Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of St. Clair
County, the Hon. Carl H. Becker, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Early on the morning of November 15, 1975, Ben Seigel and Emmanuel Ukman were murdered in the course of a robbery at their grocery store in East St. Louis. Police Officer Bruce Moore, who had been summoned to the store, was shot and severely wounded by one of the robbers.
An indictment charging the commission of the crimes was returned by a grand jury in the circuit court of St. Clair County. Edward Spicer, the defendant here, was indicted jointly with James Phillips and Earl Good on two counts of murder, one count of attempted murder, and one count of armed robbery. Good pleaded guilty to the murder counts, and the remaining counts were dismissed on the prosecutor's motion. He received a sentence of 90 to 180 years. Phillips was found guilty on all counts after a jury trial and was sentenced to 20 to 60 years. The defendant's trial, on his motion, was moved to Randolph County and resulted, too, in a verdict of guilty on all counts of the indictment. He was sentenced to 200 to 400 years on each of the murder counts and 10 to 30 years on the other counts. The defendant, Phillips and Good were individually represented by three assistant public defenders of St. Clair County. The appellate court reversed the defendant's conviction and remanded for a new trial on the grounds that he had been denied effective assistance of counsel by virtue of a conflict of interest because of the multiple representation by assistant public defenders of St. Clair County and that the trial court had improperly admitted an extra-judicial statement by Phillips, who already had been convicted and sentenced, as substantive evidence in the case in chief against the defendant. One justice dissented. (61 Ill. App.3d 748.) We allowed the People's petition for leave to appeal. 65 Ill.2d R. 315.
The circumstances of the crimes are set out at length in the appellate court's opinion (61 Ill. App.3d 748). We will state only those relating to the questions before us. On the evening following the murders Phillips gave an unsworn, signed statement to the East St. Louis police. In it he stated that the three men had visited the store the day before the robbery and returned together again on the morning of November 15, 1975, in a station wagon which Phillips drove. He claimed that the defendant and Good had told him that, if he did not drive them to the store that morning, they "would kill my two babies." He said they repeated the threat when they took the keys from the station wagon and directed him to wait for them while they were in the store. Phillips waited about half an hour, and after he heard sounds of shooting, the defendant and Good, he said, rushed back to the car, threw him the keys and told him to drive. Phillips drove back to his house, after which the three went into the basement and divided the money taken in the robbery. Police arrived shortly thereafter, but before the officers came to the front porch, the defendant and Good, having seen them approaching, fled from the house.
The defendant was apprehended in Michigan and there he gave police a statement in which he admitted having gone to the store with Phillips and Good two days before the robbery. But in the statement he denied having participated in the robbery, claiming that Phillips, Good and a "third party" were involved. He said he had remained at Phillips' house and denied he had shared in the money taken in the robbery.
The prosecution called Phillips to testify at the defendant's trial. He refused to be sworn until he had consulted with his attorney, and Assistant Public Defender Milton Wharton, who had represented Phillips at his trial, was called. At a hearing in the judge's chambers and in Phillips' presence, Wharton obtained from the prosecutor a promise of immunity for Phillips against the use of any testimony he might give should Phillips gain a retrial on his appeal, which was pending, and also immunity with respect to any "further prosecution of him." Phillips nevertheless continued to refuse to testify, expressing fears of gang retaliation while he was serving his term, although he conceded that the defendant had not personally threatened him. The trial judge found Phillips in contempt, but delayed imposition of punishment, telling Phillips he would withdraw the finding if he would change his mind during the course of the trial and testify. It appears that Phillips did change his mind; he later was sworn as a witness for the People.
Phillips stated his name and address, that he had been convicted and sentenced for the crimes charged in the indictment and that he had given a statement relating to them at the East St. Louis police station on the evening of November 15, 1975. Over the defendant's objections, he acknowledged that he had signed the statement shown him by the assistant State's Attorney, but also disclosed that he could not read. The statement was not read to him by the prosecutor. Phillips testified that he had told the truth in the statement concerning events as he recalled them, and it was then admitted into evidence. The defendant's attorney, Assistant Public Defender Rodger Hay, did not cross-examine Phillips and again made objection to the statement's admission. He also moved for a mistrial, which was denied. The assistant State's Attorney then read Phillips' statement to the jury.
The People contend that the statement was properly admitted by the trial court as substantive evidence against the defendant because Phillips took the stand and was placed under oath, the jury was able to observe his demeanor, and the defendant was given an opportunity to cross-examine him regarding his statement had he chosen to do so. But we consider the question regarding Phillips is similar to the one arising upon a prosecutor's attempt to impeach a witness by a prior inconsistent statement. There, too, the situation involves a sworn witness, whose demeanor may be observed by the trier of fact and who is available to the defendant for cross-examination. This court, however, has rejected contentions that the impeaching material should be allowed to be considered as substantive evidence against an accused. See People v. Bailey (1975), 60 Ill.2d 37, 43; People v. Gant (1974), 58 Ill.2d 178, 183-85; People v. Powell (1973), 53 Ill.2d 465, 472; People v. Collins (1971), 49 Ill.2d 179, 194-98; People v. Newman (1964), 30 Ill.2d 419, 423; People v. Paradise (1964), 30 Ill.2d 381, 383-84 and cases cited therein.
Many of the reasons given for not permitting impeaching material to be considered as substantive evidence are applicable here: "Our present method of trial contemplates basically that in criminal cases * * * all of the evidence is to be presented at a single time and place in a continuous proceeding. If all prior statements of witnesses are to be put before the jury or the judge as substantive evidence, the logistical problems of a trial already serious will be enhanced because it will be necessary to have present at the time and place of the trial not only those persons who witnessed the occurrence at firsthand, but also those persons to whom the firsthand witnesses have made statements about the occurrence, either orally or in writing." (People v. Collins (1971), 49 Ill.2d 179, 198.) "What the witness stated out of court and out of the presence of the defendant is pure hearsay and incompetent. Legally it is not evidence of defendant's guilt and cannot be received as proof of the fact at issue." (People v. McKee (1968), 39 Ill.2d 265, 270.) "It must be recognized * * * that in criminal cases these extra-judicial statements are often highly incriminating and are usually made outside the presence of the defendant. To give these statements substantive value would allow an accused to be convicted on extra-judicial statements of witnesses a practice that runs counter to the notions of fairness on which our legal system is founded. (Bridges v. Wixon, 326 U.S. 135, 89 L.Ed. 2103, 65 S.Ct. 1443.) Therefore, prior self contradictions are not to be treated as having any substantive or independent testimonial value. People v. Morgan 28 Ill.2d 55; People v. Moses, 11 Ill.2d 84; see also 3 Wigmore on Evidence, 3rd ed. sec. 1018; McCormick on Evidence, sec. 39." People v. Paradise (1964), 30 Ill.2d 381, 384.
People v. Grigsby (1934), 357 Ill. 141, involved a situation with resemblance to the case here. There a witness was called for the purpose of proving that the defendant had come to her house after a shooting and had told her that he "just shot a couple of guys." 357 Ill. 141, 144.) The witness' answers to the prosecutor's preliminary questions made it apparent that she would not give the testimony he anticipated. Upon the prosecutor's motion she was made a court's witness. The prosecutor proceeded to ask her a series of questions which embodied the substance of a prior written, unsigned statement she had given. The answers given to all but one of the questions were simply "Yes, sir." The court described this as an "indirect method of advance impeachment of a witness who had not testified to the contrary" 357 Ill. 141, 148) and noted:
"The issue is not whether the witness Lockard is honest or dishonest, reliable or unreliable, but whether the defendant is guilty of the crime charged in the indictment. All of these matters sought to be introduced by the indirect method of advance impeachment of a witness who had not testified to the contrary are collateral to the main issue. Whether or not in a proper case they might be competent by way of impeachment, they were entirely incompetent and extremely prejudicial as here offered on the case in chief. To permit this method of attack would be dangerous in the extreme. It would make it possible for anyone, in effect, to confess for a defendant and to do this without any liability for perjury. Anyone might with perfect safety make a false statement out of court, and not under oath, to the effect that the defendant had told him that he killed someone. When in court and under oath upon a material point, and thus subject to penalties for perjury, it is to be presumed that he would refuse to so testify. If the State's attorney could be permitted, under these circumstances, to prove, by way of advance impeachment, that the witness said that the defendant had said certain things, it would present a situation of appalling seriousness." 357 Ill. 141, 148-49.
The case here, of course, does differ from Grigsby. Unlike the witness there, Phillips did testify under oath that he had told the truth in his statement. There are, however, other factors which do not support trustworthiness: his statement was not given under oath nor was it subject to contemporaneous cross-examination; the statement implicated the defendant and exculpated Phillips, who claimed to have acted under coercion; Phillips had been convicted of the crimes involved; he refused to testify directly even after having been found in contempt of court; he could not read; the statement was neither read to him prior to his adoption of it in court nor validated by other witnesses (as was done in Grigsby); and there is the question whether, when he was granted immunity from any "further prosecution," he was immunized even from perjury in the testimony he was being urged to give. The People say he was not, citing the immunity statute which states that a witness will not be immunized from perjury in the solicited testimony. We consider that even if the People's position is correct, Phillips may have believed that his immunity was complete. As we have noted, the circumstances above fail to support the trustworthiness of Phillips' statement.
The cases which the People cite, in which evidence of transcripts from previous trials was admitted in lieu of the testimony of unavailable witnesses, are not in point in this unusual situation. The People cite, and we are not unmindful of, the Supreme Court's holding that the confrontation clause of the sixth amendment and the due process clause of the fourteenth amendment are satisfied if there is an opportunity at trial for full and effective cross-examination of a witness on prior inconsistent statements. (California v. Green (1970), 399 U.S. 149, 26 L.Ed.2d 489, 90 S.Ct. 1930.) Green, however, does not govern here. As we explained earlier in this opinion, this court denies on an evidentiary not a constitutional basis the substantive use of prior inconsistent statements of a witness. Even apart from that, it is questionable whether Phillips, though present in court, would have been really available for full and effective cross-examination. He refused to give direct testimony, and he might have testified on ...