People v. Stewart

• Decision Date: 26 November 1974
• Docket Number: No. 57326,57326
• Citation: 321 N.E.2d 450,24 Ill.App.3d 605
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas STEWART, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 450

321 N.E.2d 450

24 Ill.App.3d 605

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas STEWART, Defendant-Appellant.

No. 57326.

Appellate Court of Illinois, First District, Second Division.

Nov. 26, 1974.

Bloch & Rane, Chicago (Irwin D. Bloch, Leon C. Rane, Louis M. Leider, Chicago, of counsel), for defendant-appellant.

Bernard Carey, State's Atty., County of Cook, Chicago (Kenneth L. Gillis, Jerald A. Kessler, Chicago, of counsel), for plaintiff-appellee.

LEIGHTON, Justice.

In a three-count indictment, Stephan Sedlacko and the defendant, Thomas Stewart, were charged with three armed robberies. Defendant alone went to trial before a jury that acquitted him of the offense charged in one count and found him guilty of those charged in two. The court sentenced him to serve concurrent terms of two to eight years. He appeals to this court contending that (1) incompetency of his counsel denied him a fair trial; (2) identification of him by two victims of the crimes was vague, doubtful, and as a consequence of this and other aspects of the case, the State failed to prove him guilty beyond a reasonable doubt; (3) rulings of the trial judge that admitted evidence suggesting guilt by association, and which allowed the State to introduce rebuttal testimony, denied him a fair trial; (4) improper comments of the prosecuting attorneys in their closing arguments to the jury were prejudicial. The following are the facts that underlie these contentions.

Our Lady of the Mount Catholic Church is located at 2414 61st Avenue in the town of Cicero, Illinois. On June 25, 1970, four priests, Fathers James Flynn, George Francis Cerny, Frank Podgorny and James Skonicki, lived in the church rectory. That day, Fathers Flynn and Skonicki played golf and afterwards went to dinner. At about 10:40 p.m., Father Cerny heard a ring of the rectory doorbell. When he answered, there were two men standing outside. One was dressed like a priest; the other Father Cerny could not see but noticed that he was wearing a jacket. The one in priest's attire asked for Father Flynn, but Father Cerny said he was not in. The two men left; and, before going to bed, Father Cerny wrote a note to Father Flynn telling him that two men had come to the rectory asking for him.

At about 11:30 p.m., Fathers Flynn and Skonicki returned. Father Skonicki went to bed in his room on the third floor; Father Flynn read the message from Father Cerny. About 10 minutes later, the telephone rang. When Father Flynn answered, a male voice said it was Father Paul from Milwaukee, Wisconsin. The man told Father Flynn that he was advised to contact him because of his rapport with teenagers among whom the caller wanted to work in the Chicago area. However, the man said he had to return to Milwaukee early the next morning and therefore asked if he could come to the rectory that night. Father Flynn agreed; and approximately a half hour later, between 12:15 and 12:30 a.m., the man arrived. He was dressed like a priest; he said he was Father Paul from Milwaukee. Father Flynn admitted him to the rectory; and for a short period, they drank some beer and talked about teenagers, social conditions, neighborhood racial changes and organizational activities within the church.

Then 'Father Paul' said he had some literature in his car he though would interest Father Flynn. He went out and promptly returned with an attache case which he put on a desk, opened and from it pulled a gun. He then ordered Father Flynn to sit down in a chair. Father Flynn did so; and a few moments later, 'Father Paul' left and returned with another man who, undisguised and unmasked, stood in a doorway and looked into the room where Father Flynn was sitting. The room was illumined by light in the ceiling. Father Flynn had the opportunity to look at this second man for about five seconds and saw he was wearing a tan or beige colored jacket.

A short time later, Father Flynn was ordered into another room. As he walked down a hallway, he saw the second man putting a nylon stocking over his head. On this occasion, the priest could observe that man for about five seconds and saw that he had a gun in his possession. Within a few moments, a third man entered the rectory and armed himself with the shotgun he took from a case. The intruders then asked Father Flynn if there was anyone else in the rectory. When he told them of the other three priests, two of them went to upper floors and awoke Fathers Skonicki, Podgorny and Cerny. They were brought downstairs to the office where Father Flynn was sitting and the four priests were ordered to sit in chairs arranged so they each faced a wall. Then keys to their rooms and other parts of the rectory were taken from them. The intruders took watches from Fathers Flynn, Podgorny and Cerny; took cash either from their persons or from their respective rooms. Later, the priests were ordered to get into two cars: Father Flynn in his with Father Podgorny; Father Skonicki in his with Father Cerny. They were ordered to leave Chicago and drive to Milwaukee, Wisconsin. However, after driving a short distance, the priests, at their first opportunity, stopped a Cicero police department squad car and told police officers about what had occurred in the rectory. Then, accompanied by the officers, the four returned to the church where they found Father Lovett, a priest from a nearby parish.

Two or three weeks later, sometime during the middle of July 1970, Father John Keenan, one of Father Flynn's classmates, brought to the rectory a copy of the May 1970 issue of a magazine, the Chicago Journalism Review. Father Keenan thought an article in the magazine, one concerning a group called 'the Legion of Justice,' contained information about the men who robbed the rectory during the early morning of June 26, 1970. On one page of the publication were pictures of three men. Father Flynn and Father Skonicki looked at the three pictures and identified the one of Stephan Sedlacko as the 'Father Paul' and that of the defendant, Thomas Stewart, as the second man who came into the rectory and was observed twice for about five seconds: once at the doorway of the office and once in the hallway, armed with a gun and putting a nylon stocking over his head. Having made this identification, the priests, accompanied by two trustees from the church, went the next day to the Cicero police department and showed the pictures to investigating officers who were assigned to the case. A short time later, Father Flynn was shown a group of 20 photographs from which he picked out a picture of the defendant, Thomas Stewart. Defendant was later arrested; the three-count indictment against him and Sedlacko was returned; and on October 6, 1971, represented by private counsel employed by him, he went to trial before a jury.

Between the robberies and the trial, Father Podgorny passed away. Therefore, the three surviving priests were the witnesses for the prosecution. Father Flynn was the first to testify. He told the jury of his experiences on the evening of June 25 and the early morning of June 26, 1970: how he saw the man dressed in priest's garb; how he saw the second man, observed him twice for intervals of five seconds; and later, was able to identify him along with 'Father Paul' by looking at pictures in a copy of the Chicago Journalism Review; and, after that, picking out a picture of defendant from among 20 shown him by Cicero policemen. Over defense objections, Father Flynn was permitted to tell the jury how he learned the name of Stephan Sedlacko; and how, on the occasion of the robberies, defendant and Sedlacko were together in the rectory and acted in concert with one another.

Father Skonicki was the second witness. ¹ He also described to the jury his experiences of the evening and early morning hours in question. He said he was awakened in his room by two intruders, armed with guns, who brought him and Father Podgorny to an office on the first floor of the rectory where Fathers Flynn and Cerny were seated in chairs heads down and facing a wall. Corroborating Father Flynn's testimony in large part, he told the jury how, during a period that followed, the intruders threatened him and his fellow priests with death by shooting; how demands were made for the safe combination and keys; how, in connection with a demand concerning the signing of checks, Father Podgorny was hit in the face by one of the intruders. Father Skonicki said that as he was driving his car out of the garage, as he was ordered to do, he had a five-second opportunity to look at one of the intruders. Then, the priest was asked if he saw anyone in court who was the same person. Father Skonicki looked and then told the jury that defendant '(a)ppears to be the same person.'

Father Cerny was the third and last witness for the prosecution. He described his experiences, telling the jury how he answered the doorbell of the rectory on the night of June 25 and seeing the two men, one dressed in a priest's garb inquiring about his fellow priest. He told the jury how he left the message for Father Flynn and went to bed. He, like Father Skonicki, described how he was awakened by two intruders armed with guns who ordered him from his bedroom to the first floor office where Father Flynn was sitting.

Defendant's defense was an alibi. In support of it, he called his father, an older brother and two sisters. They testified that during the evening and early morning hours of June 25--26, 1970, defendant was at home, 1411 North Linder in Chicago. Then they were cross-examined. Three of them, the father, the brother and the older sister, denied ever hearing of defendant having an acquaintance or friend named either Stephan or Stephan Sedlacko. The father was asked if he knew all of defendant's acquaintances. He said he did. Then, he insisted that he had never heard of a Stephan Sedlacko nor had he ever received a telephone call for defendant by a...