APPEAL from the Circuit Court of Cook County; the Hon. EARL
ARKISS, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This is an appeal from the circuit court of Cook County, Criminal Division. Walter Jarosiewicz (hereinafter called "the defendant") was indicted for four counts of aggravated battery. After a jury trial, he was convicted of two counts of aggravated battery and sentenced to three years' probation, with the first six months to be served in the county jail. This sentence was later modified to three years' probation.
The issues presented for review are (1) whether it was error to deny the defendant's challenge for cause of a juror who said he did not believe a police officer would commit an unprovoked act of violence on a citizen; (2) whether the defendant was proven guilty beyond a reasonable doubt; (3) whether it was error to prohibit the defendant from cross-examining a police officer regarding a pending civil rights suit against the officer; (4) whether it was error to deny the defendant's motion to have the jury view the scene in question; (5) whether it was error to deny the defendant's motion for a mistrial when the prosecutor stated he would not object to the jury seeing the police report in question; (6) whether it was error to deny the defendant's motion for a mistrial when the prosecutor commented on the defendant's inconsistent defense filed in his answer to discovery; and (7) whether the chain of possession must have been shown in order to introduce a piece of sheet metal into evidence.
The incident at issue began when the defendant became engaged in an argument with his brother. Damage was done to the inside of their home as a result of this argument and their mother called the police in an effort to restrain the defendant's behavior. The defendant left before the police arrived and returned immediately after the police left. His continued misbehavior caused his mother to again call the police. Again, he left before they arrived.
Upon the mother's request that they stay, the responding officers waited for a supervisor and searched near and around the house for the defendant. The officers responding to each of the mother's calls for police assistance were Officers Grasz and Peebles. The responding supervisor was Sergeant Stanley.
After conducting a brief search of the house, Officers Peebles and Stanley went out to search the area outside, while Officer Grasz remained inside the house. After Peebles and Stanley walked down the gangway towards the back of the house, they searched the basement area in back of the house. They then saw the defendant in a cubbyhole in the basement.
Mr. Bolanos, an architect, and Mr. Nichol, a ballistics expert, testified the cubbyhole was 4'3" wide, 4'3" high, with joists that made it actually 3'7" high inside, and 5'5" deep. It was three feet off the ground. Mr. Bolanos presented and testified from several drawings he made of the cubbyhole and basement. One drawing of the cubbyhole was a perspective view. Bolanos testified minor distortion was present in all perspective drawings, and the defendant had not specifically asked him to make a perspective.
Officer Stanley testified when he first noticed the defendant he was crouched behind some wood and metal debris at the front of the cubbyhole. The defendant testified his legs were resting on the debris and when the officers grabbed for his legs the debris fell to the floor of the basement. The defendant then moved toward the back of the cubbyhole and sat on a stoop at the rear of it.
Grasz testified while sitting at the kitchen table filling out the report, he received a radio call from Peebles asking him to come down to the basement. When Grasz arrived in the basement Stanley told him to call for a police wagon. After Grasz went up the basement stairs to call for the wagon he saw a skid go flying out into the basement from the cubbyhole. While Peebles and Stanley stood at the front of the ledge, Grasz put in a distress call. As Peebles and Stanley attempted to get on the ledge a second skid was thrown. The defendant then swung a piece of metal at Stanley but missed and hit Peebles on the forehead. Peebles fell back, whereupon Grasz lifted him up and stood him between Grasz and Stanley, who all now stood at the ledge of the cubbyhole. Then, as the defendant was swinging a two-by-four at Stanley, a shot rang out. The defendant, however, continued to swing the two-by-four. A second shot was fired and the defendant fell back.
Stanley and Peebles testified when they first saw the defendant Stanley told him to come on out and not to cause any trouble. The defendant did not answer. Then one of the two officers called Grasz. The defendant jumped up and crouched behind the debris prior to Grasz's arrival. After Grasz had come and gone to make the call for the wagon, the defendant stood up and yelled, "I'm going to kill you coppers." The defendant threw one skid and then another which went over the heads of Peebles and Stanley. The defendant then threw a piece of sheet metal which hit Peebles.
The defendant testified as he sat at the rear of the cubbyhole the officers moved away from the opening of the cubbyhole to a point where he could not see them. A couple of minutes later Peebles reappeared at the opening of the cubbyhole and fired two shots at the defendant. The defendant was then handcuffed and pulled from the cubbyhole. He was then taken up to the sidewalk in front of the house and put in a police wagon.
Stanley's testimony that the defendant continued to swing a two-by-four after the first shot coincides with Grasz's testimony. Peebles testified after the first shot the defendant dropped the two-by-four, moved backwards and picked up a second two-by-four. At this time Peebles fired the second shot.
Officer Belles testified he found a bullet in the basement area outside the cubbyhole. Professor Nichol, the defense ballistics expert, found a bullet hole in the back of the cubbyhole. One of the two shots fired by Peebles went through the defendant and the other was removed by surgery.
Regarding voir dire, the defendant exhausted his peremptory challenges prior to completion of jury selection. One of the peremptory challenges was used to exclude Samuel Richmond from the jury. Mr. Richmond stated he did not believe it possible that a police officer would commit an unprovoked act of violence on a citizen. Defendant's request that Richmond be excluded for cause was denied.
During the trial the prosecutor interrupted the defendant's attorney by stating that the prosecution had no objection to the jury seeing a police report the defendant was using during cross-examination of Officer Grasz. The police report had not been admitted into evidence and was not subsequently admitted.
While cross-examining the defendant, the prosecutor asked whether the defendant had stated in his answer to discovery that someone else had committed the acts alleged. No answer was given to this question.
After jury deliberations the defendant was found guilty of two counts of aggravated battery and sentenced to three years' probation, with the first six months to be served in the county jail. This sentence was later modified to three years' probation. ...