APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The defendant, Raymond Burlinski, was indicted for sale of narcotics to Walter Lenan and the aggravated battery of police officer Richard McKelvey. At the close of the State's case the defendant moved for acquittal of the sale and the lesser included offense of possession of narcotics. The court allowed the motion as to the sale but denied it as to the possession charge.
After the defendant testified, the case was continued to give him an opportunity to produce the transcript of the preliminary hearing. The testimony at the preliminary hearing of officer Dura, who had testified in the State's case in chief, was read into the record. The court granted the State's motion to strike the charge of possession after he indicated he would find the defendant not guilty.
After both sides rested the court made the finding of guilty of aggravated battery. The defendant was placed on probation for three years with the condition that he serve one year in the House of Correction.
The defendant contends that the State failed to prove him guilty beyond a reasonable doubt.
Richard McKelvey testified that he was a Chicago police officer assigned to the Narcotics Unit for ten years. On December 20, 1969, he and officer Donald Dura searched the informant, Walter Lenan, who had no money or narcotics on his person. He recorded serial numbers of currency amounting to thirty dollars which he gave to Lenan. He drove Lenan, Dura and officer Bernard Brown to 3737 West Division Street. Brown walked down an elongated gangway adjacent to 3737 and left McKelvey's view. McKelvey, Dura and Lenan entered the gangway. He entered the vestibule with Lenan after telling Dura to walk farther down the gangway and position himself in the rear. Dura did so. McKelvey remained on the first floor landing. He lost sight of Lenan as he made a right turn to go up to the second floor landing. He heard a knock on the door a few seconds after he lost sight of Lenan. He then heard a conversation between Lenan and another person discussing the terms of a sale of a thirty-dollar bag of heroin. He saw Lenan come down the stairs a couple of seconds after the end of the conversation. Lenan gave him a plastic package and he signaled to Dura, who was positioned at the end of the gangway, that the sale had taken place. He then called to Brown, who was coming from the third floor landing and they met outside the defendant's doorway. He conducted a field test on the package and discovered it was heroin. He knocked on the door and heard the same voice which had had a conversation with Lenan ask, "Who is it?" He replied, "Police. Open up the door." He continued knocking and after a couple of minutes heard Dura yell out, "Stop, police." He ran from the second floor to the exit and then to the backyard. He saw Dura struggling with the defendant, whom he had seen many times before and who knew he was a policeman. He joined in the struggle. While Dura was trying to get something out of the defendant's mouth, the defendant was biting, kicking and swinging his arms about. Both he and Dura received blows. After the defendant was subdued, he was searched and a previously recorded five dollar bill was taken from his pocket. He and Dura both went to the hospital. He was treated for a bite on his hand which swelled up to about five times its normal size. The defendant denied knowing anything about the heroin.
On cross-examination, McKelvey testified that the defendant was already struggling with Dura when he arrived in the back. Dura did not come into the building with him after he had signaled to McKelvey. The defendant also received medical treatment.
Officer Bernard Brown testified that he has been assigned to the Narcotics Unit for twenty-one years. He went to the third floor landing. He did not see Dura from the time he left the squad car until Dura and McKelvey were bringing the defendant into the building. He was able to observe the defendant's apartment door. He saw Lenan knock on the door and heard the defendant, whom he recognized, answer. In substance it was the same conversation that McKelvey testified to. He saw Lenan hand the defendant some money. The defendant closed the door, returned a couple of minutes later and gave a package to Lenan, who walked down the stairs and was met by McKelvey. Brown and McKelvey conducted a field test and knocked on the door. After hearing Dura shout, McKelvey ran out and Brown remained covering the door. He next saw the defendant when Dura and McKelvey were bringing him up the stairs. Another person, an addict, came to the door when they took the defendant to the station. Lenan's brother was in the area.
Donald Dura testified that he has been assigned to the Narcotics Unit for twelve years. He went into the gangway while McKelvey and Lenan went into the hallway. About ten or fifteen minutes later the defendant, whom he had seen before, came out of the building. He told him to stop. The defendant put something in his mouth while running. He tried to subdue the defendant and McKelvey came out of the door and helped him. The defendant was chewing, punching and kicking. Dura was struck. He did not see McKelvey between the time he saw him go into the building with Lenan and the time of the struggle with the defendant. He could not see or hear what was going on inside. When he was struggling with the defendant he injured his hand. He and McKelvey were trying to take something out of the defendant's mouth that he was chewing on.
During the cross-examination of McKelvey the Assistant Public Defender, apparently reading from the Grand Jury transcript, asked McKelvey if he testified before the Grand Jury that after the sale he told Dura to go around to the back entrance. His answer was that he was not saying that he did or did not so testify. No further proof of his Grand Jury testimony was offered nor was any motion to strike the question and answer made later.
The defendant testified that he was in his apartment with his nine-year-old son and Donald Zorc. Lenan came to his apartment, spoke to him for ten minutes and left. He had no conversation with Lenan in the hall. Lenan returned about twenty minutes later with the police, who broke down the door. He had gone out the back door when he was jumped by Dura who "worked him over." He did not bite or kick the officer. He received an injury to his lip that required a few stitches at the Bridewell Hospital. The police questioned Zorc after bringing him back into the apartment. He knew that Dura was a police officer. He was present at the preliminary hearing and heard Dura testify that he was on the third floor and saw the sale.
The court, on motion of the defendant, continued the case to enable the defendant to acquire the transcript of the preliminary hearing. On the next date the Assistant Public Defender read into the record portions of Dura's testimony at the preliminary hearing. At that hearing Dura said he was with McKelvey and was able to see the defendant take the money, close the door, come back, hand Lenan something and close the door again.
After the court heard this evidence the following colloquy occurred:
"THE COURT: I don't think we have to go any further. My note said he was never inside, in the gangway ...