People v. Taylor
State: Illinois
Court: 5th District Appellate
Docket No: 5-93-0163
Case Date: 03/13/1997
NO. 5-93-0163
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 89-CF-162
)
CHRISTOPHER B. TAYLOR, ) Honorable
) Charles Romani, Jr.,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
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 (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 (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 about it. The State withheld its knowledge of Stewart's
confession.
Before an appeal from the first verdict was taken, defendant
filed a posttrial motion. Defendant's motion asserted his
innocence. The motion relied, in large part, upon the newly
discovered fact that Stewart confessed to his cousin just four days
after the robbery was committed. On December 4, 1989, the date set
for defendant's sentencing hearing, defendant was allowed to call
Stewart as a witness in advance of the date set for hearing on the
posttrial motion. Stewart thus testified in support of defendant's
motion for a new trial on a day primarily devoted to the imposition
of sentence. The rest of the evidence on the posttrial motion was
not taken until January 8, 1990, when, by stipulation of the
parties, Stewart's testimony was incorporated into the posttrial
motion evidence.
Stewart walked into the courtroom, took the witness stand, and
insisted under oath that he committed the Farm Fresh robbery. He
further claimed ownership of the gun identified in defendant's
trial and asserted that it was indeed the gun he used in committing
the crime.
The State cross-examined Stewart. It confronted him with a
prior statement made to Alton detective Lindell Pyatt. Stewart
acknowledged that when Lindell Pyatt earlier asked him about the
Farm Fresh robbery, he denied any involvement. Stewart refused,
however, to acknowledge that his earlier denial cast blame on
defendant. The State elicited that Stewart's asserted guilt
surfaced only after he incurred a draconian debt to society for his
other criminal conduct. The State pointed out that Stewart had
very little risk in confessing to another robbery when he already
faced the measure of 60 years in prison for his wicked ways.
The trial court denied the posttrial motion, the defendant
appealed, and we reversed based upon the nondisclosure of evidence
favorable to the accused. People v. Taylor, 219 Ill. App. 3d 1114,
628 N.E.2d 1211 (1991) (unpublished order under Supreme Court Rule
23 (134 Ill. 2d R. 23)).
The defendant stood trial for the Farm Fresh robbery a second
time. Both victims again made positive in-court identifications of
the defendant. Saez again recalled the defendant's confession.
The defense again tried to blame the crime on Stewart. This time,
however, the defense was armed with knowledge of Stewart's
confession to his cousin four days after the robbery and Stewart's
repeated confession while testifying under oath. Neither
confession was presented to the jury.
The defendant sought to call Stewart as a witness. Stewart
was brought to the courthouse, but he never entered the courtroom.
Stewart's lawyer appeared and announced to the court that Stewart,
if called as a witness, would assert the privilege against self-
incrimination. The court and the parties assented to counsel's
declaration of Stewart's intent. Stewart himself did not exercise
the privilege. No hearing was held to ascertain the basis for the
claim.
The defendant then sought to introduce Stewart's prior self-
incriminating testimony at the hearing on defendant's posttrial
motion. The trial court refused to admit the former testimony. It
held that Stewart's confession under oath was untrustworthy. It
also held that the State was not afforded an adequate opportunity
to adversarially test Stewart's credibility.
The court and both parties operated under the mistaken belief
that Stewart's testimony on the day of sentencing was offered in
support of sentencing issues. Stewart did testify at defendant's
sentencing hearing. However, Stewart testified on an issue raised
in the posttrial motion. His testimony was offered in support of
a new trial. Its purpose was to convince the trial judge that
Stewart committed the crime and that defendant's guilty verdict
should be vacated.
The court thus misapprehended the point of Stewart's earlier
testimony. Because the court believed that the testimony was
offered at a sentencing hearing, the court believed that it was
offered to address issues other than guilt or innocence. It
reasoned from this belief that the State lacked the proper
incentive to test Stewart's veracity. The court held that
Stewart's testimony, when given, did not invoke the need for
vigorous cross-examination directed at the truth of the matter
asserted. Paradoxically, it further held that based upon matter
elicited during the cross-examination, Stewart's testimony was not
worthy of belief. The trial court reasoned that the admission of
the prior testimony as trial evidence on the issue of guilt or
innocence would allow use of untested and untrustworthy hearsay.
The fact that Stewart bared his guilt to a trusted relative
who promptly betrayed his confidence was not placed into evidence.
Furthermore, the jury did not hear that Stewart later shared his
guilt in open court under oath subject to unconstrained inquiry.
The jury returned another guilty verdict and we again reversed.
Taylor, 264 Ill. App. 3d 197, 637 N.E.2d 756. We found that trial
error pervaded the second proceeding, and we held that the
cumulative effect of this error deprived the defendant of a fair
trial. Taylor, 264 Ill. App. 3d at 211, 637 N.E.2d at 765-66.
We need not revisit each error that formed the collective
basis of our earlier decision. We must, however, revisit our view
of the trial court's refusal to admit Stewart's posttrial motion
testimony. We previously held that Stewart's prior testimony
should have been admitted in the context of an ineffective
assistance of counsel claim. Taylor, 264 Ill. App. 3d at 208-10,
637 N.E.2d at 763-65. Our holding was predicated upon appellate
court views expressed in People v. Rice, 247 Ill. App. 3d 415, 617
N.E.2d 360 (1993), rev'd, 166 Ill. 2d 35, 651 N.E.2d 1083 (1995).
The Illinois Supreme Court vacated our decision and remanded this
case with direction to reconsider our holding in light of its
decision in Rice. Taylor, 163 Ill. 2d 581, 655 N.E.2d 914.
After reviewing the Supreme Court's order, we are satisfied
that the facts of our case called for the admission of Stewart's
prior testimony. In fact, Stewart's hearsay statements fit the
criteria for reliability under both exceptions recognized and
articulated in Rice.
Rice and his codefendant, Raymond Pugh, were arrested when a
traffic stop matured into a search of Pugh's person. Rice, 166
Ill. 2d at 37, 651 N.E.2d at 1084. An officer saw Rice pass a
brown paper bag to Pugh, who was seated in the passenger's seat.
He also saw Pugh's attempt to conceal it. The officer retrieved
the bag from Pugh's trousers and discovered that it contained over
100 grams of heroin. Rice, 166 Ill. 2d at 37-38, 651 N.E.2d at
1084.
Both men were charged with heroin possession. Rice, 166 Ill.
2d at 38, 651 N.E.2d at 1084. Pugh filed a motion to suppress. At
a hearing on his motion, Pugh testified that he tucked the bag of
heroin into his pants several hours before the traffic stop
occurred. Pugh insisted that there was no transfer from Rice and
therefore no need for him to take furtive action. Rice, 247 Ill.
App. 3d at 417, 617 N.E.2d at 362. Thus, Pugh claimed that the
officer could not possibly have observed the acts upon which the
search was justified.
At Rice's trial, Pugh asserted the privilege against self-
incrimination. Rice, 166 Ill. 2d at 38, 651 N.E.2d at 1084. He
became unavailable as a witness to refute the arresting officer's
claim that he saw Rice transfer the bag of heroin during the
traffic stop. Rice wanted his codefendant's testimony to establish
that the bag and its contents were concealed inside the pants hours
earlier. Rice, 166 Ill. 2d at 38, 651 N.E.2d at 1084-85.
After Pugh's fifth amendment rights were honored, Rice sought
to admit Pugh's earlier suppression hearing testimony. Rice sought
to use the hearsay to negate his physical control of the contraband
and cast doubt upon his knowledge of its existence. The trial
court refused to admit it. Rice, 166 Ill. 2d at 38, 651 N.E.2d at
1085. The appellate court reversed. Rice, 247 Ill. App. 3d at
417-19, 617 N.E.2d at 362-64. It held that Pugh's prior testimony
should have been admitted as a statement-against-interest. The
Supreme Court agreed with the trial court, holding that the
testimony was unreliable and failed to comport with the
requirements of any exception to the rule against hearsay. Rice,
166 Ill. 2d at 39-45, 651 N.E.2d at 1085-88.
The Supreme Court first examined the former-testimony
exception to hearsay. Rice, 166 Ill. 2d at 39, 651 N.E.2d at 1085.
The reliability of testimony given at proceedings other than those
at which it is offered as evidence rests in the opportunity to
cross-examine the witness. Rice, 166 Ill. 2d at 39, 651 N.E.2d at
1085 (citing People v. Horton, 65 Ill. 2d 413, 415-16, 358 N.E.2d
1121, 1123 (1976)). For an opportunity to cross-examine to be
considered meaningful, and therefore adequate to provide
reliability, "the motive and focus of the cross-examination at the
time of the initial proceeding must be the same or similar to that
which guides the cross-examination during the subsequent
proceeding." Rice, 166 Ill. 2d at 41, 651 N.E.2d at 1086.
While Rice's codefendant was open to cross-examination during
the suppression hearing, the focus of the hearing was not on the
defendant's guilt or innocence. Because Rice's guilt or innocence
was not at issue during the suppression hearing, the State's
questions to Pugh were not directed at challenging Pugh's
assertions as they related to Rice. Therefore, the State was not
afforded a meaningful opportunity to effectively cross-examine Pugh
and render the prior testimony reliable hearsay for the purpose of
admission at Rice's trial. Rice, 166 Ill. 2d at 41-42, 651 N.E.2d
at 1086.
The issue of meaningful opportunity to cross-examine at a
prior hearing must be decided on a case-by-case basis. Horton, 65
Ill. 2d at 416, 358 N.E.2d at 1123. It is a question unsuited for
per se determination. Rice, 166 Ill. 2d at 39, 651 N.E.2d at 1085.
In Rice's case, the prior testimony was given at Pugh's
suppression hearing. Rice, 166 Ill. 2d at 38, 651 N.E.2d at 1084.
Pugh's testimony was self-serving, offered to prove that the
officer lied about the observation of Rice's transfer of the bag of
heroin. Pugh hoped to establish that the search lacked the
justification claimed. The State had no reason to focus its cross-
examination on Rice's guilt when it was not in issue. Rice, 166
Ill. 2d at 41, 651 N.E.2d at 1086. The State had no reason to
question Rice's physical control of the contraband or his knowledge
of its existence. Moreover, the State had no reason to challenge
Pugh's motivation in giving testimony favorable to Rice when it was
not offered in Rice's favor.
Under these circumstances, the former testimony constituted
unreliable hearsay. Rice, 166 Ill. 2d at 41-42, 651 N.E.2d at
1086. It was offered to prove a fact relevant to Rice's guilt or
innocence. But the fact was asserted at an earlier suppression
hearing when the testimony had nothing to do with Rice's guilt or
innocence. The State had no reason to probe the asserted fact in
terms of the issue litigated at Rice's trial. Therefore, the
State's lack of inquiry could not have been the result of
adversarial choice. The testimony lacked the assurance of
reliability that flows from the opportunity to conduct meaningful
cross-examination.
The Supreme Court also found that contrary to the appellate
court's holding, Pugh's testimony was not admissible under the
statement-against-interest hearsay exception. Rice, 247 Ill. App.
3d at 417, 617 N.E.2d at 362. The former-testimony hearsay
exception was considered by the supreme court in Rice as a
predicate to its review of the appellate court's interpretation of
the statement-against-interest exception to the rule against
hearsay.
Rice argued that Pugh's statement was trustworthy because it
was against Pugh's penal interest, was under oath, and was subject
to cross-examination. Rice, 166 Ill. 2d at 44, 651 N.E.2d at 1087.
The Supreme Court discounted the notion that an oath, coupled with
cross-examination, could independently provide the trustworthiness
necessary for the admission of testimony as a statement-against-
interest.
The court reiterated the fact that the cross-examination
failed to meet the criteria for reliability under the former-
testimony hearsay exception. While there was cross-examination,
there was no meaningful opportunity to cross-examine on the issue
addressed at trial. The court further pointed out that the
testimony was not a spontaneous statement, was motivated by self-
interest, and was not corroborated by any other evidence in the
case. Rice, 166 Ill. 2d at 44-45, 651 N.E.2d at 1087.
Our case presents itself in sharp contrast to the
circumstances presented in Rice. Stewart's posttrial motion
testimony was offered for no purpose other than to assist the
defendant. It was offered to negate defendant's guilt when guilt
or innocence was still the issue. Stewart testified to convince
the trial court that he committed the Farm Fresh robbery instead of
the defendant. At issue was whether the guilty verdict should be
vacated and a new trial awarded because of Stewart's confession.
The focus and motive of cross-examination mirrored what it
would have been had Stewart testified at the trial. The cross-
examination established several reasons to discount the testimony.
The State established a prior relationship between Stewart and the
defendant, challenged Stewart's motive for claiming guilt, obtained
acknowledgement of Stewart's earlier claim of innocence, and laid
a foundation to impeach Stewart with a prior statement that
defendant committed the Farm Fresh robbery. The sole purpose of
cross-examination was to discredit Stewart's claim that he
committed the crime.
The kindred issue shared in the posttrial proceeding and the
defendant's trial was the issue of guilt or innocence. Both
proceedings addressed the question of the Farm Fresh robber's
identity.
The parallel inquiry was not a matter of coincidence.
Posttrial motion hearings are not collateral to trial proceedings
but are a part of those proceedings. The defendant's request for
retrial was not independent of the trial process. The trial court
was called upon to reweigh the evidence adduced at the earlier
trial. It was asked to reconsider the issue of guilt or innocence
in light of new evidence bearing on the guilt of another. The
trial court revisited the issue of guilt or innocence to determine
whether justice required a new trial. It was implied as a matter
of course that Stewart's testimony would be presented to a jury
again if the motion for new trial was granted.
Stewart's testimony that he committed the crime was taken and
considered by the court. It was attacked by a cross-examination
focused on convincing the judge that Stewart was lying about
committing the crime. While there was certainly reason to question
whether the testimony was credible, it did not fail to qualify for
admission into evidence at the subsequent trial. Stewart's
testimony may well have been rejected by the jury. Nevertheless,
the jury should have weighed its worth in connection with the other
evidence in the case. The former testimony fit the criteria for
reliability under the former-testimony hearsay exception. Rice,
166 Ill. 2d at 39, 651 N.E.2d at 1085 (citing Horton, 65 Ill. 2d at
415-16, 358 N.E.2d at 1123). The testimony was given at a
proceeding that afforded a meaningful opportunity to cross-examine
Stewart on the issue of guilt or innocence. We see no hearsay
reasons to preclude a jury from hearing the same testimony
previously taken and considered by the trial judge. The judge used
the testimony to weigh defendant's potential innocence. The jury
could consider it for the same purpose.
Stewart's prior testimony also meets the criteria for
admissibility under the statement-against-interest hearsay
exception as enunciated by our Supreme Court. See, e.g., People v.
Cruz, 162 Ill. 2d 314, 342-47, 643 N.E.2d 636, 650-52 (1994);
People v. Bowel, 111 Ill. 2d 58, 67, 488 N.E.2d 995, 999 (1986).
The critical inquiry for the admissibility of statements-
against-interest is whether they are made under circumstances that
ensure their trustworthiness. Our Supreme Court has refined this
question to whether the statement was made under circumstances that
provide "considerable assurance" of its reliability by objective
indicia of trustworthiness. Bowel, 111 Ill. 2d at 67, 488 N.E.2d
at 999. The issue of reliability (whether we can be certain the
statement was made under circumstances which fairly allow the fact-
finder to decide how much weight to give to the statement) must not
be confused with the question of credibility (whether the statement
should be believed by the fact-finder).
The following circumstances surrounding Stewart's testimony
provide assurance of reliability to a degree that meets the test
for admissibility. Stewart testified under oath on December 4,
1989, that he committed the Farm Fresh robbery with the weapon
identified by the victims and seized from his person in connection
with another robbery. He was open to unlimited cross-examination
to test whether his claim of guilt was truthful. The focus and
motive of the cross-examination pointedly tracked the issue of
defendant's guilt or innocence and was a meaningful opportunity for
inquiry. His in-court confession was against his penal interest,
subjecting him to the legal penalties for armed robbery. His in-
court confession was corroborated by evidence of an earlier avowal
of guilt to a trusted relative just days after the crime occurred.
The earlier confidence was a spontaneous statement to a close
acquaintance.
The investigation into the crime yielded objective evidence of
corroboration to circumvent the potential for a fabricated
confession. Wheeler made a tentative pretrial identification of
Stewart, selecting his mugshot from an array of potential suspects.
The gun used in the Farm Fresh robbery belonged to Stewart, and he
was armed with the weapon when he was arrested. Stewart lived only
three blocks from the Farm Fresh store. His live-in paramour,
Saez, knew all of the pertinent details of the crime. Furthermore,
a police officer who saw a man wearing the distinctive clothing
worn by the Farm Fresh robber immediately prior to the robbery
remembered that the robber's skin coloration was inconsistent with
defendant's skin coloration and was consistent with Stewart's skin
coloration. She also knew the defendant, the claimed source of
Saez's knowledge about the crime, and testified that the man in the
distinctive clothing was not the defendant.
Taken as a whole, these circumstances provide considerable
assurance of the reliability of Stewart's testimony. Even if it
failed to qualify for admission under the former-testimony hearsay
exception, the existence of ample objective indicia of
trustworthiness qualified it for admission under the exception
carved for statements-against-interest.
Although we earlier relied upon a repudiated view of the
statement-against-interest hearsay exception expressed by the
appellate court, we nevertheless found our way to a sound
conclusion. We believe our earlier opinion finds support in the
Supreme Court view of the hearsay exceptions implicated in our
case. Once the trial court determined that Stewart was entitled to
invoke the privilege against self-incrimination, Stewart's
posttrial motion testimony should have been admitted.
We would be remiss not to discuss Stewart's role as a witness
at the next trial. Our opinion of circumstances that warranted the
admission of Stewart's testimony at the last trial should not be
taken as a license to simply introduce earlier hearsay statements
without any effort to produce Stewart's live testimony. Stewart
should be subpoenaed to testify. Inquiry into his intention to
testify or again seek refuge in the privilege against self-
incrimination is a necessary predicate to use of his former
testimony.
Stewart was deemed unavailable as a witness at the last trial.
Stewart's attorney asserted Stewart's privilege against self-
incrimination by advising the court of Stewart's intention to do
so. At the next trial, Stewart should be the one to invoke
constitutional protection. If he seeks to invoke the privilege,
the court should conduct a hearing to determine whether a
legitimate basis exists to fear incrimination. Hoffman v. United
States, 341 U.S. 479, 486, 95 L. Ed. 1118, 1124, 71 S. Ct. 814, 181
(1951).
The passage of time has cured Stewart's most obvious fear in
being compelled to testify at defendant's trial. It does not
offend the Constitution to compel a witness to testify to his own
misconduct when the testimony compelled is incapable of
incriminating the witness. People v. Redd, 135 Ill. 2d 252, 303,
553 N.E.2d 316, 339 (1990). Stewart has been continuously resident
in Illinois during the passage of time allowed for the prosecution
of a robbery committed in December of 1988. The statute of
limitations within which to prosecute Stewart for the Farm Fresh
robbery has run. Ill. Rev. Stat. 1991, ch. 38, par. 3-5(b).
A witness can refuse to answer questions only when he has
reasonable cause to believe he might be subject to prosecution if
he answers. Redd, 135 Ill. 2d at 303, 553 N.E.2d at 339 (1990).
A witness who cannot be prosecuted for his indiscretions, because
prosecution is time-barred, is incapable of bearing witness against
himself for such conduct. See People v. Rockola, 339 Ill. 474, 171
N.E. 559 (1930).
Stewart's only future prosecutorial concern rests in the
State's perception of his honesty. The Constitution is not,
however, a sanctuary for a witness who harbors intention to
furnish false evidence if compelled to testify. See People v.
Cooper, 202 Ill. App. 3d 336, 559 N.E.2d 942 (1990). Stewart's
predicament is no different than the witness who is granted
immunity from prosecution from matters about which he is compelled
to testify. Such a witness cannot invoke the privilege because he
intends to furnish false information. Such a witness also suffers
the risk of potential prosecution if his truthful testimony does
not grace the prosecution with what it expects to hear.
Stewart may seek protection from self-incrimination by a claim
that the truth would require disavowal of his earlier sworn
testimony. The inconsistent testimony disavowing guilt could
subject him to proof of falsity under section 32-2 of the Criminal
Code of 1961. 720 ILCS 5/32-2(b) (West 1994). Although the prior
testimony under oath would be time-barred perjury, testimony now
that he did not commit the crime could be prosecuted with ease of
proof. It would be prosecuted, however, only if the prosecution
deemed it to be false. Such a prosecution is irreconcilable with
the State's perception of the truth. It has persisted in the
prosecution of the defendant in the face of Stewart's earlier
efforts to claim responsibility for the crime. We can see no
realistic reason why the State would pursue Stewart for perjury or
obstruction of justice now if he disavowed what the State believes
were earlier efforts to commit such crimes. This is particularly
true in light of the admissibility of the former testimony, and the
loss of the opportunity to cross-examine anew, if Stewart is
allowed to invoke the privilege.
For the foregoing reasons, we reaffirm our decision in People
v. Taylor, 264 Ill. App. 3d 197, 637 N.E.2d 756 (1994). This cause
is reversed and remanded for a new trial.
Reversed and remanded.
WELCH, J., and GOLDENHERSH, J., concur. NO. 5-93-0163
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 89-CF-162
)
CHRISTOPHER B. TAYLOR, ) Honorable
) Charles Romani, Jr.,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: March 13, 1997
___________________________________________________________________________
Justices: Honorable Clyde L. Kuehn, P.J.
Honorable Thomas M. Welch, J., and
Honorable Richard P. Goldenhersh, J.,
Concur
___________________________________________________________________________
Attorneys Daniel M. Kirwan, Deputy Defender, Larry R. Wells,
for Assistant Defender, Office of the State Appellate
Appellant Defender, Fifth Judicial District, Route 15 East,
P.O. Box 2430, Mt. Vernon, IL 62864
___________________________________________________________________________
Attorneys Hon. William Haine, State's Attorney, Madison County
for Courthouse, 157 N. Main Street, Edwardsville, IL 62025
Appellee
Norbert J. Goetten, Director, Stephen E. Norris, Deputy
Director, Rebecca Sanders, Staff Attorney, Office of the
State's Attorneys Appellate Prosecutor, Route 15 East,
P.O. Box 2249, Mt. Vernon, IL 62864
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