A subtle error with prior consistent statement leads to a finding of ineffective assistance of counsel and a reversal in a murder case
Impeachment of a witness went a tad too far.
People v. Dupree, 14 IL App (1st) 111872 (07/30/2014).
This was a drive by shooting. One person is killed and another is shot and injured. Defendant was the shooter. Two other people in the car with him testified against him.
Trial counsel took the position at trial that one of the passengers in the car had recently fabricated his testimony against defendant. The problem was that there were prior consistent statements made by that witness to the police before trial.
The questioning that caused the trouble for counsel was that after impeaching the witness with the earlier inconsistent statement, defense counsel then asked the witness if his “enhanced memory” had just come to his mind in the last week. That was all it took to open the door.
No effective assistance of counsel when the trial attorney introduced a prior statement of a witness that was not helpful to client's defense. Attorney claimed the testimony was part of a scheme recently invented to frame defendant.
Defendant contends that his trial counsel provided ineffective assistance when he opened the door to an otherwise inadmissible prior consistent statement which allowed the State to introduce the statement repeatedly and argue it as substantive evidence, and counsel failed to request that the jury be given a limiting instruction.
Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance, a defendant must show both that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
“A reasonable probability is a probability sufficient to undermine confidence in the outcome.” To establish that trial counsel's performance was deficient, a defendant must overcome the strong presumption that counsel's action or inaction was the result of sound trial strategy.
A reviewing court is highly deferential to trial counsel on matters of trial strategy and must make every effort to consider counsel's performance from his perspective at the time, rather than in hindsight.
Prior Consistent Statement
A prior consistent statement may not be used on direct examination to enhance the credibility of a witness's testimony.
“Moreover, when a witness is impeached by means of a prior inconsistent statement, if a consistent statement does not disprove or explain the making of the inconsistent statement, it is inadmissible.” Specifically, a prior consistent statement is not admissible simply because a witness has been impeached with a prior inconsistent statement.
However, where there is a charge or inference of recent fabrication, a prior consistent statement is admissible to show that the witness told the same story before the time of the alleged fabrication.
A charge of recent fabrication is not made by simply questioning a witness as to whether the witness went over his testimony or rehearsed his testimony with opposing counsel.
Contrary to what he should have known, counsel implied the witness's testimony was recently created. This, in turn, allowed the state to get into the prior consistent statements to rebut the charge of recent fabrication. Then the state argued the prior statement as substantive evidence by holding it up as the truth.
Defense counsel was kind of in a tough spot. The witness had made an initial statement to the police denying any knowledge or involvement in the shooting. It was not until a month later that the witness made the statements to the police that were repeated at trial.
Started with Impeachment
Then Error With Prior Consistent Statement
Counsel initially was trying to impeach the witness with the inconsistent statements. Then counsel went too far by implying statements were recently fabricated. This opened the door to the later statement the witness made to the police.
If defense counsel had limited his cross-examination of the witness to his prior inconsistent statement, the State would not have been able to use the later consistent statement to “counter” that impeachment. Thus, the error committed by defense counsel resulted in placing the later consistent statement before the jury.
Then It Just Went Downhill
Once the prior consistent statement was before the jury, counsel never requested that a limiting instruction be given to the jury. The instruction would have made it clear the statements were not substantive.
This is how the trial error characterized the error:
Without defense counsel's original error [the prior consistent statement] would have been inadmissible. Defense counsel then compounded the error by not objecting to the State's introduction of the statement as substantive evidence and not requesting that the jury be given a limiting instruction. Moreover, defense counsel did not raise a proper objection when the State introduced the statement again through [a detective] when he was called as a defense witness. Defense counsel only objected that it was beyond the scope of the direct examination when, in fact, it was an inadmissible prior consistent statement and the recent fabrication exception had no applicability to Alcott's testimony. Finally, although defense counsel, in a sidebar conference, successfully objected to [the detective's] testimony that [the witness] identified [Defendant] as the shooter, he failed to request and the trial court failed to give the jury an instruction to disregard that testimony.
Prior Consistent Statements Are Real Bad
The reason prior consistent statements are prohibited is because they are likely to unfairly enhance the witness's credibility with the trier of fact simply because the statement has been repeated.
“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.” The improper bolstering of a witness's credibility is reversible error when the trial testimony of that witness is crucial.
The court found that there was a reasonable probability that the outcome of a trial free of these errors would have been different. Apparently, the witness was the one who had the problem with the victims, there was no physical evidence tying defendant to the shooting, and other witness were inconsistent.
This murder conviction was reversed.