## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. L ORENZ O WI L SON, Def endant- Appellant.

District & N o. First District, F ifth Division Docke t No. 1-10-1038

Filed Marc h 16, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In a prosec ution for first degree murder and arme d robber y , the admission of audiotaped and handwritten statements describing what defe ndant told

a witness about the crimes was err or under section 115-10.1 of the Code of Criminal Procedur e beca use the witness did not have persona l knowledg e of the events described, but the error was harmless and did not

war rant reve rsal of defe ndant’s convictions wher e there wa s n o

rea sonable probability the jury would have found defe ndant not guilty if
t h e evidenc e had been excluded, and, further more, defe ndant’s 75-year senten ce wa s aff

irmed over his claim that the trial court failed to g ive adequate weight to the mitigating fac tors of his ag e and lack of a criminal history ; howeve r, the cause was rema nded for corr ection of the mitti mus to ref lect the corr ect sentenc ing cre dit for defe ndant’s prese ntence incar cer ation.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 07-CR-14511 (03); the Hon. L awr ence P. Fox, J udg e, pre siding.

J udg ment Affir med and r emande d with directions.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, Be njamin Over by
, and Katherine M. Donahoe
, all of State Appel l ate Def ender ’s Offic e, of Chicag o, for appellant.

An it a M

. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, T a s h a

Marie Kelly
, and J anet C. Mahoney
, Assistant State’s Attorney s , of counsel), f

or the People.

Panel PRES IDI NG J USTI CE EPSTEI

N delivere d the judgme nt of the court, with opinion.
J ustices J

. Gordon and McB ride concur red in the judgme nt and opinion.

OP INION

¶ 1 Followinga jury trial, defe ndant L orenzo Wil son was convic ted of fir st degreemurder and arme d robber

y

. On appea l, defe ndant argues that the trial court improperly admitted, as subs t anti ve evidenc e, audiotaped and handwritten statements from State witness Charles Wil son. Def

endant also argues that the trial court abused its discretion by imposing a 75-year sentenc e for the first degree murder conviction and that the mitti mus should be corr ecte d to ref l ect additional sentenc ing cre dit. For the rea sons that follow, we aff irm defe ndant’s conviction and sentenc e, with direc tions to the cler k of the circ uit cou rt t o corr ect the mitti mus.

¶ 2 BA CKGROUND ¶ 3 I n t h e early morning of J une 15, 2006, Corey Ebene zer was shot and kil led at L eona’ s Restaura nt in Hyde Park. Erika Ray and L orenzo Wil son wer e later charg ed with first degree murder a nd arme d robber

y and we re trie d in a sing le trial with separ ate jurie s.

¶ 4 Testimony From Leona’s Employ ees ¶ 5 At trial, the jury hear d testimony

from Just in Twine, L

ucio Mastac he, and Jason Sline, who worke d with Erika at L eona’ s Restaura nt. On the evening o f J u n e 14, 2006, a larg e group ca me into L eona’ s and sat down to orde r food. Tw ine, who wa s workingas a server that night, testified that there wer e ab o u t 3 0 people in the party

. Erika wanted to serve the entire g roup, but Corey Ebene zer, an assistant manag er, told Erika that she could not handle the table alone. When E rika insisted that she serve the entire party , Ebene zer told he r to g o home. Erika r efuse d and proc eede d to serve the table. ¶ 6 Ebene zer called district manag er Au gu s t i n Monnare z and informed him that he aske d Erika to g o home but she ref used. J ason Sline, a manag er, then rec eived a call asking him to

-2-g o to the re s t au ra n t

. Ar ound 9 or 9:30 p.m., Sline arrived at L eona’ s and discussed what

happene d with Ebenezer, E rika, a nd the s erve rs. S line then t old Erika that she would have
to w ork at a diffe rent location of L eona’ s Restaurant. When Erika declined the offe r, Sline fired her. Erika told Sline that she understood and then sai d
, “B u t f* * * you Corey
, Corey
, f*** you” and le ft the re staurant. ¶ 7 Around midnight, Mastache and Twine wer e still at L eona’ s. The restaur ant was closed. As Mastache was clea

ning the kitchen, he saw three unknown men hit Ebene zer in a small kitchen h al l wa y near the cash reg isters at the private back entra nce of the restaur ant. Mastache t h en hear d three gunshots. Mastache went to the front of the restaur ant to find Twine, and when they returne d to the kitchen, Ebene zer was lying next to a cash draw er on the floor. Ebene zer told Twine that he “just g ot g anked,” which meant he had been robbed. Ebene zer later die d from his injuries.

¶ 8 Paris Gosha ¶ 9 Paris Gosha is Erika’ s cousin and had been L orenzo’s fr i en d s i nce childhood. Gosha testified that he also was charg ed with the murder and arme d robber y of Corey Ebene zer. In exchang e for the State’s agree ment to drop the murd er charg es, Gosha agree d to testify
ag ainst Erika and L orenzo and plead guilty t o t h e arme d robber y charg e. Gosha would

rec eive a 30-year sentenc e (but understood that he would only serve half of it) and would be place d in a witness protec tion program. At the time of his tes t i m o n y , Go s h a was in the witness protec tion program in the Cook County jail, wher e he rec eived various privileg es, including a

$35 wee kly

pay ment. ¶ 10 On the night o f J une 14, 2006, Gosha went to see friends at 54th and Peoria. L orenzo

came into the house and to l d h i m t h at 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 young er brother, Demetrius (or “DJ”), and a friend named Anthony Macon to g o with Erika and L orenzo. Erika drove L orenzo, Gosha, Macon, and DJ to L eona’ s and parke d the car

. As they waited, a man with a J amaica n acc ent approa ched the

car three times and spoke with Erika about g oing into the restaur ant. At one point, when the
group was rea dy to enter the restaurant, the man told them to g et back in the car

. Gosha hear d the man say

that some people inside the r estaura nt with Ebenezer might help him fight. ¶ 11 After abou t t wo hours, L orenzo, Gosha, Macon, and DJ enter ed the back entra nce of L eona’ s. L orenzo pointed a pistol at Ebene zer’s fac e, an d Gosha “grabbe d some money” fr o m the cash reg ister. L orenzo and Ebene zer beg an to strug g le and a shot was fired. T h e

men continued to wre stle until Macon came through the door and tried to brea k up the fight. Ebene zer slipped on the floor. L orenzo then stood over him and shot him. The four men fled to Erika’s c ar. ¶ 12 T h e n ex t day
, Gosha met with L orenzo, Macon, and DJ at Gosha’s house, wher e t h ey watche d news coverag e about the shooting. Gosha did not see L orenzo afte r that day

. When Gosha first talked to police in A ugust 2006, he told them he did not know any thing. Gosha admitted his involvement in J une 2007, afte r Macon had spoken to police about the incident.

-3-¶ 13 Anthony Mac on

¶ 14 Anthony Macon testified that he was at 54th and Halsted on J une 14, 2006. Erika pulled
up in her car , and Gosha and L orenzo went to talk to her. Gosha and L orenzo told Macon to “c o me on,” and he g ot in the car with them. L orenzo told Macon that they wer e g o i n g t o L eona’ s beca

use “some guy go t her fired and they wanted to beat him up.” Macon did not hear Erik a s ay t hat they should rob the man. As Erika drove to the restaur ant, Macon saw L orenzo, who was seate d next to h i m i n t h e backse at, holding a small gun with a pearl handle. ¶ 15 After Erika parke d her car , a man with an acc ent came and spoke to her. When he spoke with Erika a second time, she moved her car down the street and parke d beca use it was time for the men to g o inside. Erika told the group that the back door woul d b e o p en

. M acon heade d to the front entra

nce while the ot hers went to the back e ntranc e. Mac on then heard
two gunshots coming from inside and heade d to the back door. There
, he s aw L orenzo, Gosha, DJ, and a man f

ighting . Macon trie d to pull Gosha out of the strug g le. ¶ 16 The g roup returne d to Eri k a’s car

. Gosha g ot into the trunk while the others g ot in the backse at. Macon then hear d Wil son say that he thought he killed the man inside the
restaur ant. The group re turned to Gosha’ s house and met a g ain there the next day

. ¶ 17 Macon told police in J uly 2006 that he did not know Gosha or L orenzo and did not know
any thing about the shooting. Two wee ks later, Macon told detec tives about the incident. Macon testified that he could not reme mber if, during a J anuar y 2007 interview with police, h e stated that he did not know if L orenzo had a gun until he g ot back in the car afte r th e shooting. Macon explained that a fter g iving the statements, he was never charg ed with a ny crime. Macon testified that neither the police nor the State’s Attorney promised that Macon would not be cha

rg ed if he g ave a

specific statement or testified a cer tain way

.

¶ 18 Charles W ilson ¶ 19 Charles Wilson, the grea t-uncle of L orenzo Wil son, testified for the State. Charles ha d lived in Gulfport, Mississ ippi, b u t he was curr ently in fede ral prison for a gun possession conviction in an unrelated case

. Charles initially testified that he did not see his great-nephe w in the courtroom, but afte r L orenzo stood up, Ch ar l es acknow ledg ed that L orenzo was his
great-nephe w. When asked if he was in Chica g o in June 2006, Charles testified that he did
not rec all and then indicated that he would “ plead the F ifth.” The State a sked for a sideba r and indicated that it would g rant use immunit y to Charles in exchang e for his testimony

. The court signed a f

orm adjudg ing Cha

rles a material witness a

nd ordering him to testify

. ¶ 20 Outside the pre sence of the jury , the court told Charles that he could not ple ad the fifth amendment and that he would fac e contempt charg es if he did not testify

. Charles responde d that he woul d t ak e th e p unishment. The State then informed the court that it wished to confro nt Ch a

rles with three prior inconsistent statements. The State argued that all these prior
statements wer e admissible under two statutes: the “re gular prior inconsistent statement statute” (725 I L CS 5/115-10.1 (West 2008) ) and the statute covering a dmissibi lity of prior
statements when a witness ref uses to testify despite a court order (7 2 5 I L CS 5/115-10.2 (W es t 2 008)). Counsel for L orenzo objected to the statements’ admissibili ty under bot h

-4-statutes, but the court found them admissible as prior inconsistent statements under section

115-10.1. ¶ 21 After the jury returne d, the State asked Charles about his prior statements: an audiotape d
statement he g ave to Serg eant Schlicht of the Gulfport police depar tment in Mississ ippi on Dec ember 6, 2006; a signe d handwritten statement Charles g ave to Detec tive Lutzow of the Chicag o police department and Assistant State’s Att orney Martha Kross on Dec ember 19, 2006; and Charles’s testimony befor e a grand jury on May 24, 2007. Charles stated either that he did not rec all making the statements, he did not know if he m ad e t hem, or he was “high on drug s” when he made the statements. At one point, Charles also testified that he did not make the state ments and he w as the one who shot Ebenezer

. ¶ 22 The State confr onted Charles with his three prior statements, which all provided a simil ar

acc ount of his i n t er actions with L orenzo. On the evening of J une 14, 2006, Charles was visiti ng L oren z o ’s mother at her house in Chicag o. L orenzo returne d home very late that night and was not acting like himself. Charles asked him wh at was wrong

. L orenzo responde d, “I think I shot somebody .” Charles asked if he had killed the person, but L orenzo responde d that he did not know. Charles told L orenzo to tell his fathe r. The next day
, Charles lear ned that L orenzo had not told his father what had ha ppened, so Charles told him. ¶ 23 L ater that day
, Charles heard L orenzo tell his fathe r additional details about the shooting. L orenzo stated that the g irl who lived across the s t re et h ad gotten fired and “she wanted L orenzo and some other guy s who hang out with the g irl to g o to the restaur ant wher e the g irl worke d and stick up the person who fired her.” L orenzo told Charles that “they wer e g oing
to go i n th er e, stick up the person who fired her, and take the money .” At the restaur ant, L orenzo pointed a gun at the man, who rushed at h i m

. L orenzo said that he then started shooting. L ater

that day , news c ame on tele vision about the shooting at L eona’ s, including a picture of the man who was shot. L orenzo said that he ha d shot the man in the picture. ¶ 24 L o re n z o ’s p arents asked Charles to take L orenzo to Charles’s home in Missi s s i p p i

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

see them g o. As they wer e driving to Mississ ippi, Charles asked L orenzo wher e the gun was. L orenzo pulled a rag out of his pocket and showed Charles the dismantled gun. L orenzo said that the gun was the one he used to shoot the man in the restaur ant. Charles told him t o g et rid of the gun, and L orenzo started to throw parts of it out the window. Charles told him to stop, h o we v er , beca

use he thought the handle, spring
, and clip would fit one of his other
guns. L orenzo stayed with Charles in Mississ ippi 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 reg arding Charles’s gr and jury testimony
, which he rea d in its entirety to the jury

. Next, Assistant State’s Attorney Martha Kross testified as to Charles’s handwr itten statement, which contained simil ar information to the grand jury testimony

. The State then called Serg eant Schlicht of the Gulfport, Mississ ippi, police depar tment. Schlicht explained that in November 2006, Charles W ilson was brought into the police depar tment

on wea pons charg es. S chlicht re ceive d information that Charles w anted to spea k with him
reg ard i n g a homicide in Chicag o. On Dec ember 6, 2006, Schlicht took a 10-minute audio

-5-rec ordingof Charle s’s statement. The rec ordingwas played for the jury

. ¶ 26 The S tate also asked Charles about documents draf ted by the Gulfport police in which Charles consente d to a sear ch of his truck and a sear ch fo r gun parts in his home. Charles

s t at ed that he kept a plastic box of various gun parts in his home and that he v agu el y

reme mbere d g oing with the Gulfport police to his home and showing them wher e the handle, spring
, and clip wer e. When the State showed Charles a handle to the gun, he stated he did not know what it was a

nd he did not rec ognize it. ¶ 27 The jury also heard testimony from Serg eant Schlicht and Detec tive Brian Lutzow of the Chicag o police depar

tment reg arding re co v ery of gun parts at Charles’s residenc e and the

arr est of L orenzo Wil son. Charles consented to a search of his h o m e, du ri n g which poli ce

rec overe d a gun handle, clip, and coil spring

. Charles told police that the gun parts belong ed
to L orenzo and we re p ar t of the gun L orenzo had in the car on the trip from Chicag o to Mississ ippi. Detec tive Lutzl ow testified that he rec eive d the inventoried gun parts. L ater , based on information rec eived from Charles, L orenzo was arr ested and transporte d back to Chicag o.

¶ 28 Verdict and Sente ncing ¶ 29 T h e S tate rested, and the court denied defe ndant’s moti o n fo r a d i re ct ed v er d i ct

. Def endant then rested. The jury found defe ndant guilty of first degree murder and arme d robber y and found that defe ndant personally discharg ed a firea rm that proxi mately ca u sed the death of Corey Ebene zer. The court sentenc ed defe ndant to 75 year s fo r fi rst degree murder a nd 20 year s for arme d robber y , with the sentenc es to be ser ved conc urre ntly . This
appea l followed.

¶ 30 ANALYSI S ¶ 31 Def

endant raises a number of arguments as to why the trial court erre d i n admitting Charles W ilson’s prior inconsist ent s tatements. At the out set, we note that defe n d ant does not contest the S tate’s presentation of Charles’s sworn grand jury testimony . All claims of

err or ar e limited to the admission of the audiotaped a nd handwritten statements.

¶ 32 Charles W

ilson’s Statements Desc ribing Defendant’s Acc ount of the Shooting ¶ 33 De fe n d an t fi rs t co n t en d s that the portions of Charles Wil son’s au d i o t ap ed an d handwr itten statements that describe what defe ndant told him about the shooting should not have been admitted as substantive evidenc e under section 115-10.1 of the Code of Criminal P ro ce du re of 1963 (725 I L CS 5/115-10.1 (West 2008)). In eac h prior statement, Charles

rec ounted defe ndant’s description of the shooting, including his statement just afte r the shooting, “I think I shot somebody .” Def endant argues that Charles did not have persona l knowledg e of the events de fenda nt describe d, as re quired by the statute. ¶ 34 Be fore we addre ss the claim of err or, we consider whether defe ndant forf eited revie w of this issue. To pres erv e an i s s ue for revie w, a defe ndant must object both at trial and in a written posttrial motion. People v. Enoch
, 122 I ll. 2d 176, 186 (1988). A g ener al objection

-6-is g ener ally not enough to prese rve an issue for revie w, and “[o] bjections to evidenc e should

espec ially designate the particula r testimony considere d obj ectionable and point to the objectionable features.” People v. Grave s , 142 I ll. App. 3d 885, 894 (1986); see People v. Pastorino
, 91 I ll. 2d 178, 192 (1982). The State contends that defe ndant forf eited the issue beca use defe nse counsel only made a “g ener al objection” without raising an argume nt specific to the persona l knowledg e re quirement. ¶ 35 After Charles testified that he did not rec all his prior statements, the State argued that his
statements should be admitted first under section 115-10.1 (725 I L C S 5/115-10.1 (West 2008)), the “re gular prior inconsistent statement statute.” The State went on to argue that Charles’s statements wer e also admissible und er s ec t i on 115-10.2 (725 I L CS 5/115-10.2 (West 2008)), wh i ch g overns admissibili ty of prior statements when a witness ref uses to test i fy d es p ite a court order

. Def ense counsel first addre ssed s ection 115-10.2 and argued, inter alia
, that if the court admitted any prior statements, it should limit a dmission to those “in which the witness, Charles Wil son, has persona l knowl ed ge as opposed to statements made by L orenzo Wil son, describing other events.” Def ense counsel then turned to section 115-10.1 and beg an by arg uing that the S tate h ad not yet established lack of memory

. The trial court interjec ted, finding that beca use Charles testified that he did not reme mber being in Chicag o or driving his g reat-nephe w to Mississ ippi, th e “l ack of memory” require ment

was s at isfied for “all the statements” in the “[g]rand jury testimony
, written statement, [audio] taped statement.” The court co n cluded that Charles’s answe rs reg arding lack of
memory “open[ed] t h e d o o r for the [S ]t ate to offe r those statement as prior inconsistent statements under

*** 115-10.1.” ¶ 36 In a posttrial motion, de fense counsel argued that the trial court “er red in a dmitti ngthe prior statements of Charles Wil son” beca use, inter alia
, “the statements did not have cer tain circ umstantial guara

ntees of trustworthiness.” In considering this argument at t he hearing
, the trial court ref

ere nced section 115-10.1 and found that all of Charles’s prior inconsistent statements “describe[d] events or conditions wh i ch he had persona l knowledg e of.” In the trial court’s view, Charles had persona l knowledg e of “driving the defe ndant all the way down to Mississ ippi, having conver sations with him on the way , observing events that

occur red shortly afte r t he crime was c ommitt ed, and thing s that wer e said and done at t hat time.” ¶ 37 Ba sed on the fore g oing, we conclude that defe ndant prese rved the claim of err or. Def ense counsel specifie d the objectio nable testimony (“state ments made by L orenzo Wil son, describing other events” ) and explained why those statements wer e objectionable (they wer e

n o t wi th i n C harle s’s persona l knowledg e). See Grave s , 142 I ll. App. 3d at 894. Counsel

rene wed the objection in the posttr i al motion, and the trial court specific ally found that Ch a rle s’s prior inconsistent statements wer e admissible a s s u b s ta nti v e e v id e n c e u

n d e r s e c ti o n 115-10.1 beca

use he had persona l knowledg e of “thing s that wer e said and done at the time.” As a result, if we find error, we will c onsider whether the err or is ha rmless. See In re E.H.
, 224 I ll. 2d 172, 180 (2006) (evide ntiary error is harmless “ ‘whe re there is no reasonable probabilit

y that the jury would have acquitted the defe ndant absent the’ err or” (empha sis in orig inal) (quoting People v . Nevitt , 135 I ll. 2d 423, 447 (1990))). ¶ 38 We now turn to the admissibili ty of t h e p o rt i o n s of Charles’s prior audiotaped a nd

-7-handwr itten statements that rec ount d efendant’s statements about the shooting. The

admission of evidenc e lies within the discretion of the t rial court, and we revie w the trial court’s decision to admit evidenc e for an abuse of discre tion. People v . Bec ker , 239 I ll. 2d 215, 234 (2010). The g ener al rule is that hear say , define d as “an out-of-c ourt statement *** offe red to prove the truth of the matter asser ted,” is inadmissible at trial. (Interna l quotation marks omitted.) People v. Gonzalez
, 379 I ll. App. 3d 941, 954 (2008). There is an exception
to the hear say rule for prio r i n co n s istent statements of a testifying witness, which may be admitted to impeach the witness’s cre dibilit y

. People v. McCarter
, 385 I ll. App. 3d 919, 932 (2008). Under sectio n 1 15-10.1, a prior inconsistent statement may be offe red not just for purposes of impeachme nt, but as subs tantive evidence, so longas the witness is subject t o

cross-e x amination and the state ment: “(1) was made under oath at a trial, he aring , or other procee ding, or (2) narr ates, descri b es, or explains an event or condition of which the witness had
persona l knowledg e, and (A) the statement is proved to have bee n written or signed by the witness, or (B ) the witness acknowledg ed under oath t he making of the s tatement either in his testimony at the hearing or trial in which the admission into evidenc e of the prior statement is beingsoug ht, or at a tria l, hearing, or other proc eeding , or (C) the statement is proved to have been acc urate ly rec orded by a tape rec order
, videotape rec ording
, or any other simil ar elec tronic means of sound rec ording .” 725 I L CS 5/ 115-10.1(c ) (West 2008). Def en d an t argues that portions of Charles’s audiotaped and handwritten statements are inadmissible under section 115-10.1(c )(2) beca use the statute requires that Charles had “per sonal knowledg e” of the “eve nt” described in the statements, i.e. , the shooting. The State
counter s that the “eve nt” in question is defe ndant’s act of verba l ad m i s sion, and thus the
persona l knowledg e require ment is satisfied beca use Charles had persona l knowledg e of any of defe ndant’s statements to him. We decline to adopt the State’s interpre tation of the
persona l knowledg e re quirement for three rea sons. ¶ 39 First, as the State acknow ledg es, this court has previously conclude d that, under the plain languag e of section 115-10.1(c )(2)
, “the witness whose prior inconsistent statement is being offe red into evidenc e must actua lly have seen the events which are the subject o f t h [e] statement.” (Interna l quotation mar ks omitted.) McCarter
, 385 I ll. App. 3d at 930 (quoting People v. Cooper
, 188 I ll. App. 3d 971, 973 (1989)) ; People v. Morales
, 281 I ll

. Ap p

. 3d 695, 701 (1996). This means that section 115-10.1(c )(2) does not encompa ss “stateme nts made to the witness by a third party , wher e the witness has no firsthand knowledg e of the
event that is the subject of the statements made by the third party .” People v. Morgason
, 311 I ll. App. 3d 1005, 1011 (2000). The decisions of this court i nterpre ting the persona l knowledg e require ment rest on unusually detailed leg is la ti v e h is to r y

. See People v. Hubbard
, 276 I ll. App. 3d 98, 105 (1995) (“The orig ins of section 115-10.1 can be found in a 1 9 77 Michig an L aw Review article written by pro fessor Michae l H. Gra ham, then of the University

of I llinois .” (c iting Micha el H. Gr aham, Employing Inc onsistent Statements for Impe achme nt and as Substantive Evidence: A Criti cal Review and Proposed Amendments

-8-of Fede ral Rules of Evidenc e, 801(d) ( 1) ( a)

, 613 and 607 , 75 Mich. L . Rev. 1565 (1977)) );

acc ord People v. W

ilso n , 3 0 2 I l l. App. 3d 499, 507-08 (1998) (“I n the leg islative debate
, lawmake rs ac knowledg ed that [section 115-10.1] had its ge nesis in that article.” ). ¶ 40 S ec o n d
, t h e State’s rea ding of the statute would keep t h e p er s o n al kn o wl ed ge require ment from doing what it was designed to do: ensure that the out-of-c ourt statements

are trustworthy

. The persona l knowledg e require ment is meant to ensure reliability by

“ g iving defe ndants a meaning ful opportunity for cro s s

- e xa min a ti o n

. ” M c Ca r ter , 3 8 5 I ll

. A

p p

. 3d at 93 0

. Fo r a wi tness who “mer ely narr at[es] a third-par ty statement about which the witness has no persona l knowledg e, cross-e x amination g ives the jury no insight into the truth of that statement, making it more difficult to judge its reliability .” Id. at 931. The require ment provides an additional “indicia of reliability” beca use “a witness i s l es s l i k ely to repe at another ’s statement if he witnessed the event and knows the statement is untrue.” People v. Morales
, 2 8 1 I ll. App. 3d 695, 701 (1996) (citing Robert J

. Steigmann, Prior Inconsistent Statements as Substantive Evidenc e in Illinois
, 72 I ll. B.J

. 6 3 8 (1 9 84)); Graham, supra , at 1585 n.53. Finally
, while as a g ener al matter there is a risk of “subtle influence
, coercion, or deception” in the proce ss surrounding taking of a written or audiotaped statement, a witness with persona l knowledg e of the event related can not only provide details of the recording

o f his statement, but “is in a position to advise the trier of fac t of what h e n o w co n t en d s actua lly occur

red.” Gra ham, supra , at 1588. The State’s proposed interpre tat io n of the statute would extend substantive admissibili ty to statements that car ry none of these assura

nces of reliability

. ¶ 41 T h i rd
, t he State’s interpre tation of the statute would essentially rende r the p er s o n al knowledg e languag e superf luous, as “[p] ersona l knowledg e of the exis tence of the statement is alre ady require d under the rubric of authentication.” Michae l H. Gra h am , Gra ham’s Handbook of I llinois Evidence § 801.11 (10th ed. 2010); see I ll. R. Evid. 901(b)( 1) (ef f. J an. 1
, 2011) (“Te stimony that a matter is what it is claimed to be” satisfies the authent i ca t i o n require ment. ). I f we were to adopt the State’s proposed construction, we would not only
overturn deca des of prec edent and frustrate the purpose of car efully cra fted statutory languag e, we would deprive the persona l knowledg e require ment of any signific ance at all. ¶ 42 We conclude that the trial court err ed in admitting those portions of Charles’s a udiotaped and wr itten statements that describe what de fenda nt said about the shooting. This includes defe ndant’s acc ount of the plan to g o to L eona’ s to rob Erika’ s boss, his description of what h ap pened at L eona’ s, his statements that he thought he shot somebody
, and defe ndant’s explanation that the pearl-handled gun was the one he used in the shooting. By contra st, the trial court properly admitted portions of the statements that describe events within Charles’s
persona l knowled ge, including Charles’s observa tion of defe ndant’s appea ranc e when he

arrived hom e late at night, his acc ount of t aking defe ndant t o Mississ ippi and Florida, and his view of def

endant throw ing pie ces of a pea rl-handle d gun out of the ca r window. ¶ 43 The State contends that even if portions o f C h ar l es ’s au d i o t ap ed an dhandwr itten
statements wer e inadmissible as substantive evidenc e, they could be prese nted to the jury as impeachme nt evidenc e. Although the jury in this case was allowed to consider these
statements as substantive evidenc e, whether the statements wer e admissible as impeachme nt evidenc e m ay ultimately have an eff ect on our harmless error analy sis. See People v.

-9-Morales
, 281 I ll. App. 3d 695, 701 (1996) (finding that improper admission of prior written

statement as substantive evidenc e wa s h armless wher e statement was admissible as impeachme nt evidenc e and the jury considere d virtually the same evidenc e substantively with the admission of witness’s grand jury testimony ); see also McCarter
, 385 I ll. App. 3d at 930. ¶ 44 The S tate may attack the cre dibilit y of a witness, even its own witness, by impe aching the witness with a prior inconsistent statement. People v. Cruz
, 162 I ll. 2d 314, 358 (1994). This is true even if the statement does not meet all the require ments of section 115-10.1. See 725 I L CS 5/115-10.1 (West 2008) (“N othing in this Section shall rende r a prior inconsistent
statement inadm i s s i b l e for purposes of impeachme nt beca use such statement *** fails to meet the criteria set forth here in.”). There is an important limit ation, howeve r, when the State impeache s its own witness with a prior inconsistent statement: the State must show that the witness’s trial testimony aff irmatively damag ed its case

. Cruz
, 162 I ll. 2d at 360. The testimony must do more than mere ly disappoint the State by failing to incriminate defe ndant; the testimony must g ive “positive aid” to the defe ndant’s case

. Id. ; McCarter
, 385 I ll. App. 3d at 933 (noting that require ment would be satisfied wher e testimony is “inconsistent with the def endant’ s guilt under the State’s theor y of the c ase” ). ¶ 45 T he State contends that a witness’s testimony may be considere d dama gi n g wh en a witness profe sses a lack of memory reg arding his prior testimony

. We acknow ledg e that in People v. Leonard the Third District Appellate Court found that “[w]hen a witness profe sses

a lack of memory reg arding a prior statement, his testimony may be considere d damag ing.” People v. Leonard
, 391 I ll. App. 3d 926, 933 (2009) (citing People v. Speed
, 315 I ll. App. 3d 511, 517 (2000))

. We find no support for that conclusion in Speed
, which only addre ssed the “inconsistency” re qu i re m ent in connec tion with the substantive admission of prior statements, not the aff

irmative damag e require ment for impeaching one’s own witness. See Speed
, 315 I ll. App. 3d at 517. We also find the statement from Leon a rd co n t ra ry to our supreme court’s instruction that “ ‘[d] amag e’ *** does not occur wher e a party interrog ates

a witness about a fac t which would be favor able to the examiner if true, but the n rec eives a reply which is mere ly neg ative in its eff ect on the examiner’s case .” Cruz
, 162 I ll. 2d at 360;

see also Michae l H. Gra

h am, Gra ham’s Handbook of I llinois Evidence § 607.4 (10th ed. 2010) (“To the extent that People v. Leonard *** asser ts that a profe ssed lack of rec ollection is to be considere d aff

irmatively damag ing with respe ct to impeachme nt of a witness called b y t h at party by means of a prior inconsistent statement not substantively admissible, Leonard is completely wrong and must not be followed.” ). We decline to adopt the statement

o f law set forth in Leonard
, and we conclude that a witness’s profe ssed lack of memory , standing alone, does not “af firmatively damag e” a party ’s case for the purpose of impeaching one’s own w itness. ¶ 46 T h e S tate offe rs one additional rea son why Charles’s testimo n y d am age d i t s ca s e. Acc ording to the State, Charles’s testimony was damag ing beca use Charles claimed that he,
not defe ndant, killed Ebene zer. We rec ognize that testimony sug g esting that another person committed the crime m ay af firmatively damag e the State’s case beca use the testimony is “inconsistent with the defe ndant’s guilt under the State’s theory of the case .” McCarter
, 385 I ll. App. 3d at 933; see also Cruz
, 162 I ll. 2d at 362. In the prese nt case , howeve r, the rec ord

-10-shows that Charles wa s not seriously confe ssing to killing Ebene zer; he wa s makingever y attempt to avoid testifying ag ainst his n ephew

. (Afte r claiming that he committed the murder, the State aske d Charles, “ I s this a joke? ” and he responde d, “Evidently it is. Iasked you to let me g o back to my cell.”) There is no sug g estion in the re co rd t h at defe ndant’s counsel seri o usly pursued any argument that Charles was in any way involved in the shooting at L eona’ s. In fac t, the State made use of Charles ’s i n cr ed ible statements, telling the jury
, “I guess we know who the rea l killer is in this c ase, beca use Charles Wil son said, I
, I
, I did it. I guess we should just drop t his case ag ainst L orenzo.” T h e S tate also argued that the j ury should “forg et the nonsense that [C harle s] tried t o interjec t in this trial.” Char les Wil son’s throwaw ay comment that he killed Ebene zer did not aff irmatively damag e the State’s case

. ¶ 47 We note that impeaching a witness with a prior inconsistent statement is only nece ssary when there is a reason to attack the cr edibility of the witness. Where, as here
, a party calls

a witness who offe rs no damag ing testimony
, there is no need to cast doubt on the witness’s testimony by challeng ing his cre dibility

. Cruz
, 162 I ll. 2d at 362. The only rea son for a party to introduce a prior inconsist ent s tatement in this circ umstance “is to g et i t b efor e the jury

as substantive evidenc e.” McCarter
, 385 I ll. App. 3d at 933. Our supreme court has direc ted just the opposite course , calling for “rig orous enfor ceme nt” of th e af fi rmative damag e require ment in order to fore close the “introduction of oral inconsistent statements under the
guise of impeachme nt.” Cruz
, 162 I ll. 2d at 36 2

. Charles Wil son’s prior inconsistent
statements wer e not admissible to impeach his cr edibility

.

¶ 48 Remaining Portions of Charl es W ilson’s Audiotaped and W ritten Statements ¶ 49 Although we have conclude d that it was err or to ad m i t ce rt ai n p o rt ions of Charle s Wil son’s written and audiotaped statements as substantive evidenc e, defe ndant additionally claims that the audiotaped and written statements should not have been admitted–in their entirety –beca use they wer e u n nece ssarily duplicative of Charles’s grand jury testimony

. Def endant argues, first, th at t h e ad ditional statements s hould have been barre d by the rule
ag ainst prior consistent st atements, a nd second, tha

t the prejudicia l effe ct of the a dditional
statements substantially outweighed their probative value beca u s e the statements wer e cumulative. The parties ag ain disagree about whether the err or was properly prese rved, but

we need not resolve that issue beca use we conclude that there was no err or in admitting those portions of the audiotaped and handwritten statements to which Charles Wil son had persona l knowledg e. ¶ 50 Def

endant’ s contention that admission of multipl e prior inconsistent statements from the

same wi tness violates the rule ag ainst prior consistent statements has been addre ssed at leng th, and reje cted, by this court. See People v. W hite
, 2011 I L App (1st) 092852, ¶¶ 49-54; People v. Santiago
, 409 I ll. App. 3d 927, 931-34 (2011); People v. Maldonado
, 398 I ll. App. 3d 401, 423 (2010); People v. Johnson
, 385 I ll. App. 3d 58 5
, 608 (2008). In this case , defe ndant raises no new arguments, and we see no rea son to depar t from this court’s uniform reje ction of those arguments in these ea rlier c ases. ¶ 51 Def

endant also arg

ues that the trial court abused its discretion in admitting more than one prior inconsistent statement fr om Charles Wil son beca use once one prior statement was

-11-admitted, the additional statements had littl e probative value and wer e unnece ssarily

cumulative. See People v . Culbreath , 343 I ll. App. 3d 998, 1004 (2003) ( “[T] he exclusion of cumulative evidenc e is within the discretion of the trial court, whose ruling wi l l n o t be

reve rsed absent a clea

r abuse of that discretion.” (quoting Dillon v. Evanston Hospital
, 199 I ll. 2d 483, 495 (2002)) ); see also I ll. R. Evid. 403 (ef f. J an. 1, 2011) (“ Although r eleva nt, evidenc e may be ex cluded if its probative value i s s ub s t an t ially outweighed by the dange r of unfair prejudice *** or by considerati o n s o f u n du e delay
, waste of time, or needle ss prese ntation of cumulative evidenc e.”)

. Be cause we have alre ady found that cer tain portions of the audiotaped and handwr itten statements wer e inadmissible under section 115-10.1, we consider this claim of err or as to the rema inin g p o rt i o n s o f these statements ( i.e. , those portions that meet the statutory require ment of per sonal knowledg e). ¶ 52 Defendant contends that afte r the first statement was admitted, t h e ad d i t i o n al p ri o r statements wer e “cumulative” and unnece ssary beca use they “add[ed] nothing to what was alre ady befor e the jury .” See People v. Ortiz
, 235 I ll. 2d 319, 335 (2009). We disagree

. In this

cas e, Charles repe atedly denied knowledg e or memory of making his prior statements (or alternatively claimed that he was under the influence of drug s when he g ave the statements). Once one prior statement was admitted, the jury had to assess that statemen t i n light of Charles’s claim at t ri al t h at h e did not make it or was intox icated at the time. The two additional statements had probative value: the fac t that Charles made additional statements at differ ent times to differ ent officia ls further damag ed his claims at trial that he did not make the statements or was on drug s at the time. Cf. People v. Harve y , 366 I ll. App. 3d 910, 922 (2006) (disagree ing with the defe ndant’s claim that ad mi s s io n o f a d d itio n al prior inconsistent
statement was cumulative beca use the evidenc e “ser

ved two distinct purposes” : to impeach the witness’s cr edibility

and to serveas substantive evide nce)

. ¶ 53 We cannot say that afte r one prior statement was admitted
, co n fronting Charles with additional prior statements added nothing to what was alre ady befor e the jury

. We conclude that any repe tition of the statements did not require their exclusion from evidenc e. Cf. People

v. Fields
, 285 I ll. App. 3d 1020, 1028 (1996) (finding that even “unnec essar y” repe tition of witness’s prior inconsistent statements did not rise to the level of prejudice ). The trial court did not abuse its discr etion in admitting portions of Charle s’s prior statements that met the
persona l knowledg e re quirement of se ction 115-10.1.

¶ 54 Harmless Error ¶ 55 We have found err or in the admission of those portions of Charles Wil son’s audiotape d

a n d h andwr itten statements describing what defe ndant told him about the shooting, in c lu d in g defe ndant’s statements that he shot Ebene zer. This err or only war rants reve rsal, howeve r, if

we find that it is not harm l es s

. An error is harmless “ ‘whe re there is no reasonable probabilit

y that the j ury would have acquitted the defe ndant absent the’ error.” (Emphasis in orig inal.) In re E.H.
, 224 I ll. 2d 172, 180 (2006) (quoting People v. Nevitt
, 135 I ll. 2d 423, 447 (1990))

. ¶ 56 The State contends that t h e erro r in admitting portions of Charles’s audiotaped a nd handwr itten statements is harmless beca use he made nearly verbatim statements in his sworn

-12-grand jury testimony
, which was indisputably admissible under 725 I L CS 5/115-10.1(c) (1)

(West 2008). We agree

. This court’s decision in People v. Harve y , 366 I ll. App. 3 d 9 10 (2006), is instructive. In Harve y , the court found that portions of two witnesses’ prior written statements, which contained the defe ndant’s confe ssion that he shot someone and then fled the scene , wer e improperly admitted beca us e neither of the witnesses had persona l knowledg e of the event. Harve y , 366 I ll. App. 3d at 921. The court found that the err or was harmless, howeve r, “bec ause the jury was permitted to consider subs t an t i v ely virtually identical evidenc e contained in the rec anting witnesses’ grand jury testimonies.” Id. at 921- 22. Her e, as in Harvey , the j ury was permitted to consider Charles’s gra nd jury testimony
, which contained all the portions of the audiotaped and handwritten statements that we have found wer e not properly admitted. See id. ; see also People v. Sims
, 285 I ll. App. 3d 598, 610 (1996) (conc luding that err or in admitting evidenc e was harmless beca use it was cumulative of properly admitted evidenc e); People v. Mulve y , 366 I ll. App. 3d 701, 714 (2006) (same)

. ¶ 57 Def

e n d a nt n e v e r th e less argues that the err or is not harmless beca use the State commented during closing arguments that C h ar l es s aid the same thing in eac h of his prior statements. Acc ording to defe ndant, the State’s argument hurt defe nse counsel’s theory that Ch arles made the statements to avoid criminal charg es. We note
, first, that the State only made this point in addition to arg

uing that it was unbelievable for Charles t o h av e m ad e up all the details reg arding the s h o o t ing in order to avoid liability ; that it would be “absur d” for the assistant State’s Attorney to put Charl es on the stand if he was on drug s; and that Charles testified to the g rand j u ry al m o s t a year afte r his charg es wer e dismiss ed. The jury ’s conclusion that d ef

en dant shot Ebene zer also did not depend solely on Charles’s prior inconsistent statements. The jury heard d et ail ed testi mony from P aris Gosha and Anthony M ac o n re garding the s pecif ics of what happene d at L eona’ s. Macon saw defendant wit h a pearl-handled gun in the back of the car , and Gosha watched as defe ndant stood over Ebene zer and shot him. Ma con also testified that while the group was trave ling a way from L eona’ s afte r the shooting, defe ndant said that he thought he killed the man i n s i d e the
restaur ant. Even if this testimony was somewhat weakened by evidenc e that Go s h a took a plea deal and Macon was n o t ch arg ed for his involvement, the testimony of Gosha and Macon provided strong corr oboration for defe ndant’s confe ssi o n

. T h e jury also hear d convincing circ umstantial evidenc e of defe ndant’s guilt. Def endant left for Mississ ippi immediately afte r the shooting, he threw parts of a pearl-handled gun out of the car window, and the pe arl ha

ndle that he ke pt was later found in Charles’ s Missis sippi home. ¶ 58 In light of all the evidence, we co n cl ude that even without the improperly admitted portions of Charles Wil son’s audiotaped and handwritten statements, there is no rea sonable probabilit y t h at the jury would have acquitted defe ndant. The err or in admitting these statements is harmless and doe s not warr ant re versa l of defe ndant’s convic tion.

¶ 59 Sentenc e for First Degree Murder Conviction ¶ 60 Finally
, defe ndant argues that his 75-year sentenc e for first degree murder was e x cessive b ec ause the circ uit court did not g ive adequate weight to mitigating fac tors, incl u d i n g defe ndant’s ag e and his lack of criminal history

. The trial court has “b ro ad d iscretionar y

-13-power s” in sentenc ing a defe ndant. People v. Jones
, 168 I ll. 2d 367, 373 (1995). “Where the

sentenc e chosen by the trial court is within the statutory rang e permissible for the pertinent criminal offe nse for which the defe ndant has been tried and charg ed, a revie wing court has the power to disturb the sentenc e only if the trial court abused its discretion in the sentenc e it impos ed.” Id. at 373-74. ¶ 61 “In sentenc ing a d ef en d ant, a trial court must balanc e the retributive and reha bilitative purposes of the punishment taking into a ccount both the seriousness of the offe nse and the objective of restoring the offe nder to useful citizenship.” People v. Cooper
, 283 I ll. App. 3d 86, 95 (1996) (citing People v. Hernande z , 278 I ll. App. 3d 545, 555 (1 9 9 6 )) ; I ll. Const. 1970, art. I
, § 11. The trial court may ap p ro p ri ately consider the defe ndant’s cre dibilit y , demea nor, g ener al moral char acte r, mentality
, s o cial environment, habits, and ag e when
sentenc ing a defe ndant. Peo p l e v. Fern
, 189 I ll. 2d 48, 53 (1999). The court may also consider the nature of the crime, protec tion of the public, deter renc e, and punishment. People

v. Jack son , 357 I ll. App. 3d 313, 329 (2005). “It ha s been emphasized that the trial court is i n a s uperior position to assess the cre dibilit y of the witnesses and to weigh the evi d en ce prese nted at the se ntencing hearing.” Jones , 168 I ll. 2d at 373. ¶ 62 In this case , the sentenc e imposed by t h e co urt wa s within the statutory rang e. The
sentenc ing rang e for first degree murder is 20 to 60 year s. 730 I L CS 5/5-8-1(a)(1) (a) (West 2008) (now 730 I L CS 5/5-4.5-20(a) (West 2010)). But beca use the jury found that defe ndant
persona lly discharg ed a firea rm that proxi mately cause d Ebene zer’s d ea t h, the court sentenc ed defe ndant pursuant to section 5-8-1( a)( 1)(d) (iii) of the Un i fi ed Code of Correc tions (730 I L CS 5/ 5-8-1( a)( 1)(d) (iii) (West 2008)), which provides that 25 year s up to a term of natura l life “shall be added” to the sentenc e. The court there fore conclude d that defe ndant could be sentenc ed to any wher e from 45 year s to life and sentenc ed defe ndant to 75 year s. ¶ 63 Be fore sentenc ing defe ndant, the court considere d arg uments from counsel, defe ndant’s statement in allocution, and a victim impact s tatement from Ebene zer’s fiancée . The c ourt then revie wed evidenc e in mitig a ti o n a n d a g g ravation. As to mitigation, the court commented that defe ndant had no c riminal history , was a high sc hool gr aduate , and had been accepted into colleg e. Although the court appre ciated defe ndant’s apology to the victim’s family and
reque st for forg iveness, the court found th at defe ndant’s statement that someone else may have shot the vi ctim was “not supported by t h e evidenc e” and would aff ect “the weight to be g iven to his statement in allocution.” Whil e defe ndant contends that t h e co urt failed to consider his ag e as a mitigating fac tor, the trial judge revie wed the prese ntence investigation
repor t containing defe ndant’s ag e and heard defe nse counsel compar e defe ndant’s ag e upon rele ase un der various sentenc es. In any event, wher e “def endant offe rs no evidenc e, aside from the sentenc e itself, that the trial court failed to consider the mitigating evidenc e, we may

assume that the trial cour t p ro p erly considere d it.” People v. Jones
, 376 I ll. App. 3d 372, 393 (2007). ¶ 64 The court balanc ed the mitigating fac tors ag ainst the seriousness of the crime, which the
court char acte rized as “sense less and just horrific ,” noting that “it didn’t take a wh o l e lot from what the evidence shows, to prompt [defendant] to do what he did.” A s to the nature of the crime, the court stated that it had nothing to add to the victim impact statement, which

-14-was the most “pr ofound and a rticulate *** [the cour

t] had eve r hea

rd.” ¶ 65 Def

endant contends that the trial court d i d n o t gi v e en o u gh we ight to fac tors in mitigation. The rec ord shows that the court thoroughly considere d the mitigating and
ag gravating f

actor s in deter

mining defenda

nt’s sentenc e. After presiding over the trial and considering the evidenc e prese nted at the sentenc ing hearing, the trial court, in its considera ble discretion, found that a sentenc e somewher e in the middle of the statutory rang e

was appropriate. It is not the province of this court to rew eigh the sentenc ing fac tors, and we may not substitut e our judgme nt for that of the trial court mere ly beca use we may have weighed the sentenc ing fac tors differ ently

. People v. Streit
, 142 I ll. 2d 13, 19 (1991); People

v. Coleman
, 166 I ll. 2d 247, 261-62 (1995)

. T h e t ri al court did not abuse its discretion in imposing the sente nce.

¶ 66 Correction to the Mittimus ¶ 67 The parties agree that the mitti mus does not corr ectly ref lect the number of day s he was incar cer ated prior to his sentenc ing. Def endant was arr ested on J une 13, 2007, and rema ined in c ustody until he was sentenc ed on Marc h 31, 2010. Def endant was thus incar cer ated f or 1,022 day s, not 941 as the mitti mus ref lects, prior to his sentenc ing. See People v. W illiams
, 239 I ll. 2d 503, 504 (2011). Acc ording ly
, we instruct the cler k of the circ uit court to corr ect the mittim us to refle ct a total of 1,022 da y s of sentenc ing c redit.

¶ 68 CONCLUSI ON ¶ 69 For all the fore g oing rea sons, we aff irm defe ndant’s conviction and sentenc e and dire ct the cler k of the c ircuit court to cor rec t the mitti mus.

¶ 70 Affir

med and r emande d with directions.

-15-