People v. Gacho

JUSTICE SIMON, dissenting:

The State was permitted, over the defendant’s objection, to cross-examine the defendant about the contents of a letter he wrote to Katherine De Wulf from prison in which he stated: “I still believe I can escape from here one way or the other.” The defendant objected on the ground that the State was introducing proof of another possible crime. The majority concludes that the trial court ruled correctly in allowing the cross-examination because the defendant’s statement about escaping from jail “was proper and relevant testimony as tending to show consciousness of guilt,” citing People v. Gaines (1981), 88 Ill. 2d 342 , cert. denied (1982), 456 U.S. 1001 , 73 L. Ed. 2d 1295 , 102 S. Ct. 2285 , and People v. Harper (1967), 36 Ill. 2d 398 . (122 Ill. 2d at 246.) These two cases, however, involved situations where the defendants actually escaped or attempted to escape. (People v. Gaines, 88 Ill. 2d at 366 ; People v. Harper, 36 Ill. 2d at 403 .) Here, the defendant was simply writing about the possibility of leaving prison sometime in the future. He may have meant that he thought he would be found innocent and be released or he may have been thinking of escaping because of harsh conditions in prison. In any case, his statement is not relevant to the issue of whether he is guilty of murder, and permitting the State to cross-examine the defendant about the statement was reversible error.

I believe that the trial court also committed a reversible error in admitting De Wulf’s prior consistent statement given at the police station on December 12, 1982, the night after the incident. A prior consistent statement is admissible to rebut a charge that the witness has a motive to testify falsely or that her testimony is of recent fabrication where the witness told the same story before the motive came into existence or before the time of the alleged fabrication. (People v. Clark (1972), 52 Ill. 2d 374, 389 .) The majority does not apply this principle to the evidence introduced here. Rather, relying on this court’s decision in Gacho’s codefendant’s case, People v. Titone (1986), 115 Ill. 2d 413, 423 , the court concludes that the statement was admissible because the trial judge “apparently concluded that De Wulf did not have a motive to fabricate when the statement was made.” (122 Ill. 2d at 250.) The majority does not identify any motive that De Wulf had to fabricate her trial testimony that did not also exist when she gave her original statement to the police. The defense theory, as evidenced by its cross-examination of De Wulf, was that she falsely implicated the defendant in order to avoid prosecution for being an accomplice to murder or for possession of cocaine at her residence. As I stated in my dissent in People v. Titone, “Since this motive was present, if anything more forcefully, when she made her original statement to the police the night after the incident, the existence of that statement could not rebut the inference created by the defense that she was lying on the stand and served only to improperly bolster her testimony.” ( 115 Ill. 2d at 428 (Simon, J., dissenting).) For the foregoing reasons, I believe that the defendant’s conviction should be reversed, and I respectfully dissent.