Appeal from the Circuit Court of Cook County; the Hon. Arthur
A. Ellis, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant George Rogers was convicted of State charges of aggravated assault, unlawful use of a weapon, and failure to have a State firearm owner's identification card as well as two violations of the Municipal Code of the city of Chicago, discharging a weapon within the city limits and failure to register a deadly weapon with the city of Chicago. The trial court imposed concurrent sentences of 180 days in the Cook County Department of Corrections on the State violations. For the municipal violation two $500 fines were imposed, but the court then determined that the fines were satisfied by time served by defendant while awaiting trial. The record also indicates that defendant, who was out on bond at the time of sentencing, was permitted to remain on this bond pending appeal.
On appeal defendant contends (1) he was denied a fair trial by the State's intentional introduction of inadmissible and prejudicial rebuttal testimony; (2) the trial court unduly restricted defense counsel in her opening statement and in her cross-examination of a State witness; (3) prejudicial comment by the prosecution during final argument denied defendant a fair trial.
We reverse and remand for a new trial.
The following pertinent testimony was adduced at trial. Chicago police officer Robert McLin testified that at 9 p.m. on March 8, 1982, while off duty and out of uniform, he went outside of his Chicago apartment building at 6820 South Oglesby to start his car. A car was double parked in the street, blocking five or six cars in traffic, while defendant attempted to jump start a car at the curb. From inside his car McLin heard someone in one of the blocked cars ask defendant to move his car. Defendant swore at them and told them to go around him. McLin then heard a gunshot. He left his car and saw defendant fire two or three shots in the direction of the blocked cars. The defendant ran into McLin's building, and McLin pursued him. At the entrance McLin, who was holding his gun at his side, showed defendant his badge and said, "Police, stop." Defendant swore at McLin and ran into the hallway with a gun in his hand.
McLin again yelled at defendant to stop, identifying his office, but defendant continued running down the hall. Defendant then turned momentarily and pointed his weapon at McLin. McLin shot him as he started to run again, the bullet striking him in the back of his shoulder and knocking him to the ground. McLin then took defendant into custody and summoned the police. When they arrived, he gave them his gun as well as that of the defendant. At this time he observed the presence of a woman who had been outside with the defendant.
Officer Victor Raden testified that when he arrived on the scene McLin gave him his own gun as well as a five-shot revolver containing five spent cartridges. The defendant was not in possession of a firearm owner's identification card or a city gun registration. On cross-examination Raden testified that an investigation concerning the shooting was still was being conducted at the time of trial.
Wanda Flenoid, testifying for the defense, stated that she lived on the second floor at 6820 South Oglesby. At about 9 p.m. she was sitting in her car with the defendant. She got out of the car, taking along her gun from the glove compartment, and told defendant to warm up the car. However, when the car would not start she returned, placing the gun on the front seat, and flagged down a car for a jump start. Four or five cars became backed up and one of the drivers got out, swearing at the defendant and telling him to move the car. Defendant told him he was trying to get a jump. She then heard a shot from far away. Defendant told her to run and get down. She heard several shots around her, but did not see who fired them because she was on the ground.
Defendant asked her for her keys because he wanted to call the police. She gave them to him and subsequently went into the building herself. In the hallway she saw the defendant and a man who she subsequently learned was Officer McLin. She asked what they were doing, and McLin said the defendant had been shooting out front. He showed her his police badge and then told defendant, "I shouldn't have shot you, man, but you kept running." Flenoid identified the gun recovered from the defendant as her weapon. On cross-examination she denied ever talking to Officer McLin after the day of the incident.
Testifying in his own behalf, defendant gave substantially the same account as Wanda Flenoid of the events leading up to the first shot. He further testified that the driver who swore at him then began walking toward him, pulled out a gun, and shot at him. Defendant warned Wanda to move out of the way, took her gun from the car and shot into the air. The man then got back in his car, backed up, and drove away.
Defendant testified that he placed the gun in his pocket, got Wanda's apartment keys from her, and "walked fast" into her building. As he proceeded down the hall someone said, "Come here." He kept going, but was then shot. A man subsequently identified as Officer McLin approached and asked if he had a gun. Defendant told him it was in his coat pocket. McLin told him he should have come, also saying, "I don't know why I did that." Wanda came in and asked McLin who he was. McLin identified himself as a police officer.
Defendant denied that McLin ever told him to halt. He also denied turning and pointing his gun at the officer.
In rebuttal Officer McLin testified that the only person he saw with a gun was the defendant. He denied telling defendant he should not have shot him.
• 1 We first consider defendant's contention that his right to a fair trial was prejudiced by the State's improper introduction of hearsay evidence suggesting that he had beaten Wanda Flenoid and threatened to beat her again if she testified against him. Although the court ultimately struck the testimony and instructed the jury to disregard it, defendant contends ...