People v. Cathey

965 N.E.2d 1109

The PEOPLE of the State of Illinois, Appellee,

v.Elron CATHEY, Appellant.

No. 111746.

Supreme Court of Illinois.

March 22, 2012.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and David C. Holland, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins and Matthew Connors, Assistant State's Attorneys, of counsel), for the People.

Justice BURKE delivered the judgment of the court, with opinion.

¶ 1 The defendant, Elron Cathey, filed a pro se postconviction petition in which he alleged he received ineffective assistance of counsel on direct appeal. According to the petition, counsel failed to argue that defendant's trial judge erred when the judge declined to rule on defendant's motion in limine to bar the use of prior convictions for impeachment purposes before defendant testified. The circuit court of Cook County summarily dismissed the postconviction petition and the appellate court affirmed. 406 Ill.App.3d 503, 347 Ill.Dec. 168, 942 N.E.2d 1. For the reasons set forth below, we reverse the judgments of the appellate and circuit courts and remand the cause to the circuit court for further proceedings.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with attempted first degree murder and aggravated battery with a firearm in connection with the shooting of Maurice Sterling. Prior to trial, defense counsel filed a motion in limine which sought to prevent the State from using defendant's prior convictions for attempted murder and aggravated battery with a firearm for impeachment purposes. Counsel argued that any probative value of the prior convictions would be outweighed by their prejudicial effect under the balancing test set forth in People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971), because those convictions were identical to the charges in the present case, and further, because defendant was asserting self-defense, it was essential to obtain a ruling on the motion before defendant decided whether to testify:

"any probative value [the prior convictions] may have is substantially outweighed by the prejudice to the defendant in that this is a shooting case and the crime is so similar. The prejudicial effect really hits home in this case because it determines whether or not really [defendant] is going to take the stand or not.

He is trying to allege a self-defense which becomes almost impossible if he doesn't take the stand in his own behalf, but my advice is if the Jury is informed about a prior aggravated battery with a firearm conviction and the attempted murder conviction revolving around a firearm that their ears would be closed to [defendant's] self-defense testimony and only open their eyes to the prior conviction and that I think that that's why we are considering this ruling of such a magnitude that if the Court allows them to get into that conviction then he has to not get on the witness stand and I don't think that's fair."

The trial judge declined to rule on defense counsel's motion before trial, stating:

"[P]art of the balancing test is if other witnesses are going to have convictions and their credibility is going to be judged on the basis of prior convictions, why shouldn't it be done for the defendant?

* * *

So I will give you some indication depending on how much impeachment is used on other witnesses and if it is used, if they have similar convictions or of a similar nature, then I think the effect is lessened. I can't make a decision right now, but at this point in time I am going to deny it; but I'm going to revisit the matter after I have heard all the evidence."

Thereafter, the matter proceeded to a jury trial, which was held in February 2006.

¶ 4 Brian Finley testified on behalf of the prosecution. Finley stated that on June 8, 2004, at approximately 10 p.m., he was at a friend's house watching a basketball game when his brother, Xavier, called. Xavier, who had been sitting on a porch with some friends and had seen defendant approach with a group of teenagers, said that defendant was trying to kill him and that Finley should come and get him. After receiving Xavier's call, Finley went to his house, took his mother's car, and picked up Maurice Sterling.

¶ 5 After picking up Sterling, Finley spotted defendant, whom he knew from the neighborhood, with a group of about four teenagers. Finley got out of the car and asked defendant where his brother was. Finley testified that he saw the other teenagers who were with defendant moving around and saw one of the teenagers hand something to defendant which was black and "real big." Sterling then yelled, "He got a gun." Finley and Sterling turned and ran back toward the car. Finley testified that, as Sterling was getting into the car through the passenger side door, there was a loud "pow" and Sterling jerked and fell into the car. Finley then grabbed Sterling, pulled him completely into the car, and drove off. In his testimony, Finley acknowledged that he pled guilty to a felony gun charge in 1998 and that he was currently facing contempt charges.

¶ 6 Maurice Sterling testified that he was shot in the head but that he did not remember anything about the incident.

¶ 7 James Johnson testified on behalf of defendant. Johnson was sitting on a porch when he saw a car pull up and someone get out. Johnson stated there was an argument and then "somebody got to tussling. They was like, kind of like arm wrestling or whatever, and the gun went off." Johnson immediately ran inside. Johnson testified that the argument only lasted for 7 to 10 seconds before the "tussling" started and that he never observed a gun, but only heard a shot.

¶ 8 Defendant testified on his own behalf. Defendant stated that on June 8, 2004, at approximately 10:30 p.m., he was walking home when he saw a black car approach and two people jump out. Defendant later learned the two people were Brian Finley and Maurice Sterling. Defendant testified that Finley was talking "crazy," saying that someone was trying to do something to his brother. Defendant did not know Finley or his brother at that time and responded, "Man, what the fuck." Finley then pulled a revolver from the small of his back and said, "Don't run."

¶ 9 Defendant testified that he wrestled with Finley for the gun. Defendant got behind Finley and put his left hand on top of Finley's hand which was holding the gun. The two of them spun around about 180 degrees, at which point the gun went off. Defendant did not see a bullet strike anyone. Defendant stated that he then pushed Finley and ran home. Defendant's attorney did not elicit from defendant whether he had any prior convictions.

¶ 10 After defendant testified, the State sought to admit his prior conviction for possession of a controlled substance from 2002, and convictions for attempted first degree murder and aggravated battery with a firearm from 1992, arguing they were relevant and admissible to impeach defendant because defendant had an interest in fabricating his story. Defense counsel objected to the admission of the prior convictions, stating:

"Judge, [ ] we hashed this out beforehand, and I—I felt like everything was absolutely clear. * * * [B]asically what the implication of what the Court's prior ruling was, deferred ruling, which is that, [ ] at that point in time I fully intended on going at Brian Finley at possession of weapon and his propensities * * *.

We made a—a strategic decision, at that point, Judge, whether it was to our benefit to leave Brian Finley alone on his prior gun possession case and any possible implications, because getting in that—one or two questions on that was seriously outweighed by then the Court saying that, okay, well you went into it with him, now they can go into his [defendant's]—go deeper into his background. I didn't ask one question of Brian Finley about a gun case. * * * We specifically stayed away from it. Didn't imply it. Didn't go anywhere near it."

¶ 11 Defense counsel offered to allow the State to impeach defendant with his prior conviction for possession of a controlled substance, but argued that the other convictions were more prejudicial than probative. The court allowed the State to introduce defendant's prior convictions for possession of a controlled substance and aggravated battery with a firearm but ruled that the State could not introduce his attempted first degree murder conviction. In rebuttal closing argument, the State argued, "And what is defendant's interest or bias in trying to fabricate a story for you to believe? He was previously convicted of possession of a controlled substance, and, also, aggravated battery with a firearm. He has the most interest to concoct the story for you."

¶ 12 The jury acquitted defendant of attempted first degree murder but found him guilty of aggravated battery with a firearm. The circuit court sentenced defendant to 40 years' imprisonment.

¶ 13 On direct appeal, defendant was represented by the same attorney who represented him at trial. Defendant's attorney argued that the State failed to prove defendant guilty beyond a reasonable doubt; that the trial court improperly admitted one of defendant's prior convictions because it was more prejudicial than probative under Montgomery; and defendant's sentence was excessive. The appellate court affirmed both defendant's conviction and sentence in an unpublished order on March 23, 2007. People v. Cathey, No. 1–06–0460, 371 Ill.App.3d 1200, 344 Ill.Dec. 469, 936 N.E.2d 1226 (2007) (unpublished order under Supreme Court Rule 23 ). This court denied leave to appeal.

¶ 14 On September 30, 2008, defendant filed the instant pro se postconviction petition. Defendant's pro se petition alleged, inter alia, that he was denied effective assistance of counsel because counsel failed to argue on appeal that defendant's trial judge erred...