Reversed and remanded.
Miss PRESIDING JUSTICE McGILLICUDDY delivered the opinion of the court:
A jury found Robert Triplett, the defendant, guilty of murdering his wife, Ruth Triplett. He was sentenced to the penitentiary for a term of 50 years. On appeal the defendant contends that he was denied a fair trial because the trial judge erred in: (1) allowing a witness to be designated as a court's witness and permitting impeachment of that witness on a collateral matter by use of a prior inconsistent statement; (2) failing to admonish and instruct the jury on the limited use of the prior statements; and (3) refusing to give an instruction on circumstantial evidence requested by the defendant.
Chesley Triplett, a son of the defendant and the victim, testified that he left his parents' home on the afternoon of October 1, 1977, and returned at approximately 3 a.m. the next morning. When he returned, he saw his
Joe Lee testified that he was married to defendant's niece. He stated that on October 2, 1977, between 7 and 8 a.m., his wife, who was not at home at the time, received a telephone call. Lee testified that he could not identify the caller. The prosecutor attempted to rehabilitate him on this point. Lee maintained that, although he had previously identified the caller as Robert Triplett, he did not know the identity of the caller.
The State requested that Lee be called as a court's witness because Lee's testimony had surprised the prosecutors. This request was allowed and the State questioned Lee about a conversation he had with certain Chicago Police Department investigators on October 4, 1977. Over objection, the following questioning occurred:
Investigator Robert Cornfield testified over objection that Joe Lee told him that the voice of the caller belonged to Robert Triplett and that he recognized the voice from having talked to Triplett on prior occasions.
Shaku Teas, a pathologist for the Institute of Forensic Medicine (Cook
Officer Moss of the Chicago Police Department testified that he arrived at the Triplett apartment at 5:30 a.m. on October 2, 1977. He secured the area until crime laboratory personnel arrived. Officer Thomas Ginnelly, a police laboratory technician, testified that he viewed the victim's body and observed no defense wounds. He also viewed the victim's bedroom and observed a large amount of blood and a fired bullet on the victim's bed. Another fired bullet was discovered lodged in the wall between the bedroom and closet. No firearms were recovered from the bedroom and no evidence of a struggle existed.
The defendant testified on his own behalf and stated that he and his wife argued on the evening of October 1, 1977, and that he left their home on several occasions that night to avoid continued argument. The defendant returned home at about 5 a.m. on October 2 and found his wife sitting on the bed. They began to argue again; and when the defendant indicated he was going to leave, his wife pulled out his gun. The defendant reached for his coat and swung it at the gun. The gun discharged into the wall. The defendant grabbed his wife and the gun discharged again into the wall. They struggled and fell onto the bed and the gun went off three or four more times after which the victim lay still. The defendant testified that he ran to the back door and found it locked. He then went to Chesley's room, woke Chesley and told Chesley to call the police and an ambulance. The defendant left the apartment and turned himself in at a police station two days later.
The defendant denied having a gun in his hand or in his belt when he entered Chesley's room. He also denied shooting his wife or threatening Chesley. He said the gun his wife used belonged to him and was kept in a dresser. On cross-examination, the defendant admitted that on October 2, 1977, he called the Lee residence but did not remember saying that he killed his wife.
• 1, 2 The defendant argues on appeal that he was denied a fair trial because Joe Lee was improperly made a court's witness in order to impeach him with a prior inconsistent statement.
• 3 A witness may be impeached by prior inconsistent statements only if his testimony is damaging to the examiner's case. The fact that the witness could have, but did not, testify about a fact which would have been favorable to the examiner's case, since the witness had made such a favorable statement out of court, is of no consequence. (McCormick, Evidence § 36, at 71-72 (2d ed. 1972.) For example, in People v. Johnson (1929), 333 Ill. 469, 165 N.E. 235, the court held that it was error to make an individual the court's witness to permit impeachment with a prior statement that the defendant had sold the witness a stolen radio when she testified that she bought the radio from someone else. It also was error to impeach a court's witness with a prior statement that the defendant admitted to the commission of burglaries when the witness did not testify to this fact on direct examination. People v. Chitwood.
The prejudice resulting from such impeachment was addressed in People v. Grigsby (1934), 357 Ill. 141, 191 N.E. 264. In that case, a woman was made a court's witness after her direct examination by the prosecutor became unsatisfactory. The prosecutor then was permitted to question the witness about a prior statement she had given that the defendant, who was charged with assault with intent to murder, had come to her home on the night of the shooting and told her he shot some people. The reviewing court held that the impeachment was improper since "the issue [was] not whether the defendant said `he had shot a couple of guys,' but whether he in fact shot them." 357 Ill. 141, 148, 191 N.E. 264, 267.) The court further stated that:
• 4 In the instant case, the prosecutor questioned Lee on direct examination regarding a telephone call he answered on the morning of October 2, 1977. Lee was unable to identify the caller. After an unsuccessful attempt to rehabilitate Lee, the prosecutor indicated during a sidebar that he was surprised with Lee's responses and had expected Lee to say he knew that the caller was the defendant. The court made Lee the court's witness and allowed the prosecutor's attempt to impeach Lee with a statement he had given certain police officers on October 4.
In addition to arguing that Lee should not have been impeached, the defendant contends, alternatively, that the impeachment technique utilized by the State was improper. The defendant recognizes the general rule that prior inconsistent statements, while not competent as substantive evidence, can be used for impeachment purposes to determine credibility. (See People v. Collins (1971), 49 Ill.2d 179, 274 N.E.2d 77; People v. Lucas (1978), 58 Ill.App.3d 541, 374 N.E.2d 884.) However, he contends that People v. Tunstall (1959), 17 Ill.2d 160, 161 N.E.2d 300, and its progeny (see, e.g., People v. McKee (1968), 39 Ill.2d 265, 235 N.E.2d 625; People v. Ellis (1976), 41 Ill.App.3d 377, 354 N.E.2d 369; People v. Kimbrough (1970), 131 Ill.App.2d 36, 266 N.E.2d 431), prohibit the use of a prior inconsistent statement to impeach a witness when the prior statement bears directly on the issue of defendant's guilt or innocence.
The Tunstall rule was eroded in People v. Tate (1964), 30 Ill.2d 400, 197 N.E.2d 26, where the court specifically held that it would not adhere to the broad rule announced in Tunstall. (30 Ill.2d 400, 403-04, 197 N.E.2d 26, 29.) In People v. Marino (1970), 44 Ill.2d 562, 256 N.E.2d 770, the court held
The defendant further argues alternatively that because the trial court failed to admonish the jury as to the limited purpose for which Lee's prior statement could be considered, prejudicial error was committed. We agree. The jury must be informed and instructed that the prior statement implicating the defendant must not be considered as substantive evidence. People v. Collins; People v. Tate; People v. Lawson; People v. Irons (1976), 39 Ill.App.3d 993, 350 N.E.2d 754.
• 5 We hold that error was committed when the State was allowed to impeach the court's witness with prior inconsistent statements implicating the defendant when there was no justification for impeaching the witness. Further, assuming Lee could have been impeached as a court's witness, error was also committed because the jury was never informed nor instructed that the statements could not be considered as substantive evidence. Since we do not find that other competent evidence overwhelmingly establishes defendant's guilt beyond a reasonable doubt, reversal is required, and the cause must be remanded for a new trial.
The defendant also contends that the trial court committed reversible error in rejecting a portion of his proffered jury instruction. Since the propriety of this instruction may arise on retrial, we will address this issue.
The trial judge refused to include the second paragraph of the defendant's instruction relative to circumstantial evidence:
This instruction was Illinois Pattern Jury Instruction — Criminal No. 3.02. The committee note on the use of this paragraph indicates that it "should be given only when the proof of guilty is entirely circumstantial"; and our courts have consistently applied that rule (see, e.g., People v. Brown (1974), 56 Ill.2d 312, 307 N.E.2d 356, rev'd on other grounds (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254; People v. Boose (1978), 65 Ill.App.3d 127,
The defendant argues that the trial court improperly relied on People v. Brooks (1972), 7 Ill.App.3d 767, 289 N.E.2d 207, in support of its rejection of the proffered instruction. We agree that Brooks is inapplicable because in that case the direct evidence of the defendant's guilt was the substantive testimony of two witnesses that the defendant had admitted his guilt to them. There was no admissible evidence of an admission in the instant case since the impeachment of Joe Lee was improper.
• 6 However, irrespective of the court's unjustified reliance on Brooks, the evidence presented in the instant case was not entirely circumstantial. Any statements made by the defendant are to be considered as direct evidence. (People v. Spataro (1978), 67 Ill.App.3d 69, 384 N.E.2d 553.) In Spataro the defendant was convicted of murdering his girlfriend. There were no witnesses to the shooting. The defendant had given two statements to the police and testified at trial in substantial conformance with the second statement. The defendant testified that the victim became upset when he prepared to leave her home. He stated that his gun accidentally discharged as he was removing it from his belt. The court held that the defendant's statements explaining how the incident occurred constituted direct evidence that justified the trial court's rejection of the second paragraph of the tendered instruction. Similarly, in the instant case the defendant testified as to the accidental nature of his wife's shooting which constituted direct evidence. Thus, the trial judge was correct in submitting the instruction to the jury without the second paragraph.
The defendant may have testified in the instant case because the State in error impeached the court's witness with prior inconsistent statements implicating the defendant. Therefore, if on retrial the defendant does not testify, undoubtedly all of the evidence would be circumstantial, and under these conditions the proffered instruction should be given.
For the reasons discussed in part I of this opinion, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.
Reversed and remanded.
McNAMARA and SIMON, JJ., concur.