People v. Bailey

MR. CHIEF JUSTICE UNDERWOOD, with whom MR. JUSTICE RYAN joins, dissenting:

To the extent that the majority opinion may be thought to hold the prior inconsistent statements incompetent, I do not agree. That those statements were emphasized beyond proper limits, I concede. But I concur with Mr. Justice Ryan that, considering the evidence in this case, reversal of the convictions is unnecessary.

In my judgment, earlier decisions of this court are not in harmony and have resulted in the impression that prior inconsistent statements by witnesses made outside the presence of defendants, and relating directly to the guilt or innocence of those defendants, are inadmissible for the purpose of impeaching the credibility of such witnesses. A careful analysis of those cases, however, reveals that this court has not intended to establish such a broad rule, but rather has attempted to eliminate attempts by the State to use such hearsay statements as substantive evidence under the “guise of impeachment.” Despite the unfortunate use of overly broad language in several cases, this court has permitted and should, in my view, continue to permit the use of such statements when the record clearly reveals that their sole purpose was impeachment and no attempt was made by the State to impart substantive value to them. While I agree that the unnecessary emphasis upon the impeaching evidence in this case merits criticism, the court does not address itself to the problem created by our past decisions. I therefore feel compelled to add my own comments which I hope may serve to clarify what I regard to be substantial confusion regarding the proper use of prior inconsistent statements to impeach witnesses in criminal cases.

In People v. Johnson (1929), 333 Ill. 469 , the trial court had granted the State’s request to have Florence Ford called as a court’s witness. She had previously stated out of court to four people that the defendant had sold her a radio taken in the burglary for which he was on trial. She subsequently changed her story, exonerating the defendant, and told this second story on the witness stand, as the State knew she planned to do when it asked she be made a court’s witness. When confronted with her previous statements, she denied them, whereupon the State was allowed to call the four witnesses to the previous statement in order to impeach her testimony. This court, stating that her testimony was entirely immaterial, reversed the defendant’s conviction:

“The only object of having her called as a witness was not to get the testimony which she was expected to give, but to get before the jury her unsworn statement which it was intended to offer under the guise of impeachment.” (Emphasis added.) 333 Ill. 469, 475 .

In People v. Barragan (1929), 337 Ill. 531 , defendant had been indicted for robbery with two other men, Drury and Brodie. Drury, who had pleaded guilty, w&s returned from the penitentiary as a court’s witness and testified that the defendant did not commit the robbery with him. He was then confronted with a prior statement he had made to police implicating the defendant, but he denied making the statement. The police officer who transcribed the statement then testified that Drury had in fact made the statement. Although much closer than Johnson to being proper impeachment, this court again reversed the conviction, concluding from the record that the “whole purpose of the offer was to get before the jury evidence of Drury’s unsworn statement that Barragan participated in the crime.” 337 Ill. 531, 536 .

In People v. Grigsby (1934), 357 Ill. 141 , defendant had been tried and convicted of assault with intent to murder. Mary Lockard had told the State’s Attorney prior to the trial that the defendant had come to her home the night of the crime and told her that he “had just shot a couple of guys.” Once on the witness stand, it was obvious that she was changing her story, and the State was allowed to withdraw her as a witness. She was later recalled as a court’s witness and questioned about her previous statement without any foundation being laid for impeachment. The State’s Attorney merely asked her whether she had been asked certain questions and given certain answers, to which she replied, “Yes, sir.” This court reversed the conviction, condemning such advance impeachment as an obvious attempt to use Mary Lockard’s statement for substantive purposes:

“All of these matters sought to be introduced by the indirect method of advance impeachment of a witness who had not testified to the contrary are collateral to the main issue. Whether or not in a proper case they might be competent by way of impeachment, they were entirely incompetent and extremely prejudicial as here offered on the case in chief.” (Emphasis added.)( 357 Ill. 141, 148-49 .)

In reversing the convictions in Johnson, Barragan, and Grigsby, this court was responding to the use of improper tactics by the State under the “guise of impeachment,” but, it seems to me, clearly did not intend to establish a rule forbidding proper impeachment by the use of prior inconsistent statements.

In People v. Hundley (1954), 4 Ill.2d 244 , defendant’s girlfriend was made a court’s witness after it was clear that her testimony would not be in agreement with her previous statements to police. She was then impeached with the statement which was damaging to the defendant. Relying on Johnson, Barragan, and Grigsby, this court reversed the conviction, noting once again that the real intention of the State was not proper impeachment.

It was in People v. Tunstall (1959), 17 Ill.2d 160 , that this court first enunciated a rule seeming to forbid the use of certain prior statements even for proper impeachment. Defendant, on trial for armed robbery, had called as a witness James Webb, who was also charged with the crime. Webb testified that he had indeed committed the crime but completely exonerated the defendant. When confronted by the State with a previous statement implicating defendant, Webb admitted making the statement but claimed it was untrue. The prosecutor then interrogated Webb concerning each question and answer in the previous statement, introduced police testimony that the statement was given voluntarily by Webb, and read the entire statement into evidence. The jury was never instructed that the statement was admissible only for purposes of impeachment and “its introduction into evidence left the jury free to look upon it as further evidence of the defendant’s guilt.” ( 17 Ill.2d 160, 166 .) Despite the improper use of the statement as substantive evidence, clearly impermissible under prior decisions, the court then cited Hundley and Barragan as authority for a rule that “the admission of a confession or statement made outside the presence of a defendant is not competent, even for the purpose of impeachment, where such statement or confession bears directly upon a defendant’s guilt or innocence of the crime, and is likely to have a prejudicial influence on the minds of the jury.” (Emphasis added.)( 17 Ill.2d 160, 166 .) But even after thus announcing what appears to be a broad rule forbidding the use of such prior statements for any purpose, the court, commenting on Barragan, indicated that its real concern, as in every previous case, was the use of such statements for substantive purposes:

“It is apparent from the language of the Barragan case that it is futile to contend that Webb’s contradictory testimony served to make his statement competent against defendant, or that its admission into evidence was harmless error. The statement was made outside defendant’s presence, was not assented to by him and, in view of his own testimony of denial and alibi, could only have resulted in prejudicial influence in the minds of the jurors, particularly since its use and purpose in evidence was in no manner limited. Moreover, from the prosecutor’s action in bringing each and every detail of Webb’s statement to the attention of the jury, suspicion attaches that he was not motivated by a purpose of impeachment alone, but also by a desire to get before the jury Webb’s statement that defendant had prepared for the crime, assisted in its commission, and shared in its spoils.” 17 Ill.2d 160, 167-68 .

In People v. Tate (1964), 30 Ill.2d 400 , this court held that the rule announced in Tunstall was too broad and that proper impeachment was not forbidden. Defendants, on trial for murder, called as a witness Hosie Laws, who had been indicted with them and had pleaded guilty to the crime. He testified that he alone was responsible for the murder, but was impeached with a previous statement he had given police implicating defendants. After the prosecutor read the questions and answers once, the parties stipulated that the court reporter who took the statement would verify it, and the questions and answers were then read again to the jury by the prosecutor. The judge overruled defendants’ objection to admission of the statement, stating “it is a matter of attempted impeachment.” The jury was given no other explanation or instruction with regard to this prior statement. After quoting the broad rule announced in Tunstall, the court noted that the “factual situations in the three cases cited [in Tunstall\ for the broad proposition thus announced [there] differed from the problem present in the Tunstall case” ( 30 Ill.2d 400, 403 ), and added that the decision in Tunstall ‘.‘did not rest solely upon the broad statement [announced there] and that statement is not adhered to.” (Emphasis added.) ( 30 Ill.2d 400, 404 .) The conviction of the defendants was reversed because “as in Tunstall, the jury was not adequately instructed as to the limited purpose for which the impeaching evidence could .be used.” ( 30 Ill.2d 400, 405 .) Thus, in plain terms, this court disavowed and limited the scope of the broad language of Tunstall.

However, the court then seemed to ignore Tate in deciding People v. McKee (1968), 39 Ill.2d 265 , which is quoted with apparent approval by the majority in this case. The defendant was being tried for murder in a bench trial. The State called Edward Clifford, an alleged accomplice, as a witness, but he stated that he and McKee were innocent, whereupon he was made a court’s witness. On the theory of impeachment, he was confronted on a question-and-answer basis with every item in two prior statements he had given police implicating himself and the defendant. Clifford recalled making the statements but declared repeatedly that they were false.. One of the statements was quite lengthy, and Clifford was on the stand almost a full day. The trial court, although admitting the statements for purposes of impeachment, had in its findings given substantive effect to certain information contained only in those prior statements. McKee’s conviction was reversed since the statements were thus obviously “admitted as evidence under the guise of impeachment and had no probative value as to the guilt of the defendant.” ( 39 Ill.2d 265, 272 .) With no mention of Tate, the court then reaffirmed and even broadened the discredited Tunstall rule by adding the following dictum: “Had the case been tried before a jury the admission of such testimony would necessarily constitute reversible error for the reason that such evidence is not competent even for the purpose of impeachment where the statement bears directly upon defendant’s guilt or innocence.” ( 39 Ill.2d 265, 271 .) The court even failed to add the final sentence of the Tunstall language — “and is likely to have prejudicial influence on the minds of the jury” ( 17 Ill.2d 160, 166 ) — noting only that the “prejudicial affect [sic] upon a jury would be too much.” 39 Ill.2d 265, 271 .

Faced with the same issue once again in People v. Marino (1970), 44 Ill.2d 562 , this court plainly demonstrated that it was not bound by the dicta in Tunstall and McKee. Defendants were charged with theft of property exceeding the value of $150. One of the police officers who had apprehended them was called as a court’s witness after his attorney advised the State that his testimony would differ from his prior statements. His previous testimony at the preliminary hearing and before the grand jury was damaging to the defendants because his identification of them as the persons who ran from the scene of the crime was positive and he had revealed that they had offered him a bribe after being apprehended. At the trial, however, he could not positively identify defendants, who were apprehended after a short chase, as the men he saw run from the scene, nor could he recall a conversation with them after taking them into custody. When the State used the officer’s previous statements for impeachment, the trial judge specifically instructed the jury that such statements were for impeachment only. The officer stated that he couldn’t remember making the prior statements, whereupon the parties agreed that the court transcripts of the previous testimony were correct. The jury was again advised of the limited use of these prior statements. This court held that the statements were properly used for impeachment and distinguished McKee:

“Unlike the situation in the present case, the statements used [in McKee] under the guise of impeachment were in part admissions of guilt made by the witness out of the presence of the defendant implicating the latter in the crime. [Citation.] Further, the trial court had there allowed the State to vigorously and minutely cross-examine the witness on matters purely collateral to the issues in the case. Here the trial court specifically admonished the jury during the State’s cross-examination of Sgt. Prokop that prior inconsistent statements made by such witness were to be used only for the purpose of determining his credibility and not as proof of the assertions therein made. In addition, the impeaching statements were largely germane to the issues in the case. Defendants do not' question the propriety of the trial court’s decision in making Sgt. Prokop its own witness; the State needed his testimony in order to establish defendant Pettit’s participation in the crime, and under the circumstances present at the trial, we do not believe that the State’s cross-examination of Prokop constitutes reversible error.” ( 44 Ill.2d 562 ; 577-78.)

Although perhaps not as damaging as some of the prior statements in other cases, the officer’s previous statement was certainly one bearing directly on defendants’ guilt or innocence since it affirmed that the persons apprehended were in fact the same persons who ran from the scene of the crime. And at least the statement before the grand jury was given outside the presence of the defendants. This decision, in my judgment, is a square holding that any prior inconsistent statement is admissible for impeachment when the court insures that such is its sole purpose.

I believe that the' court’s true position on this issue was stated fully and accurately in People v. Paradise (1964), 30 Ill.2d 381 , 383-85:

“This court has consistently held that evidence of prior inconsistent statements by a witness is admissible to impeach his credibility. (People v. Morgan, 28 Ill.2d 55 ; People v. Moses, 11 Ill.2d 84 ; People v. Biloche, 414 Ill. 504 ; People v. Smith, 391 Ill. 172 ; People v. Gleitsmann, 361 Ill. 165 ; People v. Romano, 337 Ill. 300 ; People v. Graves, 331 Ill. 268 ; People v. Popovich, 295 Ill. 491 .) The admission of such evidence is premised on the fact that its exclusion would deprive the party seeking to use it of his opportunity to exhibit the truth and in leaving him the prey of a hostile witness. (3 Wigmore on Evidence, 3rd ed. sec. 903.) It must be recognized, however, that in criminal cases these extrajudicial statements are often highly incriminating and are usually made outside the presence of the defendant. To give these statements substantive value would allow an accused to be convicted on extrajudicial statements of witnesses — a practice that runs counter to the notions of fairness on which our legal system is founded. (Bridges v. Wixon, 326 U.S. 135 , 89 L. Ed. 2103 , 65 S. Ct. 1443 .) Therefore, prior self contradictions are not to be treated as having any substantive or independent testimonial value. People v. Morgan, 28 Ill.2d 55 ; People v. Moses, 11 Ill.2d 84 ; see also 3 Wigmore on Evidence, 3rd ed. sec. 1018; McCormick on Evidence, sec. 39.

While we have recognized the necessity for, and permitted the use of, contradictory statements for impeachment, we have also recognized the danger that the out-of-court statement may be taken by the jury as substantive testimony in place of the statement on the stand. As a practical matter, it may be impossible for a juror to consider extrajudicial statements as bearing on the credibility of the witness and avoid being influenced by it as substantive evidence on the main issue, (see McCormick on Evidence, sec. 39,) but the difficulty of the mental operation the law asks a juror to make in considering evidence for one purpose and not another does not convince us that convictions should be based on out-of-court statements of witnesses who will not affirm these statements in a public proceeding. Accordingly, this court has refused to allow a conviction to be based solely on unsworn statements by witnesses (see People v. Tate, (No. 36481) post, 400; People v. Newman, (No. 37735) post, 411, or to permit such unsworn statements to be offered virtually for the purpose of using them as testimony. (People v. Barragan, 337 Ill. 531 .) And, to lessen the risk of the properly admitted prior inconsistent statement of a witness being considered by the jury as testimony, this court has required that the impeachment not be repetitious (People v. Moses, 11 Ill.2d 84 ,) and that the jury be clearly cautioned and instructed to limit its consideration of such evidence for its proper purpose. People v. Tunstall, 17 Ill.2d 160 .”

This same language was quoted with approval in People v. Collins (1971), 49 Ill.2d 179, 194-95 , in which we refused to follow a recent trend in other jurisdictions allowing use of prior inconsistent statements as substantive evidence, but our intention there was obviously not to restrict proper impeachment techniques. Indeed, to follow a rule as broad as that stated in Tunstall and McKee would allow a witness to lie with impunity on the stand, knowing that his previous statements could not even be used to reveal that his testimony was unreliable. Although we have recognized in Paradise, Collins and other cases that jurors have difficulty in considering evidence for one purpose and not another, we have never held that they cannot or should not be asked to do so. Rather, the whole import of our many decisions in this area is that every reasonable precaution should be observed by judges and lawyers to insure that prior inconsistent statements are used only for impeachment purposes and not improperly emphasized to the point that they will be viewed by the jury as substantive evidence. Courts should be alert to see that limiting instructions are given and particular care is necessary where the prior statement bears directly on the defendant’s guilt or innocence. In those situations it is evident that undue repetition or emphasis will be highly prejudicial. But at the same time, basic to our system of justice is the axiom that no witness, whether called by a party or the court, should be permitted to lie, and impeachment by prior inconsistent statements, when properly and fairly accomplished, has always been and remains a permissible means of demonstrating that he may have done so.