THIRD DIVISION

										July 31, 2002

No. 1-01-2607

WILLIAM STOKES,					)   Appeal from the

								)   Circuit Court of

	Plaintiff-Appellee,				)   Cook County.	 								)

		v.						)                   

								)	

CITY OF CHICAGO,					)   Honorable	

								)   Vanessa A. Hopkins,

	Defendant-Appellant.			)   Judge Presiding.

	JUSTICE WOLFSON delivered the opinion of the court:

	William Stokes sued the City of Chicago for injuries he said

he sustained when his foot caught in a hole in the sidewalk at

656 North Green Street.  Throughout the trial the City insisted

it had the right to impeach Stokes's credibility with his three

prior burglary convictions.  The trial court was equally

insistent that the City had no such right.

	The jury found in favor of Stokes, awarding him $30,000 in

damages.  The single issue in this appeal is whether the trial

court committed reversible error when it refused to allow the

City to impeach Stokes.

	We reverse and remand.

FACTS

	Because the City raises only the impeachment issue, we

merely sketch the evidence presented at trial.

	At the time of trial, in February of 2001, Stokes was an

inmate at the Vienna Correctional Center in Vienna, Illinois.  The trial court's issuance of a writ of habeas corpus permitted

Stokes to appear at trial, where he was allowed to wear civilian

clothes.

	He had been convicted of burglary three times: (1) August

23, 1993; (2) April 7, 1998; and (3) July 5, 2000.  In a pretrial

ruling, the trial court granted Stokes's motion to bar any

impeachment use of his burglary convictions.  The trial court

found -- before, during, and after trial -- that there was no

issue concerning Stokes's "honesty."  That is, said the court,

"that's saying he's testified to something, and then there was an

observer, another fact witness who testified to something else."

	The trial court rejected the City's suggestion that there 

are other ways a party's credibility can be brought into

question, concluding: "The Court finds that its prejudicial

effect outweighs its probative value."

	At trial, Stokes testified that on September 15, 1993, he

was living at 467 West Oak Street with Martha Sallay and their

five children.  During the day, the children were at school,

Sallay was at work, and Stokes was at home because he was laid

off from his job at a fast food restaurant.

	After the children returned home from school, Stokes went to

a basketball court to play with friends.  Sallay met him there

some time later, then they went home to eat dinner.  After dinner

and after putting their children to bed, just after 9:00 p.m.,

Stokes and Sallay went for their regular walk in their neighborhood.  They walked at a strolling pace.  Stokes was

wearing low-top gym shoes.

	After Stokes and Sallay had been walking for about 25 or 30

minutes, they were on North Green Street.  Although Stokes saw

there were no street lights in the area, he and Sallay continued

to walk down the 600 block of North Green Street.  The street was

dark; neither the moon nor the buildings in the area offered any

illumination.  Stokes said he never walked down North Green

Street before that night. 

	Sallay held Stokes's right arm as they walked down North

Green Street.  As they walked, some people came near them on the

same side of the street.  He did not see the people until they

were very near to them.  When the people got close to Stokes and

Sallay, he jerked Sallay close to him and moved over and away

from the people.  He did not know the people who were coming

close to them.  

	As the strangers passed Stokes and Sallay, Stokes's foot

caught in a hole in the concrete of the sidewalk.  Stokes's foot

went into the hole up to the bottom of his ankle bone and his

heel hit something hard.  When he tried to pull his foot out, he

fell over.  As he fell over, he heard something crack in his

foot.

	After Stokes fell, he tried to stand but could not.  The

pain was too much.  Sallay left to get help and Stokes moved

himself to some steps that were about 20 to 25 feet away from where he fell.  Before Sallay returned, an ambulance arrived. 

The ambulance took Stokes to Northwestern Hospital for treatment. 

	Sallay testified that during the day on September 15, 1993,

she stayed home with her two youngest children and Stokes went to

work.  In the early evening, Stokes played basketball with some

friends while Sallay cooked dinner.  Sometime later, at about

7:00 p.m., Sallay left the house to watch Stokes play a game. 

After the game, Stokes talked to his friends, then he and Sallay

walked home to eat dinner.  After dinner, Stokes and Sally spent

some time at home putting their children to bed.  Then they went

for a walk.

	Stokes and Sally took their walk between 9:00 and 10:00 p.m. 

While they were walking, they encountered some of Stokes's

friends.  One of them gave Stokes a basketball.  After stopping

to talk to his friends, they headed back home.  They walked at a

normal pace to North Green Street.  Stokes and Sallay were

passing the basketball back and forth to each other as they

walked.

	Sallay was not familiar with the area of North Green Street. 

Although the street was dark, she and Stokes played with the

basketball as they walked on the sidewalk.  Stokes was either

bouncing the ball or passing it to Sallay when his foot fell into

a hole in the sidewalk.  When Stokes's foot fell through the

hole, they were between the 600 and 700 block of Green Street. 

	After Stokes's foot fell through the hole, he began twisting his foot, trying to get it out of the hole.  In trying to get his

foot out of the hole, Stokes fell over in Sallay's direction.  He

told her he could not get up or walk.  Stokes looked to be in a

lot of pain.  

	Stokes told Sallay to call an ambulance.  So Sallay walked

to Chicago Avenue to find a phone and call an ambulance.  Sallay

called 911 on a pay phone and asked for an ambulance.  By the

time she returned to the scene, Stokes had been put in the

ambulance.  Sallay then walked to Northwestern Hospital to be

with him.

	Stokes's lawyer read into evidence the evidence deposition

of Dr. Cordes.  Dr. Cordes treated Stokes in the emergency room

at Northwestern Hospital.  He diagnosed Stokes with a calcaneus

(heel bone) fracture of the left foot.  Dr. Cordes's records list

the cause of injury as a "trip and fall."

	According to the doctor, when Stokes was admitted in the

emergency room, he said he had fallen in a pothole in the street. 

Dr. Cordes opined that "it requires a fairly exertional amount of

energy to fracture that calcaneus ***.  Typically we see these

from falls from [great] heights ***."  Dr. Cordes said he would

have to know the depth of the hole and the speed of the foot

entering the hole to determine whether it could have caused

Stokes's injury.  Although he could not determine what caused

Stokes's heel to break, he "supposed it could" have happened if

the twisting of the body generated enough torque to break the bone.

	Dr. William Dobozi, an expert in orthopedic trauma,

testified for the City.  Based on Stokes's x-rays, the doctor

opined Stokes suffered a depressed "complex" fracture of his

calcaneus.  Because the fracture was "complex," Stokes's broken

heel bone must have been caused by a high energy force. 

	Generally, said the doctor, this type of injury occurs as a

result of a fall from great heights or a high-speed auto

accident.  Dr. Dobozi's opinion was that the condition of the

sidewalk on North Green Street did not cause Stokes's heel bone

to break.  He criticized Dr. Cordes's opinion to the extent that

Dr. Cordes did not take into account the fact that the fracture

was "complex."

	Carlos Martinez, the last witness to testify at trial, was

one of the paramedics who treated Stokes.  In Martinez's report,

he wrote Stokes told him he was "walking down the street and

stepped into a pothole."

	After closing arguments, the jury deliberated and then

returned its verdict in favor of Stokes.  The trial court entered

judgment on the verdict and denied the City's mMotion for a new

trial.  This appeal followed.

DECISION

	The trial court veered off course when it determined there

was no "honesty" issue here because no other eyewitness

contradicted Stokes's version of what happened.  We assume the trial court's reference to Stokes's "honesty" was intended to

address the question of whether Stokes's credibility was an issue

in the case.  It is a rare trial where a party's credibility will

not be an issue.  This was not one of them.

	The exact spot where the fall took place -- street or

sidewalk -- was an issue.  So was the way his foot entered the

hole: the front of the foot or the whole foot?  The way Stokes

moved his foot in the hole was in dispute, as was the amount of

pain he felt from the time of injury to the time of trial.

	If Stokes was not looking where he was going at the time he

fell, the City would not be liable.  See Siegel v. Village of Wilmette, 324 Ill. App. 3d 903,, 907-08, 756 N.E.2d 316 (2001).  If he fell in a pothole while walking on the street outside a

cross-walk, there would be no liability.  See Sisk v. Williamson

County, 167 Ill. 2d 343, 347, 657 N.E.2d 903 (1995).

	Our review of the record discloses ample reasons to find

there was a credibility issue here.

	First, Stokes failed to testify consistently with his own

prior testimony: (1) at trial Stokes said his whole foot was

caught in the hole, but at his deposition he said it was the

front part of his foot that slipped inside the hole; (2) at trial

Stokes identified a photograph of the sidewalk near 656 North

Green Street that showed the hole in which his foot became

caught; however, when he was later shown another photograph of

the sidewalk, he said he could not identify the hole because "it was dark that night" and he could not "even see what was around

that hole;" and (3) at trial Stokes said he did not remember what

he told the paramedics when they arrived, but at his deposition

he said he told the paramedics he fell in a pothole.

	Second, Stokes failed to testify consistently with Sallay:

(1) at trial Stokes said he was laid off and Sallay was working,

but Sallay said she stayed home and Stokes was working -- Sallay

changed her mind two times and finally said she did not remember

--; (2) Sallay could not recognize any photograph of the sidewalk

as the area where Stokes fell, though Stokes could; (3) at trial

Stokes said he did not know the people who approached them on

North Green Street, but Sallay said the people were Stokes's

friends and one of them gave him a basketball to play with; (4)

at trial Stokes said Sallay was holding him when he fell, but

Sallay said she was not holding him and was walking "a little bit

to the side of him;" and (5) at trial Stokes did not say, as

Sallay did, he and Sallay were playing with a basketball when his

foot fell in the hole -- Stokes was either bouncing, passing, or

reaching for the ball.

	Third, Stokes failed to testify consistently with Dr. Cordes

and Carlos Martinez: at trial Stokes said his foot got caught in

a hole in the sidewalk, but (1) Dr. Cordes said that when Stokes

arrived in the emergency room he said he had fallen in a pothole

in the street, and (2) Martinez wrote in his report that Stokes

said he was walking down the street and a pothole caused him to fall.

	Finally, it is significant that the City's expert, Dr.

Dobozi, testified that the complex fracture incurred by Stokes

was not caused by the hole in the sidewalk on North Green Street. 

That, alone, would be enough to create a credibility issue.

	A finding that a witness's credibility is an issue in the

case establishes the relevance of an attack on that credibility

by means of a prior conviction.  Then the trial court turns to

the seminal Illinois decision: People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971).

	In Montgomery, the supreme court adopted the then-proposed Federal Rule of Evidence 609: A prior conviction is admissible

for the purpose of attacking the credibility of a witness only if

the crime (1) was punishable by death or imprisonment in excess

of one year, or (2) involved dishonesty or false statement

regardless of the punishment, unless (3) in either case, the

judge determines that the probative value of the evidence of the

crime is substantially outweighed by the danger of unfair

prejudice.  Montgomery, 47 Ill. 2d at 516.  Evidence of a conviction is not admissible if "more than 10 years has elapsed

since the date of conviction or of the release of the witness

from confinement, whichever is the later date."  Montgomery, 47 Ill. 2d at 516. (FRE 609 was enacted in a slightly different

form, but Illinois decisions have adhered to the proposed

version.)

	The Montgomery rule applies to civil cases as well as criminal cases.  Knowles v. Panopoulos, 66 Ill. 2d 585, 363 N.E.2d 805 (1977).  It applies to misdemeanor convictions that

are crimes of dishonesty.  People v. Spates, 77 Ill. 2d 193, 203, 395 N.E.2d 563 (1979) (misdemeanor theft conviction

properly used to impeach defendant charged with armed robbery).

	When Montgomery applies, the trial judge's first task is to determine whether the prior conviction fits one of the first two

alternative factors -- a felony conviction or conviction of any

crime involving dishonesty or false statement.  At this stage,

there is no need to consider the nature of the felony

conviction.  Any timely felony conviction will satisfy the first

Montgomery factor.  See People v. Atkinson, 186 Ill. 2d 450, 461, 713 N.E.2d 532 (1999) (not error to allow use of burglary

conviction to impeach defendant charged with burglary); People v. Williams, 173 Ill. 2d 48, 670 N.E.2d 638 (1996) (not error to allow use of aggravated battery conviction to impeach defendant

charged with  murder).  Appellate decisions that indicate the

nature of the prior conviction must bear on the witness's

truthfulness before it can be considered for use as impeachment

are trumped by Williams and Atkinson.  See, for example, People v. Elliot, 274 Ill. App. 3d 901, 908-09, 654 N.E.2d 636 (1995); and Housh v. Bowers, 271 Ill. App. 3d 1004, 1006-07, 649 N.E.2d 505 (1995).

	When either of the first two alternative Montgomery factors 

has been satisfied, the analysis shifts to vital ground: the 

balancing test.  Our supreme court has expressed "concern about 

the indiscriminate admission of all prior felony convictions 

for impeachment purposes absent application of the critical 

balancing test mandated by Montgomery."  People v. Williams, 173 Ill. 2d at 82.

	This last factor, the balancing test, requires the trial 

judge to weigh the prior conviction's probative value against 

its potential prejudice.  Here, the nature of the conviction 

does matter, because it "aids the jury in assessing a witness's

credibility."  Atkinson, 186 Ill. 2d at 458.  The more the prior conviction smacks of testimonial dishonesty, the more probative

weight it has.  Torres v. The Irving Press, 303 Ill. App. 3d 151, 160, 707 N.E.2d 248 (1999).  Convictions involving deceit,

fraud, cheating, or stealing are the kinds of crimes that "press

heavily on the probative valude side of the scale," Torres, 303 Ill. App. 3d at 160; although a conviction that had little or

nothing to do with truthtelling survived supreme court scrutiny

in Williams, 173 Ill. 2d at 83 (no error to allow use of an aggravated battery conviction to impeach a defendant charged

with murder).

	Trial judges are admonished not to apply the balancing test

"mechanically."  People v. Williams, 161 Ill. 2d 1, 38-39, 641 N.E.2d 296 (1994).  That is, "trial courts should not tip the

balancing test toward probative value simply because all felonies show a disrespect for society, and, thus, indicate a

willingness to lie on the witness stand."  Williams, 161 Ill. 2d at 39.  It must be a "meaningful" balancing test.  Torres, 303 Ill. App. 3d at 162 (failing to conduct a meaningful balancing

test and refusing to admit a non-party witness's misdemeanor

theft conviction for impeachment was reversible error).

	A slight tipping of the scales toward the risk of unfair

prejudice is not enough to exclude the prior conviction.  The

trial court in this case erred when it conducted a simple

balancing test.  To exclude the evidence, the trial court must

find the risk of unfair prejudice substantially outweighs the probative value of the conviction for impeachment purposes. 

Montgomery, 47 Ill. 2d at 516.

	Trial judges are given factors to use when conducting the 

balancing test -- an exercise in discretion.  These include 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's criminal record. 

Atkinson, 186 Ill. 2d at 456.  Convictions of the same crime for which the defendant is on trial should be admitted "sparingly". 

People v. Cox, 195 Ill. 2d 378, 384, 748 N.E.2d 166 (2001).  However, the supreme court found no error where the trial judge

in a burglary case allowed the defendant to be impeached with

two prior burglary convictions.  Atkinson, 186 Ill. 2d at 461.  

	The appellate courts have had several occasions to examine a trial judge's exercise of discretion when admitting or

excluding prior convictions for impeachment purposes.  See

Housh, 271 Ill. App. 3d at 1004 (abuse of discretion to allow impeachment use of plaintiff's attempt robbery conviction in

personal injury trial); Holmes v. Anguina,  174 Ill. App. 3d 1081, 529 N.E.2d 300 (1988) (abuse of discretion to bar

impeachment use of defendant's attempt robbery conviction in

personal injury trial); Minor v. City of Chicago, 101 Ill. App. 3d 823, 825, 428 N.E.2d 1090 (1981) (abuse of discretion to bar

impeachment use of plaintiff's two misdemeanor theft convictions

in personal injury trial; since plaintiff was the sole

occurrence witness his "testimony and credibility was of the

utmost importance in the jury's determination.").

	In this case, the trial court erred when it found Stokes's

"honesty" (credibility) was not an issue, when it failed to

analyze Stokes's burglary convictions in light of the first of

the two Montgomery alternative factors, and when it failed to conduct a correct and meaningful balancing test.

	Plaintiff's credibility was a central issue in this case. 

Because we believe the trial court failed to correctly analyze

the City's offer of three burglary convictions to impeach the

plaintiff, we reverse the court's judgment and remand this cause

for a new trial.

	This opinion should not be read as mandating the

admissibility of any of Stokes's burglary convictions for impeachment purposes.  We do hold the convictions satisfy the

first Montgomery factor.  It is for the trial court to determine whether the use of one, two, or all three of the convictions

would survive the balancing test.  That is, whether the

probative value of the jury hearing about one or more burglary

convictions in order to weigh Stokes's credibility is

substantially outweighed by the risk of unfair prejudice.  The

scales tip toward exclusion in any case when "the risk of

misleading or overpersuading the jury is palpable."  People v. Bedoya, 325 Ill. App. 3d 926, 943. 758 N.E.2d 366 (2001). 

	We also suggest that should the trial court allow use of

one or more of the burglary convictions, it should offer to

contemporaneously instruct the jury on the limited purpose of

the evidence.  See I.P.I. 3.05, Illinois Pattern Jury Instructions,  in Civil,

No. 3.05 (2000) Cases, 2000 edition.  The plaintiff would be free to reject the

offer.  Limiting instruction or not, the trial court must ensure

that the prior conviction is kept to its limited purpose.

CONCLUSION

	Because the trial court committed reversible error when it

refused to consider the City's offer of Stokes's prior burglary

convictions, we reverse the court's judgment and remand this

cause for a new trial.

	Reversed and remanded.

	HALL, P.J., and CERDA, J., concur.