The opinion of the court was delivered by: Chief Justice McMORROW
Docket No. 95285-Agenda 1-March 2004.
At issue in this appeal is whether the trial court abused its discretion by allowing the prosecution to present evidence of the name and nature of defendant's prior conviction after defendant offered to stipulate to his felon status, an element of the crime for which he was tried. The appellate court reversed defendant's conviction and remanded for a new trial (335 Ill. App. 3d 102), relying on the reasoning of the United States Supreme Court in Old Chief v. United States, 519 U.S. 172, 136 L.Ed. 2d 574, 117 S.Ct. 644 (1997). In Old Chief, the Court held that a trial court abuses its discretion if it spurns a defendant's offer to stipulate and, instead, "admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction." Old Chief, 519 U.S. at 174, 136 L.Ed. 2d at 584, 117 S.Ct. at 647.
For the reasons that follow, we affirm the appellate court's ruling and hold that, in the case at bar, the trial court committed reversible error when it admitted evidence of the name and nature of defendant's prior felony conviction rather than accept defendant's offer to stipulate to his felon status.
Defendant, Avell A. Walker, was tried in the circuit court of Du Page County on charges of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1 (West 2000)) and unlawful sale of firearms (720 ILCS 5/24-3(a) (West 2000)). Prior to trial, defense counsel made an oral motion to stipulate that defendant had a prior felony conviction. The following colloquy took place:
"[Defense Counsel]: This is why-I don't have this third motion in limine written out. I can make it orally. The State will introduce evidence of prior conviction for possession of a controlled substance which is again going to lead to the jury considering the defendant a drug dealer, that's why I didn't want it mentioned, that's why I mentioned in Paragraph B. There is-one of the charges here is possession of weapon by a felon which I understand the State will proceed on.
I will either ask that the fact that Mr. Walker has a prior felony, I am willing to stipulate to it, I am willing to stipulate any amended indictment would be sufficient for knowledge for trial today, I am not alleging any surprise. 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 it.
[Defense Counsel]: The fact of the prior conviction."
The State rejected the offer to stipulate on the ground that defendant's felon status was an element of the charged offense. The court reserved ruling on defendant's motion.
Jury selection began the next day and continued on into the following day. When jury selection was completed, the State began presentation of its case against defendant. Although defendant was not charged with possession or sale of a controlled substance, the prosecutor began his opening statement by saying, "This case is about a drug deal gone bad." The prosecutor told the jury that the evidence would show that on September 15, 2000, defendant delivered crack cocaine to a man, failed to receive payment, and then returned with a gun to extract payment from the man. The State then called its two key witnesses, Aprylle and Crystal Watson, who had been granted immunity by the State for their testimony.
The testimony of Aprylle and Crystal Watson is set forth in detail in the appellate court decision below. See 335 Ill. App. 3d at 104-07. In sum, their testimony established that 16-year-old Aprylle and her 17-year-old sister, Crystal, were with defendant on the evening of September 15, 2000. During the course of the evening, both sisters became aware that defendant was in possession of crack cocaine. At one point in the evening, defendant instructed Aprylle to drive him to Woodridge, where he met with a man at an apartment building at 7715 Woodridge Drive. After defendant met with the man, they waited outside the building for several minutes, but the man never returned. Eventually, defendant told Aprylle to drive him to his apartment in Bolingbrook. Aprylle and Crystal waited while defendant went inside. When he came out, they said, he was wearing gloves and holding his waist in a way that indicated that he had a gun.
They returned to Woodridge. Aprylle, at her sister's direction, went into the apartment building with defendant. Aprylle testified that, while she was inside the building, defendant placed something heavy in her inside jacket pocket and told her to go back to the car. When she opened the front door of the apartment building, she saw several police officers. The officers told her to get down on the ground. Aprylle was arrested and a gun was recovered from her jacket pocket. Crystal and defendant were arrested shortly thereafter.
Both Crystal and Aprylle testified that they initially lied to the police because they were scared. Aprylle testified that she initially told the police that the gun was hers. Crystal also gave police an untrue written statement. Later, however, when the police told them that their stories "didn't match," they told "the truth." Aprylle and Crystal said that they then gave police written statements in which they gave the "true version" of events, consistent with their trial testimony.
On cross-examination, defendant was able to establish certain discrepancies and inaccuracies among the statements Aprylle and Crystal had given to police and their trial testimony. It was also established that Aprylle and Crystal, although not related to defendant, visited defendant in jail three times since his arrest and, each time, signed in as defendant's cousins. Aprylle testified that they lied because they thought they had to be related to defendant to visit him in jail. Also, Crystal revealed on cross-examination that she recognized cocaine when she saw it because "she knew people who have used it before." Crystal also admitted that she had been around guns before that night and, in fact, had once been shot.
The State then presented the testimony of Woodridge police officers William Hoogland and Tom Stefanson. Both officers testified that on September 15, 2000, they went to the 7700 block of Woodward Avenue in response to a radio dispatch. Officer Stefanson testified that he recovered a gun from Aprylle's inside coat pocket and Officer Hoogland testified that he inventoried the gun recovered by Officer Stefanson. Officer Hoogland identified State's Exhibit No. 1 as the gun he inventoried.
On cross-examination, Officer Hoogland admitted that during his investigation he never found any drugs or gloves on defendant or at the scene. Officer Hoogland also admitted that on September 16, 2000, after Crystal and Aprylle were questioned, they were released to their parents without being charged with an offense.
After the witnesses were heard, it was stipulated that John Collins, an expert in the field of ballistics, if called, would testify that he examined and test fired State's Exhibit No. 1 and found it to be a working firearm that functioned as designed. The State also placed in evidence, over defendant's renewed objection, State's Exhibit No. 6, a certified copy of conviction showing that defendant had been convicted on December 2, 1999, for the felony offense of unlawful possession of a controlled substance with intent to deliver.
Before resting, the State moved to have its exhibits, including the copy of Crystal Watson's second written statement to the police, admitted into evidence. Arguing in favor of the admission of Crystal's prior consistent written statement to police, the State said:
"[T]here's a clearly delineated exception [to the hearsay rule] where on cross-examination counsel suggests that there's a recent motive to fabricate that you can in that context, to counter that inference, admit as substantive evidence a prior consistent statement, and I think that that's exactly what we're trying to do and its proper for that reason."
Over defendant's objection, Crystal's written statement was admitted without reservation or limitation.
The defendant called only one witness, Leroy Keith, a supervisor in the criminal ballistics section of the Du Page County Sheriff's Crime Laboratory, who testified that he checked State's Exhibit No. 1 for latent fingerprints and none were found. Defendant then moved to have defense Exhibit No. 3, Crystal's first written statement to police, admitted as a prior inconsistent statement. After some discussion, the court granted the motion.
In closing argument, the State began by defining the charges against defendant. The prosecutor told the jury:
"Now the second charge, a person commits the offense of unlawful possession of a weapon by a felon when he, having been previously convicted of the offense of possession of a controlled substance with intent to deliver, knowingly possesses a firearm on or about his person." (Emphasis added.)
The prosecutor elaborated further, telling the jury that one of the propositions that had to be proven by the State was that "defendant had previously been convicted of the offense of unlawful possession of a controlled substance with intent to deliver." Later, repeating the name of the prior offense, the prosecutor told the jury that "People's Exhibit No. 6 is a *** self-authenticating document," meaning that it is the "type of document that doesn't need anything but the seal of the Circuit Court Clerk on it to show the truthfulness of the document. You know the Defendant was convicted of that offense on December 2nd of 1999, before this occurred."
In defense counsel's closing argument, the credibility of the two Watson girls was attacked. Various inconsistencies and inaccuracies were pointed out and it was hinted that the girls were covering for each other and could not be trusted. In rebuttal, the State agreed that there were inconsistencies, but argued that any inconsistencies went only to inconsequential matters. The prosecutor then stated:
"The author of this play is this man. It's this Defendant. He picked the theme. Sell drugs for money. If you don't get money, go back and get it. Bring a gun."
Finally, the prosecutor asked the jury to find defendant guilty of "possessing a weapon by a felon in his prior conviction of unlawful delivery of a controlled substance."
After receiving instructions, the jury retired to deliberate. After a while, the jury sent the following request to the court:
"We'd like to review the statements of the sisters, both witness Crystal's and Aprylle's."
The court discussed with counsel how to respond to the jury's message, noting that Aprylle's written statement had never been admitted. The court, however, expressed a willingness to send back Crystal's two statements. Defense counsel objected to sending back any of the statements, but the prosecutor argued that the two written statements should be sent back, saying:
"Both are admissible as substantive evidence. And with respect to the hearsay exception for rebutting the inference of fabrication, I think they're [the jury] entitled to consider it, ...