Appeal from the Circuit Court of Cook County; the Hon. John J.
Crowley, Judge, presiding.
PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1) and was sentenced to 40 years' imprisonment. On appeal he assigns numerous errors to the trial proceedings and contends that (1) the trial court's admission of testimony about his arrest for an unrelated crime denied him due process; (2) the court erred in ruling that defendant could not testify about a conversation he had with a friend who allegedly told defendant about threats on defendant's life; (3) the trial court committed reversible error by restricting defense counsel's cross-examination of defendant's ex-girlfriend; (4) the State improperly commented about defendant's refusal to make a statement following his arrest; and (5) the State made improper comments during cross-examination and closing argument. For the reasons set forth below, we affirm.
On August 12, 1976, at about 11:45 p.m. defendant came to see his ex-girlfriend, Juanita Howard, who was visiting her sister on East Thirty-Seventh Street in Chicago. Ms. Howard, her niece Joanne Howard, Jonathan Davis, also a relative, and Edward Cole were returning from a restaurant in Davis' car. As they got out of the car they noticed defendant walking toward them carrying a gun. Defendant approached Ms. Howard, reached for her and stated that he wanted to talk. When she pulled away defendant drew his gun, pointed it at Cole and said that if he could not have her, no one would. He fired two gun shots from a .45-caliber pistol and fatally wounded Cole in the left side of his chest. The bullet struck Cole's heart and lung and exited his body in the right middle back. Young reached for Ms. Howard again, said that he wanted to talk to her and then ran away.
Although a warrant was issued, defendant was not arrested until two years later, on December 12, 1978, at approximately 11:45 p.m. when he was apprehended after he was seen climbing out of the broken window of a factory in a commercial district in Chicago. During processing at the police station on the night of his arrest it was discovered that there was an outstanding warrant for defendant's arrest for the murder of Edward Cole.
Juanita Howard, the State's first trial witness, testified that she had known defendant for about two years and had lived with him for six months. Their relationship ended about six weeks prior to this incident. She said that Cole was unarmed when he was shot and that her sister's husband and Joanne Howard took Cole to the hospital that night. She stated under cross-examination that her mother disapproved of her relationship with Young and did not want her to see him. At the time of the shooting she had been dating Cole for about three weeks. She saw defendant three of four times after the shooting at various places, usually on the street but once at the home of defendant's brother. She went there after her brother informed her that defendant wanted to meet with her. She said she knew that the police were looking for defendant but did not tell them that she had seen him several times after the shooting.
Next to testify was Dr. Eupil Choi, an assistant Cook County medical examiner who specializes in forensic pathology. Choi performed the autopsy on Edward Cole. He said that Cole died as the result of a bullet wound in the chest with penetration in the heart and massive internal bleeding.
Defendant next filed a motion in limine requesting that the court exclude the testimony of Officer Warren Rylko, who arrested defendant in 1978. Rylko stated in an in camera conference that while he and another officer were patrolling a commercial area he saw defendant jump from a broken factory window. Rylko stopped the squad car, got out with the police dog and told Young to halt. Young began to run but then stopped. He was searched and taken to the thirteenth district police station. During processing it was discovered that there was an outstanding murder warrant for defendant's arrest.
The court ruled that Rylko could not testify about the type of neighborhood where the arrest took place nor could he mention that the businesses were closed. The court stated that "* * * If they made the observation, told him to stop — go ahead. They made the observation. They told him to stop. He ran. They got the dog. He stopped. They put him under arrest and they brought him back, found the warrant for the murder of Ed Cole. That's all. * * *" Defendant's motion for a mistrial was then denied.
The State next called Joanne Howard to testify. She stated that as she and the others got out of the car defendant approached them from the side of a building with a large gun. He told Cole that he wanted to talk to Juanita. Cole consented and said that he would not argue. When Juanita said that she did not want to talk, Young pointed the gun at Cole. Juanita walked toward defendant to convince him to put the gun down. Defendant fired a shot at Cole but missed him. He grabbed Juanita and she pulled away. Defendant fired again and the bullet entered Cole's chest. Joanne stated that defendant was the only person with a gun. After further testimony under cross-examination, redirect and re-cross-examination, the State rested its case. Defendant made a motion for a finding of not guilty, which was denied.
Prior to his testimony in rebuttal, defendant also made a motion to prohibit the State from introducing his prior convictions for armed robbery and rape. Denying the motion, the court reasoned that the convictions could be used because they occurred within the past 10 years. The court indicated that it would give the jury a limiting instruction as to the significance of the testimony.
Testifying in his own defense, defendant stated that he had lived with Juanita Howard but that her family disapproved of the relationship because he would not allow her to do what they wanted her to do. A few days before Cole's death, Juanita met him in a park and told him that Jonathan Davis, Joanne and Ed Cole "would do something" to him if he continued to see her. He further stated that on the night of the shooting at about 9:30 or 10 p.m. he was on his way to visit his friend, Larry Bausley. Davis, Cole and Joanne drove by, stopped the car to look at him and then drove on. Defendant continued walking and noticed that they were standing by the car as he approached. Defendant said that Davis approached him and that he "* * * asked me what I wanted to do. I told him that I just wanted to talk." Joanne Howard then reached into her purse and pulled out a gun. Cole reached into the car as though he was going under the front seat. Defendant testified that Joanne fired three shots and that defendant fired once into the ground. He saw that Cole held something in his hand which gleamed. Defendant backed away and fired a second shot which struck Cole in the chest. He said that he panicked and ran but that he would not have fired any shots that night if he had not been in fear of his life. He threw his gun in a garbage disposal. Defendant further stated that in 1971 he had pled guilty to two offenses of robbery and one rape.
On cross-examination, defendant stated that although he was not afraid of Juanita, Joanne, Cole or Jonathan Davis, Davis was a member of the Black Stone Ranger gang and that he and Joanne had shot at defendant at least four times in the past. Under further questioning defendant said that he was afraid and that he had a gun that night because he did not want to be hurt. Further testifying, defendant said that after he was arrested, assistant State's Attorney Thomas Dwyer introduced himself and read defendant his Miranda rights. Defendant stated that he did not discuss the incident with Dwyer and told him to take him back to his cell.
On redirect examination defendant testified that he had never seen the faces of the individuals who shot at him in the past although other people told him that Juanita Howard's family was involved.
Under re-cross-examination, defendant said he was not a member of a gang in 1976. At the close of his ...