Supreme Court Summaries

Opinions filed July 24, 2008

No. 104414     People v. Naylor

      Appellate citation: 372 Ill. App. 3d 1.

      JUSTICE FREEMAN delivered the judgment of the court, with opinion.

      Justices Fitzgerald, Kilbride and Burke concurred in the judgment and opinion.

      Chief Justice Thomas dissented, with opinion, joined by Justices Garman and Karmeier.

      A drug raid took place at the Robert Taylor Homes in Chicago in March of 2000, involving numerous police officers and arrestees. This defendant went to trial on four heroin charges and was convicted in bench proceedings in the circuit court of Cook County. The evidence showed that drug dealers waited in a stairwell of the apartment complex and that customers came in, lined up, and made purchases. Two of the customers here were plainclothes police undercover agents. Each identified this defendant in court as the seller from whom a purchase, later verified to be heroin, was made. The contraband was paid for in bills with prerecorded serial numbers, and those bills were later claimed to have been recovered from the defendant after he was arrested, but the police officer who initially retrieved those bills did not testify. At the August 2004 bench trial, the defendant testified in his own behalf, claiming that he had merely been leaving his apartment when he got caught in the drug sweep. He said he did not remember what happened because he was maced. The trial judge, who was acting as trier of fact, allowed the defendant’s testimony to be impeached with an aggravated battery conviction that had been entered against him in December of 1990. Despite defense objections, the trial judge ruled that less than 10 years had elapsed between the December 1990 conviction and the March 2000 alleged offense and that, therefore, there was no violation of the Montgomery rule, under which a conviction used to impeach must not be more than 10 years old. The defendant was convicted and sentenced.

      Although he had not properly preserved this issue for review, the defendant complained on appeal that the age of a conviction which is going to be used to impeach a witness is properly determined from the time of the trial (whether criminal or civil) at which the witness testifies and not from the time of the offense. Therefore, the conviction was too old to use. The appellate court agreed with this, as did the supreme court in this decision. The question remains, however, what to do about the error of allowing the defendant to be impeached by the improper admission of incompetent evidence.

      The evidence in this case was closely balanced because the judge, acting as trier of fact, had to decide whether to believe the defendant or the two police officers. This closeness allows application of the plain-error rule, which permits the unpreserved error to be considered. Improperly admitted evidence does not always call for reversal. However, the supreme court concluded that, in this case, the circuit court had in fact given consideration to the improperly admitted conviction in evaluating the defendant’s credibility and finding him guilty. Therefore, reversal was proper, as the appellate court had held. There is no impediment to a retrial because the evidence was otherwise sufficient to convict. The appellate court’s remand for this purpose was also affirmed.