                             NO. 4-06-0244         Filed 8/13/07

                       IN THE APPELLATE COURT

                               OF ILLINOIS

                             FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )   Appeal from
          Plaintiff-Appellee,          )   Circuit Court of
          v.                           )   Macon County
DEMETRIC L. DeBERRY,                   )   No. 05CF1371
          Defendant-Appellant.         )
                                       )   Honorable
                                       )   Timothy J. Steadman,
                                       )   Judge Presiding.
________________________________________________________________

            JUSTICE McCULLOUGH delivered the opinion of the court:

            In December 2005, a jury convicted defendant, Demetric

L. DeBerry, of robbery (720 ILCS 5/18-1 (West 2004)).    The trial

court later sentenced him to five years in prison.

            Defendant appeals, arguing that (1) the State failed to

prove him guilty beyond a reasonable doubt, and (2) the trial

court erred in not ruling on his motion in limine, prior to his

testimony, as to whether his prior convictions could be used to

impeach him.    We affirm.

            In October 2005, the State charged defendant with

robbery (720 ILCS 5/18-1 (West 2004)), alleging that on August

18, 2005, he knowingly took property from Steven McDonald by use

of force.   Prior to trial, defendant filed a motion in limine to

bar the State from impeaching him with "certain of [his] prior

convictions."    The trial court reserved ruling on the motion

"until or unless the defendant testifies and [the] State then
seeks to introduce the two convictions by way of rebuttal."

           At trial, Steven McDonald testified that on August 18,

2005, he walked from his girlfriend's house to a friend's house.

While walking, McDonald stopped and spoke with defendant, whom he

knew only as "Mi Mi."   Another individual approached and grabbed

McDonald's front pocket.   McDonald "swung" at the individual but

defendant grabbed McDonald from behind and the other individual

lifted McDonald's legs and the two men threw McDonald to the

ground.   One of the individuals kicked McDonald.    McDonald

observed the two men run from the area.

           Tyrell Woods testified that he pleaded guilty to

robbing McDonald.   He and defendant were no longer best friends

because defendant "told on" Woods.     According to Woods, he and

defendant agreed to "basically [']roll['] [McDonald]."

           Decatur police officer Kara Diskey testified that on

August 18, 2005, she was dispatched to 143 East Marietta Street

in Decatur.   Diskey spoke with McDonald and McDonald provided

descriptions of the two men involved.     McDonald knew one of the

individuals as "Mi Mi."

           Decatur police officer Jeremy Welker testified that on

August 23, 2005, he met with McDonald and conducted a photo-

graphic lineup.   McDonald "immediately" identified defendant and

Woods as the individuals who robbed him on August 18, 2005.

           The State then rested, and the trial court denied


                               - 2 -
defendant's motion for directed verdict.   Defendant renewed his

motion in limine, arguing the outcome of the motion would impact

his decision on whether to testify.    The trial court refused to

rule on the motion in advance of defendant testifying, stating

the motion was premature.

          Defendant then testified as the only defense witness,

admitting that he spoke with McDonald on August 18, 2005, but

stating he did not know McDonald.   Defendant testified that

McDonald asked whether there were "some nice cars around for

sale."   According to defendant, during this conversation, "Woods

came from out of nowhere."   Defendant and Woods were friends.

Defendant testified that McDonald took a swing at Woods because

he did not know what Woods was trying to do to him. Defendant

testified that after McDonald swung at Woods, defendant grabbed

McDonald because he "didn't want him to try to harm anybody that

I had knew."   Defendant testified that he let McDonald go "imme-

diately" and observed Woods take a cell phone and money from

McDonald's pocket.   After this incident, defendant gave Woods a

ride home.

          Following arguments, the trial court denied the motion

in limine and the State offered the certified convictions of

defendant for theft and aggravated battery.   The jury convicted

defendant of robbery and the court later sentenced him to five

years in prison.


                               - 3 -
          This appeal followed.

          Defendant first argues that the State's evidence failed

to prove his guilt beyond a reasonable doubt.   Specifically, he

contends that he was convicted "on the basis of unreliable and

conflicting stories."

          In People v. Collins, 214 Ill. 2d 206, 217, 824 N.E.2d

262, 267-68 (2005), the supreme court addressed a challenge to

the sufficiency of the State's evidence and wrote the following:

          "We review a challenge to the sufficiency of

          the evidence to determine '"whether, after

          viewing the evidence in the light most favor-

          able to the prosecution, any rational trier

          of fact could have found the essential ele-

          ments of the crime beyond a reasonable

          doubt."'   (Emphasis omitted.)   People v. Cox,

          195 Ill. 2d 378, 387[, 748 N.E.2d 166, 172]

          (2001), quoting Jackson v. Virginia, 443 U.S.

          307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct.

          2781, 2788-89 (1979).   We will not reverse a

          conviction unless the evidence is so improba-

          ble, unsatisfactory, or inconclusive that it

          creates a reasonable doubt of defendant's

          guilt. [Citation.]   In reviewing the evi-

          dence, it is not the function of the court to


                               - 4 -
           retry the defendant, nor will we substitute

           our judgment for that of the trier of fact."

           In People v. Cunningham, 212 Ill. 2d 274, 818 N.E.2d

304 (2004), the supreme court addressed a defendant's attack on

the sufficiency of the State's evidence based on his claim that

the testimony of a particular witness was not worthy of belief.

In so doing, the court discussed the reviewing court's role as

follows:

           "The reviewing court must carefully examine

           the record evidence while bearing in mind

           that it was the fact finder who saw and heard

           the witness.   [People v.] Smith, 185 Ill. 2d

           [532,] 541[, 708 N.E.2d 365, 369 (1999)].

           Testimony may be found insufficient under the

           Jackson standard, but only where the record

           evidence compels the conclusion that no rea-

           sonable person could accept it beyond a rea-

           sonable doubt.   See, e.g., Smith, 185 Ill. 2d

           at 545[, 708 N.E.2d at 371] (holding that no

           reasonable person could find the witness'

           testimony credible) *** ."   Cunningham, 212

           Ill. 2d at 280, 818 N.E.2d at 308.

           Judged in accordance with the foregoing standards, we

conclude that the evidence was sufficient to sustain defendant's


                                - 5 -
conviction.   In so concluding, we note defendant admitted (1) he

spoke with McDonald on August 18, 2005, (2) Woods "came from out

of nowhere," (3) he grabbed McDonald restraining him, (4) he

observed Woods remove the cell phone and money from McDonald's

pocket, and (5) he "walked off."   Thus, the jury could have found

beyond a reasonable doubt that defendant committed the offense of

robbery.

           Defendant next argues that the trial court erred in not

ruling on his motion in limine, prior to his testimony, as to

whether his prior convictions could be used to impeach him.

           We note defendant does not argue the trial court failed

to apply the proper balancing test (see People v. Montgomery, 47

Ill. 2d 510, 268 N.E.2d 695 (1971)) and does not argue the court

abused its discretion in determining to admit the two convictions

for impeachment purposes.   The only issue before us is whether

the court erred in not ruling on the motion in limine prior to

defendant testifying.

           Because a motion in limine typically asks the trial

court to bar certain evidence, the supreme court has deemed such

motions "powerful weapons" and has urged caution in their use.

Reidelberger v. Highland Body Shop, Inc., 83 Ill. 2d 545, 550,

416 N.E.2d 268, 271 (1981).   For the same reasons that the

supreme court has ruled that trial courts have discretion before

granting a motion in limine, this court has held that trial


                               - 6 -
courts also possess the discretion to choose not to entertain a

motion in limine at all.    See People v. Ballard, 346 Ill. App. 3d

532, 543, 805 N.E.2d 656, 665 (2004); People v. Owen, 299 Ill.

App. 3d 818, 823, 701 N.E.2d 1174, 1178 (1998).

          "[A] court is fully justified to exercise its

          discretion by telling the moving party

          that[,]   for whatever reason[,] the court

          chooses not to entertain the party's motion

          in limine and instead will require the evi-

          dence in question, if it is to be offered at

          all, to be presented in the normal course of

          things during trial.    The court will then

          make its ruling upon the evidentiary question

          at issue when the matter has become ripe,

          assuming it ever does."        Owen, 299 Ill. App.

          3d at 823, 701 N.E.2d at 1178.

          "A trial court need not make a preliminary

          ruling on the admissibility of a defendant's

          prior convictions to impeach him before they

          become at issue, and they become at issue

          only after (1) a defendant has testified, and

          (2) the State seeks to introduce his prior

          convictions for impeachment purposes in its

          rebuttal case."    Ballard, 346 Ill. App. 3d at


                                 - 7 -
           543, 805 N.E.2d at 665, citing Owen, 299 Ill.

           App. 3d at 824-25, 701 N.E.2d at 1179.

For the foregoing reasons, the trial court did not err in refus-

ing to rule on defendant's motion prior to his testifying.

           Defendant also argues that the trial court erred in not

ruling on his motion in limine prior to his testimony on the

ground that defendant's constitutional right to testify at trial

was violated.   Defendant argues he was not provided "a fair

chance to weigh the costs and benefits of the decision as to

whether to exercise his constitutional right to testify."

           A defendant's right to testify at trial is a fundamen-

tal constitutional right, as is his right to choose not to

testify.   People v. Madej, 177 Ill. 2d 116, 145-46, 685 N.E.2d

908, 923 (1997); see Rock v. Arkansas, 483 U.S. 44, 51, 97 L. Ed.

2d 37, 46, 107 S. Ct. 2704, 2708 (1987) ("The right to testify on

one's own behalf at a criminal trial has sources in several

provisions of the Constitution").   The decision whether to

testify ultimately rests with the defendant (Madej, 177 Ill. 2d

at 146, 685 N.E.2d at 923); however, the defendant should make

that decision with the advice of trial counsel (People v. Smith,

176 Ill. 2d 217, 235, 680 N.E.2d 291, 303 (1997)).

           Here, the trial court declined to rule on the motion in

limine prior to defendant testifying, and the defendant testi-

fied.   Whether the trial court's failure to rule bore on defen-


                               - 8 -
dant's decision to testify is purely speculative.      We do not

agree that defendant was deprived of the information he needed to

make an informed and intelligent decision about whether to

testify.    Defendant was certainly aware of his prior convictions

and of the risk that the State might seek to impeach his testi-

mony by introducing evidence of one or more of those convictions.

The decision of whether to testify under those circumstances was

that of the defendant, not the court.      Even if the defense

strategy was greatly influenced by the risk that the defendant

would be impeached with his prior convictions, "the court was not

required to remove that risk in advance."      People v. Mims, 204

Ill. App. 3d 87, 96, 561 N.E.2d 1101, 1107 (1990).

            The trial court's failure to rule, prior to defendant

testifying, did not deprive defendant of his constitutional right

to testify because defendant still had the options to testify or

to choose not to testify.    Regardless of the court's ruling,

defendant chose to testify.    Defendant's constitutional right to

testify at trial was not violated.

            For the foregoing reasons, we affirm the trial court's

judgment.    As part of our judgment, we grant the State its

statutory $50 assessment against defendant as costs of this

appeal.

            Affirmed.

            KNECHT, J., concurs.


                                   - 9 -
COOK, J., dissents.




                      - 10 -
          JUSTICE COOK, dissenting:

          I respectfully dissent and would reverse and remand for

a new trial.

          Imagine a case where the defendant has made the firm

decision not to testify, but nevertheless files a motion to bar

admission of his prior convictions.     The defendant may file the

motion in hopes of injecting error into the record.    If the trial

court rules that a conviction is admissible, the defendant may

then complain that he would have testified, but for the erroneous

admission of the conviction.   The Supreme Court has refused to

review a ruling that a conviction is admissible, unless the

defendant testifies.   Luce v. United States, 469 U.S. 38, 41-43,

83 L. Ed. 2d 443, 447-49, 105 S. Ct. 460, 463-64 (1984).    In some

cases, of course, the admission of the conviction may truly be

the reason the defendant does not testify, but on balance the

belief has been that defendant must testify to preserve the

issue.   The defendant's choice is either to accept the ruling and

not testify or to testify and appeal the ruling.

          Trial courts sometimes take a similar approach, that

they are not going to rule on the admissibility of a prior

conviction unless the defendant testifies.    There is a differ-

ence, however, between an appellate court declining to review a

trial court's ruling and a trial court's declining to rule.

There may be no problem with the trial court's declining to rule


                               - 11 -
when the defendant does not testify, but there is a problem when

the defendant then does testify, as in this case.   At that point

it is no longer "speculation" whether the defendant is going to

testify, and by refusing to rule in advance the court has pre-

vented the defendant from making an intelligent choice whether

doing so is in his best interest.   Refusing to rule in advance

also prevents the defendant from making an anticipatory disclo-

sure of the convictions.   Anticipatory disclosure in the absence

of a pretrial or trial ruling permitting admissibility consti-

tutes a waiver of the right to raise error on appeal.   People v.

Williams, 161 Ill. 2d 1, 34-35, 641 N.E.2d 296, 310 (1994)

(defendant entitled to attempt to minimize the damage of prior

conviction evidence by introducing it himself).

          A trial court's refusal to rule in advance ignores

Montgomery's exhortation to trial judges to consider "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, 268 N.E.2d at 699; People v. Phillips, 371 Ill. App. 3d 948,

952, 864 N.E.2d 823, 828 (2007).

          Phillips found that the trial court abused its discre-

tion when it refused to rule prior to the defendant's direct

examination.   Phillips, 371 Ill. App. 3d at 952-53, 864 N.E.2d at

828.


                              - 12 -
           "We cannot fathom what more the judge needed

           in order to conduct the balancing test and

           rule on the admissibility of the prior con-

           victions.   The defendant was deprived of the

           information he needed to make an informed and

           intelligent decision about whether to tes-

           tify."   Phillips, 371 Ill. App. 3d at 952,

           864 N.E.2d at 828.

Nevertheless, the Phillips court declined to review the issue

because defendant did not testify.       Phillips, 371 Ill. App. 3d at

954, 864 N.E.2d at 829.    Our court has taken a similar approach.

"What more did the trial court need to know ***? *** We conclude

the court should have ruled and then defendant could meaningfully

consider whether to exercise his right to testify."       Ballard, 346

Ill. App. 3d at 544-45, 805 N.E.2d at 666.

           We affirmed in Ballard because the defendant did not

testify.   The defendant in the present case, however, did tes-

tify.   What justification is there for the trial court's refusal

to rule in this case?    As discussed above, the argument that a

trial court needs to hear the defendant's testimony before ruling

whether prior convictions are admissible has been rejected.

           "There may be times when a trial court cannot

           effectively conduct the Montgomery balancing

           test without hearing the defendant's direct


                                - 13 -
          testimony, although it is difficult to envi-

          sion that happening with any frequency.   In

          most cases, as was true in this case, the

          judge will have heard enough or been told

          enough to find the issue ripe for decision."

          Phillips, 371 Ill. App. 3d at 952-53, 864

          N.E.2d at 828.

No special reasons for refusal to rule in advance are argued in

this case.   The fact that motions in limine should be used

cautiously in civil cases does not justify their wholesale

rejection when a Montgomery issue is raised.




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