APPEAL from the Circuit Court of Adams County; the Hon.
RICHARD MILLS, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendants Timothy Chitwood and Gary Toolate were indicted by the grand jury of Adams County for burglaries of Lincoln School and Senior High School 1 in Quincy, Illinois, which occurred on the night of January 1, 1974. The State chose to proceed on the Lincoln School burglary, and after a joint trial, a jury found both defendants guilty of that burglary. The counts of the indictment charging them with the burglary of Quincy Senior High 1 were then dismissed. Defendant Chitwood received a sentence of 4 to 12 years, and defendant Toolate received a sentence of 3 to 9 years. They both appeal their convictions.
On appeal defendants contend that the trial court committed reversible error in (1) declaring Linda Nunn a court's witness and (2) allowing the State to impeach her by prior inconsistent statements in which she had related purported admissions by the defendants. In order to consider these contentions it is necessary to review the evidence adduced at the trial.
The custodian of Lincoln School testified that when he arrived at work at 7:30 a.m. on January 2, 1974, he discovered that the school, which is located at 48th and Maine, had been broken into. He also found two sets of footprints in the snow near the west side of the school building. Money and an Accousti-corder tape recorder were missing.
The principal of Senior High School 1 testified over defendants' objections that the high school, which is located at 30th and Maine, had been burglarized on the same night as Lincoln School. Vending machines had been opened, and a small Motorola cassette tape recorder was missing. It appeared that entry had been made through the shop in the back of the building. Footprints were found in the snow leading away from the building to 36th Street.
A cabdriver testified that about 11:15 p.m. on January 1 he had picked up three young men at 11th and Hampshire and taken them to 30th and Vermont. He identified defendant Chitwood as one of the men, but could not identify the other two. They told him they were going to a party. A second cabdriver testified that between 2 and 3 a.m. on January 2 he had picked up defendant Toolate and some other people at 29th and Broadway. He took them somewhere near 12th and Hampshire.
A secretary at Lincoln School testified that People's Exhibit No. 1 was the same type of tape recorder that had been taken from the school. She also testified that there were very few similar models in town. The school had tried to replace the missing recorder, but another one like it could not be found.
Linda Nunn was called as a chief witness for the prosecution. On the date set for trial, she did not appear. The State requested either a continuance until the witness could be located or a stipulation of the substance of her testimony. The State's attorney stated that he had information that Linda Nunn was pregnant, that the father of the child was defendant Chitwood, and that Ms. Nunn was trying to avoid appearing as a witness. Defense counsel refused to stipulate to the testimony of the proposed witness, noting that their understanding of the substance of her testimony differed markedly from the State's representations of what her testimony would be. They also stated that the witness was available and that they would try to contact her. Ms. Nunn finally appeared after the jury was selected.
She testified that she had known defendant Chitwood since October 1973 and defendant Toolate for about two years. David Snyder, who had pled guilty to the burglary at the high school, was her nephew. At the time of the offense she, Snyder, Toolate, and Chitwood were all residing at Chitwood's house at 1228 Hampshire in Quincy. She had been living with Chitwood since December 1973.
She testified that Chitwood, Toolate, and Snyder had left the house separately at different times on the evening of January 1 and had returned together at about 2:30 or 2:45 a.m. She did not have any conversation with them when they returned; she was in bed. When she got up the next morning she saw a sack of articles on the living room floor, including a tape recorder. She identified People's Exhibit No. 1 as being similar to a tape recorder Chitwood had had prior to the burglary. The tape recorder she had seen on the living room floor the morning after the burglary had been different.
She also testified that the defendants said that they had gone to Harlow's coffee shop the night before. David Snyder told her that he had been at the Lincoln School and at the high school, but he did not tell her anything about what he had done there or who he was with. She stated that neither Chitwood nor Toolate had mentioned anything to her about the burglaries at the two schools. At that point the State's attorney asked her if she recalled having a conversation with Detective Harold Lamb of the Quincy Police Department on February 13, 1974. She stated that she did remember the conversation, whereupon defense counsel objected that the State was trying to impeach its own witness and asked for a hearing outside the presence of the jury. The State's attorney then stated that he intended to claim surprise at the testimony of the witness and that he wished to refresh her recollection through the use of prior inconsistent statements. The court reserved ruling pending further examination to refresh the witness' recollection. In answer to further questions by the prosecutor, Ms. Nunn admitted making a statement about the burglaries to Detective Lamb on February 13, 1974, in the presence of a secretary. The questioning then continued as follows:
"Q. And do you recall him asking you, `Did they admit or talk about the burglary in your presence?' and you answered, `They talked about Senior High 1, the night they robbed Lincoln School, and they said they got Lincoln School the same night they got Senior High 1.' Do you recall that incident?"
At that point defense counsel renewed their objections and the court granted a hearing outside the presence of the jury.
In response to questioning by the prosecutor, Ms. Nunn stated that she had lied to Detective Lamb and had lied the previous day when she had made a similar statement to the State's attorney. She said she had lied to get Chitwood and Toolate in trouble after Chitwood broke up with her. She also said that she had gone to the defendants' lawyers and told them the truth. She denied that she had told David Snyder that she was going to change her story to protect Chitwood. The State then requested leave to impeach Ms. Nunn as a hostile witness under Supreme Court Rule 238 by use of prior inconsistent statements. (Ill. Rev. Stat. 1973, ch. 110A, par. 238.) Defendants objected on the ground that there had not been a sufficient showing of hostility, but the court stated that it had found the witness to be hostile and declared her a court's witness.
After the jury was returned the court stated that Ms. Nunn had been declared a court's witness, and the State was allowed to continue its questioning about her prior inconsistent statements. She admitted that she had discussed defendants' participation in the burglaries with Detective Lamb on February 13 and that in response to the question, "Did they admit or talk about the burglary in your presence?" she had answered, "They talked about Senior High 1, the night they robbed Lincoln School, and they said they got Lincoln the same night they got Senior High 1." She testified, however, that her statement to Detective Lamb had ...