SECOND DIVISION

								NOVEMBER 5, 2002

No. 1-00-2749

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

								)	Circuit Court of

			Plaintiff-Appellee,		)	Cook County.

								)

v.								)	No. 99 CR 9231

								)

WILLIAM BROWN,						)	Honorable

								)	Fred G. Suria, Jr.,

			Defendant-Appellant.	)	Judge Presiding.

	JUSTICE CERDA delivered the opinion of the court:

	Defendant, William Brown, contends on appeal that the trial

court abused its discretion in coercing the parties to use the

mere-fact method of impeachment and that his 20-year sentence is

excessive.

	Defendant was charged in a four-count indictment with residential burglary, aggravated battery, and two counts of home

invasion.  The residential burglary count was nol-prossed prior

to trial.  Following a jury trial, defendant was found guilty of

home invasion and aggravated battery.  The trial court merged the

aggravated battery count and sentenced defendant to 20 years in

prison for home invasion.  Upon finding that defendant’s actions

caused the victim great bodily harm, the court noted defendant

would be required to serve 85% of his sentence.

BACKGROUND

	Prior to trial, defense counsel filed a motion in limine to exclude any evidence of defendant’s 1983 convictions for rape and

armed robbery, for which he was sentenced to 20 years in prison. 

The defense argued that introduction of the crimes would cause

defendant extreme prejudice due to the similarity between the

prior armed robbery and the current home invasion charges.  The

State responded that pursuant to People v. Montgomery, 47 Ill. 2d 510 (1971), it was entitled to introduce defendant’s prior crimes

to impeach his credibility should he choose to testify at trial. 

The trial court found that, if defendant testified, the State

would be entitled to reveal the fact that defendant received a

felony conviction in 1983, but could not expose the nature of the

crimes.  The court specifically stated:

		“This has been revisited within the last year and

a half by the Supreme Court of Illinois. Unfortunately,

in my judgment, they have said that if there is to be

use of a prior conviction for the purpose of

credibility only, that the basis of a conviction must

be mentioned.  I had always felt -- and where the

Defendant asked not to have the nature of the charge

revealed, I would not reveal it.  Simply that there was

a conviction in such-and-such a year, and that would be

it.  Unfortunately, the Supreme Court, in a divided opinion, indicated that should not occur.  The crime

itself should be shown.

		And we come to the second question, does it meet

all the parameters of Montgomery.  As you pointed out,

Mr. Bellendir, it does.  That means the last question

for the Court, as to whether or not the probative value

outweighs the prejudicial value -- at this point in

time I don’t know if the Defendant’s going to be

testifying or not and whether or not it’s going to be

an issue of credibility or whether or not it’s an issue

of fact that both sides agree on and whether or not

those facts constitute a violation of the law as

alleged by the State.

	* * *

		I would do this: If a defendant can give up his

right, constitutional right to trial by jury, or

constitutional right to remain silent, or

constitutional right to have counsel, it seems to me

that he ought to be able to give up the right as to

whether or not if I permit the use of a prior felony

and I eliminate the nature of the charge, accordingly,

therefore, if your client -- I will be permitting the

State to use the prior conviction.  It is appropriate. 

They are entitled by case law.  It does meet all the criteria set forth in the prior case.  And if the

Defendant requests that I not include the nature of the

charge, over the State’s vehement objection, I will not

allow them to do so.  I will allow them just to show

that there was a conviction on such-and-such a date.

	* * *

		Mr. Brown, understanding I will be allowing the

State to use the prior conviction, if you request it, I

will deny the State their right to use the nature of

the crime.

		DEFENDANT BROWN: Yes, absolutely.”

Following jury selection, the court clarified its position,

stating:

		“[Defendant’s 1983 conviction] does fall within

the ambit of the Montgomery decision.  The issue

therefore for the Court to decide is whether or not the

prejudicial effect outweighs the probative value.  In

this case I am advised, although I don’t know what the

facts are or the allegations other than what the stark

allegations are, there will be an issue of credibility

that it would be appropriate for the State to use that

to challenge the credibility of the defendant if he

sees fit to take the stand based upon the Montgomery

rule.

		However, if I follow the Supreme Court rule [sic] opinion which means that the nature of the offense

should also be indicated to the jury I would be

weighing that and find that the prejudicial value would

outweigh the probative effect.

		I will however if there’s an agreement between the

parties I will allow it for the purpose of credibility

only if the State sees fit to offer just the fact that

it’s a felony conviction.  Otherwise I’ll exercise my

judgment and find that the prejudicial value outweighs

the probative value.

		So I need an answer from the State as to how they

wish to handle it.

		MS. LANAHAN: Judge, the State will -- if the

defendant chooses to testify the State will offer the

conviction without the *** offense being named.

		THE COURT: And my reason for doing it was as I

stated before I believe it’s within the State’s

province to indicate where there is an issue of

credibility there has been a felony conviction.  He is

not a middle-aged defendant who has no prior record.

		On the other hand, the prejudicial effect of

indicating the nature of the offense of which we speak

in my judgment would outweigh the probative value and that’s the reason I would be denying it if the State

insisted on showing the nature of the offense.

		Since they’re agreeing not to do so I would permit

the State to use the prior conviction in the event the

defendant takes the stand as simply a felony conviction

for the purpose of credibility only.

		MS. LANAHAN: Judge, so the record is clear the

State feels it’s well within their right to use the

conviction as well as the offense charged, but based on

Your Honor’s ruling we will abide by just giving the

conviction without naming it.”

	At trial, Corliss Garrett testified that she lived in apartment 608 at 1246 West Pratt Avenue in Chicago.  Around 7:30

p.m. on March 12, 1999, she was in her apartment and heard loud

music and noise coming from the apartment directly above her. 

Garrett went upstairs to ask the neighbors, one of whom she knew

as Luis, to be more quiet.  Luis and his roommate denied there

was any noise coming from their apartment.  Garrett returned to

her apartment, but the noise continued.  She went back upstairs

and told the occupants she would call the police if they did not

stop banging and turn down their music.

	As Garrett was talking to Luis, defendant approached them

and introduced himself as Chuck Brown.  He told them he was the

new chief security officer in the building.  He then explained that instead of complaining to her neighbor, Garrett had to speak

with the landlord or fill out a complaint form.  Defendant told

her to go back to her apartment and he would bring her a

complaint form.

	Garrett testified that she went back to her apartment and

left the door open for defendant.  When defendant arrived, he

stood in the doorway and told Garrett he would have to return

later because he did not have a form with him at that time. 

After defendant left, Garrett went to sleep.

	Garrett was awakened some time later by a knock on her door. 

When she opened the door, defendant gave her a form and a pen. 

Garrett put the form on her kitchen counter and began to fill it

out.  As defendant explained the form to her, Garrett noticed the

form read “position applied for.”  As she looked up to tell

defendant it was the wrong form, she saw a 12-inch butcher knife

in his hand.  Garrett testified that defendant grabbed her and

covered her mouth with his hand.  A struggle ensued, during which

defendant’s hand slipped down from Garrett’s mouth and he grabbed

her around the neck.  Garrett struggled as defendant swung the

knife at her.  After the knife blade scratched her face, Garrett

jerked free of defendant’s grasp causing defendant’s fingers to

burn her neck.  Garrett then stabbed defendant in the face with

his pen.

	Garrett attempted to run, but fell backwards.  Defendant grabbed her hair and swung the knife at her.  He told her that if

she did not stop screaming and kicking he would kill her. 

Garrett testified that she continued to scream and kick, and

defendant cut her ankle with the knife.  He asked her where her

money was, but she told him she did not have any and to get out

of her house.

	Garrett continued to back up, while kicking defendant and

falling down.  She testified that defendant stabbed her ankle a

couple more times.  She then fell at the legs of a table and felt

a sting in the back of her shoulder.  She later determined that

defendant had stabbed her.  As defendant grabbed Garrett by the

hair and brought the knife down again, she grabbed the knife by

the blade.  Defendant cut her hand as he pulled the knife away.

	Garrett stated she then pushed defendant and ran out of the

apartment.  She ran down the hall and pounded on a neighbor’s

door, screaming that someone was trying to kill her.  Garrett saw

defendant appear in her doorway and run to the stairs, which led

to the exit.  Garrett testified that the incident lasted 5 to 10

minutes and the front door to her apartment was open the entire

time.

	After the police arrived, an ambulance took Garrett to the

hospital between 2 a.m. and 3 a.m.  She testified that she

received two stitches in her back and two stitches in her hand. 

Hospital personnel also cleaned and dressed wounds on her leg, face and neck.  The State introduced pictures, taken by Garrett’s

mother, of the wounds on Garrett’s neck, shoulder, ankle and

hands.

	When Garrett returned to the apartment building that

morning, she met the landlord, the landlord’s son and defendant’s

girlfriend, Faith Ridley, in the lobby.  Garrett testified that

she took Ridley to her apartment and showed her where the attack

occurred.  Garrett gave Ridley defendant’s hat, the piece of

paper and the pen, which she stated had a broken tip and

defendant’s flesh on it.  Garrett testified that the police who

arrived immediately after the incident told her they did not need

the evidence.

	Garrett stated that on March 15, 1999, Chicago police

officer Leavitt went to her apartment and had her identify

defendant from a photo array.  Subsequently, Sergeant Schoeber

also went to her home and sent technicians there to gather

evidence.  Garrett told Schoeber that she gave the hat, pen and

paper to Ridley.  The technicians took the dress Garrett was

wearing the night of the incident and a piece of carpet that had

blood on it.  Garrett testified that the dress had a cut in the

shoulder where defendant stabbed her, but no blood because she

had washed it.

	Garrett admitted on cross-examination that she suffered from

depression.  She was taking Dioxipin and Syresol on an as-needed basis at the time of the incident.  She also stated that she had

seen defendant standing in front of the building once, but they

had never spoken to each other.

	Luis Sagastume then testified that on March 12, 1999, he

lived at 1246 West Pratt Avenue in Chicago.  Around 8 p.m. or

8:30 p.m., he and his roommate were rearranging furniture and

playing music when Garrett knocked on their door.  Garrett stated

she lived downstairs and complained that Luis and his roommate

were making too much noise.  Luis told Garrett he would turn the

music down.  Garrett left, but returned a second time to complain

about the noise.

	Luis testified that while he was speaking to Garrett the

second time, defendant approached them and identified himself as

a security guard for the building.  Luis had seen defendant once

before on the day he moved into the building.  Defendant told

Garrett to leave and he would take care of the problem. 

Defendant had a short conversation with Luis and his roommate,

then left.

	The parties stipulated that, if called, Joyce Steele would

testify she lived at 1246 West Pratt Avenue.  In the early

morning hours of March 13, 1999, Steele heard screaming and

yelling in the hallway.  She then heard someone pounding on her

door screaming for help.

	Officer Leavitt testified that on March 15, 1999, he and his partner went to Garrett’s home and showed her a photo array. 

Garrett identified a picture of defendant as the man who attacked

her.

	Sergeant Joseph Schoeber testified that he was assigned to

investigate an attempted armed robbery, which occurred on March

13, 1999.  On March 20, 1999, he spoke with Garrett at her home. 

He had an evidence technician collect a piece of Garrett’s

carpeting which bore reddish-brown stains, as well as the dress

Garrett wore the night of the incident. 

	After Garrett told Schoeber that Ridley was in possession of

further evidence, Schoeber contacted Ridley at her place of

employment.  Ridley signed a consent form for police to search 

the apartment she shared with defendant and gave the sergeant her

keys.  During the search, Schoeber found the hat Garrett had

given to Ridley.  He also found a note on the counter, which

read, “number 708.  Lady in 608 says music too loud.  Wants to

call police.  3-11-99. /Chuck/.”  Schoeber testified that there

was a wooden block on the kitchen counter, which held a set of

knives, but one of the knives was missing.  Schoeber never

located the knife used to stab Garrett or the pen with which

Garrett stabbed defendant’s face.

	On April 6, 1999, Schoeber received information that

defendant was at the police station.  Schoeber spoke with

defendant and testified at trial that he saw scars on defendant’s hands and chin at the time.

	Evidence technician Arthur Oswald testified that he

photographed Garrett’s apartment, the dress she wore the night of

the incident, and the stain on the carpet.  Oswald recalled that

Garrett’s dress was cut, but showed no blood.  Garrett told him

she had washed the dress.

	Faith Ridley testified that, at the time of trial, she was

defendant’s girlfriend and had known him for three years.  On

March 12, 1999, she and defendant were living together in

apartment 707 at 1246 West Pratt Avenue in Chicago.  Defendant

was rehabilitating apartments in the building and was also

working as a security guard.  On that day, Ridley spoke with

defendant around 8 p.m. or 9 p.m.  He was working security and

Ridley stated she went downstairs to tell him there was a

disturbance on their floor.  Defendant did not return home that

night or the next day, but Ridley later saw him at his cousin’s

house.  She stated they both knew the police were looking for

defendant.  Ridley subsequently saw defendant around April 3,

1999, in Minneapolis.  He asked her to join him there and bring

him a bus ticket to Chicago.  Ridley testified defendant wanted

to return to Chicago and surrender to the police.

	Ridley was recalled to testify for the defense.  She stated

that defendant left their apartment around 6 p.m. on March 12,

1999.  He later returned, and they talked.  Ridley then fell asleep and was awakened the next morning by the police.  The police said they were looking for defendant and searched the

apartment without her consent.  Ridley testified that the set of

knives in the butcher block described by Sergeant Schoeber was

never a complete set.

	When Ridley saw Garrett in the hallway on the morning of

March 13, 1999, Garrett was wearing a hospital gown.  Garrett

told Ridley she might have some of her things.  Ridley went to

Garrett’s apartment and Garrett told her she had gotten some bad

drugs from defendant and wanted Ridley to pay her back for them. 

Ridley told Garrett she did not have any money.  Garrett

subsequently gave her a hat that belonged to defendant, a

clipboard, and a pen.  Ridley testified that the pen was not

broken and did not have blood on it.

	Ridley further testified that on March 22, 1999, Sergeant

Schoeber spoke with her at her work.  Schoeber asked her some

questions, then told her he needed her consent to search her

apartment.  Ridley stated that when she hesitated, the sergeant

told her he would get a warrant if she did not consent.  As a

result, she signed the consent form and gave him her keys.  She

also testified she told the sergeant that the altercation between

defendant and Garrett was about drugs and that the knife set had

never been complete.  Ridley admitted that the next time she saw

defendant, he had a “big gouge” in his face.

	Defendant testified that on March 12, 1999, he lived at 1246

West Pratt Avenue in Chicago, apartment 707.  At that time, he

had been working maintenance and security in the apartment

building for two months.  Around 8 p.m. on March 12, 1999,

defendant heard Garrett and two men shouting at each other in the

hallway.  Defendant went into the hallway and asked what the

altercation was about.  As the men told defendant what was

happening, they and Garrett shouted obscenities at each other. 

Defendant testified that he asked Garrett to go downstairs

because he was concerned for her safety. 

	After speaking with the men, defendant went to Garrett’s

apartment and told her he would report the incident to the

landlord in the morning.  Defendant and Garrett then talked for

awhile, and Garrett asked defendant if he “smoked” or “got high.” 

Defendant responded that he did get high sometimes.  The two

proceeded to smoke some crack cocaine.  When they finished,

Garrett asked defendant if he would go buy more and he agreed. 

Garrett gave defendant $35 and he purchased some crack cocaine on

Morse Avenue.  When defendant returned to Garrett’s apartment,

they smoked it together.  Garrett again asked defendant if he

would get more drugs and defendant again agreed.  He took $65

from Garrett and went back to Morse Avenue.

	After seeing a police car on the corner, defendant returned

to the building without making a purchase.  Defendant testified that he tried to give Garrett her money, but she became upset

that he did not purchase any drugs.  Defendant stated that

Garrett hit him in the chin with an object and he pushed her

away.  The two began to struggle over defendant’s key ring. 

After defendant gained possession of his keys, Garrett hit and

kicked him.  Defendant stated he backed into the hallway while

cursing at her.  According to defendant, the incident lasted 5 to

10 minutes and occurred in Garrett’s doorway.

	Defendant testified that after he left the apartment, he saw

Garrett running toward him with her arm in the air.  He ran

through a side doorway to get away from her and left the

building.  Defendant went to a bar on Morse Avenue and did not

return home that night because he realized he “had been cut.”  He

testified that he was afraid the police would not treat him

fairly after the incident with Garrett, however, he also stated

he did not know Garrett was injured until Ridley later informed

him of her injuries.  

	Defendant went to stay at a cousin’s home and subsequently

fled to Minnesota.  Defendant stated he later surrendered himself

to the police because it was the right thing to do and he had

done nothing wrong.  He asserted that he did not have a knife

when he went to Garrett’s apartment and he never stabbed her.  He

also said that Garrett received the cut on her hand when he

pulled his keys away from her.

	In rebuttal, the State informed the jury that defendant was

convicted of a felony in 1983.  The State also recalled Sergeant

Schoeber, who testified that he spoke to Ridley on March 22,

1999, and she did not tell him the altercation was about drugs or

that Garrett had asked her for money.

	Garrett also testified in rebuttal that she did not invite

defendant into her apartment on March 12, 1999, nor did she smoke

crack or own a crack pipe.  She had been sober for five years at

the time the incident occurred.  Garrett stated she never asked

Ridley for money, but she told Ridley defendant had attacked her. 

Because Ridley did not believe her, she took Ridley to her

apartment to show her defendant’s belongings.

	The jury found defendant guilty of home invasion and

aggravated battery.  At sentencing, the trial court stated it

considered the facts of the case, defendant’s background, the

presentence investigation, and his potential for rehabilitation. 

The court specifically noted defendant’s 1983 conviction for

rape, deviate sexual assault and armed robbery.  The court

sentenced defendant to 20 years in prison for home invasion and

merged the aggravated battery count.  The court found that

defendant did cause great bodily harm to the victim and,

therefore, would be required to serve 85% of his sentence.

ANALYSIS

	Defendant first contends that the trial court abused its discretion when it “induced” the parties to accept the mere-fact

method of impeachment, instead of ruling on defendant’s motion in limine.  The State argues that this issue has been waived because defendant did not object to the use of mere-fact impeachment at trial, nor did he raise it in his posttrial motion.  People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988).

	The State may not introduce evidence of a defendant’s prior convictions only to show his propensity to commit crimes.  People v. Robinson, 299 Ill. App. 3d 426, 440, 701 N.E.2d 231 (1998).  However, evidence of a prior conviction is admissible to attack a

witness’ credibility if: (1) less than 10 years have elapsed

since the date of the prior conviction or the date of release,

whichever was later; (2) the prior crime is punishable by death or imprisonment in excess of one year, or involved dishonesty or

false statement regardless of the punishment; and (3) the

probative value of the evidence of the prior crime outweighs the

danger of unfair prejudice.  People v. Atkinson, 186 Ill. 2d 450, 456, 713 N.E.2d 532 (1999); People v. Montgomery, 47 Ill. 2d 510, 516, 268 N.E.2d 695 (1971).

	In balancing the probative value of using a prior conviction against the danger of unfair prejudice, the trial court should

consider “the nature of the prior conviction, its recency and

similarity to the present charge, other circumstances surrounding

the prior conviction, and the length of the witness’ criminal record.”  Atkinson, 186 Ill. 2d at 456.  If the court finds that the prejudice substantially outweighs the probative value,

evidence of a defendant’s prior crimes may not be used to impeach

his testimony at trial.  Atkinson, 186 Ill. 2d at 456.

	In the mere-fact method of impeachment, the jury is only informed that the defendant has been convicted of felony in a

certain year, not the nature of the crime.  Atkinson, 186 Ill. 2d at 457.  “[T]he jury learns only of the fact that the witness committed a past crime, not the name of the offense.”  Atkinson, 186 Ill. 2d at 457.  

	In People v. Atkinson, the Illinois Supreme Court rejected the mere-fact method of impeachment and reaffirmed the use of the

Montgomery test in Illinois courts.  The court found that “it is the nature of a past conviction, not merely the fact of it, that

aids the jury in assessing a witness’ credibility.”  Atkinson, 186 Ill. 2d at 458.  Accordingly, the mere-fact method undermined the purpose of the Montgomery test and inhibited the jury’s evaluation of a defendant’s credibility.  Atkinson, 186 Ill. 2d at 458.  The court further added that mere-fact impeachment could

prejudice a defendant because a jury may speculate that the prior

crime is more serious than the one of which defendant was

actually convicted.  Therefore, the trial court must conduct the

Montgomery test, balancing the defendant’s interest in unfair prejudice against the State and jury’s interest in a defendant’s veracity, and either bar or allow the use of a prior crime,

including the name of the offense, on that basis.  Atkinson, 186 Ill. 2d at 458.  

	In this case, defendant brought a motion in limine to bar the introduction of his prior crimes.  The State argued that the

Montgomery factors had been met and defendant’s prior crimes were admissible for impeachment purposes if defendant testified.  The

trial court properly found that defendant’s prior conviction met

the first two prongs of the Montgomery test -- defendant had been released from prison less than 10 years prior to the commission

of the current crime and the prior crime was punishable by

imprisonment in excess of one year.  However, in balancing the

prejudice to defendant and the probative value of introducing the

prior crime, the court found that the prejudice of introducing the prior conviction would outweigh the probative value if the

nature of the crime were revealed.  The court determined that

defendant could waive his right to have the nature of the crime

revealed, just as he could waive his right to remain silent and

his right to an attorney.  Therefore, the court permitted the

State to use only the mere-fact method of impeachment.  

	Although the Atkinson court noted that one problem with the mere-fact method of impeachment was that it might prejudice a

defendant, it also determined that the method undermined the

overall purpose of the Montgomery test.  As a result, the supreme court directed the trial courts to not even consider the mere-

fact method of impeachment.  Atkinson, 186 Ill. 2d at 461.  In People v. Cox, 195 Ill. 2d 378, 748 N.E.2d 166 (2001), the supreme court reaffirmed this position, stating that use of the mere-fact method of impeachment was not up to the trial courts’

discretion; the courts should not consider the method at all.  Accordingly, the trial court erred when it allowed the use of the

mere-fact method of impeachment at defendant’s trial.  See Cox, 195 Ill. 2d at 386-87.

	Despite the fact that defendant waived this issue by failing to object to the use of mere-fact impeachment at trial and by

failing to raise it in a posttrial motion, we will consider his argument under the plain error doctrine.  Enoch, 122 Ill. 2d at 186.  Plain error occurs when a defendant is denied a fair trial or in a trial where the evidence is closely balanced.  134 Ill.

2d R. 615(a); People v. Lusietto, 316 Ill. App. 3d 143, 145, 736 N.E.2d 689 (2000).  We find that plain error occurred in this case as the evidence was closely balanced.

	Defendant’s conviction was dependent on the credibility of

the witnesses.  Garrett testified that defendant entered her

apartment under the pretense of bringing her a complaint form. 

Once he was there, he wielded a 12-inch knife, attacked her, and

stabbed her in the ankle, shoulder and hand.  Defendant testified

that he went to Garrett’s apartment to inform her that he would report her incident to the landlord.  While he was there, Garrett

asked him if he wanted to do drugs with her.  Defendant stated

that Garrett attacked him, after they smoked some crack cocaine.  According to defendant, he defended himself by pushing Garrett

away and her hand was cut when he grabbed his keys from her.

	There were no other eyewitnesses to the actual incident, the

police did not recover a knife from the scene, no medical reports

were introduced regarding Garrett’s or defendant’s injuries, and

no physical evidence substantially supporting either version of

events was presented at trial.  Garrett testified the police told

her they did not need the pen she used to stab defendant, the

dress she was wearing the night of the incident, defendant’s hat

or defendant’s clipboard.  The scene of the crime was not secured

and evidence was either discarded or given away.  Finally, no

test results regarding the reddish-brown stain on the carpet were

introduced at trial.  Defendant was convicted primarily because

the jury believed Garrett’s testimony over his.

	Because this case rested on the credibility of the

witnesses, the erroneous use of mere-fact impeachment could have

affected the outcome of the trial.  Were defendant’s prior

conviction not introduced to impeach his testimony, the jury may

have chosen to believe his version of events.

	The State argues that defendant and his attorney agreed to

the use of mere-fact impeachment and, therefore, cannot challenge its use on appeal.  See People v. Lowe, 153 Ill. 2d 195, 199, 606 N.E.2d 1167 (1992).  Where "'a defendant *** invites *** the admission of evidence, even though it be improper, he cannot

complain.'"  People v. Payne, 98 Ill. 2d 45, 50, 456 N.E.2d 44 (1983), quoting People v. Burage, 23 Ill. 2d 280, 283, 178 N.E.2d 389 (1961).  However, defendant in this case did not invite the

admission of his prior convictions.

	According to the record, the trial court told defendant,

“Mr. Brown, understanding I will be allowing the State to use the

prior conviction, if you request it, I will deny the State their

right to use the nature of the crime.”  Defendant then requested

that the nature of his prior crimes not be revealed to the jury. 

Because the court had already decided to admit defendant’s prior

crimes, defendant’s subsequent “request” not to have the nature

of the crime revealed did not amount to an agreement to use the

mere-fact method of impeachment.  It was clear to defendant that

his motion not to be impeached with his prior crimes had been

denied.  While defendant agreed to the method of impeachment, he

did not agree to be impeached.  Defendant did not waive his right not to be impeached, nor did he invite the error.

	Furthermore, after jury selection, the court revisited the

issue and came to the opposite conclusion.  It stated that the

prejudicial effect of introducing the nature of the crime to the

jury outweighed the probative value, and, if the State insisted on revealing the nature of the offense, it would deny

introduction of the prior crime.  The court further stated that

because the State agreed not to reveal the nature of the prior

conviction, it would allow the mere-fact of the conviction to

impeach defendant’s credibility.  The State responded that it had

not agreed to the mere-fact method, but would only introduce the

fact of the prior crime due to the court’s prior ruling.  Given

this confusion and the court’s method of reaching an “agreement”

between the parties, we find the parties did not actually agree

to use of the mere-fact method.  Rather, the trial court abused

its discretion by not properly employing the Montgomery test.  Montgomery, 47 Ill. 2d at 517-18.

	Finally, the State argues defendant was not prejudiced by

the court’s error.  Instead, it was to defendant’s benefit that

only the fact of his prior conviction was disclosed, and not the

nature of the crime.  We disagree.  After properly weighing the

prejudice and probative value of introducing defendant’s prior

crimes, the court could have barred any use of the crime at all. 

In fact, the trial court stated at one point that, if the nature of defendant’s prior crimes were revealed, the prejudice to

defendant would outweigh the probative value.  If that was the

case, no evidence of defendant’s prior crimes should have been

introduced at trial pursuant to the Montgomery test.  Because the credibility of defendant’s testimony was a key factor in his conviction, erroneously introducing the mere-fact of a prior

conviction could have been a material factor in the jury’s

decision.  Although the evidence was not overwhelming, it "suffices to permit retrial without offending double jeopardy." 

People v. Peete, 318 Ill. App. 3d 961, 972, 743 N.E.2d 689 (2001).  As a result, we remand the cause of action for a new trial.  See Cox, 195 Ill. 2d at 392.

	Because the cause of action is remanded, we need not address defendant’s contention that his 20-year sentence was excessive.

	Accordingly, the judgment of the circuit court is reversed and the cause remanded for a new trial.

	Reversed and remanded.

	CAHILL and BURKE, JJ., concur.