The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Thomas R. Sumner, Judge Presiding.
Following a jury trial, defendant Leonard Stafford was convicted of first degree murder and sentenced to 32 years' imprisonment. Defendant contends the State violated his constitutional rights to due process and a fair trial by proceeding to trial against him on five counts of attempted murder that had been nol-prossed three years earlier but were never reinstated by reindictment. Defendant also contends that the following errors require reversal: (1) admission of hearsay evidence regarding identification; and (2) the trial court's misleading response to a series of questions from the jury. Defendant further argues that his sentence is excessive. Allowing the State to proceed to trial on five counts of attempted murder that had been nol-prossed and never reinstated violated defendant's right to a fair trial. We reverse and remand for retrial.
Defendant's conviction for murder arose from the November 29, 1994, shooting death of Antonio Burgos in Chicago. On February 16, 1995, a grand jury indicted defendant on two counts of first degree murder, five counts of attempted first degree murder, and five counts of aggravated discharge of a firearm. On January 29, 1996, before proceeding to the first trial of this case, the State nol-prossed all of the counts except the two counts of first degree murder. Defendant then proceeded to a bench trial. He was found guilty of first degree murder and sentenced to 32 years in prison.
On appeal, defendant contended that the trial court erred in denying his motions to suppress statements, to quash arrest, and to suppress the lineup and identification evidence. We affirmed the trial court's determinations that probable cause existed to arrest defendant and that the lineup was not unnecessarily suggestive. However, we found that defendant's statements to the police on the night of his arrest were not voluntary and remanded for a new trial. People v. Stafford, No. 1-96-1307 (1998) (unpublished order under Supreme Court Rule 23).
On March 23, 1999, the date jury selection commenced for the second trial, the State informed the trial court that it would be proceeding on the two first degree murder counts and five attempted murder counts. Defense counsel objected as follows:
"THE COURT: So, the State intends to nolle Count 1?
[ASSISTANT STATE'S ATTORNEY]: Counts -- I want to make sure I have this right, 8 through 12, your Honor, which are all the aggravated discharge counts.
THE COURT: All right. Well, I am going to have to use this.
[ASSISTANT STATE'S ATTORNEY]: Fine.
THE COURT: Counsel, now, --
[DEFENSE COUNSEL]: Just discussing with her that earlier in the case the State's Attorney before the stipulated bench trial that we had in front of Judge Egan, they nollied, I believe all but the first two counts which would be 1 and 2.
[ASSISTANT STATE'S ATTORNEY]: Judge, I am unaware of that if that's, in fact, what happened. I would be [going] ...