{ "id": 5765088, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KAREEM MILLER, Defendant-Appellant", "name_abbreviation": "People v. Miller", "decision_date": "2005-12-28", "docket_number": "No. 1-04-0381", "first_page": "67", "last_page": "81", "citations": [ { "type": "official", "cite": "363 Ill. App. 3d 67" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "819 N.E.2d 1133", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "354 Ill. App. 3d 57", "category": "reporters:state", "reporter": "Ill. 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KAREEM MILLER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE ERICKSON\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Kareem Miller was convicted of attempted first degree murder and sentenced to 25 years in prison. On appeal, defendant contends the trial court erred in: (1) allowing the State to use a police officer\u2019s impeachment testimony substantively, and in failing to promptly instruct the jury that the testimony could not be used substantively; (2) allowing a police officer to testify that an eyewitness identified defendant as the shooter; and (3) admitting an assistant State\u2019s Attorney\u2019s testimony into evidence to perfect an impeachment. Defendant also claims that the mittimus must be amended to reflect the correct credit for time he served in custody prior to sentencing.\nBACKGROUND\nThe victim, Ladrakegus Easley, testified that at approximately 7:30 a.m. on March 25, 2002, he left his apartment to buy a newspaper. On his way to the store, he saw his friend Murray Harris drive by and asked him if he wanted to smoke some marijuana. The two men bought some cigars to make \u201cblunts\u201d at a gas station. They smoked two \u201cblunts\u201d for about 25 to 30 minutes. Thereafter, Harris dropped Eas-ley off at his apartment.\nWhen Easley arrived at his apartment, he realized that he had forgotten the newspaper. After picking up the newspaper at a nearby gas station, Easley walked through a gangway on his way back to his apartment. When Easley returned to the porch, he heard someone call his name. He turned around and saw defendant, whom he knew as \u201cStalker.\u201d He had a conversation with \u201cStalker\u201d for two to three minutes. After the conversation, Easley turned to leave. As he began walking away, he heard loud gunshots and felt a sharp piercing pain as he fell to the ground. Easley stated that he saw \u201cStalker\u201d fire a 9-millimeter automatic handgun at his head, legs, arms, and body. \u201cStalker\u201d then ran through a vacant lot across the street. Easley stated that his vision was not impaired by the marijuana, that he remained conscious, and that he never lost sight of \u201cStalker.\u201d\nAfter he was shot, Easley said the first person he saw was his neighbor John Bailey. At trial, Bailey testified that he looked out of his window after hearing gunshots and saw Easley\u2019s body lying on the ground. He ran out to help Easley. When the police arrived, they directed Bailey to ask Easley who shot him. Bailey stated that Easley replied that \u201cStalker\u201d had shot him.\nEasley\u2019s girlfriend, Renesha Lightning, also came to his aid after he was shot. She testified that she lived with Easley. At about 7:30 a.m., Easley got out of bed and went outside. He returned about 30 to 45 minutes later. Upon returning, he kissed her and told her that he was going outside again to get a newspaper. After Easley left, Lightning heard gunshots and people saying Easley had been shot. When she went outside to aid Easley, the police were already at the scene. She testified that she asked him who had shot him, and he replied \u201cStalker shot me, Stalker shot me.\u201d She said she knew who \u201cStalker\u201d was and identified him in a lineup on April 18, 2002.\nHarris, a convicted felon, testified that he had known Easley for about 12 or 13 years. He stated that they were partners in a drug dealing business. On the morning of the shooting, he testified that he picked up Easley to \u201cbag\u201d drugs while smoking marijuana \u201cblunts\u201d laced with PCE At around 7:30 a.m., he drove Easley home and they planned to meet at their usual place to sell drugs. Easley was supposed to bring the drugs. Ten minutes later, a man named \u201cSpider\u201d approached him and asked for Easley\u2019s whereabouts. When Easley arrived, the three men had a short conversation. \u201cSpider\u201d then pulled out a gun and began shooting Easley. After the shooting, Harris went to the liquor store to call an ambulance. He then returned to the crime scene, took the drugs out of Easley\u2019s pockets, and left the scene when the police arrived.\nLater that morning, the police took Harris into custody for questioning. At the police station, Detective Golden and Detective Dit-ryk questioned Harris, but Harris denied telling them anything. The State impeached Harris with his signed investigation summary taken by defense counsel\u2019s private investigator. In the investigation summary, the investigator reviewed with Harris a summary of his interview with the police indicating Harris admitted speaking to the police about the shooting. After Harris was impeached, he admitted that he previously spoke to the detectives. Harris stated that he told the detectives that he saw someone shoot Easley 10 times with a 9-millimeter handgun, but he did not know who shot him. He denied telling the detectives that \u201cStalker\u201d shot Easley. Harris acknowledged that he had known defendant for eight years and that he visited him in jail while awaiting trial in this case. Harris also acknowledged that the police showed him a photo array during questioning on the day of the shooting. He testified that although he saw defendant\u2019s picture in the photo array, he did not identify defendant as the shooter.\nAfter Harris\u2019s testimony, the State called Detective Golden to testify. At this time, defense counsel asked the court to instruct the jury that Golden\u2019s testimony could be considered for impeachment purposes only. After hearing arguments from both parties, the court determined that portions of Golden\u2019s testimony were substantively admissible as prior identification testimony pursuant to section 115 \u2014 12 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 \u2014 12 (West 2002)), while other portions were admissible for impeachment purposes only. The court then denied defendant\u2019s request, stating that it did not want to anticipate Golden\u2019s testimony and would not parse out his anticipated testimony to determine which portions could be admitted as substantive evidence and which portions could be admitted as impeachment evidence at that time. Instead, it chose to instruct the jury at the end of the trial.\nDetective Golden testified that he interviewed Harris on March 25, 2002. Harris told him that he and Easley were driving around in his car. He later dropped Easley off at his apartment. Golden stated that Harris and Easley had planned to meet at 100th Place. When Harris arrived at that location, he told Golden that he saw Easley talking to an individual. Harris overheard the individual say \u201cyou\u2019re going to close me down\u201d to Easley as he shot him. Golden testified that the shooter ran past Harris and that Harris recognized the shooter as \u201cStalker.\u201d\nDetective Golden then ran a search on the name \u201cStalker\u201d in the police department\u2019s database and located defendant. Golden also testified that Harris said that something must have happened in the previous 48 hours because Harris and defendant had been \u201ctight\u201d before that, and that it may have had something to do with \u201cdrug relations.\u201d After defense counsel objected to this testimony, the court instructed the jury to disregard the allegations of drug dealing. Golden also stated that Harris picked out defendant from a photo array.\nAssistant State\u2019s Attorney Garcia testified that on April 19, 2002, he drove to Logan Correctional Center with Detectives Golden and Ditryk to interview Harris, who was in custody for an unrelated offense. Garcia stated that Harris acknowledged previously speaking to the detectives. Harris also acknowledged that he was shown photographs and that he picked out a photograph. Harris then refused to further speak to Garcia and terminated the interview.\nFollowing numerous stipulations regarding bullet casings found on the scene, the State rested. Defendant moved for a directed finding. After the court denied the motion, defendant rested. The parties proceeded to closing arguments, where the State, inter alia, addressed Harris\u2019s testimony. Defense counsel, in closing, also addressed Harris\u2019s testimony and explained to the jury the difference between substantive evidence and impeachment evidence. The trial court then instructed the jury, over defense counsel\u2019s objection, pursuant to Illinois Pattern Jury Instructions, Criminal, No. 3.11 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 3.11).\nFollowing deliberations, the jury found defendant guilty of attempted first degree murder and aggravated battery. The court merged defendant\u2019s convictions and sentenced him to 25 years\u2019 imprisonment.\nANALYSIS\nI\nWe first address defendant\u2019s contention that his sixth amendment right of confrontation was violated. Defendant, relying on Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), contends that he was denied a fair trial because the trial court allowed the State to enter Harris\u2019s prior identification of defendant as the shooter substantively when Harris consistently denied making the prior statement at trial. Defendant argues that because Harris denied making any prior identification, defense counsel was \u201cunable to effectively cross-examine him regarding these statements.\u201d\nThe State responds that because defendant did not raise the alleged errors in his motion for a new trial, they are waived for purposes of appeal. To preserve an issue for review, defendant must both object at trial and specifically include the objection in a posttrial motion. People v. Allen, 344 Ill. App. 3d 949, 954, 801 N.E.2d 1115 (2003). A reviewing court may invoke the plain error doctrine and review alleged errors not properly preserved when (1) the evidence is so closely balanced \u201cthat the error alone severely threatened to tip the scales of justice against [the defendant],\u201d or (2) the error is so fundamental and of such magnitude the accused is denied the right to a fair trial and remedying the error is necessary to preserve the integrity of the judicial process. People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467 (2005); 134 Ill. 2d R 615(a).\nWe reject the State\u2019s contention that defendant has waived this issue for purposes of appeal. Crawford was decided subsequent to defendant\u2019s trial and has been held to apply retroactively to cases such as this one, pending on direct appeal. People v. Martinez, 348 Ill. App. 3d 521, 533, 810 N.E.2d 199 (2004). Moreover, as this matter bears on defendant\u2019s right to a fair trial, it is subject to plain error review. Martinez, 348 Ill. App. 3d at 532. We therefore address the merits of defendant\u2019s contention.\nSection 115 \u2014 12 provides that a witness\u2019s prior identification is substantively admissible when (1) the declarant testifies at the trial or hearing, (2) the declarant is subject to cross-examination concerning the statement, and (3) the statement is one of identification of a person after perceiving him. 725 ILCS 5/115 \u2014 12 (West 2002). In a recent opinion by the Fourth District in People v. Lewis, 361 Ill. App. 3d 1006, 1012-13 (2005), the court discussed section 115-2, People v. Stackhouse, 354 Ill. App. 3d 265, 820 N.E.2d 1027 (2004), and People v. Bradley, 336 Ill. App. 3d 62, 782 N.E.2d 825 (2002). The Lewis court found that the Stackhouse and Bradley opinions were wrongly decided and declined to follow them. We find Lewis to be instructive.\nIn Bradley, the victim did not testify about his prior identification of defendant in a photo array to the detective because the photo array was not available on the first day of trial. On the second day of trial, instead of recalling the victim to the stand, the State called the detective to testify that the victim previously identified the defendant in a photo array as the assailant. Bradley, 336 Ill. App. 3d at 70. The Bradley court held that under section 115 \u2014 12 \u201c[b]efore a third person is permitted to testify as to a witness\u2019s out-of-court statement of identification, the witness must first testify as to the out-of-court identification.\u201d Bradley, 336 Ill. App. 3d at 70.\nIn Stackhouse, the victim testified that he did not see the male offender as he was hit from behind. Shortly after the offense, a police officer arrived and took him across the street to a parking lot. The victim testified that he recognized the woman as the person who robbed him, but he could not identify the man. Stackhouse, 354 Ill. App. 3d at 267-68. Subsequently, the police officer testified that the victim identified both defendants in the parking lot. Stackhouse, 354 Ill. App. 3d at 269. The Stackhouse court, adhering to Bradley, found that section 115-12 requires \u201cthe declarant to testify and be subject to cross-examination regarding the out-of-court identification statement before a third party may testify to the making of such a prior statement of identification by the declarant.\u201d (Emphasis in original.) Stackhouse, 354 Ill. App. 3d at 278.\nThe court in Lewis found that these holdings amend section 115 \u2014 12 by adding a requirement that before a third party can testify regarding a witness\u2019s out-of-court statement of identification, that witness must first testify and be subject to cross-examination. Lewis, 361 Ill. App. 3d at 1012-13. Section 115 \u2014 12, as written, does not demand this prerequisite. A review of learned treatises on this issue shows a near unanimous agreement among scholars. The judiciary cannot, under the guise of statutory interpretation, amend the statute to depart from the language written by the legislature. Lewis, 361 Ill. App. 3d at 1013, quoting Cement Masons Pension Fund, Local 803 v. William A. Randolph, Inc., 358 Ill. App. 3d 638, 645, 832 N.E.2d 228 (2005). We find Lewis to be persuasive and hold that, in this case, the trial court properly admitted Detective Golden\u2019s testimony substantively regarding Harris\u2019s prior identification of defendant as section 115 \u2014 12 did not require Harris to first testify and be subject to cross-examination regarding his out-of-court identification statement prior to Golden\u2019s testimony.\nIn Crawford, the defendant was on trial for assault and attempted murder after a man allegedly attempted to rape his wife. Crawford, 541 U.S. at 38, 158 L. Ed. 2d at 184, 124 S. Ct. at 1356. At trial, the State entered the defendant\u2019s wife\u2019s recorded statement to the police as she did not testify because the defendant asserted his marital privilege. Crawford, 541 U.S. at 40, 158 L. Ed. 2d at 185, 124 S. Ct. at 1357. The United States Supreme Court ruled that the confrontation clause of the sixth amendment admits out-of-court testimonial statements, offered for the truth, only if the declarant is unavailable and the defendant had an opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Although Crawford declined to define the term \u201ctestimonial,\u201d the Court clearly stated that a statement made to a police officer in the course of interrogation is considered \u201ctestimonial.\u201d Crawford, 541 U.S. at 51-52, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364.\nThis case is clearly distinguishable from Crawford. Unlike Crawford, where the declarant did not testify, in this case, Harris did testify and was \u201csubject to cross-examination.\u201d \u201c[Wjhen the declarant appears for cross-examination at trial, the [cjonfrontation [c]lause places no constraints at all on the use of his prior testimonial statements.\u201d Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197 n.9, 124 S. Ct. at 1369 n.9. If the declarant is present at trial to defend or explain a statement, the confrontation clause does not bar admission of that statement. Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197 n.9, 124 S. Ct. at 1369 n.9. A witness is regarded as \u201csubject to cross-examination\u201d when he is placed on the stand, under oath, and willingly responds to questions. United States v. Owens, 484 U.S. 554, 561, 98 L. Ed. 2d 951, 959, 108 S. Ct. 838, 844 (1988).\nHere, Harris willingly testified in court and defendant had the opportunity to cross-examine him. Thus, defendant\u2019s sixth amendment right to confront the witness was not violated. Moreover, section 611.11 of Cleary & Graham\u2019s Handbook of Illinois Evidence indicates that while cross-examination is generally hostile in order to destroy or discredit a witness\u2019s testimony on direct examination, cross-examination can also be used to elicit facts from the witness that are favorable to the defendant\u2019s case or modify the witness\u2019s testimony regarding any unfavorable versions of disputed facts given on direct examination. M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 611.11, at 446 (8th ed. 2004). When Harris testified on direct examination that defendant was not the shooter and that the shooter was another individual named \u201cSpider,\u201d he became a favorable witness to defendant. Harris, by implicating a third party and denying previously identifying defendant to the police, presented defendant with a defense and set up an impeachment for Detective Golden. On cross-examination, defense counsel elicited favorable defense facts from Harris by confirming that he never identified defendant to Golden and that \u201cSpider\u201d was the shooter.\nFor defendant to argue that he was deprived of the opportunity to cross-examine Harris is truly an illusory proposition. This is particularly true because the cross-examination questioned the identity of the shooter, which is precisely the purpose of the cross-examination. Not only was defendant given the opportunity to cross-examine Harris, he had a successful, \u201cfriendly\u201d cross-examination because the testimony elicited supported and corroborated defendant\u2019s theory of the case. Even if the witness denies making the out-of-court statement of identification, so long as the witness is available at trial, under oath, and willing to testify, the witness is deemed \u201csubject to cross-examination. \u2019 \u2019\nII\nDefendant also contends that he was denied a fair trial because the trial court failed to provide a prompt cautionary limiting instruction to the jury at the time Detective Golden impeached Harris\u2019s testimony regarding the details of the shooting. Golden\u2019s testimony included details of the shooting, prior identification of defendant as the shooter, and the alleged motive for the shooting. Defendant argues this allowed the jury to consider his entire testimony substantively. In addition, defendant argues the trial court compounded the error by giving IPI Criminal 4th No. 3.11 to the jury at the close of the case. Defendant asserts that the instruction confused the jury and did not provide clear guidance on how to distinguish impeachment evidence from substantive evidence. Defendant further contends that the State exacerbated the trial court\u2019s error by attempting to argue in its closing argument that the jury should consider Golden\u2019s testimony substantively. Defendant argues that he is entitled to a new trial because the improper use of impeachment evidence as substantive evidence results in reversible error.\nThe State again responds that defendant waived this issue for review. Because this matter bears on defendant\u2019s right to a fair trial, this issue will be reviewed as plain error.\nContrary to defendant\u2019s assertion that de novo review applies, the trial court\u2019s refusal to give a cautionary jury instruction is reviewed under the abuse of discretion standard. Beiermann v. Edwards, 193 Ill. App. 3d 968, 981, 550 N.E.2d 587 (1990); Tuttle v. Fruehauf Division of Fruehauf Corp., 122 Ill. App. 3d 835, 844, 462 N.E.2d 645 (1984). We find that the trial court did not abuse its discretion in this case.\nIn People v. Galvan, 42 Ill. App. 3d 390, 394-95, 356 N.E.2d 139 (1976), one of the defendants requested a cautionary instruction that evidence admitted after he rested not be used against him. In denying the defendant\u2019s request, this court held that the trial court properly refused to give the instruction because \u201cit might have precluded evidence that the jury should properly have considered.\u201d Galvan, 42 Ill. App. 3d at 395. Ultimately, this court held that prejudicial error did not occur when the trial court refused to give limiting instructions during the trial because the court gave instructions at the close of the trial. Galvan, 42 Ill. App. 3d at 395.\nIn this case, as in Galvan, defense counsel requested that the trial court instruct the jury prior to Detective Golden\u2019s testimony that it could only be considered as impeachment evidence. After hearing arguments from both parties, the court found that Golden\u2019s testimony regarding Harris\u2019s prior identification of defendant could be admitted substantively pursuant to section 115 \u2014 12. Subsequently, defense counsel again requested the court to instruct the jury that Golden\u2019s testimony be admitted for impeachment purposes except for Harris\u2019s prior identification of defendant as the shooter. The trial court decided not to provide the instruction before Golden\u2019s testimony because it did not want to anticipate an instruction without first hearing all the evidence.\nAt the close of the case, the court instructed the jury pursuant to IPI Criminal 4th No. 3.11:\n\u201cThe believability of a witness may be challenged by evidence that on some former occasion, he made a statement that was not consistent with his testimony in this case. Evidence of this kind ordinarily may be considered by you only for the limited purpose of deciding the weight to be given to the testimony you heard from the witness in this courtroom. However, you may consider a witness\u2019[s] earlier inconsistent statement as evidence without this limitation when the statement narrates, describes, or explains an event or condition that the witness had personal knowledge of[,] and [ ] the statement was written or signed by the witness, or [ ] the witness acknowledged under oath that he made the statement.\nIt is for you to determine whether the witness made the earlier statement!,] and[,] if so, what weight should be given to that statement. In determining the weight to be given to an earlier statement, you should consider all of the circumstances under which it was made.\u201d\nDefendant claims that the instruction was confusing because it did not provide clear guidance on how to distinguish between impeachment and substantive evidence. Defendant also argues that the instruction failed to limit the substantive use of Detective Golden\u2019s statement to only the prior identification.\nThe test for giving a jury instruction is to determine whether the instruction, taken as a whole, fairly and accurately states the law and whether it is sufficiently clear as not to mislead the jury. People v. Wales, 357 Ill. App. 3d 153, 157-58, 827 N.E.2d 1045 (2005).\nIn this case, IPI Criminal 4th No. 3.11 was not confusing. Here, Harris\u2019s statement at trial was inconsistent with his prior statement to Detective Golden. IPI Criminal 4th No. 3.11 correctly explains the law that a witness\u2019s credibility may be challenged by evidence that he made a prior inconsistent statement. IPI Criminal 4th No. 3.11 further instructs the jury that this inconsistent testimony may be considered \u201conly for the limited purpose of deciding the weight to be given to the testimony.\u201d Thus, the jury was properly instructed to consider Golden\u2019s testimony regarding Harris\u2019s prior inconsistent statement only for the purpose of determining Harris\u2019s credibility. Additionally, our supreme court has held that IPI Criminal 4th No. 3.11 is \u201csufficient to guide the jury in its deliberation and provide an adequate safeguard that the jury would not give substantive character to the impeachment testimony.\u201d People v. Bradford, 106 Ill. 2d 492, 502, 478 N.E.2d 1341 (1985). We find that IPI Criminal 4th No. 3.11 clearly instructed the jury as to when and how to evaluate a witness\u2019s testimony.\nDefendant next contends that the State exacerbated the trial court\u2019s error by arguing Detective Golden\u2019s testimony as substantive evidence in its closing argument. \u201cThe prosecution generally has wide latitude in fashioning its closing argument, and reversal is unwarranted unless the prosecution\u2019s comments substantially prejudice the defendant.\u201d People v. Herrero, 324 Ill. App. 3d 876, 887, 756 N.E.2d 234 (2001). The trial court is in a better position than a reviewing court to determine the prejudicial effect of a remark made during a closing argument. People v. Peeples, 155 Ill. 2d 422, 483, 616 N.E.2d 294 (1993). Absent a clear abuse of discretion, a trial court\u2019s determination regarding the substance of the closing argument will not be disturbed. Peeples, 155 Ill. 2d at 483.\nDefendant points to three portions of the State\u2019s closing argument in contending that the State used Detective Golden\u2019s testimony substantively. First, defendant challenges the State\u2019s argument to \u201c[p]ay particular attention to what Murray Harris told Detective Golden.\u201d The trial court sustained defendant\u2019s objection to this remark. Generally, a trial judge can cure any prejudicial error made during closing arguments by sustaining an objection. People v. Morgan, 306 Ill. App. 3d 616, 632, 713 N.E.2d 1203 (1999). Because the trial court sustained the objection, defendant was not prejudiced.\nSecond, defendant challenges the State\u2019s argument that \u201c[wjhen Murray Harris got up on that stand, he was lying to you. What he told you was a bold face lie. What he said when this first happened, when his friend [Easley] was lying in the hospital dying, that was the truth.\u201d Defendant contends that the State made the same argument as the first remark. In closing arguments, the prosecution is allowed to comment on the evidence and draw inferences from it. People v. Miller, 302 Ill. App. 3d 487, 495, 706 N.E.2d 947 (1998). The State\u2019s comment, which was made after mentioning Detective Golden\u2019s testimony regarding Harris\u2019s prior identification, was a reasonable inference drawn from Harris\u2019s prior identification of defendant.\nFinally, defendant challenges the following argument:\n\u201c[W]hen Tony [Garcia] talked to Murray Harris, he acknowledged, yeah, I\u2019ve already talked to these guys, I told him what I know and I already looked at and identified a photo [of] him. I want nothing more to do with this. *** But that tells you that everything Detective Golden testified to is exactly how it happened.\u201d\nDefendant argues that this comment allowed the jury to consider Detective Golden\u2019s testimony in its entirety as the truth, including the statements \u201cyou\u2019re going to close me down\u201d and the statement concerning \u201cdrug relations,\u201d which created a possible motive.\nHowever, the State did not mention a motive in closing. Rather, the State referred to Harris\u2019s prior identification to Detective Golden immediately before making the statement. These remarks must be considered in the context of the entire argument. Herrero, 324 Ill. App. 3d at 887. Looking at the comment within the context of the argument, this comment is clearly a reasonable inference from Harris\u2019s prior identification. Moreover, the trial court instructed the jury \u201cto disregard any allegations attributed to [Golden] about something to do with drug relations and this particular defendant. Disregard it. Don\u2019t consider it in your deliberations at all.\u201d\nAdditionally, defendant contends that the State\u2019s only real purpose in calling Harris as a witness in its case-in-chief was to introduce his prior statements. Defendant claims that People v. Barton, 286 Ill. App. 3d 954, 677 N.E.2d 476 (1997), is instructive. In Barton, the defendant was convicted of first-degree murder. Barton, 286 Ill. App. 3d at 955. At the defendant\u2019s first trial, which resulted in a hung jury, his ex-girlfriend provided an alibi for the defendant. The witness\u2019s testimony was impeached with her prior inconsistent statement where she said that the defendant told her he shot the victim. Barton, 286 Ill. App. 3d at 955-56. Because the witness was unavailable at the defendant\u2019s second trial, the trial court allowed the State to enter her testimony from the first trial. Barton, 286 Ill. App. 3d at 956. The Fifth District found that the evidence was improperly admitted because the only explanation for the State\u2019s introduction of the witness\u2019s testimony from the first trial was to use the witness\u2019s prior inconsistent testimony substantively against the defendant. Barton, 286 Ill. App. 3d at 961-62.\nDefendant contends that, as in Barton, the State\u2019s only reason to call Harris as a witness was to introduce his prior inconsistent testimony and encourage the jury to consider it as the truth. This case is distinguishable from Barton.\nAs discussed above, Harris\u2019s prior identification was properly admitted substantively pursuant to section 115 \u2014 12. Although other testimony was elicited from Harris, the trial court properly instructed the jury at the close of the case that inconsistent statements were to be used only for the purpose of deciding the witness\u2019s credibility.\nIll\nFinally, defendant contends that the trial court erred by improperly allowing Assistant State\u2019s Attorney Garcia to testify because the sole purpose of eliciting his testimony was to bolster the evidence admitted against defendant. The State contends that Garcia\u2019s testimony was properly admitted to perfect Harris\u2019s impeachment. We agree.\nDefendant concedes he has failed to properly preserve this issue for appeal, but contends that this court should reach the issue under the plain error doctrine. Because we find defendant\u2019s argument without merit, we need not address the parties\u2019 arguments regarding waiver. See People v. Besz, 345 Ill. App. 3d 50, 58, 802 N.E.2d 841 (2003).\nAt trial, the State called Detective Golden to impeach Harris regarding his prior identification of defendant. To perfect the impeachment, the State called Assistant State\u2019s Attorney Garcia to testify that Harris had spoken to Golden about the shooting. He testified that during the conversation, Harris acknowledged speaking to Golden, seeing the photo arrays, and picking out a photo, but refused to talk to him further.\nThe trial court\u2019s admission of evidence will not be disturbed unless it amounted to an abuse of discretion. People v. Mullen, 313 Ill. App. 3d 718, 730, 730 N.E.2d 545 (2000). Defendant argues that Harris\u2019s out-of-court statement to Assistant State\u2019s Attorney Garcia was inadmissible because the testimony only served to bolster Detective Golden\u2019s testimony. Defendant argues that because the State already entered Golden\u2019s testimony for the proposition that Harris had spoken to the police and identified defendant as the shooter, taking Garcia\u2019s and Golden\u2019s testimony together amounted to admitting prior consistent statements as the statements were in substantial agreement with one another. Defendant, relying on People v. Terry, 312 Ill. App. 3d 984, 995, 728 N.E.2d 669 (2000), argues that prior consistent statements are inadmissible because they unfairly bolster a witness\u2019s credibility as people are more likely to believe something that is repeated.\nGenerally, a witness\u2019s prior statement consistent with his trial testimony is inadmissible to corroborate the trial testimony. Terry, 312 Ill. App. 3d at 995. In this case, Harris\u2019s trial testimony was not consistent with his prior statement to Golden or Garcia. At trial, Harris denied speaking to the police or identifying defendant in a photo array. Garcia testified that Harris told him that he had spoken to the police and picked out a photograph. Because Harris\u2019s statement was inconsistent, the trial court properly allowed the State to impeach him. Supreme Court Rule 238(a) (188 Ill. 2d R. 238(a)) provides that the State may attack its own witness\u2019s credibility. People v. Sims, 285 Ill. App. 3d 598, 610, 673 N.E.2d 1119 (1996). In order to impeach its own witness, the State must show that the witness\u2019s trial testimony affirmatively damaged the State\u2019s case. Sims, 285 Ill. App. 3d at 610. Here, Harris\u2019s trial statement damaged the State\u2019s case because he denied identifying defendant as the shooter and implicated a different individual as the shooter. Because Harris\u2019s statement damaged the State\u2019s case, the State was properly allowed to impeach his testimony with his prior inconsistent statement to Golden. The State then perfected this impeachment with Garcia\u2019s testimony. Allowing the State to perfect the impeachment was within the trial court\u2019s sound discretion.\nDefendant also argues that the mittimus must be amended to reflect the correct credit for time he served in custody prior to sentencing. Defendant was in custody from the date of his arrest on April 18, 2002, until his sentencing on December 18, 2003. Therefore, defendant is entitled to 610 days\u2019 credit for time served in custody. Pursuant to Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), we direct the clerk of the circuit court to amend the mittimus to reflect the correct number of days of credit. People v. Butler, 354 Ill. App. 3d 57, 69, 819 N.E.2d 1133 (2004).\nFor the foregoing reasons, we affirm the decision of the circuit court and order the clerk of the circuit court to amend the mittimus to reflect 610 days\u2019 credit.\nAffirmed; mittimus corrected.\nTHEIS and KARNEZIS, JJ., concur.\n\u201c[T]he declarant\u2019s prior statement of identification is admissible as substantive evidence when testified to by a witness to the identification, such as a police officer, even when the declarant at trial denies making or repudiates the identification and denies that the defendant was involved in the crime.\u201d M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 611.16, at 467 (8th ed. 2004).\nIn addressing the Federal Rule of Evidence 801(d)(1)(c), which Illinois follows in section 115 \u2014 12, Professor Mauet and Justice Wolfson indicated that \u201ca prior statement is not hearsay if it is \u2018one of identification of a person made after perceiving the person.\u2019 The rule is self-explanatory. It is based on the recognition that in-court identification testimony is weak and subject to suggestion. An out-of-court identification is fresher in time, and the opportunities for exerting influence are less. When a witness testifies to his out-of-court identification of a person, it is not hearsay.\u201d T. Mauet & W Wolfson, Trial Evidence, at 145-46 (1997).\nWe rejected, as discussed above, defendant\u2019s contention that allowing Detective Golden to testify regarding Harris\u2019s prior identification of defendant after Harris denied making the statement violated defendant\u2019s right to confront the witness.", "type": "majority", "author": "JUSTICE ERICKSON" } ], "attorneys": [ "Michael J. Pelletier and Shobha Mahadev, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, William Toffenetti, and Andrew Vrabel, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KAREEM MILLER, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1-04-0381\nOpinion filed December 28, 2005.\nRehearing denied February 8, 2006.\nMichael J. Pelletier and Shobha Mahadev, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, William Toffenetti, and Andrew Vrabel, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0067-01", "first_page_order": 85, "last_page_order": 99 }