APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
529 N.E.2d 603, 174 Ill. App. 3d 1023, 124 Ill. Dec. 622 1988.IL.1238
Appeal from the Circuit Court of Cook County; the Hon. Earl E. Strayhorn, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Following a bench trial, defendant was convicted of murder and sentenced to 25 years in the custody of the Illinois Department of Corrections. He appeals, arguing that the trial court's imposition of sanctions in the form of prohibiting defense counsel from cross-examining the State's sole eyewitness or presenting rebuttal testimony regarding prior inconsistent statements made by that witness was reversible error.
Defendant was arrested on November 25, 1985, and charged with murder. His trial took place on two separate days, February 26, 1987, and March 30, 1987. On the first day of trial, prior to calling Osnaldo Noa as its first witness, the State moved for an order requiring the defense to produce its summary of a statement made by Noa. The State informed the court that prior to trial it had requested defense counsel to tender summaries of statements of defense witnesses. On the morning of trial, defense counsel advised the State that they had a summary of a statement by Noa, specifying that he was the State's witness. Defense counsel argued to the court that they believed the summary was protected by the work-product doctrine, and suggested that the court examine the summary in camera, determine what parts, if any, were work product, and release the remaining portions to the State. When the State did not object to this procedure, it was followed by the court. After looking over the summary the trial court found that it "need not be turned over" to the prosecution. During cross-examination, the trial Judge permitted defense counsel to ask Noa about statements he had made during the interviews contained in the summary.
Noa testified to the following: During the early morning hours of November 25, 1985, Enrique Cintron, the victim, and his uterine brother Hecktor Ortiz arrived at the Nevada Bar on Armitage Avenue in Chicago, where Noa was a bartender. They ordered a few beers and played music on the jukebox. Defendant and two companions were also at the Nevada Bar, playing pool. At about 12:30 a.m., an argument developed between defendant and the two brothers, and they began fighting. After Noa asked the three to leave they continued fighting outside the bar. Noa then called the police, who broke up the fight.
Approximately 40 minutes later the brothers returned to the bar, apologized to Noa and ordered more beers. Shortly thereafter defendant entered the bar, and Noa asked him to leave. As he was going towards the door, defendant asked the brothers to step outside with him. Other men followed the brothers as they walked out, and once they were outside three men jumped Ortiz and three others jumped Cintron. Noa locked the front door and, about five minutes later, he heard four shots, fired in rapid succession. After the shooting ended, Noa opened the door and saw that Cintron had been shot.
On the second day of trial the State called Ortiz as a witness, but did not request defense counsel to tender any investigative notes or summary from interviews with Ortiz as it had done with respect to Noa. On direct examination, Ortiz testified that after the three men jumped him, he tried to run across the street to a gas station, but when he was about halfway across the street, his assailants grabbed his jacket, causing him to turn and fall. Before he fell, he heard two or three shots; however, he did not know where those shots came from. When he fell down in the street, he was facing his brother and defendant; the other men had run away. Ortiz ran to the door of the bar, but it was locked. He then saw defendant raise both hands, aim, and shoot the victim, after which defendant ran down Armitage towards St. Louis Avenue.
Ortiz' testimony included a number of statements which were contrary to those he had given to defense counsel during pretrial interviews. First, Ortiz told defense counsel that his brother had instigated the first argument with defendant, but at trial he denied making this statement. Secondly, Ortiz told defense counsel that he was struggling with his three attackers as he ran across the street when he heard the first three shots; that he first heard police sirens while he was struggling with these men, and that the men ran away upon hearing the sirens; and that his brother's assailant ran up Armitage from St. Louis Avenue and shot his brother. At trial, however, Ortiz said that he did not hear sirens until after his brother was shot and that the other men ran away before they heard sirens. Ortiz also testified that the man who shot his brother was standing next to the victim the entire time and did not run up the street before he fired.
When defense counsel attempted to cross-examine Ortiz on these inconsistent statements the State objected.
"MR. O'CONNOR: Judge, we have not been tendered any summary of a statement.
THE COURT: Now, Mr. Wedoff, you are going to be in trouble if you have any kind of a statement from this witness that has been reduced to writing, that you have not tendered to the State.
MR. WEDOFF: There are notes regarding that conversation.
THE COURT: No. You are supposed to reduce it to writing, and give it to the State.
MR. WEDOFF: No, your honor.
THE COURT: Then you will not be permitted to inquire any further into any conversation.
MS. PAPANDREAS: Your Honor.