Supreme Court Summaries

Opinions filed March 22, 2012

 People v. Cathey, 2012 IL 111746

Appellate citation: 406 Ill. App. 3d 503.


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

      Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.


      This Cook County criminal case arose after a man was shot in the head and survived but did not remember the incident, which took place on a June evening in 2004. This defendant, Elron Cathey, was charged with attempted first degree murder and aggravated battery with a firearm. There was evidence that a confrontation had taken place between the defendant and a friend of the victim and that a gun had gone off, wounding the victim, but the trial testimony was conflicting as to who had the gun. The defendant claimed self-defense. In 2006, Cathey was convicted by a jury of aggravated battery with a firearm and received a 40-year sentence. He was acquitted of attempted first degree murder.

      The defendant was represented at trial and on his direct appeal by the same counsel. That attorney had sought a pretrial ruling on whether the defendant’s prior convictions could be used to impeach his testimony. Counsel argued that, because defendant was claiming self-defense, his own testimony was crucial, and the defendant had to know beforehand whether his testimony would be impeached before making a decision as to whether or not to testify. This is an issue of constitutional dimension. Two of the earlier convictions were for the same offenses charged, namely, attempted first degree murder and aggravated battery with a firearm.

      The trial judge did not make the pretrial, or in limine, ruling which was requested. The defendant testified as to his version of events, and was then impeached by the prosecution’s introduction of his earlier convictions for aggravated battery with a firearm and possession of a controlled substance. (The earlier conviction for attempted first degree murder was not allowed in for impeachment purposes.) On direct appeal, the defendant’s attorney argued, among other things, that admission of the conviction for aggravated battery with a firearm had been prejudicial, but he did not argue that the trial judge had committed error in refusing to make a pretrial ruling. The appellate court affirmed in 2007.

      Cathey filed a pro se postconviction petition in 2008, alleging, among other things, that his counsel had been ineffective on appeal in not challenging the trial judge’s refusal to rule before trial on the use of convictions to impeach. The postconviction petition was summarily dismissed as frivolous or patently without merit, and the appellate court affirmed in 2010. Cathey appealed to the Illinois Supreme Court.

      On January 23, 2009, the supreme court had issued its decision in People v. Patrick (233 Ill. 2d 62), which held that there is no justification for a blanket policy of refusing to rule on use of convictions to impeach until after a defendant testifies, and that, as to the murder defendant in that case, discretion was abused when the defendant, who claimed self-defense, could not get a pretrial ruling on use of his prior drug conviction to impeach. Cathey’s postconviction petition had been filed before the Patrick ruling, but the appellate court decision challenged here came after it.

      The supreme court held that the issue of the retroactivity of Patrick did not have to be reached because Patrick was not mentioned in the postconviction petition, and that the appellate court was incorrect in considering this question. However, it is clear from the trial record that the attorney who served as trial and appellate counsel was aware of the potential problems raised by the trial court’s refusal to make an earlier ruling, and counsel’s failure to raise this precise issue when he represented Cathey on direct appeal is hard to explain. The supreme court held that it was at least arguable, even before Patrick was decided, that counsel’s performance on appeal was deficient and that Cathey was prejudiced thereby. Therefore, the summary dismissal of the postconviction petition was improper, and the appellate court should not have affirmed it.

      The cause is therefore remanded to the circuit court so that the offender’s petition can advance beyond the summary dismissal stage to the second stage of postconviction proceedings, at which counsel may be appointed and an amended petition may be submitted.

      The supreme court expressed no opinion as to whether Cathey would be able to meet the requirements for proceeding to an evidentiary hearing on his postconviction petition, and other additional issues raised in his pro se petition did not have to be addressed here.