Appeal from the Circuit Court of Cook County. Honorable Richard LaCien, Judge Presiding.
As Corrected October 25, 1995. Released for Publication November 3, 1995.
The Honorable Justice Zwick delivered the opinion of the court: McNAMARA, P.j. and Egan, J., concur.
The opinion of the court was delivered by: Zwick
JUSTICE ZWICK delivered the opinion of the court:
Defendant, Ronald Radovick, was indicted and convicted following a jury trial of the first degree murder of Regina Newton. The trial court entered judgment and subsequently sentenced defendant to a term of 75 years in the Department of Corrections. Defendant now appeals.
Regina Newton was forcibly drowned in the late evening hours of April 2, 1991, near the Maple Lake fisherman's overlook in the Cook County Forest Preserve. She had been severely beaten before being killed. While defendant admitted at his trial that he, John Janes and another friend, Donald Grant, were near the scene of the murder when Newton was killed, he testified that he and Grant did not participate in the murder. Defendant instead asserted Janes alone killed Newton.
The State's case against defendant was based principally upon the grand jury testimony of friends of the defendant, Joanne, Robert, Maggie and Jennifer Schell. Initially, Joanne Schell told police that the defendant had spent April 2 and April 3 with her in the Schell home. However, several months later, Joanne recanted her statements and told prosecutors that she and her family had beenthreatened by defendant and coerced into providing him with an alibi. The four Schells testified before the grand jury that they had been threatened by defendant and that defendant admitted helping Janes kill Regina Newton. By the time of trial all of the Schells had recanted significant portions of their grand jury testimony. The trial court ruled that the State would be permitted to introduce the Schells' grand jury testimony in its entirety as substantive evidence against the defendant.
In addition to presenting his own testimony that he did not participate in the killing, defendant called both John Janes and Donald Grant as witnesses on his behalf. At the time of defendant's trial, however, Janes had been indicted and refused to testify, asserting his fifth amendment right against self-incrimination. Grant was not indicted and appeared in court on defendant's behalf. Grant told the court before testifying that he had consulted with a lawyer and wished to testify as a defense witness. After the trial court repeatedly admonished Grant regarding his fifth amendment rights and after the court appointed a lawyer to discuss his fifth amendment rights with him, Grant changed his mind and declined to testify.
Following the loss of Grant as a witness, defendant sought to introduce prior testimony made by Grant to the grand jury which supported defendant's version of events. Specifically, Grant testified before the grand jury that he spent the evening of April 2 with the defendant, Janes and Newton driving around in defendant's car. Newton and Janes were arguing with one another and, at one point, Janes became "pissed off about something" and slapped Newton. Janes said, "take her to Maple Lake." When the four arrived at Maple Lake, the defendant sat in the car with Grant in a parking lot while Janes went with Regina Newton down to a trail near the water, away from the car. The parking lot was near a hill and a drop-off led down to the water. Grant and defendant could not see Janes and Newton from their vantage point. When Grant and defendant heard Newton screaming, defendant left Grant and went down to the trail to see what was happening. Grant stayed by the car. Grant testified that he heard defendant scream "look what you are doing!" Grant then went to the edge of the parking lot to see what was happening below near the water, he saw the defendant "half way down there." Janes at this time was standing in the water over Newton's body kicking her in the stomach. Janes was screaming, "Die bitch!" The trial court held that this grand jury testimony was hearsay and could not be properly admitted into evidence.
Defendant first argues that he was denied his fundamental right to present his defense by the trial court's repeated warnings to DonaldGrant regarding self-incrimination. Defendant claims these warnings were excessive and "drove Grant from the witness stand." We agree.
Just prior to Grant taking the witness stand as part of the defendant's case, the prosecutor, outside the presence of the jury, asked the court to advise Grant of his fifth amendment rights against self-incrimination. The prosecutor also requested that counsel be appointed for Grant if Grant appeared without a lawyer. At this point, counsel for the defendant indicated that Grant had a private attorney named James Porn who had already spoken with Grant regarding his testimony. Defense counsel objected to the prosecution's request that Grant be admonished, arguing that the State was simply trying to intimidate Grant.
The record then shows the following exchange between the court and Grant:
THE COURT: "I don't know what your lawyer told you, I want somebody in front of you. You have the right to have counsel. I have a duty to tell you that before you testify that you have right to have the advice of counsel and make sure what the legal ramifications of you testifying here and after you learn what the real ramifications are then you could decide to testify which is fine with me. If you decide not to testify that is fine with me, too, but I want to make sure you understand what is being said and done before you do it. Do you want to talk to the public defender.
Fine. You can talk to him. You can follow his advice. You don't have to follow his advice. He will just tell you these are the rules. These are the possible exposures if you do wish to testify. Fine. What you tell him is held in confidence. No one knows about it. The court never finds out about it. State never finds out about it. Defense doesn't find out about it. You have a private lawyer. Fine. If you want for purposes before your testimony today in this court if you want to just converse with the P.D. I will appoint him. You're not giving up any rights that you have. I just want to make sure that you're fully advised because after the P.D. talks to you I will just ask not what you said, but did he advise you of your rights. Yes. Does he wish to testify? Yes. Fitness; no problem. If you say no and you want to exercise some rights you have, I have no problem with that. See once you take the stand it's all over with. Then you have to testify. I just want to make sure that you understand.
Do you want to talk to the P.D. one time; it's between you and him?"
MR. GRANT: "I don't really think it's necessary. I spoke withmy attorney. He said nothing really could be done and answer whatever they want."
THE COURT: "May I ask the name of your lawyer?"
MR. GRANT: "James Porn. Suite 2505 on 180 North La Salle."
Following the judge's statements to Grant, the prosecutor and defendant's attorney attempted to reach attorney James Porn on the telephone, but were told by a switchboard operator that he was not at his desk. They reported this fact to the court. The trial court, then recognizing that a conflict of interest would occur if a public defender were appointed to represent Grant, suggested that a special attorney from the public defender's Multiple Defendant Unit be appointed for Grant. Defense counsel objected to such a procedure, noting that Grant had already indicated that he had spoken with an attorney and had been advised to testify. Defense counsel also noted that Grant had already testified before the grand jury. The trial court did not address defense counsel's objections, but returned to the courtroom and again addressed Grant:
THE COURT: "We can't reach [Mr. Porn]. [The] State has made a phone call. It was made along with counsel for the defendant here. [You are] twenty some years of age. [You have a] right to have an attorney. I forget (sic) that the P.D.'s Office is representing a codefendant here. I can get somebody from [the public defenders special unit] which is a separate office or I can get a private attorney and see to it that he's paid. If you want to pass that and call another witness and talk to him for fifteen, twenty minutes. Fine. cannot make you have an attorney or talk to an attorney. My question to you is if you don't want to be put in that position and your lawyer -- you're telling me he told you to tell the truth; you got other problems. Don't worry about it. Fine. You talk to the private lawyer; fine. If you don't want to talk to the private lawyer; fine. I will provide you one free of charge if you want one. I will get a lawyer in the building here. It won't cost you nothing (sic), but then again you have a right to say I don't want to talk to no (sic) lawyer. I will testify. It's up to you. You're ...