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                              Appellate Court                           Date: 2017.05.18
                                                                        10:09:01 -05'00'




                  People v. Garner, 2017 IL App (2d) 150045



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JEROME GARNER, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-15-0045



Filed             March 24, 2017



Decision Under    Appeal from the Circuit Court of Stephenson County, No. 14-CF-216;
Review            the Hon. Michael P. Bald, Judge, presiding.



Judgment          Affirmed.



Counsel on        Thomas A. Lilien, Patricia Mysza, and Robert N. Markfield, of State
Appeal            Appellate Defender’s Office, of Elgin, for appellant.

                  Carl H. Larson, State’s Attorney, of Freeport (Lawrence M. Bauer and
                  Ivan O. Taylor, Jr., of State’s Attorneys Appellate Prosecutor’s
                  Office, of counsel), for the People.



Panel             JUSTICE HUTCHINSON delivered the judgment of the court, with
                  opinion.
                  Justices Burke and Spence concurred in the judgment and opinion.
                                                 OPINION

¶1       After a jury trial, defendant, Jerome Garner, was convicted of domestic battery (720 ILCS
     5/12-3.2(a)(1) (West 2014)). He was acquitted of aggravated domestic battery (720 ILCS
     5/12-3.3(a-5) (West 2014)) and unlawfully interfering with the reporting of domestic violence
     (720 ILCS 5/12-3.5(a) (West 2014)). The trial court denied defendant’s posttrial motion and
     sentenced him to 30 months’ imprisonment. On appeal, he contends that the court erred in
     allowing the State to impeach him with his conviction of a felony cannabis offense. We affirm.
¶2       The State alleged that defendant committed (1) domestic battery in that, on or about August
     3, 2014, he knowingly caused harm to Katie K. by choking her with his hands, and he had
     previously been convicted of domestic battery; (2) aggravated domestic battery in that, in
     addition to the foregoing, he applied pressure to Katie’s throat and neck area, impeding her
     normal blood circulation or breathing; and (3) interference with the reporting of domestic
     violence in that he knowingly prevented Katie from calling the police by taking away her cell
     phone.
¶3       Before trial, defendant moved to bar the State from impeaching him with evidence of his
     prior convictions of (1) domestic battery and (2) a felony involving cannabis.1 At a hearing on
     the motion, the State argued in part that the cannabis conviction should be admitted because
     the charge was dissimilar to the ones on which defendant was now being tried and it had
     impeachment value as “a crime against society.” The judge barred the domestic battery
     conviction but allowed the cannabis conviction. He stated that, under the balancing test of
     People v. Montgomery, 47 Ill. 2d 510 (1971), and People v. Williams, 161 Ill. 2d 1 (1994), the
     cannabis conviction’s probative value as impeachment outweighed its potential for undue
     prejudice but the domestic battery conviction was too prejudicial. He did not elaborate or cite
     any case authority other than the general reference to Montgomery and Williams.2
¶4       At trial, the State’s first witness was Nichole Mashaw. On direct examination, she testified
     as follows. At about 2:30 a.m. on August 3, 2014, she was standing in front of her house at 601
     North Brewster in Freeport. A car pulled up down the street. An African-American man
     approached the car and went around to the driver’s side. A white woman got out of the car. The
     man “proceeded to take her by the throat, or whatever, and drag her to like the house, or
     whatever, and she was screaming.” Mashaw entered her house to call the police.
¶5       Mashaw testified on cross-examination as follows. The woman was the only person inside
     the car, as far as Mashaw could see. The encounter took place about 30 to 40 yards away on the
     same side of the street. Mashaw testified inconsistently as to which side of the car the woman
     exited from and on which side the man approached her. On redirect examination, Mashaw
     testified that the woman exited the vehicle by herself and was then dragged toward the house.


         1
           The exact charge of which defendant was convicted is not apparent from the record, but the parties
     agree that it was a felony involving cannabis.
         2
           We note that the Montgomery test for allowing impeachment by evidence of conviction of a crime
     has been codified. Ill. R. Evid. 609 (eff. Jan. 1, 2011). Although Rule 609 had been in effect for several
     years when defendant was tried, neither the parties nor the trial court made any reference to it. The
     omission is of no consequence here, however, as the rule simply tracks the holding of Montgomery,
     without any change that is pertinent here.

                                                     -2-
¶6         Katie testified on direct examination as follows. On August 3, 2014, she had been dating
       defendant for almost a year. She lived at Yellow Creek Court; he lived on Brewster. On August
       3, 2014, she dropped him off on Brewster and went to a convenience store. She saw
       defendant’s cousin Ontario McClain and McClain’s friend. McClain asked her for a ride home,
       so Katie let him and his friend into the car. Defendant then called and told Katie that he had her
       license. She told him that she would be back to get it, and she added that she had McClain in
       the car. Defendant told her that she “better not have nobody in [her] f’ing car.” She responded
       that McClain was defendant’s cousin and needed a ride home. She drove back to Brewster.
¶7         Katie testified that, when she pulled up, defendant got upset again and told her that she
       “shouldn’t have had nobody fucking [sic] in that car.” Defendant then pulled open the driver’s
       door and saw that Katie was holding her cell phone and “already had the cops [sic] number
       because [she] was ready to call them.” Defendant took the phone and removed the keys from
       the ignition. By then, Katie had exited the car and was asking defendant to return the phone and
       the keys so that she could go. Defendant was angry. Katie started to walk backward toward a
       house, where she could see that defendant’s cousin Tremana Davis had turned on the lights.
       (Defendant resided next door.) As Katie tried to get to the house, defendant reached out and
       placed his hands completely around her neck. She tried to pull them away but could not. She
       briefly had trouble breathing but did not gasp for air. She was screaming, and the choking
       caused her pain. They ended up inside the house.
¶8         Katie testified that Davis told defendant to let Katie go. Defendant finally did, and Davis
       kept her and defendant separated. Katie pleaded with defendant to give her the keys and the
       phone. He made her promise not to call the police and then gave her the keys and the phone.
       Katie drove away, dropped off McClain, and called the police. Later that day, officers came to
       her apartment and photographed her injuries. Katie identified five photographs, which were
       published to the jury. Katie testified that her neck was “completely red” from the left side
       around the front to the right side and that she had some marks on the right side that “almost
       looked like scratches.” She did not go to the hospital.
¶9         Katie testified on cross-examination as follows. As she pulled up, defendant came to the
       driver’s side, opened the door, shut the car off, and took the keys. McClain jumped out of the
       car when he saw defendant come after Katie. Katie was holding her phone; defendant took it.
       Katie exited the car and asked him to return the phone and the keys so that she could leave.
       Defendant had the phone and the keys in his hand the whole time. There were no steps up to the
       front door of the house. When Davis opened the door, defendant was still choking her.
¶ 10       Katie testified that defendant did not drag her toward the house; she backpedaled toward it.
       Earlier that evening, she had had “a couple drinks,” but they had not affected her memory. On
       redirect, Katie testified that she did not know what had been “going on with the phone and the
       keys” (her attorney’s phraseology) while defendant had been choking her.
¶ 11       Curt Coplien, a Freeport police officer, testified that, at around 2:30 a.m. on August 3,
       2014, he spoke to Katie at her apartment. She had red discolorations around the front and sides
       of her neck near the base and some scratches on the left side that were starting to welt over.
       Coplien photographed the injuries. In the photographs, the redness appeared lighter than it had
       in person. When he spoke to Katie, she did not appear to be under the influence of anything.
¶ 12       The State rested. Defendant testified on direct examination as follows. On August 3, 2014,
       he resided next door to Davis. Early that morning, Katie dropped defendant off. He went to
       Davis’s residence. Katie returned; McClain and his friend were with her. Defendant went

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       outside, opened the driver’s door, and told Katie that she should not be driving, because she
       was drunk. He suggested that they go inside and discuss the problem. Katie became angry and
       started calling him “fuckhead” and other names. She exited the car. Defendant took her phone
       off the console, grabbed her purse, and removed the car keys. He took the phone and the purse
       because he did not want McClain’s friend near them. He took the keys because Katie was
       drunk. The two men got out of the car.
¶ 13        Defendant testified that next he closed the car door and told everyone to go inside “to solve
       this mess.” Katie started to fall, so defendant grabbed her around the waist with his left hand
       and said “come on, baby, you know, you [sic] drunk.” She started yelling and cursing.
       Defendant told her to quiet down. They went to Davis’s house. Defendant knocked and asked
       Davis to open the door. Davis did so, and Katie fell down at the base of the steps leading to the
       second floor. Defendant grabbed her and got her up, and they entered the house. Defendant did
       not drag Katie into the house or put his hands around her neck. Inside, he put the phone, keys,
       and purse onto a table. Katie kept cursing and said that she just wanted to go. Defendant told
       her that she did not need to go right yet. She responded, “Give me my shit, I want to go.” Davis
       told defendant to let Katie go. Defendant told Katie to leave.
¶ 14        Defendant testified that, when Katie first pulled up, he did not put his hands around her
       neck. Instead, he grabbed her around the waist with his left hand while he held the phone and
       the purse in his right hand and the keys in his left hand, with the key ring around his finger.
       When defendant picked up Katie’s phone, the screen was blank.
¶ 15        Defendant agreed with his attorney that he had been “in trouble in the past” on “a cannabis
       charge.” He then agreed that “[t]hat really ha[d] nothing to do with this here though today.”
¶ 16        On cross-examination, the prosecutor first asked defendant, “Isn’t it true that [the cannabis
       charge] was a felony and you were convicted of that offense in April 2013, felony offense for
       cannabis?” Defendant responded, “I believe so.”
¶ 17        Defendant’s testimony on cross-examination continued as follows. When Davis held the
       door open, Katie fell over the steps. Defendant did not see which part of her body hit the steps
       first. Before Katie dropped off defendant, they had been drinking at a bar. He had not been
       angry at her for having another man in the car; McClain was his cousin, so there was no reason
       to be upset. Shown the photographs that the police had taken, defendant testified that he did not
       know how Katie had gotten the redness and injuries to her neck. When he was arrested,
       defendant told the officer that Katie had been drinking and driving.
¶ 18        On redirect examination, defendant’s attorney returned to the “cannabis charge in 2013”
       and asked, “Again, that’s over and done with, right?” Defendant agreed. Defendant then
       clarified that, although there were no steps in front of the door to Davis’s house, a staircase to
       the side led to the second story; that was where Katie fell. When defendant saw Davis, he
       turned his head and asked Davis to open the door, losing his grip on Katie; she then fell.
¶ 19        In rebuttal, Mashaw testified that, when she saw the incident, the couple was “[n]ot very far
       at all” from entering the house. She did not see “any tender loving holding up” of the woman
       by the man. Mashaw was sure that she saw him choke the woman. She also saw him drag the
       woman.
¶ 20        Coplien testified that, when he met Katie, he noticed no signs of intoxication. The redness
       around her neck looked about 20 minutes old but diminished as they talked. The redness
       extended from approximately under one ear to approximately under the other ear.


                                                   -4-
¶ 21        Katie testified that, when she exited the car, defendant did not tell her that she was drunk or
       that she should not be driving. He did not wrap his arm around her waist and help her to the
       door. She did not fall on or near any steps. Defendant did not take her purse. After Katie got
       home, she called the police. Before the police arrived, she changed her clothes but did not
       wash. She had been drinking “a little bit” that night, but she had not been falling over.
¶ 22        In closing argument, the State noted that defendant’s 2013 cannabis conviction could be
       considered as impeachment. The offense was “a crime of dishonesty against society” that went
       to whether defendant’s testimony was credible. Neither party mentioned the conviction again.
       The jury found defendant guilty of domestic battery and not guilty of the other two charges.
       The court sentenced him to 30 months’ imprisonment. He timely appealed.
¶ 23        On appeal, defendant contends that the trial court abused its discretion in allowing the State
       to impeach him with his cannabis conviction. Defendant notes that the trial court purportedly
       applied Montgomery’s balancing test but did not explain why the conviction was probative of
       defendant’s testimonial credibility. Defendant also argues that the State’s rationale for
       introducing the conviction—that the offense was “a crime against society”—was improper
       under the case law. For the following reasons, we cannot say that the trial court erred.
¶ 24        The trial court’s admission of a prior conviction for impeachment will not be disturbed
       absent an abuse of discretion. People v. Neely, 2013 IL App (2d) 120043, ¶ 18. Under
       Montgomery, evidence of a prior conviction is admissible for impeachment if (1) the crime was
       punishable by death or imprisonment in excess of one year, or involved dishonesty or false
       statement regardless of the punishment; (2) less than 10 years has elapsed since the date of the
       conviction of the prior crime or the release of the witness from confinement, whichever was
       later; and (3) the probative value of admitting the prior conviction outweighs the danger of
       unfair prejudice. People v. Mullins, 242 Ill. 2d 1, 14 (2011); Montgomery, 47 Ill. 2d at 516.
       Here, defendant does not dispute that his cannabis-related felony conviction met the first two
       criteria. He contends, however, that post-Montgomery authority, including Williams, People v.
       Siebert, 72 Ill. App. 3d 895 (1979), and O’Bryan v. Sandrock, 276 Ill. App. 3d 194 (1995),
       militate against finding that a conviction of a drug-related felony not involving dishonesty or
       false statement can survive Montgomery’s balancing test.
¶ 25        We cannot accept defendant’s reading of post-Montgomery authority. Since Williams, our
       supreme court has made clear that a conviction of a felony that does not directly involve
       dishonesty, such as the possession or delivery of a controlled substance, can still be admissible
       under Montgomery. Defendant’s argument ignores several crucial opinions that undercut his
       characterization of supreme court (and appellate court) precedent in this area.
¶ 26        Before examining the progression of the case law since Montgomery, we note that the trial
       judge’s failure to explain his decision in detail is not crucial. Indeed, a judge need not state
       explicitly that he is applying Montgomery’s balancing test. Mullins, 242 Ill. 2d at 16-17;
       People v. Atkinson, 186 Ill. 2d 450, 462-63 (1999). Here, the judge indisputably followed
       Montgomery, stating on the record that he was doing so (and that defendant’s domestic battery
       conviction failed the test and would be excluded).
¶ 27        We turn to the pertinent case law. In balancing probative value against undue prejudice, a
       trial court should consider the nature of the crime, its nearness or remoteness, the defendant’s
       subsequent criminal career, and whether the crime was similar to the one charged.
       Montgomery, 47 Ill. 2d at 518. In the wake of Montgomery, several courts had to decide
       whether drug-related felony convictions passed this test. Several others considered the

                                                    -5-
       admission of convictions of other felonies that did not directly involve lying or false
       statements. Although a few pre-Williams opinions provide some support for defendant, the
       opinions postdating Williams are to the contrary.
¶ 28        In People v. Ramey, 70 Ill. App. 3d 327 (1979), an armed-robbery case, the appellate court
       held that the defendant’s drug-possession convictions were proper impeachment because such
       offenses “ ‘indicate a disposition to place the advancement of individual self-interest ahead of
       principle or the interest of society’ ” (id. at 332 (quoting People v. Nelson, 31 Ill. App. 3d 934,
       938 (1975))) and because “an individual who obtains such substances does so by dishonest and
       evasive means, since their possession was in violation of the law” (id.).
¶ 29        In Siebert, however, where the defendant was convicted of attempted murder and delivery
       of a controlled substance, the appellate court held that the trial court had erred in allowing the
       State to impeach him with a conviction of possession of marijuana for sale. In part, this was
       because “possession of marijuana for sale does not have a direct bearing on honesty.” Siebert,
       72 Ill. App. 3d at 903. The court rejected Nelson’s reasoning: “any crime indicates” a
       disposition to place one’s self-interest ahead of principle or society’s interest. Id.
¶ 30        In People v. Spates, 77 Ill. 2d 193 (1979), the supreme court stated, “There is at least as
       reasonable a relation between theft and testimonial deceit as there is between an
       unquestionably admissible conviction for a violent felony, such as voluntary manslaughter,
       which is presumed to so relate.” Id. at 204. We note that, arguably, a violent felony is less
       probative of a defendant’s dishonesty than a drug-related offense. In People v. Tribett, 98 Ill.
       App. 3d 663 (1981), which involved a prosecution for possession of heroin, the appellate court
       upheld the use, for impeachment, of a prior conviction of possessing heroin, explaining that a
       conviction of possessing or delivering controlled substances is probative of testimonial
       credibility. Id. at 675-76.
¶ 31        In Williams, the defendant was convicted of first degree murder, conspiracy to commit
       murder, and armed violence and was sentenced to death. Williams, 161 Ill. 2d at 13-14. Before
       the supreme court, he argued that the trial court had erred in allowing the State to impeach him
       with his prior conviction of voluntary manslaughter. The court warned that the case law since
       Montgomery showed “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.”
       Id. at 38-39. In particular, admitting a felony conviction merely because it shows a disposition
       to place one’s interests ahead of society’s was inconsistent with Montgomery’s distinction
       between crimes that reflect on a defendant’s truthfulness as a witness and those that do not. Id.
       at 39.
¶ 32        The court held that the trial court had erred in admitting the defendant’s voluntary
       manslaughter conviction as substantive evidence of guilt instead of as impeachment. Id. at 40.
       But it also explained that the State had supplied no reason to believe that the prior conviction
       bore on his testimonial credibility. More was needed than that his crime showed “disrespect for
       societal order.” Id. at 41. (The court did hold the error harmless. Id.) The court did not,
       however, set out a per se rule that certain categories of crime cannot be considered probative of
       testimonial credibility and thus must fail the Montgomery balancing test. Indeed, the court
       cautioned, it was not holding that under no circumstances would a conviction of voluntary
       manslaughter be admissible to impeach a testifying defendant. Id. We note that voluntary
       manslaughter does not necessarily involve dishonesty.


                                                    -6-
¶ 33        Defendant relies heavily on an opinion in a civil negligence case, O’Bryan, which in turn
       relied on Housh v. Bowers, 271 Ill. App. 3d 1004 (1995). In Housh, the appellate court held
       that the trial court had erred in allowing the defendant to impeach the plaintiff with his felony
       conviction of a drug offense. Id. at 1006. The isolated five-year-old crime had no appreciable
       probative value but was highly prejudicial: “society presumes that ‘narcotics addicts are
       notorious liars’ and that ‘once a user or addict always a user or addict.’ ” Id. at 1007 (quoting
       Baldwin v. Huffman Towing Co., 51 Ill. App. 3d 861, 864 (1977)). In O’Bryan, the court
       applied this reasoning to the plaintiff’s felony conviction of possessing cocaine. O’Bryan, 276
       Ill. App. 3d at 195, 197.
¶ 34        Defendant fails to recognize that the opinions on which he relies are no longer good law
       (assuming that they were correctly decided at the time). In People v. Williams, 173 Ill. 2d 48
       (1996) (Frank Williams), the defendant was convicted of first-degree murder and two other
       violent felonies. Id. at 54. He argued that the trial court erred in allowing the State to impeach
       him with an aggravated battery conviction. The supreme court found no error. In so doing, it
       cautioned appellate courts not to overstate its holding in Williams.
¶ 35        The supreme court explained that Williams did not alter the three-pronged test of
       Montgomery but simply reminded courts that, before deciding whether to admit prior
       convictions for impeachment, they must apply “the critical balancing test.” Id. at 82. Although
       the court noted that there was language in Williams indicating “that this court no longer
       approved of the common rationale that a witness’ prior felony conviction may by itself evince
       disrespect for social order and therefore supply a proper basis for impeachment” (id.),
       Montgomery did not restrict the use of felony convictions for impeachment to “offenses that
       involve dishonesty or false statement” (id. at 83).
¶ 36        Although defendant ignores Frank Williams, that opinion is hard to reconcile with his
       theory that a conviction of an offense not involving dishonesty or false statement is not
       probative of testimonial credibility. Those opinions that have broadly characterized
       drug-related convictions as non-probative of testimonial credibility have not survived Frank
       Williams. As one court observed, “[a]ppellate decisions that indicate [that] 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 [Frank] Williams.” Stokes v. City of Chicago, 333 Ill. App. 3d
       272, 278-79 (2002).
¶ 37        It is debatable whether there was ever supreme court precedent for an essentially per se rule
       that convictions of certain felonies are improper impeachment. To the extent that there was,
       Frank Williams indeed “trumped” this authority and set a new precedent. And, since defendant
       relies on the reasoning of Siebert, Housh, and O’Bryan, the effect on his case is dispositive.
¶ 38        Moreover, in Mullins (which defendant does not mention until his reply brief), the supreme
       court poured cold water on the theory that convictions of drug-related felonies cannot
       ordinarily satisfy Montgomery. There, where the defendant was convicted of possessing a
       controlled substance with the intent to deliver, the supreme court held that the trial court did
       not abuse its discretion in admitting a prior felony drug conviction as impeachment. The court
       noted that, in a case where the defendant’s credibility is central, a prior conviction can be
       crucially important to the jury. Mullins, 242 Ill. 2d at 16 (citing Atkinson, 186 Ill. 2d at 462).
       The court recognized that Tribett had noted that “Illinois courts had repeatedly held that a
       conviction [of] the unlawful possession or delivery of controlled substances is the type of


                                                   -7-
       conviction which is probative of credibility and affords a basis for impeachment.” Id. at 18
       (citing Tribett, 98 Ill. App. 3d at 675-76).
¶ 39        In light of Mullins, defendant cannot successfully argue that the trial court abused its
       discretion in admitting his felony drug conviction as impeachment. Montgomery’s first two
       prongs were satisfied, and the only issue is whether the trial court abused its discretion in
       applying the third prong’s balancing test. We cannot say that it did.
¶ 40        Under Mullins, defendant’s cannabis conviction was probative of his testimonial
       credibility. Thus, he had to show that “the risk of unfair prejudice substantially outweigh[ed]
       the probative value of the conviction for impeachment purposes.” (Emphasis in original.)
       Stokes, 333 Ill. App. 3d at 279. The conviction appears to have been no less probative of
       testimonial credibility than were the drug felonies at issue in Mullins and Tribett. Moreover,
       the conviction was recent, one year before the offenses for which he was on trial, and involved
       an offense dissimilar to those offenses. The State emphasized that the conviction was relevant
       to credibility only, and the jury was so instructed.
¶ 41        Defendant contends that here, unlike in Mullins, the trial judge did not perform the
       Montgomery balancing test. The assertion is inaccurate. As noted, under Atkinson, the trial
       judge was not required to explain each step leading to his conclusion that the conviction passed
       the test. Further, the trial judge stated not only that he had applied the test to both prior
       convictions but that he was excluding one as more prejudicial than probative. Defendant does
       not address Mullins’ holding that prior convictions of drug felonies are probative of
       testimonial credibility—which effectively overruled the authority on which he relies in
       arguing otherwise.
¶ 42        For the foregoing reasons, the judgment of the circuit court of Stephenson County is
       affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $50
       as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2014); see also People v. Nicholls, 71 Ill.
       2d 166, 178 (1978).

¶ 43      Affirmed.




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