People v. Averett

JUSTICE GREIMAN, dissenting:

Reluctantly, I must dissent.

As in People v. Phillips, 371 Ill. App. 3d 948 (2007), the majority recognizes the trial court’s failure to rule on the motion in limine seriously impairs defendant’s judgment as to whether or not he should testify and thereby waive his fifth amendment rights.

However, subsequent to their expression of concern regarding defendant’s constitutional rights, both hold that the appellate court cannot consider whether the Montgomery conditions can be reviewed unless the defendant elects to testify.

I grant that there is a plethora of opinions validating that conclusion in Phillips, Ballard and, of course, Luce v. United States, 469 U.S. 38 , 83 L. Ed. 2d 443 , 105 S. Ct. 460 (1984).

We are no longer in lockstep with the United States Constitution. Our constitution provides a similar fifth amendment right in article I, section 10, which provides “No person shall be compelled in a criminal case to give evidence against himself ***.” Ill. Const. 1970, art. I, §10.

As for the authority of the appellate court to hear this issue, article I, section 12, of that same Illinois Constitution provides:

“Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly.” Ill. Const. 1970, art. I, §12.

Certainly, article I, section 12, would give our appellate court jurisdiction to hear a matter relating to the impairment of a constitutional right.

Moreover, Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)) allows us to “enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief *** that the case may require.”

Accordingly, under both or either of these provisions, the appellate court may go beyond the Luce decision, which required the defendant to testify before the Montgomery conditions could be considered.

This case is particularly easy because there is little doubt as to what the Montgomery consideration would yield. It is hard to imagine that the trial court would not allow the prior drug convictions where defendant is prosecuted for possession of a controlled substance with intent to deliver. I considered authoring a concurring opinion concluding that because the result was so obvious, the judge’s failure to rule was harmless error.

I recognize that the supreme court may not agree with my dissent. Accordingly, I encourage our supreme court to exercise its rule-making powers to require the trial courts to rule on defense motions in limine regarding the Montgomery test as soon as possible.

In People v. Strain, 194 Ill. 2d 467, 475 (2000), our supreme court recognized “[c]onsistent with constitutional safeguards, this court has the inherent power to make rules governing the practice in the circuit courts, including the regulation of jury trials in criminal cases.”

In addition to our courts recognizing that we need not be in lockstep with federal constitutional limitations, the United States Supreme Court has recognized that the interest in uniform laws throughout the country need not interfere with the federal system. In Danforth v. Minnesota, 552 U.S. 264, 280 , 169 L. Ed. 2d 859, 871 , 128 S. Ct. 1029, 1041 (2008), the Supreme Court said:

“This interest in uniformity, however, does not outweigh the general principle that States are independent sovereigns with plenary authority to make and enforce their own laws as long as they do not infringe on federal constitutional guarantees.”

I therefore dissent from the thoughtful majority’s opinion and in the event the supreme court declines to accept my dissent, pray that a rule be adopted to resolve this issue.