No. 2-11-0652 Opinion filed May 23, 2013 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 05-CF-1324 ) DARREN DENSON, ) Honorable ) Timothy Q. Sheldon, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.

OPINION

¶1 After a jury trial, defendant, Darren Denson, was convicted of one count of first-degree

murder (720 ILCS 5/9-1(a)(2) (West 2002)), one count of armed robbery (720 ILCS 5/18-2(a)(1)

(West 2002)), and one count of home invasion (720 ILCS 5/12-11(a)(1) (West 2002)). The trial

court sentenced defendant to a term of life imprisonment on the murder charge, to be served

consecutively to 30-year sentences on the other charges. Defendant now seeks a new trial. We

affirm.

¶2 I. BACKGROUND

¶3 Defendant was charged in the February 2003 murder and robbery of Kyle Juggins. Three

codefendants—Taurean Giles, Getino Robinson, and Kineta Bell—were also charged with murder

and other offenses. The trial court granted the State’s motion in limine to admit testimony regarding

various statements of these codefendants, pursuant to the coconspirator exception to the hearsay rule.

See Ill. R. Evid. 801(d)(2)(E) (eff. Jan. 1, 2011); People v. Thomas,

(1997).

Defendant was initially tried before a jury in November 2010. The trial court declared a mistrial

because the jury was “hopelessly deadlocked.” Defendant was again tried before a jury in April

2011, resulting in the convictions above. The trial court denied defendant’s motion for a new trial

and imposed defendant’s terms of imprisonment. This timely appeal followed.

¶4 II. ANALYSIS

¶5 Defendant first contends that the trial court erred in granting the State’s motion to allow

testimony under the coconspirator exception to the hearsay rule. Defendant cites to case law that

contains holdings that define coconspirator statements as an exception to the traditional definition

of hearsay, which has been radically modified by the Illinois Rules of Evidence (Rules). Rather than

continue to refer to such statements as an exception to the hearsay rule, and thus substantively

admissible, the Rules have defined such statements as not hearsay. A statement is not hearsay if it

is offered against a party and was made by the party’s coconspirator during the course and in

furtherance of the conspiracy. Ill. R. Evid. 801(d)(2)(E) (eff. Jan. 1, 2011). In analyzing the sundry

cases regarding the admissibility of the statements here, we will continue to reference the

terminology used in the cases. However, consistent with the Rules, we ultimately conclude that

some of the statements were admissible because they were not hearsay under the Rules.

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¶6 Defendant argues that the trial court erred in admitting two segments of testimony: (1) that

of Melanie Banner (Bell’s sister) regarding statements that Bell made to her on the night of the

murder; and (2) Bell’s testimony regarding statements made to her by Giles and Robinson as she

drove them to Banner’s apartment after the murder.

¶7 The State argues that defendant has forfeited this issue on appeal because he failed to object

to this testimony at trial. While admitting that he did not object at trial, defendant counters that he

properly preserved the issue because he filed a response in opposition to the State’s motion, argued

against the motion, and contended in his posttrial motion that the trial court erred in granting the

motion. Defendant cites to People v. Hudson,

(1993), and People v. Mason,

(1995), to support his argument that a trial objection is unnecessary to

preserve an issue when it has been raised in a response to a motion in limine. However, in both

Hudson and Mason, the defendants did not respond in opposition to a motion in limine filed by the

State; the defendants were the parties who filed the motions in limine. See Hudson,

(“we find that defendant preserved this issue for review by raising it in a motion in limine and in his

post-trial motions” (emphasis added)); Mason,

(“defendant preserved this

issue when he raised it both in his motion in limine and in his post-trial motion” (emphases added)).

¶8 Defendant seeks support in People v. Maldonado,

(2010), in which the

First District, Fourth Division, citing to Hudson and Mason, held that the defendant preserved an

issue for appeal “when he raised it in both his reply to the State’s motion in limine and in his

posttrial motion.” (Emphasis added.)

. However, neither Hudson nor Mason involved or

addressed the preservation of an issue for appeal by raising an objection to a motion in limine. In

a single paragraph, Maldonado morphs the law from “the supreme court holding that raising an issue

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in a motion in limine is sufficient to preserve an issue so long as it is also raised in the posttrial

motion” to “because defendant did object to the introduction of this evidence both in his reply to the

State’s motion in limine and in his posttrial motion, we conclude that this issue was sufficiently

preserved.” Id. at 416. This non sequitur is a patent distortion of a supreme court holding, made

with no analysis or purported justification for the expansion of the supreme court’s holding. We are

unaware of any case prior to Maldonado that holds that raising an issue in a reply to the State’s

motion in limine, rather than in the defendant’s motion, is sufficient for preservation of the issue.

To the extent that Maldonado so holds, we disavow that holding.

¶9 We further note that the denial of a motion in limine does not in itself preserve an objection

to disputed evidence that is later introduced at trial; a contemporaneous objection to the evidence

at the time that it is offered is required to preserve the issue for review. Simmons v. Garces,

(2002). A trial court’s ruling on a motion in limine is an interlocutory order that is

subject to review by the trial court any time prior to or during trial. People v. Hansen,

(2002). When a trial court addresses a pretrial motion in limine on the merits, its

ruling is always subject to reconsideration during trial. People v. Drum,

(2001). Events at trial may still affect the trial court’s understanding of the probative value of the

evidence, the risk of unfair prejudice to the party opposing the evidence, or the trustworthiness of

the evidence.

. A defendant cannot rely on the trial court’s denial of his own motion

in limine to preserve an issue for appeal. Even less so can a defendant rely only on his pretrial

opposition to the State’s motion in limine to admit evidence as a means to preserve the issue for

appeal.

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¶ 10 In his reply brief, defendant does not argue that, if this issue was not properly preserved, this

court should review it for plain error or ineffective assistance of counsel; instead, defendant insists

that the issue of the coconspirator statements “was preserved and, as such, is reviewable under the

harmless-error framework” set out in People v. Thurow,

(2003). However, we

have found that the issue was not properly preserved and is forfeited. The harmless-error analysis

applies only where the defendant has properly preserved the issue by timely objection.

Where

an issue is forfeited, we may review it only for plain error or ineffective assistance. See People v.

Sanders,

. As defendant does not seek the only review that we can

grant in light of his forfeiture, we can grant no review or relief on this issue.

¶ 11 Even if defendant had not forfeited the issue, we would find no reversible error here. The

coconspirator exception to the hearsay rule provides that any declaration by one coconspirator is

admissible against all coconspirators where the declaration was made during the pendency of and

in furtherance of the conspiracy. People v. Kliner,

(1998).

¶ 12 We will first address defendant’s claim regarding Bell’s testimony. Bell testified that she

was at Banner’s house on the night of February 10, 2003, when she received a phone call from Giles,

her boyfriend, in which he asked her to call a man named Tawyka Bonds (Bell’s former boyfriend)

because Giles “wanted to rob him.” Bell called Bonds twice but got no answer. Giles, Robinson,

and defendant then drove in defendant’s car to Banner’s house at approximately 11:30 p.m. Bell,

but not Banner, met with the three men in Banner’s bedroom. She saw that defendant had a knife

and Robinson had a gun. The men stated that they wanted to rob Bonds or Juggins (who was

nicknamed Cal), and they wanted Bell to show them where both men lived. She called Bonds again

but got no response. Bell then drove her car, followed by defendant, Robinson, and Giles in

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defendant’s car, to the home of the mother of Bonds’ child; Giles called Bell and told her that, since

it looked like no one was home, she should lead them to Juggins’ house. She led defendant’s car to

Juggins’ apartment complex and told Giles by cell phone which apartment was Juggins’. She then

returned to Banner’s house.

¶ 13 Bell then received a call from Giles asking her to pick up Robinson and him from an

apartment complex in Elgin because defendant “had to get on the highway.” At the complex, Giles

and Robinson got into Bell’s car, and they drove toward Bell’s apartment; they saw police cars

turning into her complex, so Bell was told to drive to Banner’s house. Giles then told Bell that

Juggins was dead. At trial, Bell described what happened next:

“Q. [Assistant State’s Attorney:] Did Taurean Giles also describe what had happened

once you left [Juggins’] address?

A. [Bell:] He did.

Q. What did he tell you had happened?

A. He told me that they had broke in, um, the laundry room window and then had

kicked Kyle’s door in. Um, they were looking for a safe. In the process Kyle had shot at

him. Getino shot Kyle, and then the Jamaican [identified as defendant] got on top of Kyle

and stabbed him.

Q. Does Getino Robinson tell you anything about what happened in that apartment?

A. Um, yes. He said that he shot Kyle after he shot at Taurean.

Q. Did he also tell you what the Defendant did in that apartment?

A. He did.

Q. What did Getino Robinson say the Defendant did in that apartment?

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A. He said the same thing that Taurean said, that he got on top of Kyle and stabbed

him.

***

Q. When you just told us, told the ladies and gentlemen of the jury that Getino said

he got on top of him and stabbed Kyle, or Cal, who did he specifically say got on top of Kyle

Juggins and stabbed him?

A. Jamaican.”

¶ 14 Bell also testified that she, Giles, and Robinson then went into Banner’s bedroom, where she

saw three guns and the knife that defendant had previously carried; the handle of the knife had blood

on it. They hid the weapons under Banner’s couch and drove Robinson to his home in Rockford.

The following day, Giles took the guns to his brother’s house.

¶ 15 Defendant now argues that Bell’s testimony regarding the statements made by Giles and

Robinson in her car were inadmissible under the coconspirator exception because the statements

were not made in furtherance of the conspiracy. Statements made in furtherance of a conspiracy

include those that have the effect of “advising, encouraging, aiding or abetting its perpetration.”

Statements made after the crime in an effort to conceal the crime or escape punishment further the

objective of a conspiracy.

However, a mere narrative of past occurrences that does not further

any objective of the conspiracy is not subject to the coconspirator exception.

¶ 16 Defendant argues that Giles’ and Robinson’s statements in the car were merely restatements

of what had occurred and were not made to conceal the crime. We disagree. The statements were

not idle recaps of the evening’s events. The criminal enterprise in which defendant, Bell, Giles, and

Robinson had conspired had led not to mere robbery but to murder. As the enterprise had changed,

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so, too, did the necessary actions for concealment of their crime. The murder had just occurred;

Giles and Robinson still had in their possession the weapons used to kill Juggins, and they had just

changed their destination because of the appearance of the police near Bell’s apartment. Explaining

what happened and what led to their current predicament was not mere narrative; it furthered the

efforts to conceal their actions.

¶ 17 Defendant likens this case to People v. Parmly,

(1987), which involved a

planned burglary that led to murder. Our supreme court found that the coconspirator exception did

not apply to a statement that the defendant fired the second, fatal shot, made the day after the murder,

by a coconspirator (Foutch) who witnessed the murder to a coconspirator (Cook) who was outside

the house when the victim was killed.

. The court found as a “matter of common sense”

that the statement was made to implicate the defendant so that he “would bear the full brunt of the

criminal law.”

We find Parmly distinguishable. First, we note that both Giles and Robinson told

Bell that Robinson shot Juggins and that defendant stabbed him. There is no indication that either

knew whether the gunshot or the stab wound was the cause of death.1 This was no attempt to deflect

blame for Juggins’ death. Further, in Parmly, Cook already knew at the time of the murder that the

victim had been killed; he heard the two gunshots and was told by the coconspirators as they ran

from the house; he even returned to the murder scene with the others to clean up evidence and get

money.

. A recounting the following day describing who fired which shot did not

1 At trial, Dr. Larry Blum, a forensic pathologist who had reviewed the autopsy protocol,

testified that Juggins suffered two fatal injuries—a stab wound to the right upper chest and a gunshot

wound to the back of the head. While the primary cause of death was blood loss from the stab

wound, the gunshot was a “contributory cause of death.”

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further the conspiracy. As we stated above, Bell did not know what had occurred in Juggins’

apartment. She had been asked to pick up Giles and Robinson because defendant “had to get on the

highway.” She did not even know if the robbery was attempted, let alone that the home invasion had

led to murder. We would find no error in the admission of this testimony, let alone prejudicial error.

As we have found that Bell’s testimony was properly admitted as coconspirator statements, which

by definition were not hearsay (see Ill. R. Evid. 801(d)(2)(E) (eff. Jan. 1, 2011); People v. Leach,

, ¶ 80 n.2), we need not address defendant’s summary argument regarding Crawford

v. Washington,

(2004). See Leach,

, ¶ 80 n.2).

¶ 18 Defendant’s next claimed error involves the testimony of Banner, who testified about her

conversation with Bell before defendant, Giles, and Robinson came to her house on the night of

Juggins’ murder:

“Q. [Assistant State’s Attorney:] Before other people got over to your apartment, but

after you overheard part of what your sister, Kineta Bell, was saying on the phone, did Kineta

Bell, your sister, tell you anything about those phone calls?

A. [Banner:] Yes.

Q. And what did she say?

A. Basically that she was trying to contact someone which I knew named Tawyka

to find out where he lived because someone wanted to rob him, and she was glad that she

was unable to find Tek because she didn’t want to set him up to be robbed.

Q. So they wanted to rob—somebody wanted to rob Tawyka. Did she tell you who

that was?

A. Yes.

Q. Who was that?

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A. Taurean, Getino, and Jamaica.

Q. Did she say anything about what I’ll call an alternative plan if they couldn’t get

hold of Tawyka what [sic] they were going to do?

A. She didn’t say they were going to do it, but they wanted her to, and if she couldn’t

do Tawyka to get—to do Cal. She never told me that she was going to do it, but that was the

alternative, that was what the next plan would have been.

Q. Was that they wanted to?

A. (Nodding head up and down).

Q. Did you know at that point in time was she able to—did she tell you whether she

was able to get hold of Tawyka Bonds?

A. She wasn’t able to because she said she was glad she wasn’t [sic] because she

didn’t want to set him up to be robbed.”

Banner subsequently identified defendant as the person that she referred to as “Jamaica.”

¶ 19 Defendant first argues that Bell’s conversation with Banner was not in furtherance of the

conspiracy since Bell was “actually hoping that the conspiracy would not come to fruition.”

Defendant cites no authority for the proposition that a coconspirator’s wishes regarding the success

of the venture has any bearing on the admissibility of her statements pursuant to the coconspirator

exception. Bell did not withdraw from the conspiracy; while her heart may not have been in it, she

was, as Banner testified, “trying to contact *** Tawyka to find out where he lived because someone

wanted to rob him.” Further, Bell wished only that Bonds not get robbed; she stated no such

reservations about the success of the alternative plan to rob “Cal.”

¶ 20 Defendant also argues that a statement made to a nonconspirator about the details of the

planned crime before it occurred is not a statement made in furtherance of the conspiracy and, thus,

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not admissible. We first note that the fact that a statement is made to a nonconspirator does not,

alone, make the statement inadmissible under the coconspirator exception. See People v. Redeaux,

(2005). However, defendant also argues that the statement was not made

in furtherance of the conspiracy. As noted, statements made in furtherance of a conspiracy include

those that have the effect of “advising, encouraging, aiding or abetting its perpetration.” Kliner,

.

¶ 21 The State apparently misapprehends exactly what testimony defendant is contesting. In its

brief, the State refers to “Banner’s testimony regarding what her sister, Bell, said on the phone” and

states that “Banner overheard Bell identifying her own role in the conspiracy as the provider of

information concerning the whereabouts of the conspiracy’s targets.” (Emphases added.) However,

in his brief, defendant recounts only Banner’s testimony regarding her conversation with Bell after

the telephone calls, not what Banner overheard during the calls. This misunderstanding calls into

question the State’s argument that statements further a conspiracy “where they identify

coconspirators and their roles in the conspiracy, or *** inform other conspirators of the activities or

status of the conspiracy.” For this argument, the State relies on United States v. Hitow,

(6th Cir. 1989). Hitow cited to United States v. Magee,

(5th Cir.

1987), to support its assertion that statements “identifying other conspirators and their roles in the

conspiracy” had been found to be in furtherance of a conspiracy. Hitow,

.

However, a closer look at Magee reveals its finding to be that “[o]rdinarily, a statement that

identifies the role of one co-conspirator to another is in furtherance of the conspiracy.” (Emphasis

added.) Magee,

. Thus, Hitow’s liberal extension of Magee’s finding, and the State’s

reliance on it in this case, are on shaky ground. If Banner had overheard Bell making the contested

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statements to one of the coconspirators on the telephone, such an argument would at least be

relevant. However, such is not the case here.

¶ 22 The circumstances of Bell’s statements to Banner are similar to those presented in People

v. Link,

(1981). In Link, the uninvolved girlfriend of a conspirator in a murder-

for-hire scheme testified that, before the murder was committed, her boyfriend told her of his

involvement in the scheme and various facts about the proposed murder.

. This court

“fail[ed] to see *** how the premurder statements to one who was not a co-conspirator can be

termed in furtherance of the conspiracy.”

. We agree with our brethren’s vision in Link

and conclude that Bell’s conversation with Banner was not in furtherance of the conspiracy. Such

a conclusion is based on long-standing precedent in this state:

“Declarations, that are merely narrative as to what has been done or will be done, are

incompetent and should not be admitted except as against the defendant making them, or in

whose presence they are made.” (Emphasis added.) Spies v. People,

(1887).

Bell’s statements to Banner, a nonmember of the conspiracy, were nothing more than a narrative of

what Bell had done and what the plans were for later that evening. These statements were not made

in furtherance of the conspiracy and were thus not admissible under the coconspirator exception.

¶ 23 The State argues that, in any event, the statements were admissible as evidence of Bell’s state

of mind. Under the state-of-mind exception to the hearsay rule, the rule will not exclude:

“A statement of the declarant’s then existing state of mind, emotion, sensation, or physical

condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but

not including:

***

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(B) a statement of declarant’s then existing state of mind, emotion, sensation, or

physical condition to prove the state of mind, emotion, sensation, or physical condition of

another declarant at that time or at any other time when such state of the other declarant is

an issue in the action.” Ill. R. Evid. 803(3)(B) (eff. Apr. 26, 2012).

The State argues that “Bell’s expression of relief that the conspirators were acting on their alternative

plan to rob Juggins rather than her ex-boyfriend, Bonds—unquestionably qualified for admission as

a statement by Bell regarding her then-existing state of mind.” We disagree. First, we note that Bell

did not state that the coconspirators were, indeed, acting on the alternative plan to rob Juggins. As

Banner testified when questioned:

“Q. Did she [Bell] say anything about what I’ll call an alternative plan if they

couldn’t get hold of Tawyka what [sic] they were going to do?

A. She didn’t say they were going to do it, but they wanted her to, and if she couldn’t

do Tawyka to get—to do Cal. She never told me that she was going to do it, but that was the

alternative, that was what the next plan would have been.” (Emphases added.)

Further, Bell testified that she called Bonds once more after the coconspirators met at Banner’s

house, and she also led them to a house where she thought that Bonds might be before leading them

to Juggins’ apartment. Bell could not have been expressing relief that the coconspirators were acting

on their alternative plan, as the State argues, because the plan to rob Bonds was still viable. In

addition, even if Bell were speaking about acting on the alternative plan to rob Juggins, it would not

have been admissible. As the committee comment to Rule 803 explains:

“Consistent with prior Illinois law, Rule 803(3)(B) provides that the hearsay exception for

admissibility of a statement of intent as tending to prove the doing of the act intended applies

only to the statements of intent by a declarant to prove her future conduct, not the future

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conduct of another person.” (Emphasis added.) Ill. R. Evid. 803, Committee Comment

(adopted Sept. 27, 2010).

Banner’s testimony about her conversation with Bell was admitted in error.

¶ 24 However, not every error is reversible error, and we would conclude that the admission of

this testimony was harmless and, thus, not reversible error. An erroneous evidentiary ruling

constitutes harmless error if the State can establish beyond a reasonable doubt that the error did not

contribute to the jury’s verdict. People v. Patterson,

(2005). In deciding

whether error is harmless, a reviewing court may “(1) focus on the error to determine whether it

might have contributed to the conviction; (2) examine other properly admitted evidence to determine

whether it overwhelmingly supports the conviction; or (3) determine whether the improperly

admitted evidence is merely cumulative or duplicates properly admitted evidence.” People v.

Becker,

(2010). First, we note that the complained-of testimony here involves

the conspiracy to rob Juggins only if the coconspirators could not rob Bonds. Both Bell and Giles

also properly testified about this conspiracy. Thus, Banner’s testimony was merely duplicative.

Further, it covered only the early stages of the conspiracy and did not discuss the ultimate actions

for which defendant was charged. Other evidence in this case included testimony much more

immediate to the actual commission of the crimes charged—that of Bell, covered above, and Giles,

who was at the scene of Juggins’ murder. Without delving into Giles’ extensive testimony, we note

that his testimony involved the conspiracy and his eyewitness account of the home invasion, murder,

and robbery. Banner’s complained-of testimony was of such little consequence that we cannot

conclude that it contributed to defendant’s conviction. Thus, even though defendant’s claim of error

is valid, we would grant him no relief.

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¶ 25 Defendant next contends that the trial court improperly admitted the prior consistent

statement of the State’s witness Stacy Daniels. Defendant admits that trial counsel neither objected

at trial nor included this issue in his posttrial motion; however, he asks this court to review the issue

as plain error or, in the alternative, ineffective assistance of counsel. The State agrees that there was

error and contests only the impact of the improper testimony.

¶ 26 In the State’s case-in-chief, Daniels testified that she lived with Juggins and their 15-month-

old son on February 10, 2003. As the three of them slept on the same mattress on the bedroom floor,

Daniels heard someone kick in the front door of their apartment. She rolled onto her stomach and

pulled the covers over her head as her son began to scream and cry. She felt two people step over

her legs to the side of the bed where Juggins lay. Juggins and a “black male voice” exchanged

words, and Daniels felt “tussling.” She then heard a gunshot, and she felt the two people step back

over her legs. She pulled off the covers and saw Juggins lying unresponsive.

¶ 27 Daniels left the bedroom and entered the living room and she saw a person leave the

apartment and enter the building’s laundry room. A second person, on her right, pushed her

forehead, and then a third person came out of the bedroom and brushed her left arm. The second and

third persons walked out of the apartment and turned left, into the laundry room. Daniels never saw

the face of the first person, but she could tell that the other two had masks on their faces.

¶ 28 At trial, Daniels described the first person leaving the apartment as six feet tall. On cross-

examination, the following colloquy took place:

“Q. Now, I want to ask you some questions about the first person who you saw leave.

You just said that you now estimate that this person was about six foot; is that true?

A. Yes.

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Q. By six foot, would you describe that, would that be the same to you as being

medium height?

A. No.

Q. What would medium height be to you?

A. Um, like five, six; five, seven.

Q. Okay. Now, isn’t it true that on—you gave a previous statement on December

10th, 2009, and in that statement—

***

Q. Miss Daniels, do you remember being asked this question and giving this answer?

‘Question: Do you know, can you describe anything physically about the first guy? Answer:

The first guy? I don’t know. I believe like he was a little bit stockier than the other. Like

to me he seemed like a little bit more built. He didn’t look that tall, but he was medium

height. He wasn’t short.’ Do you remember being asked that question and giving that

answer?

A. I believe so.

Q. Is it fair to say that your memory of the events was better right after this incident

happened than it is today?

A. Um, my memory is the same. Just that—what happened that night, you guys

asked me what time stuff happened, what people looked like, what they have on. When

you’re in that situation you don’t think of the time or what they have on. This was

wintertime. I believe they had to have like coats, winter coats. So to me that was medium

built to me. So my memory, I can tell you from front to back, back to front what happened,

but I can’t tell you who was in that apartment.”

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On redirect examination, the following took place:

“Q. Miss Daniels, I want to talk to you about this question and answer that defense

counsel asked you about the medium height. Do you remember that?

A. Yes.

Q. And she also followed it up by saying, asking you a question about whether your

memory was better that night or today some eight years later; is that correct?

A. Yes.

Q. And as far as whether it was a—whether you described it back in 2009 at a

deposition as a medium height or not, isn’t it true that within a couple of hours after this

incident you had a discussion with Detective Dan O’Shea from the Elgin Police Department?

A. Yes.

Q. And isn’t it true at that point in time that you described this person, the number

one person, as approximately six foot tall and the tallest of the three?

A. Yes.”

¶ 29 In general, a prior statement that is consistent with a witness’s trial testimony is inadmissible

to bolster that witness’s credibility (People v. Ramos,

(2000)) or to

rehabilitate a witness who has been impeached by a prior inconsistent statement (People v.

Rodriguez,

(1978)). Here, defendant properly impeached Daniels’ trial

testimony that the first man she saw leaving the apartment was six feet tall with her statement in the

2009 deposition that “He didn’t look that tall, but he was medium height. He wasn’t short.”

However, defense counsel went beyond that impeachment with his follow-up question of whether

it was “fair to say that your memory of the events was better right after this incident happened than

it is today.” This follow-up question was akin to incomplete impeachment; it implied either that

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Daniels’ deposition answer was given “right after this incident happened” and was more accurate

or that her trial testimony was somehow different from what she expressed “right after this incident

happened.” Neither of these inferences could properly be drawn from the evidence or proved with

other evidence. Defendant did not merely impeach Daniels with her 2009 inconsistent statement;

he attempted to bolster the 2009 statement and further denigrate her trial testimony with the

unfounded insinuations that the deposition answer, given more than six years after Juggins’ murder,

was given “right after this incident happened” or that some other description given “right after this

incident happened” was more accurate. The State did not merely attempt to rehabilitate Daniels or

bolster her testimony; it sought to address the improper insinuations raised by defendant. We do not

easily or often find that a defendant has opened the door for admission of a prior consistent statement

by impeaching a witness with a prior inconsistent statement. See People v. Ciavirelli,

(1994). However, defendant raised the issue of the quality of Daniels’ “memory of the

events *** right after this incident”; this was outside of the impeachment of Daniels with her prior

inconsistent statement, and defendant cannot now complain that the State followed up on that issue.

Disagreeing with both defendant and the State, we find no error here.

¶ 30 Even if we were to find that the trial court improperly allowed Daniels’ testimony about her

statement on the night of the murder, we would not find this to be reversible error. Illinois Supreme

Court Rule 615(a) provides: “Any error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a) (eff.

Jan. 1, 1967). We conclude that the admission of the prior consistent statement did not affect a

substantial right and should be disregarded. Daniels never identified defendant as the first person

she saw leave her apartment after Juggins was killed. She never saw the face of that person. Further,

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when questioned on cross-examination about her memory of that night, she stated, “I can’t tell you

who was in that apartment.” In the prior consistent statement, Daniels described the first person she

saw leaving the apartment as “approximately six foot tall.” At trial, Robinson’s sister, Genores

Robinson, who had dated defendant, testified that defendant was “tall”—approximately 6 feet, 6

inches. We do not conclude that the admission of Daniels’ statement—a description of an unknown

person, which did not fit that of defendant (but was less incorrect than the description in her prior

inconsistent statement)—affected a substantial right.

¶ 31 Similarly, we do not conclude that defense counsel was ineffective in his actions regarding

this statement. To succeed on a claim of ineffective assistance of counsel, a defendant must establish

both that counsel’s representation was deficient and that the defendant was substantially prejudiced

by the deficient performance. People v. Williams,

(2009). A lack of

substantial prejudice is fatal to a claim of ineffective assistance.

The admission of Daniels’ prior

consistent statement was not of such a magnitude that defendant suffered substantial prejudice and

was denied a fair and impartial trial.

¶ 32 For these reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 33 Affirmed.

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