People v. Walker

Docket No. 105437.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

TERRANCE WALKER, Appellant.

Opinion filed January 23, 2009.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Thomas, Kilbride, Garman,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

Following a bench trial, defendant, Terrance Walker, was

convicted in the circuit court of Cook County of one count of first

degree murder and one count of second degree murder. He was

sentenced to respective concurrent prison terms of 60 years and 15

years. The appellate court affirmed. No. 1–06–1761 (unpublished

order under Supreme Court Rule 23). We granted defendant’s petition

for leave to appeal (210 Ill. 2d R. 315). For the reasons that follow,

we reverse the judgment of the appellate court and remand this cause

to the circuit court for a new trial.

BACKGROUND

Because of our ultimate resolution of this appeal, we need not set

forth a detailed recitation of the factual background in this case.

Accordingly, we discuss only those facts necessary for an

understanding of our analysis and disposition.

In June 1992, defendant, who was then 15 years old, was charged

with the first degree murders of Terry Matthews and Damian

Stafford. On July 9, 1992, Cook County Assistant Public Defender

Marijane Placek entered an appearance on behalf of defendant.

However, on August 12, 1993, Assistant Public Defender Shelton

Green filed a motion for continuance, stating that Placek was on a

leave of absence until September 13, 1993, and requesting that the

proceedings be continued until sometime after her return. On

November 19, 1993, a motion to suppress statements was filed by

Assistant Public Defender Viola Armijo Rouse, who appears to have

been assigned defendant’s case after Placek. This motion alleged that

a seven-page, handwritten inculpatory statement made by defendant

on June 15, 1992, at the Chicago police department’s Area 5

headquarters was the result of police improperly questioning

defendant without the presence of a parent or youth officer, and that

it was neither knowingly nor voluntarily made.

During a status hearing on December 16, 1993, Rouse indicated

that defendant would be waiving his right to a jury trial, and the

parties stated that they were ready to set a trial date. The court

inquired whether defense counsel was withdrawing her pending

motion to suppress defendant’s inculpatory statement. Rouse

responded that she was exploring whether there could be a “possible

disposition of the case,” and asked that the motion be “entered and

continued.” The court stated “I can hear that [motion] along with the

trial” and, by agreement, set January 20, 1994, as the trial date.

On January 20, defendant’s case was called for trial, and the State

answered that it was ready to proceed. The following colloquy then

occurred between defense counsel and the court:

“[Defense Counsel]: Judge, I had [defendant’s] case up on

January 26th, and [defendant] left a message yesterday that

his case was up today. I have been on trial both Tuesday and

Wednesday before Judge Karnezis, on Tuesday until about

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6:00 and yesterday until 7:10. I am not ready to go to trial

today, and I did not call the State. He asked me why I didn’t

call. But, as I said, I have it up for next week.

THE COURT: Ms. Rouse, this has been set. I am sorry.

We will pass this case for trial.

[Defense Counsel]: I am not ready for trial, Judge, and I

will not be able to go to trial today.

THE COURT: It is irrelevant. There isn’t a private

attorney in the business who hasn’t tried to pull something

like this.

[Defense Counsel]: As the court knows, I was not

originally assigned to [defendant’s] case.

THE COURT: I know, but it is a dirty shame.”

The foregoing is the entire discussion between the court and

defense counsel regarding her request for continuance due to her

admitted unpreparedness. Although the court temporarily passed

defendant’s case, the record does not indicate how much time elapsed

until the proceedings resumed. When they did, defense counsel

tendered to the court an executed jury waiver signed by defendant.

The court questioned him about the waiver and found that it was

knowingly and intelligently made.

Defendant’s bench trial then commenced. In his opening

argument, the prosecutor emphasized that defendant made an

inculpatory statement in which he confessed to committing the

crimes, and that the evidence found at the scene corroborated this

confession. Defense counsel waived opening statement.

The State then presented its case in chief. Chicago police officer

Gregory Bella testified that he and his partner responded to a call

from dispatch reporting a possible double homicide, and discovered

two men seated in the front seats of a car, both shot in the back of the

head. Bella then identified several photographs of the crime scene and

the victims. Defense counsel did not cross-examine this witness.

The State’s next witness, Robert Davie, was a forensic

investigator with the Chicago police department’s crime lab who

processed the crime scene. Davie identified photographs of two fired

cartridge cases he recovered from the rear floor of the vehicle, and

one .22-caliber cartridge case found in the front passenger area.

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Although he was unable to recall how many fingerprints he was able

to lift, he did recall that one was recovered from the exterior of the

car’s rear door, and that it was submitted to the crime lab for further

analysis. Defense counsel then cross-examined the witness, which, in

its entirety, was as follows:

“Q. Officer Davie, you took print ridge impressions from

both the inside and outside of the car, is that correct?

A. That’s correct.

Q. And from the left side and from the right side?

A. Right.

Q. And you took 16 ridge impressions, is that correct?

A. I believe so, if that is what the report states.”

The State also called James Brewer, a latent fingerprint examiner

for the Chicago police department. Brewer testified that there were 16

latent fingerprint lifts from the crime scene, with one lift recovered

from the right exterior rear door of the car in which the victims were

discovered. Brewer submitted this print to the Automated Fingerprint

Identification System, which suggested a possible match with

defendant. He then compared the prints and confirmed that they were

a match.

Defense counsel, who had stipulated that Brewer was an expert

in the field of latent fingerprint examination, then cross-examined the

witness, which, in its entirety, was as follows:

“Q. Officer Brewer, out of the 16 lifts that were tendered

to you, only one matched [defendant’s] prints, is that correct?

A. That’s correct.

Q. That was from the exterior door?

A. I have to look. Yes.”

The prosecution then proceeded by way of stipulation, stating that if

Chicago Police Detective Michael Fleming were called, he would

testify that after being informed by Brewer of the fingerprint match

on June 15, 1992, he brought defendant to Area 5. Fleming also

notified the State’s Attorney’s office, and Assistant State’s Attorney

Catherine Bernard arrived at the station. Defense counsel agreed to

this stipulation.

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As its final witness, the State called Assistant State’s Attorney

Bernard, who testified that on June 15, 1992, she went to Area 5 to

interview defendant about the murders. After speaking with

Detectives Fleming and Schak about the investigation, Bernard gave

defendant Miranda warnings in the presence of Schak and Youth

Officer Masonick, and defendant stated that he understood. Bernard

knew defendant was a minor, and told him that he would be charged

as an adult. After speaking with defendant for approximately one-half

hour, Bernard asked him if he wanted to provide an inculpatory

statement. Bernard explained to defendant the difference between a

handwritten statement, an oral statement and a court-reported

statement, and he chose to give a handwritten statement.

According to Bernard, she then went to a different room and

wrote down a summary of what defendant had told her. When

Bernard finished the draft, defendant was brought to the room, they

read over her summary together, and made corrections where

necessary. Bernard, defendant, Masonick and Schak all initialed each

change, and signed each page of the statement. The prosecutor then

showed Bernard a seven-page handwritten statement, which she

identified as the one she wrote out.

Defense counsel then briefly cross-examined Bernard. She stated

that when she arrived at Area 5, the detectives had already questioned

defendant, and they conveyed this information to her. Bernard could

not recall if they told her there was a youth officer present when they

initially questioned defendant, and did not know when the youth

officer arrived at Area 5, although he was present when she began her

own questioning of defendant.

After Bernard was excused, the prosecution again proceeded by

way of stipulation. The mothers of both victims, if called to testify,

would state that their sons were alive prior to June 8, 1992, and the

State would introduce photos showing them deceased. The State also

stipulated that if Dr. Robert Kirschner were called, he would testify

that he was employed by the Cook County medical examiner’s office,

he was qualified as an expert in the field of forensic pathology, he

performed autopsies on both victims, and the victims’ causes of death

was multiple gunshot wounds to the back of their heads. Defense

counsel agreed to these stipulations. The State then rested its case in

chief.

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Defense counsel’s case consisted, in its entirety, of the following

stipulation:

“It would be stipulated between the parties that if

Detective Schak and/or Detective Fleming were called to

testify, they would testify that after the arrest of [defendant]

they interviewed him, and that he told them that he had

known Terry Matthews for a long time. He stated that Terry

Matthews and a friend of his had accused him of stealing

some dope, and that he was afraid of them. He stated that he

knew these individuals to have a gun, and he thought that they

would hurt him or his family. So stipulated?

[Prosecutor]: So stipulated, your honor.”

With that, the defense rested.

In its closing argument, the State emphasized that defendant’s

inculpatory statement was the key piece of evidence, stating that “the

case obviously boils down to the statement in this case, since there

were no eyewitnesses.” Defense counsel, in her closing argument,

asked that defendant be found not guilty of first degree murder on the

basis that his inculpatory statement showed that he and his family had

been threatened by the victims.

The circuit court immediately gave a ruling from the bench. In

convicting defendant of the first degree murder of Matthews and the

second degree murder of Stafford, the court explicitly stated that it

was exclusively relying upon defendant’s inculpatory statement, as it

was “[l]ooking not beyond the four corners of this seven-page

document,” which was “not disputed.” The court, however, delayed

defendant’s sentencing to February 15, 1994, in order to obtain a

presentencing report. When the parties returned on that date, defense

counsel informed the court that she was ready for sentencing and that

she was not filing a motion for new trial. After sentencing defendant,

the trial court then admonished him regarding his right to appeal.

The record reflects that, between August 1994 and March 1996,

defendant made a series of unsuccessful pro se attempts to appeal the

judgment of the circuit court. Included in the record are the circuit

court’s memorandum of orders as well as the pleadings filed by

defendant, which included motions for trial transcripts and for

common law record, a motion to vacate judgment and allow

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defendant to file an appeal, and a motion to file a late notice of

appeal. The circuit court denied these motions. Defendant also filed

a pro se motion in the appellate court for leave to file a late notice of

appeal and for appointment of counsel, which was similarly denied.

Ten years later, on March 10, 2006, defendant filed with this court

a motion for supervisory order, pursuant to our Rule 383 (155 Ill. 2d

R. 383). Walker v. Hon. Paul P. Biebel, No. 102338. Defendant, now

represented by counsel, alleged that the admonishment regarding his

right to appeal given by the circuit court after his convictions in 1994

was insufficient under the requirements of our Rule 605(a) as it

existed at that time. Defendant further alleged that because his trial

counsel never filed a motion for new trial, a motion to reconsider

sentence, or a notice of appeal–even though defendant requested that

counsel appeal his conviction–the circuit court’s failure to comply

with Rule 605(a) prejudiced defendant in his pro se attempts to

preserve his appellate rights.

On May 10, 2006, this court entered a supervisory order directing

the circuit court to reopen defendant’s case, admonish him in

accordance with Rule 605(a), and allow him to file a notice of appeal

from the original judgment within 30 days of the date of the

admonishment. On June 16, 2006, defendant’s case was reopened in

the circuit court, and he was admonished anew of his right to appeal

the 1994 judgment of the circuit court. On that same date, defendant

filed a notice of appeal with the appellate court.

Defendant raised two arguments on appeal: first, he asserted that

the circuit court abused its discretion in denying his trial counsel’s

request for a continuance when she informed the court that she was

unprepared for trial; second, defendant alleged that his trial counsel

was ineffective, inter alia, by failing to prepare for trial, failing to ask

for a ruling on the motion to suppress defendant’s inculpatory

statement and failing to file a posttrial motion.

The appellate court affirmed the judgment of the circuit court. In

its unpublished order under Rule 23, the appellate court rejected

defendant’s arguments that his trial counsel was ineffective and that

the circuit court abused its discretion by denying defense counsel’s

request for continuance and commencing trial when she indicated she

was unprepared.

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This court allowed defendant’s petition for leave to appeal (210

Ill. 2d R. 315).

ANALYSIS

Defendant advances two main arguments before this court,

mirroring those raised below. First, he contends that the circuit court

abused its discretion in denying a continuance where defense counsel

admitted she was unprepared to try defendant’s double-murder case.

In addition, defendant asserts that his trial counsel was ineffective in

various respects throughout the proceedings. Based upon these

alleged errors, defendant requests that we reverse the judgments of

the appellate and circuit courts and grant him a new trial.

In response, the State advances the threshold argument that

defendant has procedurally defaulted his claim that the circuit court

abused its discretion in denying defense counsel’s request for a

continuance because this claim was not preserved in a posttrial

motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988); 725 ILCS

5/116–1 (West 1994). Generally, the failure to set forth the alleged

errors made by the trial court and to specify grounds for a new trial in

a posttrial motion constitutes a procedural default of the issue on

review in the absence of plain error. People v. Naylor, 229 Ill. 2d 584,

592-93 (2008). Defendant concedes that this specific claim was not

properly preserved by his trial counsel for purposes of appellate

review, and requests that we excuse his procedural default and

consider his allegations of error under the plain-error doctrine of

Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)).

The plain-error doctrine is a limited and narrow exception to the

general rule of procedural default (Naylor, 229 Ill. 2d at 593) and

allows a reviewing court to consider unpreserved error when one of

two conditions is met:

“(1) a clear and obvious error occurs and the evidence is so

closely balanced that the error alone threatened to tip the

scales of justice against the defendant, regardless of the

seriousness of the error, or (2) a clear or obvious error occurs

and that error is so serious that it affected the fairness of the

defendant’s trial and challenged the integrity of the judicial

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process, regardless of the closeness of the evidence.” People

v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

Under both prongs of the plain-error doctrine, the burden of

persuasion remains with defendant. Naylor, 229 Ill. 2d at 593. If a

defendant fails to satisfy this burden, the result is that the “procedural

default must be honored.” People v. Keene, 169 Ill. 2d 1, 17 (1995).

The initial step in conducting plain-error analysis is to determine

whether error occurred at all. People v. Hudson, 228 Ill. 2d 181, 191

(2008). This requires us to conduct a substantive review of the issue.

People v. Johnson, 208 Ill. 2d 53, 64 (2003).

It is well settled that the granting or denial of a continuance is a

matter resting in the sound discretion of the trial court, and a

reviewing court will not interfere with that decision absent a clear

abuse of discretion. People v. Chapman, 194 Ill. 2d 186, 241 (2000).

However, “[w]here it appears that the refusal of additional time in

some manner embarrassed the accused in the preparation of his

defense and thereby prejudiced his rights, a resulting conviction will

be reversed.” People v. Lewis, 165 Ill. 2d 305, 327 (1995).

Whether there has been an abuse of discretion necessarily depends

upon the facts and circumstances in each case (People v. Friedman,

79 Ill. 2d 341, 347-48 (1980); 725 ILCS 5/114–4 (West 1994)), and

“[t]here is no mechanical test *** for determining the point at which

the denial of a continuance in order to accelerate the judicial

proceedings violates the substantive right of the accused to properly

defend.” People v. Lott, 66 Ill. 2d 290, 297 (1977). Factors a court

may consider in determining whether to grant a continuance request

by a defendant in a criminal case include the movant’s diligence, the

defendant’s right to a speedy, fair and impartial trial and the interests

of justice. People v. Segoviano, 189 Ill. 2d 228, 245 (2000); People

v. Coleman, 203 Ill. App. 3d 83, 100 (1990); 725 ILCS 5/114–4

(West 1994). Other relevant factors include whether counsel for

defendant was unable to prepare for trial because he or she had been

held to trial in another cause (725 ILCS 5/114–4(b)(2) (West 1994)),

the history of the case (Coleman, 203 Ill. App. 3d at 100)), the

complexity of the matter (People v. Nickols, 41 Ill. App. 3d 974, 979

(1976)), the seriousness of the charges (People v. Hamilton, 17 Ill.

App. 3d 740, 742 (1974)), as well as docket management, judicial

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economy and inconvenience to the parties and witnesses (People v.

Sullivan, 52 Ill. App. 3d 666, 670 (1977)).

We hold that the record clearly establishes that the circuit court

completely failed to exercise discretion in ruling on defense counsel’s

request for a continuance of defendant’s trial, as it is devoid of

evidence showing that the circuit court considered any of the relevant

factors in denying the continuance. We further note that the appellate

court, in upholding the judgment of the circuit court, similarly failed

to consider these factors. The record supports the inescapable

conclusion that the circuit court mechanically denied the continuance

without engaging in thoughtful consideration of the specific facts and

circumstances presented in this matter.

The history of this case does not show, and the circuit court did

not find, any pattern of delay occasioned by defendant. The January

20, 1994, trial date was the first trial date set by the parties. Further,

it appears that continuances prior to this date had been by the parties’

agreement, and that defendant had not sought to delay the

proceedings by requesting a change of counsel, a change of judge or

by being uncooperative with counsel.

When the case was called for trial, defense counsel immediately

informed the court that she had miscalendared defendant’s trial date

for January 26, and only discovered her mistake when defendant left

her a telephone message the prior day stating that his case was set for

trial the following day. In addition, counsel also stated that she had

been on trial the previous two evenings before another judge, until 6

p.m. and 7:10 p.m. Due to her mistake and also her being on trial in

other cases, she had failed to prepare for defendant’s trial and

candidly admitted, “I am not ready to go to trial today.” In response,

the circuit court, without further discussion, ruled: “[T]his has been

set. I am sorry. We will pass this case for trial.” Defense counsel

immediately stated once again that she was “not ready for trial” and

would “not be able to go to trial today.” The circuit court tersely

responded, “[i]t is irrelevant,” and cut off any further explanation that

could be offered by counsel, or any questions that the court itself

could have posed to obtain the data it needed to exercise its discretion

and render an informed decision. After making its summary ruling,

the court, in no uncertain terms, indicated that the matter was closed.

Nothing in the record shows that the circuit court considered the

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relevant factors of the diligence of the movant and defense counsel’s

inability to prepare because she had been held to trial in another

cause. The circuit court’s erroneous statement that counsel’s

explanation was “irrelevant” distinguishes this case from those

instances where parties dispute the correctness of a circuit court’s

weighing of relevant factors in deciding whether to grant or deny a

continuance, and further supports our determination that it totally

failed to exercise discretion in denying the continuance request.

Further, in ruling on the continuance request, the circuit court

made no comment regarding the interests of justice, the severity of

the double-murder charges or the complexity of the case. Similarly,

the court made no mention of docket management, judicial economy

or inconvenience to the parties or witnesses in connection with the

continuance request. We note that counsel was not even afforded the

opportunity to inform the court as to how long of a continuance she

sought, which would be important to a court’s consideration of a

continuance request. See People v. Childress, 276 Ill. App. 3d 402,

413 (1995) (finding reversible error where the court, inter alia, failed

to inquire of counsel how long a continuance would be needed). It is

reasonable to assume that, because counsel erroneously recorded the

trial date for the following week, she would have requested a short

continuance until the time that she had originally set the matter. In

addition, defendant requested a bench trial, which would have been

relevant to the court’s ruling, as it may have been more easily

rescheduled than a jury trial. Further, the four witnesses that were

present to testify for the State’s case in chief were employees of the

Chicago police department or the State’s Attorney’s office based in

Chicago, and the record reflects that the State did not make an

objection to defense counsel’s request for continuance.

The State, however, now argues that the circuit court’s ruling was

not in error because the record “gives rise to a reasonable inference

that the court perceived [the continuance request] as a delaying

tactic,” and that the court found counsel’s “excuse” to be

“disingenuous.” We disagree. In support of its argument, the State

relies upon the circuit court’s curious remark to defense counsel–who

was an appointed public defender–that “there isn’t a private attorney

in the business who hasn’t tried to pull something like this,” and that

her request was “a dirty shame.” We are unable to discern from the

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record what could have prompted the court to make these disparaging

remarks to counsel, which appear to be totally unrelated to

defendant’s case. Although we do not quarrel with the circuit court’s

apparent underlying sentiment that continuances may not be used to

thwart the administration of justice or as a vehicle for improper delay,

there is nothing in this record to suggest that such was the motivation

for the request here. The circuit court evinced an openly hostile

attitude toward defense counsel which, from our review of the record,

appears to have no basis, and which was not explained by the court

in its ruling. We cannot condone that whatever displeasure the court

had with defendant’s counsel–or with defense counsel in general–was

visited upon defendant. It must be remembered that “[t]he

constitutional guaranty that an accused shall have the assistance of

counsel is not a barren right but one of inestimable value to him, and

he should not be deprived of it by compelling counsel to go to trial

unprepared and without an opportunity of studying the case.” People

v. Blumenfeld, 330 Ill. 474, 489 (1928).

Finally, we note that the entire exchange between defense counsel

and the circuit court regarding counsel’s request for a continuance

comprises less than one page of trial transcript. The conclusion is

inescapable that under the specific facts here, the circuit court

completely abdicated its responsibility to conduct an informed

deliberation of defense counsel’s motion and, instead, immediately

and reflexively denied the continuance request on the sole basis that

the case had been set for trial. We take this opportunity to remind our

bench and bar that at issue in a request for a continuance in a criminal

trial is not only a circuit court’s discretion as to whether to grant that

request, but also a defendant’s constitutional right to a fair,

procedurally sound trial, which necessitates the making of a sufficient

record to establish that a defendant has been afforded a fair process.

Courts have inherent authority to guarantee each defendant a fair trial.

People v. Lawson, 67 Ill. 2d 449, 456 (1977). “These powers enable

the circuit court simultaneously to protect the legitimate rights of

defendants, maintain respect for its calendar, and satisfy the public’s

interest in the fair and efficient prosecution of those accused of

crime.” People v. Rudi, 103 Ill. 2d 216, 222 (1984). Although

“ ‘[j]udicial patience need not be infinite’ ” (People v. Johnson, 205

Ill. 2d 381, 406 (2002), quoting People v. Williams, 92 Ill. 2d 109,

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116 (1982)), we emphasize that “ ‘a myopic insistence upon

expeditiousness in the face of a justifiable request for delay can

render the right to defend with counsel an empty formality.’ ” People

v. Gosier, 145 Ill. 2d 127, 157 (1991), quoting Ungar v. Sarafite, 376

U.S. 575, 589, 11 L. Ed. 2d 921, 931, 84 S. Ct. 841, 849 (1964).

Accordingly, we hold that the unique facts presented in the instant

matter unquestionably support the conclusion that, in abdicating its

duty to exercise discretion in ruling upon defense counsel’s request

for continuance, the circuit court committed error. This

determination, however, does not end our inquiry. We further hold

that the trial court’s error was so serious as to affect the fairness of

defendant’s trial and challenged the integrity of the judicial process,

regardless of the closeness of the evidence. See Piatkowski, 225 Ill.

2d at 565. Defendant, therefore, has satisfied the second prong of the

plain-error doctrine.

The result of the court’s utter failure to exercise discretion in

denying the continuance request was to force defendant to go to trial

on double-murder charges despite defense counsel’s repeated

statements that she was unable to proceed because of lack of

preparation. The 42 pages of trial transcript which comprise the

entirety of defendant’s double-murder trial reveal that defense

counsel waived opening statement, raised no objections to the State’s

evidence, and engaged in limited cross-examination of the State’s

witnesses, which elicited information buttressing the State’s case and

which had already been established by the State through direct

examination. Counsel also failed to move for a directed verdict at the

close of the State’s evidence, failed to call any witnesses for the

defense, failed to present a comprehensive closing argument, and

failed to file either a posttrial motion or a notice of appeal. In

addition, counsel failed to litigate her previously filed motion to

suppress defendant’s inculpatory statement, which, in the words of

the prosecutor, was the key piece of evidence and which, in the circuit

court’s ruling, was found to be “not disputed” and formed the

exclusive basis of defendant’s convictions.

In sum, under the specific facts presented, we hold that the circuit

court’s failure to exercise its discretion in reflexively, arbitrarily and

mechanically denying defense counsel’s request for a continuance

was error in that the denial “embarrassed the accused in the

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preparation of his defense and thereby prejudiced his rights.” Lewis,

165 Ill. 2d at 327. We further find that this error was so serious that

it demonstrably affected the fairness of defendant’s trial and

challenged the integrity of the judicial process. Although the circuit

court had the opportunity and obligation to engage in informed

deliberation and explain its reasoning in denying the continuance

request, there is nothing in the record to demonstrate the exercise of

its discretion. Accordingly, defendant has established plain error and

he must be afforded a new trial.

As a final point, we find that there is no double jeopardy

impediment to a new trial. After carefully reviewing the record, we

conclude that the evidence was sufficient to prove defendant guilty

beyond a reasonable doubt. By this finding, however, we reach no

conclusion as to defendant’s guilt that would be binding on retrial.

Naylor, 229 Ill. 2d at 610-11.

Because of our resolution, we need not consider defendant’s

arguments that trial counsel was ineffective.

CONCLUSION

For the foregoing reasons, the judgments of the appellate and

circuit courts are reversed. We remand this cause to the circuit court

for a new trial.

Appellate court judgment reversed;

circuit court judgment reversed;

cause remanded.

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