The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Timothy Szwed, Judge Presiding.
Following a jury trial, Robert Averhart, was found guilty of possession of a controlled substance and found not guilty of possession of controlled substance with intent to deliver. The trial court sentenced defendant, a 36-year-old former Army sergeant with no criminal record, to probation for two years. On appeal, defendant contends that the trial court improperly restricted his cross-examination of the arresting officer regarding the officer's alleged beating of defendant during his previous arrest of the defendant. We reverse and remand for a new trial.
On January 6, 1995, 11 months before the arrest in this case, Officer Smith arrested defendant for possession of a controlled substance and, during the course of the arrest, both defendant and Officer Smith sustained injuries. As the result of that arrest defendant filed a complaint with the office of professional standards of the Chicago police department (OPS) against Officer Smith alleging physical abuse, verbal abuse, and false arrest. On June 20, 1995, the OPS complaint was found to be "not sustained." On October 3, 1995, defendant was found not guilty of the possession charge that had generated the OPS complaint. On December 14, 1995, defendant was arrested by Officer Smith a second time for possession of a controlled substance which is the subject matter of this case.
Before trial, the State made a motion in limine to bar the defendant from cross-examining Officer Smith about circumstances surrounding Smith's previous arrest of defendant and from introducing into evidence the fact that defendant was found not guilty of charges from that arrest. The court granted the motion in limine and barred the defense from cross-examining Officer Smith about allegations that on January 6, 1995, he beat, kicked, verbally abused and falsely arrested the defendant. The court ordered the defense to refer to the prior arrest as an "encounter" and prohibited defense counsel from presenting to the jury the factual basis for the OPS complaint. The trial court limited cross-examination regarding the prior abuse by only allowing the defense to elicit the fact that an OPS complaint was filed and requiring the defense to use the words"serious charges" when referring to that fact. The court ruled that if the defendant introduced the fact that "serious charges" had been made against Officer Smith by the defendant, then the State could introduce evidence that the complaint was not sustained by OPS. However, the defendant could not introduce evidence of the fact that he was found not guilty of possession of controlled substance from the earlier January 1995 arrest which had triggered the OPS complaint.B. Trial Testimony
Officer Smith testified that on December 14, 1995, he was working in a public housing tactical unit with Officer Parker. Dressed in plain clothes, the two officers performed a "building check" at 3651-53 South Federal Street visiting each floor in the 17-story building. At 8:30 p.m., while walking down the stairs, Officer Smith heard someone talking on the second-floor landing. Officer Smith motioned to Officer Parker, who was behind him, to stop. Officer Smith then proceeded to the third-floor landing and saw defendant on the second-floor landing. Officer Smith stated that the man talking to defendant gave defendant some money, and defendant gave him a small plastic bag containing something white. Defendant saw Officer Smith and ran. Officers Smith and Parker caught defendant about 100 feet outside the building. While Officer Parker handcuffed defendant, Officer Smith searched defendant, finding $10 and a plastic bag with 18 smaller packets. The smaller packets contained 1.39 grams of cocaine.
On cross-examination, Officer Smith admitted that when he arrested the defendant on December 14, 1995, he knew about allegations of a "serious nature" that defendant made against him previously to OPS. He explained that the allegations were false and did not anger him because such accusations were not unusual given his work as an undercover officer. Officer Smith acknowledged that, in a written statement to OPS regarding the instant case, he wrote that defendant was arrested while attempting to enter a vehicle; however, at trial he could not remember this fact. Officer Smith also testified that his police report contained an error because it indicated that the drug transaction took place in the hallway and not the stairway of the public housing building. On redirect, Officer Smith testified that he never feared his job was in jeopardy and he was never censured or reprimanded as the result of the OPS complaint.
Officer Parker testified that he was following Officer Smith down the stairs of the CHA building when Officer Smith signaled him to stop. Officer Parker did not hear anything. Officer Parker testified that he and Officer Smith began chasing defendant and another male, but were only able to apprehend the defendant. Once defendant was in custody, Officer Parker handcuffed him and Officer Smith searched him. Officer Parker observed Officer Smith retrieve a plastic bag and some money from defendant's jacket pocket. Officer Parker never observed Officer Smith remove anything from his own pocket.
On cross-examination, Officer Parker denied that defendant had been attempting to get into a vehicle before he was arrested. He admitted that he did not hear a noise on the stairway and did not see the drug transaction between defendant and the other individual. Officer Parker, however, admitted that a report he prepared for OPS following the arrest contradicted his trial testimony. The OPS report indicated in direct opposition to his trial testimony that Parker heard a noise in the stairway, that he saw the drug transaction, and that defendant was arrested while attempting to enter a vehicle. Officer Parker also acknowledged that the police report he prepared contradicted his trial testimony in that it stated the drug transaction occurred in the hallway and not the stairway.
Defendant testified that around 8 p.m. on December 14, 1995, the cab he was riding in was stopped at 39th Street and Indiana Avenue by Officers Smith and Parker, who were in an unmarked car and in full police uniform. Officer Smith stated that because defendant had filed an OPS complaint against him, he would search defendant himself. Officer Smith then "planted" the drugs on defendant and announced that he was going to put defendant in jail every time he saw him. Defendant contends that the trial court abused its discretion when it precluded cross-examination of Officer Smith about defendant's allegations that before the arrest in this case Officer Smith had physically beaten him during an earlier arrest in January 1995. It is defendant's theory that the prior unprovoked beating which triggered the OPS complaint was relevant to show Officer Smith's bias in this case and, as such, the trial court erred in restricting cross-examination.
The State argues that the trial court properly used its discretion in restricting defendant's cross-examination of Officer Smith and that defendant did not sustain any prejudice because the jury heard testimony that defendant filed an OPS complaint against Officer Smith of a "serious nature." The State acknowledged that the OPS complaint was relevant to the bias or motive of Officer Smith, but maintained that the specific conduct of which the officer was accused was so prejudicial as to outweigh its probative value.