dissenting:
I agree with my colleagues that the prior consistent statements of Lucio Flores and Antowan Lambert were admissible evidence. Because Illinois apparently adheres to the common-law approach, I further agree that it would have been preferable for the trial court to have instructed that the prior consistent statements were being admitted for "rehabilitative purposes.” However, I strongly disagree that the court’s failure to do so resulted in any discernable prejudice that would warrant our reversing defendant’s conviction.
In my view, the debate over characterizing the statements as either substantive or rehabilitative, in the context of the present facts, is merely a lexical tempest in a legal teapot having little or no practical bearing on the outcome of the trial. There are cases, of course, in which the outcome may pivot on whether a given item of evidence will be viewed as substantive, as where the evidence in question supplies an essential link in the State’s chain of required proof. However, this is not such a case.
Here, as our majority has determined, it is reasonably clear that the jurors were correctly permitted to hear and consider the witnesses’ prior consistent statements in evaluating credibility. There is no suggestion that the prior statements contained any facts other than those cumulative to the witnesses’ trial testimony. Obviously, both witnesses were available for cross-examination. Although the judge informed counsel that the prior statements would be admitted as substantive evidence, no such characterization of the evidence was ever communicated to the jury. Accordingly, the only possible error could be in the judge’s failure to give a limiting instruction informing the jurors that the prior consistent statements could be considered for "rehabilitative” purposes only.
One must wonder how such an instruction, had it been given, could have materially affected the jurors’ analysis of the evidence. If the word "rehabilitative” means that the jurors would be permitted to consider the prior statements only as arguably buttressing the credibility of the witnesses’ testimony, is that not exactly what was occurring anyway even in the absence of a limiting instruction? If the majority is concerned that the jurors could somehow view the prior statements as having the same prominence or stature as the witnesses’ trial testimony, what harm could there have been so long as the prior statements and the testimony were identical?
Apparently, it is the perceived evil of improper repetition of the testimony believed to result from the trial court’s mischaracterization of the prior statements as substantive evidence which the majority sees as requiring reversal. I disagree with this analysis, in part, because it incorrectly implies that evidence admitted for a limited purpose may not be legitimately communicated to the jury and emphasized in closing argument. No one would suggest that the salient portion of a prior inconsistent statement, admitted for impeachment, could not be communicated to the jury or repeatedly highlighted in argument. I am aware of no authority for treating a prior consistent statement in any different manner. Accordingly, regardless of whether the prior consistent statements here were identified as substantive or rehabilitative, there was no error in the fact that they were read to the jury or emphasized by the State in argument.
All of the decisions cited by the majority to support its position that defendant was prejudiced by repetition of the statements are cases in which it was error to admit the prior statements for any purpose. In those cases, the reviewing courts correctly observed that the evil of erroneously repeating the hearsay-violative prior consistent statements is that a witness’ credibility should not be enhanced by the fact that the witness has previously repeated the same version out of court. However, when, as here, the prior consistent statements are received as an exception to the hearsay rule, the very purpose of doing so is to repair or enhance the credibility of a witness whose credibility has been drawn into question by the implication of recent fabrication or a motive to falsify.
Because the cited cases involve prior consistent statements erroneously admitted for the purpose of enhancing credibility, they provide no authority for the majority’s position. Clearly, there is a vast difference between improperly allowing a witness’ testimony to be bolstered through the erroneous admission of hearsay evidence and the present question of omitting to inform a jury of the limited rehabilitative use of evidence which has been properly admitted as an exception to hearsay.
The prejudicial nature of evidence must be judged on a case-by-case basis. People v. Henderson, 142 Ill. 2d 258, 311 (1990). I am aware of no Illinois authority directly analyzing whether, under the present circumstances, a court’s failure to give a "rehabilitative use” limiting instruction could constitute reversible error. It is recognized that, under the Federal Rules of Evidence, no such limiting instruction is necessary. Fed. R. Evid. 801(d)(1)(B). In my opinion, the trial court’s omission, here, constituted, at most, only a harmless error.
Nor am I persuaded that the trial court’s handling of this matter impinged upon the integrity of the judicial system or violated defendant’s federal or state constitutional due process rights. I wholeheartedly agree with our majority that a judge must never abdicate his or her role and surrender to counsel for either side the power to control the admission or exclusion of evidence. However, a reasonable interpretation of this record does not plainly establish that any such abdication occurred. It is more probable that the judge intended his comments as a warning to the prosecutor that, notwithstanding the Federal Rules of Evidence, accepting the State’s position would present a difficult and risky issue of uncertain appellate resolution. There is no indication that the judge did not apply his independent judgment in ruling on the objection or that he deliberately entered inadmissible evidence at the prosecutor’s behest. I do not regard the judge’s comments as providing a basis for reversal.
As to the issue of juror misconduct, I note that the trial court conducted an evidentiary hearing that elicited the juror’s explanation for allegations that he misstated or withheld information. Concerning his failure to state that his former wife had been acquitted of murder, in response to a voir dire inquiry concerning criminal involvement of "family members,” the juror testified that he had been divorced from her for four or five years. Reasonable minds might differ as to whether the inquiry was sufficiently specific to obligate the juror to disclose the acquittal of a former member of his family.
It was similarly within the trial court’s discretion to decide whether the juror had deliberately concealed a material aspect of his record of criminal activity. As a practical matter, communication between prospective jurors and the court is well known to be an imperfect process. The accuracy or completeness of a venireman’s response to a question can be affected by a variety of factors, such as the juror’s comprehension or interpretation of the question, whether sufficient time is allowed for the venireman to reflect and render a complete response before the questioning shifts to a different subject, et cetera. The potential for subsequent discovery of discrepancies in voir dire is great, and perfection is rarely attainable. Here, the court found the juror’s explanation of the alleged irregularity to be credible. Based upon the record presented, I would not overturn that finding.
Concerning the matter of the juror’s contact with defendant’s girlfriend, the trial court heard testimony from both of these persons. The girlfriend testified that her comment was made jokingly and that the juror "blew off” the comment. The juror testified that he understood that the girlfriend was suggesting that he could be paid to find defendant not guilty and that her comment had no influence on his verdict. Assuming the trial court found the juror’s version to be credible, a determination that the incident was harmless would not have been an abuse of discretion. The trial court has substantial discretion in determining whether an improper contact with a juror has caused prejudice to the defendant. People v. Harris, 123 Ill. 2d 113, 132 (1988). It is my opinion that there is no clear demonstration of juror misconduct sufficient to warrant a reversal of defendant’s conviction.
I would affirm the judgment of the circuit court.