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February 14, 1995



Released for Publication April 13, 1995.

The Honorable Justice Wolfson delivered the opinion of the court: Buckley and Braden, JJ., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

When a judge undertakes the questioning of a defendant in a criminal trial before a jury, he must be aware of the line between legitimate truth-seeking and impermissible advocacy. In this armed robbery prosecution, the judge crossed the line by a wide margin. For that reason, we reverse the defendant's armed robbery conviction and remand for a new trial.


On December 31, 1992, the defendant and Stewart Caldwell entered the Oasis liquor store. The cashier described how they entered the store together, walked up and down some aisles, then toward a cooler which was 10 to 15 feet from the counter. Caldwell pulled a gun from his jacket sleeve and demanded money from the cashier. He ordered her to "lay down." At first she refused, but after Caldwell threatened to kill her, she opened the register.

The defendant grabbed money from the opened cash register. Then he took cigarettes, candy, wine, gin, and juices, putting them in the paper bag where he had placed the money. They left the store.

Police officer Ronald Krupa saw the defendant and Caldwell run out of the liquor store. The defendant was carrying a bag under his arm. As the two reached the corner, Krupa heard a police dispatch describing the liquor store robbers. Krupa pursued.

The officer ran to an alley, where he saw the defendant and Caldwell looking inside a bag. The defendant held the bag. When the defendant noticed Krupa, he said "Aw, f/--, the police." When Krupa ordered them to "freeze," they ran into the rear of a nearby building.

Later, police entered an apartment in that building. The defendant and Caldwell were in the apartment. After a time, the defendant showed Krupa where the gun was and Krupa retrieved it, an unloaded sawed-off shotgun. The police found and opened the bag the defendant had been carrying. They found the stolen property and coins, but not the currency. The currency was not recovered.

Later that day, the defendant gave a statement to Assistant State's Attorney Anita Alvarez. In summary, the defendant said he and Caldwell "planned to rob a liquor store at 2434 West 47th Street." When they entered the store, Caldwell pulled out theshotgun. The defendant went to the cash register and removed the money. He placed the money in a paper bag with other stolen items. They then ran to the apartment building where Caldwell hid the gun before it was tossed out the back porch window.

The defendant took the stand. He said he had known Caldwell for several years and they were friends. On December 31, 1992, they talked about "going to steal some liquor from the liquor store." Caldwell was wearing blue sweat pants and a big, blue jacket. The plan was that the defendant would grab a bottle of wine and set it on the counter to distract the cashier. Then Caldwell would take bottles of wine and put them in his big jacket.

The defendant denied ever seeing the shotgun or knowing Caldwell had it. He said the first time he saw it was when Caldwell pulled it out of his jacket at the liquor store, after the bottle of wine was placed on the counter. The defendant denied ever touching the gun or threatening the cashier. He denied seeing anyone give the gun to Caldwell. It was never his intention, he said, "to rob" the store.

Why did he take the money and property after Caldwell pulled out the shotgun? "Because I didn't want to refuse, because I didn't want anybody to get hurt in the liquor store."

The assistant State's Attorney then cross-examined. Her questions and the defendant's answers covered 35 pages of transcript. It was a thorough and vigorous cross-examination, covering in detail the plan, his use of the words "to rob the store," the taking of money and property, his knowledge of the shotgun, throwing the money away, and his relationship with Caldwell.

The defendant's knowledge and intent were explored at length. He was questioned in detail about variances between his trial testimony and his prior statements to a police officer and to a child welfare specialist named Regina St. John. (Later, in rebuttal, the officer and St. John testified to defendant's damaging statements about his knowledge and intent.) He denied telling the police officer he planned a "stickup." What did he mean when he used the word "rob?" He meant "steal."

The prosecutor questioned the defendant concerning the first time he told anyone he was surprised when Caldwell pulled out the shotgun at the liquor store:

"A. It was about a month ago.


Q. Okay. And at that time you were preparing with your attorney for trial, right?

A. Right.

During the cross-examination, at sidebar, the judge made clear his lack of enthusiasm for the defense. He questioned the defendant's credibility. He said the story was "not logical" and that defendant "couldn't possibly not know" that Caldwell had a gun hidden up his sleeve. The jury did not hear the judge's comments, but the prosecutor did. She again questioned the defendant about his statements to the police and his role in creating the plan.

After redirect examination and more cross-examination by the prosecutor, the judge took over. His cross-examination of the defendant covers seven-and-one-half transcript pages. We set it out in its entirety:

"Q. You are saying you and Stewart planned to steal liquor from the liquor store?

A. Right.

Q. And that's all you planned to do?

A. Right.

Q. There is no conversation by you with this other gentleman about the gun?

A. No.

Q. You were in the store the day before, so you knew where the liquor was, right?

A. Right.

Q. When April, and that's Ace's girl friend, and that's your cousin?

A. That's right.

Q. Were you in the store the day before?

A. Right.

Q. You saw her pay the cashier?

A. Yes.

Q. And you were present when that happened?

A. Yes.

Q. So you saw the cash drawer open?

A. Yes.

Q. Okay. Okay. You left. And the next morning you are saying it's your friend, Stewart, that came up with the idea and ...

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