                                                    SECOND DIVISION
                                                    March 6, 2007




No. 1-04-2655

THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
     Plaintiff-Appellee,                  )    Cook County.
                                          )
          v.                              )
                                          )
EZEKIEL PHILLIPS,                         )    Honorable
                                          )    William G. Lacy,
     Defendant-Appellant.                 )    Judge Presiding.


     PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

     Ezekiel Phillips was charged with attempt first degree

murder, armed violence, and aggravated battery.   This wasn’t the

first time the defendant had been charged with armed violence and

aggravated battery.   He had been convicted of those offenses on

earlier occasions.    Before and during his jury trial, he moved to

bar use of the prior convictions to attack his believability when

he testified.   The trial court refused to rule, saying it wanted

to hear the defendant’s direct examination before deciding.   The

defendant did not testify.

     The question before us is whether the trial court abused its

discretion when it refused to rule and, if so, whether the error

will affect the defendant’s convictions for armed violence and

aggravated battery.

     For reasons that follow, we hold the trial court abused its
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discretion when it refused to rule on the defendant’s motion, but

that the great weight of authority compels us to decline to

consider whether the error supports a change in outcome.    We

affirm the defendant’s convictions; we vacate his sentences and

remand the cause for a new sentencing hearing.

FACTS

     We briefly summarize the state of the record at the point

where the defense again moved to bar use of defendant’s prior

convictions.

     At trial, the State presented evidence that on June 26,

2000, the defendant stabbed Daryl Willis.   Willis testified that

defendant approached him outside a liquor store near Roosevelt

and Loomis streets in Chicago.   Defendant told Willis he did not

appreciate how Willis had disrespected him the other day.

Defendant said, "This is what I do to tough niggers," and stabbed

Willis in the stomach.   While Willis was on his back, defendant

attempted to stab him again and cut Willis’ leg.   According to

Willis, defendant grabbed Willis’ head and put a knife under his

throat.   A woman grabbed the defendant’s hand and begged him not

to kill Willis.   Defendant then left the scene.   Laboratory and

medical reports showed Willis was heavily intoxicated when he was

treated for stab wounds.

     In her opening statement, defense counsel told the jury the


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evidence would show defendant was acting in self-defense because

Willis hit the defendant with a two-by-four.    Defense witness

Cynthia Traylor testified that prior to the confrontation, Willis

was intoxicated and acting very violently.    She heard Willis tell

defendant to "suck [his] French Dick" and saw Willis pick up a

two-by-four and swing it at the defendant.    He struck defendant

with the two-by-four.    She then saw defendant stab Willis.

     Witness Bridget Godfrey said she saw defendant and Willis

arguing loudly on the sidewalk.    The defendant told Willis to go

away and said he did not want to argue.    Willis then picked up a

two-by-four and began swinging it at defendant.    Godfrey said

defendant was struck more than once by the two-by-four.      The next

thing she saw was Willis falling to the sidewalk.    She did not

see the defendant holding a knife.

     After its eyewitness testimony, the defense renewed its

motion in limine and asked the court to determine whether

defendant’s prior convictions would be admissible if he were to

testify.    The prior convictions were for armed violence,

aggravated battery, domestic battery, and manufacture or delivery

of a controlled substance.    The court said one conviction,

domestic battery, would not come in because it was older than ten

years.   As to the remaining convictions, the judge said:

            "*** The other three convictions I was told


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            about were three felony convictions and they

            are all within ten years of today, given the

            length of the sentences of those two previous

            cases, so they do meet the first two prongs.

            The third prong is whether the court must

            conduct an analysis as to whether or not this

            evidence of the prior convictions which would

            only be contracted [sic] as to the

            defendant’s credibility is more probative

            than prejudicial, and it is my feeling that

            in order to conduct such an analysis I would

            have to hear all the evidence in the case,

            and until I have heard the defendant testify

            I can’t determine whether it’s more probative

            than prejudicial.   For that reason I would

            rule; but to rule now would be premature,

            which is this court’s opinion, which I know

            the defense disagrees with."

     The defendant then chose not to testify.     The jury returned

a verdict of not guilty of attempt first degree murder, but

guilty of armed violence and aggravated battery.     The trial court

denied defendant’s motion for a new trial and sentenced the

defendant to life imprisonment for the armed violence conviction


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and five years’ imprisonment for each of the aggravated battery

convictions, to merge and run concurrently.    The defendant was

absent at the time the jury returned its verdict and during the

sentencing hearing.    There is nothing in the record to indicate

the trial court admonished defendant that he could be sentenced

in absentia.

DECISION

I. Refusal to Rule

     In People v. Montgomery, 47 Ill. 2d 510, 519, 268 N.E.2d 695

(1971), the court adopted the 1971 proposed draft of Federal Rule

of Evidence 609.    In Illinois, with age limitations inapplicable

to this case, a prior conviction may be used to impeach a

defendant where: (1) the prior conviction was for a crime

punishable by death or imprisonment in excess of one year, or a

crime involving dishonesty or false statement; and (2) the danger

of unfair prejudice does not substantially outweigh the probative

value of the conviction.    Montgomery, 47 Ill. 2d at 516; People

v. Cox, 195 Ill. 2d 378, 383, 748 N.E.2d 166 (2001).     In

performing the balancing test, courts consider:

            " ‘the nature of the prior crimes, ***the

            length of the criminal record, the age and

            circumstances of the defendant, and, above

            all, the extent to which it is more important


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            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 Fed.

            R. Evid. 609 advisory committee notes.

     The trial court uses its discretion when conducting the

balancing test to determine whether a witness’s prior conviction

is admissible for impeachment.    Cox, 195 Ill. 2d at 383.

Convictions for the same violent crime defendant is on trial for

should be admitted "sparingly."       People v. Williams, 161 Ill. 2d

1, 38, 641 N.E.2d 296 (1994).    Failure to conduct a "meaningful"

balancing test violates Montgomery.      People v. McGee, 286 Ill.

App. 3d 786, 793, 676 N.E.2d 1341 (1997).

     We do not reach the question of whether defendant’s prior

convictions could be used to attack his character for

truthtelling.    Nor are we called on to decide whether the

defendant’s failure to testify waives review of a trial court’s

decision to allow use of the defendant’s prior convictions to

attack his believability.    See Luce v. United States, 469 U.S.

38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984); People v. Steward,

295 Ill. App. 3d 735, 748-49, 693 N.E.2d 436 (1998).      Those are

not matters for this appeal.    The only issues before us are

whether the trial court’s refusal to rule until it heard the


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defendant’s direct examination was an abuse of discretion, and,

if it was, how do we determine what to do about it when he does

not testify?

     While a criminal defendant’s trial lawyer has the right to

make ultimate decisions about matters of tactics and strategy,

the decision about whether to testify "ultimately belongs to the

defendant," not his lawyer.    People v. Medina, 221 Ill. 2d 394,

403, 851 N.E.2d 1220 (2006).   The defendant’s right to testify

"is fundamental," not a matter of strategy or tactical decision

best left to trial counsel.    Steward, 295 Ill. App. 3d at 743;

People v. Daniels, 230 Ill. App. 3d 527, 535, 595 N.E.2d 83

(1992).   The defendant’s right to testify is grounded in the

Fifth and Sixth amendments to the United States Constitution.

Rock v. Arkansas, 483 U.S. 44, 52-54, 97 L. Ed. 2d 37, 46-48, 107

S. Ct. 2704, 2709-11 (1987).

     It necessarily follows that a decision of such grave import

should be made intelligently, based on relevant and available

information.   See United States v. Oakes, 565 F.2d 170, 171 (1st

Cir. 1977).    In this case, potential use of the defendant’s prior

convictions, violent in nature and identical to the charges

against him, had to be a factor that would weigh heavily on the

decision to testify.

     When the prior convictions are similar to or identical with


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the charges at trial, the risk of unfair prejudice weighs

heavily.    Williams, 161 Ill. 2d at 37-38; see R. Wissler and M.

Saks, On the Inefficacy of Limiting Instructions, 9 Law and Human

Behavior 37, 37-48 (1985).    That is, the defendant in this case

faced the kind of unfair prejudice that "speaks to the capacity

of some concededly relevant evidence to lure the factfinder into

declaring guilt on a ground different from proof specific to the

offense charged."     Old Chief v. United States, 519 U.S. 172, 180,

136 L. Ed. 2d 574, 588, 117 S. Ct. 644, 650 (1997).    The risk,

obviously recognized by the defendant’s lawyer, is that the jury

would use the prior convictions as proof of the defendant’s

violent character, an improper purpose.    By taking the stand this

defendant would have been engaging in a high-stakes gamble.

     By the time defense counsel renewed his motion to bar the

prior convictions the issues to be decided by the jury were

clearly drawn.   The court had heard opening statements, cross-

examination of the State’s witnesses, and the testimony of two

defense eyewitnesses.    There was no question about it: the

defendant was not denying he stabbed Willis; he was claiming he

acted in self-defense because an intoxicated man was striking him

with a two-by-four.    The court eventually held the evidence

without defendant’s testimony was sufficient to support self-

defense instructions.


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1-04-2655

     We cannot fathom what more the judge needed in order to

conduct the balancing test and rule on the admissibility of the

prior convictions.    The defendant was deprived of the information

he needed to make an informed and intelligent decision about

whether to testify.   Few defense attorneys on the plus side of

Strickland would advise a client to testify without knowing

whether prior convictions for violent crimes identical to the

charges in the case would be allowed to attack the defendant’s

character for truthfulness.   See Strickland v. Washington, 466

U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).   The

defendant’s state of mind was a material issue for his

affirmative defense of self-defense.    People v. Parker, 194 Ill.

App. 3d 1048, 1058, 551 N.E.2d 1012 (1990).   Only the defendant

could provide direct evidence of his reasons for stabbing Willis.

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," went unheeded.    Montgomery,

47 Ill. 2d at 518, quoting Fed. R. Evid. 609 advisory committee

notes.   We find the trial court abused its discretion when it

refused to rule without first hearing the defendant’s direct

examination.

     Our decision is based on the particular facts of this case.


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We do not suggest a per se rule.     There may be times when a trial

court cannot effectively conduct the Montgomery balancing test

without hearing the defendant’s direct testimony, although it is

difficult to envision 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.

     Once having found the trial court abused its discretion by

refusing to rule, we should determine our next step.    But the

great weight of authority in this State requires us to say there

is no next step.   At least, not one that can be taken without

engaging in speculation and guesswork.

     Our supreme court has never addressed the question of how to

proceed on review when the trial court refuses to rule on

admissibility of prior convictions and the defendant then

declines to testify.   But our appellate courts have.   Six times.

On each of those six occasions the court has held the defendant’s

failure to testify eliminates the trial court’s refusal to rule

as a reviewable issue.   Those cases are:

     (1) People v. Ballard, 346 Ill. App. 3d 532, 543, 805 N.E.2d

656 (2004) (The harm caused by refusal to rule is speculative);

     (2) People v. Owen, 299 Ill. App. 3d 818, 824-25, 701 N.E.2d

1174 (1998) (Court’s refusal to rule becomes an issue only after

defendant has testified and State seeks to offer his prior


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convictions for impeachment purposes);

     (3) People v. Mims, 204 Ill. App. 3d 87, 96, 561 N.E.2d 1101

(1990) (Defendant’s failure to testify makes the no-ruling issue

"academic");

     (4) People v. Rose, 75 Ill. App. 3d 45, 53, 393 N.E.2d 698

(1979) (The trial court was not required to rule on the motion

until defendant testified);

     (5) People v. Hunter, 61 Ill. App. 3d 588, 597-98, 376

N.E.2d 1065 (1978) (The court may withhold its ruling on

admissibility of defendant’s prior convictions until after the

defendant has testified);

     (6) People v. Barksdale, 24 Ill. App. 3d 489, 496, 321

N.E.2d 489 (1974) (The trial court should have discretion to

withhold ruling on motion to bar prior convictions until the

defendant has testified).

     The federal courts, too, have adhered to the notion that a

refusal to rule on admissibility of prior convictions until the

defendant testifies is within the trial court’s discretion and

nonreviewable on appeal when the defendant does not testify.    See

United States v. Martinez, 76 F.3d 1145, 1151-52 (10th Cir.

1996); United States v. Doyle, 771 F.2d 250, 254-55 (7th Cir.

1985).

     Some courts in other states have expressed a strong


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preference for trial court rulings on prior conviction use before

the defendant decides whether to take the stand.    See Settles v.

State, 584 So. 2d 1260, 1263-64 (Miss. 1991); Apodaca v. People,

712 P.2d 467, 473-74 (Colo. 1986); State v. McClure, 692 P.2d

579, 583-84 (Or. 1984); State v. Porter, 674 P.2d 694, 695 (Wash.

App. 1984); State v. Ritchie, 473 A.2d 1164, 1165 (Vt. 1984);

People v. Sangster, 333 N.W.2d 180, 183 (Mich. App. 1983); and

People v. Sandoval, 314 N.E.2d 413, 416-17 (N.Y. 1974).

     At times, a court, when declining to review a trial judge’s

nonruling where the defendant does not testify, will express

disapproval of the failure to rule.    While the court in Ballard,

346 Ill. App. 3d at 544-45, found the refusal to rule was not

error, it questioned that refusal:

            "What more did the trial court need to know,

            particularly after defense witnesses

            testified? *** We conclude the court should

            have ruled and then defendant could

            meaningfully consider whether to exercise his

            right to testify."

     Still, encumbered as we are by precedent in this State, we

decline to further review the trial court’s erroneous refusal to

rule on defendant’s motion to bar use of his prior convictions

until he testified on direct examination.    See People v. Sharpe,


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216 Ill. 2d 481, 519-20, 839 N.E.2d 492 (2005) ("The doctrine of

stare decisis expresses the policy of the courts to stand by

precedents and not to disturb settled points").   Since this is

the only issue the defendant raises to attack his convictions, we

affirm the convictions and move on to other issues in this

appeal.

II. Sentencing Hearing

     Defendant contends the trial court erred in sentencing him

in absentia after failing to admonish him of that possibility.

Section 113-4(e) of the Code of Criminal Procedure requires the

trial court to admonish the defendant of the possibility of trial

and sentencing in absentia, even in the case of a defendant who

flees before trial.    725 ILCS 5/113-4(e) (West 2002); People v.

Partee, 125 Ill. 2d 24, 40, 530 N.E.2d 460 (1988); People v.

Thomas, 216 Ill. App. 3d 405, 408, 576 N.E.2d 352 (1991).    In the

absence of an admonishment, sentencing in absentia constitutes

error.    Thomas, 216 Ill. App. 3d at 408.

     The record does not reflect that a section 113-4(e)

admonition was given to the defendant.   We vacate defendant’s

sentences and remand the cause for a new sentencing hearing.

III. Mittimus

     Defendant contends, and the State agrees, the mittimus is

incorrect because it states defendant was convicted of three

separate counts of aggravated battery.   At sentencing, the trial

court ordered the three aggravated battery sentences to merge and



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to run concurrently with the natural life sentence.            The mittimus

also reflects incorrectly that defendant was convicted of

unlawful use of a weapon by a felon.        Because we are vacating

defendant’s sentences and remanding for a new sentencing hearing,

there is no need for us to correct the mittimus.            It should be

corrected in the trial court.

CONCLUSION

     We affirm the defendant’s convictions.          We vacate

defendant’s sentences and remand for a new sentencing hearing.

     Affirmed and remanded for resentencing.

     SOUTH, J., concurs.

     JUSTICE HOFFMAN, specially concurring:

     I concur in the result reached by the majority in this case.

I write separately to articulate my reasons for so concurring.

     The majority takes the position that we are not called upon to

decide whether the defendant’s failure to testify waives review of

a trial court’s decision to allow use of the defendant’s prior

convictions to attack his believability.            Strictly speaking the

majority    is    correct.    The   trial   court   never    ruled   on    the

defendant’s motion to bar the State’s use of his prior convictions

for impeachment purposes.       To my mind, however, "[t]he effect of

the court’s action was the same as if the court had in fact denied

the motion without prejudice to renewing it after [the] defendant

testified."      People v. Rose, 75 Ill. App. 3d 45, 52, 393 N.E.2d 698

(1979).



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     The Supreme Court has taken the position that a trial court’s

denial of a defendant’s motion in limine seeking to bar the use of

prior convictions for impeachment purposes is not preserved for

review unless the defendant testifies.          Luce v. United States, 469

U.S. 38, 41-43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).              I am at a

loss to understand why the result should be any different when a

trial court declines to rule on such a motion and the defendant

elects not to testify.

     The Luce Court held that any possible harm flowing from a

trial court’s denial of a motion in limine to bar impeachment by a

prior conviction is wholly speculative absent the defendant having

testified and the prosecution having been allowed to use the

defendant’s prior convictions to impeach him.             As the Court noted,

the trial judge might, in the exercise of discretion, alter the

previous    ruling   and   bar   the    use    of   the   defendant’s    prior

convictions for impeachment purposes, or the prosecution might

elect not to use an arguably inadmissible prior conviction.              Luce,

469 U.S. at 41-42.     The circumstance is no different when a trial

court declines to rule on such a motion and the defendant does not

testify.     Whether   the   State     would   have   attempted   to    use   an

inadmissible prior conviction to impeach the defendant or whether

the trial court would have allowed impeachment by prior conviction

are matters of pure speculation.

     The    majority   correctly       holds   that   a    defendant    has    a

constitutional right to testify, but comes short of declaring that



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the trial court denied him that right in this case.            Instead, the

majority concludes that "[t]he defendant was deprived of the

information he needed to make an informed and intelligent decision

about   whether   to   testify."     I    disagree.     The   defendant   was

certainly aware of his prior convictions and of the risk that the

State might seek to impeach his testimony 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

(1990).     In this case, the question of whether the defendant’s

prior convictions would be admissible for purposes of impeachment

never became an issue which the trial court was obligated to

resolve because the defendant never testified and the State never

attempted to introduce the convictions.           People v. Ballard, 346

Ill. App. 3d 532, 543, 805 N.E.2d 656 (2004); People v. Owen, 299

Ill. App. 3d 818, 824-25, 701 N.E.2d 1174 (1998); see also Rose, 75

Ill. App. 3d at 52-53.         Further, the assumption that the trial

court’s refusal    to   rule   on   the   defendant’s    motion   in   limine

motivated his decision not to testify is unsupported speculation.

See Luce, 469 U.S. at 42.

     Unlike the majority, I do not feel "encumbered" by precedent

in this area; rather I completely agree with the earlier decisions



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of this court holding that a trial court’s refusal to rule on a

motion   in    limine    to   bar   impeachment        by   evidence   of   a   prior

conviction is not reviewable.                  It is only when the defendant

testifies and the State introduces evidence of a prior conviction

for purposes of impeachment that a claim of error in admitting such

evidence can be presented to a reviewing court in a concrete

factual context.        See Luce, 469 U.S. at 43-44.           If this court were

to review a trial court’s refusal to rule on such a motion in

limine in cases where the defendant elects not to testify, we would

necessarily be required to engage in pure speculation as to the

reasons why the defendant did not testify.

     For      these   reasons,      I   concur    in    the   affirmance    of    the

defendant’s conviction.          Additionally, for the reasons stated by

the majority, I concur in the vacation of the defendant’s sentence

and remand of this case to the circuit court for a new sentencing

hearing.




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