2013 I L App (2d) 110652 No. 2-11-0652 Opinion filed May

23, 2013

______________________________________________________________________________ I N THE APPEL L ATE COURT OF I L L I NOI S SECOND DI STRI CT

______________________________________________________________________________ THE PEOPL E OF THE STATE ) Appea l from the Circuit Court OF I L L I NOI S, ) of Ka ne County

. ) Plaintiff-Appellee , ) ) v. ) No. 05-CF- 1324 ) DARREN DENSON, ) Honora ble ) Timothy

Q. Sheldon, Def endant- Appellant. ) J udg e, Presiding

.

______________________________________________________________________________ J USTI CE McL AREN deliver ed the judg ment of the c ourt, with opinion. J ustices Z enoff

and Schostok conc urre d in the judgme nt and opinion.

OP INION ¶ 1 Af

t er a j u ry trial, defe ndant, Dar ren Denson, was convicted of one count of first-de g ree murder (720 I L CS 5/9-1(a) (2) (West 2002)), one count of arme d robber y (720 I L C S 5 / 1 8 -2 (a) (1) (West 2002)), and one count of home invasion (720 I L CS 5/12-11(a) (1) (West 2002)). The trial court sentenc ed defe ndant to a term of life imprisonment on the murder char g e, to be serve d

consec utively to 30-y ea r sentenc es on the other char g es. Def endant now seeks a new trial. We aff irm. ¶ 2 I . BA CKGROUND2013 I L App (2d) 110652

¶ 3 Def

endant was ch ar ged i n the Fe bruar y 2003 murder and robber y of Ky le J ug g ins. Three codef endants—Ta

urea n Giles, Getino Robinson, and Kineta Be ll—were also char g ed with murder and other offe nses. The trial court g rante d the State’s motion in limine to admit testimony reg arding various statements of these codef endants, pursuant to the co c o n s p ir ator exception to the hear say rule. See I ll. R. Evid. 801(d)( 2)(E) (ef f. J an. 1, 2011); People v. Thomas , 178 I ll. 2d 215, 237-38 (1997). Def endant was initially t ried befor e a jury in November 2010. The trial court decla red a mistrial beca use the jury was “hopele ssly deadloc ked.” Def endant was ag ain tried befor e a jury in April 2011, resulting in the convictions above. The trial court denied defe ndant’s motion for a new trial and imposed def

endant’ s terms of imprisonment. This timely appea l followed. ¶ 4 I I . ANAL YSI S ¶ 5 Def

endant first contends that the trial court err ed in g ranting the Sta t e’ s m o t i o n to allow testimony under the coconspira tor exception to the hear say rule. Def endant cites to case law that contains holdings that define coconspirator statements as an e x ception to the tra ditional de finition of hear say , which has been radic ally modified by the I llinois Rules of Evidence (Rules). Rather than continue to ref

er to such statements as an exception to the hear say rule, and thus substantively admissible, the Rules have define d such statements as not hear say . A statement is not hear say if it is offe red ag ainst a party and was made by the party ’s co co n s p i rator during the course and in further ance of the conspirac y . I ll. R. Evid. 801(d)( 2)(E) (ef f. J an. 1, 2011). I n analy

zing the sundry

case s reg arding the admissibili ty of the statements here , we will continue to ref ere nce t h e terminolog y used in the case s. Howeve r, consistent with the Rules, we ultimately co n clude that some of the state ments were admissible beca use they wer e not hea

rsay under the Rules.

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¶ 6 Def

endant arg

ues that the trial court err ed in admitting two seg ments of testimony : ( 1) that

o f Melanie Ba

nner (B ell’s sister) reg arding statements that Be ll made to her on the night of t h e murder; and (2) Be ll’s testimony reg arding statements made to her by Giles and R o b i n s o n as she drove the m to Banne r’s a partment a fter the murder. ¶ 7 The State arg ues that defe ndant has forf eited this issue on appea l beca use he failed to obje ct to this testimony at trial. Whil e admitting that he did not object at trial, defe ndant counter s that he proper ly prese rved the issue beca use he filed a response in opposition to the State’s motion, arg ued ag ainst the motion, and contende d in his pos t t ri al motion that the trial court err ed in g ranting the motion. Def

endant cites to People v. Hudson , 157 I ll. 2d 401, 434-35 (1993), and People v. Mason , 274 I ll. App. 3d 715, 721-22 (1995), to support his arg ument that a trial objection is unnece ssary to prese rve an i s s u e when it has been raised in a response to a motion in limine

. Howeve r, in both Hudson and Mason , the defe ndants did not respond in opposition to a motion in limine filed by the State; the defe ndants wer e the parties who filed the motions in limine

. See Hudson , 157 I ll. 2d at 434 (“w e find that defe ndant prese rved this issue for revie w by raising it in a motion in limine and in his post-trial motions” (empha sis added) ); Mason , 274 I ll. App. 3d at 721 (“de fenda nt prese rv ed this issue when he raised it both in his motion in limine and in his post-trial motion” (empha ses added) ). ¶ 8 Def

endant seeks support in People v. Maldonado , 398 I ll. App. 3d 401 (2010), in which the First District, Four

th Division, citing to Hudson and Mason , held that the defe ndant prese rved an issue for appea l “whe n he raised it in both his reply to the State’s mot i o n i n l i mine and in his posttrial motion.” (Emphasis added.) Id

. at 415. Howeve r, neither Hudson nor Mason involved or addre ssed t he preserva tion of an issue for a ppeal by raising an objection to a mot ion in limine

. I n

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

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in a motion in limine is sufficie nt to prese rve an issue so long as i t i s al s o raised in the posttrial motion” to “bec ause defe ndant did object to the introduction of this evidenc e both in his reply to the St at e’ s m o t i o n in limine and in his posttrial motion, we conclude that this issue was sufficie ntly prese rved.” Id. at 4 1 6

. T h i s non sequitur is a patent distortion of a supreme court hol ding, made with no analy sis or purported justification for the expansion of the supreme court’s holding. We are

unawa re of any case prior to Maldonado that holds t h at ra i s i n g an issue in a reply to the State’s motion in limine , rathe r t han in the defendant’s moti on, is sufficie nt for preserv at i o n o f t he is sue. To the extent that Maldonado so holds, we disavow that holding

. ¶ 9 We further note that the denial of a motion in limine does not in itself prese rve an objection to disputed evidenc e that is later introduced at tr i al ; a contemporaneous objection to the evidence at the time that it is offe red is require d to prese rve the issue for revie w. Simmons v. Garce s , 198 I ll. 2d 541, 569 (2002). A trial co u rt ’s ruling on a motion in limine is an interlocutory order that is subject to revie w by the trial court any time prior to or during trial. People v. Hansen , 327 I ll. App. 3d 1012, 1027 (2002). When a trial court addre sses a p re t ri al motion in limine on the merits, its ruling is alway s subject to rec onsideration during trial. People v. Drum , 321 I ll. App. 3d 1005, 1008 (2001). Events at t rial m ay still aff ect the tr ial court’s unde rstanding of the probative value of the evidenc e, the risk of unfair prejudice to the party opposing the evidenc e, or the t rustworthiness of the evidenc e. Id

. at 1008-09. A defe ndant cannot rely on the trial court’s denial of his own motion in limine to prese rve an issue for appea l. Even less s o can a defe ndant rely only on his pretria l opposition to the State’s motion in limine to admit evide n ce as a means to prese rve the issue for appea l.

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¶ 10 I n his reply brief, defe ndant does not arg ue that, if this issue was not proper ly prese rved, this court should revie w it for plain err or or ineffe ctive assistance of counsel; instead, defe ndant insists that the issue of the coconspira tor statements “wa s prese rved and, as such, is r eviewa ble under the harmless-e rror fra

mework” set out in People v. Thurow , 203 I ll. 2d 352, 363 (2003). Howeve r, we have f ound that the issue was not pr operly prese rved and is forfe ited. The ha rmless-er ror a naly sis applies only wher e the def endant ha s proper ly prese rved the issue by timely objection. Id

. Where an issue is forf

eited, we may

revie w it only

for plain e rror

or ineff ective assistance. See People v

. Sanders , 2012 I L App (1st) 102040, ¶ 24. As defe ndant does not se ek the only revie w that we can g rant in lig ht of his forfe iture, we can g rant no re view or r elief on this issue. ¶ 11 Even if defe ndant had not forfe ited the i ssue, we would find no reve rsible error here. The coconspirator exception to the hear say rule p ro v i des that any decla ration by one coconspirator is admissible ag ainst all coconspirators wher e the decla ration was made du ri ng the pendency of and in further ance of the c onspiracy

. People v . Kliner , 185 I ll. 2d 81, 141 (1998). ¶ 12 We will first addre ss defe ndant’s claim reg arding Be ll’s testimony

. Be ll testified that she

was at Ba nner’ s house on the night of Fe bruar y 10, 2003, when she rec eived a phone call from Giles, her boy friend, in which he asked her to call a man named Tawy ka Bonds (B ell’s former boy friend) beca use Giles “w anted to rob him.” B ell called B onds twice but g ot no answer . Giles, Robinson, and defenda

nt then drove in defe ndant’s car to Banner ’s house a t approxim ately 11:30 p.m. Be ll, but not Ba

nner, met with the three men in Ba nner’ s bedroom. She sawthat defe ndant had a knife and Robinson had a g un. The men stated that they wanted to rob Bonds o r J u ggi n s (w h o was nicknamed Cal), and they wanted Be ll to show them wher e both men lived. She called Bonds ag ain but g ot no response . Be ll then drove her car , followed by defe ndant, R o b i n s o n , an d Giles in

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defe ndant’s car , to the home of the mother of Bonds’ child; Giles called Be ll and told her that, since it looked like no one was home, she should lead them to J ug g ins’ house. She led defe ndant’s car to J ug g ins’ apar

tment complex and told Giles by cell phone which apar tment was J ug g ins’. She then returne d to Ba

nner’ s house. ¶ 13 Be ll then rec eived a call from Giles asking h er t o p i ck u p R o b i n s o n an d him from an apar tment complex in Elg in beca use defe ndant “had to g et on the highw ay .” At the complex, Giles and Robinson g ot into Be ll’s car , and they drove toward Be ll’s apar tment; they saw police car s turning into her complex, so Be ll was told to drive to Ba nner’ s house. Giles then told Be ll that J ug g ins was dea d. At trial, Be ll described w hat happe ned next:

“Q. [Assi stant State’s Attorney :] Did Taure an Giles also descr ibe what had happene d once y ou left [J ug g ins’] address? A. [Bell:] He did. Q. What did he tell y ou had happe ned? A. He told me t h at t hey had broke in, um, the l aundry room window and then had kicked Ky le’s door in. Um , t h ey wer e looking for a safe

. I n the proce ss Ky le had shot at him. Getino shot Ky le, and then the J amaica n [i dentified as defe ndant] got on top of Kyle and stabbe d him. Q. Does Getino Robinson tell y ou any thing about what happene d in that apar tment? A. Um, y es. He said that he shot Ky le af ter he shot at Taure an. Q. Did he a lso tell y ou what the De fenda nt did in that apartment? A. He did. Q. What did Getino Robinson s ay the Def endant did in that apa

rtment?

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A. He said the same thing that Taure an said, that he g ot on top of Ky le and stabbed him. * * * Q. When y ou just told us, told the ladies and g entlemen of the jury that Getino said he g ot on top of him and stabbed Ky le, or Cal, who did he specific ally say g ot on top of Ky le J ug g ins and stabbed him? A. J amaica

n.” ¶ 14 Be ll also testified that she, Giles, and Robinson then went into Ba nner’ s bedroom, wher e she

saw three g uns and the knife that defe ndant had previously car ried; the handle of the knife had blood

on it. They hid the weapons under Banne r’s couch and drove Robins on to his home i n Rockford. The following day , Giles took the g uns to his brother’s house. ¶ 15 Def

endant n o w ar gu es t h at Be ll’s testimony reg arding the statements made by Giles and Robinson in her car wer e inadmissible under the coconspirator excep t ion beca use the statements

wer e not made in further ance of the conspirac y . Statements made in fu rt h er an ce of a conspirac y include those that have the eff ect of “advising , encour ag ing, aiding or abetting its perpe tration.” Id. Statements made afte r the crime in a n eff ort to c oncea l the crime or esca pe punishment further the objective of a conspirac y . Id

. Howeve r, a mere narr ative of past occur renc es that does not f

urther any objective of

the conspira cy

is not subject to the coconspira tor exception. Id

. ¶ 16 Def

endant arg

ues that Giles’ and Robinson’s statements in the car wer e mere ly restate ments of what had occur

red and wer e not made to conce al the crime. We disag ree . The statements wer e not idle rec aps of the evening ’s events. The criminal enter prise in which defe ndant, Be ll, Giles, and Robinson had conspired had led not to mere robber y but to murder. As the enter prise had chang ed,

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so, too, did t h e nece ssary actions for conce alment of their crime. The murder had just occur red; Giles and Robinson still had in their possession the wea pons used to kill J ug g ins, and they had just chang ed their destination beca use of the appea

ranc e of the police near Be ll’s apar tment. Ex plaining what happene d and what led to their curr ent predic ament was no t mere narr ative; it further ed the eff orts to conce al their a ctions. ¶ 17 Def

endant likens this case to People v. Parmly , 117 I ll. 2 d 3 8 6 (1 9 8 7 ), which involved a planned burg lary that led to murder. Our supreme court found that the coconspirator exception did not apply to a statement that the defe ndant fired the second, fata l shot, made the day afte r the murder, by a coconspira

tor (F outch) who witnessed the murder to a coconspira tor (Cook) who was outside the house when the victim wa s killed. Id

. at 394. The court found as a “matter of common sense” that the statement wa s made to implicate the defe ndant so that he “would bear the full brunt of the criminal law.” Id. We find Parmly distinguishable. First, we note that both Giles and Robinson told Be ll that Robinson shot J ug g ins a nd that defe ndant stabbed him. There is no indication that either knew whether the g unshot or the stab wound was the cause of death. This was no attempt to defle ct 1 blame for J ug g ins’ death. Fur ther, in Parmly , Cook alre ady knew at the time of the murder that the victim had been killed; he hear d the two g unshots and was told by the coconspira tors as they ran from the house ; he eve n returne d to the murder sc ene w ith the others to clea n up evidenc e and g et money . Id

. at 389-90. A rec ounting the following day descr ibing who fired which shot did not

At trial, Dr. L arr

y Blum, a fore nsic path o l o gi s t who had revie wed the autopsy protocol, 1 testified that J ug g ins suffe red two fata l injuries—a stab wound to the rig ht upper chest and a g unshot

wo u n d t o t h e b ack of the head. Whil e the primary cause of death was blood loss from the s t ab wound, the g unshot was a “ contributory cause of dea th.” -8-2013 I L App (2d) 110652

further the conspirac y . As we stated above, Be ll did not know what had occur red i n J u ggi ns’ apar tment. She had been asked to pick up Giles and Robinson beca use defe ndant “had to g et on the highw ay .” She did not even know if the robber y was attempted, let alone that the home invasion had led to murder. We would find no err or in the admission of this testimony , let alone prejudicia l err or. As we have found that Be ll’s te stimony was proper ly admitted as coc onspirator stateme nts, w hich by definition wer e not hear say (see I ll. R. Evid. 8 0 1 (d )( 2 )( E) (eff. J an. 1, 2011); People v. Leach , 2012 I L 111534, ¶ 80 n.2), we need not addre ss defe ndant’s summary arg ument reg arding Crawf ord v. W ashington , 541 U.S. 36 (2004). See Leach , 2012 I L 111534, ¶ 80 n.2). ¶ 18 Def

endant’ s next claimed err or involves the testimony o f Ba nner, who testified about her

conver sation wit h Be ll befor e defe ndant, Giles, and Robinson came to her house on the night of J ug g ins’ murder:

“Q. [Assi stant State’s Attorney :] Be fore other people g ot over to y our apar tment, but afte r y ou overhe ard part of what y our sister, Kineta Be ll, was say ing on the phone, did Kineta Be ll, y our sister, tell y ou any thing a bout those phone ca lls? A. [Banne r:] Yes. Q. And wha t did she say ? A. Ba sically that she was try ing to contac t someone which I knew named Tawy k a to find out wher e he lived beca use someone wanted to rob him, and she was g lad that she

was una ble to find Tek be cause she didn’t want to set him up to be robbe d. Q. So they wanted to rob—somebody wanted to rob Tawy ka. Did she tell y ou who that was? A. Yes. Q. Who was that? -9-2013 I L App (2d) 110652

A. Taur ean, G etino, and Jamaica. Q. Did she say

any thing about what I ’ll call an alterna tive plan if they couldn’t g et hold of Tawy

ka wha t [ sic ] t hey

wer e g oing to do? A. She didn’t say they wer e g oing to do it, but they wanted her to, and if she couldn’t do Tawy ka to g et—to do Cal. She never told me that she was g oing to do it, but that was the alterna tive, that was wha

t the next pl an would have been. Q. Was that they

wanted to? A. (Nodding head up a

nd down). Q. Did y ou know at that point in time was she able to—did she tell y ou whether she

was a ble to g et hold of Taw y

ka B onds? A. She wasn’t able to beca use she said she was g lad she wasn’t [ sic ] beca use she didn’t want to set him up to be robbed.” Ba nner subse quently

identified def

endant a s the person tha t she ref err ed to as “ J amaica .” ¶ 19 Def

endant first arg ues that Be l l ’s conversation with Ba nner was not in further ance of the conspirac y since Be ll was “ac tual l y h o p i n g that the conspirac y would not come to fruition.” Def endant cites no authority for the proposition that a coconspirator’s wishes reg arding the succe ss of the venture has any bear ing on the admissibilit y of her statements pursuant to the c oconspirator exception. Be ll did not withdraw from the conspirac y ; while her hear t may not have been in it, she was, as Ba

nner testified, “try ing to contac t *** Tawy ka to find out wher e he lived beca use someone wanted to rob him.” Fur ther, Be ll wished only that Bonds n o t get ro b b ed; she stated no such

rese rvations about the suc cess of the alter native plan to rob “ Cal.” ¶ 20 Def

enda n t al s o ar gues that a statement made to a nonconspirator about the details of the planned crime befor e it occur red is not a statement made in further ance of the conspirac y and, thus,

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not admissible. We first note that the fac t that a statement is made to a nonconspi ra t or does not, alone, make the statement inadmissible under the coconspirator exception. See People v. Rede aux , 355 I ll. App. 3d 302, 305 (2005). Howeve r, defe ndant also arg ues that the statement was not made in further ance of the conspirac y . As noted, statements made in further ance of a conspirac y include those that have the eff

ect of “advising , encour ag ing, aiding or abetting its perpe tration.” Kliner , 185 I ll. 2d at 141. ¶ 21 The State appar ently misapprehe nds exactly what testimony defe ndant is c ontesting. I n its brief, the State ref

ers to “B anner ’s testimony reg arding what her sister, Be ll, said on the phone ” and

s t at es that “B anner overhe ard Be ll identify ing her own role in the conspirac y as the provi d er o f information conce rning the wher eabouts of the conspirac y ’s targ ets.” (Emphase s added.) Howeve r, in his brief, defe ndant rec ounts only Ba nner’ s testimony reg arding her conver sation with Be ll after the telephone calls, not what Banne r overhear d during the calls. This misunderstanding calls into question the State’s arg um en t t h at statements further a conspirac y “whe re they identify coconspirators and their roles in the conspirac y , or *** inform other conspirator s of the activities or status of the conspira cy . ” For this arg ument, the State relies on United States v. Hitow , 889 F.2d 1573, 1581 (6th Cir. 1989). Hitow cited to United States v. Magee , 821 F.2d 234, 244 (5th Cir. 1987), to support its assertion that statements “ide ntify ing other c onspirators and the ir roles in the conspirac y ” had been found to be in further ance of a conspirac y . Hitow , 8 8 9 F. 2 d at 1581. Howeve r, a closer look at Magee reve als its finding to be that “[o] rdinarily , a statement that identifies the role of one co-c onspirator to another is in further ance of the conspirac y .” (Emphasis added.) Magee , 821 F.2d at 244. Thus, Hitow ’s liberal extension of Magee ’s finding , and the State’s relianc e on it in this case , are on shaky g round. I f Ba nner had overhe ard Be ll making the contested

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s t atements to one of the coconspira tors on the telephone, such an arg ument would at l ea s t b e rele vant. Howe ver, suc h is not the case he re. ¶ 22 The circumstance s of Bell’s s tatements t o Ba n n er are simil ar to those prese nted i n People

v. Link , 100 I ll. App. 3d 1000 (1981). I n Link , the uninvolved g irlfriend of a conspirator in a murderfor- hire scheme testified that, befor e the murder was comm itted, her boy friend told her of his involvement in the scheme and various fac ts about the p ro p osed murder. Id

. at 1003. This court “fa il[ ed] to see *** how t h e premurde r statements to one who was not a co-c onspirator can be termed in further ance of the conspirac y .” Id

. at 1006. We ag ree with our brethre n’s vision in Link and conclude that Be ll’s c onversa tion with Ba

nner was not in further ance of the conspirac y . Such

a conc lusion is based on long- standing prec edent in this state: “De clar ations, that are mere ly narr ative as to what has been done or will be d o n e , are incompetent and should not be admitted except as ag ainst the defe ndant making them, or in whose prese nce they are made.” (Emphasis added.) Spies v. People , 122 I ll. 1, 237 (1887). Be ll’s statements to Ba

nner, a nonmember of the conspirac y , wer e nothing more than a narr ative of what Be ll had done and what the plans wer e for later that evening

. These statements wer e not made in further ance of the c onspiracy and we re thus not admissible under the coconspirator exception. ¶ 23 The State arg ues that, in any event, the statements wer e admissible as evidenc e of Be ll’s state of mind. Under the state-of -mind exception to the hearsa y rule, the r

ule will not ex clude: “A statement of the decla rant’s then exis ting state of mind, e motion, sensa tion, or phy sical condition (such as intent, plan, motive, desig n, mental fee ling, pain, and bodily health), but not including:

***

-12-2013 I L App (2d) 110652 (B ) a statement of decla

rant’s then exis ting state of mind , em o tion, sensation, or p hy sical conditi on to prove the state of mind, emotion, sensation, or phy sical conditi o n o f another decla

rant at that time or at any other time whe n such state of the other de clar ant i s an issue in the ac tion.” I ll. R. Evid. 803(3)(B) (ef f. Apr. 26, 2012)

. The State arg ues that “B ell’s expression of relief that the conspirator s wer e acting on their alterna tive plan to rob J ug g ins rathe r than her ex-boy friend, Bonds—unque stionably qualified for admission as

a statement by Be ll reg arding her then-e x isting state of mind.” We disag ree . First, we note that Be ll did not state that the coconspira tors wer e, indeed, acting on the alterna tive plan to rob J ug g ins. As Ba nner te stified when que stioned:

“Q. Did sh e [ Be l l ] s ay any thing about what I ’ll call an alterna tive plan if they couldn’t g et hold of Taw y ka wha t [ sic ] t hey

wer e g oing to do? A. She didn’t say they were going to do it , but they wanted her to, and if she couldn’t do Tawy ka to g et—to do Cal. She neve r told me that she was going to do it , but that was the alterna tive, that was wha

t the next pl an would have been.” (Emphase s added.) Fur ther, Be ll testified that she called Bonds once more after the co conspirator s met at Ba nner’ s house, and she also led them to a house wher e she thought that Bonds might be befor e leading them to J ug g ins’ apar

tment. Be ll could not have been expressing relief that the coconspirators wer e acting

on their alterna tive plan, as the St at e arg ues, beca use the plan to rob Bonds was still viable. I n addition, even if Be ll wer e speaking about acting on the alterna tive plan to rob J ug g ins, it would not have be en admissible. As the c ommitt ee c omment to Rul e 803 explains: “Consistent with prior I llinois law, Rule 803(3)(B ) provides tha t the hear say exception for admissibili ty of a statement of intent as tending to prove the doing of the act intended applies only to the statements of intent by a d ec l ara nt to prove her future conduct, not the future -13-2013 I L App (2d) 110652

conduct of another person .” (Emphasis added.) I ll. R. Evid. 803, Commi ttee Comment (adopte d Sept. 27, 2010). Ba nner’ s testimony

about her conver sation with Bell wa s admitted in error

. ¶ 24 Howeve r, not ever y err or is reve rsible error, and we would conclude that the admis sion of this testimony was harmless and, thus, not reve rsible err or. An err oneous evidenti ar y ru ling constitutes harmless err or if the State can establish bey ond a rea sonable doubt that the err or did not contribute to the jury ’s verdic t. People v. Patterson , 217 I ll. 2d 40 7 , 4 2 8 (2005). I n deciding whether err or is harmless, a revie wing court m ay “( 1 ) fo cu s on the err or to deter mine whether it might have contributed to the conviction; (2) examine other proper ly admitted evidenc e to deter mine whether it overw helmingly supports the conviction; or (3) deter mine whether t h e improperly admitted evidenc e is mere ly cumulative or duplicates proper ly admitted evidenc e.” People v. Bec ker , 239 I ll. 2d 215, 240 (2010). First, we note that the complained- of testimony here involves the conspira cy

to r ob J ug g ins only if the coconspirators could not r ob Bonds. B oth Be ll and Giles also proper ly testified about this conspirac y . Thus, Ba nner’ s testimony was mere ly duplicative. Fur ther, it cover ed only the early stag es of the conspiracy and did not di s cuss the ul timate actions for which defe ndant was char g ed. Other evidenc e i n t h i s ca s e included testimony much more immediate to the actua l commission of the crimes char g ed—that of Be ll, cover ed above, and Giles, who was at the scene of J ug g ins’ murder. Wit hout delving into Giles’ extensive testimony , we note that his testimony involved the conspirac y and his ey ewitness acc ount of the home invasion, murder, and robber

y . Ba nner’ s complained- of testimony was of such l ittle conseque nce that we cannot conclude that it contributed to defe ndant’s conviction. Thus, even though defe ndant’s claim of err or is valid, we would g rant him no relief

.

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¶ 25 De fe n d an t n ex t co n t ends that the trial court improperly admitted the prior consi s t en t statement of the State’s witness Stacy Daniels. Def endant admits that trial counsel neither objected at trial nor included this issue in his posttrial motion; howeve r, he asks this court to revie w the issue

as plain err or or, in the alterna tive, ineffe ctive assistance of counsel. The State ag ree s that there was

err or and c ontests only

the impact of the improper testimony

. ¶ 26 I n the State’s case -in-chie f, Daniels testified that she lived with J ug g ins and their 15-monthold son on Fe bruar

y 10, 2003. As the three of them slept on the same mattress on the bedroom floor, Daniels hear d someone kick in the front door of their apa rtment. She rolled onto he r stomach and pulled the cove rs over

her he ad as he r son beg an to scre am and c ry . She felt two people step over her leg s to the s ide of the bed wher e J ug g ins lay

. J ug g ins and a “blac k male voice” exchang ed words, and Daniels felt “tussling.” She then hear d a g unshot, and she felt the two people step back over he r leg s. She pulled off the c overs a nd saw Jugg ins ly ing unr esponsive. ¶ 27 Da n i el s l ef

t t h e b ed ro o m and enter ed the living room and she saw a person leave the apar tment and enter the building’s laundry room. A second person, on h er rig ht, pushed her fore head, and then a third person came out of the bedroom and brushed her left arm. The second and third persons walked out of the apar tment and turned left, into the laundry room. Daniels never saw the fa ce of

the first per son, but she could tell that the other two ha d masks on their fa ces. ¶ 28 At trial, Danie ls describe d the first person leaving the apa rtment as six fee t tall. On crossexamination, the following c olloquy took place: “Q. Now, I want to ask y ou some questions about the first person who y ou saw leave

. You just said that y ou now estimate that this person wa s about six foot; is that true? A. Yes.

-15-2013 I L App (2d) 110652 Q. By six fo o t, would y ou descr ibe that, would that be the same to y ou as being medium heig ht? A. No. Q. What would medium height be to y ou? A. Um, like five, six; five, seven. Q. Okay

. Now, is n’t i t true that on—y ou g ave a previous statement on Dec ember 10th, 2009, and in that statement— * * * Q. Miss Daniels, do y ou reme mber being asked this question and g iving this answe r? ‘Que stion: Do y ou know, can y ou descr ibe any thing phy sically about the first g uy ? Answer : The first g uy ? I don’t know. I believe like he was a

littl e bit stockier than the other. L ike to me he seeme d like a littl e bit mo re b u i l t

. He d i dn’t look that tall, but he was medium heig ht. He wasn’t short.’ Do y ou reme mber being asked that question and g iving t h at

answe r? A. I believe so. Q. I s it fair to say that y our memory of the events was better rig ht afte r this incident happene d than it is today ? A. Um, my memory is the same. J ust that—what happene d that n i gh t , y o u g uy s asked me what time stuff happene d, what people looked like, what they have on. When y ou’re in that situation y ou don’t think of the time or what they have on. This was wintertime. I believe they had to ha ve like coats, winter

coats. So to me that was medium built to me. So my memory , I can tell y ou from front to back, back to front what happene d, but I can’ t tell y ou who was in that a partment.” -16-2013 I L App (2d) 110652

On re direc t examination, t he following took place:

“Q. Miss Daniels, I want to talk to y ou about this question and answe r that defe nse counsel a sked y ou about the medium heig ht. Do y ou reme mber that? A. Yes. Q. And she also followed it up by say ing, asking y ou a question about whether y our memory was be tter that nig ht or today some eig ht y ear s later; is that corr ect? A. Yes. Q. And as far as wh et h er i t wa s a—whe ther y ou descr ibed it back in 2009 at a deposition as a medium heig ht or not, isn’t it true that withi n a co u p l e o f hours afte r this incident y ou had a discussion with Detec tive Dan O’Shea from the Elg in Police Depa rtment? A. Yes. Q. And isn’t it tr

ue at that point in time tha t y ou descr ibed this person, the number one per son, as appr ox imately six foot tall and the tallest of the three ? A. Yes.” ¶ 29 I n g ener al, a prior statement that is consistent with a witness’s trial testimony is ina dmissibl e to bolster that witness’s cre dibilit y ( People v. Ramos , 318 I ll. Ap p . 3 d 181, 187 (2000)) or to reha bilitate a wi t n es s who has been impeache d by a prior inconsistent statement ( People v. Rodriguez , 58 I ll. App. 3d 562, 569 (1978))

. Her e, defe ndant p ro p er l y impeache d Daniels’ trial testimony that the first man she saw leaving the apar tment was six fee t tall with her statement in the 2009 deposition that “He didn’t look that tall, but he was m ed i u m h ei gh t

. He wasn’t short.” Howeve r, def

ense c ounsel went be y ond that impeachme nt w ith his follow-up question of whe ther it was “fa ir to say that y our memory of the events was better rig ht afte r this incident happene d than it is today .” This follow-up question was akin to incomplete i m p eachment; it implied either that -17-2013 I L App (2d) 110652

Daniels’ deposition answe r was g iven “ri gh t af ter thi s incident happened” and was more accur ate

or that her trial testimony was somehow differ ent from what she expressed “rig ht afte r this incident happene d.” Neither of these infere nces could proper ly be draw n from the evidenc e or proved with other evidence

. Def

endant did not mere ly

impeach D aniels with her 2009 inconsistent statement; he attempted to bolster the 2009 statement and further denig rate her trial testimo n y with the unfounded insinuations that the deposition answe r, g iven more than six y ear s afte r J ug g ins’ murder,

was g iven “rig ht afte r this incident happene d” or that some other descr iption g iven “rig ht afte r this incident happene d” was more acc urate

. The State did not mere ly attempt to reha bilitate Daniels or bolster her testimony ; it soug ht to addre ss the improper insinuations raised by defe ndant. We do not easily or often find that a defe ndant has opened the door for admission of a prior consistent statement by impeaching a witness with a prior inconsistent statement. See People v. Ciavirelli , 262 I ll. App. 3d 966, 982 (1994). Howeve r, defe ndant raised the issue of the quality of Daniels’ “memory of the events *** rig ht afte r this incident”; this was outside of the impeachme nt of Daniels with her prior inconsistent statement, and defe ndant cannot now complain that the State followed up on that issue. Disag ree ing w ith both defenda nt and the State, we find no err or her e. ¶ 30 Even if we wer e to find that the trial court improperly allowed Daniels’ testimony about her statement on the night of the murder, we would not find this to be reve rsible err or. I llinois Supreme Court Rule 615(a) provides: “Any err or, defe ct, irreg ularity , or varia nce which does not aff

ect substantial rig hts shall be disreg arde d. Plain err ors or defe ct s af fecting substantial rig hts may be noticed althoug h they wer e not broug ht to the attention of the trial court.” I ll. S. Ct. R. 615(a) (ef f. J an. 1, 1967). We conclude that the admission of the prior consistent statem en t d i d n o t aff ect a substantial rig ht and shoul d be disreg arde d. Daniels ne ver ide ntified defe ndant as the first person she saw leave her apar

tment afte r J ug g ins was killed. She never saw the fac e of that person. Fur ther, -18-2013 I L App (2d) 110652

when questioned on cross-e x amination about her memory of that night, she stated, “I can’ t tell y ou who was in that apar

tment.” I n the prior consistent statement, Daniels descr ibed the first person she

s aw l ea v ing the apar

tment as “appr ox imately six foot tall.” At trial, Robinson’s sister, Genor es Robinson, wh o h ad dated defe ndant, testified that defe ndant was “tall”—a pproxi mately 6 fee t, 6 inches. We do not conclude that the admission of Daniels’ statement—a descr iption of an unknown person, which did not fit that of defendant (but was less incorre ct than the de scription in her prior inconsistent statement)—af fec ted a substantial rig ht. ¶ 31 Simi larly , we do not c onclude that defe nse counsel was ineffe ctive in his actions reg arding this statement. To succe ed on a claim of ineffe ctive assistance of counsel, a defe ndant must establish both that counsel’s repr esenta tion was defic ient and that the defe ndant was substantially prejudice d by the defic ient perf

orman ce . People v. W

illiams , 391 I ll. App. 3d 257, 269 (2009). A lack of substantial prejudice is fata l to a claim of ineffe ctive assistance

. Id

. The admission of Daniels’ prior consistent statement was not of such a mag nitude that defe ndant suffe red substantial prejudice and was de nied a f

air a nd impartial trial. ¶ 32 For

these re asons, the judg ment of the c ircuit court of Kane County

is affirme d. ¶ 33 Affir

med.

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