The opinion of the court was delivered by: Justice Greiman
Appeal from the Circuit Court of Cook County. The Honorable Michael B. Bolan, Judge Presiding.
A jury found defendant Miguel Figueroa guilty of first degree murder and the trial court sentenced him to 80 years in prison. Defendant appeals, arguing that his conviction should be reversed because he was denied his right to present a defense when the trial court struck his testimony and denied his request after the parties had rested to allow his testimony. Defendant also claims the trial court made improper comments, the court allowed improper gang references, he was denied his right to exercise a peremptory challenge, the court failed to instruct the jury on his claim of self-defense, the court allowed improper hearsay testimony, the sentencing hearing was unfair, the sentence imposed was excessive, and the trial court erred in denying his motion to amend the record.
For the reasons that follow, we reverse and remand.
Defendant Miguel Figueroa and co-defendant Eduardo Estremera were indicted for first degree murder and armed robbery for the alleged shooting death and robbery of Dmitry Rabin. *fn1 They were simultaneously tried before separate juries. *fn2 We briefly summarize the essential testimony in defendant's case.
At trial, the State's key witness, Xavier Burbano, testified that he and Rabin arranged to meet Alex Ojea to purchase 10 pounds of marijuana for $10,500. On August 5, 1993, Rabin and Burbano drove to a car wash in Rabin's car. Ojea arrived in an Oldsmobile and two other men arrived in a van. When Burbano approached the van, the passenger pulled out a long revolver and told him to "[b]ack off." Burbano identified Estremera as the man with the gun. After Ojea spoke with the men in the van, the two men drove around the block, with Burbano, Rabin, and Ojea following. When they stopped, Estremera exited the van with the gun. Burbano told Estremera to put the gun away, and Estremera put it on the passenger's seat of the van. Burbano asked to see the marijuana, and Estremera insisted that he enter the van to look but Burbano was afraid. Estremera picked up the gun and indicated that he thought they were the police. The two men in the van then drove away. Burbano identified defendant as the van driver.
Burbano later received a phone call from Ojea, informing him that they wanted to try the exchange again. This time Burbano and Rabin brought a loaded sawed-off shotgun. The two men drove a small grey car rather than the van, and Rabin and Burbano followed them. When they stopped, Estremera checked Burbano for weapons and they agreed to exchange cars. Burbano would ride with defendant and Estremera would ride with Rabin. They drove around the block with Rabin and Estremera in the lead, defendant and Burbano following, and Ojea following last. At one point, Rabin exited his car to put the shotgun in the trunk. The procession eventually stopped and they all exited their cars.
Burbano approached Rabin and he started "back-peddling" and "his eyes got real wide." Burbano asked what the problem was and Rabin responded, "He has got a gun." Defendant was walking behind Burbano with a gun. Estremera started to walk around behind Rabin. One of the men said that they had better marijuana and Ojea displayed a bit of it. Rabin and Burbano told them that they wanted something better. Burbano told the men that he and Rabin did not have enough money. Defendant asked who had the money and Rabin acknowledged that he had it. Burbano stated that Estremera and defendant then "exchanged a look" and defendant raised the gun and shot at Rabin. As Burbano ran away, he heard several more shots. He looked back and saw Estremera standing behind Rabin shooting him in the back. Rabin was on his hands and knees in the street. Burbano saw Estremera shoot at Rabin twice.
On cross-examination, Burbano stated that when Ojea showed them the small piece of marijuana, Rabin said that it was not quality marijuana and Estremera indicated that he could get better. The situation was intense and they all were agitated.
Defendant testified in his own defense, admitting that he had one felony conviction and that he sold drugs for income in 1993. On August 5, 1993, he agreed to obtain 10 pounds of marijuana for Estremera. Defendant, Estremera, and Ojea, who was with Estremera, then drove to Diversey and Cicero, where defendant left the others to obtain the marijuana. When he returned, defendant and Estremera drove in defendant's van and Ojea drove his car to a car wash where Burbano was waiting. Estremera spoke with Ojea. Burbano walked toward the van and Estremera told him to stay away. Defendant indicated to Estremera that Burbano looked like a police officer. Estremera reentered the van and they drove away. Burbano entered Ojea's car and they followed the van. Defendant stopped the van. Estremera got out, pointed a .44-caliber handgun at Burbano and Ojea, and told them to quit following the van.
Later that day, they resumed the deal. This time defendant drove his wife's car. When defendant and Estremera arrived at the meeting place, Ojea told defendant to follow Rabin, which he did until Rabin pulled over. Estremera and Burbano exited their cars and, after a conversation, Estremera told defendant that he was going to ride with Rabin and Burbano would ride with defendant. When they arrived at Belden and Long, Rabin stopped and they all exited their cars. Defendant held his .44-caliber gun in his hand next to his leg and pointing toward the ground. He stated that the gun was for his protection. When Burbano told him the gun was not necessary, he put it in his waistband. Ojea said that he had seen a police car and left to investigate. Burbano told Rabin to hide something, and Rabin retrieved a shotgun from the front seat of his car which he placed in his trunk. Rabin and Estremera were talking very loud. As Ojea returned, they were getting louder and defendant was very nervous and scared. As the conversation got louder, defendant saw Rabin reach "like he was going for a gun." Defendant was scared and shot over the top of Rabin's car in the direction of Rabin.
Defendant heard more gunshots as he ran to his car. As he and Estremera attempted to flee the scene, he had to drive around the body in the street. Defendant heard a loud shot come out of his car and saw his .44-caliber gun in Estremera's hand. After they drove away, Estremera gave him his .44-caliber gun and a .25-caliber automatic. Defendant drove to a friend's house and called another friend to take the guns and the drugs. Defendant stated that he shot Rabin because he feared for his life. He did not plan to commit a murder or an armed robbery with Estremera. His sole intent was to sell marijuana.
On cross-examination, defendant stated that from January 1993 until August 1993 he made around $25,000 to $35,000 selling drugs. The testimony continued as follows:
"[By Assistant State's Attorney Adams:] Who did you buy the drugs from?
MS. LAMBERT [Defense Counsel]: Objection.
THE COURT: You have to answer it or we'll strike your testimony.
MS. LAMBERT: I beg your pardon.
THE COURT: He has to answer the question. He has no right to refuse to answer or I will strike his testimony. You talked to your client.
MS. LAMBERT: He has to disclose the name?
THE COURT: Absolutely. ...