PEOPLE v. CLENDENIN

Defendant raised several claims of error in the appellate court. The court rejected defendant's challenge to the circuit court's denial of his motion to quash arrest and suppress evidence, but found merit in his contention that his attorney provided ineffective assistance of counsel with regard to the entry of the stipulation. Finding it "tacit" in our precedent that "no stipulation (regardless of its tactical or strategical worth) may be validly accepted by the court unless the defendant is apprised of the specific content" ( 395 Ill. App. 3d at 439), the panel held that Wechter's performance was deficient because he did not validly waive defendant's right of confrontation due to his failure to inform defendant of the specific content of the stipulation. 395 Ill. App. 3d at 444, 447. Further, the court held that this deficiency prejudiced defendant. 395 Ill. App. 3d at 447. Accordingly, the court reversed and remanded.

The State contends that the appellate court erred in reversing defendant's conviction by holding that he was denied effective assistance of counsel because Wechter failed to apprise defendant of the specific content of the stipulation. Citing to People v. Campbell, 208 Ill. 2d 203 (2003), People v. Phillips, 217 Ill. 2d 270 (2005), and People v. Rowell, 229 Ill. 2d 82 (2008), the State argues that counsel may generally enter into a stipulation without a defendant's knowing consent — and also absent admonishment by the court — so long as the stipulation is part of a reasonable trial strategy and the defendant does not object. The State contends that both elements were satisfied here: the stipulation was part of counsel's reasonable trial strategy to preserve a defense by securing appellate review of the suppression issue, and defendant did not object to the stipulation; in fact, defendant explicitly agreed to it. Therefore, the State maintains that Wechter's performance cannot be deemed deficient.

Defendant does not quarrel with the State's primary argument that our prior decisions in Campbell, Phillips and Rowell establish that generally defense counsel may validly waive a defendant's confrontation right by entering into a stipulation without ensuring that defendant is aware of its content so long as the stipulation is part of a reasonable trial strategy and the defendant does not object. Further, defendant does not address the State's assertion that the appellate court departed from this precedent by requiring that in every case where a stipulation is entered, the record must clearly show that a defendant has been informed of the specific content of the stipulation in order for it to be valid. Instead, defendant contends that Wechter's performance was deficient because the stipulation was the functional equivalent of a guilty plea. Therefore, defendant maintains, the stipulation was not part of a reasonable trial strategy and defendant was entitled to admonishments and to decide whether to personally waive his right of confrontation. Defendant further contends that the record reflects that he objected to the stipulation. Defendant thus concludes that Wechter's performance was deficient and that the judgment of the appellate court should be affirmed. We disagree.

To establish ineffective assistance of trial counsel, a defendant must meet the familiar two-part standard of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Albanese, 104 Ill. 2d 504, 525-27 (1984). A defendant must first demonstrate that his counsel's performance was deficient in that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Wiley, 205 Ill. 2d 212, 230 (2001). In so doing, a defendant must overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not of incompetence. People v. Barrow, 133 Ill. 2d 226, 247 (1989). Secondly, a defendant must demonstrate that, but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Wiley, 205 Ill. 2d at 230. Because a defendant must satisfy both prongs of this test, the failure to establish either prong is fatal to the claim. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; see People v. Bannister, 232 Ill. 2d 52, 80 (2008).

In People v. Campbell, 208 Ill. 2d 203 (2003), we addressed an issue of first impression: "whether defense counsel, by stipulating to the admission of evidence, can waive a defendant's constitutional right to confront the source of the evidence without the defendant's knowing consent to the stipulation." Campbell, 208 Ill. 2d at 205. Campbell argued that because the constitutional right of confrontation belongs exclusively to the accused, a waiver of this right is valid only when it is personally and knowingly made by the defendant. Campbell, 208 Ill. 2d at 209-10. We disagreed.

We first observed in Campbell that our ruling in People v. Ramey, 152 Ill. 2d 41 (1992), established that only four decisions ultimately belong to a defendant after consultation with his attorney: (1) what plea to enter; (2) whether to waive a jury trial; (3) whether defendant will testify on his own behalf; and (4) whether to appeal. Campbell, 208 Ill. 2d at 210, citing Ramey, 152 Ill. 2d at 54. We further noted that, subsequent to Ramey, we held there is a fifth decision which belongs to a defendant. In People v. Brocksmith, 162 Ill. 2d 224 (1994), we established that a defendant has the exclusive right to decide whether to submit an instruction on a lesser-included offense at the conclusion of the evidence, finding this analogous to the decision of what plea to enter. Campbell, 208 Ill. 2d at 210, citing Brocksmith, 162 Ill. 2d at 229. We explained in Campbell that apart from these decisions, which are to be personally made by a defendant, trial counsel has the right to make the ultimate decision with respect to matters of tactics and strategy after consulting with his client, including "`what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike[,] *** what trial motions should be made[,] *** [and] the defense to be presented at trial.'" Campbell, 208 Ill. 2d at 210, quoting Ramey, 152 Ill. 2d at 54.

In holding that the waiver of the right to confrontation does not belong exclusively to a defendant, we aligned with the majority of federal and state courts which had already addressed this issue. Campbell, 208 Ill. 2d at 217. Relying upon those rulings as guidance, we held that defense counsel may generally waive a defendant's right of confrontation by entering into an evidentiary stipulation where two elements are met: (1) the defendant does not object; and (2) the decision to stipulate is a matter of trial tactics and strategy. Campbell, 208 Ill. 2d at 217. We carved a limited exception to this general rule, however, where a stipulation is the practical equivalent of a plea of guilty, holding that "defense counsel cannot stipulate to facts which establish the guilt of the accused because the constitutional right implicated in that situation is the right of a defendant in a criminal case to plead not guilty." Campbell, 208 Ill. 2d at 219. Based upon this rationale, we held that departure from the general rule that defense counsel may waive a defendant's right of confrontation is warranted only in those instances where: (1) the State's entire case is presented by stipulation and defendant fails to preserve a defense; or (2) the stipulation concedes the sufficiency of the evidence to support a conviction. Campbell, 208 Ill. 2d at 218. Because these specific circumstances effectively transform a stipulation into a plea of guilty, Campbell established that a defendant in such instances must be personally admonished about a stipulation and must personally agree to it. Campbell, 208 Ill. 2d at 218.

In People v. Phillips, 217 Ill. 2d 270, 288 (2005), we reaffirmed Campbell's, holding that apart from the five decisions that ultimately belong to a defendant in a criminal case, trial counsel has the right to make the ultimate decision with respect to matters of tactics and strategy after consultation with the client. Phillips, 217 Ill. 2d at 281, quoting Campbell, 208 Ill. 2d at 210. Accordingly, we also reaffirmed the general rule that defense counsel validly waives a defendant's confrontation right by agreeing to a stipulation as long as the stipulation is part of counsel's trial tactics and strategy, and the defendant does not object. Phillips, 217 Ill. 2d at 283, quoting Campbell, 208 Ill. 2d at 217.

We made it clear in Phillips, however, that Campbell "attached no other restrictions to defense counsel's authority to stipulate to the admission of evidence," and, except in those limited cases where the stipulation is "tantamount to a guilty plea," Campbell "imposed no obligations on the trial court or counsel to admonish the defendant and ensure that the advisement is made a part of the record." Phillips, 217 Ill. 2d at 283. We repeated our holding in Campbell that a stipulation is considered tantamount to a guilty plea — and therefore requires defendant's admonishment and personal waiver — in only two specific circumstances: (1) the State presents its entire case by stipulation and the defendant does not preserve a defense; or (2) the stipulation states that the evidence is sufficient to convict the defendant. Phillips, 217 Ill. 2d at 283, quoting Campbell, 208 Ill. 2d at 218.

We recently revisited this issue in People v. Rowell, 229 Ill. 2d 82 (2008). We again reaffirmed Campbell's general rule that defense counsel may waive a defendant's right of confrontation as long as the defendant does not object and the decision to stipulate is a matter of trial tactics and strategy. Rowell, 229 Ill. 2d at 102, quoting Campbell, 208 Ill. 2d at 217. We also reaffirmed that it is only when the stipulation is tantamount to a guilty plea that departure is made from this general rule and a defendant must receive admonishments and personally waive his right of confrontation. Rowell, 229 Ill. 2d at 102.

Rowell also provided the opportunity, however, for us to clarify what it means for a stipulation to be tantamount to a guilty plea. There, the defendant argued he was entitled to receive an admonishment and personally waive his confrontation right because the State's entire case against him was presented by stipulation. In rejecting the assertion that this alone rendered the stipulation equivalent to a plea of guilty, we repeated that a stipulation may be tantamount to a guilty plea in two instances: (1) when the State's entire case is to be presented by stipulation and the defendant does not present or preserve a defense; or (2) the stipulation includes a statement that the evidence is sufficient to convict the defendant. Rowell, 229 Ill. 2d at 102, quoting Campbell, 208 Ill. 2d at 218. Focusing on the first instance, we made it clear that the test is conjunctive, requiring both elements to be present before admonishments and a personal waiver are required. Although the State's entire case in Rowell was presented by stipulation, the defendant also preserved a defense by arguing that the evidence was insufficient to support a conviction and that the charging instrument was deficient. Rowell, 229 Ill. 2d at 102, citing People v. Rowell, 375 Ill. App. 3d 421, 434 (2006). Because the defendant preserved a defense, the stipulation was not tantamount to a guilty plea, and " Campbell did not require the trial court or counsel to admonish defendant and ensure that the stipulation was part of the record." Rowell, 229 Ill. 2d at 102.

In the instant appeal, defendant contends that because the stipulation was the functional equivalent of a guilty plea, the limited exception to the general rule set forth in Campbell was triggered, and he therefore should have received personal admonishments and personally agreed to its entry. We reject defendant's assertion, and hold that this case does not present the circumstance where the stipulation was tantamount to a guilty plea, which would remove it from the ambit of the Campbell general rule. As we have repeatedly held, a stipulation is tantamount to a guilty plea — and therefore requires a defendant's personal admonishment and agreement — in only two instances: (1) the State's entire case is to be presented by stipulation and the defendant does not present or preserve a defense; or (2) the stipulation includes a statement that the evidence is sufficient to convict the defendant. Rowell, 229 Ill. 2d at 102; Phillips, 217 Ill. 2d at 283; Campbell, 208 Ill. 2d at 218.

Applying this rule to the instant appeal, it is clear that neither instance is met. Although the State's entire case was presented by stipulation, defense counsel adequately preserved a defense by preserving the suppression issue for appellate review. The stipulation twice objected to evidence and testimony "on the same grounds presented" in the earlier suppression motion, twice requested the circuit court to reverse its denial of the suppression motion, and objected to all evidence seized from defendant's home and his statements to police "as the illegal fruit of the unlawful search and seizure of the computer disk delivered to the police by Ellen Bailey." Moreover, the stipulation explicitly stated that it did not concede the sufficiency of the evidence to support a conviction. Accordingly, the stipulation was not tantamount to a guilty plea requiring that defendant receive personal admonishments and that he agree to its entry.

Nevertheless, the appellate court determined that the stipulation was invalid pursuant to its holding that in all instances where a defendant enters into a stipulation — whether it is functionally equivalent to a guilty plea or not — the record must clearly show that the defendant was apprised of its specific content. 395 Ill. App. 3d at 444. Applying this rule, the appellate court held that Wechter's performance was deficient because the record failed to show that defendant was advised of the specific content of the stipulation, reasoning that defendant's "ignorance" of the stipulation's content violated his confrontation right because he could not meaningfully object. 395 Ill. App. 3d at 437. We observe, however, that in the course of its opinion, the appellate court readily acknowledged that our decisions in Campbell and Phillips "stresse[d]" that where a stipulation "is a matter of sound trial tactics or strategy, a defendant need not be advised about the procedural ramifications of stipulations in general or about the consequences of a proposed stipulation for that particular case" ( 395 Ill. App. 3d at 438-39), noted that neither Campbell nor Phillips "expressly" held that a court may not validly accept a stipulation unless the defendant is apprised of its content ( 395 Ill. App. 3d at 439), and admitted that Phillips established that counsel and the circuit court need not admonish the defendant of the implications and consequences of a stipulation ( 395 Ill. App. 3d at 441). We therefore question how the appellate court — in light of the above-referenced passages — could nevertheless conclude that it is "implicit" in Phillips and Campbell that a defendant must "be informed of the specific content of the stipulation" in every instance. 395 Ill. App. 3d at 442. The appellate court departed from the holdings in our prior opinions that foreclosed the reasoning it adopted.

Contrary to the belief of the appellate court, Campbell did not impliedly adopt a rule requiring counsel to inform a defendant of the specific content of evidentiary stipulations in all circumstances. We repeat that Campbell sets forth the general rule that defense counsel may validly waive a defendant's right of confrontation where two elements are met: (1) the defendant does not object to the stipulation; and (2) the decision to stipulate is a matter of trial tactics and strategy. Campbell, 208 Ill. 2d at 217; see also Rowell, 229 Ill. 2d at 102; Phillips, 217 Ill. 2d at 283.

We further repeat that Campbell carved out a limited exception to this general rule in only those instances where the stipulation is the functional equivalent of a guilty plea, on the basis that "counsel cannot stipulate to facts which establish the guilt of the accused" ( Campbell, 208 Ill. 2d at 219) because such actions implicate a separate and distinct constitutional right that belongs exclusively to a defendant: the right to plead not guilty. Campbell, 208 Ill. 2d at 219. Campbell and its progeny establish that a stipulation is tantamount to a guilty plea when one of two conditions is met: (1) the State presents its entire case by stipulation and defendant fails to preserve a defense; or (2) the stipulation concedes that the evidence is sufficient to support a guilty verdict. Campbell, 208 Ill. 2d at 218; see also Rowell, 229 Ill. 2d at 102; Phillips, 217 Ill. 2d at 283. We also repeat our holding in Phillips that except in those specified instances where the stipulation is tantamount to a guilty plea, Campbell "attached no other restrictions to defense counsel's authority to stipulate to the admission of evidence," and "we imposed no obligations on the trial court or counsel to admonish the defendant and ensure that the advisement is made a part of the record." Phillips, 217 Ill. 2d at 283.

Applying the rule we first developed in Campbell — and reaffirmed in Phillips and Rowell — to the instant appeal, it is clear that Wechter validly waived defendant's confrontation right by entering into the stipulation: defendant did not object to its entry and the decision to stipulate was a matter of trial tactics and strategy.

First, the record clearly establishes that defendant did not object to the stipulation. As noted earlier, defendant was present in open court when the stipulation was presented, and the court asked defendant directly if he wished to be bound by the stipulation. Defendant responded in the affirmative. We note that despite defendant's response being a clear and unequivocal statement of agreement, defendant now contends that the record shows he "obviously objected" to the entry of the stipulation. Defendant's efforts to disavow his agreement are unavailing. In fact, although Campbell "impose[s] no obligations on the trial court or counsel to admonish the defendant and ensure that the advisement is made a part of the record" ( Phillips, 217 Ill. 2d at 283), defendant nevertheless received the benefit of the circuit court inquiring if he agreed to the stipulation. At no time did defendant express disapproval, concern or confusion when the stipulation was discussed during the court proceedings. Accordingly, we conclude that defendant did not object to the entry of the stipulation.

In addition, we hold that the decision to proceed by stipulation was a matter of trial tactics and strategy. From the outset of this case, Wechter believed that the best strategy was to suppress the disc removed from defendant's home by Bailey. If successful, this would, in Wechter's view, also lead to the suppression of defendant's statements to Lamela, leaving the State with little — if any — evidence to support the charge. To this end, the parties immediately litigated the suppression issue. During that hearing, defendant had the opportunity to confront the same witnesses who would likely be the main witnesses at defendant's trial. Although defendant did not prevail on the motion, Wechter preserved the suppression issue at every juncture in the case.

After filing an unsuccessful motion to reconsider, Wechter included the suppression issue in the stipulation, and made numerous, specific objections to the introduction of evidence from the computer disc taken from defendant's home by Bailey, to the testimony of Detective Lamela, to the evidence seized from defendant's residence and computer, and to the statements defendant made to police. Wechter also preserved the suppression issue in the posttrial motion. In addition, Wechter also stated that while preserving the suppression issue for appeal, his strategy was also to craft the stipulation in such a way as to keep as much incriminating evidence out of it as possible. The record therefore supports Wechter's claim that the stipulation was part of the defense strategy he pursued throughout the proceedings.

The record also reveals that, contrary to defendant's assertion that he and Wechter had "limited consultations," Wechter regularly consulted with defendant about this strategy, communicating with him over the phone, in person at the courthouse, and by written correspondence. In a letter dated September 2, 2004, sent to defendant prior to the presentation of the original stipulation, Wechter provided three pages of detailed explanation, outlining the option of preserving the suppression issue by proceeding by stipulation, and discussing the likelihood of success. One would reasonably believe that defendant, a college-educated professional, would read this correspondence and pose questions, if necessary. Based upon defendant's testimony at the posttrial hearing, however, it appears that he was relatively uninterested and disengaged in the process, repeatedly stating that he would agree to whatever his father decided.

Thus, because both prongs of the general rule set forth in Campbell were met, Wechter validly waived defendant's right of confrontation by entering into the stipulation. Accordingly, Wechter's actions in this regard were not deficient, and the first prong of the Strickland ineffectiveness inquiry has not been satisfied. Because both prongs of the Strickland two-part test must be satisfied to establish an ineffective assistance of counsel claim, failure to establish deficient performance is fatal to defendant's claim. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; see also Bannister, 232 Ill. 2d at 80.

As an alternative basis for reversing his conviction, defendant contends that the appellate court erred in holding that the circuit court correctly denied his motion to quash arrest and suppress evidence. Although defendant acknowledges that the fourth amendment protection against unreasonable searches and seizures does not generally apply to private individuals, he contends that the police violated this guarantee because their search of the disc given to them by Bailey exceeded the scope of the private search which she conducted. The State counters that the police search remained within the scope of the initial private search and, therefore, pursuant to this court's decision in People v. Phillips, 215 Ill. 2d 554 (2005), the appellate court's holding should be upheld. We agree with the State.

A circuit court's ruling on a motion to suppress is reviewed under the two-part test adopted by the Supreme Court in Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). People v. Harris, 228 Ill. 2d 222, 230 (2008). The circuit court's factual findings may be rejected only if they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). The reviewing court then assesses the established facts in relation to the issues presented and may draw its own conclusions in deciding what relief, if any, should be granted. Harris, 228 Ill. 2d at 230. Accordingly, this court reviews de novo the ultimate legal question of whether suppression is warranted. People v. Luedemann, 222 Ill. 2d 530, 542-43 (2006).

In Phillips, the defendant took his computer to have it repaired. After making the repairs, the technician tested the computer by playing a video clip stored on its hard drive. The video clip depicted what appeared to be a young girl engaged in a sexual act. The technician immediately contacted a police officer acquaintance, told him what he had seen, and asked him to come to the shop. When the officer arrived, he had the technician play the video clip without first seeking a warrant. The officer agreed that the video depicted child pornography and informed other officers who also came to the shop and viewed the video. Phillips, 215 Ill. 2d at 559. The defendant was thereafter arrested and provided a voluntary statement admitting that he possessed child pornography. Phillips, 215 Ill. 2d at 560.

The circuit court denied defendant's motion to quash arrest and suppress evidence, holding that the fourth amendment did not apply to the technician's initial search of the computer, as it was the act of a private citizen, not of an agent of law enforcement. Phillips, 215 Ill. 2d at 560-61. The court further found that the police viewed the same video as the technician, and, by doing so, they acquired probable cause to arrest the defendant. Phillips, 215 Ill. 2d at 561.

We affirmed. Relying upon United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 94, 104 S. Ct. 1652, 1656 (1984), we noted that "the fourth amendment applies only to government action" and, therefore, "[a] search by a private person does not violate the fourth amendment." Phillips, 215 Ill. 2d at 566. We further held that the fourth amendment does not prohibit the government from using information discovered by a private search, because "the private search has already frustrated any expectation that the information will remain private." Phillips, 215 Ill. 2d at 566. Therefore, we explained that where the government uses privately discovered information to investigate a crime without first obtaining a warrant, "the fourth amendment question is whether the investigation `exceeded the scope of the private search.'" Phillips, 215 Ill. 2d at 566-67, quoting Jacobsen, 466 U.S. at 115, 80 L. Ed. 2d at 95, 104 S. Ct. at 1657.

The defendant in Phillips argued that the police exceeded the scope of the initial private search by the computer technician because the technician did not provide the police with a "particular description" of the contents of the file that he had viewed. In rejecting this argument, we held that the technician's statement to the first officer at the scene that the video appeared to be child pornography provided a sufficient description of the file's contents. Therefore, when the officers viewed that file, they "gained no new material information," but "merely confirmed [the technician's] report that it appeared to be child pornography." Phillips, 215 Ill. 2d at 567. Thus, "learning with more precision what the video depicted" did not expand the police investigation beyond the scope of the technician's search. Phillips, 215 Ill. 2d at 567.

Here, defendant concedes that there is no fourth amendment issue with regard to Bailey, who acted in her private capacity when she took defendant's computer disc into her own home. There, she viewed the titles of the files on the disc and watched one video clip in which a minor girl appeared to engage in sexual activity with an adult man. This discovery caused Bailey to contact Malkin, who in turn, contacted Lamela.

Defendant contends that Malkin and Lamela, however, impermissibly exceeded the scope of Bailey's private search. According to defendant, the incriminating nature of the disc was not readily apparent to Malkin or Lamela, as it was not marked as containing child pornography. In addition, defendant claims that the testimony of Malkin and Lamela does not indicate that their searches were limited to the same areas of the disc that Bailey had searched. Although the officers both claimed to have viewed a video file from the disc, the testimony did not establish that they viewed the same file Bailey viewed. We reject defendant's arguments.

Bailey testified that in addition to viewing a video file containing apparent child pornography, she also searched the disc widely enough to discover several file names she found "disturbing" and suggestive of child pornography, such as "`mother f***s 8-year-old.'" Thus, Bailey's own search was of sufficient scope to allow police to perform a general review of the files on the disc for the presence of child pornography. Defendant has pointed to nothing in support of the claim that Malkin and Lamela searched anywhere on the disc that by its file name likely would not contain child pornography. Although defendant contends that the disc "could have contained vast amounts of personal information" belonging to him, he fails to point to any evidence in the record supporting this assertion.

In sum, Bailey's seizure and viewing of the disc were not state action implicating the fourth amendment. When Bailey presented the disc to Malkin and Lamela, she had already frustrated defendant's expectation of privacy. Phillips, 215 Ill. 2d at 566. There is no evidence to support defendant's contention that the scope of the investigation of the disc by Malkin and Lamela exceeded Bailey's prior, private search; it merely confirmed the results of the private search. Therefore, we conclude that the circuit court properly denied defendant's motion to quash and suppress.

In his brief, defendant also raises the following claims of error which the appellate court declined to address in its opinion: (1) the State committed a discovery violation by failing to timely produce the audiotape of Detective Lamela's interview of defendant; (2) defense counsel was ineffective in failing to challenge the State's late production of the audiotape; (3) counsel was also ineffective because he incorrectly advised defendant regarding the period of sex offender registration; and (4) the evidence was insufficient to sustain defendant's conviction. Because the appellate court declined to reach the remainder of the issues raised in defendant's brief, we remand this cause to the appellate court to dispose of those claims raised before that court, but not previously ruled upon. People v. Lowery, 178 Ill. 2d 462, 473 (1997) (it is appropriate to remand an issue raised but not decided in the appellate court).

For the foregoing reasons, we reverse the judgment of the appellate court. We remand this cause to the appellate court for resolution of the remaining issues.

Appellate court judgment reversed; cause remanded.