People v. Valentine

FIRST DIVISION
August 31, 1998

No. 1-96-1946

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

GLADSTONE VALENTINE,

Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County.

No. 95 CR 5278

Honorable
John J. Moran,
Judge Presiding.
JUSTICE O BRIEN delivered the opinion of the court:

Defendant, Gladstone Valentine, appeals his convictions for
aggravated battery and unlawful restraint and his sentence of an
extended term of 10 years' imprisonment. On appeal, defendant
contends: (1) he was deprived of a fair trial when the State
cross-examined him about four prior unrelated battery arrests in
front of the jury; (2) he was deprived of effective assistance of
counsel when his counsel introduced evidence of his prior arrests
and "opened the door" to which the State responded; (3) he was
sentenced improperly to an extended term of imprisonment without
the trial court specifically finding that defendant was eligible
for an extended term; and (4) his maximum extended-term sentence
was excessive. We reverse and remand.
Defendant was charged with the aggravated battery and unlawful
restraint of complainant. At trial, it was uncontroverted that
complainant shot defendant during an altercation and that they were
personally involved. There were no eyewitnesses to the incident.
Complainant testified defendant started beating her so she shot at
him to stop him. Defendant testified complainant started shooting
at him so he started beating her to stop her. Both sides presented
very limited corroborating evidence. Complainant s corroborating
evidence suggested defendant attacked because complainant refused
to see him. Defendant s corroborating evidence suggested
complainant attacked because she was jealous of another woman. The
credibility of complainant and defendant was essential to the
jury's verdict.
Defendant had a prior retail theft conviction in 1993 and the
State, over defendant's objection, was allowed to use it to impeach
defendant should defendant take the witness stand. Additionally,
defendant had four prior battery arrests.
During defense counsel's direct examination of defendant, the
following occurred:
DEFENSE COUNSEL: You've been in trouble with the
police growing up in Chicago and you've had a couple of
arrests in '94 and '93 is that correct?

DEFENDANT: Yes, sir.

DEFENSE COUNSEL: Were you ever arrested in '94 or
'93 for anything involving violence?

DEFENDANT: No.

DEFENSE COUNSEL: Anything involving possession of
a weapon?

DEFENDANT: No, sir.

DEFENSE COUNSEL: Was it a misdemeanor theft charge?

DEFENDANT: Yes, sir.

Following a sidebar, the court ruled that defense counsel had
"open[ed] the door" for the State to correct the portrayal of
defendant "in a nonviolent light" pursuant to "the doctrine of
completeness." The State then cross-examined defendant about his
arrest record:
ASSISTANT STATE'S ATTORNEY: Mr. Valentine, you
stated that you had never been arrested for a crime of
violence?

DEFENDANT: No, ma'am.

ASSISTANT STATE'S ATTORNEY: Is that correct?

DEFENDANT: No, ma'am.

The State then questioned defendant about his arrests for
battery on July 18, 1986; February 13, 1987; May 9, 1987; and July
25, 1988, for impeachment purposes.
First, the ineffective assistance of counsel claim. Defendant
claims defense counsel "opened the door" for the State to cross-
examine him regarding his four prior unrelated battery arrests, and
thus, he was deprived of effective assistance of counsel. To
establish a claim of ineffective assistance of counsel, a defendant
must satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)
and People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246
(1984). Defendant must prove that (1) counsel's representation
fell below an objective standard of reasonableness, and (2)
counsel's substandard representation so prejudiced defendant as to
deny him a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d
at 693, 1045 S. Ct. at 2064. To prove actual prejudice, a
defendant must show "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at
698, 104 S. Ct. at 2068; Albanese, 104 Ill. 2d at 525. Judicial
scrutiny of an attorney's performance must be highly deferential,
and a reviewing court will not inquire into areas involving the
exercise of discretion, judgment or trial strategy. People v.
Flewellen, 273 Ill. App. 3d 1044, 1048, 652 N.E.2d 1316 (1995).
The general rule regarding impeachment of witnesses with
evidence of their prior criminal conduct is that only convictions
of crimes punishable by sentences of more than one year or
involving dishonesty or false statement may be admitted, and these
only if the trial court determines that their probative value
outweighs their potential for causing unfair prejudice and only if
the conviction or release of such witnesses, whichever occurred
later, was less than 10 years prior to their testimony. People v.
Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971); People v.
Williams, 161 Ill. 2d 1, 641 N.E.2d 296 (1994). This rule gives
parameters to the discretion of the trial court to admit such
evidence.
There is authority, however, that some deviation from this
general rule is permitted where the witness testifies on direct
examination regarding some aspects of his criminal record, a
practice referred to as "opening the door." People v. DeHoyos, 64 Ill. 2d 128, 355 N.E.2d 19 (1976). Where a witness on direct
examination affirmatively states that he has never been arrested,
there is authority that the prosecutor may then cross-examine
regarding any prior arrests. People v. Johnson, 42 Ill. App. 3d
194, 198, 355 N.E.2d 577, 579 (1976).
Montgomery and Williams mandate that the State could not have
independently used defendant's prior battery arrests to impeach
defendant. A reasonably effective lawyer would have challenged the
State's use of such evidence before calling defendant to the
witness stand. People v. Moore, 279 Ill. App. 3d 152, 157, 663 N.E.2d 490, 495 (1996). Here, defense counsel not only failed to
challenge the use of defendant's prior battery arrests, counsel
"opened the door" to that line of questioning by eliciting
testimony that gave a false impression of defendant's criminal
history. People v. Johnson, 42 Ill. App. 3d 194, 198, 355 N.E.2d 577, 579 (1976). Without these questions on direct examination,
the jury never would have learned of defendant's prior arrests for
battery during this trial for aggravated battery. Accordingly,
defense counsel's questioning satisfied the first prong of
Strickland. We therefore address the second prong of Strickland.
Under the second prong of Strickland, a defendant must
demonstrate prejudice. People v. Caballero, 152 Ill. 2d 346, 365,
604 N.E.2d 913 (1992). In making this assessment, the court must
consider the totality of evidence before the jury. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069; Caballero,
152 Ill. 2d at 366. Here, the evidence was essentially "he
said/she said." There were no eyewitnesses to the incident and
both sides presented only limited corroborating evidence. Given
the closeness of the conflicting evidence and the facts of this
case, the jury's verdict was based upon its determination of the
credibility of the witnesses. Because the outcome of the case
depended upon the jury's credibility determinations, and because
the introduction of inadmissible evidence of defendant's prior
unrelated battery arrests undermined his credibility, there is a
reasonable probability that this error affected the outcome of the
trial. Accordingly, we reverse and remand for a new trial.
In the alternative, one could deduce that defense counsel's
actions were trial tactics to mitigate the effect of defendant's
impeachment by his prior theft conviction. It is not implausible
that, in the heat of battle, defense counsel decided to question
defendant regarding his arrests in 1993 and 1994 to soften the
negative impact of that conviction. The State intended to use
defendant's one prior conviction for retail theft in 1993,
admissible under Montgomery, to impeach defendant's credibility.
Even if one assumes that defense counsel's actions were well-
intentioned trial tactics, the admission of prior arrests for
battery in this trial for aggravated battery would still be unduly
prejudicial, determinative of the jury verdict and error. The law
will not permit a prosecutor to take unfair advantage of tactical
errors by defense counsel that open the door to prejudicial
evidence and it was error to allow the jury to hear such evidence.
People v. Brown, 61 Ill. App. 3d 180, 185, 377 N.E.2d 1201, 1204
(1978).
Accordingly, we reverse and remand for a new trial. Thus, it
is unnecessary to consider the other contentions of error.
Reversed and remanded.
BUCKLEY, P.J., concurs.
JUSTICE O'MARA FROSSARD, dissenting:
I. Counsel Was Not Ineffective
The majority's reliance on the failure of defense counsel to
challenge the admission of the defendant's criminal background as
conduct satisfying the Strickland test is not supported by the
record. Such challenge was made by defense counsel at two
different stages of the trial process; first, by a motion in limine
under Montgomery before defendant testified where defense counsel
was successful in that the judge admitted only two of defendant's
convictions. Secondly, a more specific challenge to evidence of
the battery arrests was made by counsel, after his direct
examination of the defendant. Thus, the record does not support
the majority's conclusion that the first prong of Strickland was
satisfied by defense counsel's failure to challenge this evidence.
The majority further finds that defense counsel's direct
examination of the defendant satisfied the first prong of the
Strickland test because he "opened the door" to defendant's battery
arrests, giving a false impression of defendant's criminal history.
Not only did the trial judge characterize that conduct of defense
counsel as "a matter of trial strategy," but the majority agrees
that "one could deduce" that defense counsel's actions were trial
tactics to mitigate the effect of defendant's impeachment by his
prior theft conviction. Slip op. at 5. Whether the tactic was to
mitigate the theft conviction or to place defendant in a nonviolent
light or both, unsuccessful trial strategy is not ineffective
assistance of counsel. People v. Spears, 256 Ill. App. 3d, 374,
379, 628 N.E.2d 376 (1993).
The whole record must be considered when determining whether
counsel was ineffective. People v. Albanese, 104 Ill. 2d 504, 525,
473 N.E.2d 1246 (1984). Defense counsel made an effective opening
statement and closing argument, and conducted direct and cross-
examination consistent with his theory of defense. Thus, the
performance of defense counsel taken as a whole fails to satisfy
the first prong of Strickland and did not fall below an objective
standard of reasonableness.
In addressing the second prong of Strickland, the majority
finds that the jury's verdict was based on witness credibility,
describes the evidence as "he said/she said" and therefore
concludes that defendant's battery arrests were outcome
determinative. Slip op. at 5-6. This description oversimplifies
the evidence.
A careful examination of the testimony reveals that the
prosecution presented corroborating evidence from the victim's
supervisor, a police officer, security guard and the victim's
mother that defendant was stalking her and attacked her because she
rejected him. The evidence supports the finding that the jury's
verdict was not simply based on credibility, but included
evaluation of independent corroborating evidence, as well as
circumstantial evidence. It is the function of the jury to weigh
contradictory evidence as well as judge the credibility of
witnesses. People v. Johnson, 173 Ill. App. 3d 998, 527 N.E.2d 1317 (1988). As such, the record does not support the majority's
description of the evidence as "he said/she said," nor does the
record reflect that the evidence of defendant's battery arrests was
outcome determinative.
II. Defendant's Battery Arrests Were Properly Admitted
The general rule for impeaching a witness with evidence of
prior criminal conduct is that convictions of crimes punishable by
sentences of more than one year or involving dishonesty may be
admitted if the court determines that their probative value
outweighs their prejudicial effect and only if the conviction was
less than 10 years prior to trial. People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971). The majority recognizes a deviation
from this rule where the witness testifies on direct regarding some
aspects of his criminal record, a practice referred to as "opening
the door." People v. DeHoyos, 64 Ill. 2d 128, 355 N.E.2d 19
(1976). The rationale for this deviation is that a defendant
cannot complain when the prosecution pursues a line of questioning
which was invited by his own tactics at trial. People v. Seider,
98 Ill. App. 3d 175, 423 N.E.2d 1217 (1981).
The case of People v. Brown, relied upon by the majority,
addresses the "open door" exception where a witness mentions on
direct fewer than all of his arrests or convictions. People v.
Brown, 61 Ill. App. 3d 180, 185, 377 N.E.2d 1201 (1978). In Brown,
the defendant admitted on direct examination two convictions and
that he had been "in no trouble for the past five years." Brown,
61 Ill. App. 3d at 184.
The Brown court followed the general impeachment rule because
the prosecution impeached the witness on matters not within the
fixed five year period covered on direct examination. Brown
rejected the "open door" exception, finding it "doubtful that
Brown's admission of two convictions, coupled with his statement
that he had been out of trouble for five years, would imply an
absence of other trouble prior to that five-year period." Brown,
61 Ill. App. 3d at 185.
In applying the Brown test we need to determine whether the
prosecution impeached the defendant on matters not established as
falling within the fixed period covered on direct examination,
which begins with defendant "growing up in Chicago" and ends in the
year 1994. Defendant's trouble with the police while growing up
began on November 21, 1977, with his first arrest at age 17. The
four battery arrests explored by the prosecution took place within
the period of time covered by the direct examination, and
therefore, the prosecutor's four questions do not violate the Brown
test. Brown, 61 Ill. App. 3d at 184.
The four questions asked by the prosecution did not take
unfair advantage of a defense tactical error. Inquiry by the
prosecution into the defendant's prior arrests in order to rebut
the impression created by defendant that he had some vague trouble
with the police while growing up, only a couple of arrests in '93
and '94 and no background for violence or weapons, was proper,
invited, and well within the scope of direct examination. Seider,
98 Ill. App. 3d at 182.
By introducing four battery arrests from defendant's
background, which included 30 arrests and 6 convictions one for
burglary, four for theft and one for criminal trespass to vehicle
the prosecution pursued a limited cross-examination invited by the
questions of defense counsel and authorized by the "open door"
exception to the general impeachment rule. People v. Bey, 42 Ill. 2d 139, 147, 246 N.E.2d 287 (1969). Furthermore, the evidence was
isolated and not referred to again. People v. Powell, 180 Ill.
App. 3d 315, 327, 535 N.E.2d 1008 (1989). This limited, evidence
followed by defense counsel's redirect, which established that the
charges were not pursued and did not involve the victim in this
case undercuts the majority's conclusion that this evidence was
outcome determinative.
The admissibility of evidence at trial is a matter within the
discretion of the trial judge, and the judge's decision may not be
overturned absent a clear abuse of discretion. People v.
Edmundson, 247 Ill. App. 3d 738, 744, 617 N.E.2d 446 (1993). The
record reflects that the trial judge was aware of the rules
regarding admission of prior crimes evidence and used his
discretion properly. First, when he resolved defendant's
Montgomery motion in limine he weighed the prejudicial effect
against the probative value and determined that only two theft
convictions were admissible. Moreover, indicating a sensitivity to
this area of the law, the judge asked defense counsel if he wanted
the convictions admitted using the "mere fact" approach, but
defense counsel rejected the offer. When defense counsel began to
open the door to defendant's criminal background, the judge
immediately ordered him to "pursue another line" of questioning.
The trial judge understood that such background evidence ordinarily
is not admissible, recognized the exception to this general rule
and used his discretion wisely by allowing a limited cross-
examination. People v. Owens, 46 Ill. App. 3d 978, 994, 361 N.E.2d 644 (1977).
A judge has wide discretion in pursuit of the "duty to see
that justice is done," and this discretion will not be interfered
with except where it is clearly abused. People v. Jackson, 250
Ill. App. 3d 192, 620 N.E.2d 1239 (1993). The judge struck a
balance between the right that both sides have to a fair trial.
The record reflects no abuse of discretion.
For the foregoing reasons, I respectfully dissent.