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June 30, 1994


Appeal from the Circuit Court of Madison County. No. 89-CF-162. Honorable Charles V. Romani, Judge Presiding.

Lewis, Welch, Goldenhersh

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Defendant appeals from his conviction of the offense of armed robbery (720 ILCS 5/18-2 (West 1992)) after a second jury trial in the circuit court of Madison County. Defendant's first conviction in this case was reversed and the cause was remanded by this court on the basis that defendant had been denied a fair trial because the State failed to disclose to defendant before trial evidence in the State's possession that another person, Thomas Stewart (Stewart), had confessed to the armed robbery of which defendant was convicted. People v. Taylor (1991), No. 5-90-0025 (unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23)).

In this appeal, defendant contends that (1) he was denied a fair trial by the trial court's refusal to admit into evidence the transcript of Stewart's confession to the armed robbery; (2) the cumulativeeffect of numerous evidentiary errors and the ineffectiveness of his trial counsel denied defendant a fair trial; and (3) he is entitled to a new trial before a different Judge. For reasons we will more fully set forth, we reverse and remand for another trial.

The crime for which defendant has now been convicted twice involves an armed robbery of a Farm Fresh store in Alton, Illinois, on December 14, 1988 (the Farm Fresh robbery). The facts pertinent to this appeal begin immediately after defendant's first trial, which ended in a guilty verdict on June 13, 1989. On July 12, 1989, defendant filed a motion to vacate the judgment of guilty, wherein defendant alleged that he learned after his trial that Stewart had told others that he, not defendant, committed the Farm Fresh robbery. After the motion to vacate was filed, the cause was continued at least five times for various reasons, mainly due to several changes in defendant's court-appointed attorneys.

Finally, on December 4, 1989, defendant's case was called for hearing on defendant's amended posttrial motion and for sentencing. Due to the recent entry into the case of defendant's latest attorney, the hearing on the posttrial motion was continued until January 8, 1990. However, the parties agreed and the court ruled that defendant would be allowed to call Stewart as a witness in support of defendant's posttrial motion during the December 1989 sentencing hearing. The reason for proceeding in this manner was that Stewart was brought to the Madison County Courthouse from prison on another offense, and everyone involved wanted to avoid the difficulty of bringing him back to court again in January 1990. At the sentencing hearing, defense counsel called Stewart to the witness stand, stating "I am examining Mr. Stewart in support of the Post-trial Motion to prevent having to bring him back in January." The State did not object.

Stewart testified that he was in the Madison County jail on February 21, 1989, awaiting trial for another robbery (the Domino's Pizza robbery). By the time of this hearing, Stewart had been convicted of the Domino's Pizza robbery and other related charges, and he was sentenced to 60 years' imprisonment for those offenses. Stewart testified that the gun he used in the Domino's Pizza robbery belonged to him and that it was the same gun identified in defendant's trial as the gun used in the Farm Fresh robbery.

Stewart then testified as follows:

"Q: Are you aware of the facts against Chris Taylor, Armed Robbery of the Farm Fresh?

A: Yes, I am.

Q: Do you know who committed that robbery?

A: Yes, I do.

Q: Who did it?

A: I committed the Armed Robbery.

Q: Did you use the same gun that was involved here?

A: Yes, I did."

The State then cross-examined Stewart. Stewart admitted that he remembered Officer Lindell Pyatt (Pyatt) of the Alton Police Department talking to him about the Farm Fresh robbery while he was in the Madison County jail, but Stewart denied that he had ever told Pyatt that defendant committed the Farm Fresh robbery, and Stewart stated that if Pyatt said that, Pyatt must have lied. Stewart admitted that he told Pyatt, at a time before defendant's trial, that he (Stewart) did not commit the Farm Fresh robbery because "anybody in their right mind" would not do so when facing other charges. Stewart admitted that he was serving a 60-year term of imprisonment at the time of this testimony and that he had known defendant most of his life.

On January 8, 1990, the trial court heard additional evidence and arguments in support of defendant's posttrial motion. During the proceedings, the trial court interjected the following statement:

"THE COURT: Before you call your next witness, Mr. [State's Attorney], just for the record, to keep the record clear, * * * Thomas Stewart did testify on December 4, 1989. I believe at the time the parties stipulated that his testimony taken that day would be incorporated in and become part of the proceedings of the Post-Trial Motion.

[DEFENSE COUNSEL]: That's correct.

THE COURT: So the record is clear, that testimony taken on December 4, 1989, is made part of this proceeding today."

After the court heard arguments for and against the posttrial motion, the court denied the motion, finding that the evidence was clear that both eyewitnesses to the crime had no doubt that defendant, and not Stewart, robbed the Farm Fresh store.

The facts as disclosed by the record of defendant's second trial, as they relate to the issues we decide in this appeal, are as follows: A black male entered the Farm Fresh store at about 8:30 p.m. on December 14, 1988. He was not masked and was wearing a long tan trenchcoat and a large black-and-white floppy hat. He pointed a handgun at the clerk, Brenda Hudson (Hudson). She screamed, and the second clerk, Regina Wheeler (Wheeler), looked out of the restroom she had been cleaning. The robber ordered Wheeler to come out of the restroom. The robber then ordered both clerks to give him the money out of the cash register. They put the money and two packages of cigarettes in a bag. The robber then told the clerks to lie down on the floor and left. Hudson called the police.

When Alton Police Officer Henry Moore arrived at the store minutes later, both Wheeler and Hudson were visibly upset and shaking. Wheeler and Hudson both described the robber as a black male, about 5 feet 11 inches in height, in his early 20's, and weighing between 140 and 155 pounds, a description which would fit either Stewart or defendant.

Earlier that evening, approximately 4 to 12 minutes before the police received the call alerting them to the Farm Fresh robbery, Alton Police Officer Jonniece Young observed a black male walking across the street toward the Farm Fresh store. He was wearing a long tan trench coat and a large floppy hat. After the robbery, she made a report that listed these facts. At trial, she testified that just before the second trial she amended her report because she realized that the person she saw walking toward the Farm Fresh could not have been defendant. She knew who the defendant was, but she did not know Stewart. The person she saw had skin coloration lighter than hers, more consistent with the coloration of ...

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