Docket No. 88860–Agenda 8–November 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

								DERICK A. COX, Appellant.

Opinion filed April 19, 20-001.

	JUSTICE FITZGERALD delivered the opinion of the court:

	Following a jury trial in the Champaign County circuit court,

the defendant, Derick Cox, was convicted of unlawful possession

of a stolen vehicle and sentenced to 15 years’ imprisonment. The

appellate court affirmed the defendant’s conviction and sentence.

No. 4–99–0122 (unpublished order under Supreme Court Rule

23). We granted the defendant’s petition for leave to appeal. 177

Ill. 2d R. 315(a).

	The central issue in this case involves the continuing use of

the “mere-fact” method for impeaching a criminal defendant with

prior conviction evidence after our opinion in People v. Atkinson, 186 Ill. 2d 450 (1999). We reverse the defendant’s conviction and

remand for a new trial.

BACKGROUND

	On May 23, 1998, a Nissan Pulsar owned by David and Rose

Sherer and loaned to their son, Zachary Fisher, a University of

Illinois student, disappeared from a student housing complex in

Champaign. A week later, the car reappeared in Rantoul, crashed

into a construction sign and stopped near a roadside tree. As a

Rantoul police officer approached the accident, he noticed the

defendant walking toward the car. The defendant saw the officer

and ran. The officer and his police dog pursued the defendant into

a nearby residence where he was arrested. The defendant was

indicted for burglary, criminal damage to property, and unlawful

possession of a stolen vehicle. Before trial, the State dismissed the

burglary and criminal damage to property counts. A jury

deadlocked on the unlawful possession of a stolen vehicle count,

and the court declared a mistrial.

	The State chose to retry the defendant, and another jury found

him guilty of unlawful possession of a stolen vehicle. The court

sentenced the defendant to 15 years’ imprisonment. The appellate court affirmed the defendant’s conviction and sentence. This

appeal followed.

ANALYSIS

	The defendant raises four issues in his appeal. We focus

initially on the first issue: whether the appellate court incorrectly

sanctioned the trial court’s use of the “mere-fact” method to

impeach the defendant’s credibility with his prior felony

convictions. Under the mere-fact method, “only the ‘mere fact’ of

the felony conviction is to be brought to the jury’s attention, as

opposed to informing the jury of the precise offense of which the

defendant has been convicted or the circumstances surrounding

that prior conviction or both.” People v. Kunze, 193 Ill. App. 3d 708, 733 (1990) (Steigmann, J., specially concurring). The

defendant contends that this court barred mere-fact impeachment

in Atkinson.

	Immediately before trial, defense counsel filed a motion in limine to bar all evidence of the defendant’s five prior felony convictions: two 1989 theft convictions, a 1990 burglary

conviction, a 1994 theft conviction, and a 1996 burglary

conviction. Defense counsel argued that these convictions were

closely related to the unlawful possession of a stolen motor vehicle

charge. According to defense counsel, if the jury heard evidence

of these convictions, it would believe that the defendant had a

propensity to commit these types of offenses. The court stated:

		“The court always weighs the prejudicial impact of

informing the jury about the Defendant’s prior

convictions against the probative value. And if this

Defendant wishes to testify, the jury is going to be told

that their duty will be to judge the credibility of the

witnesses. And I am of the opinion that it’s only fair that

the jury be aware that the Defendant does have prior

felony convictions when they weigh his credibility, should

he choose to testify.

			I will, however, not specifically tell the jury of the

burglary convictions and the theft conviction. I will

merely tell the jury the Defendant has a prior theft and felony convictions, as opposed to–well, theft, this is a

stolen car. I will not even go so far as to say theft. I’m just

going to say felony convictions if he’s going to be

impeached with his prior record.”

	On direct examination of the defendant, defense counsel

asked, “[Y]ou have a couple of prior felony convictions, don’t

you?” The defendant answered that he did. In a post-trial motion,

the defendant asserted that the court erred in allowing evidence of

his prior convictions to reach the jury. The trial court denied this

motion.

	The appellate court held that, despite our decision in Atkinson, the trial court did not abuse its discretion in admitting the mere

fact of the defendant’s prior convictions because the defendant

agreed to mere-fact impeachment. No. 4–99–0122 (unpublished

order under Supreme Court Rule 23). We, however, see no such

agreement on the record. To the contrary, the defendant filed a

motion in limine asking the court to exclude any evidence of his prior convictions and a post-trial motion reiterating that position.

The prior conviction issue was properly preserved for review. See People v. Enoch, 122 Ill. 2d 176, 187 (1988).

	Before addressing Atkinson, we review briefly Illinois law concerning impeachment of a witness though the use of prior

convictions, beginning with People v. Montgomery, 47 Ill. 2d 510 (1971). In Montgomery, we adopted the 1971 proposed draft of Federal Rule of Evidence 609. Montgomery, 47 Ill. 2d at 519. Under this rule, evidence of a prior conviction is admissible for

impeachment purposes if (1) the witness’ crime was punishable by

death or imprisonment for more than one year, or the crime

involved dishonesty or false statement regardless of the

punishment; (2) the witness’ conviction or release from

confinement, whichever date is later, occurred less than 10 years

from the date of trial; and (3) the danger of unfair prejudice does

not substantially outweigh the probative value of the conviction. Montgomery, 47 Ill. 2d at 516.1 This final factor involves a balancing test: probative value versus prejudicial effect. In

performing this test, trial courts should consider “ ‘the nature of

the prior crimes, *** the length of the criminal record, the age and

circumstances of the [witness], and, above all, the extent to which

it is more important to the search for truth in a particular case for

the jury to hear the defendant’s story than to know of a prior

conviction.’ ” Montgomery, 47 Ill. 2d at 518, quoting Luck v. United States, 348 F.2d 763, 769 (D.C. Cir. 1965). We concluded that the trial court has discretion in conducting this balancing test

and determining whether a witness’ prior conviction is admissible.

Montgomery, 47 Ill. 2d at 517-18.

	In People v. Williams, 161 Ill. 2d 1 (1994), we revisited the Montgomery balancing test. We found “a regression toward allowing the State to introduce evidence of virtually all types of

felony convictions for the purported reason of impeaching a

testifying defendant.” Williams, 161 Ill. 2d at 38-39. Noting that trial courts often mechanically applied the balancing test to allow

more prior-conviction evidence, we stated, “The Montgomery rule does not, however, allow for the admission of evidence of any and

all prior crimes. The focus of Montgomery was on crimes which bear on the defendant’s truthfulness as a witness.” Williams, 161 Ill. 2d at 39. 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. More importantly, trial courts should not admit prior-conviction evidence as probative of guilt, rather

than credibility. Williams, 161 Ill. 2d at 40. We reaffirmed that trial courts, in exercising their discretion to admit evidence of a

defendant’s prior convictions, should consider the nature of the

prior crime, its recency and similarity to the current charge, and

the length of the defendant’s criminal record. Williams, 161 Ill. 2d at 38; accord People v. Redd, 135 Ill. 2d 252, 325 (1990). Convictions for the same crime for which the defendant is on trial should be admitted sparingly. Williams, 161 Ill. 2d at 38, quoting Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967). Williams, however, did not modify Montgomery. People v. Williams, 173 Ill. 2d 48, 82 (1996).

	In the wake of Williams, an appellate court panel sanctioned the mere-fact impeachment method if trial courts found the

Montgomery balancing test leaned toward excluding the prior conviction evidence as unfairly prejudicial. See People v. Taber, 271 Ill. App. 3d 576, 580 (1995). Several years later, in another

case from the same appellate court district, the propriety of mere-

fact impeachment finally reached this court.

	In Atkinson, the defendant was charged with burglary of a motor vehicle. After the defendant testified at trial, the State

sought to present evidence of his two prior burglary convictions

for impeachment purposes. Defense counsel objected, arguing the

prejudicial effect of these convictions outweighed their probative

value. Defense counsel asserted that the jury should learn only that

the defendant had two prior felony convictions. The trial court

denied defense counsel’s request, and the State impeached the

defendant with evidence of his two burglary convictions. The jury

later found the defendant guilty.

	The appellate court reversed and remanded for a new trial,

holding the trial court erred in permitting the State to reveal the

nature of the defendant’s prior convictions. People v. Atkinson, 288 Ill. App. 3d 102, 107 (1997). Instead, the appellate court

determined that the trial court should have factored the mere-fact

method of impeachment into its Montgomery balancing test. Atkinson, 288 Ill. App. 3d at 107. The jury should have heard only that the defendant had two prior felony convictions. Atkinson, 288 Ill. App. 3d at 107.

	We reversed the appellate court and reinstated the defendant’s

conviction. Atkinson, 186 Ill. 2d at 451. After reviewing the Montgomery balancing test, we declined to adopt the mere-fact method of impeachment. Atkinson, 186 Ill. 2d at 458. We noted, “Our case law interpreting Montgomery suggests 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. Mere-fact impeachment, by eliminating evidence regarding the nature of the prior conviction and, thereby, inhibiting the jury’s

evaluation of witness credibility, undermines Montgomery. Atkinson, 186 Ill. 2d at 458. We further noted the potential prejudice to the defendant in using the mere-fact approach:

		“Under the mere-fact approach, the jury hears direct proof

that the accused has been convicted of a felony, the exact

nature of which is excluded from the jury. This bare

announcement unavoidably invites jury speculation about

the nature of the prior crime. There is a potential danger

that the jury would speculate that the defendant was

previously convicted of a more serious crime.

Consequently, the mere-fact approach may result in unfair

prejudice to the defendant arising from jury speculation as

to the nature of the prior unnamed crime. Under the

Montgomery rule, however, there is no potential for speculation by the jury. Moreover, the possibility of

resulting prejudice to the defendant from revealing the

nature of the prior conviction is controlled by the judicial

balancing test set forth in the third prong of Montgomery. Under that test, if prejudice to the defendant substantially

outweighs the probative value of admitting the

impeachment evidence, the prior conviction must be

excluded.” Atkinson, 186 Ill. 2d at 459.

	Atkinson, which was decided while the defendant’s appeal was pending, applies to this case. See People v. Linder, 186 Ill. 2d 67, 75 (1999) (“As a general rule, this court’s decisions apply to

all cases that are pending when the decision is announced, unless

this court directs otherwise”).

	The State attempts to limit our holding in Atkinson. The State contends Atkinson did not instruct that a trial court could not consider mere-fact impeachment as a means to lessen the

prejudicial effect of a defendant’s prior convictions within the

context of the Montgomery balancing test. In Atkinson, however, we held that “trial courts should not consider the mere-fact method of impeachment.” (Emphasis added.) Atkinson, 186 Ill. 2d at 461. We find no suggestion in this unequivocal language that a trial

court’s discretion encompasses mere-fact impeachment.

Additionally, the State contends Atkinson only governs cases in which a trial court declined to consider a defendant’s request for

mere-fact impeachment. Again, we see no such limitation.2

	Admitting the mere fact of the defendant’s prior felony

convictions was error. In order to determine whether this

evidentiary error was “a material factor in his conviction such that

without the evidence the verdict likely would have been different”

(Williams, 161 Ill. 2d at 42), we turn to the evidence presented at trial and the second issue raised by the defendant: whether the

State failed to prove him guilty beyond a reasonable doubt.

	“A criminal conviction will not be set aside unless the

evidence is so improbable or unsatisfactory that it creates a

reasonable doubt of the defendant’s guilt.” People v. Collins, 106 Ill. 2d 237, 261 (1985). In viewing the sufficiency of the evidence,

we will not retry the defendant. People v. Smith, 185 Ill. 2d 532, 541 (1999). Instead, our inquiry is limited to “whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

(Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89 (1979); accord

People v. Schmalz, 194 Ill. 2d 75, 80-81 (2000).

	The State called Ira Philbeck as its first witness. Philbeck

testified that she was watching television with her two grandsons

around 3:30 p.m. on May 30, 1998, when the defendant came to

the front door of her house. He looked upset and sweaty from

running. The defendant told Philbeck that he had been in a fight

and hurt someone, though he did not appear injured. He asked to

use the telephone, and she pointed toward her phone. Before the

defendant could place a call, Philbeck saw a police officer in her driveway and suggested she and the defendant speak with him.

The defendant ran down a hallway and asked Philbeck to hide

him. When she refused and told him to leave, he shut himself in

the bathroom. Two police officers entered the house with a police

dog. Eventually, they arrested the defendant.

	Rantoul police officer Sawlaw testified that he responded to

a traffic accident call on May 30, 1998. As Officer Sawlaw

approached the accident scene, he observed the defendant walking

toward a Nissan Pulsar sitting against a tree. The defendant,

wearing a green hat, stopped in the middle of the road and looked

at Officer Sawlaw, then turned and ran in the opposite direction.

On his radio, Officer Sawlaw learned from another officer that a

small back window on the car was shattered and the steering

column was peeled, indicating that the car had been stolen. With

help from his police dog, Dutch, and witnesses directing him after

an African-American man in a green hat, he tracked the defendant

to Philbeck’s house. Officer Sawlaw spoke with Philbeck, who

advised him that the defendant was inside the house. Dutch began

barking at the bathroom door, and Officer Sawlaw told the

defendant, “Come out with your hands up or you will be bitten.”

Officer Sawlaw heard glass breaking from inside the bathroom and

another officer ordering the defendant to stick his arms out the

broken window so he could be handcuffed. The Rantoul chief of

police told Officer Sawlaw to back Dutch away from the bathroom

door. The defendant emerged, handcuffed and crying; he was

taken into custody immediately.

	Rantoul Police Sergeant Glenn Williams testified that he

assisted Officer Sawlaw in his pursuit of the defendant. At

Philbeck’s house, Sergeant Williams discovered the defendant was

barricaded in the bathroom, breaking the window. Sergeant

Williams ran outside the house and saw a foot protruding from the

bathroom window. He ordered the defendant to put his hands out

the window so he could be handcuffed. The defendant screamed,

“[G]et the dog back,” and threatened to cut Dutch with a shard of

broken glass. After 10 minutes, the defendant was handcuffed and

taken into custody.

	Rantoul police officer Charles Smith testified that he received

a call that a car accident had occurred and the driver had fled the scene. At an intersection Officer Smith saw a Nissan Pulsar had

driven over a construction sign, off the road, and into a tree. He

noticed a small back window of the car was broken and the

steering column was peeled. He also found two screwdrivers used

to start the stolen car on the passenger seat. Officer Smith later

joined Officer Sawlaw at Philbeck’s house. Inside the bathroom,

the defendant was yelling and threatening Dutch. After 10

minutes, the defendant was handcuffed by police officers outside

the house, and Officer Smith took him into custody.

	Fisher and Rose Sherer testified about the condition of the car

before and after it was stolen. Both testified that the defendant did

not have permission to drive the car.

	Champaign police officer James Clark testified that he

processed the car for evidence. He pulled some fingerprints from

the car, including a print from the inside of the driver’s window.

Champaign police officer Charles Claudill testified that the print

matched the defendant’s right thumb print. Gary Harvey, a

forensic scientist at the Illinois State Police lab in Springfield,

agreed with Officer Claudill.

	The defense called Harold Phipps as its first witness. Phipps

testified that he heard a car crash near his house on May 30, 1998.

When he went to investigate the noise, he saw an empty car sitting

by a tree and called the police. While waiting for the police, he

never clearly saw the driver of the car, but, from his driveway, he

may have seen somebody leaving the accident scene. On cross-

examination, the State asked Phipps if he told the police that he

saw an African-American man wearing a green hat run from the

wreck. Phipps stated that he could not remember giving such a

statement.

	The defendant testified that he was working at the Solo Cup

Company on the night the car was stolen. On May 30, 1998, he

was painting mobile homes for his cousin. His cousin dropped him

off in Rantoul that afternoon. The defendant was socializing with

a group of people at an apartment building when he heard a noise

and saw a car jump the curb and stop beside a tree. A dark-skinned

man with long hair ran from the car to the apartment building and

into a nearby apartment. According to the defendant, he and a few

acquaintances proceeded to that apartment to ask about the accident. The driver appeared upset and stated that he had lost

control of the car. The driver requested a cigarette and told the

defendant that he had left a pack in the wrecked car. The defendant

wanted a cigarette too, so he agreed to return to the car.

	At the car, the defendant could not find any cigarettes, so he

went back to the apartment. The driver said the cigarettes were

under the seat. The defendant returned again to the car and found

a pack of Newports under the passenger seat. According to the

defendant, he did not notice the stripped steering column or the

screwdrivers on the passenger seat. Walking back to the

apartment, the defendant saw a police officer driving toward him.

The defendant went to the apartment to alert the driver that the

police were in the area, then left the apartment to elude the police

because he had an outstanding arrest warrant for a fight with a

friend. After a short walk the defendant started jogging when he

saw a police officer with a dog pursuing him. The defendant

denied that he ever had possession of the car.

	The defendant testified that he went to Philbeck’s house.

Philbeck let him in, and he asked to use the telephone. The

defendant called his cousin for a ride. When he saw Officer

Sawlaw and Dutch outside Philbeck’s house, he told Philbeck that

the police were chasing him in connection with a fight. According

to the defendant, Philbeck told him that he could not stay, and she

walked to the back of the house to talk with the police. Officer

Sawlaw entered the house with Dutch, and the defendant fled to

the bathroom. Officer Sawlaw attempted to kick in the door, and

the defendant kicked out the bathroom window and grabbed a

piece of glass for protection from the dog. Eventually, the

defendant stuck his hands out the window and allowed the police

to handcuff him. On cross-examination by the State, the defendant

testified that he did not realize the police were chasing him

regarding the car until after his arrest.

	In rebuttal, Officer Sawlaw testified that he interviewed

Phipps after the defendant’s arrest. Phipps told him that an

African-American man in a green hat ran from the wrecked car,

walked back toward the car, and ran away from the car again.

Officer Smith also testified in rebuttal that he interviewed Phipps

when he first arrived at the accident scene. Phipps told him an African-American man in a green hat ran from the wrecked car.

	To obtain a conviction for possession of a stolen motor

vehicle (see 625 ILCS 5/4–103(a)(1) (West 1998)), the State was

required to prove, beyond a reasonable doubt, that the defendant

possessed the vehicle, that he was not entitled to possess the

vehicle, and that he knew the vehicle was stolen. People v. Anderson, 188 Ill. 2d 384, 389 (1999). The defendant never disputed that he did not have permission to drive the Nissan

Pulsar, and the evidence presented at trial was sufficient for the

jury to conclude that he possessed the car and that he knew the car

was stolen. The evidence, however, was not overwhelming, and

the improper mere-fact impeachment evidence may have been a

material factor in the jury’s decision. Cf. Williams, 161 Ill. 2d at 41-42. We remand for a new trial.3

	Finally, the defendant raises two issues concerning the length

of his sentence. These issues are unlikely to recur on retrial, and

we decline to address them.

CONCLUSION

	For the reasons we have discussed, we reverse the judgments

of the appellate and circuit courts and remand the cause to the

circuit court for a new trial.

Reversed and remanded.

	JUSTICE McMORROW, dissenting:

	The circuit court, in the exercise of its discretion, found that

the mere-fact method of impeachment was the most appropriate

approach in presenting evidence of defendant’s five prior felony

convictions to the jury. The majority, relying upon People v. Atkinson, 186 Ill. 2d 450 (1999), concludes that the circuit court’s decision constitutes reversible error.

	In Atkinson, this court held that, as a matter of law, it is always improper for a circuit court to employ the mere-fact

method to impeach a testifying defendant. Justice Rathje and I

dissented from this holding. As the dissenting opinion in Atkinson explained,“[h]istorically, this court has vested the trial court with

great discretion to determine what evidence should be presented

at trial.” Atkinson, 186 Ill. 2d at 464 (Rathje, J., dissenting, joined by McMorrow, J.). In holding that circuit courts are prohibited

from considering the mere-fact impeachment method, the Atkinson majority unwarrantedly departed from our traditional

jurisprudence by “remov[ing] from the trial court the discretion to

determine whether or to what extent evidence is admissible.”

Atkinson, 186 Ill. 2d at 472 (Rathje, J., dissenting, joined by McMorrow, J.). I continue to adhere to my position that the

decision of whether or to what extent evidence of a prior

conviction may be admitted for purposes of impeachment is within

the circuit court’s sound discretion. It is within the wide discretion

traditionally afforded the circuit court to permit the use of mere-

fact impeachment if the court determines that it is the most

appropriate impeachment method.

	For the reasons stated, I respectfully dissent from the opinion

of the majority.