The Honorable Justice Harrison delivered the opinion of the court. Justice Bilandic, dissenting, Justices McMORROW and Nickels join in this dissent. Justice Nickels, also dissenting, Justices Bilandic and McMORROW join in this dissent.
The opinion of the court was delivered by: Harrison
The Honorable Justice HARRISON delivered the opinion of the court:
Following a bench trial in the circuit court of Cook County, the defendant, Charles Stewart, was found guilty of first degree murder and sentenced to a term of imprisonment of 70 years. In finding defendant guilty the trial court relied, in part, expressly upon a highly inculpatory post-arrest statement determined by that court to have been made by him. The statement was admitted into evidence as People's Exhibit No. 58 but was neither published in the record in the trial court nor included in the record on appeal. In the appellate court defendant appears to have presented two issues for review: (1) that his constitutional rights to due process and to confront and cross-examine witnesses testifying against him were violated by the admission of the grand jury testimony of a witness as substantive evidence and (2) that the evidence was insufficient to prove him guilty beyond a reasonable doubt. In an order issued according to Supreme Court Rule 23 (134 Ill. 2d R. 23), the appellate court affirmed the judgment of the trial court. Thereafter, in a modified order upon denial of rehearing, the appellate court again affirmed the judgment of the trial court. No. 1-95-3666 (unpublished order under Supreme Court Rule 23). We allowed the defendant's petition for leave to appeal as a matter of right pursuant to Supreme Court Rule 317 (134 Ill. 2d R. 317). Seeking reversal of his conviction, he raises two issues for our review: (1) whether the appellate court denied defendant his constitutional guarantees to effective assistance of counsel, confrontation, and due process of law when it affirmed his conviction for first degree murder "by relying upon the content of the defendant's post-arrest statement previously ordered, on objection by the State, barred from the record on appeal" and (2) whether the appellate court erred in considering defendant's post-arrest statement "on rehearing" without first ruling on issues concerning the State's noncompliance with Supreme Court Rule 341(e)(7) (155 Ill. 2d R. 341(e)(7)) and the doctrine of waiver.
During the pendency of his appeal, defendant moved that the appellate court direct the State to supplement the record on appeal. In the motion, a copy of which is appended to each party's brief in this court, defendant's appellate counsel stated as affiant that he had not been defendant's trial attorney, that he had read the eight-volume record on appeal, and that
"the most significant and major portion of the evidence against Defendant Charles Stewart on the trial of the instant cause consisted of Grand Jury testimony of two State witnesses plus a written statement allegedly made by the Defendant. However, undoubtedly due to the fact that this was a bench trial, none of those documents were published in the record on appeal. Instead, the documents were introduced into evidence and then delivered to the trial judge for his perusal and consideration. The report of proceedings clearly indicates that the trial judge considered these documents in finding the Defendant guilty. Though introduced into evidence by the People these documents do not appear in the common law record."
Counsel stated in the motion that he had never seen these documents and that it was not possible for him accurately to assess their worth in arguments before the court concerning a record on appeal from which they were omitted. Counsel reasoned in the motion that "presumably, the People of the State of Illinois still have available a clean copy of the documents, if not the actual exhibits themselves, suitable for presentation to this Honorable Court in a supplemental record on appeal." Defendant moved that the court "enter an order directing the People of the State of Illinois to cause to be prepared and to submit to this Honorable Court a supplemental record on appeal containing any exhibits introduced by the People of the State of Illinois on the trial of this cause which the People will seek to rely upon before this Honorable Court on the appeal of the instant cause."
In its response to this motion, a copy of which also is appended to each party's brief in this court, the State objected strongly to defendant's request that it be directed to file a supplemental record. The State submitted "that the record before this Honorable Court is complete, thereby enabling it to fully decide all issues presented" and contended that defendant had "failed to meet his burden of demonstrating what part of the record is incomplete, incorrect or made any clearer by the Grand Jury testimony of two State witnesses plus a written statement allegedly made by the defendant." The State maintained further in its response that "the Record from the Grand Jury testimony of two State witnesses plus a written statement allegedly made by the defendant, which was not in evidence at trial, is wholly inappropriate for review on appeal" and concluded that "defendant is improperly attempting to contradict the record and embellish it with cumulative material."
In an order, a copy of which is likewise appended to the brief of each party, the appellate court denied the defendant's motion, described by the court in its order as "requiring the People of the State of Illinois to cause the Clerk of the Circuit Court of Cook County to prepare a supplemental record on appeal in the instant cause containing the People's exhibits introduced on the trial in the instant cause which the People will rely upon in the prosecution of the instant appeal."
In its initial order affirming the judgment of the trial court, the appellate court indicated that defendant's confession had been admitted into evidence but noted that defendant had not included it in the record. In this order the appellate court said that the State had focused in its closing argument on the fact that defendant had admitted in his confession to having held the victim, Stephen Green, while others beat the victim. During closing argument at trial, the prosecutor asked, "What does Charles Stewart's statement tell you, your Honor?" and proceeded, without objection by defendant, to catalogue in detail and at some length most of the contents of the statement in the same order in which they appear in it. Having found that the evidence supported defendant's conviction for first degree murder, the appellate court stated further in this order: "In his confession, defendant told the police that he held the victim and kicked him during a gang meeting at Sheila's apartment. Sheila testified before the grand jury that she saw defendant hold the victim and participate in the 'violation.' Based on all of the evidence at trial, a reasonable trier of fact could have found each element of the crime beyond a reasonable doubt."
In a petition for rehearing, a copy of which is appended to the State's brief in this court, defendant took the position that since no witness had testified to the content of the defendant's statement at trial and, thus, there was no evidence to support the appellate court's statements about defendant's confession, the conclusion was "inescapable" that the appellate court had "either communicated ex parte with someone having access to the defendant's post-arrest statement, or else this Court has simply fictionalized the existence of defendant's 'confession' wherein 'defendant admitted to holding the victim and kicking him during the violation *** .' " Defendant asserted further in the petition for rehearing that the appellate court had " ordered that the defendant's post-arrest statement not be filed." (Emphasis in original.)
In its response to the defendant's petition for rehearing, a copy of which is appended to the defendant's brief in this court, the State denied that the State's Attorney's office had engaged in ex parte communication with the court and declared that the appellate court's order makes clear that the source of the court's knowledge of a single sentence from the defendant's confession came not from viewing the written document itself, but from viewing the record of the prosecutor's remarks summarizing it during closing argument at trial. The State said further, with reference to its earlier response to the defendant's motion for an order directing it to cause to be prepared and to submit a supplemental record on appeal, that the State had objected when it was not in possession of the record on appeal and before any assistant State's Attorney had been assigned to write its brief and that it had done so while under the mistaken impression that the documents had not been admitted into evidence at trial. The State indicated further in its response to the defendant's petition for rehearing that at oral argument counsel for the State had recounted her unsuccessful efforts to obtain a copy of the defendant's confession after defendant had filed his brief and that, after defendant had filed his petition for rehearing, the State had obtained through its Felony Review Division defendant's written confession admitted into evidence at trial and would attempt to have the document bound and certified and move for its inclusion in the record on appeal. While asserting that the defendant's petition for rehearing should be denied, the State suggested that if the appellate court should determine that rehearing were warranted, the court should rehear the case with the benefit of the defendant's confession included in the record on appeal.
Thereafter, over defendant's objection, the State moved successfully to supplement the record on appeal with the written, five-page confession, stating in its motion that the confession had been prepared for submission to the appellate court and since it was now available, it should be included in the record on appeal because of its significance in view of the defendant's argument that the evidence was insufficient to support his conviction. Following entry of an order of the appellate court permitting defendant to file a reply within two weeks to the State's response to his petition for rehearing, defendant filed such a reply, almost six weeks after the supplemental record containing his post-arrest statement had been filed in the appellate court. As we have already indicated, in a modified order upon denial of defendant's petition for rehearing the appellate court thereafter affirmed the judgment of the trial court. In finding that the evidence supported defendant's conviction for first degree murder, the appellate court noted that "[a] supplemental record containing defendant's confession, filed subsequent to the original order issued in this matter, in fact shows that defendant admitted to holding the victim and kicking him during the violation." Based on all of the evidence, when viewed in a light most favorable to the prosecution, the appellate court found that a reasonable trier of fact could have found each element of the crime beyond a reasonable doubt.
In his petition for leave to appeal as a matter of right, defendant contended that the "reliance by the Appellate Court upon matters not made available to the defendant at the appellate level," namely, his post-arrest statement, had denied him his rights of confrontation, due process, and effective assistance of counsel on appeal. As a consequence, a constitutional question had arisen for the first time in and as a result of the action of the appellate court.
With respect to the first issue defendant raises for our review, he contends that "as a general proposition, it violated the rulings of this Court and every district Appellate Court, including the First District, when the court in the case at bar considered matters already ruled excluded from the record on order of the Appellate Court." He reasons that when the appellate court "entered its orders affirming the defendant's conviction predicated upon a purported post-arrest statement which had been excluded by its own previous order from the record, and which was unavailable to defense counsel, the result was a 'denial of counsel [which] left petitioner completely without representation during the Appellate Court's actual decisional process.' " The appellate court, he asserts, "committed constitutional ...