People v. Dean ( 1997 )

Under Supreme Court Rule 367 a party has 21 days after the filing

of the opinion to request a rehearing. Also, opinions are subject

to modification, correction or withdrawal at anytime prior to

issuance of the mandate by the Clerk of the Court. Therefore,

because the following slip opinion is being made available prior to

the Court's final action in this matter, it cannot be considered

the final decision of the Court. The official copy of the following

opinion will be published by the Supreme Court's Reporter of

Decisions in the Official Reports advance sheets following final

action by the Court.

          Docket No. 79750--Agenda 7--September 1996.

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

                CHARLES M. DEAN, Appellant.

              Opinion filed February 20, 1997.

            JUSTICE BILANDIC delivered the opinion of the court:

            The defendant was charged by information in Warren

          County with committing aggravated criminal sexual assault (720

          ILCS 5/12--14(b)(1) (West 1992)) of his stepdaughter, E.C.,

          between February 1, 1992, and October 6, 1992. The charge

          specifically alleged that the defendant, who was 17 years of age

          or older, knowingly committed an act of sexual penetration upon

          E.C., who was under 13 years of age when the act was

          committed, by placing his fingers in E.C.'s vagina. After

          waiving his right to a trial by jury, the defendant was convicted

          at a bench trial of aggravated criminal sexual assault and

          sentenced to 30 years' imprisonment. The appellate court, with

          one justice dissenting, affirmed the defendant's conviction and

          sentence. No. 3--93--0659 (unpublished order under Supreme

          Court Rule 23). We allowed the defendant's petition for leave

          to appeal (155 Ill. 2d R. 315), and now reverse the judgments

          of the appellate and circuit courts and remand for a new trial.

                       FACTS

            Prior to trial, the trial court conducted an in camera

          competency hearing of the five-year-old victim, E.C. The court

          determined that E.C. was competent to testify. The State began

          its case by calling E.C. as its first witness. After a few

          background questions, E.C. became upset and started crying

          when asked about the defendant. E.C. then refused to respond

          to the State's questions. The court found that E.C. was not

          competent to testify at that time; however, the court reserved its

          ruling on the State's motion to obtain E.C.'s testimony by

          closed circuit television.

            The State proceeded with its case by calling Sherry Dean,

          E.C.'s mother. Sherry testified that between July and November

          of 1992 she lived in a second-floor apartment of a three-story

          building at 509 East Broadway in Monmouth, Illinois, with the

          defendant and her four children. She married the defendant on

          October 10, 1992.

            Rebecca Harrell, a mental health therapist at the Spoon

          River Mental Health Center in Monmouth, next testified for the

          State. Harrell testified that she first interviewed E.C. on

          November 3, 1992. E.C. was referred by the Illinois Department

          of Children and Family Services (DCFS) for assessment and

          possible treatment for alleged sexual abuse. According to

          Harrell, E.C. told her that she was living with her grandmother

          because "nasty Charlie hurted [sic] me." During their next

          session, E.C. stated to Harrell that her mother told her not to tell

          anyone what the defendant had done to her. During subsequent

          sessions, E.C. demonstrated her ability to identify body parts.

          E.C., through the use of an anatomically correct female doll,

          showed Harrell how the defendant had put his hand on her "pee

          pee" and stuck two fingers inside her and wiggled them around

          so that it hurt. Harrell also testified that E.C. indicated to her

          that the incident occurred on the bed in her mother's bedroom,

          and that after the defendant touched her genital area she tried to

          stick him with a fork. According to Harrell, E.C. did not make

          any allegations of sexual abuse against anyone else other than

          the defendant.

            The next witness called by the State was Cherry

          Richardson, an investigator for DCFS. Richardson testified that

          she and police lieutenant David Brooks interviewed E.C. in

          response to an October 22, 1992, hotline report of possible

          abuse. During a series of interviews, E.C. told her that the

          defendant had touched her in her "private area." E.C.

          demonstrated with an anatomically correct female doll how the

          defendant had put his fingers into her vagina and moved them

          around. Again, E.C. stated that it "hurted." Richardson next

          testified that, on January 8, 1993, she and Lieutenant Brooks

          took E.C. for a drive to determine where the assault had taken

          place. When they approached the vicinity of 509 East

          Broadway, the location of the apartment building where E.C.

          used to live with her mother and the defendant, E.C. indicated

          that the incident did not happen upstairs or downstairs, but in

          the middle. When asked if the abuse had occurred at the

          apartment on Broadway, E.C. indicated that it occurred at

          "Jimbo's." E.C. referred to her biological father, James C., as

          "Jimbo." Richardson and Lieutenant Brooks took E.C. to James

          C.'s apartment, located at 405 South Main Street. Once inside

          the apartment, E.C. pointed to a rollaway bed in the corner of

          James C.'s bedroom, which she identified as "mommie's."

          James C. later testified that the bed had been at Sherry's

          apartment on Broadway until the children were removed from

          her care sometime in November of 1992.

            Also testifying as a witness for the State was Dr. Sun Park,

          a pediatrician at Community Memorial Hospital in Monmouth.

          On October 27, 1992, Dr. Park examined E.C. Prior to the

          examination, E.C. told Dr. Park that the defendant had hurt her.

          After an examination of E.C., Dr. Park testified that E.C.'s

          genitalia displayed a widened vestibule and was missing a

          membrane usually found present in young girls. In Dr. Park's

          opinion, E.C.'s condition could have been caused by forcible

          digital penetration, and had probably occurred at least a few

          days prior to the examination.

            At the close of its case in chief, the State recalled E.C. as

          a witness. After responding to some preliminary questions, E.C.

          was asked if anything happened between her and the defendant.

          E.C. refused to respond in the defendant's presence. The State

          then renewed its motion to take E.C.'s testimony by closed

          circuit television. The court granted the State's motion over the

          defendant's objection.

            At the closed circuit television proceeding, E.C. testified

          that she currently lives with her father, "Jimbo." However, she

          used to live with her mother, her siblings and the defendant.

          According to E.C., while she lived at her mother's house, the

          defendant came into her bedroom and put his fingers into her

          "private" and moved them around and hurt her. E.C. stated that

          she told both of her parents that the defendant touched her. E.C.

          also testified on cross-examination that the defendant had cut off

          the heads of puppies with a knife. She saw blood on the counter

          and the floor.

            After the State concluded its case in chief, the defense

          called Sherry Dean, E.C.'s mother. Sherry testified that the

          puppy incident, referred to by E.C., had occurred in Iowa in

          1991, while she was married to her former husband, John

          Holden. She explained that she left the home after an argument.

          When she and the children returned, they found that Holden had

          hung some puppies in a tree, cut them open, and placed them on

          the kitchen counter. There was blood all over the kitchen.

          Sherry testified that she and the defendant moved into the

          apartment on Broadway in May of 1992. Sherry denied that E.C.

          told her that the defendant had hurt or molested her. James C.

          also testified that E.C. never told him about being sexually

          abused or hurt by the defendant.

            The defendant had waived his right to a jury trial. After

          considering the evidence, the trial court found the defendant

          guilty as charged. The trial court subsequently sentenced the

          defendant to 30 years' imprisonment.

            The defendant appealed his conviction and sentence, which

          a majority of the appellate court affirmed. The majority rejected

          the defendant's argument that he is entitled to a new trial

          because E.C.'s testimony on closed circuit television was

          admitted pursuant to the Child Shield Act (725 ILCS 5/106B--1

          (West 1992)), which was subsequently declared unconstitutional

          in People v. Fitzpatrick, 158 Ill. 2d 360 (1994). The majority

          recognized that the Child Shield Act was found to be

          unconstitutional in Fitzpatrick because it violated a defendant's

          state constitutional right to meet witnesses "face to face."

          Nevertheless, the majority noted that during the pendency of the

          defendant's appeal, the Illinois Constitution was amended and

          the Child Shield Act reenacted. Consequently, the majority

          determined that the reenacted Child Shield Act would allow for

          the admission of E.C.'s testimony by closed circuit television on

          retrial. The majority then reasoned that any error in admitting

          E.C.'s testimony in the first trial had been "cured by the

          subsequent legislative activity and rendered harmless beyond a

          reasonable doubt in this case."

            A dissenting justice disagreed with the majority's

          conclusion that the subsequent amendment to the confrontation

          clause of the Illinois Constitution and reenactment of the Child

          Shield Act cured the error committed at the defendant's trial. He

          argued that retroactively applying the law as it now exists to the

          defendant's case violates the state and federal constitutional

          prohibitions against ex post facto laws (Ill. Const. 1970, art. I,

          §16; U.S. Const., art. I, §§9, 10).

                     ANALYSIS

             I. Right to Confrontation

            The defendant argues that he was deprived at trial of his

          constitutional right to a face-to-face confrontation with the

          victim, E.C., whom the trial court permitted to testify outside

          the defendant's presence by closed circuit television pursuant to

          the Child Shield Act (725 ILCS 5/106B--1 (West 1992)). The

          defendant contends that at the time he allegedly committed the

          offense, and at the time of his trial, section 8 of article I of the

          Illinois Constitution (Ill. Const. 1970, art. I, §8) expressly

          guaranteed a criminal defendant the right to confront witnesses

          face to face. In support of his argument, the defendant relies on

          this court's decision in People v. Fitzpatrick, 158 Ill. 2d 360

          (1994). According to the defendant, the appellate court erred by

          failing to apply the Fitzpatrick decision to his case. The

          defendant therefore requests that we reverse the decision of the

          appellate court, reverse his conviction and grant him a new trial.

             A. People v. Fitzpatrick

            The first issue before this court is whether our decision in

          Fitzpatrick should be applied to the defendant's case. In

          Fitzpatrick, the defendant was charged with seven counts of

          aggravated criminal sexual assault against four minors. The

          State moved pursuant to the Child Shield Act (Ill. Rev. Stat.

          1991, ch. 38, par. 106B--1) for an order allowing the four minor

          victims to testify outside of the defendant's presence by closed

          circuit television. The Child Shield Act allowed child victims of

          certain enumerated sexual crimes to testify outside the

          courtroom by closed circuit television. Ill. Rev. Stat. 1991, ch.

          38, par. 106B--1(a)(1). Pursuant to the Act, a defendant

          remained in the courtroom but was able to communicate with

          his attorney, who was in the room where the child was

          testifying. Ill. Rev. Stat. 1991, ch. 38, pars. 106B--1(b)(2),

          (b)(3). The trial court in Fitzpatrick declared the Child Shield

          Act unconstitutional. On direct appeal, this court determined that

          the confrontation clause of the Illinois Constitution (Ill. Const.

          1970, art. I, §8) unambiguously guaranteed a criminal defendant

          the right to meet a witness face to face. Fitzpatrick, 158 Ill. 2d

          at 365. In reaching this holding, the court distinguished the "face

          to face" language of the Illinois Constitution's confrontation

          clause (Ill. Const. 1970, art. I, §8) from the "right to be

          confronted" language contained in the United States

          Constitution's confrontation clause (U.S. Const., amend. VI).

          Fitzpatrick, 158 Ill. 2d at 367. We found that a witness who is

          examined by closed circuit television does not provide the

          defendant with the face-to-face confrontation guaranteed by the

          plain language of the Illinois Constitution's confrontation clause.

          Fitzpatrick, 158 Ill. 2d at 367-68. Accordingly, this court

          declared the Child Shield Act to be unconstitutional because it

          violated the confrontation clause of the Illinois Constitution.

          Fitzpatrick, 158 Ill. 2d 360.

            The defendant here contends that the appellate court erred

          by failing to apply this court's decision in Fitzpatrick to his

          case. Our Fitzpatrick opinion was filed on February 17, 1994,

          after the defendant was convicted and while his direct appeal

          was pending before the appellate court. We must therefore

          determine whether our decision in Fitzpatrick applies

          retroactively to the defendant's case.

            The standard for applying judicial opinions retroactively

          was set forth in People v. Erickson, 117 Ill. 2d 271 (1987). In

          Erickson, this court held that judicial opinions announcing new

          constitutional rules applicable to criminal cases are retroactive

          to all cases pending on direct review at the time the new

          constitutional rule is declared. Erickson, 117 Ill. 2d at 288,

          citing Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649,

          661, 107 S. Ct. 708, 716 (1987). More specifically, retroactivity

          is triggered when two factors are present: (1) the case to which

          the new rule is to be applied was not final or was pending on

          direct review when the rule was declared, and (2) the rule to be

          applied retroactively is of constitutional dimension. Erickson,

          117 Ill. 2d at 289; see also People v. Gersch, 135 Ill. 2d 384,

          393 (1990); People v. Shields, 143 Ill. 2d 435, 442 (1991). Both

          of these factors are present in the instant case. The defendant's

          case was pending on direct review before the appellate court

          when this court rendered its decision in Fitzpatrick. Second, this

          court's ruling in Fitzpatrick is clearly a new rule of

          constitutional dimension. Although the 1970 Illinois

          Constitution's confrontation clause included the language "face

          to face," this court in Fitzpatrick first announced that a

          defendant was deprived of his right to confrontation when he

          was unable to confront witnesses face to face. Thus, pursuant to

          the above standard, we hold that the Fitzpatrick decision applies

          retroactively to the defendant's case.

            Parenthetically, we note that Fitzpatrick should also be

          applied retroactively to cases pending on direct appeal given its

          determination that the Child Shield Act was unconstitutional. In

          People v. Gersch, 135 Ill. 2d 384 (1990), this court addressed

          whether a decision finding a statute unconstitutional should be

          applied retroactively to a case that was pending on direct

          review. We stated: "To hold that a judicial decision that declares

          a statute unconstitutional is not retroactive would forever

          prevent those injured under the unconstitutional legislative act

          from receiving a remedy for the deprivation of a guaranteed

          right." Gersch, 135 Ill. 2d at 397. We agree with and adopt this

          rationale in the present case.

            B. Constitutional Amendment

            The State argues that the defendant is not entitled to the

          retroactive application of Fitzpatrick because that decision has

          "lost all force and effect." In making this argument, the State

          points to the following events which arose in response to our

          decision in Fitzpatrick.

            Shortly after the filing of the Fitzpatrick opinion on

          February 17, 1994, the Illinois General Assembly proposed an

          amendment to the Illinois Constitution's confrontation clause.

          1994 Ill. Laws 3148 (Senate Joint Resolution Constitutional

          Amendment 123). The proposed constitutional amendment

          deleted the "face to face" language from the confrontation clause

          and replaced it with language giving the accused the right "to be

          confronted with the witnesses against him or her." 1994 Ill.

          Laws 3148 (Senate Joint Resolution Constitutional Amendment

          123). The legislative debates surrounding the proposed

          constitutional amendment indicate that the amendment was

          intended to reverse the effects of the Fitzpatrick decision and to

          change the language of the confrontation clause in the Illinois

          Constitution to conform with the language of the confrontation

          clause in the United States Constitution. 88th Ill. Gen. Assem.,

          House Proceedings, April 20, 1994, at 51; 88th Ill. Gen. Assem.,

          Senate Proceedings, April 14, 1994, at 101-02; 88th Ill. Gen.

          Assem., House Proceedings, November 30, 1994, at 52. On

          November 8, 1994, Illinois voters approved the constitutional

          amendment, thereby changing the language of section 8 of

          article I of the Illinois Constitution. Ill. Const. 1970, art. I, §8,

          amended November 8, 1994; Illinois State Board of Elections,

          Official Vote Cast at the General Election on November 8,

          1994, at vii (1994). The Illinois legislature then repealed the

          Child Shield Act invalidated in Fitzpatrick (725 ILCS 5/106B--1

          (repealed by Pub. Act 88--674, §5, eff. December 14, 1994))

          and reenacted it in reliance on the newly amended constitutional

          provision. 1994 Ill. Laws 2666; 88th Ill. Gen. Assem., Senate

          Proceedings, December 1, 1994, at 77. The reenacted statute

          applies to prosecutions pending on or commenced on or after

          December 14, 1994. 725 ILCS 5/106B--5 (West Supp. 1995).

          The reenacted Child Shield Act is substantially the same as the

          version declared unconstitutional in Fitzpatrick. It allows young

          victims of certain listed sexual crimes to testify by closed circuit

          television outside the presence of the defendant. 725 ILCS

          5/106B--5 (West Supp. 1995). All of these aforementioned

          events occurred while the defendant's case was pending on

          appeal before the appellate court.

            In view of the preceding circumstances, the State insists that

          Fitzpatrick has been "legislatively overruled or superseded,"

          such that it is no longer controlling precedent. According to the

          State, Fitzpatrick should not be applied retroactively to the

          defendant's case because it is an invalid decision given its

          reliance on the former language of section 8 of article I. The

          State asserts that the appellate court properly utilized the

          constitutional amendment and the reenacted Child Shield Act to

          cure any error that may have arisen at the defendant's trial.

            We cannot agree with the State's position. In essence, the

          State is arguing that the constitutional amendment to the Illinois

          Constitution's confrontation clause be applied retroactively to

          the defendant's case. It is well established, however, that a

          constitutional provision or amendment operates prospectively

          from its effective date unless its language clearly indicates an

          intent to apply the provision or amendment retroactively. See

          Shreveport v. Cole, 129 U.S. 36, 43, 32 L. Ed. 589, 591-92, 9

          S. Ct. 210, 213 (1889); People ex rel. Kutner v. Cullerton, 58

          Ill. 2d 266, 270 (1974), citing City of Chicago v. Rumsey, 87 Ill.

          348, 357 (1877); accord State v. Lavazzoli, 434 So. 2d 321, 323

          (Fla. 1983); State v. Cousan, 1996 La. Lexis 3233 (La.

          November 25, 1996); Succession of Fragala, 680 So. 2d 1345,

          1348 (La. App. 1996); People v. Gornbein, 407 Mich. 330, 332,

          285 N.W.2d 41, 43 (1979); State ex rel. Moore v. Molpus, 578

          So. 2d 624, 643 (Miss. 1991); Kayden Industries, Inc. v.

          Murphy, 34 Wis. 2d 718, 731, 150 N.W.2d 447, 453 (1967); 16

          C.J.S. Constitutional Law §36 (1984); 16 Am. Jur. 2d

          Constitutional Law §65 (1979). This principle recognizes that a

          constitutional amendment may have a retroactive effect only "if

          such an intention is clearly expressed in the constitution." See

          Cullerton, 58 Ill. 2d at 270. No such intent was expressed in the

          constitutional amendment at issue here.

            Section 8 of article I, as amended in 1994, states that the

          accused in criminal prosecutions "shall have the right *** to be

          confronted with the witnesses against him or her." Ill. Const.

          1970, art. I, §8, amended November 8, 1994. This language

          does not clearly indicate an intention to apply retroactively the

          amended constitutional right to confrontation. Moreover, the

          schedule contained in the 1994 constitutional amendment

          proposed by the General Assembly does not indicate that a

          retroactive application was intended. The schedule contained in

          that resolution stated as follows: "This Constitutional

          Amendment takes effect upon approval by the electors of this

          State," which date was November 8, 1994. 1994 Ill. Laws 3148

          (Senate Joint Resolution Constitutional Amendment 123). As

          further support for our finding that there was no intent to apply

          the constitutional amendment retroactively, we look to the form

          of ballot used in the November 1994 election to explain the

          proposed amendment to the voters. The form of ballot read:

          "This proposed amendment changes Article I, Section 8 of the

          Illinois Constitution regarding the rights of the accused in a

          criminal prosecution by replacing language giving the accused

          the right `to meet the witnesses face to face' with language

          giving the accused the right ` "to be confronted with the

          witnesses against him or her." ' " 1994 Ill. Laws 3096 (Senate

          Joint Resolution 181); George H. Ryan, Secretary of State, State

          of Illinois, Proposed Amendments to the Constitution of Illinois

          That Will Be Submitted to the Voters November 8, 1994, at 5

          (1994). The express language on the ballot thus did not express

          an intent to apply the constitutional amendment retroactively.

          Based on our examination of the foregoing provisions, we find

          no indication that the constitutional amendment which altered

          the scope of the right to confrontation was intended to apply

          retroactively. We therefore hold that this constitutional

          amendment has prospective application only and cannot be

          applied retroactively to the defendant's case. Accordingly, the

          defendant, who had a right to confrontation at trial and whose

          trial had been completed, cannot be deprived retroactively of his

          right to a "face to face" confrontation.

            We further note that fundamental fairness and justice dictate

          that the constitutional amendment to section 8 of article I not

          apply retroactively to the defendant's case. At the time of the

          defendant's trial, the Illinois Constitution conferred on him an

          express and unqualified right to "face to face" confrontation.

          When we held the Child Shield Act unconstitutional in

          Fitzpatrick, we declared that the procedure allowed by that

          statute violated this constitutional right. Because the procedure

          found to be unconstitutional in Fitzpatrick was also employed

          during the defendant's trial, his then-existing constitutional right

          was violated. The State argues that the subsequent amendment

          to the constitution can be applied retroactively to cure this error.

          The fortuity of circumstances on which the State now relies,

          however, cannot validate retroactively what was undeniably an

          unconstitutional trial procedure when it occurred. The defendant

          is entitled to a trial which vindicates his constitutional right to

          "face to face" confrontation. We therefore find that retroactive

          application of this constitutional amendment to the defendant's

          case would result in manifest injustice because the defendant

          would be deprived of a fundamental constitutional right which

          was guaranteed to him at the time of his trial.

            Based on the foregoing analysis, we hold that the

          amendment to section 8 of article I of the Illinois Constitution,

          effective November 8, 1994, and the subsequently reenacted

          Child Shield Act do not apply retroactively to the defendant's

          case. Consequently, at the time of his trial, the defendant was

          entitled to meet witnesses face to face. Fitzpatrick, 158 Ill. 2d

          360. The defendant was deprived of that constitutional right

          when the victim, E.C., testified by closed circuit television.

          Moreover, we conclude that the appellate court erred in applying

          the constitutional amendment and reenacted Child Shield Act

          retroactively to cure the error of admitting E.C.'s testimony via

          closed circuit television.

                II. Harmless Error

            Having determined that the defendant was deprived in his

          trial of his constitutional right to "face to face" confrontation,

          we next address whether that error was harmless. The appellate

          court disposed of this case on the basis that the constitutional

          error committed at trial had been rendered harmless by

          "subsequent legislative activity." We reject this rationale because

          it does not conform to the standard for determining whether a

          constitutional error is harmless. A constitutional error can be

          deemed harmless error only if it is proven beyond a reasonable

          doubt that the error did not contribute to the defendant's

          conviction. People v. Childs, 159 Ill. 2d 217, 228 (1994), citing

          Chapman v. California, 386 U.S. 18, 23-24, 17 L. Ed. 2d 705,

          710-11, 87 S. Ct. 824, 827-28 (1967); Shields, 143 Ill. 2d at

          446; People v. Coleman, 129 Ill. 2d 321, 341 (1989); People v.

          Johnson, 116 Ill. 2d 13, 28 (1987). Essentially, then, the issue

          is whether the defendant would have been convicted regardless

          of the error.

            With this principle in mind, we examine whether E.C.'s

          testimony via closed circuit television contributed to the

          defendant's conviction. The State contends that the confrontation

          error is harmless because even in the absence of E.C.'s

          testimony, the defendant would have been convicted based on

          independent credible evidence of the defendant's guilt presented

          at trial. We disagree. First, we point out that in announcing the

          guilty finding, the trial judge, who acted as the finder of fact,

          stated that the "bottom line" in finding the defendant guilty was

          that he believed E.C.'s testimony. More specifically, the trial

          judge stated:

              "The only direct evidence in this case as to the offense

                         charged comes from [E.C.], the victim, a five year old

                         female child. Most of the evidence that has been

                         presented to me in this case has to do with whether or

                         not I should believe what [E.C.] has told me, and that

                         is really the bottom line in this case. *** I believe

                         [E.C.], and that is the bottom line."

          These comments demonstrate that the trial judge relied heavily

          on E.C.'s testimony in finding the defendant guilty.

            The record also reveals that E.C. likely would not have

          testified without the use of closed circuit television. The State

          was unsuccessful on two occasions when it attempted to elicit

          testimony from E.C. in the defendant's presence. Given the

          importance of E.C.'s testimony and the fact that the trial judge

          placed great weight on it in reaching his decision to convict the

          defendant, we cannot conclude beyond a reasonable doubt that

          the defendant would have been convicted without E.C.'s

          testimony. We therefore find that the error in admitting E.C.'s

          testimony by closed circuit television contributed to the trial

          judge's decision to convict the defendant. The error therefore

          was not harmless beyond a reasonable doubt. Accordingly, we

          hold that the defendant's conviction must be reversed and the

          cause remanded to the circuit court for a new trial.

                    III. Remand

            We must next consider what law will apply on remand. On

          remand, the defendant claims that fundamental fairness requires

          that he retain his right to face-to-face confrontation as it existed

          at his first trial. The defendant relies on People v. Reddick, 123

          Ill. 2d 184 (1988), in support of his argument. In Reddick, the

          defendant was granted a new trial because the jury received

          improper instructions regarding the burden of proof. In

          addressing additional trial errors, this court considered the

          defendant's claim that the trial court erred in preventing the

          defendant from impeaching a prosecution witness with evidence

          of a prior felony conviction. The trial court excluded the

          impeachment evidence pursuant to People v. Montgomery, 47

          Ill. 2d 510, 516 (1971), which held that a witness cannot be

          impeached by a prior conviction if more than 10 years have

          elapsed since the date of the witness' conviction or the date of

          the witness' release from confinement, whichever is later.

          Reddick, 123 Ill. 2d at 202-03. The trial court in Reddick,

          however, miscalculated whether 10 years had elapsed and thus

          erroneously applied the Montgomery rule to exclude the prior

          conviction. Reddick, 123 Ill. 2d at 202. This court determined

          that the defendant's initial trial was held within 10 years of the

          prosecution witness' release from prison for the conviction.

          Reddick, 123 Ill. 2d at 203. Consequently, the Montgomery rule

          did not bar admission of the prior conviction for impeachment

          purposes at that trial. Nevertheless, this court noted that, under

          this rule, on retrial the prosecution witness' prior conviction will

          not be admissible for impeachment because the 10-year limit set

          forth in Montgomery will have lapsed. As a result, this court

          refused to apply the 10-year provision of the Montgomery rule

          on remand to exclude the evidence. We held that fundamental

          fairness required that the defendant be allowed to impeach the

          witness in his new trial in the same manner that the defendant

          should have been permitted to impeach him at the initial trial.

          Reddick, 123 Ill. 2d at 203.

            Here, the defendant argues that a similar principle of

          fairness dictates that his retrial be conducted pursuant to the

          face-to-face confrontation clause as it should have been applied

          at his first trial. We agree and hold that fundamental fairness

          requires that the defendant be allowed to confront witnesses face

          to face at his retrial. This result seems particularly just given

          that the defendant was deprived of a fundamental constitutional

          guarantee at his first trial.

            As a final matter, we note that double jeopardy principles

          do not bar the State from proceeding against the defendant in a

          new trial. After thoroughly reviewing the evidence, we find it to

          have been sufficient to support the defendant's conviction. As

          such, there is no impediment to a new trial. See People v. Hope,

          116 Ill. 2d 265, 279 (1986); People v. Taylor, 76 Ill. 2d 289,

          309 (1979). We, however, in no manner imply that we have

          made a finding as to the defendant's guilt that would be binding

          on retrial. People v. McDonald, 125 Ill. 2d 182, 202 (1988).

                    CONCLUSION

            For the reasons stated above, we reverse the judgments of

          the appellate and circuit courts. We therefore reverse the

          defendant's conviction and remand for a new trial consistent

          with the views expressed in this opinion.

          Appellate court judgment reversed;

                  circuit court judgment reversed;

                     cause remanded with directions.