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THIRD DIVISION

July 31, 2002

JUSTICE WOLFSON delivered the opinion of the court:

William Stokes sued the City of Chicago for injuries he saidhe sustained when his foot caught in a hole in the sidewalk at656 North Green Street. Throughout the trial the City insistedit had the right to impeach Stokes's credibility with his threeprior burglary convictions. The trial court was equallyinsistent that the City had no such right.

The jury found in favor of Stokes, awarding him $30,000 indamages. The single issue in this appeal is whether the trialcourt committed reversible error when it refused to allow theCity to impeach Stokes.

We reverse and remand.

FACTS

Because the City raises only the impeachment issue, wemerely sketch the evidence presented at trial.

At the time of trial, in February of 2001, Stokes was aninmate at the Vienna Correctional Center in Vienna, Illinois. The trial court's issuance of a writ of habeas corpus permittedStokes to appear at trial, where he was allowed to wear civilianclothes.

He had been convicted of burglary three times: (1) August23, 1993; (2) April 7, 1998; and (3) July 5, 2000. In a pretrialruling, the trial court granted Stokes's motion to bar anyimpeachment use of his burglary convictions. The trial courtfound -- before, during, and after trial -- that there was noissue concerning Stokes's "honesty." That is, said the court,"that's saying he's testified to something, and then there was anobserver, another fact witness who testified to something else."

The trial court rejected the City's suggestion that there are other ways a party's credibility can be brought intoquestion, concluding: "The Court finds that its prejudicialeffect outweighs its probative value."

At trial, Stokes testified that on September 15, 1993, hewas living at 467 West Oak Street with Martha Sallay and theirfive children. During the day, the children were at school,Sallay was at work, and Stokes was at home because he was laidoff from his job at a fast food restaurant.

After the children returned home from school, Stokes went toa basketball court to play with friends. Sallay met him theresome time later, then they went home to eat dinner. After dinnerand after putting their children to bed, just after 9:00 p.m.,Stokes and Sallay went for their regular walk in theirneighborhood. They walked at a strolling pace. Stokes waswearing low-top gym shoes.

After Stokes and Sallay had been walking for about 25 or 30minutes they were on North Green Street. Although Stokes sawthere were no street lights in the area, he and Sallay continuedto walk down the 600 block of North Green Street. The street wasdark; neither the moon nor the buildings in the area offered anyillumination. Stokes said he never walked down North GreenStreet before that night.

Sallay held Stokes's right arm as they walked down NorthGreen Street. As they walked, some people came near them on thesame side of the street. He did not see the people until theywere very near to them. When the people got close to Stokes andSallay, he jerked Sallay close to him and moved over and awayfrom the people. He did not know the people who were comingclose to them.

As the strangers passed Stokes and Sallay, Stokes's footcaught in a hole in the concrete of the sidewalk. Stokes's footwent into the hole up to the bottom of his ankle bone and hisheel hit something hard. When he tried to pull his foot out, hefell over. As he fell over, he heard something crack in hisfoot.

After Stokes fell, he tried to stand but could not. Thepain was too much. Sallay left to get help and Stokes movedhimself to some steps that were about 20 to 25 feet away fromwhere he fell. Before Sallay returned, an ambulance arrived. The ambulance took Stokes to Northwestern Hospital for treatment.

Sallay testified that during the day on September 15, 1993,she stayed home with her two youngest children and Stokes went towork. In the early evening, Stokes played basketball with somefriends while Sallay cooked dinner. Sometime later, at about7:00 p.m., Sallay left the house to watch Stokes play a game. After the game, Stokes talked to his friends, then he and Sallaywalked home to eat dinner. After dinner, Stokes and Sally spentsome time at home putting their children to bed. Then they wentfor a walk.

Stokes and Sally took their walk between 9:00 and 10:00 p.m. While they were walking, they encountered some of Stokes'sfriends. One of them gave Stokes a basketball. After stoppingto talk to his friends, they headed back home. They walked at anormal pace to North Green Street. Stokes and Sallay werepassing the basketball back and forth to each other as theywalked.

Sallay was not familiar with the area of North Green Street. Although the street was dark, she and Stokes played with thebasketball as they walked on the sidewalk. Stokes was eitherbouncing the ball or passing it to Sallay when his foot fell intoa hole in the sidewalk. When Stokes's foot fell through thehole, they were between the 600 and 700 block of Green Street.

After Stokes's foot fell through the hole, he began twistinghis foot, trying to get it out of the hole. In trying to get hisfoot out of the hole, Stokes fell over in Sallay's direction. Hetold her he could not get up or walk. Stokes looked to be in alot of pain.

Stokes told Sallay to call an ambulance. So Sallay walkedto Chicago Avenue to find a phone and call an ambulance. Sallaycalled 911 on a pay phone and asked for an ambulance. By thetime she returned to the scene, Stokes had been put in theambulance. Sallay then walked to Northwestern Hospital to bewith him.

Stokes's lawyer read into evidence the evidence depositionof Dr. Cordes. Dr. Cordes treated Stokes in the emergency roomat Northwestern Hospital. He diagnosed Stokes with a calcaneus(heel bone) fracture of the left foot. Dr. Cordes's records listthe cause of injury as a "trip and fall."

According to the doctor, when Stokes was admitted in theemergency room, he said he had fallen in a pothole in the street. Dr. Cordes opined that "it requires a fairly exertional amount ofenergy to fracture that calcaneus ***. Typically we see thesefrom falls from [great] heights ***." Dr. Cordes said he wouldhave to know the depth of the hole and the speed of the footentering the hole to determine whether it could have causedStokes's injury. Although he could not determine what causedStokes's heel to break, he "supposed it could" have happened ifthe twisting of the body generated enough torque to break thebone.

Dr. William Dobozi, an expert in orthopedic trauma,testified for the City. Based on Stokes's x-rays, the doctoropined Stokes suffered a depressed "complex" fracture of hiscalcaneus. Because the fracture was "complex," Stokes's brokenheel bone must have been caused by a high energy force.

Generally, said the doctor, this type of injury occurs as aresult of a fall from great heights or a high-speed autoaccident. Dr. Dobozi's opinion was that the condition of thesidewalk on North Green Street did not cause Stokes's heel boneto break. He criticized Dr. Cordes's opinion to the extent thatDr. Cordes did not take into account the fact that the fracturewas "complex."

Carlos Martinez, the last witness to testify at trial, wasone of the paramedics who treated Stokes. In Martinez's report,he wrote Stokes told him he was "walking down the street andstepped into a pothole."

After closing arguments, the jury deliberated and thenreturned its verdict in favor of Stokes. The trial court enteredjudgment on the verdict and denied the City's motion for a newtrial. This appeal followed.

DECISION

The trial court veered off course when it determined therewas no "honesty" issue here because no other eyewitnesscontradicted Stokes's version of what happened. We assume thetrial court's reference to Stokes's "honesty" was intended toaddress the question of whether Stokes's credibility was an issuein the case. It is a rare trial where a party's credibility willnot be an issue. This was not one of them.

The exact spot where the fall took place -- street orsidewalk -- was an issue. So was the way his foot entered thehole: the front of the foot or the whole foot? The way Stokesmoved his foot in the hole was in dispute, as was the amount ofpain he felt from the time of injury to the time of trial.

If Stokes was not looking where he was going at the time hefell, the City would not be liable. See Siegel v. Village ofWilmette, 324 Ill. App. 3d 903,, 907-08, 756 N.E.2d 316 (2001). If he fell in a pothole while walking on the street outside across-walk, there would be no liability. See Sisk v. Williamson

County, 167 Ill. 2d 343, 347, 657 N.E.2d 903 (1995).

Our review of the record discloses ample reasons to findthere was a credibility issue here.

First, Stokes failed to testify consistently with his ownprior testimony: (1) at trial Stokes said his whole foot wascaught in the hole, but at his deposition he said it was thefront part of his foot that slipped inside the hole; (2) at trialStokes identified a photograph of the sidewalk near 656 NorthGreen Street that showed the hole in which his foot becamecaught; however, when he was later shown another photograph ofthe sidewalk, he said he could not identify the hole because "itwas dark that night" and he could not "even see what was aroundthat hole;" and (3) at trial Stokes said he did not remember whathe told the paramedics when they arrived, but at his depositionhe said he told the paramedics he fell in a pothole.

Second, Stokes failed to testify consistently with Sallay:(1) at trial Stokes said he was laid off and Sallay was working,but Sallay said she stayed home and Stokes was working -- Sallaychanged her mind two times and finally said she did not remember--; (2) Sallay could not recognize any photograph of the sidewalkas the area where Stokes fell, though Stokes could; (3) at trialStokes said he did not know the people who approached them onNorth Green Street, but Sallay said the people were Stokes'sfriends and one of them gave him a basketball to play with; (4)at trial Stokes said Sallay was holding him when he fell, butSallay said she was not holding him and was walking "a little bitto the side of him;" and (5) at trial Stokes did not say, asSallay did, he and Sallay were playing with a basketball when hisfoot fell in the hole -- Stokes was either bouncing, passing, orreaching for the ball.

Third, Stokes failed to testify consistently with Dr. Cordesand Carlos Martinez: at trial Stokes said his foot got caught ina hole in the sidewalk, but (1) Dr. Cordes said that when Stokesarrived in the emergency room he said he had fallen in a potholein the street, and (2) Martinez wrote in his report that Stokessaid he was walking down the street and a pothole caused him tofall.

Finally, it is significant that the City's expert, Dr.Dobozi, testified that the complex fracture incurred by Stokeswas not caused by the hole in the sidewalk on North Green Street. That, alone, would be enough to create a credibility issue.

A finding that a witness's credibility is an issue in thecase establishes the relevance of an attack on that credibilityby means of a prior conviction. Then the trial court turns tothe seminal Illinois decision: People v. Montgomery, 47 Ill. 2d510, 268 N.E.2d 695 (1971).

In Montgomery, the supreme court adopted the then-proposedFederal Rule of Evidence 609: A prior conviction is admissiblefor the purpose of attacking the credibility of a witness only ifthe crime (1) was punishable by death or imprisonment in excessof one year, or (2) involved dishonesty or false statementregardless of the punishment, unless (3) in either case, thejudge determines that the probative value of the evidence of thecrime is substantially outweighed by the danger of unfairprejudice. Montgomery, 47 Ill. 2d at 516. Evidence of aconviction is not admissible if "more than 10 years has elapsedsince the date of conviction or of the release of the witnessfrom confinement, whichever is the later date." Montgomery, 47Ill. 2d at 516. (FRE 609 was enacted in a slightly differentform, but Illinois decisions have adhered to the proposedversion.)

The Montgomery rule applies to civil cases as well ascriminal cases. Knowles v. Panopoulos, 66 Ill. 2d 585, 363N.E.2d 805 (1977). It applies to misdemeanor convictions thatare crimes of dishonesty. People v. Spates, 77 Ill. 2d 193,203, 395 N.E.2d 563 (1979) (misdemeanor theft convictionproperly used to impeach defendant charged with armed robbery).

When Montgomery applies, the trial judge's first task is todetermine whether the prior conviction fits one of the first twoalternative factors -- a felony conviction or conviction of anycrime involving dishonesty or false statement. At this stage,there is no need to consider the nature of the felonyconviction. Any timely felony conviction will satisfy the firstMontgomery factor. See People v. Atkinson, 186 Ill. 2d 450,461, 713 N.E.2d 532 (1999) (not error to allow use of burglaryconviction to impeach defendant charged with burglary); Peoplev. Williams, 173 Ill. 2d 48, 670 N.E.2d 638 (1996) (not error toallow use of aggravated battery conviction to impeach defendantcharged with murder). Appellate decisions that indicate thenature of the prior conviction must bear on the witness'struthfulness before it can be considered for use as impeachmentare trumped by Williams and Atkinson. See, for example, Peoplev. Elliot, 274 Ill. App. 3d 901, 908-09, 654 N.E.2d 636 (1995);and Housh v. Bowers, 271 Ill. App. 3d 1004, 1006-07, 649 N.E.2d505 (1995).

When either of the first two alternative Montgomery factors

has been satisfied, the analysis shifts to vital ground: the balancing test. Our supreme court has expressed "concern about the indiscriminate admission of all prior felony convictions for impeachment purposes absent application of the critical balancing test mandated by Montgomery." People v. Williams, 173Ill. 2d at 82.

This last factor, the balancing test, requires the trial judge to weigh the prior conviction's probative value against its potential prejudice. Here, the nature of the conviction does matter, because it "aids the jury in assessing a witness'scredibility." Atkinson, 186 Ill. 2d at 458. The more the priorconviction smacks of testimonial dishonesty, the more probativeweight it has. Torres v. The Irving Press, 303 Ill. App. 3d151, 160, 707 N.E.2d 248 (1999). Convictions involving deceit,fraud, cheating, or stealing are the kinds of crimes that "pressheavily on the probative value side of the scale," Torres, 303Ill. App. 3d at 160; although a conviction that had little ornothing to do with truthtelling survived supreme court scrutinyin Williams, 173 Ill. 2d at 83 (no error to allow use of anaggravated battery conviction to impeach a defendant chargedwith murder).

Trial judges are admonished not to apply the balancing test"mechanically." People v. Williams, 161 Ill. 2d 1, 38-39, 641N.E.2d 296 (1994). That is, "trial courts should not tip thebalancing test toward probative value simply because allfelonies show a disrespect for society, and, thus, indicate awillingness to lie on the witness stand." Williams, 161 Ill. 2dat 39. It must be a "meaningful" balancing test. Torres, 303Ill. App. 3d at 162 (failing to conduct a meaningful balancingtest and refusing to admit a non-party witness's misdemeanortheft conviction for impeachment was reversible error).

A slight tipping of the scales toward the risk of unfairprejudice is not enough to exclude the prior conviction. Thetrial court in this case erred when it conducted a simplebalancing test. To exclude the evidence, the trial court mustfind the risk of unfair prejudice substantially outweighs theprobative value of the conviction for impeachment purposes. Montgomery, 47 Ill. 2d at 516.

Trial judges are given factors to use when conducting the balancing test -- an exercise in discretion. These include thenature of the prior conviction, its recency and similarity tothe present charge, other circumstances surrounding the priorconviction, and the length of the witness's criminal record. Atkinson, 186 Ill. 2d at 456. Convictions of the same crime forwhich the defendant is on trial should be admitted "sparingly". People v. Cox, 195 Ill. 2d 378, 384, 748 N.E.2d 166 (2001). However, the supreme court found no error where the trial judgein a burglary case allowed the defendant to be impeached withtwo prior burglary convictions. Atkinson, 186 Ill. 2d at 461.

The appellate courts have had several occasions to examinea trial judge's exercise of discretion when admitting orexcluding prior convictions for impeachment purposes. SeeHoush, 271 Ill. App. 3d at 1004 (abuse of discretion to allowimpeachment use of plaintiff's attempt robbery conviction inpersonal injury trial); Holmes v. Anguina, 174 Ill. App. 3d1081, 529 N.E.2d 300 (1988) (abuse of discretion to barimpeachment use of defendant's attempt robbery conviction inpersonal injury trial); Minor v. City of Chicago, 101 Ill. App.3d 823, 825, 428 N.E.2d 1090 (1981) (abuse of discretion to barimpeachment use of plaintiff's two misdemeanor theft convictionsin personal injury trial; since plaintiff was the soleoccurrence witness his "testimony and credibility was of theutmost importance in the jury's determination.").

In this case, the trial court erred when it found Stokes's"honesty" (credibility) was not an issue, when it failed toanalyze Stokes's burglary convictions in light of the first ofthe two Montgomery alternative factors, and when it failed toconduct a correct and meaningful balancing test.

Plaintiff's credibility was a central issue in this case. Because we believe the trial court failed to correctly analyzethe City's offer of three burglary convictions to impeach theplaintiff, we reverse the court's judgment and remand this causefor a new trial.

This opinion should not be read as mandating theadmissibility of any of Stokes's burglary convictions forimpeachment purposes. We do hold the convictions satisfy thefirst Montgomery factor. It is for the trial court to determinewhether the use of one, two, or all three of the convictionswould survive the balancing test. That is, whether theprobative value of the jury hearing about one or more burglaryconvictions in order to weigh Stokes's credibility issubstantially outweighed by the risk of unfair prejudice. Thescales tip toward exclusion in any case when "the risk ofmisleading or overpersuading the jury is palpable." People v.Bedoya, 325 Ill. App. 3d 926, 943. 758 N.E.2d 366 (2001).

We also suggest that should the trial court allow use ofone or more of the burglary convictions, it should offer tocontemporaneously instruct the jury on the limited purpose ofthe evidence. See Illinois Pattern Jury Instructions, Civil,No. 3.05 (2000). The plaintiff would be free to reject theoffer. Limiting instruction or not, the trial court must ensurethat the prior conviction is kept to its limited purpose.

CONCLUSION

Because the trial court committed reversible error when itrefused to consider the City's offer of Stokes's prior burglaryconvictions, we reverse the court's judgment and remand thiscause for a new trial.

Reversed and remanded.

HALL, P.J., and CERDA, J., concur.