APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
A sixteen-count indictment charged defendant Melvin Bailey and two co-defendants, Andrew McChristian, Edward Dinkins, with aggravated assault and aggravated battery on five persons, attempts to murder and a conspiracy to murder the same five people. Prior to their trial, on motion of the State, the charges of aggravated assaults and aggravated batteries were dismissed. Defendant, McChristian and Dinkins then went to trial before a jury on the remaining counts.
At the close of the State's evidence, the trial court directed the acquittal of Dinkins on all the charges. However, the State's cases against defendant and McChristian went to the jury. It returned verdicts that acquitted McChristian of the attempts to murder but found him guilty of conspiracy. Defendant was found guilty of the five attempts and the conspiracy; the trial court sentenced him to serve six concurrent terms of ten to fifteen years. McChristian took a separate appeal; and in an opinion which contains a detailed statement of the facts from which the charges arose, we have today reversed his conviction. People v. McChristian, 18 Ill. App.3d 87.
In this appeal, the only substantive issue is whether the State's impeachment of a court witness introduced hearsay evidence that prejudiced defendant's right to a fair trial. Since this issue is raised from events that occurred at the trial, and our opinion in McChristian states the facts which underlie the indictment, we will not restate the events that gave rise to the charges, except as our discussion of the issue may require.
At defendant's trial, the third witness called by the State was David Barksdale, one of five persons named in the indictment as victims of the assaults, the batteries, the attempts and the conspiracy to murder. Barksdale refused to testify because he feared self-incrimination. Because he invoked his right not to incriminate himself, the State petitioned the trial court to grant him immunity. This was done, and immediately thereafter, one of the assistant state's attorneys made an oral motion that Barksdale be called as a court's witness. The defendants objected, but after a hearing outside the jury's presence, the motion was granted with the understanding that the trial judge was to tell the jury that Barksdale was a court's witness, one whose testimony was not vouched for either by the prosecution or the defense.
Barksdale then testified and in answer to questions asked by an assistant state's attorney, told the jury that on the evening of May 8, 1968, he drove his automobile past 6526 South Ellis Avenue, Chicago, and shooting of guns erupted. He said he did not know who shot at his automobile. Although he said he knew the defendant, he denied seeing him on the evening of May 8, 1968, at or near 6526 South Ellis. In answer to a question, Barksdale said that he saw McChristian and Dinkins at the scene of the shooting, but he did not see them fire any guns at his automobile. He denied seeing either Dinkins or McChristian with a gun in his possession. Barksdale was asked whether at a police station, after the shooting, he saw defendant and McChristian and had a conversation with them. His answer was that he saw them there, but that "they remained silent."
Barksdale was then asked whether in the state's attorney's office, shortly after the May 8, 1968, shooting, he spoke to an assistant state's attorney and on that occasion said that defendant, McChristian and Dinkins "shot at me on May 8". Barksdale admitted making the statement, but said that what he said on that occasion was a lie. Then, Barksdale was asked whether eight months before the trial he was in the state's attorney's office, where, in the presence of one of the three policemen, he told the assistant state's attorney in the case that defendant and McChristian shot at him on May 8, 1968. Barksdale's answers were at first evasive; but he was pressed by questions aimed at determining whether it was true he had said, eight months before the trial, that the defendants had fired at him on May 8, 1968. After a number of questions to which he gave unresponsive answers, Barksdale said that he made the statement; but at the time, he was angry, and "I would have said anything." Next, Barksdale was asked whether a week before the trial he had not made statements to an assistant state's attorney that defendant, McChristian and Dinkins had guns in their possession on May 8, 1968, and had shot at him. He said he had because he was angry at one of the policemen and "I was still mad at Bailey [the defendant]." Then, he was asked whether he had been questioned the day of the trial concerning the shooting incident of May 8, 1968. Barksdale said he had. The assistant state's attorney who was questioning him asked Barksdale, "And did you tell me this afternoon that Melvin Bailey shot at you on May 8, 1968?" Barksdale answered, "I told you that because I came down to court I am in court." The assistant state's attorney then turned to the trial judge and asked, "Your Honor, may I just have an answer?" Barksdale was directed by the trial court to answer the question. His response was, "Yes." Further questions were put to Barksdale concerning McChristian. After answers, some evasive, some unresponsive, the assistant state's attorney asked Barksdale, "Did you tell Mr. Novelle and myself today, this afternoon, that you saw Mr. McChristian with Mr. Dinkins with a rifle in the 6500 block of South Ellis?" Barksdale answered, "Yes."
Barksdale was then asked whether sometime after May 8, 1968, he had not told an assistant state's attorney, Matthew Walsh, about a conversation he had with defendant and McChristian in the area police station the evening of May 8, 1968, after the shooting. Barksdale was asked whether defendant had said to him, "I missed you this time." After first making an unresponsive answer, Barksdale admitted telling Walsh about the conversation, but said he did so because he was angry. When asked if he told Walsh that McChristian had said to him, "We will get you next time," Barksdale said that he did, but "I was still lying, though." After being pressed by further questions concerning a conversation which the State claimed he had with defendant and McChristian the evening of May 8, 1969, Barksdale disclaimed recollection of it.
To impeach Barksdale, the State announced it was calling Matthew Walsh. There were objections by all the defendants. As a result, the trial judge agreed that before Walsh testified he would tell the jury
"* * * that while it is proper to impeach or discredit a witness by proving statements made by such witnesses at some other time and place, different from the testimony in this case on trial, still any statement that any witness may have made at such other time and place is not to be considered by you as any evidence as to the guilt or innocence of the defendant or any of them. Evidence that on some former occasion a witness made a statement different from or inconsistent with his testimony in this case should only be considered by you in deciding the weight to be given that witness [sic]."
Defendants insisted on their objections, but Walsh was allowed to testify that in his office "* * * last Friday at approximately 1:15 P.M.," Barksdale told him "that Bailey made a comment to him about the fact that they didn't get him that night or they were sorry they didn't get him. And McChristian began laughing and said, we will get you next time." After several of defendants' objections were overruled, Walsh was permitted to tell the jury that as Barksdale was leaving his office, he asked him, "* * * as I had once or twice during the conversation, * * * if what he was telling me was the truth. He indicated it was the truth and I asked him at that time whether or not he could testify to the truth in court, and he shrugged his shoulders at that time. And I said, are you afraid of them, meaning ." Walsh was interrupted by an objection of one defense counsel; and in response, the trial court ruled that "[t]he last part of the answer is stricken and the jury is instructed to disregard it." Then Walsh was asked, "Did Mr. Barksdale tell you that what he told you, the concern the facts in this case, was the truth?" Walsh answered, "Yes, he did."
It is from this examination of Barksdale, and his impeachment through the testimony of Matthew Walsh, that defendant contends he was prejudiced by inadmissible hearsay evidence which the jury was allowed to hear and on which they returned their verdicts finding him ...