APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, Charles Robinson, was charged with the murder of Charles Tolbert. After a jury trial, he was found guilty of that crime and was sentenced to a term of 14 to 30 years. On appeal defendant contends that the trial court improperly permitted a rebuttal witness to be called as a court's witness and to testify to a collateral matter outside the scope of proper rebuttal; that certain instructions given to the jury were erroneous; and that the prosecutor's closing argument was improper, requiring reversal. Defendant's underlying contention in all three arguments is that certain testimony of a rebuttal witness erroneously introduced an improper inference of an unrelated crime. After oral argument, defendant was given leave to file a supplemental brief adding another contention. In the supplemental brief, he argues that comments made by the trial judge during the selection of the jury were improper. He further maintains that the error resulting from the judge's comments was compounded by the failure of the court to submit a certain instruction to the jury.
The State produced three eyewitnesses to various aspects of the crime. Vera Brooks testified that on May 9, 1970, she observed three men on the sidewalk across the street from her home in the City of Chicago: the defendant, the deceased, and James Brown. The three men appeared to have been arguing. Vera Brooks further testified that she saw defendant shoot Brown. Defendant then said something, and turned and shot the deceased who was standing at arm's distance against the wall. The deceased stooped over, and defendant shot him again. Brown and defendant then ran away.
Marie Smith and her stepdaughter, Rene Smith, testified that the incident occurred on the sidewalk in front of their home. After defendant shot Brown, both witnesses heard the defendant say to the deceased: "You made me shoot my partner, now I'm going to shoot you." Defendant was the only one of the three men who displayed a gun. After Brown was shot, Marie Smith ran into her home momentarily and then returned outside. Rene Smith came outside after the first shot. They did not see any struggle.
Officer John Martin of the Chicago Police Department testified that he found the deceased lying on the ground with two bullet wounds in the neck. The deceased's wallet, along with an empty money clip and identification papers, were also found at the scene. Defendant told both the arresting officer and Rosemary Barnett, in whose apartment defendant was arrested after the occurrence, that Brown was shot by an unknown stranger as Brown and defendant stood on a corner.
Defendant testified that he shot the deceased accidentally while trying to take the deceased's gun away from him. The deceased was seeking to get even because he once lost a fight to defendant. Defendant stated that he first struck the gun held by the deceased, causing it to go off, wounding defendant's friend Brown. Defendant denied telling the deceased he was going to shoot him.
Lettie Sims testified for the defense that she heard three shots, went outside, and saw two men struggling for a gun. Officer Ronald Goscenski of the Chicago Police Department testified for the defense that he interviewed Marie Smith and Vera Brooks after the occurrence. Both witnesses told the officer that they were asleep when they heard the first shot. They then went to their front windows to watch what happened.
After the defense rested, James Brown, over objection, testified as a court's witness on rebuttal that the deceased and defendant had argued, that defendant had ordered the deceased to empty his pockets, and that a struggle had resulted in which the witness and the deceased were shot by defendant. Brown also testified that, when ordered by defendant to empty his pockets, the deceased took out his wallet and papers. Brown did not see the deceased with a gun.
Defendant's initial contention is that the trial court committed reversible error in permitting Brown to be called as a court's witness and to testify to a collateral matter outside the scope of proper rebuttal.
• 1 The requisite foundation which must be laid for the calling of a witness as a court's witness consists of the giving of reasons as to why the party desiring the witness so called cannot vouch for his veracity, and a showing that the testimony of the witness will relate to direct issues and is necessary to prevent a miscarriage of justice. (People v. Dennis (1970), 47 Ill.2d 120, 265 N.E.2d 385, cert. denied (1971), 403 U.S. 907.) The calling of a witness as a court's witness is a matter within the discretion of the trial court, and unless such discretion is clearly abused, it will not be disturbed on review. People v. Banks (1955), 7 Ill.2d 119, 129 N.E.2d 759, cert. denied (1956), 351 U.S. 915.
• 2, 3 At the time the State requested the court to call Brown as a court's witness, the prosecutor offered to show either at a factual hearing or by oral representation that he could not vouch for Brown's veracity because of prior inconsistent statements he had made to police officers and prosecutors. The trial court stated that the prosecutor's oral representation would be sufficient, and defense counsel made no objection to this procedure. We hold, therefore, that the State laid a sufficient foundation to show that it could not vouch for Brown's veracity. It also seems evident that Brown's testimony was necessary to prevent a miscarriage of justice. Although the State offered three eyewitnesses to parts of the occurrence, Brown admittedly was present and viewed the entire incident. His testimony was essential.
• 4 Defendant further argues that Brown was permitted to testify on a collateral issue which was beyond the scope of proper rebuttal, rather than on a direct issue. In making this contention, defendant refers to Brown's testimony that defendant ordered the deceased to empty his pockets and that Brown saw the deceased take his wallet and papers out of his pocket. Defendant maintains that his testimony introduced an improper inference of another crime, robbery, into the evidence. In our view, Brown's testimony on this point related to a direct issue. It was directly contradictory to defendant's testimony that he acted in self-defense. The testimony in question indicated that the deceased had emptied his pockets and that he did not have a gun in his possession. Moreover, the argument overlooks the fact that during the State's case-in-chief one of the police officers testified that he had found the deceased's wallet and papers on the sidewalk at the scene. And even if part of Brown's testimony could be considered to have been on a collateral issue, we do not believe that the testimony could be sufficiently prejudicial to warrant reversal. (See People v. Dennis, supra.) We conclude that the court did not err in permitting Brown to be called in rebuttal as a court's witness, and we also hold that the scope of his examination was proper.
Defendant next contends that the trial court committed reversible error in the giving of certain instructions to the jury. He argues that the instructions were prejudicial and misleading because they arose from an improper inference contained in Brown's testimony ...