                                                     SIXTH DIVISION
                                                   November 2, 2007


No. 1-05-2995



THE PEOPLE OF THE STATE OF          )     Appeal from the Circuit
ILLINOIS,                           )     Court of Cook County.
                                    )
     Plaintiff-Appellee,            )
                                    )
     v.                             )     No. 04 C6 60827
                                    )
JAMES PEDEN,                        )     Honorable
                                    )     Christopher J. Donnelly,
     Defendant-Appellant.           )     Judge Presiding.



     JUSTICE O'MALLEY delivered the opinion of the court:

     Following a jury trial, defendant James Peden was convicted

of residential burglary and sentenced to 10 years' imprisonment.

On appeal, defendant contends that (1) the trial court violated

his sixth amendment right to counsel by interfering with his

attorney-client relationship during trial, and (2) the State

violated his fifth amendment right not to testify during closing

arguments.   In addition, defendant challenges his 10-year prison
sentence and the constitutionality of section 40-5(7) of the

Alcoholism and Other Drug Abuse and Dependency Act (20 ILCS

301/40-5(7) (West 2004)), which pertains to eligibility for

participation in Treatment Alternatives for Criminal Justice

Clients (TASC).    For the following reasons, we reverse and remand

for a new trial.

                             BACKGROUND

     Defendant was indicted on a single count of residential

burglary, which alleged that on April 20, 2004, he knowingly and
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without authority entered the residence of Nancy Peden with the

intent to commit a theft therein.

        The undisputed evidence at defendant's jury trial

established that the victim, Nancy Peden, was married to David

Peden, who was defendant's brother.     On April 17, 2004, David

died after being involved in a motorcycle accident.     Between

April 17 and April 28, 2004, Nancy did not stay at the home she

shared with David in Blue Island.     Nancy gave Carol Peden

(defendant's mother) keys to her home so that Carol could enter

her home and provide care for Nancy's cats.     In the evening on

April 28, 2004, Nancy returned to her home and encountered

defendant inside.    Nancy asked defendant for her keys and told

defendant to leave.    Shortly thereafter, Nancy discovered that

some coins that belonged to her son and a gold antique ring were

missing.    Ultimately, defendant confessed to police officers that

he took the coins and Nancy's ring and sold the ring at a pawn

shop.

     The primary issue at defendant's trial was whether defendant
entered Nancy's home with the intent to commit a theft.     In

relevant part, during opening statements, defense counsel argued

that although defendant took items from Nancy's home he was not

guilty of residential burglary because he did not enter Nancy's

residence intending to steal.    Instead, according to defense

counsel, defendant initially entered Nancy's residence to feed

her cats, but became overcome with grief after thinking about his


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deceased brother David, which led him to take the coins and ring

to sell for money to buy alcohol "in a pitiful attempt to drown

his sorrow."    Defense counsel emphasized that defendant initially

went to Nancy's house with the intention of feeding her cats, not

the intent to steal; therefore, he did not commit residential

burglary.

     In relevant part, immediately following defense counsel's

opening statements, the following colloquy occurred outside the

presence of the jury, as follows:

                 "THE COURT: [Defendant], you just heard

            your lawyer give an opening statement, is

            that right?

                 DEFENDANT: Yes, sir.

                 THE COURT: Have you discussed with your

            attorney what she was going to say in her

            opening statement?

                 DEFENDANT: Not completely, no.   I mean

            not - I didn't know everything that she was
            going to say, no.

                 THE COURT: Well, I understand you

            wouldn't know everything *** but did you

            understand that she said some things during

            her opening statement which could be viewed

            as admissions in which, for example, she

            seemed to indicate that you did, in fact,


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            take a diamond ring and some money from this

            [residence] and that seemed to be without the

            permission of the person who owned these

            things and that could certainly be construed

            as a theft.   And, so, that could be construed

            as an admission on your part.   Did you

            discuss this particular trial strategy with

            your attorney?

                 DEFENDANT: Yes.

                 THE COURT: And you had given your

            permission to your attorney that this was

            part of a trial strategy and you were in

            agreement with this trial strategy, is that

            correct, sir?

                 DEFENDANT: Yes, sir.

                 THE COURT: Okay.   Thank you."

     The State's first witness was Nancy, who testified that

after her husband David died on April 17, 2004, she stayed at her
mother's home.    During that time, Nancy permitted her mother-in-

law, Carol Peden, to access her home to take care of Nancy's two

cats.   Nancy provided Carol with keys to her home, but Nancy did

not give anyone else permission to enter her home.

     At approximately 8:50 p.m. on April 28, 2004, Nancy returned

to her home and found defendant inside.     Nancy asked defendant to

return her keys and leave her property and defendant complied.


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After defendant left, Nancy discovered that a gold ring and some

coins were missing from her home.

     According to Nancy, defendant was not welcome inside her

home during her entire two-year marriage to defendant's brother

David and was never permitted to enter her home.   Nancy testified

that she never gave defendant permission or authority to enter

her home after David died.   On cross-examination, Nancy clarified

that defendant would periodically attend dinner at her home, but

he was always accompanied by Carol (defendant's mother).    Nancy

further testified that defendant would sometimes arrive alone and

uninvited at her home and "to save family face" defendant would

be allowed inside.

     Blue Island police detective Christopher Connors testified

that on June 2, 2004, he interviewed defendant at the Blue Island

police department.   After Detective Connors read defendant his

Miranda rights, defendant agreed to give an oral statement, which

Detective Connors memorialized.   In that statement, defendant

stated that on April 20, 2004, he was in the process of making
arrangements for David's funeral when he found Nancy's keys,

which had been given to his mother (Carol).   After leaving the

funeral home, defendant went to Nancy's house "to see what [he]

could get."   Defendant took an engagement ring and some coins and

later sold that ring at a Cash America pawnshop for $300.

     Schechinatzin Moreno testified that she was an assistant

manager at Cash America Pawn.   Moreno identified in a court a


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loan ticket dated April 20, 2004, that reflected a transaction

where a gold ring was exchanged for $300.    The loan ticket

included, inter alia, defendant's signature, address, date of

birth, and social security number.

     The defense called Carol Peden, who testified that she was

defendant's mother.    According to Carol, she visited Nancy and

David's home on multiple occasions during their marriage.      Carol

further testified that defendant often was present during those

visits and he was never asked to leave Nancy's home.

     Following David's death, Carol agreed to take care of

Nancy's cats.    Carol explained that she and defendant went to the

home where Nancy was staying, and defendant retrieved the keys

from Nancy.    Subsequently, Carol made numerous visits to Nancy's

house to feed Nancy's cats and pick up the mail.    Carol testified

that defendant often accompanied her when she went to Nancy's

home to care for her cats.    Carol explained that she was never

told that defendant was not permitted inside Nancy's residence.

     After Carol finished testifying, the trial court dismissed
the jury for a brief recess.    During this time, two colloquies

occurred that are relevant to the issues presented on appeal and

are therefore recounted in detail.     First, shortly after the jury

was dismissed for a recess, the following colloquy occurred:

                 "THE COURT: [Defense] [c]ounsel, how do

            you wish to proceed?

                 MR. HENRY [Defense Counsel]: Judge, we


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            are going to call our final witness,

            [defendant].

                 THE COURT: I am sorry, you said you are

            going to call [defendant]?

                 MR. HENRY: Yes, we are.

                 THE COURT: [Defendant].

                 DEFENDANT: Yes, sir.

                 THE COURT: You need to understand that

            you have both the right to testify and the

            right not to testify and that is your right.

            You have heard me admonish this jury about

            how you don't need to prove anything and

            things along those lines.    You heard me say

            those things?

                 DEFENDANT: Yes.

                 THE COURT: Okay.    And, therefore, you

            have a right to testify and a right not to

            testify.    Your attorney has discussed that
            with you.    You have a right to [sic] both to

            testify and not tetsify [sic], correct?

                 DEFENDANT: Yes, sir.

                 THE COURT: You also heard me tell the

            jury that even if you did not, that they

            could not hold that against you.    You heard

            that, didn't you?


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                 DEFENDANT: Yes, sir.

                 THE COURT: Now, lastly, I want to tell

            you that this right, as I indicated, is your

            right, it is not your attorney's right.

            Obviously, you can consult with them, which I

            know you have, as to whether you are going to

            testify or not testify, but ultimately the

            decision is yours.   You understand that, sir?

                 DEFENDANT: Yes, sir.

                 THE COURT: Have you made the decision

            about whether you wish to testify or not

            testify?

                 DEFENDANT: Yes, sir.

                 THE COURT: What is your decision?

                 DEFENDANT: I will testify.

                 THE COURT: Very well.   Okay, [c]ounsel,

            are you ready to proceed now?"

Immediately following defendant's oral confirmation of his desire
to testify and the State informing the court that the State was

ready to proceed, the trial court questioned defense counsel in

defendant's presence during a second colloquy, as follows:

                 "THE COURT: Now, taking a step further

            in line with what [defendant] and Ms. Harvey

            said during opening statement, are you

            anticipating your client making an admission?


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            Actually, I am speaking to your attorney.

                    MR. HENRY [Defense counsel]: Yes.

                    THE COURT: You are anticipating your

            client making an admission, potentially, to

            the charge of theft?

                    MR. MALONEY [Assistant State's

            Attorney]: Judge, may I say something

            regarding this issue?

                    THE COURT: No, not at this point in

            time.    Thank you.

                    MR. HENRY: Yes.

                    THE COURT: Okay.   Have you talked to

            your client about the ramifications of

            admitting to a crime on the witness stand?

                    MR. HENRY: I didn't talk to him about

            what could happen further on down the line.

            Give me a second.

                    (BRIEF PAUSE.)
                    MR. HENRY: Judge, after further

            reviewing, he will not be testifying.

                    THE COURT: All right. [Defendant], now

            we need to have the same kind of

            conversation.    Now you have had further

            discussions with your attorney, is that

            right?


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                 DEFENDANT: Yes, Judge, that is correct.

                 THE COURT: And is it your desire to

            testify, or not testify?

                 DEFENDANT: No, I will not be testifying.

                 THE COURT: [Defendant] is it because of

            what I said or is it because of the

            discussions that you had with your attorney?

                 DEFENDANT: It was on my own decision,

            but it was based upon the discussion I had

            with my attorney.

                 THE COURT: So, it was not based upon

            what I said.    I didn't influence you one way

            or the other?

                 DEFENDANT: No, sir.

                 THE COURT: Okay.    All right.   Now we can

            bring the jury out.

     After these two colloquies, the parties selected jury

instructions and the jury was then called back into the courtroom
for closing arguments.

     During closing arguments, the State argued that defendant

used his brother's death as an opportunity to "capitalize on his

grieving sister-in-law."      The State further argued that although

defendant knew he was not permitted in Nancy's home, he took the

keys that Carol had for Nancy's home and went to Nancy's home in

order to steal from her.      The State cited defendant's statement


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to police officers as evidence that he intended to steal from

Nancy and that "he was not there to tend to cats, he was there to

steal, and that is what he did."

     In rebuttal, defense counsel argued that defendant initially

went to Nancy's home to feed her cats and only later decided to

take the items from her home.      Defense counsel further argued

that defendant had permission to enter Nancy's home and that the

whole incident amounted to "a breakdown of a family

relationship."    Defense counsel noted that defendant's statement

to police officers was written by a police officer, and not by

defendant.    Defense counsel repeatedly asserted that defendant

went to Nancy's home only with the intention to feed her cats,

and the State failed to prove otherwise.

     In surrebuttal, the State made the following comments, which

are relevant on appeal and recounted in full, as follows:

                 "You heard the defendant pawned those

            rings to get money to help his grieving.       You

            heard that from the defense attorney.       Was
            there any evidence of that at any point in

            the trial?   No.   Zero.     All you heard is from

            his statement where he said I went there to

            see what I could get.      You are told that just

            to create sympathy, as if he is upset that

            his brother has passed away, that you should

            feel for him today because he had a rough


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            time.    Well, there was no evidence of that.

            You just heard that from the defense

            attorney, no one else."

The State reasserted that defendant was not grieving, but that he

went to Nancy's home with the intention to steal and took

advantage of her personal situation.

     Following closing arguments, the jury found defendant guilty

of residential burglary.

     At the sentencing hearing, in relevant part, defense counsel

referenced an earlier colloquy where the trial court indicated

that it would consider imposing a lesser sentence if defendant

would assist in returning the ring to Nancy.       In response, the

trial court commented, as follows:

                    "Well, I will be glad to do this.   I'm

            going to proceed with sentencing today.     If

            that ring does in fact turn up, then I will

            be glad - and [defendant] had something to do

            with it, to somehow get that ring back into
            [Nancy's] hands - I will be glad to

            reconsider his sentence.     If [defendant] had

            something to do with it."

At the close of the sentencing hearing, the court sentenced

defendant to 10 years' imprisonment.

     This appeal followed.

                                 ANALYSIS


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     On appeal, defendant first contends that the trial court

violated his sixth amendment right to counsel by interfering with

his attorney-client relationship during trial.    Specifically,

defendant asserts that "the trial judge interfered with [his]

attorney-client relationship in violation of the Sixth Amendment

by questioning [him] and his attorney during trial as to

strategic choices they had made which ultimately induced

[defendant] not to testify."

     The State replies that defendant has waived this issue by

failing to object at his trial and not including this issue in

his motion for a new trial.    Alternatively, the State contends

that the trial court's admonitions were proper and

nonthreatening, and did not cause defendant not to testify.

According to the State, the contested comments were made in an

attempt to ensure that defendant understood the consequences of

his admission, his right against self-incrimination, his right to

testify, and his right to a presumption of innocence.    In

addition, the State contends that defendant has failed to prove
that his testimony would have changed the outcome of the trial.

     Initially, while defendant has waived this issue by failing

to object at trial and raise it in a posttrial motion, we note

that "a less rigid standard of waiver applies when the issue

involves potential misconduct by a trial judge."     People v.

Vaughn, 354 Ill. App. 3d 917, 924 (2004).    Moreover, waiver is a

limitation on the parties, but does not limit this court's


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ability to consider the issue.    People v. Meadows, 371 Ill. App.

3d 259, 261 (2007).   Here, we choose to address the merits of

defendant's claim because it involves alleged misconduct by the

trial court.

     The sixth amendment right to assistance of counsel exists in

order to protect a defendant's fundamental right to a fair trial

and, consequently, it is not recognized for its own sake, but

rather for its effect on the ability of the accused to receive a

fair trial.    Lockhart v. Fretwell, 506 U.S. 364, 368-69, 122 L.

Ed. 2d 180, 188-89, 113 S. Ct. 838, 842 (1993).

     Our supreme court has determined that a trial court is

neither required to admonish a defendant regarding his

constitutional right to testify nor to set of record defendant's

decision on that matter.    People v. Smith, 176 Ill. 2d 217, 234-

35 (1997).    The Smith court explained that its conclusion was

based, inter alia, on concerns that a court issuing such

admonishments "'might improperly intrude on the attorney-client

relation, protected by the Sixth Amendment,'" or potentially
"interfere with defense strategy.'" Smith, 176 Ill. 2d at 235,

quoting United States v. Martinez, 883 F.2d 750, 760 (9th Cir.

1989), vacated on other grounds, 928 F.2d 1470 (9th Cir. 1991).

Thus, it is typically defense counsel's responsibility to advise

a defendant about his right to testify and discuss potential

advantages and disadvantages of exercising that right.     Vaughn,

354 Ill. App. 3d at 925.


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     In accordance with the concerns articulated in Smith, our

supreme court has recognized that when a trial court chooses to

admonish a defendant on issues that implicate trial strategy, the

court "runs the risk of improperly intruding on the attorney-

client relation and interfering with the defense strategy counsel

has pursued, a strategy perhaps long in the making, but quickly

undone by generalized admonishments."    People v. Medina, 221 Ill.

2d 394, 409 (2006).

     Nevertheless, a trial court has discretion to admonish a

defendant of his right against self-incrimination.    Vaughn, 354

Ill. App. 3d at 925.    Where a trial court exercises its

discretion in that regard, it must be careful to issue

admonishments regarding self-incrimination and the right not to

testify without impairing the defendant's ability to present his

defense.    Vaughn, 354 Ill. App. 3d at 925.

     Ultimately, a reviewing court will find that a trial court

has deprived a defendant of his right to a fair trial where the

trial judge's improper admonitions influence the defendant not to
testify, and thereby prejudice the outcome of his case.     Vaughn,

354 Ill. App. 3d at 925, citing People v. King, 154 Ill. 2d 217,

224 (1993).   Nonetheless, even where such admonitions cause the

defendant not to testify, there is no deprivation of his right to

a fair trial unless it affects the outcome of his trial.     Vaughn,

354 Ill. App. 3d at 925.

     Here, the record contains numerous instances where the trial


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court queried or admonished defendant or his counsel about issues

of defense strategy or regarding defendant's intention to

testify.    First, immediately following opening statements, the

trial court engaged in a rather lengthy discussion with defendant

regarding the defense theory announced during opening statements

and asked defendant whether he had acquiesced in that theory.

Defendant unequivocally informed the trial court that he was

aware of his counsel's defense strategy and that he agreed with

that strategy.

     Next, after the defense had finished questioning its first

witness (Carol Peden), defense counsel informed the trial court

that defendant would be testifying.    Immediately thereafter, the

court admonished defendant of his right to testify or to decline

to do so in detail.    After this colloquy, defendant unequivocally

informed the trial court that he wanted to testify.

     Finally, and most significantly, even though the trial court

had been explicitly informed by defendant both that he acquiesced

with his defense counsel's strategy and wanted to exercise his
right to testify, the trial court nevertheless proceeded to again

discuss defense strategy with defendant's counsel in defendant's

presence.    During this incident, the trial court inquired with

defense counsel whether he had talked to defendant about "the

ramifications" of making a potential admission to the charge of




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theft on the witness stand.1   As a result of the trial court's

questioning, defense counsel chose to have a brief discussion

with defendant and immediately thereafter informed the trial

court that defendant did not wish to testify.   The trial court

then asked defendant whether the court's statements had

influenced his decision to not testify.   Defendant told the court

that he had made that decision on his own and "based upon the

discussion I had with my attorney."

     Even though the trial court solicited a statement from

defendant that the court's admonishments had not influenced his

decision and he chose not to testify after consulting with his

counsel, the record strongly suggests that defendant would have

testified had the trial court refrained from repeatedly

discussing with him and his counsel matters involving the defense

theory and defendant's decision to testify.   Notably, defendant

originally informed the trial court that he agreed with his

counsel's strategy and wanted to testify, but later changed his

mind after the court chose to revisit the issue by asking
defendant counsel, in defendant's presence, whether counsel had

discussed with defendant "the ramifications" of defendant's

potential testimony.

     Here, as illustrated by the parties' respective opening and

closing arguments, defendant's intention at the time he entered

     1
      As an aside, we note that defendant had not been charged
with theft, but rather was solely charged with residential
burglary.

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Nancy's home was a crucial issue at trial.      In fact, defendant's

testimony was pivotal to his theory of defense, namely, that he

did not intend to commit theft when he entered his sister-in-law

Nancy's home and the trial court knew about this theory from

opening arguments forward.    However, because defendant did not

testify, as he originally intended to do, there was no

testimonial evidence produced at trial supporting this key

defense theory.    Simply put, in all likelihood, the trial court's

admonishments seriously compromised defendant's ability to

present his defense by causing defendant not to testify.

       Our decision in Vaughn presents a similar situation.    In

Vaughn, this court found that the trial court committed

reversible error when the court stopped the defendant during his

testimony, admonished the defendant of his constitutional rights

to counsel and against self-incrimination, and indicated to the

defendant that the defendant's testimony essentially amounted to

a confession of criminal guilt.    Vaughn, 354 Ill. App. 3d at 920-

22.    As a result, the defendant chose to stop testifying and his
previous testimony was stricken.       Vaughn, 354 Ill. App. 3d at

922.    While it might be fair to characterize the court's conduct

in Vaughn as more extreme because the court in that case

interrupted defendant's testimony, the basic principle remains

the same: generalized admonishments by a trial court that

implicate strategic choices reserved for a defendant carry the

risk of improperly intruding on and interfering with the


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attorney-client relationship.   See Medina, 221 Ill. 2d at 409.

     Accordingly, after reviewing this record in light of the

concerns articulated by our supreme court in Smith and Medina and

this court in Vaughn, we find that the trial court's excessive

and repetitive admonishments regarding issues of defense strategy

and defendant's right to testify were improper.     We further find,

contrary to the State's assertions otherwise, that the trial

court's admonishments caused defendant not to testify and very

likely affected the outcome of his trial, thereby denying him a

fair trial.   Consequently, we reverse defendant's conviction and

remand for a new trial.   See Vaughn, 354 Ill. App. 3d at 927

(reversing and remanding for a new trial where trial court issued

inappropriate admonishments).

     The State's reliance on our supreme court's decision in

People v. Hattery, 109 Ill. 2d 449 (1985), is misplaced because

Hattery is readily distinguishable from the case sub judice.      In

Hattery, defense counsel conceded at trial that the defendant was

guilty of murder, but argued that defendant was not eligible for
the death penalty.   Hattery, 109 Ill. 2d at 464.    Ultimately, our

supreme court determined that the defendant had been denied his

sixth amendment right to effective assistance of counsel because

the record did not establish that the defendant knowingly and

intelligently consented to his counsel's strategy.     Hattery, 109

Ill. 2d at 465.

     Here, in stark contrast to Hattery, defense counsel


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consistently argued that defendant was innocent of the offense of

residential burglary, which was the only offense that he was

charged with, and never conceded defendant's guilt to residential

burglary.   Furthermore, also dissimilar to Hattery, is the fact

that the record in the case sub judice indisputably establishes

that defendant was aware of his counsel's defense strategy and

agreed to pursue that strategy.

     The State's citation to our decision in People v. Sowewimo,

276 Ill. App. 3d 330 (1995), does not alter our conclusion.

Significantly, unlike this case, in Sowewimo "[t]here was a great

deal of confusion as to the defendant's desire to testify."

Sowewimo, 276 Ill. App. 3d at 339.     Here, the record is quite

clear that defendant was initially unambiguous in his desire to

testify.

     We recognize that the trial court had discretion to admonish

defendant regarding his right to avoid self-incrimination.

However, in this case, we emphasize that the court did not simply

admonish defendant of that right, but instead also repeatedly and
extensively discussed issues directly related to defense strategy

with both defendant and his counsel.

     Moreover, even though the trial court's admonishments were

well intended, "the determination of whether the defendant will

testify is an important part of trial strategy best left to the

defendant and counsel without the intrusion of the trial court,

as that intrusion may have the unintended effect of swaying the


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defendant one way or the other."       United States v. Pennycooke, 65

F.3d 9, 11 (3d Cir. 1995).    Here, we reiterate that the record

reasonably supports a conclusion that defendant would have

testified in furtherance of the strategy advanced by his counsel

during opening arguments had the trial court not repeatedly

questioned defendant and counsel on matters related to that

strategy.

     Because we reverse defendant's conviction and remand for a

new trial, we do not need to address the remaining issues that

defendant raises on appeal.

                              CONCLUSION

     For the foregoing reasons, we reverse defendant's conviction

and remand for a new trial.

     Reversed and remanded.

     McBRIDE, P.J., and McNULTY, J., concur.




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