APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
515 N.E.2d 1323, 162 Ill. App. 3d 632, 114 Ill. Dec. 52 1987.IL.1719
Appeal from the Circuit Court of Adams County; the Hon. Robert W. Cook, Judge, presiding.
JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and LUND, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
After trial by jury in the circuit court of Adams County, defendant James Duane Crabtree was convicted of two counts of aggravated battery. Subsequently, he was sentenced to a single term of four years' imprisonment to run concurrently with a three-year sentence imposed for a prior felony. Defendant appeals contending (1) the circuit court erred by making prejudicial comments to him during trial; (2) the prosecutor's closing argument was improper; (3) the court erred in permitting a police officer to testify that the substance he saw on a boot worn by defendant was blood; and (4) the State's impeachment evidence of defendant's prior conviction of a felony was improperly admitted because defendant had not then been sentenced for that offense. Because of the impropriety in the comments made by the court, we reverse and remand for a new trial.
No contention is made that the evidence at trial did not support the verdict but the evidence was conflicting and the proof of guilt did not have the overwhelming weight necessary to negate the effect of substantial error. In the early evening of August 3, 1986, defendant and the alleged victim, Richard Baze, became involved in a barroom argument and left the tavern on foot. According to Baze, he and defendant crossed a street diagonally and stepped onto a sidewalk, and the next thing he remembered was awakening the next morning in a hospital with severe head and face injuries.
According to a State's witness, he saw the two men cross the street diagonally and Baze stepped up over the curb, whereupon the person accompanying Baze fell but righted himself and hit Baze, knocking him down. The witness testified that the other person then "jumped in [Baze's] face" and kicked him in the face. The witness stated that he did not see Baze hit that other person. The witness acknowledged he could not identify the person who beat Baze. On cross-examination the witness also testified he could not see what Baze's right arm was doing when the two men went over the curb. Defendant testified that he and Baze crossed the street diagonally, whereupon he started to run away, at which time Baze hit him in the jaw, causing him to slip. He said he gained his balance and hit Baze several times, causing blood to gush from Baze's face. Defendant denied jumping on Baze's face.
The comments giving rise to the reversible error occurred during the State's direct examination of a witness when the following colloquy between defendant and the court occurred in the presence of the jury:
"THE COURT: Just a minute, while he is testifying I don't want to see you smiling. I don't want to see you shaking your hand or your head. Do you understand, Mr. Crabtree?
MR. CRABTREE: Yes, your Honor.
THE COURT: If you disagree with something you can take the stand and testify yourself."
The defendant contends that the court's admonition that he cease making gestures prejudiced him in the eyes of the jury and very likely influenced the jury's verdict. He maintains that the court could have admonished him concerning this conduct in a less obtrusive manner by requesting that counsel approach the bench and there apprising defense counsel of the court's dissatisfaction with defendant's conduct. He further asserts that the comment that he could take the stand and testify himself infringed upon his privilege against self-incrimination in that it compelled him to testify.
The State asserts that where, as here, the defendant's own actions provoke allegedly prejudicial comments, the defendant has no right to complain. The State also contends that in view of what it terms the strong case against defendant, he was almost compelled to take the stand in his own defense and that any prejudice from the court's remarks thus "is clearly outweighed." The State also maintains that in saying defendant could testify, the court was merely stating a known fact. Furthermore, the State notes that the allegedly prejudicial comments were an isolated incident, and that the ...