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March 13, 1997


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

Presiding Justice Kuehn delivered the opinion of the court. Welch, J., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Kuehn

PRESIDING JUSTICE KUEHN delivered the opinion of the court:

If we believe that confession is good for the soul, this is a case where there is too much of a good thing. The evidence against defendant includes the claim of a witness that he confessed to her. But defendant is not the only soul claimed to be in search of redemption from this crime. At the initial stage of investigation, another witness claimed that someone else confessed to him. The first known confessor was the initial suspect in the investigation. This suspect eventually walked into a Madison County courtroom, faced the judge, and swore under oath that he was to blame.

We have been ordered to revisit an earlier ruling that awarded defendant a new trial. People v. Taylor, 264 Ill. App. 3d 197, 637 N.E.2d 756, 202 Ill. Dec. 217 (1994), appeal denied, judgment vacated, & cause remanded, 163 Ill. 2d 581, 655 N.E.2d 914 (1995) (supervisory order). We previously held that the original suspect's in-court confession should have been admitted into evidence at defendant's second trial as a statement-against-interest. The sole issue for review is whether the former in-court confession is admissible in light of People v. Rice, 166 Ill. 2d 35, 651 N.E.2d 1083, 209 Ill. Dec. 635 (1995).

On the evening of December 14, 1988, a man wearing a long tan trenchcoat and a floppy black and white hat entered the Alton Farm Fresh Dairy Store (Farm Fresh) and pulled a pistol. He held two employees at gunpoint and ordered the surrender of the store's cash register receipts and two packs of cigarettes. The money and cigarettes were placed in a bag and handed to the gunman. He and the bag then disappeared into the night.

The Farm Fresh robbery investigation quickly focused on Thomas Stewart. Stewart was, by reputation, a likely suspect. The investigation targeted him, however, after a close confidant, his cousin Romel Stevens, breached a trust and reported to authorities that Stewart confessed to the Farm Fresh robbery just four days after he committed it.

Stewart was a suspect in other armed robbery investigations. In fact, when detectives visited him with questions about the Farm Fresh robbery, Stewart was already in custody for a robbery of the Alton Domino's Pizza. The Domino's Pizza robbery took place a few days after the Farm Fresh robbery. Stewart told detectives that he could provide details about the Farm Fresh robbery. He offered to clear it up if the detectives could guarantee him a furlough from jail until Christmas. The detectives made no effort to secure a holiday release. Stewart, in turn, made no effort to clear up the Farm Fresh robbery.

Stewart's mugshot was planted in an array of mugshots and taken to Regina Wheeler, a Farm Fresh victim. She selected Stewart's mugshot out of the array but was tentative in her identification. She was never shown a mugshot of the defendant. Wheeler later testified that the armed robber, the mugshot she had selected, and the defendant were all the same man.

Wheeler's tentative identification of Stewart supported Romel Steven's claim that Stewart confided his guilt. Although the investigation into Stewart was meeting with success, the mugshot array viewed by Wheeler was never shown to the second Farm Fresh victim. Stewart never stood in a lineup.

The investigation took a sudden turn away from Stewart and toward defendant after Alton detectives were summoned to Delisa Saez's jail cell. Saez, like Stevens, claimed to know who committed the Farm Fresh robbery. Her report to the police unquestionably demonstrated knowledge of the crime's details.

Saez reported that she knew the defendant. He came to her home on the night of the Farm Fresh robbery. She lived just three blocks from the Farm Fresh store. The defendant came dressed in a long brown trenchcoat and a large multicolored hat. He told her that he had just robbed the Farm Fresh store and took a package of Kools, a package of Newports, and over a hundred dollars in cash. She described a gun that the defendant possessed on the night of the robbery. That description matched the description of the gun used in the Farm Fresh robbery.

Alton detectives abandoned the mugshot array taken to Wheeler and compiled a different array. The collection included defendant's mugshot but excluded Stewart's mugshot. The new array was taken to the other Farm Fresh victim, Brenda Hudson, who selected defendant's mugshot. She wanted to see him in person, however, in order to feel confident about her identification.

Both victims attended a lineup. Stewart and defendant were in custody at the Madison County jail. Although both suspects were readily available to participate in a lineup, the victims were shown a lineup array that included only the defendant. Hudson, who previously viewed and selected defendant's mugshot, positively identified defendant. Wheeler, who previously viewed and selected Stewart's mugshot, could not identify anyone. She did, however, identify defendant when she heard his voice. She was sure that the sound of defendant's voice matched that of the robber's voice.

The defendant stood trial for the Farm Fresh robbery. Both victims made positive in-court identifications of the defendant. In addition to the eyewitness testimony, the State offered the testimony of Saez, who repeated her earlier report to the police. She testified about the circumstances and details of defendant's confession. Her knowledge of the robber's clothing, the type of gun used, and the items taken in the robbery demonstrated that she knew who committed the Farm Fresh robbery. Her claim that it was the defendant bolstered the opinions of both eyewitnesses.

A possibility existed, however, that Saez learned details about the Farm Fresh robbery from someone other than the defendant. Saez's apartment was indeed convenient to the robber of the Farm Fresh store. Saez did not live there alone. She, her boyfriend, and her aged husband lived there.

Saez's boyfriend was Romel Stevens' cousin. Romel Stevens and Saez's boyfriend were arrested for armed robbery a few days after the Farm Fresh robbery. When arrested, her boyfriend was armed with a gun. The gun seized from her boyfriend was the same gun identified by the Farm Fresh victims as the gun used by the Farm Fresh robber. Saez's live-in boyfriend was Thomas Stewart.

The defense called a third eyewitness. An Alton police officer, on patrol in the area the night of the robbery, saw a man dressed in a long tan trench coat and a large floppy hat about to enter the Farm Fresh store. A few moments later, she received the Farm Fresh robbery dispatch. The officer, Jonniece Young, testified that the man she saw fitting the description of the robber could not have been the defendant. She knew the defendant and it was not him. The man she saw had skin lighter in color than her own, skin more consistent with the color of Stewart's skin than with the defendant's much darker skin.

The jury returned a guilty verdict. The defense tried to blame the crime on Stewart but made no effort to present evidence of Stewart's alleged confession to his cousin. No attempt was made to introduce the third-party confession because the defense did not know ...

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