2014 IL App (1st) 111872
THIRD DIVISION July 30, 2014
No. 1-11-1872
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) 07 CR 146 ) LAWRENCE DUPREE, ) Honorable ) Michele M. Simmons, Defendant-Appellant. ) Judge Presiding.
JUSTICE MASON delivered the judgment of the court, with opinion. Justice Neville concurred in the judgment and opinion. Justice Pucinski specially concurred, with opinion.
OPINION
¶1 Following a jury trial, defendant Lawrence Dupree was convicted of first degree murder
and attempted first degree murder and sentenced to consecutive terms of 45 and 31 years in
prison for a total of 76 years. On appeal, Dupree contends that he received ineffective assistance
of counsel where his trial counsel (1) opened the door to an otherwise inadmissible prior
consistent statement from a witness; (2) allowed the State to introduce the statement repeatedly
and, without objection, argue it as substantive evidence; and (3) failed to request that a limiting
instruction be given to the jury. Dupree further contends that his mandatory 76-year sentence is
unconstitutional under the Supreme Court's holding in Miller v. Alabama, 567 U.S. ___, 132 S.
Ct. 2455 (2012), because he received a mandatory de facto life sentence for an offense allegedly
committed when he was 17. We agree that the errors identified by Dupree require reversal and
we remand for a new trial. No. 1-11-1872
¶2 BACKGROUND
¶3 Shortly before 7 p.m. on October 25, 2006, the driver of a vehicle with several young
men inside drove past a house in Riverdale, Illinois. Someone in the car fired multiple shots into
a group of people who were standing with Darrius Collins outside the house. Christopher Linder
was killed and Antonio Hammock was injured. Collins later told the police that he recognized
two of the individuals in the car, Demarcus Brandon and Cordero Robinson, and that Brandon
was the shooter.
¶4 On October 31, 2006, based on information gathered during the investigation, the police
interrogated Quinten Latimer and Donald Haywood about the shooting. Both of them initially
denied any involvement. Latimer eventually told the police that day that he was a passenger in
the car and that Dupree was the shooter. The next day, Haywood returned to the police station
and told the police that he was driving the car and Dupree was the shooter. On November 27,
2006, Dupree was arrested and charged with one count of first degree murder and one count of
attempted first degree murder.
¶5 At trial, Hammock testified that he was at home cooking dinner on October 25 when
Linder called to say that he would be stopping by on his lunch break from work. Hammock met
Linder outside on the driveway. Collins and another individual joined them outside, and while
they were talking, Karmen Baker, Hammock's girlfriend, also came outside.
¶6 A car drove past the house and Collins said, "the BDs on dummy." "BDs" meant the
Black Disciples street gang. Hammock denied knowing an individual with the nickname "BD"
and stated that he did not know Demarcus Brandon. "On dummy" meant they were "on garbage
or about to do something." It was fairly dark outside by that time and Hammock could just see
that people were in the car but could not tell who they were. The car circled the block and
-2- No. 1-11-1872
approached the house again. When it was about 20 feet away, Hammock saw flashes and heard
gunshots.
¶7 Hammock pushed Baker down behind his truck that was parked in the driveway before
he was hit in the legs and groin. Hammock fell to the ground and rolled over on his back. He
could see Linder on the ground next to Baker and then Baker got up and ran into the house. The
police and ambulances arrived and Hammock and Linder were taken from the scene in separate
ambulances.
¶8 Baker testified that she was standing outside with Hammock, Linder, Collins and another
individual on the evening of October 25 when a car drove past. Collins said the people in the car
were "mean mugging." "Mean mugging" is when someone looks at you with an angry
expression. Baker did not hear anyone say "BDs on dummy," but explained that phrase means
somebody is "up to no good." The car came back around and Baker heard gunshots after the car
turned the corner, before it reached the house. They all started running and Hammock pushed
Baker down by his truck and Linder pushed her under the truck. When the shooting stopped,
Baker ran into the house to get Hammock's mother and then ran back outside where she called
for an ambulance.
¶9 Haywood testified that he was at Dupree's house on the afternoon of October 25. At
approximately 5:30, Latimer arrived at the house. A short time later, Brandon Watson arrived
and told the others that he had paid someone $10 to rent a car. Haywood, Dupree, Latimer and
Watson were close friends. They all left the house together, and spoke to another individual
outside about a group known as "the LaSalle boys," a group of friends who all lived near LaSalle
Street in Riverdale. There was tension between Haywood's group of friends and the LaSalle
boys.
-3- No. 1-11-1872
¶ 10 Watson asked if anyone wanted to drive the car and Haywood volunteered. Although
Dupree started out in the front passenger seat, Haywood stopped the car at one point and Dupree
switched seats with Watson so that Dupree was sitting behind Haywood. Dupree told Haywood
to drive down LaSalle Street because he wanted to see if the LaSalle boys were outside.
Haywood thought that if they saw the LaSalle boys, they would get out of the car and there
would be a fight.
¶ 11 When they did not see anyone out in front of the houses on LaSalle, Latimer said they
should check in the back. As Haywood drove around the block a second time, he felt cold air so
he knew that the window behind the driver's seat had been opened. Haywood then heard
gunshots coming from inside the car, directly behind him. He drove to another location
approximately six blocks away from where he lived and parked the car. Everyone exited the car
and Dupree picked up some shell casings from the backseat and threw them in a garbage can.
Dupree then received a phone call and Haywood heard him say that he shot the wrong person
and that he "didn't try to."
¶ 12 On cross-examination, defense counsel asked if Haywood told the police several days
after the shooting that Latimer was the driver. Defense counsel asked additional questions about
what Haywood told police during his recorded interview on October 31, 2006. The questions
related to statements Haywood made regarding who suggested driving to LaSalle and when the
suggestion was made. Haywood either denied making the statements or said he did not
remember what he told police on that date. He said that he first denied that he was the driver but
later in the same interview told the police he was driving.
¶ 13 Haywood was 20 years old at the time of the shooting, Dupree was 17, Latimer was 16
and Watson was 15. Demarcus Brandon, a friend of Haywood's, went by the nickname "BD."
-4- No. 1-11-1872
Haywood and his friends were not part of a gang and neither were the LaSalle boys. There was
no faction of the Black Disciples street gang in the neighborhood.
¶ 14 Haywood acknowledged that at first he told the police he did not know Dupree, and then
said that he had only seen him a few times. Haywood further admitted that he initially lied to the
police and told them he did not know where Dupree lived. Haywood did not recall telling the
police on October 31 that he did not see who put the shell casings in the garbage can or that
Latimer had told them the car belonged to his mother. After pointing out additional
discrepancies between Haywood's trial testimony and his October 31 statement, defense counsel
asked Haywood whether his "enhanced memory" had just come to his mind in the last week.
¶ 15 On redirect, Haywood explained that he was not telling the truth on October 31 but he
returned to the police station on November 1 because he wanted to tell the police what really
happened. He did not remember the statements he made to police on October 31 because those
statements were lies but he remembered what he told police on November 1 because that was the
truth. The State made repeated references to the fact that on November 1, Haywood was telling
the police the truth. The State then read questions and answers from the transcript of the
November 1 interview that were consistent with Haywood's testimony at trial and repeatedly
asked Haywood if that is what he told police "way back" on November 1, 2006. Defense
counsel made no objections to any of the testimony related to the November 1 interview.
¶ 16 Latimer testified that he and Watson went to Dupree's house sometime in the late
afternoon on October 25, 2006. After Dupree cut Latimer's hair, Latimer and Watson left in a
car that Watson said belonged to his aunt. Watson drove to Haywood's house to pick up
Haywood, who had a driver's license. Haywood then drove back to Dupree's house and Dupree
-5- No. 1-11-1872
got in the backseat of the car behind Haywood. Latimer was also sitting in the backseat on the
passenger side.
¶ 17 The group drove around Riverdale for approximately 45 minutes listening to music.
They then drove around the LaSalle block twice and Latimer saw a group of people outside both
times. The second time, Latimer heard gunshots and ducked down because he thought the
gunshots were coming from outside the car. Latimer did not hear anyone in the car say anything
before the gunshots and did not see what happened.
¶ 18 After the shooting, Haywood drove over to Clark Street and parked the car. Everyone
got out of the car and Latimer walked home. Latimer and Watson walked in the same direction
because they lived close to one another. Latimer believed Dupree walked toward his own house
but did not actually see where either Dupree or Haywood went.
¶ 19 On October 31, 2006, Latimer was taken to the police station and questioned by two
detectives with his father present for the interview. The interview had been recorded and the
State went through a great deal of the transcript from the interview, asking Latimer if he was
asked certain questions and gave certain answers. Throughout this lengthy examination, Latimer
repeatedly stated that he did not know or did not remember what he told the police on October
31. Latimer did not remember telling the police that Dupree fired the shots and that the casings
from the gun landed on Latimer. Latimer testified that while he was being interviewed he was
afraid because one of the detectives said that he was "trying to hit [Latimer] with the murder"
and that because Latimer used the car from the murder, his fingerprints were inside the car.
¶ 20 On cross-examination, Latimer said he knew someone with the nickname "BD" and that
person's first name was Demarcus. Latimer was also allowed to testify, over the State's
-6- No. 1-11-1872
objection, that there was tension between the LaSalle boys and the people in the car and that
Haywood had previously been beaten up in a fight with the LaSalle boys.
¶ 21 Following Latimer's testimony, conversations were held outside the presence of the jury
regarding the videotapes of Haywood's November 1 interview and Latimer's October 31
interview. The court ultimately ruled that it was unnecessary for the jury to see the videotape of
Haywood's November 1 interview given that the State had already used the bulk of the transcript
of the November 1 interview in its redirect examination of Haywood. Over defense counsel's
objection, the court agreed to admonish the jury that the State had been reading from a transcript
of the videotaped interview when it questioned Haywood about the November 1 interview. Also,
over defense counsel's objection, the State was allowed to play the videotape of Latimer's
October 31 interview in its entirety.
¶ 22 In the interview, Latimer originally told police that only he and Watson were in the car
and that they parked the car on State while it was still light outside. After Latimer's father told
him to tell the police what really happened, Latimer said that Haywood and Dupree were also in
the car and that Watson told them that he had taken the car from a daycare center. Latimer then
told police that Dupree fired the shots at Collins and some other people that he could not see and
the casings landed on Latimer. Latimer was questioned about a fight that had taken place on
Saturday, four days prior to the shooting. He told police that Collins was involved in the fight
but that he and Dupree were not involved.
¶ 23 Detective Rich Graziano was one of the officers present for Latimer's interview. Officer
Graziano testified that there had been a fight four days prior to the shooting in which Parish
Jefferson was injured. He did not recall whether Demarcus Brandon, Cordero Robinson or
Darrius Collins had been involved in the fight. Parish was part of the LaSalle boys, which
-7- No. 1-11-1872
included Hammock and Collins, while Brandon, Watson, Latimer and Haywood were part of a
different group. Officer Graziano declined to label any members of either group gang members
in the absence of any knowledge that they identified themselves as gang members, but
acknowledged that there was an ongoing conflict between the two groups.
¶ 24 Shandrea Dyson testified that she owned the vehicle that was used in the shooting and
that it had been stolen from the parking lot of her son's daycare center on October 25, 2006,
when she went to pick up her son. Officer Mark Kozeluh testified that the police were able to
recover the vehicle because it was equipped with an OnStar security system. Spent shell casings
were recovered from the ground near the rear tire of the vehicle. Additional shell casings were
recovered from a garbage can outside a house two doors away from where the car was parked.
¶ 25 Patricia Wallace, a forensic scientist with the Illinois State Police, examined the spent
shell casings, fired cartridge cases, bullets and bullet jacket fragments that had been recovered
from the area where the car was found, the scene of the shooting, and during the course of
Linder's autopsy and determined that they were fired from two separate weapons.
¶ 26 Dupree's motion for a directed verdict at the close of the State's case was denied. Collins
then testified on behalf of the defense that on October 25, 2006, he and Dupree were friends.
However, Collins had problems with some people who were members of the Black Disciples
street gang, including Demarcus Brandon and Cordero Robinson.
¶ 27 On the Saturday before the shooting, there was a "big old street fight" in the
neighborhood. Collins, Jefferson and their friends were fighting with Brandon, Watson, Latimer
and their friends. Someone hit Jefferson's mother in the face with a stick and then Jefferson's
head was split open. Brandon then got a gun from his car and started shooting and everyone ran.
Dupree was not involved in the fight.
-8- No. 1-11-1872
¶ 28 On the evening of October 25, Collins's mother asked him to go to a nearby restaurant for
her. In order to get to the restaurant, Collins had to walk past Brandon's house. Collins did not
feel safe doing that after the fight, so he walked over to Hammock's house where he saw
Hammock and Linder outside and asked Hammock to give him a ride.
¶ 29 While they were standing outside, Collins saw a car come out of the alley and at first he
thought it was his friend's car, but the car drove past without stopping. Collins could see
someone in the backseat with his face against the window, "mugging" Collins. Collins
recognized the person in the backseat as Robinson, whom he knew as "BD Cordero" because he
was one of the Black Disciples, and was certain the person in the backseat was not Dupree.
Collins told Hammock that something was not right and he thought they should move around
because he thought the BDs were up to something. However, before they could move, the car
came back around and someone in the car started shooting.
¶ 30 Collins got down on the ground in a fetal position and stayed there until the shooting
stopped, then went to first Hammock and then Linder, who had both been shot. Blood was
coming out of Linder's mouth, and Collins stayed with him until the police arrived. Collins then
went with the police to the station and told the police that Robinson was the person he saw
"mean mugging" him from the backseat of the car and that Brandon was the shooter. However,
Collins acknowledged at trial that he did not actually see Brandon shooting and that he told the
police Brandon was the shooter because in the previous few altercations Collins had been in with
Brandon, Brandon had fired a weapon. Collins reiterated that he knew Dupree but did not see
him in the car on October 25.
¶ 31 Detective William Alcott was then called as a witness for Dupree. There was only an
audio recording of Haywood's October 31 interview because the video recording system was not
-9- No. 1-11-1872
working at the time of that interview. On direct examination, Detective Alcott confirmed that
Haywood told him on October 31 that Watson and Latimer asked Haywood to take a ride over to
LaSalle with them, that Latimer was driving the car and said it belonged to his mother, that
Dupree was also in the car, and that after the shooting the others dropped Haywood off on his
block before they parked the car.
¶ 32 On cross-examination, the State questioned Detective Alcott about the substance of the
November 1 interview. Detective Alcott confirmed that Haywood came to the police station on
November 1 voluntarily and indicated that he wanted to be completely truthful because there
were things he had not been truthful about the previous day. Over defendant's objection, the
State was allowed to ask whether Haywood said that he had not told the truth the previous day
because he did not want to have anything to do with what happened.
¶ 33 The State then asked Detective Alcott whether Haywood identified Dupree as the shooter
on November 1 and defense counsel asked for a sidebar. Outside the presence of the jury,
defense counsel argued that the State was going beyond the scope of direct examination and
"cumulatively piling on" by bringing out all the details of the November 1 interview. The State
responded that the jury was allowed to consider the November 1 interview as substantive
evidence in order to determine which statement was truthful. The trial court sustained the
objection to the question about whether Dupree was the shooter because no questions had been
asked about that on direct examination, but ruled that the State could use the November 1
statement for impeachment. The trial resumed but the jury was not informed that the objection
to the question about Dupree being the shooter had been sustained.
¶ 34 The parties stipulated that if Detective Dan Dempsey was called, he would testify that on
October 27, 2006, Cordero Robinson was brought into the station for questioning and
- 10 - No. 1-11-1872
subsequently released. He would further testify that on November 1, 2006, Demarcus Brandon
and Brandon Watson were interviewed separately and both were subsequently released.
¶ 35 In closing argument, the State told the jury that Haywood had not been impeached on his
November 1, 2006 statement, and noted that the November 1 statement "mirrored" Haywood's
trial testimony. Defense counsel did not object.
¶ 36 The jury found Dupree guilty of first degree murder and attempted first degree murder,
and also found that he had personally discharged a firearm in the commission of both offenses.
Dupree's motion for a new trial was denied. At the sentencing hearing, defense counsel and the
trial court both acknowledged that the court had almost no discretion because of the statutory
mandatory minimum and consecutive sentence requirements. The trial court sentenced Dupree
to 20 years on the first degree murder charge with an additional mandatory 25 years for
personally discharging a firearm, for a total of 45 years. The trial court further sentenced Dupree
to 6 years on the attempted first degree murder charge with an additional mandatory 25 years for
personally discharging a firearm, for a total of 31 years. Because consecutive sentences were
mandatory, Dupree was sentenced to a total of 76 years. Dupree timely filed this appeal.
¶ 37 ANALYSIS
¶ 38 A. Ineffective Assistance of Counsel
¶ 39 Dupree first contends that his trial counsel provided ineffective assistance when he
opened the door to an otherwise inadmissible prior consistent statement from Haywood, allowed
the State to introduce the statement repeatedly and argue it as substantive evidence, and failed to
request that the jury be given a limiting instruction. Dupree argues that it was not reasonable for
his trial attorney to pursue a line of questioning suggesting that Haywood's trial testimony was a
- 11 - No. 1-11-1872
recent fabrication when counsel was aware that Haywood's answers in the November 1, 2006,
interview were consistent with his trial testimony.
¶ 40 Ineffective assistance of counsel claims are measured against the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance, a
defendant must show both that counsel's representation fell below an objective standard of
reasonableness and that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. Id. at 687-88, 694; see also
People v. Edwards, 195 Ill. 2d 142, 162-63 (2001). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
¶ 41 To establish that trial counsel's performance was deficient, a defendant must overcome
the strong presumption that counsel's action or inaction was the result of sound trial strategy.
People v. Evans, 186 Ill. 2d 83, 93 (1999). A reviewing court is highly deferential to trial
counsel on matters of trial strategy and must make every effort to consider counsel's performance
from his perspective at the time, rather than in hindsight. People v. Perry, 224 Ill. 2d 312, 344
(2007).
¶ 42 A prior consistent statement may not be used on direct examination to enhance the
credibility of a witness's testimony. People v. Williams, 147 Ill. 2d 173, 227 (1991). "Moreover,
when a witness is impeached by means of a prior inconsistent statement, if a consistent statement
does not disprove or explain the making of the inconsistent statement, it is inadmissible." Id.
Specifically, a prior consistent statement is not admissible simply because a witness has been
impeached with a prior inconsistent statement. People v. Johnson, 2012 IL App (1st) 091730, ¶
60. However, where there is a charge or inference of recent fabrication, a prior consistent
statement is admissible to show that the witness told the same story before the time of the alleged
- 12 - No. 1-11-1872
fabrication. Williams, 147 Ill. 2d at 227. A charge of recent fabrication is not made by simply
questioning a witness as to whether the witness went over his testimony or rehearsed his
testimony with opposing counsel. People v. Lambert, 288 Ill. App. 3d 450, 455 (1997).
¶ 43 Here, defense counsel introduced Haywood's October 31 statement, a prior inconsistent
statement, for impeachment purposes during cross-examination to demonstrate the discrepancies
between that statement and Haywood's trial testimony. But counsel went further and, contrary to
what he undoubtedly knew, implied that Haywood's "enhanced memory" was of recent vintage.
This allowed the State on redirect to question Haywood about the November 1 statement, a prior
consistent statement, to rebut the charge of recent fabrication. Moreover, the State also
suggested to the jury that Haywood's prior consistent statement was the "truth."
¶ 44 Our review of the record convinces us that Dupree has established that his representation
at trial fell below an objective standard of reasonableness. The State argues that it is clear from
the record that defense counsel's strategy was to demonstrate that Haywood had given
inconsistent statements to the police at the outset. In support of its position, the State cites to
comments made by defense counsel during closing argument, and contends that these comments
demonstrate that defense counsel's strategy was to argue that the second statement was a
"deliberate frame-up" that was repeated at trial.
¶ 45 As an initial matter, we note that once the November 1 statement was admitted, defense
counsel had no choice but to address it in some fashion. His suggestion in closing, therefore, that
Haywood and Latimer were motivated to lay blame for the shooting on Dupree, appears to be an
effort to make the best of a bad situation. But the record does not bear out that this was defense
counsel's strategy from the outset. Defense counsel did not introduce the November 1 statement
during Haywood's cross-examination and eventually objected to its introduction. Defense
- 13 - No. 1-11-1872
counsel also objected to the introduction of the video of Haywood's November 1 statement,
conduct that is inconsistent with a presumed strategy to demonstrate that the November 1
statement was a "frame-up." Thus, the State's contention that the introduction of Haywood's
November 1 statement was part of defense counsel's strategy is not borne out by the record.
¶ 46 It is clear from the record that defense counsel's strategy in introducing the October 31
statement was to cast doubt on Haywood's credibility by demonstrating to the jury that he had
initially given police a different account and pointing out the inconsistencies between that
account and Haywood's trial testimony. It is equally clear from the record that defense counsel
opened the door to the admission of the November 1 statement by suggesting that Haywood's
trial testimony was a recent fabrication when, in fact, defense counsel was necessarily aware that
Haywood's trial testimony was consistent with the November 1 statement.
¶ 47 Moreover, defense counsel never objected to the State's initial introduction of the prior
consistent statement. Indeed, after expressly telling the trial court at a sidebar that the questions
regarding the October 31 statement were for impeachment purposes to demonstrate the
differences between that statement and Haywood's trial testimony, defense counsel merely
argued that the November 1 video should not be shown because the State had already introduced
large portions of the November 1 statement in its redirect examination. Defense counsel then
stated that the State's introduction of the November 1 statement was "to counter my
impeachment." But if defense counsel had limited his cross-examination of Haywood to his
prior inconsistent statement on October 31, the State would not have been able to use Haywood's
November 1 statement to "counter" that impeachment. Thus, the error committed by defense
counsel resulted in placing Haywood's November 1 statement before the jury.
- 14 - No. 1-11-1872
¶ 48 Defense counsel also erred in addressing the admissibility of Haywood's November 1
statement during the testimony of Detective Alcott. Defense counsel's direct examination of
Alcott was limited to proving up aspects of Haywood's October 31 statement that Haywood
either disavowed or claimed not to remember during his cross-examination. On cross-
examination, the State again elicited the details of Haywood's November 1 statement from
Detective Alcott. Defense counsel objected on the grounds that the questions were beyond the
scope of direct examination, and again characterized the State's introduction of the November 1
statement as a "prove up" to defense counsel's impeachment of Haywood. But the State had
already placed the substance of Haywood's November 1 statement before the jury when it read to
Haywood from the transcript of that statement and Haywood acknowledged making the
statement. Thus, there was no reason for the State to prove up anything through Alcott. So
although the State's cross-examination of Alcott was, in fact, beyond the scope of defense
counsel's direct, the State's effort to reintroduce the substance of Haywood's prior consistent
statement during its cross-examination of Alcott was objectionable for a completely separate and
more fundamental reason. Moreover, although defense counsel's objection to Alcott's testimony
that Haywood identified Dupree as the shooter was sustained during a sidebar, the jury was never
informed of the court's ruling, defense counsel did not bring it up again when the trial resumed,
and, therefore, the jury was never instructed to disregard the answer.
¶ 49 Finally, defense counsel failed to object to the State's repeated use of the November 1
statement as substantive evidence, and failed to request that a limiting instruction be given to the
jury. "Even where admissible, prior consistent statements may only be used for rehabilitative
purposes; they are not admissible as substantive evidence." People v. McWhite, 399 Ill. App. 3d
637, 641(2010). Our supreme court has noted that where the State argues that a prior consistent
- 15 - No. 1-11-1872
statement is the truth, and the jury is not instructed that the evidence should be considered for a
limited purpose, the statement is being used as substantive evidence. People v. Walker, 211 Ill.
2d 317, 345 (2004).
¶ 50 Here, the State repeatedly asked Haywood whether the November 1 statement was the
"truth," without objection from defense counsel. During closing argument, the State reiterated
that the November 1 statement "mirrored" Haywood's trial testimony. No limiting instruction
was requested and defense counsel did not object to any of the State's references to the truth or to
the State's closing argument that the November 1 statement corroborated Haywood's trial
testimony. See People v. Young, 306 Ill. App. 3d 350, 355 (1999) (defense counsel's proof of
prior consistent statements by witness adverse to defendant "introduced evidence into the trial
that was otherwise inadmissible;" representation deemed ineffective); People v. Salgado, 263 Ill.
App. 3d 238, 247-49 (1994) (finding counsel's performance deficient because he did not ask the
trial court for a limiting instruction regarding the use of impeachment evidence).
¶ 51 Without defense counsel's original error in suggesting that Haywood's trial testimony was
a recent fabrication when defense counsel knew it was not, the November 1 statement would
have been inadmissible. Defense counsel then compounded the error by not objecting to the
State's introduction of the November 1 statement as substantive evidence and not requesting that
the jury be given a limiting instruction. Moreover, defense counsel did not raise a proper
objection when the State introduced the November 1 statement again through Alcott when he
was called as a defense witness. Defense counsel only objected that it was beyond the scope of
the direct examination when, in fact, it was an inadmissible prior consistent statement and the
recent fabrication exception had no applicability to Alcott's testimony. Finally, although defense
counsel, in a sidebar conference, successfully objected to Alcott's testimony that Haywood
- 16 - No. 1-11-1872
identified Dupree as the shooter, he failed to request and the trial court failed to give the jury an
instruction to disregard that testimony.
¶ 52 Having determined that defense counsel's performance was deficient, we must consider
whether defense counsel's errors rendered the result of the trial unreliable or the proceedings
fundamentally unfair. See People v. Richardson, 189 Ill. 2d 401, 411 (2000). The reason prior
consistent statements are prohibited is because they are likely to unfairly enhance the witness's
credibility with the trier of fact simply because the statement has been repeated. McWhite, 399
Ill. App. 3d at 641. "The danger in prior consistent statements is that a jury is likely to attach
disproportionate significance to them. People tend to believe that which is repeated most often,
regardless of its intrinsic merit, and repetition lends credibility to testimony that it might not
otherwise deserve." People v. Smith, 139 Ill. App. 3d 21, 33 (1985).
¶ 53 The improper bolstering of a witness's credibility is reversible error when the trial
testimony of that witness is crucial. Smith, 139 Ill. App. 3d at 34. Reversible error exists even
where there is competent evidence to prove a defendant's guilt beyond a reasonable doubt if the
possibility exists that the improper evidence could have influenced the jury's verdict. Id. The
most critical factor to consider in determining whether the bolstering deprived the defendant of a
fair trial is whether the statement had a bearing upon his guilt or innocence. Id.
¶ 54 Here, the evidence against Dupree was far from compelling. No physical evidence linked
him to the shooting, his fingerprints were not found in the car or on the shell casings recovered
from the ground and the garbage can where Latimer told police Dupree deposited them and no
weapon was recovered. Further, Dupree was not involved in a prior altercation with the LaSalle
boys. The two witnesses who identified Dupree as the shooter both also admitted to being in the
car at the time of the shooting and were never charged in connection with the crimes. Moreover,
- 17 - No. 1-11-1872
Latimer was involved in the previous fight according to one witness, and Latimer testified that
Haywood had been beaten up by the LaSalle boys in another fight. Collins testified that (1) he
saw Cordero Robinson in the car that night, (2) he did not see Dupree, (3) he had gone to
Hammock's house in an attempt to avoid Demarcus Brandon, of whom he was afraid, who was
Robinson's close friend, and who had used a firearm during a previous altercation with Collins
and others, and (4) he was friendly with Dupree and did not think he would have any reason to
shoot him.
¶ 55 The two witnesses who identified Dupree as the shooter also provided conflicting
accounts. Latimer initially told the police he was not involved at all and Haywood told one story
the day he was initially taken in for questioning, but returned the next day to provide an account
that was consistent with the account eventually given to the police on the previous day by
Latimer. The jury's erroneous reliance on the prior consistent statement in determining
Haywood's credibility at trial was made more likely by the fact that the State introduced large
portions of the statement, it was likely viewed as substantive evidence by the jury because no
limiting instruction was requested or given, and the State repeatedly elicited the testimony that
Haywood returned to the police station to give a different account because he wanted to tell the
truth. Moreover, the statement was repeated again through the testimony of Alcott.
¶ 56 Haywood's prior consistent statement was highly prejudicial because it was directly
related to Dupree's guilt. Given the errors by defense counsel that allowed the State to use the
November 1 statement, the failure to request a limiting instruction regarding the use of that
statement and the State's conduct in urging the jury to consider the statement as the "truth," there
is a reasonable probability that the outcome of a trial free of these errors would have been
- 18 - No. 1-11-1872
different. Thus, because both prongs of the Strickland test have been satisfied, we reverse
Dupree's convictions and remand for a new trial.
¶ 57 B. Mandatory 76-Year Sentence
¶ 58 Dupree also contends that his sentence was unconstitutional under Miller v. Alabama,
567 U.S. ___, 132 S. Ct. 2455 (2012), because he was 17 when the shooting occurred and the
mandatory statutory minimums for the two offenses constituted a de facto life sentence of 76
years, of which he is required to serve 71.35 years without the possibility of parole. Because we
are reversing Dupree's convictions, we need not address this argument. We note, however, that
the convergence of mandatory minimum and mandatory consecutive sentences, as applied to
juveniles, resulting in a sentence that exceeds the juvenile's life expectancy, raises serious
constitutional issues. See People v. Caballero, 282 P.3d 291, 295 (Cal. 2012); State v. Ragland,
836 N.W.2d 107, 111 (Iowa 2013); State v. Null, 836 N.W.2d 41, 45 (Iowa 2013);
Commonwealth v. Brown, 1 N.E.3d 259, 270 n.11 (Mass. 2013). Whether those issues are
present here must await Dupree's retrial.
¶ 59 Finally, because we are reversing defendant's convictions and remanding for a new trial,
we need not order that the mittimus be corrected.
¶ 60 CONCLUSION
¶ 61 For the reasons stated, we reverse defendant's convictions and remand for a new trial.
After a careful review of the record, we conclude that the evidence was sufficient to convict
defendant of first degree murder, thus, no double jeopardy impediment to retrial is present. See
People v. Ward, 2011 IL 108690, ¶ 50.
¶ 62 Reversed and remanded.
¶ 63 JUSTICE PUCINSKI, specially concurring.
- 19 - No. 1-11-1872
¶ 64 I concur; however, I write separately to address defendant's constitutional challenge to
this State's sentencing scheme, which in its current form, requires courts to sentence juvenile
offenders convicted of certain violent crimes to terms of imprisonment that, in effect, result in
mandatory de facto life sentences. I believe that this sentencing scheme, as applied to juvenile
offenders, does not withstand constitutional scrutiny.
¶ 65 Although defendant was 17 years of age at the time of the alleged offenses, the cause was
transferred from juvenile court to adult criminal court due to the severity of the charges as
required by section 5-130 of the Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2006)).
Furthermore, because he was prosecuted in adult criminal court, he was automatically subjected
to adult sentencing provisions including: section 5-8-1(a)(1)(a) of the Unified Code of
Corrections (730 ILCS 5/5-8-1(a)(1)(a) (West 2006)) (mandating a minimum sentence of "not
less than 20 years[' imprisonment] for an offender convicted of first degree murder); section 5-8-
1(a)(1)(d)(iii) (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2006)) (mandating a minimum 25-year
sentencing enhancement be imposed on an offender who personally discharged a firearm and
caused another person's death); section 8-4(c)(1)(D) of the Criminal Code of 1961 (720 ILCS
5/8-4(c)(1)(D) (West 2006)) (mandating a minimum sentence of 31 years' imprisonment for an
offender convicted of attempted first degree murder where the offender personally discharges a
firearm that resulted in the great bodily harm of another person); and section 3-6-3(a)(2)(i) and
(ii) (730 ILCS 5/3-6-3(a)(2)(i)-(ii) (West 2006)) (requiring an offender convicted of first degree
murder to serve 100% of his sentence without the possibility of parole and requiring an offender
convicted of attempted first degree murder to serve at least 85% of his sentence before being
eligible for parole). Considered as a whole, these sentencing provisions mandate that defendant
will not even be eligible for parole until he has been in prison for 71.35 years, which in practical
- 20 - No. 1-11-1872
effect, is the functional equivalent of a natural life sentence. See, e.g., People v. Walker, 392 Ill.
App. 3d 277, 300 (2009) (recognizing that a 60-year sentence imposed on a 20-year-old
defendant was a "de facto life sentence").
¶ 66 In Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), the United States Supreme
Court held that any sentencing scheme calling for the mandatory imposition of a life sentence
without the possibility of parole on offenders who were under the age of 18 at the time of their
offense violates the eighth amendment's prohibition against cruel and unusual punishment. In so
holding, the court reasoned that "children are constitutionally different from adults for purposes
of sentencing" and that "youth matters in determining the appropriateness of a lifetime of
incarceration without the possibility of parole." Id. at ___, 132 S. Ct. at 2464-2465.
Accordingly, any sentencing scheme mandating the imposition of a life sentence without
possibility of parole on a juvenile offender absent any consideration of the "hallmark features" of
youth including "immaturity, impetuosity, and failure to appreciate risks and consequences" runs
afoul of the constitutional guarantees of the eighth amendment. Id. at ___, 132 S. Ct. at 2468.
¶ 67 Although I acknowledge that statutes enjoy a “strong presumption” of constitutionality,
(People v. Sharpe, 216 Ill. 2d 481, 487 (2005)), I believe that the current sentencing scheme to
which defendant was subjected, which mandates the imposition of a de facto life sentence on a
juvenile offender absent any consideration of the unique hallmark features of youth, cannot
withstand constitutional scrutiny in light of Miller.
- 21 -