ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Wilson, 2012 IL App (1st) 101038

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

LORENZO WILSON, Defendant-Appellant.

 District & No. First District, Fifth Division

Docket No. 1-10-1038

Filed March 16, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In a prosecution for first degreemurder and armed robbery, the admission

of audiotaped and handwritten statements describing what defendant told

a witness about the crimes was error under section 115-10.1 of the Code

of Criminal Procedure because the witness did not have personal

knowledge of the events described, but the error was harmless and did not

warrant reversal of defendant’s convictions where there was no

reasonable probability the jury would have found defendant not guilty if

the evidence had been excluded, and, furthermore, defendant’s 75-year

sentence was affirmed over his claim that the trial court failed to give

adequate weight to the mitigating factors of his age and lack of a criminal

history; however, the cause was remanded for correction of the mittimus

to reflect the correct sentencing credit for defendant’s presentence

incarceration.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 07-CR-14511 (03);

the Hon. Lawrence P. Fox, Judge, presiding.

Judgment Affirmed and remanded with directions.
Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, Benjamin Overby, and Katherine

M. Donahoe, all of State Appellate Defender’s Office, of Chicago, for

appellant.

AnitaM. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, TashaMarie Kelly, and Janet C. Mahoney, Assistant State’s Attorneys, of

counsel), for the People.

Panel PRESIDING JUSTICE EPSTEIN delivered the judgment of the court,

with opinion.

Justices J. Gordon and McBride concurred in the judgment and opinion.

OPINION

¶ 1 Following a jury trial, defendant Lorenzo Wilson was convicted of first degree murder

and armed robbery. On appeal, defendant argues that the trial court improperly admitted, as

substantive evidence, audiotaped and handwritten statements from State witness Charles

Wilson. Defendant also argues that the trial court abused its discretion by imposing a 75-year

sentence for the first degree murder conviction and that the mittimus should be corrected to

reflect additional sentencing credit. For the reasons that follow, we affirm defendant’s

conviction and sentence, with directions to the clerk of the circuit court to correct the

mittimus.

¶ 2 BACKGROUND

¶ 3 In the early morning of June 15, 2006, Corey Ebenezer was shot and killed at Leona’s

Restaurant in Hyde Park. Erika Ray and Lorenzo Wilson were later charged with first degree

murder and armed robbery and were tried in a single trial with separate juries.

¶ 4 Testimony From Leona’s Employees

¶ 5 At trial, the jury heard testimony from Justin Twine, Lucio Mastache, and Jason Sline,

who worked with Erika at Leona’s Restaurant. On the evening of June 14, 2006, a large

group came into Leona’s and sat down to order food. Twine, who was working as a server

that night, testified that there were about 30 people in the party. Erika wanted to serve the

entire group, but Corey Ebenezer, an assistant manager, told Erika that she could not handle

the table alone. When Erika insisted that she serve the entire party, Ebenezer told her to go

home. Erika refused and proceeded to serve the table.

¶ 6 Ebenezer called district manager Augustin Monnarez and informed him that he asked

Erika to go home but she refused. Jason Sline, a manager, then received a call asking him to

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go to the restaurant. Around 9 or 9:30 p.m., Sline arrived at Leona’s and discussed what

happened with Ebenezer, Erika, and the servers. Sline then told Erika that she would have

to work at a different location of Leona’s Restaurant. When Erika declined the offer, Sline

fired her. Erika told Sline that she understood and then said, “But f*** you Corey, Corey,

f*** you” and left the restaurant.

¶ 7 Around midnight, Mastache and Twine were still at Leona’s. The restaurant was closed.

As Mastache was cleaning the kitchen, he saw three unknown men hit Ebenezer in a small

kitchen hallway near the cash registers at the private back entrance of the restaurant.

Mastache then heard three gunshots. Mastache went to the front of the restaurant to find

Twine, and when they returned to the kitchen, Ebenezer was lying next to a cash drawer on

the floor. Ebenezer told Twine that he “just got ganked,” which meant he had been robbed.

Ebenezer later died from his injuries.

¶ 8 Paris Gosha

¶ 9 Paris Gosha is Erika’s cousin and had been Lorenzo’s friend since childhood. Gosha

testified that he also was charged with the murder and armed robbery of Corey Ebenezer. In

exchange for the State’s agreement to drop the murder charges, Gosha agreed to testify

against Erika and Lorenzo and plead guilty to the armed robbery charge. Gosha would

receive a 30-year sentence (but understood that he would only serve half of it) and would be

placed in a witness protection program. At the time of his testimony, Gosha was in the

witness protection program in the Cook County jail, where he received various privileges,

including a $35 weekly payment.

¶ 10 On the night of June 14, 2006, Gosha went to see friends at 54th and Peoria. Lorenzo

came into the house and told him that Erika, who was in her car outside, wanted to speak

with Gosha. Erika told Gosha that she had just been fired and wanted him “to beat her boss’

ass.” Gosha then gathered his younger brother, Demetrius (or “DJ”), and a friend named

Anthony Macon to go with Erika and Lorenzo. Erika drove Lorenzo, Gosha, Macon, and DJ

to Leona’s and parked the car. As they waited, a man with a Jamaican accent approached the

car three times and spoke with Erika about going into the restaurant. At one point, when the

group was ready to enterthe restaurant, the man told them to get back in the car. Gosha heard

the man say that some people inside the restaurant with Ebenezer might help him fight.

¶ 11 After about two hours, Lorenzo, Gosha, Macon, and DJ entered the back entrance of

Leona’s. Lorenzo pointed a pistol at Ebenezer’s face, and Gosha “grabbed some money”

from the cash register. Lorenzo and Ebenezer began to struggle and a shot was fired. The

men continued to wrestle until Macon came through the door and tried to break up the fight.

Ebenezer slipped on the floor. Lorenzo then stood over him and shot him. The four men fled

to Erika’s car.

¶ 12 The next day, Gosha met with Lorenzo, Macon, and DJ at Gosha’s house, where they

watched news coverage about the shooting. Gosha did not see Lorenzo after that day. When

Gosha first talked to police in August 2006, he told them he did not know anything. Gosha

admitted his involvement in June 2007, after Macon had spoken to police about the incident.

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¶ 13 Anthony Macon

¶ 14 Anthony Macon testified that he was at 54th and Halsted on June 14, 2006. Erika pulled

up in her car, and Gosha and Lorenzo went to talk to her. Gosha and Lorenzo told Macon to

“come on,” and he got in the car with them. Lorenzo told Macon that they were going to

Leona’s because “some guy got her fired and they wanted to beat him up.” Macon did not

hear Erika say that they should rob the man. As Erika drove to the restaurant, Macon saw

Lorenzo, who was seated next to him in the backseat, holding a small gun with a pearl

handle.

¶ 15 After Erika parked her car, a man with an accent came and spoke to her. When he spoke

with Erika a second time, she moved her car down the street and parked because it was time

for the men to go inside. Erika told the group that the back door would be open. Macon

headed to the front entrance while the others went to the back entrance. Macon then heard

two gunshots coming from inside and headed to the back door. There, he saw Lorenzo,

Gosha, DJ, and a man fighting. Macon tried to pull Gosha out of the struggle.

¶ 16 The group returned to Erika’s car. Gosha got into the trunk while the others got in the

backseat. Macon then heard Wilson say that he thought he killed the man inside the

restaurant. The group returned to Gosha’s house and met again there the next day.

¶ 17 Macon told police in July 2006 that he did not know Gosha or Lorenzo and did not know

anything about the shooting. Two weeks later, Macon told detectives about the incident.

Macon testified that he could not remember if, during a January 2007 interview with police,

he stated that he did not know if Lorenzo had a gun until he got back in the car after the

shooting. Macon explained that after giving the statements, he was never charged with any

crime. Macon testified that neither the police nor the State’s Attorney promised that Macon

would not be charged if he gave a specific statement or testified a certain way.

¶ 18 Charles Wilson

¶ 19 Charles Wilson, the great-uncle of Lorenzo Wilson, testified for the State. Charles had

lived in Gulfport, Mississippi, but he was currently in federal prison for a gun possession

conviction in an unrelated case. Charles initially testified that he did not see his great-nephew

in the courtroom, but after Lorenzo stood up, Charles acknowledged that Lorenzo was his

great-nephew. When asked if he was in Chicago in June 2006, Charles testified that he did

not recall and then indicated that he would “plead the Fifth.” The State asked for a sidebar

and indicated that it would grant use immunity to Charles in exchange for his testimony. The

court signed a form adjudging Charles a material witness and ordering him to testify.

¶ 20 Outside the presence of the jury, the court told Charles that he could not plead the fifth

amendment and that he would face contempt charges if he did not testify. Charles responded

that he would take the punishment. The State then informed the court that it wished to

confront Charles with three prior inconsistent statements. The State argued that all these prior

statements were admissible under two statutes: the “regular prior inconsistent statement

statute” (725 ILCS 5/115-10.1 (West 2008)) and the statute covering admissibility of prior

statements when a witness refuses to testify despite a court order (725 ILCS 5/115-10.2

(West 2008)). Counsel for Lorenzo objected to the statements’ admissibility under both

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statutes, but the court found them admissible as prior inconsistent statements under section

115-10.1.

¶ 21 After the jury returned, the State asked Charles about his prior statements: an audiotaped

statement he gave to Sergeant Schlicht of the Gulfport police department in Mississippi on

December 6, 2006; a signed handwritten statement Charles gave to Detective Lutzow of the

Chicago police department and Assistant State’s Attorney Martha Kross on December 19,

2006; and Charles’s testimony before a grand jury on May 24, 2007. Charles stated either

that he did not recall making the statements, he did not know if he made them, or he was

“high on drugs” when he made the statements. At one point, Charles also testified that he did

not make the statements and he was the one who shot Ebenezer.

¶ 22 The State confronted Charles with his three prior statements, which all provided a similar

account of his interactions with Lorenzo. On the evening of June 14, 2006, Charles was

visiting Lorenzo’s mother at her house in Chicago. Lorenzo returned home very late that

night and was not acting like himself. Charles asked him what was wrong. Lorenzo

responded, “Ithink Ishot somebody.” Charles asked if he had killed the person, but Lorenzo

responded that he did not know. Charles told Lorenzo to tell his father. The next day, Charles

learned that Lorenzo had not told his father what had happened, so Charles told him.

¶ 23 Laterthat day, Charles heard Lorenzo tell his father additional details about the shooting.

Lorenzo stated that the girl who lived across the street had gotten fired and “she wanted

Lorenzo and some other guys who hang out with the girl to go to the restaurant where the girl

worked and stick up the person who fired her.” Lorenzo told Charles that “they were going

to go in there, stick up the person who fired her, and take the money.” At the restaurant,

Lorenzo pointed a gun at the man, who rushed at him. Lorenzo said that he then started

shooting. Later that day, news came on television about the shooting at Leona’s, including

a picture of the man who was shot. Lorenzo said that he had shot the man in the picture.

¶ 24 Lorenzo’s parents asked Charles to take Lorenzo to Charles’s home in Mississippi.

Lorenzo and Charles left later that night, when it was dark, so that the neighbors would not

see them go. As they were driving to Mississippi, Charles asked Lorenzo where the gun was.

Lorenzo pulled a rag out of his pocket and showed Charles the dismantled gun. Lorenzo said

that the gun was the one he used to shoot the man in the restaurant. Charles told him to get

rid of the gun, and Lorenzo started to throw parts of it out the window. Charles told him to

stop, however, because he thought the handle, spring, and clip would fit one of his other

guns. Lorenzo stayed with Charles in Mississippi for about four months and then went to stay

with his “play niece” in Miami, Florida.

¶ 25 The State called three witnesses to prove up Charles’s prior statements. Assistant State’s

Attorney Sanjay Patel testified regarding Charles’s grand jury testimony, which he read in

its entiretyto the jury. Next, Assistant State’s AttorneyMartha Kross testified as to Charles’s

handwritten statement, which contained similar information to the grand jurytestimony. The

State then called Sergeant Schlicht of the Gulfport, Mississippi, police department. Schlicht

explained that in November 2006, Charles Wilson was brought into the police department

on weapons charges. Schlicht received information that Charles wanted to speak with him

regarding a homicide in Chicago. On December 6, 2006, Schlicht took a 10-minute audio

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recording of Charles’s statement. The recording was played for the jury.

¶ 26 The State also asked Charles about documents drafted by the Gulfport police in which

Charles consented to a search of his truck and a search for gun parts in his home. Charles

stated that he kept a plastic box of various gun parts in his home and that he vaguely

remembered going with the Gulfport police to his home and showing them where the handle,

spring, and clip were. When the State showed Charles a handle to the gun, he stated he did

not know what it was and he did not recognize it.

¶ 27 The jury also heard testimony from Sergeant Schlicht and Detective Brian Lutzow of the

Chicago police department regarding recovery of gun parts at Charles’s residence and the

arrest of Lorenzo Wilson. Charles consented to a search of his home, during which police

recovered a gun handle, clip, and coil spring. Charles told police that the gun parts belonged

to Lorenzo and were part of the gun Lorenzo had in the car on the trip from Chicago to

Mississippi. Detective Lutzlow testified that he received the inventoried gun parts. Later,

based on information received from Charles, Lorenzo was arrested and transported back to

Chicago.

¶ 28 Verdict and Sentencing

¶ 29 The State rested, and the court denied defendant’s motion for a directed verdict.

Defendant then rested. The jury found defendant guilty of first degree murder and armed

robbery and found that defendant personally discharged a firearm that proximately caused

the death of Corey Ebenezer. The court sentenced defendant to 75 years for first degree

murder and 20 years for armed robbery, with the sentences to be served concurrently. This

appeal followed.

¶ 30 ANALYSIS

¶ 31 Defendant raises a number of arguments as to why the trial court erred in admitting

Charles Wilson’s prior inconsistent statements. At the outset, we note that defendant does

not contest the State’s presentation of Charles’s sworn grand jury testimony. All claims of

error are limited to the admission of the audiotaped and handwritten statements.

¶ 32 Charles Wilson’s Statements Describing Defendant’s Account of the Shooting

¶ 33 Defendant first contends that the portions of Charles Wilson’s audiotaped and

handwritten statements that describe what defendant told him about the shooting should not

have been admitted as substantive evidence under section 115-10.1 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/115-10.1 (West 2008)). In each prior statement, Charles

recounted defendant’s description of the shooting, including his statement just after the

shooting, “I think I shot somebody.” Defendant argues that Charles did not have personal

knowledge of the events defendant described, as required by the statute.

¶ 34 Before we address the claim of error, we consider whether defendant forfeited review of

this issue. To preserve an issue for review, a defendant must object both at trial and in a

written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). A general objection

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is generally not enough to preserve an issue for review, and “[o]bjections to evidence should

especially designate the particular testimony considered objectionable and point to the

objectionable features.” People v. Graves, 142 Ill. App. 3d 885, 894 (1986); see People v.

Pastorino, 91 Ill. 2d 178, 192 (1982). The State contends that defendant forfeited the issue

because defense counsel only made a “general objection” without raising an argument

specific to the personal knowledge requirement.

¶ 35 After Charles testified that he did not recall his prior statements, the State argued that his

statements should be admitted first under section 115-10.1 (725 ILCS 5/115-10.1 (West

2008)), the “regular prior inconsistent statement statute.” The State went on to argue that

Charles’s statements were also admissible under section 115-10.2 (725 ILCS 5/115-10.2

(West 2008)), which governs admissibility of prior statements when a witness refuses to

testify despite a court order. Defense counsel first addressed section 115-10.2 and argued,

inter alia, that if the court admitted any prior statements, it should limit admission to those

“in which the witness, Charles Wilson, has personal knowledge as opposed to statements

made by Lorenzo Wilson, describing other events.” Defense counsel then turned to section

115-10.1 and began by arguing that the State had not yet established lack of memory. The

trial court interjected, finding that because Charles testified that he did not remember being

in Chicago or driving his great-nephew to Mississippi, the “lack of memory” requirement

was satisfied for “all the statements” in the “[g]rand jury testimony, written statement,

[audio]taped statement.” The court concluded that Charles’s answers regarding lack of

memory “open[ed] the door for the [S]tate to offer those statement as prior inconsistent

statements under *** 115-10.1.”

¶ 36 In a posttrial motion, defense counsel argued that the trial court “erred in admitting the

prior statements of Charles Wilson” because, inter alia, “the statements did not have certain

circumstantial guarantees of trustworthiness.” In considering this argument at the hearing,

the trial court referenced section 115-10.1 and found that all of Charles’s prior inconsistent

statements “describe[d] events or conditions which he had personal knowledge of.” In the

trial court’s view, Charles had personal knowledge of “driving the defendant all the way

down to Mississippi, having conversations with him on the way, observing events that

occurred shortly after the crime was committed, and things that were said and done at that

time.”

¶ 37 Based on the foregoing, we conclude that defendant preserved the claim of error. Defense

counsel specified the objectionable testimony (“statements made by Lorenzo Wilson,

describing other events”) and explained why those statements were objectionable (theywere

not within Charles’s personal knowledge). See Graves, 142 Ill. App. 3d at 894. Counsel

renewed the objection in the posttrial motion, and the trial court specifically found that

Charles’s prior inconsistent statements were admissible assubstantive evidence undersection

115-10.1 because he had personal knowledge of “things that were said and done at the time.”

As a result, if we find error, we will consider whether the error is harmless. See In re E.H.,

224 Ill. 2d 172, 180 (2006) (evidentiary error is harmless “ ‘where there is no reasonable

probability that the jury would have acquitted the defendant absent the’ error” (emphasis in

original) (quoting People v. Nevitt, 135 Ill. 2d 423, 447 (1990))).

¶ 38 We now turn to the admissibility of the portions of Charles’s prior audiotaped and

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handwritten statements that recount defendant’s statements about the shooting. The

admission of evidence lies within the discretion of the trial court, and we review the trial

court’s decision to admit evidence for an abuse of discretion. People v. Becker, 239 Ill. 2d

215, 234 (2010). The general rule is that hearsay, defined as “an out-of-court statement ***

offered to prove the truth of the matter asserted,” is inadmissible at trial. (Internal quotation

marks omitted.) People v. Gonzalez, 379 Ill. App. 3d 941, 954 (2008). There is an exception

to the hearsay rule for prior inconsistent statements of a testifying witness, which may be

admitted to impeach the witness’s credibility. People v. McCarter, 385 Ill. App. 3d 919, 932

(2008). Under section 115-10.1, a prior inconsistent statement may be offered not just for

purposes of impeachment, but as substantive evidence, so long as the witness is subject to

cross-examination and the statement:

“(1) was made under oath at a trial, hearing, or other proceeding, or

(2) narrates, describes, or explains an event or condition of which the witness had

personal knowledge, and

(A) the statement is proved to have been written or signed by the witness, or

(B) the witness acknowledged under oath the making of the statement either in

his testimony at the hearing or trial in which the admission into evidence of the prior

statement is being sought, or at a trial, hearing, or other proceeding, or

(C) the statement is proved to have been accurately recorded by a tape recorder,

videotape recording, or any other similar electronic means of sound recording.” 725

ILCS 5/115-10.1(c) (West 2008).

Defendant argues that portions of Charles’s audiotaped and handwritten statements are

inadmissible under section 115-10.1(c)(2) because the statute requires that Charles had

“personal knowledge” of the “event” described in the statements, i.e., the shooting. The State

counters that the “event” in question is defendant’s act of verbal admission, and thus the

personal knowledge requirement is satisfied because Charles had personal knowledge of any

of defendant’s statements to him. We decline to adopt the State’s interpretation of the

personal knowledge requirement for three reasons.

¶ 39 First, as the State acknowledges, this court has previously concluded that, under the plain

language of section 115-10.1(c)(2), “the witness whose prior inconsistent statement is being

offered into evidence must actually have seen the events which are the subject of th[e]

statement.” (Internal quotation marks omitted.) McCarter, 385 Ill. App. 3d at 930 (quoting

People v. Cooper, 188 Ill. App. 3d 971, 973 (1989)); People v. Morales, 281 Ill. App. 3d

695, 701 (1996). This means that section 115-10.1(c)(2) does not encompass “statements

made to the witness by a third party, where the witness has no firsthand knowledge of the

event that is the subject of the statements made by the third party.” People v. Morgason, 311

Ill. App. 3d 1005, 1011 (2000). The decisions of this court interpreting the personal

knowledge requirement rest on unusuallydetailed legislative history.See People v. Hubbard,

276 Ill. App. 3d 98, 105 (1995) (“The origins of section 115-10.1 can be found in a 1977

Michigan Law Review article written by professor Michael H. Graham, then of the

University of Illinois.” (citing Michael H. Graham, Employing Inconsistent Statements for

Impeachment and as Substantive Evidence: A Critical Review and Proposed Amendments

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of Federal Rules of Evidence, 801(d)(1)(a), 613 and 607, 75 Mich. L. Rev. 1565 (1977)));

accord People v. Wilson, 302 Ill. App. 3d 499, 507-08 (1998) (“In the legislative debate,

lawmakers acknowledged that [section 115-10.1] had its genesis in that article.”).

¶ 40 Second, the State’s reading of the statute would keep the personal knowledge

requirement from doing what it was designed to do: ensure that the out-of-court statements

are trustworthy. The personal knowledge requirement is meant to ensure reliability by

“giving defendants a meaningful opportunityfor cross-examination.”McCarter, 385 Ill.App.

3d at 930. For a witness who “merely narrat[es] a third-party statement about which the

witness has no personal knowledge, cross-examination gives the jury no insight into the truth

of that statement, making it more difficult to judge its reliability.” Id. at 931. The requirement

provides an additional “indicia of reliability” because “a witness is less likely to repeat

another’s statement if he witnessed the event and knows the statement is untrue.” People v.

Morales, 281 Ill. App. 3d 695, 701 (1996) (citing Robert J. Steigmann, Prior Inconsistent

Statements as Substantive Evidence in Illinois, 72 Ill. B.J. 638 (1984)); Graham, supra, at

1585 n.53. Finally, while as a general matter there is a risk of “subtle influence, coercion, or

deception” in the process surrounding taking of a written or audiotaped statement, a witness

with personal knowledge of the event related can not only provide details of the recording

of his statement, but “is in a position to advise the trier of fact of what he now contends

actuallyoccurred.”Graham, supra, at 1588. The State’s proposed interpretation of the statute

would extend substantive admissibility to statements that carry none of these assurances of

reliability.

¶ 41 Third, the State’s interpretation of the statute would essentially render the personal

knowledge language superfluous, as “[p]ersonal knowledge of the existence of the statement

is already required under the rubric of authentication.” Michael H. Graham, Graham’s

Handbook of Illinois Evidence § 801.11 (10th ed. 2010); see Ill. R. Evid. 901(b)(1) (eff. Jan.

1, 2011) (“Testimony that a matter is what it is claimed to be” satisfies the authentication

requirement.). If we were to adopt the State’s proposed construction, we would not only

overturn decades of precedent and frustrate the purpose of carefully crafted statutory

language, we would deprive the personal knowledge requirement of any significance at all.

¶ 42 We conclude that the trial court erred in admitting those portions of Charles’s audiotaped

and written statements that describe what defendant said about the shooting. This includes

defendant’s account of the plan to go to Leona’s to rob Erika’s boss, his description of what

happened at Leona’s, his statements that he thought he shot somebody, and defendant’s

explanation that the pearl-handled gun was the one he used in the shooting. By contrast, the

trial court properly admitted portions of the statements that describe events within Charles’s

personal knowledge, including Charles’s observation of defendant’s appearance when he

arrived home late at night, his account of taking defendant to Mississippi and Florida, and

his view of defendant throwing pieces of a pearl-handled gun out of the car window.

¶ 43 The State contends that even if portions of Charles’s audiotaped and handwritten

statements were inadmissible as substantive evidence, they could be presented to the jury as

impeachment evidence. Although the jury in this case was allowed to consider these

statements as substantive evidence, whetherthe statements were admissible as impeachment

evidence may ultimately have an effect on our harmless error analysis. See People v.

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Morales, 281 Ill. App. 3d 695, 701 (1996) (finding that improper admission of prior written

statement as substantive evidence was harmless where statement was admissible as

impeachment evidence and the jury considered virtually the same evidence substantively

with the admission of witness’s grand jury testimony); see also McCarter, 385 Ill. App. 3d

at 930.

¶ 44 The State may attack the credibility of a witness, even its own witness, by impeaching

the witness with a prior inconsistent statement. People v. Cruz, 162 Ill. 2d 314, 358 (1994).

This is true even if the statement does not meet all the requirements of section 115-10.1. See

725 ILCS 5/115-10.1 (West 2008) (“Nothing in this Section shall render a prior inconsistent

statement inadmissible for purposes of impeachment because such statement *** fails to

meet the criteria set forth herein.”). There is an important limitation, however, when the State

impeaches its own witness with a prior inconsistent statement: the State must show that the

witness’s trial testimony affirmatively damaged its case. Cruz, 162 Ill. 2d at 360. The

testimonymust do more than merely disappoint the State by failing to incriminate defendant;

the testimony must give “positive aid” to the defendant’s case. Id.; McCarter, 385 Ill. App.

3d at 933 (noting that requirement would be satisfied where testimony is “inconsistent with

the defendant’s guilt under the State’s theory of the case”).

¶ 45 The State contends that a witness’s testimony may be considered damaging when a

witness professes a lack of memory regarding his prior testimony. We acknowledge that in

People v. Leonard the Third District Appellate Court found that “[w]hen a witness professes

a lack of memory regarding a prior statement, his testimony may be considered damaging.”

People v. Leonard, 391 Ill. App. 3d 926, 933 (2009) (citing People v. Speed, 315 Ill. App.

3d 511, 517 (2000)). We find no support for that conclusion in Speed, which only addressed

the “inconsistency” requirement in connection with the substantive admission of prior

statements, not the affirmative damage requirement for impeaching one’s own witness. See

Speed, 315 Ill. App. 3d at 517. We also find the statement from Leonard contrary to our

supreme court’s instruction that “ ‘[d]amage’ *** does not occur where a party interrogates

a witness about a fact which would be favorable to the examiner if true, but then receives a

reply which is merely negative in its effect on the examiner’s case.” Cruz, 162 Ill. 2d at 360;

see also Michael H. Graham, Graham’s Handbook of Illinois Evidence § 607.4 (10th ed.

2010) (“To the extent that People v. Leonard *** asserts that a professed lack of recollection

is to be considered affirmatively damaging with respect to impeachment of a witness called

by that party by means of a prior inconsistent statement not substantively admissible,

Leonard is completelywrong and must not be followed.”). We decline to adopt the statement

of law set forth in Leonard, and we conclude that a witness’s professed lack of memory,

standing alone, does not “affirmatively damage” a party’s case for the purpose of impeaching

one’s own witness.

¶ 46 The State offers one additional reason why Charles’s testimony damaged its case.

According to the State, Charles’s testimony was damaging because Charles claimed that he,

not defendant, killed Ebenezer. We recognize that testimony suggesting that another person

committed the crime may affirmatively damage the State’s case because the testimony is

“inconsistent with the defendant’s guilt under the State’s theory of the case.” McCarter, 385

Ill. App. 3d at 933; see also Cruz, 162 Ill. 2d at 362. In the present case, however, the record

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shows that Charles was not seriously confessing to killing Ebenezer; he was making every

attempt to avoid testifying against his nephew. (After claiming that he committed the murder,

the State asked Charles, “Is this a joke?” and he responded, “Evidently it is. I asked you to

let me go back to my cell.”) There is no suggestion in the record that defendant’s counsel

seriously pursued any argument that Charles was in any way involved in the shooting at

Leona’s. In fact, the State made use of Charles’s incredible statements, telling the jury, “I

guess we know who the real killer is in this case, because Charles Wilson said, I, I, I did it.

I guess we should just drop this case against Lorenzo.” The State also argued that the jury

should “forget the nonsense that [Charles] tried to interject in this trial.” Charles Wilson’s

throwaway comment that he killed Ebenezer did not affirmatively damage the State’s case.

¶ 47 We note that impeaching a witness with a prior inconsistent statement is only necessary

when there is a reason to attack the credibility of the witness. Where, as here, a party calls

a witness who offers no damaging testimony, there is no need to cast doubt on the witness’s

testimony by challenging his credibility. Cruz, 162 Ill. 2d at 362. The only reason for a party

to introduce a prior inconsistent statement in this circumstance “is to get it before the jury

as substantive evidence.” McCarter, 385 Ill. App. 3d at 933. Our supreme court has directed

just the opposite course, calling for “rigorous enforcement” of the affirmative damage

requirement in order to foreclose the “introduction of oral inconsistent statements under the

guise of impeachment.” Cruz, 162 Ill. 2d at 362. Charles Wilson’s prior inconsistent

statements were not admissible to impeach his credibility.

¶ 48 Remaining Portions of Charles Wilson’s Audiotaped and Written Statements

¶ 49 Although we have concluded that it was error to admit certain portions of Charles

Wilson’s written and audiotaped statements as substantive evidence, defendant additionally

claims that the audiotaped and written statements should not have been admitted–in their

entirety–because they were unnecessarily duplicative of Charles’s grand jury testimony.

Defendant argues, first, that the additional statements should have been barred by the rule

against prior consistent statements, and second, that the prejudicial effect of the additional

statements substantially outweighed their probative value because the statements were

cumulative. The parties again disagree about whether the error was properly preserved, but

we need not resolve that issue because we conclude that there was no error in admitting those

portions of the audiotaped and handwritten statements to which Charles Wilson had personal

knowledge.

¶ 50 Defendant’s contention that admission of multiple prior inconsistent statements from the

same witness violates the rule against prior consistent statements has been addressed at

length, and rejected, by this court. See People v. White, 2011 IL App (1st) 092852, ¶¶ 49-54;

People v. Santiago, 409 Ill. App. 3d 927, 931-34 (2011); People v. Maldonado, 398 Ill. App.

3d 401, 423 (2010); People v. Johnson, 385 Ill. App. 3d 585, 608 (2008). In this case,

defendant raises no new arguments, and we see no reason to depart from this court’s uniform

rejection of those arguments in these earlier cases.

¶ 51 Defendant also argues that the trial court abused its discretion in admitting more than one

prior inconsistent statement from Charles Wilson because once one prior statement was

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admitted, the additional statements had little probative value and were unnecessarily

cumulative. See People v. Culbreath, 343 Ill. App. 3d 998, 1004 (2003) (“[T]he exclusion

of cumulative evidence is within the discretion of the trial court, whose ruling will not be

reversed absent a clear abuse of that discretion.” (quoting Dillon v. Evanston Hospital, 199

Ill. 2d 483, 495 (2002))); see also Ill. R. Evid. 403 (eff. Jan. 1, 2011) (“Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice *** or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”). Because we have already found that certain portions

of the audiotaped and handwritten statements were inadmissible under section 115-10.1, we

consider this claim of error as to the remaining portions of these statements (i.e., those

portions that meet the statutory requirement of personal knowledge).

¶ 52 Defendant contends that after the first statement was admitted, the additional prior

statements were “cumulative” and unnecessary because they “add[ed] nothing to what was

already before the jury.” See People v. Ortiz, 235 Ill. 2d 319, 335 (2009). We disagree. In this

case, Charles repeatedly denied knowledge or memory of making his prior statements (or

alternatively claimed that he was under the influence of drugs when he gave the statements).

Once one prior statement was admitted, the jury had to assess that statement in light of

Charles’s claim at trial that he did not make it or was intoxicated at the time. The two

additional statements had probative value: the fact that Charles made additional statements

at different times to different officials further damaged his claims at trial that he did not make

the statements or was on drugs at the time. Cf. People v. Harvey, 366 Ill. App. 3d 910, 922

(2006) (disagreeing with the defendant’s claim that admission of additional prior inconsistent

statement was cumulative because the evidence “served two distinct purposes”: to impeach

the witness’s credibility and to serve as substantive evidence).

¶ 53 We cannot say that after one prior statement was admitted, confronting Charles with

additional prior statements added nothing to what was already before the jury. We conclude

that any repetition of the statements did not require their exclusion from evidence. Cf. People

v. Fields, 285 Ill. App. 3d 1020, 1028 (1996) (finding that even “unnecessary” repetition of

witness’s prior inconsistent statements did not rise to the level of prejudice). The trial court

did not abuse its discretion in admitting portions of Charles’s prior statements that met the

personal knowledge requirement of section 115-10.1.

¶ 54 Harmless Error

¶ 55 We have found error in the admission of those portions of Charles Wilson’s audiotaped

and handwritten statements describing what defendant told him about the shooting, including

defendant’s statements that he shot Ebenezer. This error only warrants reversal, however, if

we find that it is not harmless. An error is harmless “ ‘where there is no reasonable

probability that the jury would have acquitted the defendant absent the’ error.” (Emphasis

in original.) In re E.H., 224 Ill. 2d 172, 180 (2006) (quoting People v. Nevitt, 135 Ill. 2d 423,

447 (1990)).

¶ 56 The State contends that the error in admitting portions of Charles’s audiotaped and

handwritten statements is harmless because he made nearly verbatim statements in his sworn

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grand jury testimony, which was indisputably admissible under 725 ILCS 5/115-10.1(c)(1)

(West 2008). We agree. This court’s decision in People v. Harvey, 366 Ill. App. 3d 910

(2006), is instructive. In Harvey, the court found that portions of two witnesses’ prior written

statements, which contained the defendant’s confession that he shot someone and then fled

the scene, were improperly admitted because neither of the witnesses had personal

knowledge of the event. Harvey, 366 Ill. App. 3d at 921. The court found that the error was

harmless, however, “because the jury was permitted to consider substantively virtually

identical evidence contained in the recanting witnesses’ grand jury testimonies.” Id. at 921-

22. Here, as in Harvey, the jury was permitted to consider Charles’s grand jury testimony,

which contained all the portions of the audiotaped and handwritten statements that we have

found were not properly admitted. See id.; see also People v. Sims, 285 Ill. App. 3d 598, 610

(1996) (concluding that error in admitting evidence was harmless because it was cumulative

of properly admitted evidence); People v. Mulvey, 366 Ill. App. 3d 701, 714 (2006) (same).

¶ 57 Defendant nevertheless argues that the error is not harmless because the State commented

during closing arguments that Charles said the same thing in each of his prior statements.

According to defendant, the State’s argument hurt defense counsel’s theory that Charles

made the statements to avoid criminal charges. We note, first, that the State only made this

point in addition to arguing that it was unbelievable for Charles to have made up all the

details regarding the shooting in order to avoid liability; that it would be “absurd” for the

assistant State’s Attorney to put Charles on the stand if he was on drugs; and that Charles

testified to the grand jury almost a year after his charges were dismissed. The jury’s

conclusion that defendant shot Ebenezer also did not depend solely on Charles’s prior

inconsistent statements. The jury heard detailed testimony from Paris Gosha and Anthony

Macon regarding the specifics of what happened at Leona’s. Macon saw defendant with a

pearl-handled gun in the back of the car, and Gosha watched as defendant stood over

Ebenezer and shot him. Macon also testified that while the group was traveling away from

Leona’s after the shooting, defendant said that he thought he killed the man inside the

restaurant. Even if this testimony was somewhat weakened by evidence that Gosha took a

plea deal and Macon was not charged for his involvement, the testimony of Gosha and

Macon provided strong corroboration for defendant’s confession. The jury also heard

convincing circumstantial evidence of defendant’s guilt. Defendant left for Mississippi

immediately after the shooting, he threw parts of a pearl-handled gun out of the car window,

and the pearl handle that he kept was later found in Charles’s Mississippi home.

¶ 58 In light of all the evidence, we conclude that even without the improperly admitted

portions of Charles Wilson’s audiotaped and handwritten statements, there is no reasonable

probability that the jury would have acquitted defendant. The error in admitting these

statements is harmless and does not warrant reversal of defendant’s conviction.

¶ 59 Sentence for First Degree Murder Conviction

¶ 60 Finally, defendant argues that his 75-yearsentence for first degree murder was excessive

because the circuit court did not give adequate weight to mitigating factors, including

defendant’s age and his lack of criminal history. The trial court has “broad discretionary

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powers” in sentencing a defendant. People v. Jones, 168 Ill. 2d 367, 373 (1995). “Where the

sentence chosen by the trial court is within the statutory range permissible for the pertinent

criminal offense for which the defendant has been tried and charged, a reviewing court has

the power to disturb the sentence only if the trial court abused its discretion in the sentence

it imposed.” Id. at 373-74.

¶ 61 “In sentencing a defendant, a trial court must balance the retributive and rehabilitative

purposes of the punishment taking into account both the seriousness of the offense and the

objective of restoring the offender to useful citizenship.” People v. Cooper, 283 Ill. App. 3d

86, 95 (1996) (citing People v. Hernandez, 278 Ill. App. 3d 545, 555 (1996)); Ill. Const.

1970, art. I, § 11. The trial court may appropriately consider the defendant’s credibility,

demeanor, general moral character, mentality, social environment, habits, and age when

sentencing a defendant. People v. Fern, 189 Ill. 2d 48, 53 (1999). The court may also

consider the nature of the crime, protection of the public, deterrence, and punishment. People

v. Jackson, 357 Ill. App. 3d 313, 329 (2005). “It has been emphasized that the trial court is

in a superior position to assess the credibility of the witnesses and to weigh the evidence

presented at the sentencing hearing.” Jones, 168 Ill. 2d at 373.

¶ 62 In this case, the sentence imposed by the court was within the statutory range. The

sentencing range for first degree murder is 20 to 60 years. 730 ILCS 5/5-8-1(a)(1)(a) (West

2008) (now 730 ILCS 5/5-4.5-20(a) (West 2010)). But because the jury found that defendant

personally discharged a firearm that proximately caused Ebenezer’s death, the court

sentenced defendant pursuant to section 5-8-1(a)(1)(d)(iii) of the Unified Code of

Corrections (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2008)), which provides that 25 years up

to a term of natural life “shall be added” to the sentence. The court therefore concluded that

defendant could be sentenced to anywhere from 45 years to life and sentenced defendant to

75 years.

¶ 63 Before sentencing defendant, the court considered arguments from counsel, defendant’s

statement in allocution, and a victim impact statement from Ebenezer’s fiancée. The court

then reviewed evidence in mitigation and aggravation. As to mitigation, the court commented

that defendant had no criminal history, was a high school graduate, and had been accepted

into college. Although the court appreciated defendant’s apology to the victim’s family and

request for forgiveness, the court found that defendant’s statement that someone else may

have shot the victim was “not supported by the evidence” and would affect “the weight to

be given to his statement in allocution.” While defendant contends that the court failed to

consider his age as a mitigating factor, the trial judge reviewed the presentence investigation

report containing defendant’s age and heard defense counsel compare defendant’s age upon

release under various sentences. In any event, where “defendant offers no evidence, aside

from the sentence itself, that the trial court failed to consider the mitigating evidence, we may

assume that the trial court properly considered it.” People v. Jones, 376 Ill. App. 3d 372,

393 (2007).

¶ 64 The court balanced the mitigating factors against the seriousness of the crime, which the

court characterized as “senseless and just horrific,” noting that “it didn’t take a whole lot

from what the evidence shows, to prompt [defendant] to do what he did.” As to the nature

of the crime, the court stated that it had nothing to add to the victim impact statement, which

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was the most “profound and articulate *** [the court] had ever heard.”

¶ 65 Defendant contends that the trial court did not give enough weight to factors in

mitigation. The record shows that the court thoroughly considered the mitigating and

aggravating factors in determining defendant’s sentence. After presiding over the trial and

considering the evidence presented at the sentencing hearing, the trial court, in its

considerable discretion, found that a sentence somewhere in the middle of the statutoryrange

was appropriate. It is not the province of this court to reweigh the sentencing factors, and we

may not substitute our judgment for that of the trial court merely because we may have

weighed the sentencing factors differently. People v. Streit, 142 Ill. 2d 13, 19 (1991); People

v. Coleman, 166 Ill. 2d 247, 261-62 (1995). The trial court did not abuse its discretion in

imposing the sentence.

¶ 66 Correction to the Mittimus

¶ 67 The parties agree that the mittimus does not correctly reflect the number of days he was

incarcerated prior to his sentencing. Defendant was arrested on June 13, 2007, and remained

in custody until he was sentenced on March 31, 2010. Defendant was thus incarcerated for

1,022 days, not 941 as the mittimus reflects, prior to his sentencing. See People v. Williams,

239 Ill. 2d 503, 504 (2011). Accordingly, we instruct the clerk of the circuit court to correct

the mittimus to reflect a total of 1,022 days of sentencing credit.

¶ 68 CONCLUSION

¶ 69 For all the foregoing reasons, we affirm defendant’s conviction and sentence and direct

the clerk of the circuit court to correct the mittimus.

¶ 70 Affirmed and remanded with directions.

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