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Following a jury trial, defendant Leonard Stafford was convicted of first degree murder andsentenced to 32 years' imprisonment. Defendant contends the State violated his constitutional rightsto due process and a fair trial by proceeding to trial against him on five counts of attempted murderthat had been nol-prossed three years earlier but were never reinstated by reindictment. Defendantalso contends that the following errors require reversal: (1) admission of hearsay evidence regardingidentification; and (2) the trial court's misleading response to a series of questions from the jury.Defendant further argues that his sentence is excessive. Allowing the State to proceed to trial on fivecounts of attempted murder that had been nol-prossed and never reinstated violated defendant's rightto a fair trial. We reverse and remand for retrial.

Defendant's conviction for murder arose from the November 29, 1994, shooting death ofAntonio Burgos in Chicago. On February 16, 1995, a grand jury indicted defendant on two countsof first degree murder, five counts of attempted first degree murder, and five counts of aggravateddischarge of a firearm. On January 29, 1996, before proceeding to the first trial of this case, the Statenol-prossed all of the counts except the two counts of first degree murder. Defendant then proceededto a bench trial. He was found guilty of first degree murder and sentenced to 32 years in prison.

On appeal, defendant contended that the trial court erred in denying his motions to suppressstatements, to quash arrest, and to suppress the lineup and identification evidence. We affirmed thetrial court's determinations that probable cause existed to arrest defendant and that the lineup wasnot unnecessarily suggestive. However, we found that defendant's statements to the police on thenight of his arrest were not voluntary and remanded for a new trial. People v. Stafford, No. 1-96-1307 (1998) (unpublished order under Supreme Court Rule 23).

On March 23, 1999, the date jury selection commenced for the second trial, the Stateinformed the trial court that it would be proceeding on the two first degree murder counts and fiveattempted murder counts. Defense counsel objected as follows:

"THE COURT: So, the State intends to nolle Count 1?

[ASSISTANT STATE'S ATTORNEY]: Counts -- I want tomake sure I have this right, 8 through 12, your Honor, which are allthe aggravated discharge counts.

THE COURT: All right. Well, I am going to have to use this.

[ASSISTANT STATE'S ATTORNEY]: Fine.

THE COURT: Counsel, now, --

[DEFENSE COUNSEL]: Just discussing with her that earlierin the case the State's Attorney before the stipulated bench trial thatwe had in front of Judge Egan, they nollied, I believe all but the firsttwo counts which would be 1 and 2.

[ASSISTANT STATE'S ATTORNEY]: Judge, I am unawareof that if that's, in fact, what happened. I would be [going] forwardon Counts 1 through 7.

THE COURT: Right."

On March 24, 1999, before jury selection continued, defendant filed a motion to dismiss theattempted murder counts and argued the motion in court. Defendant asserted that because he hadnot been reindicted on the five charges of attempted murder, the State was legally precluded from proceeding to trial against defendant on those counts. The State countered with a request that thecounts be allowed to be reinstated "based upon the fact that no double jeopardy, in fact, attachedhere." Defendant argued in response that oral motions to reinstate are not permissible. Followinga short recess, the trial court denied defendant's motion to dismiss and allowed the State to proceedon the attempted murder charges.

On both days of jury selection, the trial court summarized the indictment for the membersof the venire, informing them that defendant was charged with the first degree murder of AntonioBurgos and the attempted murders of Nelson Denis, Ricardo Crespo, and Christopher Stewart. Defendant was charged with the attempted murder of Pedro Castillo in two separate counts. Inopening statements, the assistant State's Attorney told the jurors that at the close of the case, shewould ask them to find defendant guilty of the first degree murder of Burgos and the attemptedmurders of the other four men. During the course of the trial, the State presented evidence of thealleged attempted murders. Castillo testified that defendant shot at him, Burgos, Denis, and Crespofour times on the street and that defendant shot at him once in an alley. Crespo further indicated thatdefendant pointed a gun at him, Burgos, Denis, and Castillo and fired it three to four times. Denis,who was called as a witness for the defense, testified on cross-examination that defendant fired fourto five shots at him, Burgos, Castillo, and Crespo.

Following the close of evidence, the trial court considered the proposed jury instructions. After discussion with the attorneys, during which defense counsel again argued that the attemptedmurder charges were improper, the trial court indicated that it would not instruct the jury on thosecharges. In explaining its action, the trial court stated, "What I've done and apparently there's nodisagreement, but with respect to the attempt murder counts, those instructions won't be given. Andso the instructions have been modified to remove any reference to these charges. And furthermore,I've pulled out the verdict forms for attempt murder." Following further discussion, defense counselmoved for a directed verdict of acquittal, which was denied. Defense counsel then moved formistrial, stating as follows:

"We really do appreciate and respect the Court'sreconsidering our objection to the attempt murder instructions. Thoseinstructions will not be given. And -- but in our view we want therecord to be clear we don't believe that clears the error [defendant]has already suffered as a result of the State's improper proceeding onthose counts.

The Court advised the jury before the case began that he wascharged with attempt murder. In fact he was not charged with attemptmurder at the time. And we believe that that's, the Court'sadmonition to the jury followed by the State's improper openingcomments reiterated he was charged with attempt murder andproceeding to introduce evidence of attempt murder, your Honor, wethink has contaminated the proceedings in a way that the Court'ssustaining of our objection to the attempt murder count does notentirely cure it."

The trial court denied defendant's motion for mistrial. In doing so, the trial court stated that the factthe attempted murder instructions would not be given could operate to defendant's benefit and thatit was not unusual for counts to be dismissed after the close of the State's case.

The trial court thereafter instructed the jury, which, after deliberating, found defendant guiltyof first degree murder. Defendant filed a posttrial motion, arguing that he should be granted a newtrial because the State tried him on charges of attempted murder that had been nol-prossed by theState in January 1996 and defendant was never reindicted. The trial court denied the motion. Defendant was sentenced to 32 years' imprisonment.

Defendant's first contention is that, at his second trial, the State improperly proceeded againsthim on the five counts of attempted murder that had been dismissed as the result of the State'smotion for entry of a nolle prosequi on January 29, 1996, immediately prior to his first trial. Defendant contends that the State violated his constitutional rights to due process and a fair trial byproceeding to trial against him on five counts of attempted murder that had previously been nol-prossed in 1996 and had never been reinstated by reindictment. Defendant argues that the trialcourt's decision not to instruct the jury on attempted murder did not cure the prejudice, as he wasburdened throughout the trial by the task of defending himself against criminal charges that were notpending against him. Defendant further contends that the State's murder case was bolstered whenthe jury was exposed to accusations, argument, and evidence that he had committed the crimes ofattempted murder that had never been reinstated against him by reindictment.

We review the record de novo because the issue regarding the attempted murder chargesraises purely questions of law. People v. Daniels, 187 Ill. 2d 301, 307 (1999). The State's motionfor nolle prosequi is the formal entry of record by the State by which it declares that it is unwillingto prosecute a case. Daniels, 187 Ill. 2d at 312. Nolle prosequi functions to dismiss the indictmentor charge as to which it is entered and to terminate all further prosecution under the dismissedindictment or charge. People v. Woolsey, 139 Ill. 2d 157, 168 (1990). When an indictment is nol-prossed, no criminal charges remain pending against the defendant and the State must file a newcharging instrument in order to reinstate its prosecution. Woolsey, 139 Ill. 2d at 168. The IllinoisConstitution provides that no person shall be prosecuted for a crime punishable by death orimprisonment unless the charge has been brought by grand jury indictment or pursuant to apreliminary hearing. Ill. Const. 1970, art. I,