People v. Sharp , 2021 IL App (1st) 182042-U ( 2021 )

2021 IL App (1st) 182042-UFIRST DISTRICT,
FIRST DIVISION
November 22, 2021
No. 1-18-2042
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in
limited circumstances allowed under Rule 23(e)(1).
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
_____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,
) Circuit Court of
) Cook County, Illinois.
Plaintiff-Appellee,
)
v.
) No. 17 CR 16867
)
ISAAC SHARP,
) Honorable
) Timothy Joseph Joyce,
Defendant-Appellant.
) Judge Presiding
_____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court.
Presiding Justice Hyman and Justice Walker concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in admitting witness’ prior consistent
statement where the witness’ motive to lie arose after the statement was made.
¶2 Defendant Isaac Sharp was convicted of three counts of unlawful possession of a weapon
by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2016)) and sentenced to concurrent sentences
of 5 years’ imprisonment on each count. Defendant appeals, arguing that the trial court abused its
discretion in admitting a witness’s prior consistent statement. We affirm.
No. 1-18-2042
¶3 BACKGROUND
¶4 On November 1, 2017, defendant was a passenger in Lyft car that was pulled over for a
traffic violation. The police recovered three guns and ammunition in the car. Defendant was
charged with multiple counts of UPWF, including unlawful possession of ammunition.
¶5 Prior to trial, the court was advised that the State’s witness, Ahmed Chafai, had inquired
about a U Visa 1 and the State “provided him with some information regarding that.” The court
denied the State’s request to “exclude anything” about Chafai inquiring about a U Visa, finding
that Chafai’s “belief or his hope that it would help him” indicated “potential bias on his part.”
The court also ruled that if the defense inquired about the U Visa, the State could go into
Chafai’s “prior consistent statement indicating that he said whatever he said way back when
before any motive regarding immigration” arose. The court also did not believe “that would have
been a realistic motive on his part to anticipate that the police could help him with immigration
problems.”
¶6 At trial, Chafai testified that around 9:00 p.m. on November 1, 2017, he was working as a
Lyft driver near the 1400 block of 69th Street when he received a notification to pick up an
individual “around that area.” He picked up a woman and two men and identified defendant as
one of the men. They told him that the address in the “computer” “was the wrong destination and
[he] should drive them four blocks down to another destination.” When they arrived, defendant
and the man “went into [a] house [for] a couple minutes” and returned to the car with two bags.
1
U Visas “allow the victims of certain statutorily designated crimes *** who have been or are
likely to be helpful to authorities in investigating or prosecuting that crime, to remain in the United States
as lawful temporary residents despite being otherwise subject to removal.” L.D.G. v. Holder, 744 F.3d
1022, 1024 (7th Cir. 2014).
-2-
No. 1-18-2042
Defendant sat behind the passenger seat, the woman sat in the middle back seat, and the other
man sat behind Chafai. Defendant told Chafai that there was a PlayStation game in the bag.
¶7 Chafai “started driving back to where [he] originally picked them up.” Defendant told
him, “You’re going too fast” and “You should slow down.” Chafai saw a police car behind them.
As Chafai was about to pull over, the man sitting behind the driver’s seat hopped out of the car
and started running. Defendant and the woman were “moving around a lot, they were putting
stuff away *** hectically moving their hands and bodies everywhere all around the backseat ***
like hiding, putting stuff everywhere,” but Chafai could not see what they were doing.
¶8 Two officers approached and after Chafai gave them his license and insurance, they
started searching his car. The police recovered “some guns,” which did not belong to Chafai. He
had only one prior fare that night and “checked to see if they left anything behind in the backseat
and all around the car,” but did not see any bags or guns.
¶9 On cross-examination, Chafai testified that he was taken to the police station, where he
was questioned with one hand handcuffed to the wall. He was not “afraid [the police] were
arresting [him] for the guns” because he “knew they weren’t [his],” but he was “scared” that he
was being “investigated for the guns.” Chafai was not a United States citizen and “months” after
the incident, he “spoke to somebody over the phone in [the] courthouse” to ask for help
regarding a U Visa. He did not know who he spoke to, but it was not a State’s Attorney.
¶ 10 On re-direct examination, Chafai testified that he spoke to the police the night of the
incident and “agreed” to give them a statement on video. In response to the State’s question,
“And that night on November 1st, 2017, what you told the police, is that the same thing that you
told us today in court?” Chafai responded, “Yes,” adding that he was not promised or guaranteed
anything in exchange for his testimony.
-3-
No. 1-18-2042
¶ 11 On November 1, 2017, Officer Danny Arroyo was on duty in a marked police car with
his partner, Officer Michael Appelhans. Around 9:00 p.m., Arroyo observed an “SUV-type” car
driving with a “taillight out” near 1438 West 69th Street. When he turned on the lights and sirens
to attempt a traffic stop, “[t]he car pulled over to the right, and someone from the backseat ran
from the vehicle” on the driver’s side. Arroyo put a message out over the radio describing the
passenger that fled, but they did not pursue him.
¶ 12 Arroyo approached the passenger side of the vehicle and Appelhans approached the
driver’s side. Arroyo saw a woman in the backseat and defendant in the back passenger seat. He
asked them to step out of the vehicle. Appelhans looked in the car and motioned to Arroyo to
“alert him that there [were] weapons in the vehicle.” Arroyo looked inside the car and
“immediately” saw a shotgun with the barrel “hanging out of a bag,” pointed toward where
defendant had been seated, and a revolver on the passenger floorboard.
¶ 13 Appelhans testified that as he spoke to the driver, he “saw two other individuals in the
back.” He opened the rear door, shined his flashlight inside the car, and saw a woman sitting in
the middle of the backseat and defendant sitting behind the passenger seat. Arroyo was “having
the two passengers exit *** behind the passenger side.” Appelhans “peeked quick inside the
backseat.” He handcuffed defendant and the woman together and searched the vehicle. Upon his
“initial examination,” he “saw a revolver *** on the floorboard behind the passenger seat and the
barrel of a gun coming out of a backpack.”
¶ 14 Appelhans recovered a “disassembled” New England Firearms shotgun from inside a
backpack on the backseat floorboard “between the middle and the passenger seat.” He also
recovered a .32 caliber revolver from “the floorboard right behind the passenger seat” and a .38
caliber revolver “underneath the passenger seat.” Ammunition was found in one of the bags and
-4-
No. 1-18-2042
Arroyo testified that another responding officer recovered ammunition on defendant’s person.
Appelhans inventoried the guns, which were admitted into evidence at trial. Footage from
Appelhans’ body-worn camera was played for jury.
¶ 15 The parties stipulated that defendant had been convicted of a qualifying felony offense
for UPWF. The parties further stipulated that Robert Franks, an evidence technician for the
Chicago Police Department, examined the firearms for fingerprints and there were no “ridge
impressions, also known as fingerprints.”
¶ 16 The jury found defendant guilty of UPWF of the three guns, but not guilty of unlawful
possession of the ammunition. The trial court denied defendant’s motion for a new trial and
sentenced him to three concurrent terms of five years’ imprisonment.
¶ 17 ANALYSIS
¶ 18 Generally, a prior consistent statement made by a witness is inadmissible to corroborate
the witness’ trial testimony. People v. Heard, 187 Ill. 2d 36, 70 (1999). However, “[t]here are
two distinct exceptions to this rule: (1) where the prior consistent statement rebuts a charge that a
witness is motivated to testify falsely, and (2) where the prior consistent statement rebuts an
allegation of recent fabrication.” People v. Donegan, 2012 IL App (1st) 102325, ¶ 52 (citing
People v. Richardson, 348 Ill. App. 3d 796, 802 (2004). Under both exceptions, the prior
consistent statement must have been made before the alleged fabrication or motive to lie arose.
Richardson, 348 Ill. App. 3d at 802. A trial court’s ruling on the admission of evidence will not
be disturbed absent an abuse of discretion. People v. Terry, 312 Ill. App. 3d 984, 995 (2000). An
abuse of discretion occurs where the trial court’s decision is “arbitrary, fanciful or unreasonable
[citation] or where no reasonable person would agree with [its] position.” People v. Becker, 239
Ill. 2d 215, 234 (2010).
-5-
No. 1-18-2042
¶ 19 Defendant argues that “[t]he trial court erred in admitting Chafai’s testimony about his
prior consistent statement because Chafai had motive to testify falsely before making it.”2
Defendant concedes that he has forfeited this argument by failing to include it in his posttrial
motion. See People v. Johnson, 238 Ill. 2d 478, 484 (2010) (defendant forfeits appellate review
of error if he fails to object at trial and include the error in a posttrial motion). Nevertheless, he
urges us to review the issue under the first prong of the plain error doctrine, or, alternatively, as a
matter of ineffective assistance of counsel.
¶ 20 Under the first prong of the plain error doctrine, we may consider unpreserved error when
“a clear or obvious error occurred and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of the
error.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Similarly, a defendant asserting
ineffective assistance of counsel must show that (1) counsel’s performance was objectively
unreasonable and (2) there is a “ ‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.’ ” People v. Domagala, 2013 IL
113688, ¶ 36 (quoting Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)). Under either
theory, defendant must establish that an error occurred. People v. Cox, 2017 IL App (1st)
151536, ¶ 52.
¶ 21 Defendant argues that the trial court abused its discretion in admitting Chafai’s prior
consistent statement because (1) Chafai was not a citizen of the United States and (2) he “was a
suspect,” and therefore had motive to lie at the time he made the statement.
2
Defendant maintains that the trial court admitted “multiple prior consistent statements,” arguing
that Chafai made a separate videotaped statement to police. The record shows that Chafai “agreed” to
give a videotaped statement and without additional evidence of a separate statement, we find that the trial
court only admitted one prior consistent statement.
-6-
No. 1-18-2042
¶ 22 Chafai’s motive to lie arose when he inquired about a U Visa, “months” after he gave his
statement to the police, and the State properly used his prior consistent statement to rebut the
inference that he was lying at trial to receive help in obtaining a U Visa. Defendant relies on
People v. Austin, 123 Ill. App. 3d 788, 797 (1984), to argue that because Chafai was not a United
States citizen, he “might have reasonably feared that he would be deported,” however, the Austin
court held that “an illegal alien *** might be vulnerable to pressure, real or imagined, from
authorities.” (Emphasis added.) Chafai did not testify that he was in the United States “illegally”
when he gave his statement to the police. Because there is no evidence that Chafai had motive to
lie to receive help with his immigration status at the time his statement was made, the trial court
did not abuse its discretion in admitting his prior consistent statement. See People v. Williams,
147 Ill. 2d 173, 227-28 (1991) (trial court did not abuse its discretion in admitting witness’s prior
consistent statement, rejecting defendant’s argument that witness had the “same motive to
fabricate at the time [she gave the statement] as she did at trial”); People v. Ursery, 364 Ill. App.
3d 680, 687 (2006) (“The circuit court did not err by admitting [witness’] one-word affirmation
acknowledging that he had given a statement to the police before the five warrants for his arrest
were quashed”).
¶ 23 Relying on People v. Wiggins, 2015 IL App (1st) 133033 and People v. Terry, 312 Ill.
App. 3d 984 (2000), defendant also asserts that the trial court erred in admitting Chafai’s prior
consistent statement because Chafai “was a suspect” and therefore had motive to lie to the police.
In Wiggins, the police questioned the witness about a shooting for which the defendant was
ultimately charged. 2015 IL App (1st) 133033, ¶ 38. The witness was kept in a “small
windowless room for several hours,” and the police “told him a witness had already identified
him in connection with the shooting.” Id. The witness identified the defendant as the shooter in a
-7-
No. 1-18-2042
signed statement and during trial. Id. At trial, the State read his entire statement to the jury to
rebut the defense’s argument that he was lying. Id. We held that the trial court abused its
discretion in admitting the witness’s prior consistent statement because “[o]nce the police
brought [the witness] to the police station for questioning and told him that a witness identified
him in connection with the shooting, [he] had a motive to fabricate a story blaming someone else
for the shooting.” Id. ¶ 40.
¶ 24 Similarly, in Terry, the trial court improperly admitted a witness’ prior consistent
statements identifying defendant as the shooter. 312 Ill. App. 3d at 995. There, the witness was
“taken in for questioning at the police station, where he remained for two days.” Id. at 988. At
trial, the witness’ credibility was attacked and, in response, the State elicited testimony that the
witness identified the defendant as the shooter in both co-defendants’ trials. Id. We held that “the
State improperly questioned [the single eyewitness] about whether he consistently identified
defendant at the prior trials” because the “statements were not made until after [the witness]
arguably had a motive to testify falsely—upon his questioning over a two-day period, which may
have meant that he was a suspect.” Id. at 995.
¶ 25 In this case, Chafai testified that he was not afraid that he was being arrested for the guns
because he knew that the guns were not his and Arroyo clarified that all three occupants of the
car were merely “detain[ed] *** for an investigation.” There is no evidence that Chafai was told
he was implicated as the one who possessed the guns, that he had a reason to shift the blame to
defendant, or that he was questioned for as long as the witnesses in Wiggins and Terry. The trial
court did not abuse its discretion in admitting Chafai’s prior consistent statement. 3 See People v.
3
Because the exceptions outlined above are “separate exceptions” (see People v. Mullen, 313 Ill.
App. 3d 718, 730 (2000)), we need not address defendant’s argument that “there was no charge of a
recent fabrication for purposes of making Chafai’s prior statements admissible.”
-8-
No. 1-18-2042
Doehring, 2021 IL App (1st) 190420, ¶ 115 (prior consistent statement properly introduced to
rebut counsel’s charge that witness motivated to testify falsely to evade prosecution and to help
his brother); see also Williams, 147 Ill. 2d at 227-28 (rejecting defendant’s argument that witness
“must have considered” that “her best strategy was to cooperate with the authorities in
fabricating a version of events” at the time she made the prior consistent statement). Absent an
underlying error, defendant’s claim that counsel was ineffective for failing to raise this issue in a
posttrial motion also fails. See Ursery, 364 Ill. App. 3d at 688.
¶ 26 Regardless of whether the trial court erred, Chafai’s “prior consistent statement amounts
to a ‘mere acknowledgment’ of having made” the statement and because the evidence of
defendant’s guilt is substantial, he “does not suffer prejudice and the application of the plain
error rule is unwarranted.” See People v. Long, 2018 IL App (4th) 150919, ¶¶ 78-79. Chafai
testified that there were no guns or bags in his car after his only prior fare that night and the
officers’ testimony, corroborated by Appelhans’ body-worn camera footage, shows that
defendant was sitting right where the guns were recovered. Defendant was sitting behind the
passenger seat, from under which the revolvers were found, and the shotgun was hanging out of
a bag between the middle and rear passenger floorboard, pointed toward the rear passenger seat.
In light of the substantial evidence of defendant’s guilt, he was not prejudiced by Chafai’s “mere
acknowledgment” that he made a prior consistent statement. See People v. Williams, 264 Ill.
App. 3d 278, 288-89 (1993) (admission of prior consistent statement not reversible error where
“none of the witnesses testified as to the substance of their prior statements. They were asked
whether they had told the police or the grand jury the same story they had told in court, to which
each simply replied yes.”).
-9-
No. 1-18-2042
¶ 27 CONCLUSION
¶ 28 Accordingly, we find that the trial court did not abuse its discretion in admitting the prior
consistent statement.
¶ 29 Affirmed.
- 10 -