20 2 2 IL App (1st) 200737

- U No. 1 -20-0737 Order f iled June 13 , 20 22 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS , Plaintiff -Appell ee ,

v.
CHARLES JOHNSON , Defendant -Appell ant

. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

. No. 18 CR 14623
Honorable Thomas J. Byrne , Judge, presiding.

JUSTICE PUCINSKI delivered the judgment of the court. Presiding Justice Hyman and Justice Coghlan concurred in the judgment. O RDER ¶ 1 Held : Defendant’s claim that the trial court erred in allowing the State to impeach him with his prior convictions if he testified at trial was not reviewable because he did not testify and no violation of defendant’s constitutional right to testify occurred

. ¶ 2 Fo llowing a jury trial, defendant Charles Johnson was found guilty of aggravated battery to a government employee (720 ILCS 5/12

- 3.05(d)(6) (West 2018)) and aggravated ba tt ery on public property (720 ILCS 5/12

- 3.05(c) (West 2018)) . The court merged the counts and sentence d him to seven years’ imprisonment for aggravated battery to a government employee

. On appeal,No. 1 -20-0737

- 2 - defendant challenges the trial court’s pretrial ruling allowing the State to impeach his credibility with his prior convictions sho uld he ch o ose to testify . He argues his prior convictions were highly prejudicial and had no bearing on his credibility , and the possible admission of the prior convictions “abrogated” his right to testify in his own defense

. We affirm

. ¶ 3 Defendant was charg ed by indictment with the two counts of aggravated battery , premised on an incident occurring on May 15, 2018, in a co urthouse where he spit on Cook County A ssistant
S tate’s A ttorney (ASA) Brad Dickey. ¶ 4 Prior to trial, the State filed a motion in limine to admit defendant ’s prior convictions for robbery ( case n umber 10 CR 2707 ) and murder and armed habitual criminal ( case n umber 15 CR 3342) , to impeach his credibility should he choose to testify at trial

. ¶ 5 Defendant filed his own motion in limine to bar use of his prior convictions

. He argued the jury may afford too much weight to his murder conviction when determining his credibility , as that offense was “rather severe .” He also argued that denying his request would abridge his consideration of whether he should testify on his own behalf. ¶ 6 Following a hearing on the motions, the trial court ruled the prior convictions were relevant and admissible for purposes of determining defendant’s credibility, and the convictions were not unduly prejudicial to him. The court also stated that should the convictions be admitted at trial, it would instruct the jury that the prior convictions could be considered only in assessing defendant’s credibility. ¶ 7 At trial , court reporter Sand ra Battaglia testified that on May 15, 2018, she was taking a transcript of a hearing in a courtroom involving defendant. T he three ASAs present were Dickey,No. 1 -20-0737

- 3 - Anna Sedelm aier , and Craig Engenbretson

. At the end of t he hearing , defendant yelled, walked past the prosecution’s table, made a noise like he was going to spit, and spit on ASA Dickey. ¶ 8 On cross -examination, Battaglia agreed that defendant seemed upset about the outcome of the judge’s ruling, but she did not think his anger was directed at anyone in particular. Dickey sat in the middle of the prosecut ion ’s table, and defendant’s spit landed on his head. ¶ 9 ASA Sedelmaier testified that Dickey sat in the middle cha ir at the prosecution ’s table

. Throughout the hearing, defendant was “extremely angry,” used a lot of profanity, yelled, and called the judge names

. The judge called for a recess. But before the court recessed, Sedelmaier heard defendant mak e noises as if he was clearing his throat and preparing to spit. As defendant was being escorted out of the court room , he turned his face towards Dickey where he was sitting and spit a “ perfect parable [ sic ] of saliva directly onto [Dickey’s] head. ” ¶ 10 On cross

- examination, Sedelmaier stated that Dickey spent most of his time at the prosecution table while Engenbretson argued the motion that was the subject of the hearing

. ¶ 11 On redirect, Sedelmaier clarified that Dickey had been involved with defendant “i n some regard for quite some time,” and the incident occurred on one of the final hearings of “a series of hearings and *** litigation that had gone on for quite some time. ” ¶ 12 Dickey testified consistently with the other witnesses, reiterating that defendant was yelling, swearing, and insulting his partner, the judge, and “ pretty much everybody in court. ” Dickey elaborated that defendant was about 11⁄2 feet from him when defendant projected a “lar ge amount” of saliva on to the top of his head

. The saliva dripped down the front of Dickey’s face. Dickey felt “[e]mbarrassed” and “angry

. ” He went to a medical center afterwards for an examination because he was concerned about “ communicable diseases ” defendant could have had

.No. 1 -20-0737

- 4 - ¶ 13 On cross

- examination, Dickey clarified that defendant was directing insults at various other people but not to him. ¶ 14 After the State rested, the trial court asked defendant if he wished to testify . D efendant responded that he did not want to testify because if he did , the State would raise his murder conviction, and “it wouldn’t look good in front of the jury to know that I’m actually convicted of a murder.” He confirmed with the court that he understood it was his decision alone whether to testify or not, the decision did not belong to his attorney, and no one promised him anything or threatened him in order for him not to testify. The court found that defendant knowingly and

v oluntarily gave up his right to testify. ¶ 15 The jury found defendant guilty of both aggravated battery to a public employee and aggravated battery on public property

. Defendant filed a motion for new trial, alleging the State failed to prove him guilty beyond a reasonable doubt and made improper statements in closing argument. The trial court denied his motion, merged the two counts, and sentence d defendant to
seven yea rs’ imprisonment for aggravated battery to a public employee, to run consecutive to the
sentence he was already serving in 15 CR 3342

. Defendant filed a motion to reconsider his sentence, which the trial court denied. ¶ 16 On appeal, defendant argues the trial court erred in ruling that his prior convictions of murder and armed habitual criminal were admissible for impeachment purposes if he chose to testify because the convictions were not relevant to his credibility

. He also claims the trial court’s ruling ab rogated his constitutional right to testify in his own defense

. ¶ 17 Evidence that a criminal defendant has been convicted of a crime is admissible for the purpose of attacking the credibility of that defendant, where the crime either (1) “was punishableNo. 1 -20-0737

- 5 - by death or imprisonment in excess of one year under the law under whi ch the witness was convicted”; or (2) “involved dishonesty or false statement regardless of the punishment.” Ill. R. Evid. 609(a) (eff. Jan. 6, 2015) (codifying the ruling in People v. Montgomery , 47 Ill. 2d 510 (1971), which adopted the 1971 proposed draf t of Federal Rule of Evidence 609). In either case, the evidence is in admissible if the court determines “that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.” Id. ¶ 18 Evidentiary motions, such as the motion in limine in this case, “are directed to the trial court’s discretion, ” and we will not disturb the evidentiary ruling absent an abuse of discretion. ( Internal quotation marks omitted.) People v. Patrick , 233 Ill. 2d 62, 68 (2009). We will find an abuse of discretion “only where the court’s ruling is arbitrary, fanciful, unreasonable, or no reasonable person would take the view adopted by the trial court.” People v. Delvillar , 235 Ill. 2d 507, 519 (2009). ¶ 19 As an initial matter, defendant concedes that he failed to preserve this issue by not raising it in a posttrial motion. See People v. Reese , 2017 IL 120011, ¶ 60 (“To preserve an issue for review, a defendant must object at trial and raise the alleged error in a written posttrial motion.”).
None theless, he asserts that we may consider the merits of the issue under the first prong of the plain error doctrine because the evidence at trial was closely balanced as to whether he in tended to spit on Dickey or anyone in the courtroom

. ¶ 20 Under the plain

- error doctrine, a reviewing court may address a forfeited claim where a “clear or obvious error occurred,” and either (1) “the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendan t, regardless of the seriousness of the error,” or (2) the “error is so serious that it affected the fairness of the defendant’s trial andNo. 1 -20-0737

- 6 - challenged the integrity of the judicial process, regardless of the closeness of the evidence.” (Internal quotation m arks omitted.) Id. ¶ 69. “ Inherent in plain

- error analysis is a determination of whether any error occurred. ” People v. Hartfield , 2022 IL 126729, ¶ 51. Without an error, there can be no plain error. People v. Hood , 2016 IL 118581 , ¶ 18. ¶ 21 I n this case, the pla in error doctrine does not apply to defendant’s claim because defendant did not testify and , therefore, was never actually impeached with the prior convictions at issue

. As our supreme court has noted , a defendant who , as here, did not testify at trial is not entitled to review of the trial court’s denial of a motion in limine seeking to exclude his prior convictions. Patrick , 233 Ill. 2d at 77

- 78 (citing Luce v. United States , 469 U.S. 38, 41

- 43 (1984)). Absent defendant’s test imony and the State’s attempt to impeach him through use of his prior convictions, any possible harm flowing from the trial court granting the State leave to impeach defendant with his prior conviction s is “ wholly speculative .” Id. ; People v. Steward , 295 Ill. App. 3d 735, 748 -49 (1998). As a result, defendant’s decision not to testify goes “beyond normal forfeiture” and leaves this court with a record insufficient for reviewing defendant’s challenge to the trial court’s motion in limine rulings. People v. Averett , 237 Ill. 2d 1, 18 (2010) ; Steward , 295 Ill. App. 3d at 748 -49; People v. Benson , 266 Ill. App. 3d 994, 1001 -02 (1994) ; People v. Redman , 141 Ill. App. 3d 691, 700 (1986) ; see also People v. Scott , 401 Ill. App. 3d 585, 598 (2010) ( “the dual objectives of finality of judgments and judicial economy would be seriously frustrated” if a defendant was allowed to substantively pursue claims of error on a matter that did not take place during trial)

. D efendant’s claim is unreviewable becaus e he did not testify at trial , and the plain

- error rule for bypassing normal forfeiture principles is inapplicable here. Averett , 237 Ill . 2d at 18-19.No. 1 -20-0737

- 7 - ¶ 22 D efendant also claim s that his constitutional right to testify in his own defense was “abrogated” b y the trial court’s ruling allowing the State to use his prior conviction to impeach his testimony

. ¶ 23 W e find no clear or obvious error as Illinois courts have consistently rejected this argument

. “ ‘ [D]efendants are often faced with diffic ult decisions when weighing the pros and cons of testifying at trial ,’ ” but having to weigh th os e various factors does not inevitably deprive a defendant of the constitutional right to testify in his own defense

. Averett , 237 Ill. 2d at 15 (quoting People v. Rosenberg , 213 Ill. 2d 69, 81 (2004)) ; see People v. Knapp , 2020 IL 124992, ¶ 46 (defendant has a constitutional right to testify at trial and the decision whether to testify belongs solely to the defendant). “[A] defendant’s constitutional right to testify in his own behalf is not prejudiced simply because the State may impeach him with evidence of prior convictions if he takes the stand.” (Emphasis added.) People v. Barnes , 117 Ill. App. 3d 965, 978

- 79 (1983)

. In this case, the possible impeachment with his prior convictions was a factor for defendant to consider in deciding whether to testify , but his right to testify was not violated by the court’s rulings on the motions in limine

. Id. Having found no error, there can be no pl ain error , and defendant’s procedural default is not excused. Hood , 2016 IL 118581, ¶ 18. ¶ 24 Even assuming arguendo we were to find an error, the evidence was not closely balanced. In reaching this conclusion, we note multiple witnesses testified that defendant was angry with the outcome of the case prosecuted by the ASAs , made noises as if he was preparing to spit , and actually did spit on ASA Dickey’s head while he sat at the prosecution’s table

. People v. Adams , 2012 IL 111168 , ¶ 2 2 (closely balanced prong requires a court to “make a commonsenseNo. 1 -20-0737

- 8 - assessment of the evidence [citation] within the context of the circumstances of the individual

case ” ). ¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County

. ¶ 26 Affirmed.