could be properl y reviewe d on appe al. This c ourt’s r ationale i n Whitehead

goes beyond the Luce rationa

le and provides this cour

t’s indep endent ba sis for requiring a defendant to testify and preserve the issue for review. In People v. Thompkins , this court also held that a defendant mu st testify to preserve a ruling on a motion in limine

. Thompkins , 161 Ill. 2d at 193 , citi ng Luce , 46 9 U. S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460. Inboth Whitehead

and Phillips , the defendant could not b e certa

in whether the disput

ed evide nce woul d be admit

ted until after th e direct testimony was giv en. I

n both cas e s, the defendants were making decisions about

whether to present direct testimony without knowing if the unwanted

evidenc e would be

admitted. Nonethe less, this court ruled in Whitehead

that defendants must take the risk and present the testimony for the issue t o be reviewable. In lig ht of this court’s independent

rationa le in Whitehead

, there i s no basisfor the s eparat e opinion’s claim tha

t Luce and Thom

pkins are inapposite and do not control this case. Here, Ph illip s chose not to testify. Acc ordingly, we hold that Phillips failed to preserve his right to appellate review of this issue.-14- 2. Sentencing Hearing The State see

ks cross- relief, arguin

g the ap pellate c ourt err

ed in remandingthe matter f

or a new sentencing hearing because “[t]he record [did] not reflect that [the sentencing in absenti a ] admonition
was given to

the defe ndant.” 3 71 Ill . App. 3d a

t 954. The State adm

its it initially conced ed this issu

e befor e the app ellate c ourt but now i nform s this cour

t that it fo

und a bond

slip in the t

rial cou rt file (signed by Phillips) that somehow was not included

in the record on appeal. The State

sought and wa s granted leave to supplement the record on appea l with this bond form. Ph illip s did not object. The bond slip warned Phillips of the possibility of trial and sente ncing in absentia . According to the State, Phillips was prop erly sentenced in absentia , and he waived his right to be read the sec tion 1 1 3–4(e) admonishm ent. Theref

ore, the State re quests we

affirm Ph

illips’ sentence. Here, the appe llate cou

rt did not h ave the b enefit o f the bond slip inthe rec ord when

it decided this issue. Accordingly , we remand this
cause to the app ellate c ourt for suppleme

ntal b rief

ing and a reexaminationof this issue in l ight of the bond slip that is now part of the record.

III. CONCL USION We hold that the trial court in Patrick abu sed its discretion by

a rbitrar ily delaying its ruling on the motion in limine until after Patricks ’ testi

mony . We furt her dete

rmine tha

t Patrick f

ailed to preserve the jury

instructi on issue. Accordin gly , we rev erse Pat

ricks’ convicti on and re

mand to the

circuit c ourt for

a new tri al. In Phillips , we hold that Phillips failed to preserve his right to a review of the trial court’s refusal to rule on his motion in limine by choosing not to testify. We further re mand Ph i llips to the app ellate court to reexamine the sentencing in absentia issue i n light of the bond slip th at is now a

part of the recor

d on appe al.

No. 104077–Reversed and remanded. No. 104445–Cause remanded.-15- JUSTICE BURKE, c oncurri

ng in pa rt and dis senting

in part: The common issue in the two consolida ted case s before

this court is whether a trial court abuses its discretion when it refuses to rule on
a defendant’s motion in limine to deter mine what

prior convicti o ns may be admitted for impeachment purposes until after the defendant takes the stand and

testi fies. The majority finds, a nd I agre e, that when a defendant files a motion in limine se ek ing to have his prior convictions excluded for purposes of impeachment, the trial court abuses its discretion when, without justification, it opts to defer ruling
on the motion u

ntil afte r the def endant te sti fies. As the major ity recog nizes, unwarr

anted de lay

in ruling on such mot

ions (1) prevents the defendant from having information nece s sary fo r making the “critical decision” about whether to testify and (2) hind ers the defendant’s ability

to make “ reasone d tactica

l decision s” in

planning his defense. Slip op. at 5. Ialso ag ree with the major ity t hat, henc eforth, trial cou

rts should ente r judgment on a defendant’s motion in limine before

th e defendant testifies in all but those extremely rare instances where the court “canno t effectively

conduct a Montgome

ry balanci ng test withouthearing the defendant’s testimony ” (slip op. at 8) and, in such cases, trial courts should articulate on the re c ord the basis for the delayed ruling ( slip op. at

8). Where

I pa rt way s with the major

ity i s inits inconsi stent and

inequita ble application of this newrule to the cases at bar. In Patrick , the de fendant was charged with murde r for shooting and killing a man at a la

undromat

. The defendant claimed heshot the victim accide ntally , aft er provocation. Prior to trial, the defendant filed a motion a sking the

court toexclude, f

or impea chment pu

rposes, his three prior convictions–all for possession of a contr olled substance. The tria

l court re fused to r

ule on t he motion until after defendant testified, at which time the court denied the motion an d permitted the State to impeach defendant’s credibility with the three prior convictions

. The majority finds, with reg ard to Patrick , th at the trial court abused its discre tion beca use its only

justifica tion for r efusing to rule
on defenda

nt’s m ot ion in limine prior to the defendant’s testimony
was its professed “procedure in every case, without exception *** not to give ad visory opinions.”

Slip op. at 9 . Moreove

r, the ma jority finds-16- that, because a trialcourt’s error in failing to rule on such motio ns in limine is of “constitutional magnitude” (slip op. at 9), the err or will require reversal unless there is a showing of har mlessness beyond a
reasona ble do ubt. The majority then concludes tha t the error here d oes not meet this s tandard and that d

efenda nt was “su

bstantial ly prejudiced” in that he was “unjustifiably require d” to make important tactical decisions, including whether or no t h e s ho ul d t es ti fy, without the benefit of the court’s ruling. Slip op. at 10. Infinding reversible err

or in Patrick , the majority never looks beyond the trial court’s error in refusing to rule. In other words, when deciding that

the trial court’s refusal to rule was error which was not harmless beyond a reasonable doubt, the majority does not e

ngag e in the typi cal harmless-error review–that is, it does not look to see whether the defendant

suffered no actual prejudice, either because the trial court’s ultimate rul in g on the admissibility of the prior convictions was co rrect, or beca use the e vidence overwhe lmingly supported the guilty ver

dict. Instead, the majority finds, in Patrick , that the very f

act that the court did not rule prior to defendant t est ifying was inherently pr

ejudicial and that this prejudice infected the entir e proce eding. As the maj ority explains: “Here, Patrick was unjustifiably requir ed to mak e a tactical decisionwithout the ability to evaluat e the impact it would have on his defense. Patrick’s counsel was unable to inform the jury whether Patrick would testify and was anticipa

torily unable to disclose Patrick’s prior convictions to lessen the prejudicial effec t the conv icti ons w ould have

on his credibility.” Slip op. at 10. The majority

also note s how “cr

itical” is was for Patrick to have the court ru

le prior totrial because the defendant relied on a theory of self-de fense

and “knowing wh ether hi s prior convictions were going to be us ed for imp eachment was a vital factor that neede d to be weighed” in forming his decision about whether

to testify. Slip op. at 10. Despite the major ity’s finding that the f ailure to rule on such motions in limine is an erro r of “ constitutional magnitude,” the majority abandons its harmless beyond a reasonab le do ubt analy

sis wh en r eview ing Phillips . Citing to Luce v. United States , 469 U.S. 38, 41-43, 83 L. Ed . 2d 443, 44 7-48, 105 S. Ct. 460, 463-64 (1984),-17- and this court’s d ecisions

inPeople v. Whitehead

, 116 Ill. 2d 425 (1987), and People

v. Thompkins , 161 I ll. 2d 148 (19 94), the majority holds, “the issue of the trial court’s refusal to rule on Phillips’ motion in limine seeking to bar the use of prior convictions for impeachment
was not preser

ve d for review because Phillips chose not to testify .” Slip op. at 12. I be lieve this holding is inconsistent with and contradictory

to the maj ority’s own holding just para graphs earlier with regard to Patrick

and, ther efore, incorre ct. In Phillips , the def

endant w as char

ged wit h attemp ted mur der, armed violence, and aggravated batter y in relation to a stabbing incident

. Here, as in Patrick , the def endant r aised the defenseof selfdefense, claiming

that the victim initia

lly swung at him with a piece of lumber. As in Patrick , the defendant filed a m otion i n limine seekinga ruling on the admissibility of his prior convictions. The trial court excluded one prior c onv iction, but refused to rule on the admissibil ity

of th ree other prior convictions–armed violence, aggravated battery, and ma nufacture or delivery

of a controlled substance. Here, as in Patrick , the trial court’s refusa l to rule on the motion in limine prior to defendant testifying wa s an abuse of discretion. As the appella

te court noted, no t only

did the tri al c ourt ref

use to rule prior to trial, it refused to rule even whe n defend ant rene wed his in limine motion after the State finished presenting its evidence and a fter defendant’s other

witnesses had

testified. The appellate court stated, “this court doe s not under stand wha

t more the

tr ia l court ne eded to make its ruling.” Phillips , 371 Ill. App. 3d 952. Moreover, under the

court’s own rea sonin g in Patrick , the error cannot be harmless bey

ond a reasona ble doubt because Phillips, like Pa trick, was forc ed to make a critic al decis ion–whet her to testif y–without the ben efit of information vital to that decisionmaking proc ess. Unsure what prior convictions the court would let in, th e defendant could not

determine what imp act the e xercise of his right to testify would have on h

is defen se. Althou

gh Phillip s chose no t to te st if y, he could not have made a knowing and intelligent

waiver of his constituti onal rig

ht to testif

y be cause he

did not know

which, if

an y, of his prior convictions would be u sed for i mpeachment. Further, here, as in Patrick , a ruling by the trial court on the motion in limine
was vital becau se defen dant raised a defense of self-de fense, a-18- defense that is g eneral l y b etter received by the jury when the defenda nt testifie s. If, as the ma

jority holds in relation to Patrick , a defendant suffers “substantial prejudice” as a result of the trial court’s re fusal to decide, prior to defendant testifying , which of the defendant’s prior convictions will be ad

mitted for

impeach ment, we must find that Phillips suffered the same “substantial prejudice” tha t Patrick suffered. In a

ddition, be cause th e majorit y ha s just held i

n relation to Patrick that the trial court’s refusal to rule is an error of

constitutional dimension and that s

ubstantia l prejudic e stems fr

om the fa ct th at a defendant in this posit

ion is unable to make a knowing and intelligent decisionabout wheth er

to testify , it canno t be said that the er ror in Phillips was harmless bey ond a reason able doubt. Under the majority’s own anal

ysi s in Patrick , the fact that Phillips did not testify cannot be part of the ca lc ul us in an y wa y. Because Phillips suffered the same prejudice as Patri ck, ev en though he did not testify , the dispara te tre atment of the two defendants before this court is not logical or equitable. As noted above, in support of its determination that

Philips failed to preserve for rev i ew the trial court’s error in failing to rule on the motion in limine , the majority cites Luce , Whitehead

and Thompkins

. I find these cases to be disting uishable. In Luce the Court

held that “to raise and preserve for r eview the claim of improper impeachment with a prior conviction [un

der Rule 609( a) of the F eder

al Rul es of

Evide nce], a defendant

must testify.” Luce v. United

States , 46 9 U. S. 38, 43, 83 L. Ed. 2d 443, 448, 105 S. Ct. 460 , 464 (1984). In reac hing this determination, the Court reasoned that a decision under Rule 609(a) is a preliminary ruling on

a question “not reaching constitutional dimensions.” Luce , 469 U.S. at 43 , 83 L. Ed. 2d at 448, 105 S. Ct. at 464. The Cou rt furthe r explained that a defendant

must testify to preserve

his right to appeal because, without a complete record, a reviewing court is handicapped in its efforts

to evaluate the propriety

of the lower court’s balancing of the probative value of the prior conviction aga inst its prejudici a l effect. The Court also noted: “Even if these difficulties coul d

be surmounted, the reviewing
c ourt would still face the question of harmless er ror. Se e gener ally United States v. Hasting , 461 U.S. 499 (1983). ***-19- Requiring that a defendant testify in o rder to preserv e Rule 609(a) claims wil l enable t he revie wing co urt to determine the impact any err oneous impeachment

may have ha

d in light of the record as a whole.” Luce , 469 U.S. at 44, 83 L. Ed. 2d at 449, 105 S. Ct. at 465. Cl ea rl y, Luce addressed

a different issue from the one before us he re. Luce address ed the pr

opriety of reviewing a trial court’s ruling on the admiss ibility

of prior convicti ons for imp eachme nt purposes when th e defendant chooses not to testify. Luce never considered whe t her it

w as error for a trial court to refuse to make a n admiss ibilit

y de te rm in at io n u nl es s t he de fe nd an t d ec id ed to te st if y. More importantly, the

ra ti on al e e mp lo yed by Luce to supportits ruling that a defendant mus t test ify to preser ve his appeal is not appli cable here ba sed on the majority ’s own fin

dings in t his same opinion with regard to Patrick . As noted above, t he Luc e Court believed that the propriety of a

court’s Rule 609(a) preliminary ruling
was not a ques tion of constitutiona l dimension , where as the ma jority here holds that the err or involv ed in the cases at bar is one of constitutiona l d imension. Further , the majo rity holds in re lation to Patri ck that the error is not harmless bey ond a reasonable doubt simply becaus e the def

endant could not have made a knowing and intelligent

waiver of his right

to testify. The Court in Luce , however, held th a t it was ne cessar

y f or a def endant to testify to prese rve his right to appeal so that there would be a record whic h a reviewing court could use to determine whether the tri al court’s ruling on the admission of prior conv ic tions, if error, was harmless when compared to th e weight

of the evidence. The majority , in relation to Patrick , never engages in this type of harmless-er ror review–it never weighs the harm against the weight of the e vidence. Whitehead

and Thompkins are simil arly in app osi te. Inboth case s, ruli ngs were e

ntered on the def

endants’ motions in limine prio r t o trial. In Whitehead

, the defe ndant file d two motion s in limine –one to prevent the State from cro ss-examini

ng def endant’ s expert wi

tness with regar d to admis s ions defendant had made when he underwe nt psychi atric evaluat

ion during

an earl ier pros ecution; the other to prevent the State from impeachi ng th e defen dant with t

hose same admissions

. B oth motions were denied. The trial court held that the earlier admissions

could be raised, but made no specific ruling about-20- the extent of in

quiry that would

be permitted. Whitehead

, 116 Ill. 2d at 442-43. The trial court declined t he defe ndant’s i

nvitation t

o delineate, prior to trial, the appropriate scope o f cro ss-examination, finding it would de

pend on what the de fendant a nd his w itness testified. Whitehead

, 116 Ill. 2d at 442-43. As a resu lt of the trial court’s rulings, neither the defendant nor his expert witness took the stand. On revie

w, this court, applying

the “logic of Luce ,” ruled that
no decision could be made regarding the appropriate scope of

crossexamination because

defenda nt’s dec isi o n not to tes tify and to withhold the testimony of

his expert witness deprived the reviewing court of a reviewable recor d. In Thompkins , the def

endant, in a postconvictionpetition, sought review of the trial court’s unfavorable r uling on defendant’s motion in limine to precl

ude his imp eachme

nt with pri or convic

tio ns. In a two-sentence parag

raph, we decline d to addre ss the cla im, finding it waived because it could have been raised on direct appeal, and then noting as an

aside that, pursuant to Luce , defendant’s failure to testify at trial would have meant

that the issue would have been waived even on direct appeal. Thompkins , 161 Ill. 2d at 193. Inthesecases which

the majority relies on, the de fendant obtained

a ruling on his motion in limine –something that the defendants in the consoli date d

cases before this court did not receive. The y are distingu ishable on that basis. However, even if they were not disti nguish able, they are

overruled by

the majority’s own judg

ment inrelation

to Patrick . While this court may have adopted the logic of L uce in Whitehead

and Thompkins , the majority, by its de cision i n regard to Patrick , has now limited the Luce rationa le to situa tions in whichthe defendant has obtained a ruling on his motion in limine and, thus, any error

in the trial court’s exercise of discretion is not of constitutional dimension. Insum, I a gree w

ith the maj ority

that req uiring a defenda nt to testify before he can obtain a ruling on his motion in limine to decide the admissibil ity o f prior c onviction s for impe achment p urposes results in substantial prejudice to the defendant. As the majority holds inrelation to Patrick , this pre judice ste ms from the defendant’s lack of “vital information” which pr eve nts him from making a knowing and intellig ent dec ision abou t whether to testify

and hinde

rs his ability to make tactical decisions about how to present his defense.-21- Ac co rd in gl y, the p rejudice such defendants suffer prevents them from
re ceiving a fair trial and, therefore, is not harmless, whe ther or not th ey c ho os e t o t es ti fy.

CONCLUSIO N Iagree with the major ity that a defen dant is sub stantiall

y prejudiced

when a tr

ial court r efuses to rule, prior to trial, on a defendant’s motion in limine to determine what prior convictions are admissib le f

or impea chment pu

rposes. B ecause

the prej udice ste

ms fromthe lack of information, which prevents the d efend ant from making a knowing and intelligent decision about wh et he r t o t es ti fy, the trial cou

rt’s err or is of constitutional dimension and cannot be deemed har ml ess . Ac cor di ngl y, I cannot agree with the majority ’s inconsistentand inequitable holding that a defendant who does not testify does not preser

ve the error. For the above reasons , I c oncur in

the majority’s resolution of the appeal inPatrick , but respectfully dissent f rom the majority’s resolution of the appeal in Phillips

.

JUSTICE FREEMAN joins in this partial concurrence and partial dissent.