Opinion
5-21-0153
08-17-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE G. BENNETT, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Jefferson County. No. 18-CF-56 Honorable Jerry E. Crisel, Judge, presiding.
JUSTICE McHANEY delivered the judgment of the court. Presiding Justice Boie and Justice Cates concurred in the judgment.
ORDER
McHANEY, JUSTICE
¶ 1 Held: The trial court abused its discretion in admitting other-crimes evidence where its probative value was outweighed by its prejudicial impact.
¶ 2 On F ebruary 1, 2018, the defendant was charged by information with one count of unlawful delivery of a controlled substance (heroin) (720 ILCS 570/407(b)(2) (West 2018)). The indictment alleged that the defendant committed this offense by delivering less than one gram of a controlled substance to a confidential source. Following a jury trial, the defendant was found guilty. On September 14, 2018, the defendant was sentenced as a Class X offender to 20 years in the Illinois Department of Corrections, followed by 3 years mandatory supervised release.
¶ 3 For the following reasons, we reverse and remand.
¶ 4 I. BACKGROUND
¶ 5 A. Pretrial Motion
¶ 6 Prior to trial, the State filed a motion in limine pursuant to Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011) seeking to admit four of the defendant's prior convictions as other-crimes evidence, arguing that the prior convictions were relevant to show the defendant's intent and absence of mistake. In its written motion, the State sought to introduce into evidence the defendant's prior convictions stemming from the following charges: two counts of unlawful delivery of a controlled substance in 1983; unlawful possession of 15-100 grams of cocaine with the intent to deliver in 1991; and unlawful possession of a controlled substance in 2010.
¶ 7 At the motion hearing the State represented that it had "certified copies of convictions" for the prior convictions. Defense counsel argued that the other-crimes evidence was propensity evidence and was more prejudicial than probative. The trial court did not think the age of the prior convictions mattered and, therefore, found that the State could admit as other-crimes evidence the 1983 convictions because it was a "delivery case" and the 1991 conviction because it was "possession with intent to deliver." However, the trial court barred the possession of controlled substance conviction from 2010 since it was not a "delivery case."
¶ 8 B. Trial
¶ 9 At the close of its case in chief, the State sought to admit into evidence what it purported to be two certified copies of convictions. There was no testimony regarding the prior convictions. Review of the record reveals that one of the exhibits was a "judgment and sentence" from the 1983 charges indicating that the defendant had been found guilty on two counts of unlawful delivery of a controlled substance and sentenced to 12 years in prison on each count, to be served concurrently. The other exhibit was a "judgment order" from the 1991 charges indicating that the defendant had been found guilty of unlawful possession of a controlled substance and sentenced as a Class X felon to 20 years. The trial court gave the Illinois Pattern Jury Instructions, Criminal, No. 3.14 instruction to the jury over the continuing objection of defense counsel. The trial court informed the jury that evidence had been received that the defendant had been involved in an offense other than that charged in the information; that it was up to them to determine whether the defendant was involved in the offenses; and if so, what weight to give to the evidence on the issues of knowledge and intent. The exhibits were then published to the jury.
¶ 10 In closing, the defendant emphasized that he was not disputing the identity or weight of the substance-only that he had delivered it to the confidential source. In rebuttal, the State emphasized the length of the defendant's sentences on his prior convictions:
"Thirty-five and 27 years ago is what [defense counsel] said how old those convictions were. You have seen those convictions. You have seen the certified copies of them. You have passed them around. They have been published for the jury. What you also saw on those convictions were how long Mr. Bennett got. That conviction from 35 years ago, Mr. Bennett got 12 years on that conviction. That one from 27 years, he got 20 years on that conviction. Kind of puts things in perspective about how old those cases are when you consider how long he was sitting in the Department of Corrections."
¶ 11 After the jury returned a guilty verdict, the trial court sentenced the defendant to 20 years' imprisonment followed by 3 years of mandatory supervised release.
¶ 12 C. Posttrial Motions
¶ 13 The defendant filed a motion for new trial alleging, inter alia, that the trial court erred in granting the State's motion to admit the convictions from 1983 and 1991, which motion was denied. The defendant's pro se notice of appeal was filed on September 8, 2020, and appellate counsel was appointed to represent defendant on May 4, 2021. Appellate counsel filed a motion for a supervisory order with the Illinois Supreme Court on December 16, 2021. On January 6, 2022, the supreme court directed this court to treat the notice of appeal as a properly perfected appeal from the September 14, 2018, judgment.
¶ 14 II. ANALYSIS
¶ 15 On appeal, the defendant argues, inter alia, that the trial court abused its discretion when it allowed the State to admit other-crimes evidence consisting of photocopies of mittimuses from his prior convictions.
¶ 16 "The term 'other-crimes evidence' encompasses misconduct or criminal acts that occurred either before or after the allegedly criminal conduct for which the defendant is standing trial." People v. Spyres, 359 Ill.App.3d 1108, 1112 (2005). Generally, proof of other crimes not related to those alleged in the charging instrument cannot be introduced to show the defendant's propensity to commit crime. People v. Hale, 326 Ill.App.3d 455, 462 (2001). However, an exception to the general rule is that other-crimes evidence is admissible where it is relevant to show intent, knowledge, identity, motive, absence of mistake, or modus operandi; or "if relevant to establish any material question other than the propensity to commit a crime." People v. Thingvold, 145 Ill.2d 441, 452 (1991). "In addition, Illinois courts have routinely allowed evidence of a defendant's prior or subsequent drug transactions to be admitted into evidence at trial to establish a defendant's intent to deliver the drug for which the defendant is currently charged or for any other relevant and permissible purpose." People v. Watkins, 2015 IL App (3d) 120882, ¶ 46.
¶ 17 The defendant concedes that he found no authority to support his contention that the trial court erred when it allowed photocopies of the mittimuses, as opposed to certified copies of convictions, to be presented to the jury as other-crimes evidence of his prior convictions. Although not dispositive, we find a recent Fourth District case to be instructive. In People v. Currie, the court was asked to consider whether certified copies of conviction alone are an acceptable method of introducing other-crimes evidence under section 115-7.4 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.4 (West 2020)). People v. Currie, 2022 IL App (4th) 210598, ¶ 62, reh'g denied (June 15, 2022), appeal denied, No. 128716 (Ill. 2022). Section 115-7.4 sets out one of three statutory exceptions to the general prohibition on the admission of other-crimes evidence to prove propensity to commit a crime. It allows evidence of prior domestic violence offenses to show propensity in certain circumstances in prosecutions for domestic violence offenses. Although the Currie court found that a copy of a certified conviction is the best method of proving a defendant's prior conviction for purposes of the statute, it did not find that it was the only method of proving a defendant's prior conviction. Currie, 2022 IL App (4th) 210598, ¶ 84. Neither do we find that the only method of proving a defendant's prior conviction under Rule 404(b) is by way of certified copies of convictions. Certainly, the photocopies of the mittimuses were at least some relevant evidence of the defendant's prior drug convictions that could be used to establish the defendant's intent to deliver the drug for which he was currently charged, rather than merely to establish his propensity to commit a crime. Thingvoid, 145 Ill.2d at 452. But a determination of relevance is not the end of the analysis.
The other two exceptions are section 115-7.3 of the Code (725 ILCS 5/115-7.3 (West 2018)), which allows evidence of prior certain sex offenses to show propensity in prosecutions for specified sex-related offenses, and section 115-20 of the Code (id. § 115-20), which allows evidence of prior convictions to show propensity in prosecutions for certain types of listed offenses.
¶ 18 Even where other-crimes evidence is admissible for a permissible purpose, the evidence should be excluded "where the probative value of that evidence is substantially outweighed by the prejudicial effect on defendant's right to a fair trial." People v. Robinson, 167 Ill.2d 53, 63 (1995); People v. Chapman, 2012 IL 111896, ¶ 19 (such evidence will not be admitted if its prejudicial impact substantially outweighs its probative value). In weighing the probative value against the undue prejudice, the trial court may consider the proximity in time to the charged offense, the degree of factual similarity to the charged offense, or other relevant facts and circumstances. 725 ILCS 5/115-7.3(c)(1)-(3) (West 2020). "This is a balancing test with probative value on one side and prejudicial impact on the other side." People v. Smith, 2019 IL App (4th) 160641, ¶ 68. "Whether the probative value of other-crimes evidence is outweighed by its prejudicial impact is a determination left to the trial court's discretion, and we will not disturb that decision absent a clear abuse of discretion." Spyres, 359 Ill.App.3d at 1114.
¶ 19 Here, we find that the prejudicial impact of the other-crimes evidence outweighed its probative value, and, thus, the trial court abused its discretion by admitting it. Although the trial court took into consideration the age of the prior convictions at the time of trial and the factual similarity to the charged offense, it did not consider the prejudicial impact of the jury seeing the length of sentence for the prior convictions reflected in the mittimuses. This error was compounded by the State emphasizing in its rebuttal the length of the defendant's sentences on his prior convictions, which had no probative value to show either his intent or absence of mistake. Thus, the other-crimes evidence was substantially prejudicial where it served merely to show the defendant was a bad person with a propensity to commit drug deliveries.
¶ 20 Citing People v. Risper, 2015 IL App (1st) 130993, ¶ 46, the State argues that the trial court's limiting instruction given to the jury prior to deliberations was "sufficient to cure any error." However, this is a broad interpretation of Risper. The Risper court simply noted that a "prompt sustaining of an objection, combined with a proper jury instruction to disregard the testimony, is typically sufficient to cure an error involving inadmissible hearsay." Id. Here, the prejudice was exacerbated by the information in the mittimus regarding the length of the defendant's prior sentences to the Department of Corrections and the fact that one of those sentences was a Class X felony. That extraneous information, coupled with the State's emphasis during closing argument about the length of the prior sentences, caused such extreme prejudice that a limiting instruction could not cure. Accordingly, the other-crimes evidence should have been excluded where it had a prejudicial effect on the defendant's right to a fair trial.
¶ 21 Based on the foregoing, we reverse the judgment of the circuit court of Jefferson County, and we remand for a new trial. In so doing, we note that the evidence was sufficient to prove defendant guilty of unlawful delivery of a controlled substance (heroin) beyond a reasonable doubt, and thus a retrial will not violate defendant's right to be free from double jeopardy. See People v. Jiles, 364 Ill.App.3d 320, 330-31 (2006).
¶ 22 Because we are remanding for a new trial, the admissibility of the two prior convictions under Rule 404(b) will again be an issue for the trial court to decide. We acknowledge there is no bright-line rule about when prior convictions are per se too old to be admitted under 404(b). People v. Donoho, 204 Ill.2d 159, 184 (2003). This should be evaluated on a case-by-case basis. Here, we find that the probative value of these two remote convictions is substantially outweighed by their prejudicial effect. Accordingly, allowing their admission under Rule 404(b) would be an abuse of the trial court's discretion.
¶ 23 III. CONCLUSION
¶ 24 For the foregoing reasons, we reverse the trial court's judgment and the defendant's conviction and remand the cause to the trial court for a new trial.
¶ 25 Reversed and remanded.