APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
LIMPERIS, Judge, presiding.
JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
A jury found defendant, Henry Bodeman, guilty of armed violence and of two counts of aggravated battery. The court sentenced him to terms of six years for armed violence and three years for each count of aggravated battery, all the sentences to run concurrently. On appeal defendant contends that prejudicial hearsay statements were improperly admitted into evidence; that the trial court permitted the State to impeach defense witnesses with prior inconsistent statements and then failed to advise the jury that these statements could not be considered substantively; that the trial court improperly limited defense counsel's cross-examination of the complaining witness; that the prosecutor made improper comments during closing argument; that there is no valid count upon which the conviction for armed violence can stand; that defendant could not be convicted for both armed violence and aggravated battery since both offenses were based upon the same act; that the armed violence statute is unconstitutional; and that the evidence adduced was insufficient to support the convictions for aggravated battery.
Bernd Harrer, Louis Pocasangre, Sergio Cortez, and Alfred McCalla, all friends, testified for the State that they arrived at a tavern at about 1:30 a.m. on December 16, 1978. Shortly after 4 a.m., Mr. Hall, employed by the tavern as a bouncer, announced that the tavern was closing. As they were leaving, the four men exchanged insults with defendant, also a patron, and then entered Pocasangre's automobile which was parked outside. Harrer and Cortez sat in the back of the vehicle, while McCalla sat in front next to Pocasangre. Cortez returned to the tavern to use the washroom and was accompanied by McCalla who was refused service at the bar. Defendant and Hall followed McCalla to the vehicle. Hall stood at the driver's side while defendant knocked on the passenger's side window with a gun. Both men were yelling threats. When Pocasangre lowered the power-operated window, defendant tried to hit McCalla in the face with a gun. The gun fired, striking Pocasangre in the hand.
Dana White and Erol Sengellu, the tavern bartenders, testified for defendant that a gun found in a tavern drawer had been given to White by defendant after he arrived and that at closing defendant left without the gun and did not return. Both witnesses stated it was not the gun used in the shooting.
We first consider defendant's contention that several hearsay statements were improperly admitted into evidence. During cross-examination, White and Sengellu denied telling police officers that the gun in the tavern drawer was the one used in the shooting. A police officer testified that White advised him that the gun in the drawer was the one used in the shooting. Since defendant offered no objection to any of the foregoing questions or answers, he has waived his right to claim error on review. People v. Trefonas (1956), 9 Ill.2d 92, 136 N.E.2d 817.
• 1 The testimony of the police officers that White had advised them that defendant left the bar for a short time and then returned with the gun and asked the bartenders to hide it was not inadmissible hearsay. The statement was inconsistent with White's prior testimony and was admissible for impeachment purposes. It was error to allow a police officer to testify that White told him it was normal procedure, when police officers were coming, for patrons to give their weapons to the bartenders. This was hearsay, but its admission was not prejudicial to defendant. Defendant also argues that in his closing argument the prosecutor relied on these statements by the police officers for substantive rather than impeachment purposes. We have read the closing argument carefully, and it appears that the prosecutor's comments were properly made for the purpose of attacking the credibility of the bartenders. The prosecutor's reference to the tavern's custom of having patrons turn in weapons was error, but was not prejudicial to defendant.
Defendant further maintains that the trial court erred by failing sua sponte to instruct the jury specifically that these prior inconsistent statements could not be considered as substantive evidence. He correctly asserts that Illinois Pattern Instructions, Criminal, No. 3.11 (1968), given for that purpose, was insufficient. (People v. Riley (1978), 63 Ill. App.3d 176, 379 N.E.2d 746.) Defendant, however, failed to either object to the instruction or to tender a more appropriate one. The general rule is that failure to object at trial to an error in jury instructions waives the issue on appeal. People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331.
• 2 An exception to the general rule is provided where there were "substantial defects" in the instructions "if the interests of justice require." (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c).) This exception has been narrowly construed to apply only to the correction of grave errors (People v. Jenkins (1977), 69 Ill.2d 61, 370 N.E.2d 532), or where the case was so close factually that fundamental fairness required the jury to be instructed properly. (People v. Joyner (1972), 50 Ill.2d 302, 278 N.E.2d 756.) Thus reversal has been required for failure to instruct the jury where a prior inconsistent statement was extraordinarily long and repetitious and where the conviction was based upon such statement (People v. Paradise (1964), 30 Ill.2d 381, 196 N.E.2d 689; People v. Fields (1975), 31 Ill. App.3d 458, 334 N.E.2d 752; People v. Bacon (1971), 2 Ill. App.3d 324, 276 N.E.2d 782), and in the particularly damaging situation where an incriminating statement was made by a co-defendant. (People v. Tate (1964), 30 Ill.2d 400, 197 N.E.2d 26; People v. Tunstall (1959), 17 Ill.2d 160, 161 N.E.2d 300.) In the present case there is no reason to depart from the general rule. The statements were not long and repetitious, and this is not a close case factually.
• 3 Defendant also maintains that he was denied a fair trial when the police officer was permitted to testify that Hall had identified defendant as the person who did the shooting. We reject the State's position that the statement was offered merely to show why the police officers conducted their investigation as they did. When Hall's testimony is considered as a whole it is apparent that his identification of defendant as the person who did the shooting was offered for its truth, and its admission was error. Nevertheless, since three other eyewitnesses positively identified defendant, the hearsay testimony was merely cumulative and its admission does not require reversal. People v. Canale (1972), 52 Ill.2d 107, 285 N.E.2d 133.
Defendant also contends that the trial court committed reversible error when it denied him the right to confront a State's witness with a prior inconsistent statement. After Pocasangre testified that he did not recall telling anyone that the man who shot him was bald, defense counsel sought to impeach him by asking if he recalled talking to defense counsel's investigator. The basis of the State's objection and the court's reason for sustaining the objection was that a negative answer would require the calling of the investigator as a witness. In exchange for the investigator's exemption from a witness exclusion order, defense counsel had assured the court that the investigator would not testify.
Exclusion of witnesses from the courtroom is a time honored practice. Nevertheless, it is within the sound discretion of the trial court to permit a witness to testify even though he has violated an order excluding witnesses. (People v. Farnsley (1973), 53 Ill.2d 537, 293 N.E.2d 600.) The exercise of that discretion will not be disturbed on review unless it can be shown that the party offering the witness was deprived of material testimony without his fault. People v. Bridgeforth (1972), 51 Ill.2d 52, 281 N.E.2d 617.
• 4 While defendant made no offer of proof as to what the investigator's testimony would have been, even if we were to assume that he would have testified that Pocasangre described his assailant as bald, defendant was not prejudiced by the exclusion of that testimony. Pocasangre did not describe or identify defendant at trial, and the prior statement would not have impeached Pocasangre. Nor could the statement serve to impeach the testimony of the three eyewitnesses who identified defendant as the assailant.
We next consider defendant's contention that various comments of the prosecutor during closing argument deprived him of a fair trial. Defendant argues that the prosecutor made improper references to his failure to testify, and that the prosecutor improperly accused defense counsel of conducting an odious cross-examination and of presenting a sham defense.
A prosecutor has wide latitude during closing argument and the trial court's determination as to the propriety of the argument will not be overturned on appeal absent a clear abuse of discretion. (People v. Weatherspoon (1978), 63 Ill. App.3d 315, 379 N.E.2d 847.) Even where prosecutorial comments are improper the defendant must show a reasonable possibility that the questionable language, in light of all the evidence, was a material factor in his conviction. (People v. Nicholls (1969), 42 Ill.2d 91, 245 N.E.2d 771; People v. Shorter (1978), 59 Ill. App.3d 468, 375 N.E.2d 513.) The appropriate test for determining whether a prosecutorial remark violated defendant's right to remain silent ...