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Docket No. 95285-Agenda 1-March 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
AVELL A. WALKER, Appellee.

Opinion filed June 4, 2004.
 

CHIEF JUSTICE McMORROW delivered the opinion of thecourt:

At issue in this appeal is whether the trial court abused itsdiscretion by allowing the prosecution to present evidence of the nameand nature of defendant's prior conviction after defendant offered tostipulate to his felon status, an element of the crime for which he wastried. The appellate court reversed defendant's conviction andremanded for a new trial (335 Ill. App. 3d 102), relying on thereasoning of the United States Supreme Court in Old Chief v. UnitedStates, 519 U.S. 172, 136 L. Ed. 2d 574, 117 S. Ct. 644 (1997). InOld Chief, the Court held that a trial court abuses its discretion if itspurns a defendant's offer to stipulate and, instead, "admits the fullrecord of a prior judgment, when the name or nature of the prioroffense raises the risk of a verdict tainted by improper considerations,and when the purpose of the evidence is solely to prove the elementof prior conviction." Old Chief, 519 U.S. at 174, 136 L. Ed. 2d at584, 117 S. Ct. at 647.

For the reasons that follow, we affirm the appellate court's rulingand hold that, in the case at bar, the trial court committed reversibleerror when it admitted evidence of the name and nature of defendant'sprior felony conviction rather than accept defendant's offer tostipulate to his felon status.
 

BACKGROUND

Defendant, Avell A. Walker, was tried in the circuit court ofDu Page County on charges of unlawful possession of a weapon by afelon (720 ILCS 5/24-1.1 (West 2000)) and unlawful sale of firearms(720 ILCS 5/24-3(a) (West 2000)). Prior to trial, defense counselmade an oral motion to stipulate that defendant had a prior felonyconviction. The following colloquy took place:

"[Defense Counsel]: This is why-I don't have this thirdmotion in limine written out. I can make it orally. The Statewill introduce evidence of prior conviction for possession ofa controlled substance which is again going to lead to the juryconsidering the defendant a drug dealer, that's why I didn'twant it mentioned, that's why I mentioned in Paragraph B.There is-one of the charges here is possession of weapon bya felon which I understand the State will proceed on.

I will either ask that the fact that Mr. Walker has a priorfelony, I am willing to stipulate to it, I am willing to stipulateany amended indictment would be sufficient for knowledgefor trial today, I am not alleging any surprise. But I don'tthink-the fact that he needs to be called a felon is necessary.I think by stipulating to it, that's sufficient and is-otherwise,I have a motion in limine to exclude it.

Court: To exclude what?

[Defense Counsel]: The fact of the prior conviction."

The State rejected the offer to stipulate on the ground thatdefendant's felon status was an element of the charged offense. Thecourt reserved ruling on defendant's motion.

Jury selection began the next day and continued on into thefollowing day. When jury selection was completed, the State beganpresentation of its case against defendant. Although defendant was notcharged with possession or sale of a controlled substance, theprosecutor began his opening statement by saying, "This case is abouta drug deal gone bad." The prosecutor told the jury that the evidencewould show that on September 15, 2000, defendant delivered crackcocaine to a man, failed to receive payment, and then returned with agun to extract payment from the man. The State then called its twokey witnesses, Aprylle and Crystal Watson, who had been grantedimmunity by the State for their testimony.

The testimony of Aprylle and Crystal Watson is set forth in detailin the appellate court decision below. See 335 Ill. App. 3d at 104-07.In sum, their testimony established that 16-year-old Aprylle and her17-year-old sister, Crystal, were with defendant on the evening ofSeptember 15, 2000. During the course of the evening, both sistersbecame aware that defendant was in possession of crack cocaine. Atone point in the evening, defendant instructed Aprylle to drive him toWoodridge, where he met with a man at an apartment building at7715 Woodridge Drive. After defendant met with the man, theywaited outside the building for several minutes, but the man neverreturned. Eventually, defendant told Aprylle to drive him to hisapartment in Bolingbrook. Aprylle and Crystal waited while defendantwent inside. When he came out, they said, he was wearing gloves andholding his waist in a way that indicated that he had a gun.

They returned to Woodridge. Aprylle, at her sister's direction,went into the apartment building with defendant. Aprylle testified that,while she was inside the building, defendant placed something heavyin her inside jacket pocket and told her to go back to the car. Whenshe opened the front door of the apartment building, she saw severalpolice officers. The officers told her to get down on the ground.Aprylle was arrested and a gun was recovered from her jacket pocket.Crystal and defendant were arrested shortly thereafter.

Both Crystal and Aprylle testified that they initially lied to thepolice because they were scared. Aprylle testified that she initially toldthe police that the gun was hers. Crystal also gave police an untruewritten statement. Later, however, when the police told them thattheir stories "didn't match," they told "the truth." Aprylle and Crystalsaid that they then gave police written statements in which they gavethe "true version" of events, consistent with their trial testimony.

On cross-examination, defendant was able to establish certaindiscrepancies and inaccuracies among the statements Aprylle andCrystal had given to police and their trial testimony. It was alsoestablished that Aprylle and Crystal, although not related to defendant,visited defendant in jail three times since his arrest and, each time,signed in as defendant's cousins. Aprylle testified that they liedbecause they thought they had to be related to defendant to visit himin jail. Also, Crystal revealed on cross-examination that sherecognized cocaine when she saw it because "she knew people whohave used it before." Crystal also admitted that she had been aroundguns before that night and, in fact, had once been shot.

The State then presented the testimony of Woodridge policeofficers William Hoogland and Tom Stefanson. Both officers testifiedthat on September 15, 2000, they went to the 7700 block ofWoodward Avenue in response to a radio dispatch. Officer Stefansontestified that he recovered a gun from Aprylle's inside coat pocket andOfficer Hoogland testified that he inventoried the gun recovered byOfficer Stefanson. Officer Hoogland identified State's Exhibit No. 1as the gun he inventoried.

On cross-examination, Officer Hoogland admitted that during hisinvestigation he never found any drugs or gloves on defendant or atthe scene. Officer Hoogland also admitted that on September 16,2000, after Crystal and Aprylle were questioned, they were releasedto their parents without being charged with an offense.

After the witnesses were heard, it was stipulated that JohnCollins, an expert in the field of ballistics, if called, would testify thathe examined and test fired State's Exhibit No. 1 and found it to be aworking firearm that functioned as designed. The State also placed inevidence, over defendant's renewed objection, State's Exhibit No. 6,a certified copy of conviction showing that defendant had beenconvicted on December 2, 1999, for the felony offense of unlawfulpossession of a controlled substance with intent to deliver.

Before resting, the State moved to have its exhibits, including thecopy of Crystal Watson's second written statement to the police,admitted into evidence. Arguing in favor of the admission of Crystal'sprior consistent written statement to police, the State said:

"[T]here's a clearly delineated exception [to the hearsay rule]where on cross-examination counsel suggests that there's arecent motive to fabricate that you can in that context, tocounter that inference, admit as substantive evidence a priorconsistent statement, and I think that that's exactly whatwe're trying to do and its proper for that reason."

Over defendant's objection, Crystal's written statement wasadmitted without reservation or limitation.

The defendant called only one witness, Leroy Keith, a supervisorin the criminal ballistics section of the Du Page County Sheriff's CrimeLaboratory, who testified that he checked State's Exhibit No. 1 forlatent fingerprints and none were found. Defendant then moved tohave defense Exhibit No. 3, Crystal's first written statement to police,admitted as a prior inconsistent statement. After some discussion, thecourt granted the motion.

In closing argument, the State began by defining the chargesagainst defendant. The prosecutor told the jury:

"Now the second charge, a person commits the offense ofunlawful possession of a weapon by a felon when he, havingbeen previously convicted of the offense of possession of acontrolled substance with intent to deliver, knowinglypossesses a firearm on or about his person." (Emphasisadded.)

The prosecutor elaborated further, telling the jury that one of thepropositions that had to be proven by the State was that "defendanthad previously been convicted of the offense of unlawful possessionof a controlled substance with intent to deliver." Later, repeating thename of the prior offense, the prosecutor told the jury that "People'sExhibit No. 6 is a *** self-authenticating document," meaning that itis the "type of document that doesn't need anything but the seal of theCircuit Court Clerk on it to show the truthfulness of the document.You know the Defendant was convicted of that offense on December2nd of 1999, before this occurred."

In defense counsel's closing argument, the credibility of the twoWatson girls was attacked. Various inconsistencies and inaccuracieswere pointed out and it was hinted that the girls were covering foreach other and could not be trusted. In rebuttal, the State agreed thatthere were inconsistencies, but argued that any inconsistencies wentonly to inconsequential matters. The prosecutor then stated:

"The author of this play is this man. It's this Defendant.He picked the theme. Sell drugs for money. If you don't getmoney, go back and get it. Bring a gun."

Finally, the prosecutor asked the jury to find defendant guilty of"possessing a weapon by a felon in his prior conviction of unlawfuldelivery of a controlled substance."

After receiving instructions, the jury retired to deliberate. Aftera while, the jury sent the following request to the court:

"We'd like to review the statements of the sisters, bothwitness Crystal's and Aprylle's."

The court discussed with counsel how to respond to the jury'smessage, noting that Aprylle's written statement had never beenadmitted. The court, however, expressed a willingness to send backCrystal's two statements. Defense counsel objected to sending backany of the statements, but the prosecutor argued that the two writtenstatements should be sent back, saying:

"Both are admissible as substantive evidence. And withrespect to the hearsay exception for rebutting the inference offabrication, I think they're [the jury] entitled to consider it,especially in light of their request to see them."

After some additional discussion, the court sent Crystal's twowritten statements back to the jury with a note that said:

"The written statement of Aprylle was not admitted. Youmay, however, consider the testimony regarding thatstatement. Both written statements of Crystal's were offeredas exhibits, and those are being provided to you asrequested."

Later, the jury sent the following question to the court:

"When possession is concerned, does that entitle [sic] thatthe gun was in the car, and he knew about it, or does thatmean that he had to have physical contact with it? And if so,does physical contact mean that he just has to touch it to bein or about his person, or does he have to hold and controlthe weapon?"

Over defendant's objection, the court responded by giving thejury a copy of Illinois Pattern Jury Instruction, Criminal, No. 4.16,which contains definitions for constructive possession and jointpossession.

After receiving the additional instruction on possession, the jurysent the court a note posing the following question:

"For the definition of give, does the person who haspossession have to physically hand or place the object onanother, or does give mean that the person who haspossession did not necessarily have to physically place orhand the object over, just know the object has changedhands, and the end result is that the object is in the possessionof another person? Does making an object available to aminor mean the same thing as giving an object to a minor?"

At the prosecutor's urging, the court responded to this questionby saying, "The word give should be afforded its common andordinary meaning."

The jury then sent the court this question:

"Is giving directly the same as giving indirectly? If youhave knowledge of something previously in your possessionending up in someone's hands, did you give it to the person?"

To this question, the court responded: "You must decide the casebased on the evidence you received and the instructions you've beengiven."

After some more time had passed, the court called the partiesback into court and said:

"Here's the situation. The trial itself lasted about three-and-a -half hours. And at this point, they've been out aboutsix hours. They haven't sent out a note indicating they'redeadlocked. But in light of the hour and in light of the factthat I have bond court to go to, I'm going to send themhome. And I'm going to bring them back next week."

The jury was called into court. Because Monday was a legalholiday, the jury was told to return on Tuesday. On Tuesday, February21, 2001, the jury returned and continued to deliberate. At about 11a.m. the jury returned a verdict of guilty on both charges.

In a posttrial motion, defendant, relying on the United StatesSupreme Court decision in Old Chief and the appellate decision inPeople v. Peete, 318 Ill. App. 3d 961 (2001), argued that he had beenunfairly prejudiced by the introduction of evidence of the name andnature of his prior felony conviction and should be granted a new trial.

The trial court denied the motion, stating:

"[W]ith respect to that prior conviction, it is an element ofthe offense, and although there are ways to skirt around whatthat conviction was for, I am not aware of any case thatprovides that you can keep from the jury, the fact that he isa convicted felon because that is an element of the offense.*** [T]he argument that was made was that there would bea stipulation so that it wouldn't be presented to the jury thatthe defendant was a convicted felon."

Defendant was then sentenced to 42 months' imprisonment andhe appealed.

On appeal, the State argued that defendant had not properlypreserved the issue of whether the name and nature of his prior felonyconviction should have been excluded because, at trial, defendantasked to bar evidence that he was a felon. The appellate court agreedthat defendant's argument at trial was imprecise, but held that"assuming that a waiver occurred," review of the issue could be hadunder the plain error rule. 335 Ill. App. 3d at 110. The appellate court,adopting the reasoning in Old Chief, concluded that the trial courtabused its discretion when it allowed the State to introduce evidenceof the name and nature of defendant's prior felony conviction whendefendant had made an offer to stipulate. 335 Ill. App. 3d at 112. Theappellate court also found that the error could not be deemed harmlessbecause the evidence, "though it 'suffices to permit retrial withoutoffending double jeopardy,' " was not overwhelming. 335 Ill. App. 3dat 113, quoting Peete, 318 Ill. App. 3d at 972.

The State filed with this court a petition for leave to appeal (see177 Ill. 2d R. 315(a)), arguing that the appellate court erred when itheld that the admission of evidence of the name and nature ofdefendant's prior conviction was reversible error. The State alsochallenges the appellate court's ruling that the trial court hadimproperly admitted Crystal Watson's second written statement assubstantive evidence. We allowed the State's petition.

The defendant filed a cross-appeal (see 155 Ill. 2d R. 318(a); 134Ill. 2d R. 612(b)), wherein the defendant argues that his constitutionalrights were violated when, in response to inquiries made by the juryduring deliberations, the court provided the jury with an instructionwhich defined constructive possession, when the State's theory at trialhad always been based on actual possession.

ANALYSIS

The primary issue in the case at bar is whether the trial courtabused its discretion by allowing the prosecution to present evidenceof the name and nature of defendant's prior conviction when astipulation was available. See People v. Boclair, 129 Ill. 2d 458, 476(1989) (a trial court's admission of evidence is reviewed for an abuseof discretion). As noted earlier, the appellate court, relying on theSupreme Court decision in Old Chief v. United States, 519 U.S. 172,174, 136 L. Ed. 2d 574, 584, 117 S. Ct. 644, 647 (1997), and theIllinois appellate court decision in People v. Peete, 318 Ill. App. 3d961 (2001), found an abuse of discretion, reversed defendant'sconvictions, and remanded for a new trial. The State urges us toreverse the appellate court's endorsement of Old Chief and,accordingly, its ruling that defendant is entitled to a new trial.

As a threshold matter we address the State's initial assertion thatthe claim of error concerning the admission of the name and nature ofdefendant's prior conviction was not properly preserved and, as aresult, not subject to appellate review. The State argues that defendantwaived review of this issue because, at trial, he did not offer tostipulate to his felon status, but rather, sought to remove from thejury's consideration the fact that he had a prior felony conviction. TheState contends that it was not until defendant's posttrial motion thathe argued that he would be unfairly prejudiced if a stipulation was notsubstituted for evidence of the name and nature of his priorconviction. For this reason, the State argues, the appellate courtshould have found the issue waived and not reached its substantivemerits. In addition, the State, while maintaining that admission of thename and nature of defendant's prior felony conviction was not errorat all, challenges the appellate court's holding that the error was"plain" and, therefore, subject to review. The State argues that theevidence of defendant's guilt was overwhelming and that there was nosubstantial risk that admission of the prior-conviction evidence denieddefendant a fair trial.

We have reviewed the record and find, as did the appellate courtbelow, that defense counsel's argument at trial was inartful andimprecise. Counsel's statements could reasonably be interpreted as anattempt to exclude the fact of defendant's prior conviction from thejury's consideration, a proposition clearly not supportable by OldChief, nor any other case of which we are aware. Nonetheless, it isalso clear from the record that defense counsel offered to admit to thefact that defendant had a prior felony conviction because he wasconcerned about the prejudice that might inure to defendant shouldthe jury learn the name and nature of defendant's prior conviction.Thus, we believe that defendant sufficiently called into question thepropriety of admitting evidence of the name and nature of his priorconviction so that review of this claim need not be precluded.

Having decided that defendant did not waive the issue, we nowreview the appellate court's holding that defendant was unfairlyprejudiced by the admission of evidence of the name and nature of hisprior felony conviction when a stipulation was offered. Because theappellate court relied on the decision in Old Chief in reaching thisconclusion, a careful examination of that case is appropriate.

A. Old Chief v. United States

In Old Chief, the defendant was charged with possession of afirearm by a felon in violation of 18 U.S.C.