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June 4, 1997


Appeal from the Circuit Court of Winnebago County. No. 94--CF--148. Honorable John W. Nielsen, Judge, Presiding.

Released for Publication July 11, 1997.

The Honorable Justice McLAREN delivered the opinion of the court. Hutchinson, J., concurs. Justice Doyle, dissenting.

The opinion of the court was delivered by: Mclaren

The Honorable 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 1/2-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 wanted 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, 212 Ill. Dec. 968, 658 N.E.2d 450 (1995). Specifically for the present case, prior consistent statements are generally not admissible. People v. Williams, 147 Ill. 2d 173, 227, 167 Ill. Dec. 853, 588 N.E.2d 983 (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, 190 Ill. Dec. 788, 622 N.E.2d 818 (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 ยง 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 ...

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