                                  Illinois Official Reports

                                          Appellate Court



                             People v. Randolph, 2014 IL App (1st) 113624



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      WILLIE RANDOLPH, Defendant-Appellant.




District & No.               First District, Third Division
                             Docket No. 1-11-3624


Filed                        March 26, 2014
Rehearing denied             April 21, 2014



Held                         Defendant’s conviction for unlawful possession of cocaine was
(Note: This syllabus         reversed and the cause was remanded for a new trial where the trial
constitutes no part of the   court erred in admitting the prior consistent statements of an arresting
opinion of the court but     officer to bolster the officer’s testimony, since the statements did not
has been prepared by the     disprove, explain or qualify any inconsistency between those
Reporter of Decisions        statements and the officer’s trial testimony and there was no
for the convenience of       suggestion that the officer was motivated to testify falsely or that his
the reader.)                 testimony was a recent fabrication that needed rehabilitation.




Decision Under               Appeal from the Circuit Court of Cook County, No. 11-CR-7117; the
Review                       Hon. John T. Doody, Jr., Judge, presiding.




Judgment                     Reversed and remanded.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and S. Amanda Ingram, all of
     Appeal                   State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Douglas P. Harvath, and Tasha-Marie Kelly, Assistant State’s
                              Attorneys, of counsel), for the People.




     Panel                    JUSTICE MASON delivered the judgment of the court, with opinion.
                              Presiding Justice Hyman and Justice Pucinski concurred in the
                              judgment and opinion.




                                                OPINION

¶1         Following a 2011 jury trial, defendant Willie Randolph was convicted of possession of a
       controlled substance (less than 15 grams of cocaine) and sentenced to three years’
       imprisonment. Defendant contends on appeal that the court erred in admitting into evidence a
       witness’s prior consistent statement when there was no allegation of recent fabrication or
       motivation to lie.
¶2         Defendant was charged with possession of a controlled substance in that he allegedly
       possessed less than 15 grams of a substance containing cocaine on April 11, 2011.
¶3         At trial, police officer Steve Hefel testified that he and Officer Michael Laurie were
       patrolling in a police car (unmarked but with municipal or police license plates) at about 7:10
       p.m. on April 11, 2011. They were driving slowly, going the wrong way on a one-way street,
       when Officer Hefel saw defendant standing by himself in the street; that is, in the roadway
       rather than on the sidewalk. Upon seeing the police car, defendant, according to Officer Hefel,
       appeared startled; “his eyes got real big” and he began fidgeting. Officer Hefel suggested that
       they stop defendant, and Officer Laurie stopped their car about two feet from defendant, within
       arm’s reach, as defendant was in the street. Defendant then thrust his right hand into his pocket,
       turned around, and walked away “at a fast pace.” Officer Hefel told defendant to stop as he
       exited the car, but defendant continued on. Officer Hefel followed defendant and saw him pull
       his right hand out of his pocket and drop a small object to the ground about three feet behind
       the police vehicle. Officer Hefel saw that there was no debris on the ground around the object
       and left it for Officer Laurie to pick up; Officer Hefel caught up with and detained defendant a
       few seconds later.
¶4         On cross-examination, Officer Hefel testified that defendant was not doing anything
       suspicious when Officer Hefel first saw him, and his postarrest search found no drugs. Later
       that day, Officer Hefel prepared reports of the incident and of defendant’s arrest. Hefel
       admitted that there was no reference in his reports to defendant’s eyes “getting big” and him
       becoming “fidgety” on seeing the officers. Officer Hefel explained that he and Officer Laurie


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     acted because defendant was in an area known for narcotics sales, reacted to the officers with
     his eyes and fidgeting, then put his hand in his pocket and walked away quickly. When
     pressed, Officer Hefel also admitted that his reports did not recite that defendant put his hand
     in his pocket or walked away quickly. As to the timing of defendant dropping the item on the
     ground, Officer Hefel admitted that his reports indicated that the officers stopped their vehicle
     when defendant looked in their direction and immediately crossed the street while dropping the
     item, but in his direct testimony Officer Hefel stated that he observed defendant dropping the
     item after he had exited the vehicle. Officer Hefel explained that “everything happened at the
     same time” or within one to three seconds because he was exiting the car while Officer Laurie
     had not shifted it into park, but his reports had to describe or list the events “in some kind of an
     order.”
¶5       On redirect examination, the State elicited from Officer Hefel testimony that his reports
     reflected the “important facts” that the officers were patrolling a “high narcotic area,”
     defendant saw the officers and immediately crossed the street, he dropped an object, and
     Officer Laurie recovered the object. Defendant twice objected to this line of questioning as
     improper bolstering, and the court overruled the objections. Defense counsel did not request
     and the trial court did not give the jury a limiting instruction regarding the purpose for which
     the prior consistent statements could be used.
¶6       Defendant made an oral motion to quash, arguing that he did not make a written motion
     prior to trial since the police reports were to the effect that defendant was crossing a street in
     front of the police car when he dropped drugs to the pavement. However, as Officer Hefel
     testified to a different scenario (only seeing defendant drop the drugs after exiting his vehicle
     to stop defendant) than that reflected in his reports, defendant argued that the officers effected
     an improper Terry stop because defendant’s actions before the officers told him to stop would
     not give rise to reasonable suspicion. The court denied the motion on the basis that defendant
     chose not to file a pretrial motion to quash.
¶7       Officer Michael Laurie’s testimony was similar to that of Officer Hefel: that they were
     patrolling when he saw defendant standing in the street, and when defendant looked in their
     direction, his “eyes became wide” and he “became fidgety.” After agreeing with Officer Hefel
     that defendant seemed suspicious, Officer Laurie stopped the car about two feet from
     defendant, who “in one motion” put his right hand in his pocket, turned, and walked away
     quickly. As Officer Laurie exited the car, he saw defendant remove his right hand from his
     pocket and drop a “crunched-up” plastic bag. Officers Laurie and Hefel detained defendant,
     then Officer Laurie returned to and recovered the dropped bag. The bag, which was not near
     any debris, contained three smaller bags that in turn contained a white rocky substance Officer
     Laurie suspected to be cocaine. At the police station, Officer Laurie inventoried the bag and its
     contents.
¶8       On cross-examination, Officer Laurie admitted that defendant did not approach or wave to
     anybody, or bend over as if he kept something on the ground. He reviewed the reports prepared
     by Officer Hefel and made no corrections to them. Officer Laurie conceded that the reports did
     not mention that defendant’s eyes “got big” upon seeing the officers, that he put his hand in his
     pocket or that Officer Hefel told him to stop.
¶9       Forensic chemist Naeemah Powell testified to, and was cross-examined upon, her opinion
     that the chunky substance that she received and tested contained cocaine. Neither the plastic
     bags nor their contents were tested for fingerprints.

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¶ 10       In closing argument, defendant argued at length that the officers lied in their testimony, in
       part because “it’s a story that’s changed over time” and the various factors listed by Officer
       Hefel for stopping defendant were “created for you for trial” because they were not in the
       police reports. Following instructions and deliberation, the jury found defendant guilty.
¶ 11       Defendant filed a posttrial motion. In support of an argument that he should have been
       allowed to present the oral motion to quash, defendant argued that Officers Hefel and Laurie
       “testified to facts and circumstances that were either omitted from their reports or were in
       contradiction to facts contained in their reports,” as specified in the motion. Similarly, in
       support of an argument that there was insufficient evidence to convict because the officers
       were not credible, defendant argued that various aspects of the officers’ testimony were
       impeached by omission from or contradiction by Officer Hefel’s reports. Defendant also
       argued that the State improperly used prior consistent statements from Officer Hefel’s reports
       to bolster his testimony, arguing that “impeachment by omission is simply the introduction of
       contrary evidence and does not constitute an implied charge of fabrication or motive to lie
       [citation] and the prior consistent statements did not disprove, explain, or qualify the failure to
       speak or the making of the inconsistent statement.”
¶ 12       The court denied the posttrial motion. The court sentenced defendant to three years’
       imprisonment with fines and fees. Defendant’s postsentencing motion was denied, and this
       appeal timely followed.
¶ 13       On appeal, defendant contends that the court erred in allowing the State to bolster Officer
       Hefel’s testimony with the contents of his police reports because they were inadmissible prior
       consistent statements that did not disprove, explain or qualify the inconsistency between those
       reports and his trial testimony. We agree.
¶ 14       Generally, a prior statement that is consistent with a witness’s trial testimony constitutes
       hearsay and is inadmissible to bolster that witness’s credibility or to rehabilitate the witness
       when he has been impeached by a prior inconsistent statement. People v. Ruback, 2013 IL App
       (3d) 110256, ¶ 26; People v. Johnson, 2012 IL App (1st) 091730, ¶ 60. The basis for this rule is
       a concern that the trier of fact is likely to unfairly enhance the credibility of a witness simply
       because his statement has been repeated. Johnson, 2012 IL App (1st) 091730, ¶ 60.
¶ 15       A prior consistent statement is admissible to rebut an express or implied suggestion on
       cross-examination that the witness is motivated to testify falsely or his testimony is a recent
       fabrication. Ruback, 2013 IL App (3d) 110256, ¶ 26. It is insufficient that the witness has been
       discredited, or the opposing party sought to discredit him, as mistaken or inaccurate. Johnson,
       2012 IL App (1st) 091730, ¶¶ 60, 63. A consistent statement that does not disprove, explain, or
       qualify the failure to speak or the making of the inconsistent statement is inadmissible. Ruback,
       2013 IL App (3d) 110256, ¶ 44. A prior consistent statement admitted on this basis may be
       used solely to rehabilitate the witness, not as substantive evidence. Id. ¶ 34.
¶ 16       The admission of evidence is a matter of the trial court’s sound discretion reviewed for
       abuse of discretion, so that we will reverse only if the decision was arbitrary, fanciful, or
       unreasonable, or no reasonable person would agree with it. Id. ¶ 24. Not all errors in the
       admission of evidence require reversal. Rather, “[t]o determine whether an ordinary trial error,
       such as the improper admission of hearsay evidence, was harmless, we must ask whether the
       verdict would have been different if the evidence had not been admitted.” People v. McWhite,
       399 Ill. App. 3d 637, 643 (2010).


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¶ 17        In McWhite, a police officer testified at trial that the defendant retrieved a cigarette box
       from a barbecue grill near the base of a tree in a vacant lot, removed something from the box,
       gave the item to another person, and returned the box to the grill. Id. at 638-39. According to
       the officer, this happened several times prior to defendant’s arrest. Id. at 639. After the arrest,
       the officer testified he directed another officer to the cigarette box inside the grill. Id. On
       cross-examination, the officer was confronted with a report of the incident, which he had
       reviewed and signed, that made no mention of the barbecue grill, but instead recited that
       defendant “ ‘relocated to a large tree inside an empty lot ***, bent down, and picked up a
       green-white Newport cigarette box.’ ” Id. On redirect, the trial court allowed the State to ask
       the officer about testimony he had given at a preliminary hearing during which he had referred
       to defendant removing the cigarette box from the grill as well as arrest reports he had prepared
       that also referred to the same facts. Id. at 640. This court found error in the admission of the
       prior consistent statements on a number of grounds. Id. at 642. As relevant here, the court
       found that cross-examination regarding omissions from the report did not assert or imply that
       the officer had recently fabricated his testimony or had a motive to lie: “the mere introduction
       of contradictory evidence, without more, does not constitute an implied charge of fabrication
       or motive to lie.” Id. Thus, the court concluded that admission of the prior statement was
       improper rehabilitation. Id. Finding that the officer’s testimony was critical to the prosecution
       and that the trial court specifically referred to the prior statements in its ruling, the court found
       that the erroneous admission of the evidence required reversal. Id. at 643.
¶ 18        Under the circumstances presented here, it was error to allow the prosecution to elicit
       testimony from Officer Hefel regarding statements in his report that were consistent with his
       trial testimony. It is debatable whether defense counsel’s cross-examination of Officer Hefel
       asserted or implied recent fabrication. Most of the cross-examination focused on omissions
       from the arrest and incident reports regarding defendant’s conduct, including his eyes “getting
       big,” defendant becoming “fidgety” on seeing the officers, and immediately putting his hand in
       his pocket. These questions, standing alone, would not permit the introduction of prior
       consistent statements because if impeachment by omission justified the introduction of such
       hearsay, the exception would swallow the rule. People v. Miller, 302 Ill. App. 3d 487, 492
       (1998) (“If courts were to admit prior consistent statements whenever there was any
       questioning or contradiction of a witness’ testimony, the exception would swallow the rule.”).
       But defense counsel also asked Officer Hefel the following question: “So this is a fact you are
       remembering today but it is not included in any of your reports?” Such questioning implies
       recent fabrication and would arguably invite introduction of a prior consistent statement.
¶ 19        Yet, despite the suggestion of recent fabrication, the prior consistent statements ultimately
       elicited by the prosecution did not disprove, explain or qualify the inconsistencies between
       Officer Hefel’s report and his trial testimony and thus should not have been admitted.
       Allowing Officer Hefel to testify that his reports did include the “important fact” that he
       observed defendant drop an item to the ground that was retrieved by his partner merely
       reinforced his trial testimony to the same effect; this testimony shed no light on why he would
       have omitted facts regarding defendant’s conduct that gave the officers reason to stop him in
       the first place.
¶ 20        Even in cases where prior consistent statements are properly admitted, such evidence must
       be accompanied by a limiting instruction informing the jury that the evidence should not be
       considered for its truth, but only to rebut a charge of recent fabrication. People v. Lambert, 288


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       Ill. App. 3d 450, 461 (1997). Additionally, it is improper for the State to refer to the prior
       consistent statements as substantive evidence in closing arguments. Id. In this case, there was
       no limiting instruction, either at the time the prior consistent statements were admitted or in the
       court’s instructions to the jury. The State also invited the jury to consider the prior statements
       as substantive evidence when it argued in rebuttal that defendant was not charged with having
       “wide open eyes,” “fidgeting” or “putting his right hand in his pocket,” but was “charged with
       possessing crack cocaine and they put in that report that he possessed crack cocaine.”
¶ 21        The State’s case against defendant hinged entirely on the credibility of the police officers.
       When those officers were impeached with facts omitted from their reports, the State should not
       have been permitted to bolster their credibility with prior consistent statements that did not
       explain those omissions. See People v. Smith, 139 Ill. App. 3d 21, 34 (1985) (“[t]he admission
       of a [prior consistent] statement used to bolster the sagging credibility of a witness is reversible
       error when the witness’ in-court testimony is crucial”). Further, the court’s failure to give a
       limiting instruction and the State’s invitation to the jury to use the prior consistent statements
       as substantive evidence convince us that the result of defendant’s trial may well have been
       different in the absence of these errors. As there is sufficient evidence in the record to support
       the conviction, we reverse and remand for a new trial.
¶ 22        Accordingly, the judgment of the circuit court is reversed.

¶ 23      Reversed and remanded.




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