APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THIS COURT:
Following a jury trial the defendant herein was found guilty of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2), and sentenced to a term with the Department of Corrections of not less than 4 years nor more than 4 years and 1 day. He has appealed, raising only the issue of whether he was denied a fair and impartial trial when the trial court, over objection, permitted the jury, at its request, to have the written statements of the State's three principal witnesses in the jury room. For the reasons stated herein, we have concluded that the judgment must be reversed and the cause remanded for a new trial.
The alleged armed robbery took place in the early morning hours of June 6, 1975. At that time an automobile carrying four persons was traveling through the western section of Rockford. The occupants of the automobile and their respective locations therein were as follows: Gerald Hammons was driving; the defendant, Robert Carr, was seated beside Hammons in the front seat; Sharon Pearson was seated behind Hammons in the back seat; and Darrell Rice, the alleged victim of the armed robbery, was seated beside Pearson and behind Carr. Hammons, Pearson and Rice all testified for the State and were the three principal witnesses against the defendant. Defendant testified on his own behalf that no robbery took place.
The testimony of the State's three witnesses differs in certain particulars from each other and we do not deem it necessary to this opinion to recite the testimony of each witness at length. Earlier in the evening all four occupants of the car had been at the Blue Garter tavern in Rockford. About midnight or shortly thereafter a conversation involving the defendant, Pearson and Rice took place. Eventually there was a "deal" struck whereby at least two of the three participants in the conversation believed that Sharon Pearson had agreed to accompany Rice to a motel for $20. Arrangements were made for Gerald Hammons to drive Pearson and Rice to a motel on the west side of Rockford in return for gas money and defendant accompanied the other three persons on this ride. Somewhere along the way before reaching the motel there was an argument involving, at various times, defendant, Pearson and Rice. The result of the argument was that the "deal" would be called off. Hammons insisted that he was still entitled to gas money and Rice agreed to pay him. After Rice removed his wallet to pay Hammons, the alleged armed robbery took place. Defendant allegedly turned around from the front seat with a shiny object in his hand and demanded all of Rice's money. Both Pearson and Rice testified to seeing the shiny object which they concluded was a knife in defendant's hand at the time the demand was made. Hammons testified only that he heard defendant say something about giving him the money. After defendant allegedly took all of Rice's money, Rice jumped out of the car and the other three occupants of the car drove back to the Blue Garter tavern, where they were apprehended by police. In the meantime Rice had reported the alleged incident to police, first as a kidnapping and later as an armed robbery.
Rice, who admitted to being intoxicated at the time of the alleged incident but claimed to have a perfectly clear memory of what happened, had supposedly had slightly over $100 in his possession on June 5. Between noon and midnight he had spent money on such things as drinks, food and a movie. Rice testified that the police estimated that he still had in his possession at the time of the robbery approximately $55. The police recovered a $20 bill from Sharon Pearson. The testimony is conflicting as to whether she received this from defendant after the robbery or from Rice. When searching defendant the police recovered a small pocket knife, which was the weapon allegedly used in the robbery. In addition, the defendant had on his person $10.10, which he claimed to have had when he went to the Blue Garter with a friend. No testimony was introduced as to whether Hammons or the car were searched for the remainder of the $55 which defendant had allegedly taken from Rice. No one at trial made any attempt to account for what had happened to the $55.
During direct examination, Hammons testified that he had made a statement to the police after being taken into custody that he had not been charged with any offense as a result of the alleged crime. On cross-examination he identified the statement which he had made to police and admitted that it contained nothing whatsoever about having heard defendant demand money from Rice.
Pearson also testified on direct examination that she made a statement to police following the incident and had given them the $20 bill. The cross-examination of Pearson was rather extensive and, during that time she repeated the same version of the events which she had testified to on direct examination. She also identified the statement which she had made to police. Our examination of the record herein, however, reveals that the only questions asked by defense counsel with regard to the statement had to do with the time it was given. On redirect examination the prosecution made reference to one portion of the statement having to do with her receipt of the $20 and the circumstances under which she turned that money over to the police while she was making her statement.
During direct examination Rice testified to the fact that he had reported two conflicting stories to police, including the same story to which he had just finished testifying. The cross-examination of this witness was also rather extensive. He was impeached by referring to certain statements he had made at a preliminary hearing which varied from his testimony at trial. This impeachment is not at issue in this appeal. Rice also identified the statement which he had given to police after the incident in question. As part of his direct testimony Rice had stated that defendant told him at least twice that if he (Rice) moved defendant would cut him. He admitted that his statement to the police contained no report of this threat. He also admitted that there was a certain amount of variation between his testimony at trial and the statement with regard to the details of the alleged offense, to-wit: whether defendant took the wallet from him or merely took the money out of the wallet.
During the cross-examination of each of these witnesses the defense had his or her statement marked as an exhibit for identification. There was, however, no attempt made to offer the statements into evidence at that time and they were never read to the jury. The only time they may have been offered or received into evidence was after the defense had finished presenting its testimony. The following exchange between defense counsel and the court then took place in chambers:
"MR PETERSON: Judge, I would offer for the purpose of identification at this time what I have had marked as Exhibits #1 thru #4. Defendant's Exhibit #5, I would ask that go to the jury, which is the property receipt.
THE COURT: The exhibits will be admitted, and #5 will go to the jury."
The judge's comments made at the post-trial motion indicate that the jury in this case retired at approximately noon. According to the record herein about 2:30 the jury rang for the bailiff and made two requests. First they requested the statements of Hammons, Rice and Pearson, and secondly, they requested that the court reporter read back Pearson's testimony. Apparently there was some off-the-record discussion between the court and both counsel concerning the propriety of giving the three statements to the jury. The court's statements in the record indicate that during that discussion both parties had objected to submitting these statements to the jury. The court stated to counsel, out of the presence of the jury, his reason for giving the statements to the jury as follows:
"THE COURT: I think they should be my conclusion is this, theoretically they are introduced only to show impeachment of the witnesses; but I think they are entitled to know completely wherein there was impeachment, and therefore, over the objections ...