Appeal from the Circuit Court of Du Page County. No. 00-CF-2446 Honorable Kathryn E. Creswell, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
Modified Upon Denial of Rehearing
Following a jury trial, defendant, Avell A. Walker, was convicted of the unlawful sale of a firearm (720 ILCS 5/24--3(A)(a) (West 2000)) and the unlawful possession of a weapon by a felon (720 ILCS 5/24--1.1(a) (West 2000)). He was sentenced to concurrent terms of 42 months' imprisonment. He appeals, arguing that the trial court erred in (1) admitting a prior consistent statement as substantive evidence; (2) answering a question from the jury with an instruction that injected new issues into the case; and (3) admitting evidence of the precise felony of which defendant previously had been convicted. We reverse and remand for a new trial.
The indictment alleged that defendant committed the unlawful sale of a firearm when he "knowingly gave a *** pistol *** to Aprylle Watson, a person under 18 years of age." The indictment further alleged that defendant "knowingly possessed" that firearm when he had been "convicted of a felony under the law of Illinois."
Before trial, defense counsel made the following motion in limine:
"The State will introduce evidence of prior conviction for possession of controlled substance which is *** going to lead to the jury considering the defendant a drug dealer, that's why I didn't want it mentioned ***. There is -- one of the charges here is possession of weapon by a felon ***.
I will either ask that the fact that Mr. Walker has a prior felony, I am willing to stipulate to it ***. But I don't think -- the fact that he needs to be called a felon is necessary. I think by stipulating to it, that's sufficient and is -- otherwise, I have a motion in limine to exclude *** [t]he fact of the prior conviction."
The State refused to stipulate, asserting that "the jury has to be made aware that the defendant is a felon. That's *** an element required to prove that offense beyond a reasonable doubt." The court reserved ruling on the motion in limine.
At trial, the State began its opening statement as follows:
"Ladies and gentlemen, this case is about a drug deal gone bad and a man who is willing to take any step possible to make sure that he got paid for the drugs he sold. That man is the defendant."
The State's first witness was Aprylle Watson, who testified that she was 17 years old and had been granted immunity for her testimony. On September 15, 2000, about 9 p.m., she and defendant, whom she was dating, drove to Bolingbrook to pick up Crystal Watson, Aprylle's sister. After they picked her up, the car sustained a flat tire. A state trooper arrived, and defendant gave Aprylle a plastic bag of crack cocaine, which Aprylle put in her pocket.
Aprylle testified that the flat tire was fixed and that defendant told her to drive him to an apartment building in Woodridge. She parked outside the building, and defendant told her to blow the horn. A man exited the building, approached the car, and spoke with defendant. The man then returned to the building, 10 minutes passed, and defendant told Aprylle to drive him to a gas station. At the station, defendant exited the car, made a phone call, and told Aprylle to take him back to the apartment building. Defendant entered the building and returned about five minutes later. He was angry. He told Aprylle to drive him to his residence in Bolingbrook. Upon arriving, defendant went inside and returned wearing gloves and holding his waist. Aprylle suspected that defendant had a gun. Defendant told Aprylle to take him back to the apartment building.
Aprylle testified that, outside the building, defendant saw the man he had met earlier. Defendant exited the car and began arguing with the man. As they headed into the apartment building, defendant asked Aprylle to accompany him. Aprylle complied. Inside the building, as the man knocked on the door of an apartment, defendant looked out a window to the parking lot, and his eyes began rapidly moving back and forth. Defendant opened Aprylle's coat, put a heavy object in it, and told Aprylle to return to the car. When Aprylle exited the building, police officers pointed their guns at her and told her to put her hands up. Aprylle lay on the ground and told the police that she thought she had a gun in her pocket. The police removed the object, which was in fact a gun. The State introduced a gun into evidence, and Aprylle identified it as the gun that the police had removed from her coat.
Aprylle testified that she was taken to the police station, where she told an officer that the gun was hers. She lied because she was scared. Later, she told the truth, which was the account she gave in her testimony. When she told the police the truth, she had not yet received immunity.
On cross-examination, Aprylle testified that she wrote a statement after telling the police the truth. However, she did not write in that statement that defendant gave her anything when the car broke down. She also did not write that defendant was holding his waist when he exited his residence; instead, she wrote that he "had a gun." She also wrote that defendant "handed" her the gun, though he actually put it in her coat pocket.
Aprylle testified that she had never told anyone that she was related to defendant. She then acknowledged that, when she visited defendant in jail, she signed in as defendant's cousin. She explained that she thought that only a relative could visit him.
On redirect examination, Aprylle testified that nothing in her written statement was false. She further stated that defendant had gone to the apartment building "to get his money."
Crystal Watson gave testimony consistent with Aprylle's, but Crystal added the following details. Before the car sustained the flat tire, defendant showed Crystal a plastic bag of crack cocaine. After the flat tire was fixed, defendant's pager went off, and defendant asked Aprylle to drive him to Woodridge. When defendant first spoke to the man who met him outside the apartment building, the man said that he was going to "get the money." The man then went inside but did not return.
Crystal testified that, after defendant exited his residence, he sat in the backseat of the car. Crystal was in the front passenger seat. As Aprylle drove them back to the apartment building, Crystal saw that defendant had a gun in his lap. While leaning into the back seat, Crystal cocked the gun and held it for about two minutes. She did not discuss the gun with Aprylle, and Aprylle did not see it. The gun was the one in evidence.
Crystal testified that, after Aprylle accompanied defendant into the apartment building, the police arrived, and Crystal ducked down in the car. She looked up to see Aprylle come out of the building with her hands up. An officer approached the car and ordered Crystal to exit.
Crystal testified that she was taken to the police station, where she wrote a written statement that was false. She lied because she was scared. Later, she told the truth and wrote a correct statement. She had not been promised anything in exchange for her truthfulness. She subsequently received immunity for her testimony.
On cross-examination, Crystal admitted that, in her second written statement, she inaccurately stated that she and Aprylle had picked up defendant at about 9 p.m. She did not mention gloves. After she and Aprylle made their statements, the police released them. On their way home, Aprylle told Crystal that Bruce was the name of the man at the apartment building. Crystal testified that she did not know Bruce's name until then. She then acknowledged that she had referred to the man as Bruce in her second written statement. She reiterated that she had been granted immunity for her testimony.
At a sidebar, the State moved to admit Crystal's second written statement as substantive evidence. The court stated that it would "allow it."
On redirect examination, Crystal stated that her testimony was true. She did not recall when she learned Bruce's name. The State formally moved to admit the second written statement, but the court reserved ruling pending a review of the statement. On further cross-examination, Crystal testified that she had been around guns before and had been shot.
William Hoogland, a Woodridge police officer, testified that he was dispatched to the apartment building in response to a report of two men fighting, one of whom was "possibly armed with a gun." Outside the building, Hoogland saw a second officer, Shannon, with his gun drawn on a man named Bruce Badger. He also saw Aprylle exiting the building, and he ordered her to the ground. He then saw defendant coming from behind the building, which had an exit in the back. A third officer, Freeman, ordered defendant to the ground. Shannon apprehended Crystal. A fourth officer, Stefanson, retrieved the gun from Aprylle's coat and gave it to Hoogland. The gun had been cocked. The gun was the one in evidence.
On cross-examination, Hoogland testified that no drugs or gloves were found on defendant or behind the building. He acknowledged that his police report stated that Aprylle had exited the building ahead of Badger. He interviewed Aprylle at the police station, and Aprylle never told him that the gun was hers. She never spoke of gloves. She did say that, while she, Crystal, and defendant were in the car, they ...