Prior Inconsistent Statement Error Leads To A Do-Over

People v. Anderson, 2018 IL App (1st) 150931 (March). Episode 482 (Duration 8:41)

Statement errors created evidentiary problems resulting in this murder conviction going back for a new trial.

Facts

Defendant is with a group of guys who want to fight another group.

They are out looking for them. They go to the home of one of them but he’s not there. Instead, defendant just has choice words with the guy’s mother.

They then see a silver Monte Carlo pull up.

The Killing

They mistake the occupants of that car for the guys they want to fight.

Defendant has a gun in his waistband.

A codefendant pulls the gun from his waistband and shoots at the car. The driver is shot in the head and killed. Defendant is convicted of murder and 2 attempt murders under an accountability theory.

He was sentenced to 45 years’ incarceration for first degree murder and 25 years for each of the attempted murders, imposed consecutively for a total of 95 years.

The Statement

According to one of defendant’s buddies, when the five of them reached the intended target’s house dude’s mother answered. Defendant’s buddy claimed not to remember the conversation. The State attempted to impeach him with his prior sworn testimony before the grand jury and at an early co-defendant’s trial.

Defendant’s buddy admitted stating before the grand jury that one in the group said,

“Tell your son I am going to f*** him up.”

The State then tried to elicit testimony about what Defendant said:

“Q. Do you recall being asked this question on cross examination and giving this answer: Question: ‘When they were in front of the door, [Defendant] said to [one of the co-defendants], quote, Get out of the way. I am going to fan their ass.’ Answer: ‘Yes.’ Do you remember being asked that question at the prior testimony on June 20th of 2012?

A. Yes.”

In establishing Corey’s accomplice liability, one of the State’s key assertions was that when Corey and his companions went to Qualls’s house and confronted his mother, Corey threatened to “fan their ass.”

Issue

Corey argues that the State failed to present evidence to substantiate this assertion, thereby denying him a fair trial. In particular, if a party attempts to impeach a witness with a prior inconsistent statement and the witness denies making the statement, claims that he cannot remember making it, or otherwise equivocates, “then it is incumbent on the examining party to offer evidence of the statement.” People v. Evans, 2016 IL App (3d) 140120, ¶ 33.

Analysis

A plain reading of this testimony reflects that Darden admitted being asked a question about Corey’s statement but he did not admit what, if anything, he answered.

This is consistent with his testimony on cross-examination, when he claimed not to remember this testimony. Thus, it was incumbent on the State to present evidence of Darden’s answer which the State never did. The State argues that requiring it to provide evidence of Darden’s testimony at Burns’s trial is “unduly formalistic” and relies on a “hyper-technical reading of the record.”

We disagree.

Perfect Impeachment

It requires no undue formalism to give effect to the plain meaning of the witness testimony—i.e., that he did not admit making a prior statement as to what Defendant may have said at the intended victim’s house. The trial court’s ruling that Darden admitted the testimony at issue was unsupported by the record and was therefore an abuse of discretion.

They didn’t perfect the impeachment.

Important To The State’s Case

The State’s error substantially prejudiced Corey by magnifying the State’s unproven allegations about Corey’s threat.

The potential for prejudice is particularly high because Darden testified on three different occasions—at Corey’s trial, at a codefendant’s trial, and before the grand jury—and the details to which he testified were different on each occasion.

A reasonable juror might remember the substance of Darden’s testimony but be uncertain as to what exactly he said on which occasions. Such a juror might therefore be influenced by the State’s forceful and uncontradicted assertion that defendant’s buddy admitted that defendant made threat on three separate occasions.

Accountability Case

In order to prove Corey guilty on a theory of accountability, the State was required to show that Corey had “the intent to promote or facilitate” the shooter’s criminal actions. 720 ILCS 5/5-2(c) (West 2010) (definition of legal accountability). The State’s evidence was not strong.

All their witnesses had problems.

The Prior Consistent Statement

A different one of defendant’s buddies also testified against defendant.

This one met with detectives and told them, falsely, that he did not know any of the people who came to reinforce the group. Carter told the detectives that he saw a person with short hair shooting at the Monte Carlo, but he did not tell them that defendant had a gun.

The next day, he returned to the police station and said that he knew the codefendants and that he saw a gun in defendant’s waistband. Eventually, this buddy appeared before the grand jury again and testified in exchange for immunity from prosecution for a probation violation.

Issue 2

Corey additionally contends that the State improperly bolstered Carter’s credibility by introducing his prior consistent statements made to police three days after the shooting.

Specifically, this witness identified the shooter in a photo array and wrote next to his picture,

“This is the person I saw get the gun from Lord and shot [sic] at the Monte Carlo.”

He also identified Defendant in a photo array and wrote,

“This is the person I know as Lord. He told me his name was Lord. I saw a gun in his waistband. The other guy took the gun from Lord and shot at the Monte Carlo.”

The handwritten statements on the photo arrays were displayed to the jury .

Prior Identification

The State contends that these statements were properly admitted as prior identifications under section 115-12 of the Code of Criminal Procedure (725 ILCS 5/115-12).

Although we have already concluded that Defendant is entitled to a new trial, we address this issue because it is likely to recur on remand. Generally, a party may not bolster the credibility of its own witness on direct examination by introducing his prior consistent statements.

Law On Prior Consistent Statement

“The danger in prior consistent statements is that a jury is likely to attach disproportionate significance to them. People tend to believe that which is repeated most often, regardless of its intrinsic merit, and repetition lends credibility to testimony that it might not otherwise deserve.” People v. Johnson, 2012 IL App (1st) 091730, ¶ 60. See more Illinois Evidence Issues.

But it is well established that “this rule does not apply to statements of identification.” People v. Temple, 2014 IL App (1st) 111653, ¶ 34.

Under section 115-12 of the Code of Criminal Procedure,

“[a] statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.”

725 ILCS 5/115-12.

Such statements are admissible as substantive evidence. People v. Williams, 193 Ill. 2d 306, 359 (2000).

Was It Identification Testimony?

The issue is whether Carter’s statements to police constitute statements of identification.

Our supreme court has defined “statements of identification” broadly to encompass “the entire identification process.” People v. Tisdel, 201 Ill. 2d 210, 219 (2002). When admitting a prior identification as substantive evidence under section 115-12, the testimony may include a description of the offense only to the extent necessary to make the identification understandable to the jury, but it may not go beyond that to provide detailed accounts of the actual crime.

Under this standard, the witness’s verbal testimony regarding his prior identifications of defendant and the shooter was properly admitted.

Analysis of Prior Consistent Statement

In a police interview three days after the shooting, Carter identified Corey as the person who was carrying a gun and Burns as the person who took the gun from Corey and shot at the Monte Carlo—i.e., the minimum detail necessary to make the identifications intelligible to the jury.

Accordingly, we hold that the trial court properly allowed this second witness to testify that, three days after the shooting, he identified defendant to police as the one who was carrying a gun and the shooter as the one who took the gun from defendant and fired.

…But They Didn’t Have To Show It To The Jury

Displaying the witness’s handwritten statements did not provide any further necessary context for the jury and, therefore, did not enhance the jury’s understanding of the identification. The only purpose it served was to reiterate the statements—once when the State put the photo arrays on a video screen for the jury to see, a second time when the State asked the witness to confirm that he wrote the statements displayed on the screen, and a third time during the State’s closing argument when the State displayed the photo arrays again.

In doing so, the State unnecessarily and improperly emphasized Carter’s written out-of-court statements in the eyes of the jury. As this court has previously observed, “people tend to believe that which is repeated most often, regardless of its intrinsic merit.” Johnson, 2012 IL App (1st) 091730, ¶ 60.

The State’s use of Carter’s out-of-court statements essentially as a demonstrative exhibit was particularly prejudicial due to the closeness of the evidence. This guy was the only witness who claimed that Corey had a gun.

Holding

Thus, on remand, although the State may present testimony as to the witnesse’s identification of defendant and the shooter. The handwritten statements on the photo arrays may not be shown to the jury.

The State’s use of unsubstantiated assertions regarding defendant alleged threat to the intended victim’s mother deprived defendant of a fair trial and constituted plain error in light of the closeness of the evidence.

We therefore reverse and remand for a new trial.

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