People v. Lambert
Annotate this Case
No. 2--94--1326
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, ) No. 94--CF--148
)
v. )
)
FREDERICK R. LAMBERT, ) Honorable
) John W. Nielsen,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
The defendant, Frederick Lambert, was found guilty by a jury
of the charge of first degree murder (720 ILCS 5/9--1 (West
1994)). Subsequently, the trial court sentenced the defendant to
100 years' imprisonment. This appeal ensued. We reverse and
remand for a new trial.
The defendant was charged with the October 29, 1993, beating
death of Anthony Doss. The cases of the defendant's
codefendants, Antowan Lambert, Carl Dickson, Maurice Bowden,
Alexander Dowthard, Jr., and Lucio Flores, were disposed of in
separate proceedings.
Among other witnesses, the State called Lucio Flores, the
defendant's half-brother, and Antowan Lambert, the defendant's
nephew, as its only eyewitnesses tying the defendant to the
murder. During his testimony, Flores revealed that on January 7,
1994, he gave a written statement about Doss' death to Rockford
police detectives. Detective Bruce Scott later testified that he
and Detective Pobjecky took the written statement. Scott denied
that any deal was made with Flores in exchange for the statement.
Flores also testified that, in exchange for his testimony at
trial against the defendant, the State had agreed to reduce his
murder charge to aggravated battery (720 ILCS 5/12--4 (West
1994)) and concealment of a homicide (720 ILCS 5/9--3.1 (West
1994)), for which he would plead guilty and receive a sentence of
30 months' probation and time served.
Antowan testified that he gave a written statement regarding
Doss' murder to the Rockford police on January 4, 1994. Antowan
admitted at trial that he gave his statement only after he was
told that others had talked and after he was told of the possible
penalties for murder. Antowan also admitted that, prior to
making the statement, the police told him that it would go easier
for him if he talked. Antowan testified that, in exchange for
his testimony at the defendant's trial, his own murder charge
would be reduced to armed violence (720 ILCS 5/33A--2 (West
1994)), to which he would plead guilty for a 7«-year prison term.
At the close of the State's case, the prosecutor read the
written statements of Flores and Antowan Lambert to the jury.
Counsel for the defense objected to this reading, arguing that
the written statements were not admissible as prior consistent
statements and also that, if they were, indeed, admissible, they
should not be read to the jury. In response, the State argued
that the written statements should be admitted as substantive
evidence. The trial court asked the prosecutor if he "really
want[ed] to do it" due to the closeness of the case. The trial
court continued that the prosecutor "may be putting reversible
error into" the case. Further, the court warned, "I think you
are gilding the lily. I think there's a possibility of
reversible error. And I just think that you, you are treading on
thin ice and I would caution you very seriously." The court also
stated, "You [the prosecutor] understand you are playing with
fire. That's the only thing I am telling you. But if you want
it done, it's your case, God bless you." Thus, notwithstanding
the trial court's misgivings about the issue, the trial court
denied the defendant's objection, and the State proceeded on its
perilous path.
On appeal, the defendant argues that the trial court erred
by admitting the prior consistent statements of Flores and
Antowan Lambert. Further, the defendant avers that the
statements should not have been admitted as substantive evidence.
In addition, the defendant contends that his due process rights
were violated by the conduct of juror Larry Standfield.
Generally, a trial court's decision on whether to admit
something into evidence will not be overturned on appeal absent
an abuse of discretion. Leonardi v. Loyola University, 168 Ill. 2d 83, 92 (1995). Specifically for the present case, prior
consistent statements are generally not admissible. People v.
Williams, 147 Ill. 2d 173, 227 (1991). However, prior consistent
statements are admissible only to rebut a charge or inference
that (1) the witness is motivated to testify falsely, so long as
the witness told the same story before the motive came into
existence; or (2) the witness' testimony is of recent
fabrication, so long as the witness told the same story before
the time of the alleged fabrication. Williams, 147 Ill. 2d at
227; People v. Antczak, 251 Ill. App. 3d 709, 715-16 (1993). In
Antczak, this court examined the ambiguity of prior case law in
setting forth the applicable test and determined that the absence
of motive to testify falsely need not be shown where the evidence
is offered to rebut the charge of recent fabrication. Antczak,
251 Ill. App. 3d at 715-16. Thus, the exceptions listed above
should, indeed, be treated as separate exceptions. Antczak, 251
Ill. App. 3d at 715-16; see M. Graham, Cleary & Graham's Handbook
of Illinois Evidence 611.14 (Supp. 1996).
Turning first to the prior consistent statement of Antowan
Lambert, we determine that the statement was admissible for
rehabilitative purposes. The record reveals that counsel for the
defense attacked Antowan Lambert's credibility on cross-
examination on two distinct bases. First, counsel suggested that
Antowan Lambert's testimony was the product of a motivation to
testify falsely in order to avoid the full scope of Antowan
Lambert's own criminal responsibility for the murder pursuant to
Antowan's plea agreement. Second, the record reveals that
counsel for the defendant also sought to persuade the jury that
Antowan's testimony was suspect because of a recent fabrication.
Specifically, counsel asked Antowan if he and Flores, who had
finished testifying the day before and whom Antowan admittedly
saw through the door of the courtroom while Antowan was
testifying, allegedly making gestures to Antowan, were "pretty
tight." Antowan agreed. The colloquy continued:
"Q. When is the last time you talked to [Flores]
either in person or on the phone?
A. Last night.
Q. Did you call [Flores] last night?
A. Yes, I did.
Q. Lucio tell you that he testified yesterday?
A. Yes, he did.
Q. Have you ever told him that you were going to
testify falsely here in court?
A. No, I haven't."
While Antowan answered in the negative to the final question,
defense counsel's questions about Antowan's speaking to Flores
the night before Antowan testified raised the inference that
Antowan fabricated his testimony to comport with that of Flores.
This is especially so in light of the allegations, which Antowan
admitted were true, that Flores made gestures to Antowan during
Antowan's testimony. Further, defense counsel also presented a
letter during his cross-examination of Antowan. According to
Antowan, the letter appeared as if "somebody wrote it and signed
my signature." The full contents of the letter were not
disclosed following an objection by the State after Antowan read
somebody else's writing on the letter that stated, "Ricky check
this out, I got this letter from Twon a few days--." However,
the defense counsel's use of the letter during Antowan's
impeachment again raised the inference that Antowan was being
accused of a recent fabrication. Thus, Antowan's prior
consistent statement, that is, his written statement given to the
police on January 4, 1994, a date preceding the alleged recent
fabrications, was properly admissible for rehabilitative
purposes. Antczak, 251 Ill. App. 3d at 717.
We also determine that Flores' prior consistent statement
was also admissible for rehabilitative purposes. However, we
determine that the defense's cross-examination of Flores did not
sufficiently raise the issue that Flores' testimony was of recent
fabrication. The pertinent portion of the defense's cross-
examination of Flores reads as follows:
"Q. How many times did you talk to [the prosecutor]?
A. Four or five times.
Q. How long did you talk each of these times?
A. Couple hours.
Q. Did you go over the exhibits?
A. Yup.
* * *
Q. You have gone over your testimony before
today, haven't you?
A. No.
Q. No? He hasn't asked you questions before today?
A. Yeah, he asked me questions.
Q. Okay. And did you give him answers to those
questions?
A. I answered with my statement.
Q. Right. Did you--did you answer those
questions, some of them were the same ones he asked you
today, weren't they?
A. Right.
Q. The statement, that's what you went over with
[the prosecutor], isn't it?
A. He asked me questions and I answered them.
Q. And some of those were the same ones he asked
you today so you have gone over those before, haven't
you?
A. No, we went over how it was going to go in court."
This is the only portion of the defense counsel's cross-
examination of Flores which may be said to remotely raise the
charge of recent fabrication. The Appellate Court, First
District, has held that a witness may be charged with a recent
fabrication when counsel questioning that witness implies that
the witness had rehearsed his testimony with prosecutors. People
v. Askew, 273 Ill. App. 3d 798, 803-04 (1995); People v. Ollins,
235 Ill. App. 3d 158, 165 (1992). We disagree. The fact that a
witness recently rehearsed his testimony with counsel does not
imply that any "fabrication" occurred. Further, we take notice
that most witnesses do, in fact, go over their testimony with
counsel prior to trial. Thus, if we were to decide that this
rehearsal implies that a recent fabrication occurred, the
exception of "recent fabrication" would swallow the rule that
prior consistent statements are generally inadmissible.
Williams, 147 Ill. 2d at 227. Consequently, we determine that
Flores' prior consistent statement was not admissible under the
recent fabrication exception to the general rule of
inadmissibility.
Nevertheless, we determine that Flores' prior consistent
statement was admissible for rehabilitative purposes under the
improper motive exception to the general rule of inadmissibility.
Under this exception, a prior consistent statement is admissible,
so long as the presently imputed motive to testify falsely did
not exist at the time of the prior statement, to rebut the
implication that the witness has a motive to testify falsely.
Williams, 147 Ill. 2d at 227; Antczak, 251 Ill. App. 3d at 715-
16. The record demonstrates that defense counsel's cross-
examination of Flores included extensive questioning of his
expectations of leniency for his involvement in Doss' death in
light of a plea agreement. The issue we face, then, is whether
Flores' motive to testify falsely also existed at the time he
made his written statement to the police. If the motive existed
at that time, then the admission of Flores' prior written
statement was in error. Williams, 147 Ill. 2d at 227; Antczak,
251 Ill. App. 3d at 715-16.
Analysis of the case law in this area leads us to conclude
that Flores' written statement was admissible for rehabilitative
purposes under this exception. In People v. Powell, 53 Ill. 2d 465, 469 (1973), the witness in question was a codefendant in
whose automobile the murder weapon had been found. After cross-
examination about a plea agreement that the witness had made in
July 1969, the State introduced a prior statement of the witness,
given in March 1969. In March, according to the witness, "no
offer of leniency had been made." Powell, 53 Ill. 2d at 475.
Our supreme court found no error in the admission of the witness'
March 1969 statement. Powell, 53 Ill. 2d at 475.
Similarly, in Williams, where the witness faced perjury
charges based on her recantation of her grand jury testimony
during subsequent preliminary proceedings at the defendant's
trial but reaffirmed her grand jury testimony when she actually
testified at the defendant's trial, our supreme court rejected
the argument that the witness must have considered that, "given
the conduct of police and prosecutors towards her, her best
strategy was to cooperate with the authorities by fabricating a
version of the events." Williams, 147 Ill. 2d at 227. The court
stated that it had rejected a "similar argument upon a similar
series of facts" in People v. Titone, 115 Ill. 2d 413, 423
(1986). Williams, 147 Ill. 2d at 227.
In Titone, the witness in question had not been "offered any
deal or threatened by the police in order to elicit the [prior
consistent] statement." Titone, 115 Ill. 2d at 423. Based on
the record in that case, our supreme court stated that it was
"unable to say that in admitting the statement the [circuit]
court erred." Titone, 115 Ill. 2d at 423.
Also, in People v. Ashford, 121 Ill. 2d 55, 71 (1988), the
inference was raised during cross-examination that the witness at
issue was motivated to lie because of expected leniency on an
unlawful restraint charge. The record in that case showed that
the possibility of an agreement to dismiss the charge, in
exchange for the witness' truthful statements at the defendant's
trial, was not even raised "until sometime after he had made the
statement, and the defense never sought at trial to show that the
statement was tendered with any such expectation." Ashford, 121 Ill. 2d at 71.
In People v. King, 165 Ill. App. 3d 464 (1988), this court
declined to follow the reasoning of People v. Green, 125 Ill.
App. 3d 734 (4th Dist. 1984), overruled by People v. Schutz, 201
Ill. App. 3d 154, 161 (4th Dist. 1990). In King, we determined
the Green reasoning to be that "the statement of a codefendant is
inherently unreliable if given at the time that the authorities
have identified the codefendant as a suspect in the crime, so
long as the statement places the onus of the crime on the
defendant and away from the individual making the statement."
King, 165 Ill. App. 3d at 468. This is precisely the argument
which the defendant makes in the case at bar. In King, even
though the trial court did not specifically so state, we found
that the trial court "found that a motive to testify falsely had
not arisen prior to [the witness] making his first statement to
the police." King, 165 Ill. App. 3d at 468.
In the present case, the record demonstrates that Flores had
not been "offered any deal or threatened by the police in order
to elicit the [prior consistent] statement." See Titone, 115 Ill. 2d at 423. Flores specifically denied that there were any
agreements made with the police or State's Attorney's office
before he signed his written statement. Further, the record does
not demonstrate that the police ever brought up the subject of
leniency with Flores. Detective Scott denied that any deal was
made with Flores in exchange for his statement. Thus, we
determine that Flores' written statement would have been properly
admissible for rehabilitative purposes under the improper motive
exception to the rule that prior consistent statements are
generally inadmissible.
In sum, we conclude that the prior consistent statements of
both Antowan Lambert and Flores would have been properly
admissible for rehabilitative purposes. However, the record
clearly demonstrates that both statements were entered for
substantive purposes.
We determine that the trial court erroneously admitted both
Antowan's and Flores' prior consistent statements as substantive
evidence. Illinois follows the common-law rule (see S. Gard,
Jones on Evidence 26:28, at 240 (6th ed. 1972) (and cases cited
therein)) that, where admission is allowed, a prior consistent
statement is permitted solely for rehabilitative purposes and not
as substantive evidence. People v. Weinger, 101 Ill. App. 3d
857, 874 (1981); People v. Hudson, 86 Ill. App. 3d 335, 340
(1980); People v. Hahn, 39 Ill. App. 3d 969, 978-79 (1976); R.
Steigmann, Illinois Evidence Manual 23:37, at 310 (3d ed. 1995);
Annotation, Admissibility of Impeached Witness' Prior Consistent
Statement--Modern State Criminal Cases, 58 A.L.R.4th 1014 (1987
and Supp. 1996) (hereinafter 58 A.L.R.4th 1014). The rationale
for this common-law rule is that corroboration by repetition
" 'preys on the human failing of placing belief in that which is
most often repeated.' " Hudson, 86 Ill. App. 3d at 340, quoting
People v. Sanders, 59 Ill. App. 3d 650, 654 (1978); see also
People v. Tidwell, 88 Ill. App. 3d 808, 811 (1980). In other
words, "mere repetition does not imply veracity." Coltrane v.
United States, 418 F.2d 1131, 1140 (D.C. 1969); see also 4 J.
Wigmore, Evidence 1126 (4th ed. 1972); 81 Am. Jur. 2d Witnesses
1012 (1992). Credibility should not depend upon the number of
times a witness has repeated the same story, as opposed to the
inherent trustworthiness of the story. George v. State, 604 S.W.2d 940, 942 (Ark. 1980); 81 Am. Jur. 2d Witnesses 1012
(1992). Where the common law applies and a prior consistent
statement is admitted into evidence, an instruction from the
court instructing the jury of its limited rehabilitative purpose
is proper. People v. Wurster, 83 Ill. App. 3d 399, 408 (1980);
81 Am. Jur. 2d Witnesses 1016 (1992).
The State's reliance upon Williams, 147 Ill. 2d 173, for the
proposition that the Illinois common-law position has changed is
misplaced. In Williams, as discussed earlier, a witness who had
previously given grand jury testimony recanted that testimony
during preliminary proceedings at the defendant's trial and,
therefore, faced perjury charges when she actually testified at
the defendant's trial. Williams, 147 Ill. 2d at 206-07, 226.
The witness then testified that her grand jury testimony was,
indeed, correct. Williams, 147 Ill. 2d at 207. After cross-
examination, the State then introduced the transcript of the
witness' grand jury testimony as substantive evidence. Williams,
147 Ill. 2d at 207. Our supreme court determined that the
admission of the grand jury testimony was not error. Williams,
147 Ill. 2d at 226-28. However, the court did not discuss the
issue, which was apparently never raised, that the transcript of
the grand jury testimony should only have been admitted for
rehabilitative purposes, not as substantive evidence. Thus,
Williams cannot be said to overrule the tenet of this state that
the evidence is permissible only for rehabilitative purposes.
Similarly, neither can People v. Powell, 53 Ill. 2d 465 (1973),
be read to overrule the same tenet. In the present case, where
the defense raised the objection about the purposes of the prior
consistent statements at trial, in a post-trial motion, and in
this appeal, the issue has not been waived.
Indeed, while not explicitly so holding, our supreme court
has affirmed the prevalence of the common-law rule in this state.
In People v. Henderson, 142 Ill. 2d 258 (1990), our supreme court
set forth that, while it was error for the trial court in that
case to admit a prior consistent statement into evidence, the
error was not prejudicial because, in part, the testimony
concerning the prior consistent statement was "general, not
specific, in that [the witness] said he told the police
'something like' what he had testified to; no portion of [the
witness'] statement to the police was admitted into evidence."
Henderson, 142 Ill. 2d at 312. If Illinois did not follow the
common-law rule, then it would not have mattered in Henderson
whether the witness' statement, as opposed to the mere
acknowledgement that the statement existed, was admitted into
evidence.
None of the cases that the prosecutor set forth at trial
stand for the proposition which the prosecutor stated they did,
that is, that the prior consistent statement may be admitted
substantively. See Powell, 53 Ill. 2d 465; People v. Gray, 209
Ill. App. 3d 407 (1991); King, 165 Ill. App. 3d 464; People v.
Link, 100 Ill. App. 3d 1000 (1981). Instead, none of these cases
differ from the common-law rule that prior consistent statements
be admitted, if at all, for purposes of rehabilitation. Powell,
53 Ill. 2d at 474-75; Gray, 209 Ill. App. 3d 407 (dealing
exclusively with prior inconsistent statements); King, 165 Ill.
App. 3d at 467; Link, 100 Ill. App. 3d at 1006. The trial court
explicitly recognized this during the trial, but erroneously
allowed the prosecutor to admit the evidence substantively
anyway, in contravention of the common-law rule. See Weinger,
101 Ill. App. 3d at 874; Hudson, 86 Ill. App. 3d at 340; Hahn, 39
Ill. App. 3d at 978-79; R. Steigmann, Illinois Evidence Manual
23:37, at 310 (3d ed. 1995).
We note that the common-law rule has been changed in most
jurisdictions that have adopted the Federal Rules of Evidence.
This is because Federal Rule 801(d)(1)(B) has been changed to
recognize the substantive value of prior consistent statements,
when offered to rebut a charge of recent fabrication or improper
influence or motive, by excluding them from the definition of
hearsay. Fed. R. Evid. 801(d)(1)(B). The advisory committee,
which suggested the change, gave two reasons for departing from
the common law. Specifically, the advisory committee stated that
"once the opponent has opened the door by attacking the witness's
credibility, it is not unfair to permit the party to bolster its
witness by presenting additional consistent evidence." Fed. R.
of Evid. 801, Advisory Committee's Note. See J. Weinstein,
Evidence, U.S. Rules, at 801-187, 801-188 (1996). Further, the
advisory committee suggested that, "as a practical matter, the
jury in all probability would misunderstand or ignore a limiting
instruction anyway, so there is no good reason for giving one."
J. Weinstein, Evidence, U.S. Rules, at 801-187, 801-188 (1996),
citing Comment, Hearsay Under the Proposed Federal Rules: A
Discretionary Approach, 15 Wayne L. Rev. 1077, 1092-93 (1969).
We disagree with the advisory committee's reasoning. As stated
above, allowing such testimony as substantive evidence preys on
the human failing that mere repetition implies veracity. Hudson,
86 Ill. App. 3d at 840; 58 A.L.R.4th 1014. Moreover, we believe
that juries understand and follow instructions from the court.
See Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176,
185, 107 S. Ct. 1702, 1707 (1987); People v. Sandoval, 135 Ill. 2d 159, 192-93 (1990); People v. Johnson, 199 Ill. App. 3d 577,
583 (1990). We are not alone in disagreeing with the advisory
committee. In some states that have adopted a version of the
Federal Rules of Evidence, the state legislature has decided not
to adopt this change from the common-law rule. Me. R. of Evid.
801(d)(1), Advisor's Notes; Mich. R. of Evid. 801(d)(1)(b); J.
Weinstein, Evidence, U.S. Rules, at 801-209 through 211 (1996).
In sum, because this state still adheres to the common-law
rule that, where admission is allowed, a prior consistent
statement is permitted solely for rehabilitative purposes and not
as substantive evidence (Weinger, 101 Ill. App. 3d at 874;
Hudson, 86 Ill. App. 3d at 340; Hahn, 39 Ill. App. 3d at 978-79;
R. Steigmann, Illinois Evidence Manual 23:37, at 310 (3d ed.
1995); 58 A.L.R.4th 1014) and because the record clearly
demonstrates that the statements in the case at bar were entered
substantively, we determine that the trial court erroneously
admitted the prior consistent statements.
We must now determine whether the erroneous admission of the
prior consistent statements of Antowan Lambert and Flores as
substantive evidence constituted reversible error. Under the
particular facts of this case, we determine that it did
constitute reversible error. The law is clear that, "[i]f there
is a reasonable probability that erroneously admitted testimony
contributed to a conviction, the error cannot be considered
harmless." Hudson, 86 Ill. App. 3d at 340. Further, "[t]he
admission of a [prior consistent] statement used to bolster the
sagging credibility of a witness is reversible error when the
witness' in-court testimony is crucial." People v. Smith, 139
Ill. App. 3d 21, 34 (1985); see also Moore v. Anchor Organization
for Health Maintenance, 284 Ill. App. 3d 874 (1996). Also,
"[e]ven if sufficient competent evidence was introduced to
establish a defendant's guilt beyond a reasonable doubt, there is
still reversible error when the improper admission clouds the
evidence to such a degree that it is impossible to tell whether
the jury relied on it." Smith, 139 Ill. App. 3d at 34.
In Smith, reviewing the issue under the plain error
doctrine, the court found that the erroneous admission of a prior
consistent statement constituted reversible error where the
witness who made the statement was the only eyewitness to the
crime, where the introduction of that witness' prior consistent
statement was important in making his testimony more believable,
and where the jury's reliance on the statement was made more
likely by the fact that the prosecutor mentioned it during
closing argument. Smith, 139 Ill. App. 3d at 34.
We agree with the dissent's admonition that the prejudicial
nature of evidence must be judged on a case-by-case basis. In
the present case, similar to Smith, Antowan Lambert and Flores
were the only eyewitnesses to the crime who testified for the
State. Indeed, their testimonies were even more important than
the witness' testimony in Smith because, in the present case,
Antowan Lambert's and Flores' testimonies were the only evidence
that directly linked the defendant to the crime. Also similar to
Smith, the introduction of the prior consistent statements was
important in making Antowan Lambert's and Flores' testimonies
more believable. As the State admits in its appellate brief, the
defense presented "no evidence at trial, but instead argued that
the People had not proven their case beyond a reasonable doubt.
*** The gist of the majority of defendant's cross-examination [of
Antowan Lambert and Flores] and closing argument was that Flores
and Antowan lied at trial." In response to the defense, the
State entered the prior consistent statements as substantive
evidence and read them to the jury to close its case in chief.
As for the State's closing argument, the erroneously admitted
written statements were repeatedly emphasized, similar to the
facts in Emerson, 97 Ill. 2d 487, where in closing argument the
prosecutor referred four times to an erroneously admitted prior
consistent statement. The supreme court held there that "[t]his
was clearly improper and erroneously emphasized the corroborative
effect of the statement which should not have been admitted."
Emerson, 97 Ill. 2d at 501. The same holds true in the present
case. The dissent argues that prior consistent statements should
be handled the same as prior inconsistent statements insofar as
they are used and emphasized in closing arguments. We agree. If
a prior inconsistent statement is allowed into evidence only for
the limited purpose of impeachment, not as substantive evidence,
a limiting instruction must be given, and the State may not use
that testimony as substantive evidence in closing argument. See
People v. Bradford, 106 Ill. 2d 492, 501-02 (1985). In this
case, a limiting instruction should have been given, and the
State should not have argued the prior consistent statement as
substantive evidence. This is especially true where, as here,
the trial court itself stated that the case was "close" and that
the prosecutor risked "gilding the lily" and reversible error by
asking that the prior consistent statements be admitted
substantively.
We are aware that the statements were cumulative (see
Ashford, 121 Ill. 2d at 72) and were attested to by the makers of
the statements, as opposed to third parties (see Henderson, 142
Ill. 2d at 311), which lessens, to a certain extent, the damage
of their admission.
However, a closer reading of Henderson is instructive. In
Henderson, our supreme court found that the admission of a
statement acknowledging the existence of a prior consistent
statement was error, but was not prejudicial, in part, because
"no portion of [the witness'] statement to the police was
admitted into evidence." Henderson, 142 Ill. 2d at 312. In the
case at bar, the statements not only were admitted into evidence,
but also were emphasized repeatedly during closing arguments in
an otherwise close case. If prejudice cannot be found on the
facts of this case, we doubt it will ever be found.
After considering the record, as a whole, and the relative
closeness of this case, we determine that the admission, for
substantive purposes, of the key witnesses' prior consistent
statements raises a reasonable probability that the erroneously
admitted testimony contributed to the defendant's conviction.
See Hudson, 86 Ill. App. 3d at 340. At the least, the improper
admission of the statements "clouds the evidence to such a degree
that it is impossible to tell whether the jury relied on it."
Smith, 139 Ill. App. 3d at 34. Consequently, we grant the
defendant's request to reverse the conviction and remand this
cause for a new trial.
In addition, we note that the defendant's rights under the
due process clause of both the Illinois and United States
Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I,
2) were violated by the trial court's actions in the case at
bar. Where an error that occurs during a criminal defendant's
trial impinges upon the integrity of our judicial system,
reversal is required "regardless of the weight of the other
evidence." People v. Thomas, 123 Ill. App. 3d 857, 867 (1984);
see also People v. Baynes, 88 Ill. 2d 225, 244 (1981). In our
case, despite warning the prosecutor of the possibility of
inserting reversible error into this case by attempting to admit
the prior consistent statements as substantive evidence, the
trial court abdicated its role by allowing the prosecutor to
enter the evidence substantively and stated, "if you [the
prosecutor] want it done, it's your case, God bless you." The
job of the trial court is to rule on questions of law, not to
grant absolution to attorneys to disregard rules of evidence.
The trial court judge's statement indicates that he failed to
realize that the evidentiary rulings were his, not the
prosecutor's. The dissent can find no precedent for finding
reversible error when a court fails to give a limiting
instruction regarding the rehabilitative use of a prior
consistent statement. This may be a case of first impression, as
this may be the first case in which a court completely abdicated
its role in presiding over a trial. Error is not diminished by
the possibility that no prior judge abdicated his
responsibilities to the prosecutor. As the reviewing court in
this case, we are required to reverse regardless of the weight of
the evidence. See Baynes, 88 Ill. 2d at 244; Thomas, 123 Ill.
App. 3d at 867. If we were to rule otherwise, we would be
derelict in assuring that each defendant is given a fair trial.
The failure to enforce the law invites anarchy. In the present
case, this tenet requires us to reverse the defendant's
conviction. Given the totality of the presentation of this case,
we have serious doubts that the integrity of the judicial system
would be upheld if we affirmed the verdict on the theory of a
lack of prejudice. Nothing less than the integrity and
reputation of the judicial process, as well as the defendant's
due process rights, are at stake.
The integrity of the trial court's judgment is further
challenged by the conduct of Larry Standfield, a juror in this
case. During voir dire, Standfield managed to avoid mentioning
that he had been arrested, though not convicted, for possession
of a controlled substance and unlawful use of weapons and that
his ex-wife was acquitted of murder charges while they were still
married. This occurred after he was asked about his juror
profile card, on which he had marked that he or a family member
had been charged with, convicted of, or a victim of a crime.
Standfield further failed to disclose to the court that he had
been approached during the trial by a life-long acquaintance, who
also happened to be the defendant's girlfriend, and was offered
money to vote for a particular outcome of the case. (It is
unclear from testimony taken during the hearing on defendant's
post-trial motion whether Standfield was offered money for a
verdict of guilty or a verdict of not guilty.)
Although an accused's right to a trial by an unbiased jury
is a basic right, a juror's failure to reveal potentially
prejudicial information or giving false testimony during voir
dire does not automatically entitle a defendant to a new trial;
actual prejudice to the defendant must be proved. People v.
Potts, 224 Ill. App. 3d 938, 946 (1992). Similarly, improper
juror contact will result in a new trial only if prejudice is
shown. See People v. Curtis, 7 Ill. App. 3d 520, 525 (1972). We
need not determine here whether juror Standfield's reticence
regarding his criminal past and his contact with someone
attempting to influence the outcome of the trial resulted in
prejudice sufficient to warrant reversal on its own, as the other
issue in this case demands reversal and remand. However, the
taint attached to juror Standfield, on top of the improper use of
the prior consistent statements, confirms that the defendant was
denied a fair trial. Therefore, we reverse the judgment of the
circuit court of Winnebago County, and the cause is remanded for
further proceedings consistent with this opinion.
Reversed and remanded.
HUTCHINSON, J., concurs.
JUSTICE DOYLE, dissenting:
I agree with my colleagues that the prior consistent
statements of Lucio Flores and Antowan Lambert were admissible
evidence. Because Illinois apparently adheres to the common-law
approach, I further agree that it would have been preferable for
the trial court to have instructed that the prior consistent
statements were being admitted for "rehabilitative purposes."
However, I strongly disagree that the court's failure to do so
resulted in any discernable prejudice which would warrant our
reversing defendant's conviction.
In my view, the debate over characterizing the statements as
either substantive or rehabilitative, in the context of the
present facts, is merely a lexical tempest in a legal teapot
having little or no practical bearing on the outcome of the
trial. There are cases, of course, in which the outcome may
pivot on whether a given item of evidence will be viewed as
substantive, as where the evidence in question supplies an
essential link in the State's chain of required proof. However,
this is not such a case.
Here, as our majority has determined, it is reasonably clear
that the jurors were correctly permitted to hear and consider the
witnesses' prior consistent statements in evaluating credibility.
There is no suggestion that the prior statements contained any
facts other than those cumulative to the witnesses' trial
testimony. Obviously, both witnesses were available for cross-
examination. Although the judge informed counsel that the prior
statements would be admitted as substantive evidence, no such
characterization of the evidence was ever communicated to the
jury. Accordingly, the only possible error could be in the
judge's failure to give a limiting instruction informing the
jurors that the prior consistent statements could be considered
for "rehabilitative" purposes only.
One must wonder how such an instruction, had it been given,
could have materially affected the jurors' analysis of the
evidence. If the word "rehabilitative" means that the jurors
would be permitted to consider the prior statements only as
arguably buttressing the credibility of the witnesses' testimony,
is that not exactly what was occurring anyway even in the absence
of a limiting instruction? If the majority is concerned that the
jurors could somehow view the prior statements as having the same
prominence or stature as the witnesses' trial testimony, what
harm could there have been so long as the prior statements and
the testimony were identical?
Apparently, it is the perceived evil of improper repetition
of the testimony believed to result from the trial court's
mischaracterization of the prior statements as substantive
evidence which the majority sees as requiring reversal. I
disagree with this analysis, in part, because it incorrectly
implies that evidence admitted for a limited purpose may not be
legitimately communicated to the jury and emphasized in closing
argument. No one would suggest that the salient portion of a
prior inconsistent statement, admitted for impeachment, could not
be communicated to the jury or repeatedly highlighted in
argument. I am aware of no authority for treating a prior
consistent statement in any different manner. Accordingly,
regardless of whether the prior consistent statements here were
identified as substantive or rehabilitative, there was no error
in the fact that they were read to the jury or emphasized by the
State in argument.
All of the decisions cited by the majority to support its
position that defendant was prejudiced by repetition of the
statements are cases in which it was error to admit the prior
statements for any purpose. In those cases, the reviewing courts
correctly observed that the evil of erroneously repeating the
hearsay-violative prior consistent statements is that a witness'
credibility should not be enhanced by the fact that the witness
has previously repeated the same version out of court. However,
when, as here, the prior consistent statements are received as an
exception to the hearsay rule, the very purpose of doing so is to
repair or enhance the credibility of a witness whose credibility
has been drawn into question by the implication of recent
fabrication or a motive to falsify.
Because the cited cases involve prior consistent statements
erroneously admitted for the purpose of enhancing credibility,
they provide no authority for the majority's position. Clearly,
there is a vast difference between improperly allowing a witness'
testimony to be bolstered through the erroneous admission of
hearsay evidence and the present question of omitting to inform a
jury of the limited rehabilitative use of evidence which has been
properly admitted as an exception to hearsay.
The prejudicial nature of evidence must be judged on a case-
by-case basis. People v. Henderson, 142 Ill. 2d 258, 311 (1990).
I am aware of no Illinois authority directly analyzing whether,
under the present circumstances, a court's failure to give a
"rehabilitative use" limiting instruction could constitute
reversible error. It is recognized that, under the Federal Rules
of Evidence, no such limiting instruction is necessary. Fed. R.
Evid. 801(d)(1)(B). In my opinion, the trial court's omission,
here, constituted, at most, only a harmless error.
Nor am I persuaded that the trial court's handling of this
matter impinged upon the integrity of the judicial system or
violated defendant's federal or state constitutional due process
rights. I wholeheartedly agree with our majority that a judge
must never abdicate his or her role and surrender to counsel for
either side the power to control the admission or exclusion of
evidence. However, a reasonable interpretation of this record
does not plainly establish that any such abdication occurred. It
is more probable that the judge intended his comments as a
warning to the prosecutor that, notwithstanding the Federal Rules
of Evidence, accepting the State's position would present a
difficult and risky issue of uncertain appellate resolution.
There is no indication that the judge did not apply his
independent judgment in ruling on the objection or that he
deliberately entered inadmissible evidence at the prosecutor's
behest. I do not regard the judge's comments as providing a
basis for reversal.
As to the issue of juror misconduct, I note that the trial
court conducted an evidentiary hearing which elicited the juror's
explanation for allegations that he misstated or withheld
information. Concerning his failure to state that his former
wife had been acquitted of murder, in response to a voir dire
inquiry concerning criminal involvement of "family members," the
juror testified that he had been divorced from her for four or
five years. Reasonable minds might differ as to whether the
inquiry was sufficiently specific to obligate the juror to
disclose the acquittal of a former member of his family.
It was similarly within the trial court's discretion to
decide whether the juror had deliberately concealed a material
aspect of his record of criminal activity. As a practical matter,
communication between prospective jurors and the court is well
known to be an imperfect process. The accuracy or completeness
of a venireman's response to a question can be affected by a
variety of factors, such as the juror's comprehension or
interpretation of the question, whether sufficient time is
allowed for the venireman to reflect and render a complete
response before the questioning shifts to a different subject, et
cetera The potential for subsequent discovery of discrepancies
in voir dire is great, and perfection is rarely attainable.
Here, the court found the juror's explanation of the alleged
irregularity to be credible. Based upon the record presented, I
would not overturn that finding.
Concerning the matter of the juror's contact with
defendant's girlfriend, the trial court heard testimony from both
of these persons. The girlfriend testified that her comment was
made jokingly and that the juror "blew off" the comment. The
juror testified that he understood that the girlfriend was
suggesting that he could be paid to find defendant not guilty and
that her comment had no influence on his verdict. Assuming the
trial court found the juror's version to be credible, a
determination that the incident was harmless would not have been
an abuse of discretion. The trial court has substantial
discretion in determining whether an improper contact with a
juror has caused prejudice to the defendant. People v. Harris,
123 Ill. 2d 113, 132 (1988). It is my opinion that there is no
clear demonstration of juror misconduct sufficient to warrant a
reversal of defendant's conviction.
I would affirm the judgment of the circuit court.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, ) No. 94--CF--148
)
v. )
)
FREDERICK R. LAMBERT, ) Honorable
) John W. Nielsen,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
The defendant, Frederick Lambert, was found guilty by a jury
of the charge of first degree murder (720 ILCS 5/9--1 (West
1994)). Subsequently, the trial court sentenced the defendant to
100 years' imprisonment. This appeal ensued. We reverse and
remand for a new trial.
The defendant was charged with the October 29, 1993, beating
death of Anthony Doss. The cases of the defendant's
codefendants, Antowan Lambert, Carl Dickson, Maurice Bowden,
Alexander Dowthard, Jr., and Lucio Flores, were disposed of in
separate proceedings.
Among other witnesses, the State called Lucio Flores, the
defendant's half-brother, and Antowan Lambert, the defendant's
nephew, as its only eyewitnesses tying the defendant to the
murder. During his testimony, Flores revealed that on January 7,
1994, he gave a written statement about Doss' death to Rockford
police detectives. Detective Bruce Scott later testified that he
and Detective Pobjecky took the written statement. Scott denied
that any deal was made with Flores in exchange for the statement.
Flores also testified that, in exchange for his testimony at
trial against the defendant, the State had agreed to reduce his
murder charge to aggravated battery (720 ILCS 5/12--4 (West
1994)) and concealment of a homicide (720 ILCS 5/9--3.1 (West
1994)), for which he would plead guilty and receive a sentence of
30 months' probation and time served.
Antowan testified that he gave a written statement regarding
Doss' murder to the Rockford police on January 4, 1994. Antowan
admitted at trial that he gave his statement only after he was
told that others had talked and after he was told of the possible
penalties for murder. Antowan also admitted that, prior to
making the statement, the police told him that it would go easier
for him if he talked. Antowan testified that, in exchange for
his testimony at the defendant's trial, his own murder charge
would be reduced to armed violence (720 ILCS 5/33A--2 (West
1994)), to which he would plead guilty for a 7«-year prison term.
At the close of the State's case, the prosecutor read the
written statements of Flores and Antowan Lambert to the jury.
Counsel for the defense objected to this reading, arguing that
the written statements were not admissible as prior consistent
statements and also that, if they were, indeed, admissible, they
should not be read to the jury. In response, the State argued
that the written statements should be admitted as substantive
evidence. The trial court asked the prosecutor if he "really
want[ed] to do it" due to the closeness of the case. The trial
court continued that the prosecutor "may be putting reversible
error into" the case. Further, the court warned, "I think you
are gilding the lily. I think there's a possibility of
reversible error. And I just think that you, you are treading on
thin ice and I would caution you very seriously." The court also
stated, "You [the prosecutor] understand you are playing with
fire. That's the only thing I am telling you. But if you want
it done, it's your case, God bless you." Thus, notwithstanding
the trial court's misgivings about the issue, the trial court
denied the defendant's objection, and the State proceeded on its
perilous path.
On appeal, the defendant argues that the trial court erred
by admitting the prior consistent statements of Flores and
Antowan Lambert. Further, the defendant avers that the
statements should not have been admitted as substantive evidence.
In addition, the defendant contends that his due process rights
were violated by the conduct of juror Larry Standfield.
Generally, a trial court's decision on whether to admit
something into evidence will not be overturned on appeal absent
an abuse of discretion. Leonardi v. Loyola University, 168 Ill. 2d 83, 92 (1995). Specifically for the present case, prior
consistent statements are generally not admissible. People v.
Williams, 147 Ill. 2d 173, 227 (1991). However, prior consistent
statements are admissible only to rebut a charge or inference
that (1) the witness is motivated to testify falsely, so long as
the witness told the same story before the motive came into
existence; or (2) the witness' testimony is of recent
fabrication, so long as the witness told the same story before
the time of the alleged fabrication. Williams, 147 Ill. 2d at
227; People v. Antczak, 251 Ill. App. 3d 709, 715-16 (1993). In
Antczak, this court examined the ambiguity of prior case law in
setting forth the applicable test and determined that the absence
of motive to testify falsely need not be shown where the evidence
is offered to rebut the charge of recent fabrication. Antczak,
251 Ill. App. 3d at 715-16. Thus, the exceptions listed above
should, indeed, be treated as separate exceptions. Antczak, 251
Ill. App. 3d at 715-16; see M. Graham, Cleary & Graham's Handbook
of Illinois Evidence 611.14 (Supp. 1996).
Turning first to the prior consistent statement of Antowan
Lambert, we determine that the statement was admissible for
rehabilitative purposes. The record reveals that counsel for the
defense attacked Antowan Lambert's credibility on cross-
examination on two distinct bases. First, counsel suggested that
Antowan Lambert's testimony was the product of a motivation to
testify falsely in order to avoid the full scope of Antowan
Lambert's own criminal responsibility for the murder pursuant to
Antowan's plea agreement. Second, the record reveals that
counsel for the defendant also sought to persuade the jury that
Antowan's testimony was suspect because of a recent fabrication.
Specifically, counsel asked Antowan if he and Flores, who had
finished testifying the day before and whom Antowan admittedly
saw through the door of the courtroom while Antowan was
testifying, allegedly making gestures to Antowan, were "pretty
tight." Antowan agreed. The colloquy continued:
"Q. When is the last time you talked to [Flores]
either in person or on the phone?
A. Last night.
Q. Did you call [Flores] last night?
A. Yes, I did.
Q. Lucio tell you that he testified yesterday?
A. Yes, he did.
Q. Have you ever told him that you were going to
testify falsely here in court?
A. No, I haven't."
While Antowan answered in the negative to the final question,
defense counsel's questions about Antowan's speaking to Flores
the night before Antowan testified raised the inference that
Antowan fabricated his testimony to comport with that of Flores.
This is especially so in light of the allegations, which Antowan
admitted were true, that Flores made gestures to Antowan during
Antowan's testimony. Further, defense counsel also presented a
letter during his cross-examination of Antowan. According to
Antowan, the letter appeared as if "somebody wrote it and signed
my signature." The full contents of the letter were not
disclosed following an objection by the State after Antowan read
somebody else's writing on the letter that stated, "Ricky check
this out, I got this letter from Twon a few days--." However,
the defense counsel's use of the letter during Antowan's
impeachment again raised the inference that Antowan was being
accused of a recent fabrication. Thus, Antowan's prior
consistent statement, that is, his written statement given to the
police on January 4, 1994, a date preceding the alleged recent
fabrications, was properly admissible for rehabilitative
purposes. Antczak, 251 Ill. App. 3d at 717.
We also determine that Flores' prior consistent statement
was also admissible for rehabilitative purposes. However, we
determine that the defense's cross-examination of Flores did not
sufficiently raise the issue that Flores' testimony was of recent
fabrication. The pertinent portion of the defense's cross-
examination of Flores reads as follows:
"Q. How many times did you talk to [the prosecutor]?
A. Four or five times.
Q. How long did you talk each of these times?
A. Couple hours.
Q. Did you go over the exhibits?
A. Yup.
* * *
Q. You have gone over your testimony before
today, haven't you?
A. No.
Q. No? He hasn't asked you questions before today?
A. Yeah, he asked me questions.
Q. Okay. And did you give him answers to those
questions?
A. I answered with my statement.
Q. Right. Did you--did you answer those
questions, some of them were the same ones he asked you
today, weren't they?
A. Right.
Q. The statement, that's what you went over with
[the prosecutor], isn't it?
A. He asked me questions and I answered them.
Q. And some of those were the same ones he asked
you today so you have gone over those before, haven't
you?
A. No, we went over how it was going to go in court."
This is the only portion of the defense counsel's cross-
examination of Flores which may be said to remotely raise the
charge of recent fabrication. The Appellate Court, First
District, has held that a witness may be charged with a recent
fabrication when counsel questioning that witness implies that
the witness had rehearsed his testimony with prosecutors. People
v. Askew, 273 Ill. App. 3d 798, 803-04 (1995); People v. Ollins,
235 Ill. App. 3d 158, 165 (1992). We disagree. The fact that a
witness recently rehearsed his testimony with counsel does not
imply that any "fabrication" occurred. Further, we take notice
that most witnesses do, in fact, go over their testimony with
counsel prior to trial. Thus, if we were to decide that this
rehearsal implies that a recent fabrication occurred, the
exception of "recent fabrication" would swallow the rule that
prior consistent statements are generally inadmissible.
Williams, 147 Ill. 2d at 227. Consequently, we determine that
Flores' prior consistent statement was not admissible under the
recent fabrication exception to the general rule of
inadmissibility.
Nevertheless, we determine that Flores' prior consistent
statement was admissible for rehabilitative purposes under the
improper motive exception to the general rule of inadmissibility.
Under this exception, a prior consistent statement is admissible,
so long as the presently imputed motive to testify falsely did
not exist at the time of the prior statement, to rebut the
implication that the witness has a motive to testify falsely.
Williams, 147 Ill. 2d at 227; Antczak, 251 Ill. App. 3d at 715-
16. The record demonstrates that defense counsel's cross-
examination of Flores included extensive questioning of his
expectations of leniency for his involvement in Doss' death in
light of a plea agreement. The issue we face, then, is whether
Flores' motive to testify falsely also existed at the time he
made his written statement to the police. If the motive existed
at that time, then the admission of Flores' prior written
statement was in error. Williams, 147 Ill. 2d at 227; Antczak,
251 Ill. App. 3d at 715-16.
Analysis of the case law in this area leads us to conclude
that Flores' written statement was admissible for rehabilitative
purposes under this exception. In People v. Powell, 53 Ill. 2d 465, 469 (1973), the witness in question was a codefendant in
whose automobile the murder weapon had been found. After cross-
examination about a plea agreement that the witness had made in
July 1969, the State introduced a prior statement of the witness,
given in March 1969. In March, according to the witness, "no
offer of leniency had been made." Powell, 53 Ill. 2d at 475.
Our supreme court found no error in the admission of the witness'
March 1969 statement. Powell, 53 Ill. 2d at 475.
Similarly, in Williams, where the witness faced perjury
charges based on her recantation of her grand jury testimony
during subsequent preliminary proceedings at the defendant's
trial but reaffirmed her grand jury testimony when she actually
testified at the defendant's trial, our supreme court rejected
the argument that the witness must have considered that, "given
the conduct of police and prosecutors towards her, her best
strategy was to cooperate with the authorities by fabricating a
version of the events." Williams, 147 Ill. 2d at 227. The court
stated that it had rejected a "similar argument upon a similar
series of facts" in People v. Titone, 115 Ill. 2d 413, 423
(1986). Williams, 147 Ill. 2d at 227.
In Titone, the witness in question had not been "offered any
deal or threatened by the police in order to elicit the [prior
consistent] statement." Titone, 115 Ill. 2d at 423. Based on
the record in that case, our supreme court stated that it was
"unable to say that in admitting the statement the [circuit]
court erred." Titone, 115 Ill. 2d at 423.
Also, in People v. Ashford, 121 Ill. 2d 55, 71 (1988), the
inference was raised during cross-examination that the witness at
issue was motivated to lie because of expected leniency on an
unlawful restraint charge. The record in that case showed that
the possibility of an agreement to dismiss the charge, in
exchange for the witness' truthful statements at the defendant's
trial, was not even raised "until sometime after he had made the
statement, and the defense never sought at trial to show that the
statement was tendered with any such expectation." Ashford, 121 Ill. 2d at 71.
In People v. King, 165 Ill. App. 3d 464 (1988), this court
declined to follow the reasoning of People v. Green, 125 Ill.
App. 3d 734 (4th Dist. 1984), overruled by People v. Schutz, 201
Ill. App. 3d 154, 161 (4th Dist. 1990). In King, we determined
the Green reasoning to be that "the statement of a codefendant is
inherently unreliable if given at the time that the authorities
have identified the codefendant as a suspect in the crime, so
long as the statement places the onus of the crime on the
defendant and away from the individual making the statement."
King, 165 Ill. App. 3d at 468. This is precisely the argument
which the defendant makes in the case at bar. In King, even
though the trial court did not specifically so state, we found
that the trial court "found that a motive to testify falsely had
not arisen prior to [the witness] making his first statement to
the police." King, 165 Ill. App. 3d at 468.
In the present case, the record demonstrates that Flores had
not been "offered any deal or threatened by the police in order
to elicit the [prior consistent] statement." See Titone, 115 Ill. 2d at 423. Flores specifically denied that there were any
agreements made with the police or State's Attorney's office
before he signed his written statement. Further, the record does
not demonstrate that the police ever brought up the subject of
leniency with Flores. Detective Scott denied that any deal was
made with Flores in exchange for his statement. Thus, we
determine that Flores' written statement would have been properly
admissible for rehabilitative purposes under the improper motive
exception to the rule that prior consistent statements are
generally inadmissible.
In sum, we conclude that the prior consistent statements of
both Antowan Lambert and Flores would have been properly
admissible for rehabilitative purposes. However, the record
clearly demonstrates that both statements were entered for
substantive purposes.
We determine that the trial court erroneously admitted both
Antowan's and Flores' prior consistent statements as substantive
evidence. Illinois follows the common-law rule (see S. Gard,
Jones on Evidence 26:28, at 240 (6th ed. 1972) (and cases cited
therein)) that, where admission is allowed, a prior consistent
statement is permitted solely for rehabilitative purposes and not
as substantive evidence. People v. Weinger, 101 Ill. App. 3d
857, 874 (1981); People v. Hudson, 86 Ill. App. 3d 335, 340
(1980); People v. Hahn, 39 Ill. App. 3d 969, 978-79 (1976); R.
Steigmann, Illinois Evidence Manual 23:37, at 310 (3d ed. 1995);
Annotation, Admissibility of Impeached Witness' Prior Consistent
Statement--Modern State Criminal Cases, 58 A.L.R.4th 1014 (1987
and Supp. 1996) (hereinafter 58 A.L.R.4th 1014). The rationale
for this common-law rule is that corroboration by repetition
" 'preys on the human failing of placing belief in that which is
most often repeated.' " Hudson, 86 Ill. App. 3d at 340, quoting
People v. Sanders, 59 Ill. App. 3d 650, 654 (1978); see also
People v. Tidwell, 88 Ill. App. 3d 808, 811 (1980). In other
words, "mere repetition does not imply veracity." Coltrane v.
United States, 418 F.2d 1131, 1140 (D.C. 1969); see also 4 J.
Wigmore, Evidence 1126 (4th ed. 1972); 81 Am. Jur. 2d Witnesses
1012 (1992). Credibility should not depend upon the number of
times a witness has repeated the same story, as opposed to the
inherent trustworthiness of the story. George v. State, 604 S.W.2d 940, 942 (Ark. 1980); 81 Am. Jur. 2d Witnesses 1012
(1992). Where the common law applies and a prior consistent
statement is admitted into evidence, an instruction from the
court instructing the jury of its limited rehabilitative purpose
is proper. People v. Wurster, 83 Ill. App. 3d 399, 408 (1980);
81 Am. Jur. 2d Witnesses 1016 (1992).
The State's reliance upon Williams, 147 Ill. 2d 173, for the
proposition that the Illinois common-law position has changed is
misplaced. In Williams, as discussed earlier, a witness who had
previously given grand jury testimony recanted that testimony
during preliminary proceedings at the defendant's trial and,
therefore, faced perjury charges when she actually testified at
the defendant's trial. Williams, 147 Ill. 2d at 206-07, 226.
The witness then testified that her grand jury testimony was,
indeed, correct. Williams, 147 Ill. 2d at 207. After cross-
examination, the State then introduced the transcript of the
witness' grand jury testimony as substantive evidence. Williams,
147 Ill. 2d at 207. Our supreme court determined that the
admission of the grand jury testimony was not error. Williams,
147 Ill. 2d at 226-28. However, the court did not discuss the
issue, which was apparently never raised, that the transcript of
the grand jury testimony should only have been admitted for
rehabilitative purposes, not as substantive evidence. Thus,
Williams cannot be said to overrule the tenet of this state that
the evidence is permissible only for rehabilitative purposes.
Similarly, neither can People v. Powell, 53 Ill. 2d 465 (1973),
be read to overrule the same tenet. In the present case, where
the defense raised the objection about the purposes of the prior
consistent statements at trial, in a post-trial motion, and in
this appeal, the issue has not been waived.
Indeed, while not explicitly so holding, our supreme court
has affirmed the prevalence of the common-law rule in this state.
In People v. Henderson, 142 Ill. 2d 258 (1990), our supreme court
set forth that, while it was error for the trial court in that
case to admit a prior consistent statement into evidence, the
error was not prejudicial because, in part, the testimony
concerning the prior consistent statement was "general, not
specific, in that [the witness] said he told the police
'something like' what he had testified to; no portion of [the
witness'] statement to the police was admitted into evidence."
Henderson, 142 Ill. 2d at 312. If Illinois did not follow the
common-law rule, then it would not have mattered in Henderson
whether the witness' statement, as opposed to the mere
acknowledgement that the statement existed, was admitted into
evidence.
None of the cases that the prosecutor set forth at trial
stand for the proposition which the prosecutor stated they did,
that is, that the prior consistent statement may be admitted
substantively. See Powell, 53 Ill. 2d 465; People v. Gray, 209
Ill. App. 3d 407 (1991); King, 165 Ill. App. 3d 464; People v.
Link, 100 Ill. App. 3d 1000 (1981). Instead, none of these cases
differ from the common-law rule that prior consistent statements
be admitted, if at all, for purposes of rehabilitation. Powell,
53 Ill. 2d at 474-75; Gray, 209 Ill. App. 3d 407 (dealing
exclusively with prior inconsistent statements); King, 165 Ill.
App. 3d at 467; Link, 100 Ill. App. 3d at 1006. The trial court
explicitly recognized this during the trial, but erroneously
allowed the prosecutor to admit the evidence substantively
anyway, in contravention of the common-law rule. See Weinger,
101 Ill. App. 3d at 874; Hudson, 86 Ill. App. 3d at 340; Hahn, 39
Ill. App. 3d at 978-79; R. Steigmann, Illinois Evidence Manual
23:37, at 310 (3d ed. 1995).
We note that the common-law rule has been changed in most
jurisdictions that have adopted the Federal Rules of Evidence.
This is because Federal Rule 801(d)(1)(B) has been changed to
recognize the substantive value of prior consistent statements,
when offered to rebut a charge of recent fabrication or improper
influence or motive, by excluding them from the definition of
hearsay. Fed. R. Evid. 801(d)(1)(B). The advisory committee,
which suggested the change, gave two reasons for departing from
the common law. Specifically, the advisory committee stated that
"once the opponent has opened the door by attacking the witness's
credibility, it is not unfair to permit the party to bolster its
witness by presenting additional consistent evidence." Fed. R.
of Evid. 801, Advisory Committee's Note. See J. Weinstein,
Evidence, U.S. Rules, at 801-187, 801-188 (1996). Further, the
advisory committee suggested that, "as a practical matter, the
jury in all probability would misunderstand or ignore a limiting
instruction anyway, so there is no good reason for giving one."
J. Weinstein, Evidence, U.S. Rules, at 801-187, 801-188 (1996),
citing Comment, Hearsay Under the Proposed Federal Rules: A
Discretionary Approach, 15 Wayne L. Rev. 1077, 1092-93 (1969).
We disagree with the advisory committee's reasoning. As stated
above, allowing such testimony as substantive evidence preys on
the human failing that mere repetition implies veracity. Hudson,
86 Ill. App. 3d at 840; 58 A.L.R.4th 1014. Moreover, we believe
that juries understand and follow instructions from the court.
See Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176,
185, 107 S. Ct. 1702, 1707 (1987); People v. Sandoval, 135 Ill. 2d 159, 192-93 (1990); People v. Johnson, 199 Ill. App. 3d 577,
583 (1990). We are not alone in disagreeing with the advisory
committee. In some states that have adopted a version of the
Federal Rules of Evidence, the state legislature has decided not
to adopt this change from the common-law rule. Me. R. of Evid.
801(d)(1), Advisor's Notes; Mich. R. of Evid. 801(d)(1)(b); J.
Weinstein, Evidence, U.S. Rules, at 801-209 through 211 (1996).
In sum, because this state still adheres to the common-law
rule that, where admission is allowed, a prior consistent
statement is permitted solely for rehabilitative purposes and not
as substantive evidence (Weinger, 101 Ill. App. 3d at 874;
Hudson, 86 Ill. App. 3d at 340; Hahn, 39 Ill. App. 3d at 978-79;
R. Steigmann, Illinois Evidence Manual 23:37, at 310 (3d ed.
1995); 58 A.L.R.4th 1014) and because the record clearly
demonstrates that the statements in the case at bar were entered
substantively, we determine that the trial court erroneously
admitted the prior consistent statements.
We must now determine whether the erroneous admission of the
prior consistent statements of Antowan Lambert and Flores as
substantive evidence constituted reversible error. Under the
particular facts of this case, we determine that it did
constitute reversible error. The law is clear that, "[i]f there
is a reasonable probability that erroneously admitted testimony
contributed to a conviction, the error cannot be considered
harmless." Hudson, 86 Ill. App. 3d at 340. Further, "[t]he
admission of a [prior consistent] statement used to bolster the
sagging credibility of a witness is reversible error when the
witness' in-court testimony is crucial." People v. Smith, 139
Ill. App. 3d 21, 34 (1985); see also Moore v. Anchor Organization
for Health Maintenance, 284 Ill. App. 3d 874 (1996). Also,
"[e]ven if sufficient competent evidence was introduced to
establish a defendant's guilt beyond a reasonable doubt, there is
still reversible error when the improper admission clouds the
evidence to such a degree that it is impossible to tell whether
the jury relied on it." Smith, 139 Ill. App. 3d at 34.
In Smith, reviewing the issue under the plain error
doctrine, the court found that the erroneous admission of a prior
consistent statement constituted reversible error where the
witness who made the statement was the only eyewitness to the
crime, where the introduction of that witness' prior consistent
statement was important in making his testimony more believable,
and where the jury's reliance on the statement was made more
likely by the fact that the prosecutor mentioned it during
closing argument. Smith, 139 Ill. App. 3d at 34.
We agree with the dissent's admonition that the prejudicial
nature of evidence must be judged on a case-by-case basis. In
the present case, similar to Smith, Antowan Lambert and Flores
were the only eyewitnesses to the crime who testified for the
State. Indeed, their testimonies were even more important than
the witness' testimony in Smith because, in the present case,
Antowan Lambert's and Flores' testimonies were the only evidence
that directly linked the defendant to the crime. Also similar to
Smith, the introduction of the prior consistent statements was
important in making Antowan Lambert's and Flores' testimonies
more believable. As the State admits in its appellate brief, the
defense presented "no evidence at trial, but instead argued that
the People had not proven their case beyond a reasonable doubt.
*** The gist of the majority of defendant's cross-examination [of
Antowan Lambert and Flores] and closing argument was that Flores
and Antowan lied at trial." In response to the defense, the
State entered the prior consistent statements as substantive
evidence and read them to the jury to close its case in chief.
As for the State's closing argument, the erroneously admitted
written statements were repeatedly emphasized, similar to the
facts in Emerson, 97 Ill. 2d 487, where in closing argument the
prosecutor referred four times to an erroneously admitted prior
consistent statement. The supreme court held there that "[t]his
was clearly improper and erroneously emphasized the corroborative
effect of the statement which should not have been admitted."
Emerson, 97 Ill. 2d at 501. The same holds true in the present
case. The dissent argues that prior consistent statements should
be handled the same as prior inconsistent statements insofar as
they are used and emphasized in closing arguments. We agree. If
a prior inconsistent statement is allowed into evidence only for
the limited purpose of impeachment, not as substantive evidence,
a limiting instruction must be given, and the State may not use
that testimony as substantive evidence in closing argument. See
People v. Bradford, 106 Ill. 2d 492, 501-02 (1985). In this
case, a limiting instruction should have been given, and the
State should not have argued the prior consistent statement as
substantive evidence. This is especially true where, as here,
the trial court itself stated that the case was "close" and that
the prosecutor risked "gilding the lily" and reversible error by
asking that the prior consistent statements be admitted
substantively.
We are aware that the statements were cumulative (see
Ashford, 121 Ill. 2d at 72) and were attested to by the makers of
the statements, as opposed to third parties (see Henderson, 142
Ill. 2d at 311), which lessens, to a certain extent, the damage
of their admission.
However, a closer reading of Henderson is instructive. In
Henderson, our supreme court found that the admission of a
statement acknowledging the existence of a prior consistent
statement was error, but was not prejudicial, in part, because
"no portion of [the witness'] statement to the police was
admitted into evidence." Henderson, 142 Ill. 2d at 312. In the
case at bar, the statements not only were admitted into evidence,
but also were emphasized repeatedly during closing arguments in
an otherwise close case. If prejudice cannot be found on the
facts of this case, we doubt it will ever be found.
After considering the record, as a whole, and the relative
closeness of this case, we determine that the admission, for
substantive purposes, of the key witnesses' prior consistent
statements raises a reasonable probability that the erroneously
admitted testimony contributed to the defendant's conviction.
See Hudson, 86 Ill. App. 3d at 340. At the least, the improper
admission of the statements "clouds the evidence to such a degree
that it is impossible to tell whether the jury relied on it."
Smith, 139 Ill. App. 3d at 34. Consequently, we grant the
defendant's request to reverse the conviction and remand this
cause for a new trial.
In addition, we note that the defendant's rights under the
due process clause of both the Illinois and United States
Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I,
2) were violated by the trial court's actions in the case at
bar. Where an error that occurs during a criminal defendant's
trial impinges upon the integrity of our judicial system,
reversal is required "regardless of the weight of the other
evidence." People v. Thomas, 123 Ill. App. 3d 857, 867 (1984);
see also People v. Baynes, 88 Ill. 2d 225, 244 (1981). In our
case, despite warning the prosecutor of the possibility of
inserting reversible error into this case by attempting to admit
the prior consistent statements as substantive evidence, the
trial court abdicated its role by allowing the prosecutor to
enter the evidence substantively and stated, "if you [the
prosecutor] want it done, it's your case, God bless you." The
job of the trial court is to rule on questions of law, not to
grant absolution to attorneys to disregard rules of evidence.
The trial court judge's statement indicates that he failed to
realize that the evidentiary rulings were his, not the
prosecutor's. The dissent can find no precedent for finding
reversible error when a court fails to give a limiting
instruction regarding the rehabilitative use of a prior
consistent statement. This may be a case of first impression, as
this may be the first case in which a court completely abdicated
its role in presiding over a trial. Error is not diminished by
the possibility that no prior judge abdicated his
responsibilities to the prosecutor. As the reviewing court in
this case, we are required to reverse regardless of the weight of
the evidence. See Baynes, 88 Ill. 2d at 244; Thomas, 123 Ill.
App. 3d at 867. If we were to rule otherwise, we would be
derelict in assuring that each defendant is given a fair trial.
The failure to enforce the law invites anarchy. In the present
case, this tenet requires us to reverse the defendant's
conviction. Given the totality of the presentation of this case,
we have serious doubts that the integrity of the judicial system
would be upheld if we affirmed the verdict on the theory of a
lack of prejudice. Nothing less than the integrity and
reputation of the judicial process, as well as the defendant's
due process rights, are at stake.
The integrity of the trial court's judgment is further
challenged by the conduct of Larry Standfield, a juror in this
case. During voir dire, Standfield managed to avoid mentioning
that he had been arrested, though not convicted, for possession
of a controlled substance and unlawful use of weapons and that
his ex-wife was acquitted of murder charges while they were still
married. This occurred after he was asked about his juror
profile card, on which he had marked that he or a family member
had been charged with, convicted of, or a victim of a crime.
Standfield further failed to disclose to the court that he had
been approached during the trial by a life-long acquaintance, who
also happened to be the defendant's girlfriend, and was offered
money to vote for a particular outcome of the case. (It is
unclear from testimony taken during the hearing on defendant's
post-trial motion whether Standfield was offered money for a
verdict of guilty or a verdict of not guilty.)
Although an accused's right to a trial by an unbiased jury
is a basic right, a juror's failure to reveal potentially
prejudicial information or giving false testimony during voir
dire does not automatically entitle a defendant to a new trial;
actual prejudice to the defendant must be proved. People v.
Potts, 224 Ill. App. 3d 938, 946 (1992). Similarly, improper
juror contact will result in a new trial only if prejudice is
shown. See People v. Curtis, 7 Ill. App. 3d 520, 525 (1972). We
need not determine here whether juror Standfield's reticence
regarding his criminal past and his contact with someone
attempting to influence the outcome of the trial resulted in
prejudice sufficient to warrant reversal on its own, as the other
issue in this case demands reversal and remand. However, the
taint attached to juror Standfield, on top of the improper use of
the prior consistent statements, confirms that the defendant was
denied a fair trial. Therefore, we reverse the judgment of the
circuit court of Winnebago County, and the cause is remanded for
further proceedings consistent with this opinion.
Reversed and remanded.
HUTCHINSON, J., concurs.
JUSTICE DOYLE, dissenting:
I agree with my colleagues that the prior consistent
statements of Lucio Flores and Antowan Lambert were admissible
evidence. Because Illinois apparently adheres to the common-law
approach, I further agree that it would have been preferable for
the trial court to have instructed that the prior consistent
statements were being admitted for "rehabilitative purposes."
However, I strongly disagree that the court's failure to do so
resulted in any discernable prejudice which would warrant our
reversing defendant's conviction.
In my view, the debate over characterizing the statements as
either substantive or rehabilitative, in the context of the
present facts, is merely a lexical tempest in a legal teapot
having little or no practical bearing on the outcome of the
trial. There are cases, of course, in which the outcome may
pivot on whether a given item of evidence will be viewed as
substantive, as where the evidence in question supplies an
essential link in the State's chain of required proof. However,
this is not such a case.
Here, as our majority has determined, it is reasonably clear
that the jurors were correctly permitted to hear and consider the
witnesses' prior consistent statements in evaluating credibility.
There is no suggestion that the prior statements contained any
facts other than those cumulative to the witnesses' trial
testimony. Obviously, both witnesses were available for cross-
examination. Although the judge informed counsel that the prior
statements would be admitted as substantive evidence, no such
characterization of the evidence was ever communicated to the
jury. Accordingly, the only possible error could be in the
judge's failure to give a limiting instruction informing the
jurors that the prior consistent statements could be considered
for "rehabilitative" purposes only.
One must wonder how such an instruction, had it been given,
could have materially affected the jurors' analysis of the
evidence. If the word "rehabilitative" means that the jurors
would be permitted to consider the prior statements only as
arguably buttressing the credibility of the witnesses' testimony,
is that not exactly what was occurring anyway even in the absence
of a limiting instruction? If the majority is concerned that the
jurors could somehow view the prior statements as having the same
prominence or stature as the witnesses' trial testimony, what
harm could there have been so long as the prior statements and
the testimony were identical?
Apparently, it is the perceived evil of improper repetition
of the testimony believed to result from the trial court's
mischaracterization of the prior statements as substantive
evidence which the majority sees as requiring reversal. I
disagree with this analysis, in part, because it incorrectly
implies that evidence admitted for a limited purpose may not be
legitimately communicated to the jury and emphasized in closing
argument. No one would suggest that the salient portion of a
prior inconsistent statement, admitted for impeachment, could not
be communicated to the jury or repeatedly highlighted in
argument. I am aware of no authority for treating a prior
consistent statement in any different manner. Accordingly,
regardless of whether the prior consistent statements here were
identified as substantive or rehabilitative, there was no error
in the fact that they were read to the jury or emphasized by the
State in argument.
All of the decisions cited by the majority to support its
position that defendant was prejudiced by repetition of the
statements are cases in which it was error to admit the prior
statements for any purpose. In those cases, the reviewing courts
correctly observed that the evil of erroneously repeating the
hearsay-violative prior consistent statements is that a witness'
credibility should not be enhanced by the fact that the witness
has previously repeated the same version out of court. However,
when, as here, the prior consistent statements are received as an
exception to the hearsay rule, the very purpose of doing so is to
repair or enhance the credibility of a witness whose credibility
has been drawn into question by the implication of recent
fabrication or a motive to falsify.
Because the cited cases involve prior consistent statements
erroneously admitted for the purpose of enhancing credibility,
they provide no authority for the majority's position. Clearly,
there is a vast difference between improperly allowing a witness'
testimony to be bolstered through the erroneous admission of
hearsay evidence and the present question of omitting to inform a
jury of the limited rehabilitative use of evidence which has been
properly admitted as an exception to hearsay.
The prejudicial nature of evidence must be judged on a case-
by-case basis. People v. Henderson, 142 Ill. 2d 258, 311 (1990).
I am aware of no Illinois authority directly analyzing whether,
under the present circumstances, a court's failure to give a
"rehabilitative use" limiting instruction could constitute
reversible error. It is recognized that, under the Federal Rules
of Evidence, no such limiting instruction is necessary. Fed. R.
Evid. 801(d)(1)(B). In my opinion, the trial court's omission,
here, constituted, at most, only a harmless error.
Nor am I persuaded that the trial court's handling of this
matter impinged upon the integrity of the judicial system or
violated defendant's federal or state constitutional due process
rights. I wholeheartedly agree with our majority that a judge
must never abdicate his or her role and surrender to counsel for
either side the power to control the admission or exclusion of
evidence. However, a reasonable interpretation of this record
does not plainly establish that any such abdication occurred. It
is more probable that the judge intended his comments as a
warning to the prosecutor that, notwithstanding the Federal Rules
of Evidence, accepting the State's position would present a
difficult and risky issue of uncertain appellate resolution.
There is no indication that the judge did not apply his
independent judgment in ruling on the objection or that he
deliberately entered inadmissible evidence at the prosecutor's
behest. I do not regard the judge's comments as providing a
basis for reversal.
As to the issue of juror misconduct, I note that the trial
court conducted an evidentiary hearing which elicited the juror's
explanation for allegations that he misstated or withheld
information. Concerning his failure to state that his former
wife had been acquitted of murder, in response to a voir dire
inquiry concerning criminal involvement of "family members," the
juror testified that he had been divorced from her for four or
five years. Reasonable minds might differ as to whether the
inquiry was sufficiently specific to obligate the juror to
disclose the acquittal of a former member of his family.
It was similarly within the trial court's discretion to
decide whether the juror had deliberately concealed a material
aspect of his record of criminal activity. As a practical matter,
communication between prospective jurors and the court is well
known to be an imperfect process. The accuracy or completeness
of a venireman's response to a question can be affected by a
variety of factors, such as the juror's comprehension or
interpretation of the question, whether sufficient time is
allowed for the venireman to reflect and render a complete
response before the questioning shifts to a different subject, et
cetera The potential for subsequent discovery of discrepancies
in voir dire is great, and perfection is rarely attainable.
Here, the court found the juror's explanation of the alleged
irregularity to be credible. Based upon the record presented, I
would not overturn that finding.
Concerning the matter of the juror's contact with
defendant's girlfriend, the trial court heard testimony from both
of these persons. The girlfriend testified that her comment was
made jokingly and that the juror "blew off" the comment. The
juror testified that he understood that the girlfriend was
suggesting that he could be paid to find defendant not guilty and
that her comment had no influence on his verdict. Assuming the
trial court found the juror's version to be credible, a
determination that the incident was harmless would not have been
an abuse of discretion. The trial court has substantial
discretion in determining whether an improper contact with a
juror has caused prejudice to the defendant. People v. Harris,
123 Ill. 2d 113, 132 (1988). It is my opinion that there is no
clear demonstration of juror misconduct sufficient to warrant a
reversal of defendant's conviction.
I would affirm the judgment of the circuit court.
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