Chicago Police Officer Carey testified that he observed Tony McWhite obtain suspect narcotics on four occasions from a cigarette box inside a ”garbage can type” barbeque grill. But alas, the vice case report makes no mention of the grill and instead notes that Tony “relocated to a large tree…bent down, and picked up a green-white Newport cigarette box.” Over repeated and strenuous and learned defense objections, the State was allowed to “rehabilitate” poor Officer Carey with prior consistent statements concerning the grill from arrest reports and the preliminary hearing. The trial court, Judge Matthew Coghlan,sitting as the trier of fact, then relied on this so called rehabilitation in finding Tony guilty as charged.
Per the Appellate Court’s clear opinion by JUSTICE THEIS, joined by Justices Karnezis and Hoffman, and quoting the oft ignored black letter law set out in Cleary and Graham, [I]f a consistent statement does not disprove, explain,or qualify the failure to speak or the making of the inconsistent statement, the consistent statement is not admissible on redirect examination.” Thus, the trial Court abused his discretion by admitting the prior consistent statements, and Tony will get a new trial. Practice tip: Carry this case with you to trial because this error is common is many Cook County criminal courts. Read the full opinion – People v Tony McWhite, No. 08 CR 1232, 3/30/2010.
