Opinion
Appeal No. 3-18-0661
05-10-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY T. LASTER, Defendant-Appellant.
NOTICE: 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 the 21st Judicial Circuit, Kankakee County, Illinois,
Circuit No. 18-CF-116
Honorable Clark E. Erickson, Judge, Presiding.
JUSTICE DAUGHERITY delivered the judgment of the court.
Justices Schmidt and Wright concurred in the judgment.
ORDER
¶ 1 Held: The evidence is not so closely balanced that plain error review is warranted because defendant's testimony was not credible while the officer's testimony was.
¶ 2 Defendant, Tony T. Laster, appeals his conviction of unlawful possession of a controlled substance with intent to deliver. Defendant contends that his conviction should be reversed and the matter remanded for further proceedings because the Kankakee County circuit court failed to conduct an analysis pursuant to People v. Montgomery, 47 Ill. 2d 510 (1971), regarding whether
his prior conviction, which was introduced to impeach his credibility, was admissible. We affirm.
¶ 3 I. BACKGROUND
¶ 4 The State charged defendant in a three-count indictment with unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(c)(1) (West 2018)), unlawful possession of a controlled substance with the intent to deliver (id. § 401(c)(1.5)), and unlawful possession of a controlled substance (id. § 402(c)). The matter proceeded to a bench trial solely on count I.
¶ 5 At trial, the State presented evidence that Officers Matthew Samples and Calvin Zirkle conducted a traffic stop of defendant's vehicle. Defendant was the driver and sole occupant of the vehicle, a white Jeep. After defendant voluntarily exited the vehicle, Samples detected the odor of cannabis emanating from the vehicle when he reached the driver's door. Zirkle asked defendant if there were any drugs in the vehicle, and according to Samples, defendant responded "there were no drugs in the car, and [defendant] said, This car is legit." Samples stated that defendant was vehement that he did not want the officers to search the vehicle.
¶ 6 Samples further testified that after learning that defendant's driver's license was revoked, he and Zirkle arrested defendant. At that time, they searched defendant, and Samples located $354 in cash and a packet of cigarette rolling papers in his front left pants pocket. He also found a pack of Newport cigarettes in defendant's left breast pocket. When he opened the package there were five cigarettes and a "partially burned what appeared to be a hand-rolled cigarette." The officers also searched the vehicle, and in the center console they found a black plastic grocery bag. Inside the bag, they located two plastic bags with a green leafy substance that had a strong odor of cannabis. Samples also located five white pills, which were identified as
clonazepam. The officers also found a clear plastic bag containing 6 separate clear plastic bags with white substances inside them, a second clear plastic bag with 10 smaller clear plastic bags inside which contained an off-white colored substance, and a pill bottle with the name Denotra Laster on it. When Samples opened the pill bottle, he found a clear plastic bag "with what appeared to be eight hand-rolled cigarettes that had a strange odor to them." The officers also found an electronic scale on the driver's side floorboard, a plastic bag that contained numerous smaller clear bags, and a black plastic grocery bag with a box of clear sandwich bags. The State entered many of these items into evidence, including the Newport cigarette package along with the cigarettes and hand-rolled cigarette contained therein, rolling papers, the scale, clear bags, and the clear plastic bags with the off-white substance in them. The parties stipulated that the off-white substance was identified as heroin.
¶ 7 Samples testified that the vehicle was registered to Freddy Scales. He stated that it was his understanding that Scales was "in some type of parental position in the Laster family." Samples did not follow up or make contact with Scales. Fingerprints were not obtained from the contraband found in the vehicle.
¶ 8 Defendant testified that prior to the stop, he had been playing slot machines. He had $354 in cash on him from his income tax refund. When he was done playing the slot machines, he was going to call his wife for a ride home, but while in the parking lot he noticed a man that was so intoxicated he was trying to use a key in a vehicle with a push button start. This man was the owner of the white Jeep defendant was pulled over in. Defendant did not know the man, but he had seen him occasionally. Defendant believed this man was Scales, but he did not know the man's name prior to trial. Defendant asked the man if he was alright and the man stumbled. Defendant knew where the man lived so he slid him into the passenger seat and took him home.
Defendant knew where the man lived because his mother lived near the man, and defendant had seen "him every day coming from Kankakee, Momence, or whatever, you can see it." When defendant arrived at the man's house, he took the man inside, put him on the couch, got back into the man's Jeep and went home. He was going to return the Jeep in the morning.
¶ 9 When asked about the items the officers found on defendant's person, defendant denied that he had any cigarettes and stated he did not smoke cigarettes. Defendant also denied any knowledge of the items found in the vehicle. Defendant claimed that he had never seen Samples, although he clarified that it was nighttime and very dark when he was pulled over. Defendant testified that the scale admitted into evidence was not in the vehicle by his right foot as indicated by Samples. He had never seen the plastic bags that Samples found with the scale. Defendant identified Denotra, whose name was on the pill bottle found in the vehicle, as his sister, but denied bringing the pill bottle into the vehicle.
¶ 10 After defendant testified, the State introduced a certified copy of defendant's federal conviction for possession of cocaine base (crack) with an intent to distribute from September 20, 2006. The State asserted that the conviction carried a prison term "which would make it come within the time period for his believability." Defendant did not object to the evidence, and the court admitted defendant's prior conviction into evidence without comment.
¶ 11 Prior to announcing the verdict, the court said it viewed the evidence as coming down to an evaluation of Samples's testimony versus defendant's. The court noted various things it found odd, remarkable, or highly suspect about defendant's testimony. In contrast, the court found Samples's testimony to be highly credible. The court told defendant it did not believe his testimony at all. The court said, "defendant's testimony is directly impeached by his prior conviction." The court found defendant guilty of unlawful possession of a controlled substance
with intent to deliver. The court sentenced defendant to seven years' imprisonment. Defendant appeals.
¶ 12 II. ANALYSIS
¶ 13 Defendant argues that the court erred when it admitted his prior conviction without first conducting a Montgomery analysis. While defendant failed to properly preserve this issue for appellate review (see People v. Enoch, 122 Ill. 2d 176, 186 (1988) (stating that to preserve an issue for appellate review a party must make an objection at trial and file a posttrial motion raising the issue), he submits that it was plain error because the evidence was closely balanced. We disagree and conclude that plain error review is not warranted because the evidence is not closely balanced.
¶ 14 Under the plain error doctrine, a forfeited error may be reviewed when "a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant." People v. Belknap, 2014 IL 117094, ¶ 48. When determining whether the evidence is closely balanced, "a reviewing court must undertake a commonsense analysis of all the evidence in context" and this analysis is qualitative, as opposed to strictly quantitative. Id. ¶ 50. The first step in applying the plain error doctrine is to determine if an error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 15 Pursuant to the Montgomery rule, evidence of a prior conviction is admissible to impeach a defendant's credibility if:
"(1) the prior 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 conviction of the prior crime or release of the witness from confinement, whichever is later, and (3) the probative
value of admitting the prior conviction outweighs the danger of unfair prejudice." People v. Atkinson, 186 Ill. 2d 450, 456 (1999) (citing Montgomery, 47 Ill. 2d at 516).
While the circuit court must conduct an analysis to determine whether evidence of a prior conviction is admissible under Montgomery, the supreme court "has declined to find error when the transcript makes clear that the trial judge was applying the Montgomery standard, even though the judge did not expressly articulate it." People v. Williams, 173 Ill. 2d 48, 83 (1996). In the instant matter, the record does not make it clear that the circuit court conducted any analysis pursuant to Montgomery to determine whether defendant's conviction was admissible. While we find the circuit court erred in failing to conduct this analysis, this does not end our inquiry, as this forfeited error is only subject to reversal if the evidence is closely balanced.
¶ 16 Here, while the matter essentially comes down to a determination of credibility between defendant and Samples, we conclude the evidence is not closely balanced. See Belknap, 2014 IL 117094, ¶ 52 (noting a prior case, People v. Adams, 2012 IL 111168, where the supreme court overturned the appellate court's decision that concluded the evidence was closely balanced because of the conflicting testimony between the defendant and the officers). Defendant testified that he entered a vehicle that was not his, to drive a man that he did not know, to the man's house. He then purportedly opened the door to the man's house, took him inside, put him on the couch, and drove the man's vehicle home, intending to return it in the morning. This testimony alone is difficult to believe. Defendant becomes even more incredible when he directly contradicts Samples's testimony by claiming that Samples did not find a pack of Newport cigarettes in his pocket. Additionally, defendant would like the court to believe that it was simply a coincidence that this vehicle he did not own, that he just happened to get into to drive a man he
did not know home, contained a pill bottle with defendant's sister's name on it. As in Adams, "defendant's explanation of events, though not logically impossible, was highly improbable." Adams, 2012 111168, ¶ 22. On the other hand, the officer's testimony, which was largely corroborated by the physical evidence introduced by the State at trial, was highly credible. Based on the foregoing, we cannot conclude that the admission of defendant's prior conviction, even if error, "alone threatened to tip the scales of justice against the defendant." Belknap, 2014 IL 117094, ¶ 48. Thus, the evidence is not closely balanced, and plain error review is not warranted.
¶ 17 III. CONCLUSION
¶ 18 The judgment of the circuit court of Kankakee County is affirmed.
¶ 19 Affirmed.