APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 16, 1971.
The defendant, Eddie Pitts, was convicted by a jury of the unlawful sale of the narcotic drug, heroin, in violation of Ill. Rev. Stat. 1969, ch. 38, par. 22-3, and sentenced to from ten to twelve years in the penitentiary. He appeals to this court from that conviction.
We reverse and remand for a new trial.
The defendant, on appeal, raises many issues. However, we will discuss only that issue upon which we base our decision. Further, since the facts are not in dispute, we will recite only those facts necessary for purposes of clarity.
The defendant raises the issue of his rights to a fair trial and due process of law. He argues that he was denied these basic rights because, among other things, the prosecution introduced incompetent evidence that the defendant had committed other crimes. This argument rests on the fact that although the defendant did not testify, the prosecution introduced testimony to the effect that the defendant was on parole at the time he was arrested for the crime in the case at bar.
The facts surrounding the introduction of the testimony in question are as follows: The defendant was arrested by a Chicago police undercover narcotics agent. The officer was working as part of a three-man team. The other two officers would follow the undercover officer to provide surveillance and presumably protection in the event of an emergency. At the time of his arrest, the defendant made several statements in the presence of the three officers which later became the basis of a pre-trial motion to suppress made by the defense counsel. At the hearing on this motion, one of the officers testified on cross-examination by defense counsel that at the time of his arrest the defendant told the officer, "You know, I am going to be in a lot more trouble because I am on parole for selling drugs."
After hearing all of the testimony, the motion to suppress was denied. However, prior to concluding the hearing the prosecutor, in colloquy with the court, requested a ruling on the propriety of placing certain admissions, including the testimony in question, before the jury. The court responded, "However, any reference to any kind of record by these police officers, if any, that this defendant had, would be highly inappropriate, and I think prejudicial to this defendant." The prosecution expressed their acquiescence, and the case proceeded to trial.
At trial, although the defendant did not testify, the following testimony was elicited by the prosecution from one of the arresting officers:
"Q. Do you recall what Mr. Pitts stated in relation to my last comment, Detective (naming officer)?
A. He said that he was in a lot of trouble and that he was on parole."
At this point, the court denied defense counsel's motion for a mistrial, struck the answer and instructed the jury to disregard it. At the close of the evidence, the trial judge denied the defendant's motion for new trial and motion for arrest of ...