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April 15, 1994


Appeal from the Circuit Court of Lake County. No. 91-CF-1001. Honorable John R. Goshgarian, Judge, Presiding.

Released for Publication May 18, 1994.

PECCARELLI, Woodward, Quetsch

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Following a trial in the circuit court of Lake County, a jury found defendant, James Files, guilty of two counts of attempted murder (Ill. Rev. Stat. 1991, ch. 38, pars. 8-4(a), 9-1(a)(1) (now 720 ILCS 5/8-4(a), 5/9-1(a)(1) (West 1992))), two counts of aggravated discharge of a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 24-1.2(a)(2) (now codified, as amended, at 720 ILCS 5/24-1.2 (a)(2) (West 1992))), one count of aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.2(a) (now codified, as amended, at 720 ILCS 5/12-4.2(a) (West 1992))), and one count of armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A-2 (now 720 ILCS 5/33A-2 (West 1992))). The charges arose from defendant's involvement in a gun battle with two police officers. During the gun battle, one of the police officers, Detective David Ostertag (Ostertag), was shot and seriously wounded. The trial court sentenced defendant to 30 years' imprisonment for the attempted murder of Ostertag and 20 years' imprisonment, to be served consecutively, for the attempted murder of Ostertag's partner, Detective Gary Bitler (Bitler). The trial court did not impose sentences on defendant's other convictions.

On appeal, defendant contends that: (1) the trial court erred when it admitted evidence that a warrant was outstanding against him; (2) the trial court erred when it excluded evidence which was intended to rebut the State's motive evidence; and (3) this court should vacate his unsentenced convictions.

The relevant facts, gleaned from the testimony at trial, are as follows. At about 11:30 p.m. on May 1, 1991, two uniformed Round Lake Beach (RLB) police officers on routine patrol observed a van registered to defendant parked outside a self-storage unit. Upon investigation, the officers discovered defendant and another man, David Morley (Morley), in possession of a stolen Chevy Blazer inside the self-storage unit. Defendant told the RLB officers he did not have identification. When one of the officers patted defendant down and felt a wallet, defendant fled. The police were unable to apprehend defendant. The police arrested Morley and charged him with possession of a stolen vehicle.

On May 2, 1991, Patrick M. Mahoney (Mahoney), one of the officers who arrested Morley, accompanied Morley to court for a bond hearing on the possession of a stolen vehicle charge. During the hearing, in Morley's presence, Mahoney told the Judge that the police intended to obtain a warrant for defendant. Morley was released on bond. A warrant was subsequently issued for defendant's arrest for possession of a stolen vehicle.

On May 7, 1991, at approximately 3:45 p.m., RLB Detectives Bitler and Ostertag were riding in an unmarked squad car northbound on Rand Road. Ostertag was driving. As they drove by a gas station, Bitler saw defendant pumping gas into a grey Pontiac; Bitler told Ostertag. Bitler and Ostertag knew that defendant was wanted for possession of a stolen vehicle because on May 2, 1991, Officer Mahoney had shown them a picture of defendant and explained that defendant had fled the previous day. Bitler testified that on May 2, 1991, Mahoney had also told Bitler that Mahoney intended to get a warrant for defendant's arrest.

Ostertag turned the squad car around and drove back toward the gas station. As the squad car turned into the gas station driveway, defendant was at the pay booth and Ostertag saw and recognized Morley, who was sitting in the driver's seat of the Pontiac, which was facing the squad car. Ostertag had seen and spoken to Morley at the RLB police station on May 2, 1991, while Morley was in custody. Morley looked in the direction of the squad car and made eye contact with Ostertag. Morley then made a quick U-turn so the Pontiac was headed away from the squad car and drove to the pay booth. Defendant, who was walking away from the pay booth, looked in the direction of the squad car, "his eyes got big," he changed direction, and ran towards the Pontiac. Defendant jumped into the Pontiac which sped out of the gas station with Morley driving and defendant in the front passenger seat. The Pontiac failed to stop for a stop sign as it entered Rand Road heading north.

Ostertag drove the squad car in pursuit of the Pontiac. As the squad car exited the gas station, the officers activated a red flashing light which Ostertag placed on the dashboard, wig-wag lights (white flashing lights in the car's grill), and a siren. Bitler made a radio call for assistance on a statewide radio channel. The police pursued the Pontiac which was heading north on Rand Road at a high rate of speed. The police car stayed a few car lengths behind the Pontiac.

During the pursuit, Ostertag saw defendant reach from the front passenger seat into the rear seat area of the Pontiac. He saw defendant pull a "package" of some sort and a chrome-colored pistol into the front seat area.

As the cars approached an intersection, a marked Kildeer police department squad car heading south on Rand Road turned left into the intersection in the path of the speeding Pontiac. Jay Mills (Mills), the Kildeer police chief, was driving the Kildeer squad car which had side markings, a red flashing light permanently mounted on the dashboard, rear strobe lights, and a siren. Mills was in police uniform. Mills saw the Pontiac and the unmarked squad car pass through the intersection and realized they were the vehicles involved in a police pursuit he had heard described in a radio message. Mills saw the flashing lights in the unmarked squad car and heard its siren. Mills turned his squad car around, activated its emergency lights and siren, and pursued the other two cars.

After the Pontiac had gone 200 to 300 yards past the intersection, it made an abrupt right turn off of Rand Road into a driveway, hit a tree, and came to a halt. Ostertag, who had stopped the unmarked squad car in Rand Road, saw defendant hold up a chrome semiautomatic pistol and begin to exit the Pontiac by way of the front passenger door. Ostertag yelled to Bitler that defendant had a gun and drove the squad car into the Pontiac's passenger door in order to prevent defendant from exiting the Pontiac with the gun. Defendant then began to slide across the front seat of the Pontiac. Ostertag did not know where Morley was at that time.

Ostertag exited the squad car in a crouch. He had not yet drawn his gun. When Ostertag looked up, he saw Morley with his arms extended over the Pontiac pointing a blue steel semiautomatic pistol at Ostertag. Morley fired one shot which hit Ostertag in the chest.

After he was shot, Ostertag backed up towards the rear of the squad car. He could see Morley and defendant who both had guns pointed at him and who both were firing at him. As Ostertag got near the rear bumper of the squad car, Bitler fired a shot in the direction of Morley and defendant. Morley and defendant then both pointed their weapons at Bitler and began firing at Bitler. After both officers returned fire, Morley and defendant fled from the scene on foot. All of the shooting occurred within a period of about 25 seconds. Ostertag then collapsed to the ground and was subsequently taken to a hospital where he received treatment, including surgery, for his gunshot wound. Numerous law enforcement personnel arrived at the scene a short time after the shooting.

Law enforcement officers, aided by dogs, conducted a search for the shooters. Morley was soon found hiding in a culvert 200 to 300 yards from the scene of the shooting. About three hours later, officers found defendant virtually submerged in knee-deep water in a swamp. Later, searchers found a gun case containing an AKS 7.62 semiautomatic rifle and 29 rounds of ammunition about five feet from where defendant was found. Nearby, searchers also found a semiautomatic pistol with an empty magazine in its clip and an empty bullet chamber. Nine bullets were also found nearby. A search of the Pontiac driven by Morley revealed a canister containing 520 rounds of ammunition suitable for the automatic rifle.

On appeal, defendant first contends that the trial court erred when it admitted evidence that the warrant for possession of a stolen vehicle was outstanding against defendant. Defendant cites testimony by Ostertag and Bitler and a prosecutor's statement during closing argument. Defendant points to the following testimony by Bitler:

"Q. Directing your attention specifically to about 3:30 that afternoon, do you recall where you and Officer Ostertag were at that time?

A. Yes, we were traveling back to our police department in our car. Sergeant Ostertag was driving. I was a passenger. We were traveling northbound on Route 12 heading back; and at Plum Grove Road there was a Checker Gas Station there, and I observed the subject that Mr. Mahoney had said had escaped from him and that Mr. --or Officer Mahoney had gotten a warrant for possession of stolen auto standing at that gas station putting gas into a car."

Defendant also maintains that Ostertag testified that a warrant had been issued for defendant's arrest and cites a specific page of the appeal record. The relevant testimony by Ostertag at that location in the appeal record is as follows:

"A. As we were passing a Checker Gas Station located at the northeast corner of Rand Road and Plum Grove Road, Detective Bitler said that he saw a subject known to us as James Files in the gas station.

Q. Did you know who he was talking about?

A. Yes, I did.

Q. How did you know who he was ...

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