People v. Howard (169 Ill. App. 3d 536, 1988)

JUSTICE MURRAY

delivered the opinion of the court:

This is an appeal by defendant, Stanley Howard (Howard), from a conviction after a jury trial of two counts of armed robbery and sentence of 28 years.

On November 5, 1984, Howard was indicted on two counts of armed robbery and one count of attempted murder. The charges arose out of a March 14, 1983, incident involving two Chicago police officers. The entire matter, including the attempted murder charge, was tried before a jury. The jury was not able to reach a verdict on the attempted murder charge and the State nol-prossed that charge. On January 9, 1986, the trial court sentenced Howard to 28 years on the two charges. A notice of appeal was filed on January 14, 1986. The appellant’s brief was filed on December 18, 1986. The appellee’s brief was filed on August 20,1987.

On appeal the defendant asserts that his conviction and sentence must be overturned because of three alleged errors. Howard first charges that the testimony of one witness was inadmissible evidence of other crimes. He next claims that the court’s failure to grant him a continuance to perfect his impeachment of a witness was prejudicial error. He finally contends that his sixth amendment right to confront witnesses was lost when testimony concerning what Michael West said was used against him.

We affirm the conviction and sentence for the following reasons.

The defendant was on trial for the armed robbery of two off-duty police officers, Margaret Hall and Robert Hanley. The first State witness was Donita Washington, who testified that Howard robbed her. The trial court permitted the testimony over defendant’s objection.

As a general rule of law, evidence of other crimes is not admissible in a criminal case because of the high risk of prejudice. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) As with other rules of evidence, there are exceptions to this general rule. Among these exceptions is that evidence of other crimes is admissible if the evidence tends to show motive, intent, identity, absence of mistake or modus operandi. (People v. Kokoraleis (1987), 154 Ill. App. 3d 519, 507 N.E.2d 146.) If the evidence tends to show motive, etc., it is admissible even if it may also hint at a propensity to commit crime. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) The State contends Washington’s testimony proved identification and modus operandi and that it was admissible as an exception to the general rule. Defendant argues that it was not.

Modus operandi means “a pattern of working” and refers to a pattern of criminal behavior so distinct that separate crimes can be recognized as the work of the same person. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292.) The crimes involved need not be identical but must, nevertheless, possess distinctive features. (Kimbrough, 138 Ill. App. 3d 481, 485 N.E.2d 1292.) Finally, a trial court’s decision on the issue of modus operandi will be overturned only where an abuse of discretion occurs. (People v. Martin (1979), 80 Ill. App. 3d 281, 399 N.E.2d 265.) Based on these settled rules, this court cannot overturn the trial court’s conclusion that the testimony of Washington was admissible.

The evidence discloses that Officers Hanley and Hall were robbed as they were sitting in their car at 109th and Western in Chicago. After threatening to rape Hall and driving Hanley and Hall to a different location and struggling with Hall, defendant fled. Several shots were exchanged by Hanley and defendant during the escape. The time of the event was about 1 a.m. on March 14, 1983. On that same morning a witness, Kevin McMahon, testified that he was parked at 109th and Western, heard some shots fired, saw defendant go to the car behind him, point a gun at him and drive away in a 1978 or 1979 Monte Carlo.

Hanley’s, Hall’s and McMahon’s descriptions of their assailant was similar to Washington’s. Washington testified that she was robbed on March 13, 1983. She testified that she and her son were walking to their home on South Elizabeth. Defendant walked up to her with a gun as she got out of the car. He threatened to rape Washington. He drove her and her son to her mother’s apartment and took other things. He took Washington’s keys and drove off in her car with license plate No. ER 3042. Her car was a 1979 Monte Carlo.

The gun used in both situations was a small handgun. The description of the offender’s gun was similar, the offender in both cases threatened to rape the victims, and the offender used the same type of vehicle as in the March 13 and 14 robberies. These similarities were sufficient to sustain the trial court’s denial of the defendant’s motion in limine and later use of evidence with the instruction to consider the evidence only on the issue of defendant’s identification, purpose and design.

In his second point, defendant argues that if the testimony of Washington was admissible, he was denied a fair trial because the trial court denied him a continuance to secure a witness that could impeach Washington. Washington testified at trial that she would never forget the face of the man who stuck a gun at her side and identified defendant as the man who robbed her in a police lineup held on November 2, 1984. A police report indicated that at no time did Washington see her assailant’s face. The defense counsel moved for a continuance which the trial court denied.

The granting or denying of a continuance to obtain evidence is within the discretion of the trial court. (People v. Allgauer (1969), 114 Ill. App. 2d 405, 252 N.E.2d 671.) When reviewing the exercise of the trial court’s discretion in that regard, an appellate court must determine whether defendant acted diligently to obtain the evidence and whether the evidence would be material and might affect the outcome. People v. Tillman (1980), 82 Ill. App. 3d 430, 402 N.E.2d 825.

Finally, the court must determine whether defendant has been prejudiced in his right to a fair trial. (People v. Robinson (1973), 13 Ill. App. 3d 506, 510, 301 N.E.2d 55.) Weighing these factors, we cannot say that the trial court abused its discretion in denying the continuance: (1) the testimony was alleged impeaching testimony; (2) the defendant knew that Washington would testify, so her testimony was no surprise to defendant; (3) it does not appear that defendant acted diligently to get the absent witness’ impeaching testimony; (4) the witness was unavailable; (5) it does not appear that the impeaching testimony would have affected the outcome of the trial. Accordingly, this court cannot say the trial court abused its discretion in denying a continuance to enable Howard to obtain the alleged absent impeaching witness.

As his final point, defendant argues that Michael West’s testimony was used against him in violation of his constitutional right to confront and cross-examine witnesses. This final contention lacks substantive merit.

At trial a detective testified he began looking for Howard after conversations with an informant. During an interview, a detective told Howard about the information, following which Howard admitted the crimes.

Defendant Howard testified in his own defense. On cross-examination it was established that defendant knew West. West’s sister is the mother of defendant’s son. On rebuttal, Detective McWeeny testified that the informant he used was West. The court denied defendant’s request for a continuance to procure West to testify. The court did strike the testimony of West from the record and admonished the jury to disregard all questions and statements by the People which incorporated alleged statements of West.

Although it was error for the State to suggest statements made by West, the error does not rise to the level of reversible error in this case. An instruction to disregard evidence ordinarily cures error in its admission. (People v. Lindsay (1978), 67 Ill. App. 3d 638, 384 N.E.2d 793.) Defendant has suggested no reason why the trial court’s striking of the tainted testimony and instruction to the jury to ignore did not cure the error in admitting the testimony. In the case cited by defendant on this point (People v. Campbell (1983), 115 Ill. App. 3d 631, 450 N.E.2d 1318), a new trial was ordered because the prosecutors defied the court’s instruction in their final argument informing the jury that the absent witness implicated the defendant. That did not occur in this case.

The record reveals that, contrary to the argument of the defendant, he was given a fair trial and the asserted errors were at best harmless and did not deprive him of a fair trial.

Accordingly, defendant’s conviction and sentence is affirmed.

LORENZ, P.J., concurs.

Nolle prossed is a term now used by attorneys to denote the common law term of nol-pros, meaning “we do not prosecute.”

JUSTICE PINCHAM,

dissenting:

I dissent. The defendant was flagrantly denied a fair trial and the jury’s verdicts lack integrity and were irreparably tarnished by:

(1) the improper admission of evidence of the defendant’s commission of armed robbery and kidnapping offenses upon Donita Washington, for which the defendant was not on trial;

(2) the trial court’s gross abuse of discretion in denying the defendant, who was in custody, a continuance to produce a police officer to testify in accordance with her police report that Donita Washington stated to her that she never saw the offender’s face, contrary to and to impeach Donita Washington’s trial identification testimony that it was the defendant who robbed her and that she would never forget his face;

(3) the improper admission of

(a) the voluminous testimony that the officers arrested the defendant for the Margaret Hall-Robert Hanley offenses and the Donita Washington offenses based upon information from an informant;

(b) the defendant’s cross-examination testimony that he did not admit to Michael West, his friend and the brother of his girlfriend, who was the mother of his child, that he committed the Hall-Hanley or Washington offenses; and

(c) the State’s rebuttal testimony by the investigating officer that Michael West was the informant who told the officer that the defendant had confided to him that he committed the offenses;

(4) the trial court’s gross abuse of its discretion in denying the defendant a continuance to produce Michael West as a witness, who would deny that he told the officers that the defendant admitted to him that he committed the offenses; and

(5) the violation of the defendant’s constitutional right to confront and cross-examine witnesses.

I have previously set forth my views and interpretations of the legal principles which govern the admission of evidence of a defendant’s commission of offenses for which the defendant is not on trial in my dissenting opinions in People v. Hayes (1988), 168 Ill. App. 3d 816, People v. Partin (1987), 156 Ill. App. 3d 365, 374-94, 509 N.E.2d 662, and People v. Harris (1986), 147 Ill. App. 3d 891, 896-909, 409 N.E.2d 621. I therefore will not repeat those principles here. These legal principles did not authorize and indeed prohibited the admission of evidence of the defendant’s commission of the Donita Washington offenses at the defendant’s trial for the Margaret Hall and Robert Hanley offenses. The admission of this evidence and the prosecutors’ opening statement and extended closing arguments to the jury thereon were clearly erroneous, prejudicial, denied the defendant a fair trial and grievously impugned the integrity of the jury’s guilty verdicts.

The defendant was charged with and was on trial for armed robbery of Margaret Hall and Robert Hanley and attempted murder of Robert Hanley on March 14, 1983. In a separate indictment the defendant was charged with armed robbery and aggravated kidnapping of Donita Washington on March 13, 1983. The defendant’s attorney presented a pretrial motion in limine to exclude evidence of the defendant’s commission of the Donita Washington offenses. During the hearing on said motion the prosecutor stated, “[H]e is charged in a separate indictment with armed robbery of Donita Washington, that being a separate case.” The prosecutor admitted, “Legally, I don’t think that we can join them [in one trial].” Moreover, the prosecutor was unable to articulate a legal basis for the admission of evidence of the defendant’s commission of the Donita Washington offenses. The prosecutor confessed:

“In this case, what we have is kind of a hybrid between identification and modus operandi ***.

In this case, the probative value of the testimony that we would have, that Donita Washington was armed-robbed about— it would be an hour prior to the incident in this case, that she was with the defendant for a long period of time, that the defendant used a gun, that the defendant said some things to her during the course of the armed robbery which were similar to things that were stated to Lieutenant Hanley and Margaret Hall, help to establish the identification and the modus operandi, although the modus operandi is not the crucial part here.” (Emphasis added.)

From the prosecutor’s foregoing trial court statements, it is clear — from the majority’s language that “the State contends Washington’s testimony proved identification and modus operandi” (169 Ill. App. 3d at 538) — that the State has shifted positions before this court.

The trial court overruled the defendant’s pretrial in limine motion. In doing so the trial court completely ignored the following mandate of this court in People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667:

“Modus operandi means, literally, ‘method of working,’ and refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer. ***

*** In arguing that the rapes share a modus operandi, the State lists approximately 19 similarities among the crimes. Some of the purported similarities are irrelevant coincidences *** and others are merely descriptive of the crime of rape ***. While a showing of modus operandi does not require that the similarities be unique to the offenses being compared, there must be ‘some distinctive features that are not common to most offenses of that type.’ [Citation.] In the case at bar, the State has simply failed to make the ‘strong and persuasive showing of similarity’ required to demonstrate modus operandi. [Citation.] The State’s lengthy list of purported similarities does not establish that the three alleged rapes were ‘so nearly identical in method as to earmark them as the handiwork of the accused.’ ” (Emphasis added.) 106 Ill. App. 3d at 999-1000.

Evidence of modus operandi is admissible only if such evidence establishes a “pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer.” (106 Ill. App. 3d at 999.) Evidence of mere nondistinct similarities in the commission of separate offenses is not admissible to establish the identity of the perpetrator of the separate offenses. Yet the trial court, in denying the defendant’s in limine motion to exclude evidence of the commission of the offenses against Bonita Washington on March 13, 1983, at the defendant’s trial for commission of the HallHanley offenses on March 14,1983, erroneously ruled:

“I think the similarity between the — based on the offer of proof in the case on trial and the facts surrounding the circumstances of the robbery of the woman [Bonita Washington] in question where the case was taken, are similar, extremely similar in both method of operation, space, and time, and it goes definitely to show identification. And for that reason I feel it is probative and I am going to allow them to go into it. Your motion in limine is denied.” (Emphasis added.)

The trial court further disclosed and relied on the erroneous concept that evidence of the commission of a crime for which the defendant was not on trial was admissible simply because of similarities to the offense for which the defendant was on trial. The trial judge repeatedly stated to the prosecutor: “I want you to confíne yourself to those aspects that are similar to the method of operation in the case that he is on trial”; “I don’t want you going into areas that are not similar to the case that he is on trial for”; “The purpose of the sidebar is to make sure you don’t go into any areas that are not similar to the case that he is on trial for”; “I just want you to stay away from areas [in the offenses against Donita Washington] that are not similar to what you suspect the case in chief to show, as far as the victims, Hanley and Margaret Hall are concerned”; and “I caution you to try to limit yourself only to those areas that you expect to be similar ***.”

The prosecutor devoted much of his opening statement to the jury to the March 13 Donita Washington offenses. After stating to the jury that the defendant was charged with the crimes of attempted murder and armed robbery of Robert Hanley, a lieutenant of the Chicago police department, and armed robbery of Margaret Hall, an officer of the Chicago police department, the prosecutor promptly told the jury:

“You will hear testimony from a person by the name of Donita Washington. Donita Washington is a woman who, on the date of March 13th, 1983, was out during the course of the day. Later on in the evening, this being a Sunday, she went over to her mom’s house and she picked up her little boy. Donita Washington picked up her boy and brought him home to the house where they lived at 86th and Elizabeth.

Now, Donita — you will get an opportunity to see her. She is a working woman, she’s got goals, she’s trying to make something of her life. And you will hear what happened to her on that day.

* * *

On that day, March 13th, 1984, [sic] at about 11:00 o’clock-1983, at about 11:00 o’clock, when Donita Washington was returning to her house at 86th and Elizabeth with her child, this defendant appeared in her life.

He came up to her, held a gun at her, told her that he was going to rob her. And then again, about an hour or so of terror for her, where he took her money, he took her jewelry, made her go to her house, took things from there, and he wasn’t satisfied. He did other things to her. You will hear about them.

Made her go to her mom’s house to get more money, and finally brought her back to her house where he ransacked the house and left her there with her boy, he took the keys to her car and drove off.

And he left that area of 86th and Elizabeth, here on the south side, and drove around.”

The prosecutor then narrated to the jury what he expected the evidence to establish regarding the defendant’s commission of the March 14 armed robbery and attempted murder offenses against Chicago police officers Margaret Hall and Robert Hanley. But Donita Washington was the first trial witness to be called by the prosecutor to testify before the jury.

In minute detail, Washington testified about her robbery. She related that on the early evening hours of March 13 she attended a political fund-raising function for Mayor Washington, during which time her son was at her mother’s home; she left the political function between 10 and 10:15 p.m., went to her mother’s house, picked up her son, dropped off a girlfriend at 81st and Ellis Avenue and went to her home in the 8600 block on south Elizabeth. She parked midway in the block. She and her son exited the car and started walking toward her residence. A man with a gun walked up to her and forced her and her son back into the car. The man frisked her and took her jewelry, watch and money. The man threatened to rape her and Washington pleaded to him not to do so, particularly in the presence of her child. She told the robber that he could go to her mother’s house for more money. She gave the robber her mother’s address and they drove there. The robber held the gun in Washington’s back and they went to the door of Washington’s mother’s residence. The robber told Washington to tell her mother that he was Washington’s friend and that he had a stolen 25-inch color television set that Washington wanted to purchase for $200. Washington’s mother came to the door, saw her and the man standing there, would not completely open the door but only partially opened it with the chain on. Washington asked her mother for money and told her what it was for. Washington’s mother gave her $30, which Washington gave the man. The man drove Washington and her son back to Washington’s apartment. They entered the apartment and the man took additional jewelry and a new grey tweed coat. The robber made Washington give him both keys to her car and her driver’s license and he left. Washington related that she viewed many pictures and several lineups and that on November 2, 1984, she picked the defendant out of a lineup as the person who robbed her on March 13, 1983, 20 months after the robbery. Washington also identified in court the defendant as the robbery offender.

As Donita Washington concluded her direct-examination, she was finally asked by the prosecutor, and she dramatically answered:

“Q. I just want to ask you one more question?

A. Sure.

Q. Did you have a good opportunity to observe the person that robbed you in the street that day?

A. Well, yes, I did.

Q. Will you ever forget that man’s face?

A. No, I can never forget someone who sticks a gun in my side.

[Assistant State’s Attorney]: Your witness.”

On cross-examination, Donita Washington testified that after the robbery two policewomen came, she told them what had happened, and the officers made a report. She further testified on cross-examination:

“Q. Did you ever tell them that at no point were you allowed to see the offender’s face?

A. No, I did not.

Q. You never said that to them?

A. Not that I recall, no.

Q. Well, are you having some doubt about saying that?

A. No, I have no doubt at all. If someone sticks a gun in my side, I can remember exactly who it is.

* * *

Q. Now, after you — after this occurred, these officers, these police officers, these women who were present — what did you do then?

A. I finished giving them the report.

Q. Okay. And did they write that report down?

A. As far as I know, they did, yes.

Q. Okay. And did you ever say to them that you would have any doubt about identifying this person?

A. No, I would never have a doubt identifying him.”

When Donita Washington concluded her testimony, the defendant’s attorney immediately informed the trial court:

“I am taken by total surprise. I have police reports tendered to me by the State. And one of the statements is what I asked her: At no point in time was the victim allowed to see the offender’s face.

THE COURT: Sure. You laid a foundation for that. You can perfect it by calling the policeman.

[Defense Attorney]: Right. But first of all I would like the State to bring these officers in, and I would like to have this woman kept available so that I can also, after having the police officers testify, make sure that these are the police officers that she talked to.

THE COURT: *** That is the beat report on her incident.

[Defense Attorney]: Yes.

* * *

THE COURT: *** She will be available if need be, and I am sure they will bring the police man in, so you can talk to them.

[Assistant State’s Attorney]: *** [TJhere is a one-sentence statement in there that says that at no point in time was the victim allowed to see the offender's face. Of some policeman’s interpretation, I don’t think there’s been a basis laid to impeach with any officer. He asked her one blunt out question.

THE COURT: Well, she said she saw his face, no question about it. His foundation was, didn’t you tell the police that at no time did you see his face? And she said no. That is the foundation. He tried to ascertain who those policemen were. He did ascertain it was during the course of an interview at her house. All right. He’s laid the best foundation for impeachment. Now, he’s got to perfect it. He’s under an obligation to perfect it, because the jury heard it, so there are two ways to do it. We could force you to subpoena the policeman in, or we can expedite the matter and bring them in. He has the right to call the policeman in the report. *** That took the report ***. My question to you is rather than split hairs, will you make them available?

[Assistant State’s Attorney]: The women, I suppose.

* * *

THE COURT: Will you try to make them available?

[Assistant State’s Attorney]: What if we can’t?

THE COURT: If you can’t, you can’t.

* * *

She denied that she made the statement, so you perfect the impeachment with the officer. Either the officer is going to say she told me that, or I thought she told me that — I don’t know what he is going to say. You [defense attorney] have an obligation to perfect it. *** You [assistant State’s Attorney] have an obligation to bring them in.

[Assistant State’s Attorney]: I will bring them in.”

Chicago police officer Margaret Hall was then called as a State’s witness. She testified that she and Chicago police Lieutenant Robert Hanley, at about 1 a.m. on March 14, 1983, while sitting in an automobile at 109th Street and Western Avenue in Chicago, were robbed by a black male, who also threatened to rape Hall, and who drove Hall and Hanley to another location, where a struggle ensued between the robber and Hanley. The robber fled and shots were exchanged between Hanley and the robber. During the period immediately following, Hall viewed several lineups but did not identify the robber. Twenty months later, on November 2, 1984, she viewed a lineup and identified the defendant as the robber.

At the conclusion of Margaret Hall’s testimony, the defense attorney made a motion for a mistrial, stating:

“Your Honor, at this time I am going to make a motion for a mistrial. Certainly an offer of proof was made by the State’s Attorney as to what Donita Washington’s testimony would be, as toward Margaret Hall and the other armed robbery. Certain elements were stated that it was going to be proved that this was a modus operandi that was similar to this crime. You have now heard testimony from both Donita Washington and Margaret Hall. The only thing similar seems to be the identification of the defendant. There seems to be nothing else similar, not conversation, not what occurred, not the facts of the same gun.

* * *

*** [T]here is nothing in Donita Washington’s testimony that would show that the same person committed the same crime by modus operandi, not by identification, which is what the State said. The State said we are going to show Donita Washington’s testimony not only for identification but more for modus operandi. That is not true.”

The trial court ruled that the defendant’s mistrial motion was premature inasmuch as the State had not presented all its evidence. Thereupon, Chicago police department Lieutenant Robert Hanley was called as a State’s witness. His testimony was substantially the same as the testimony of Margaret Hall. Kevin McMahon then testified on behalf of the State that as he sat in his parked car at 109th and Western Avenue on the morning of March 14, 1983, he heard shots, saw a man enter a 1978 or 1979 Monte Carlo automobile parked behind him and drive away, after the man had fired a shot at him. Oddly, McMahon at no time during the 20 months the police investigated the robberies before the defendant’s arrest and at no time during the 13 months after the defendant’s arrest and before the defendant’s trial viewed a lineup or pictures. McMahon identified the defendant for the first time in court on the date he testified, December 10, 1985, as the person he had seen during the early morning hours of March 14, 1983, two years and eight months previously.

The defense attorney renewed his motion for a mistrial and urged, “We have absolutely no contact with the modus operandi which the State said they were going to tie up. *** [T]he testimony of Donita Washington has been prejudicial, that it hasn’t been tied up *** the prejudicial effect has been to deny the defendant a fair trial. I don’t see any modus operandi from the testimony of Donita Washington from the proffer of proof made by [the prosecutor], that’s tied up by any of these witnesses that have testified today.” The trial court asked the prosecutor to respond to the defense attorney’s mistrial motion and statements in support thereof. The prosecutor again vacillated and abruptly deviated from his previous positions. He responded:

“Judge, all I keep hearing is argument about modus operandi. That is not why we introduced it. We introduced it as a hybrid situation, similarity of this man’s identification, and one armed robbery to another. He [the defense attorney] can argue modus operandi all he wants, but that is not what we said. *** I don’t care if counsel can’t see the tie-up. I hope the jury can, and that is what we rest on.” (Emphasis added.)

The defense attorney replied:

“Now that he has not proved the connection, he wishes to withdraw it and to try and say, well, it was just a hybrid. There is no such thing as a hybrid in this law. *** When [the assistant State’s Attorney] made that proffer of proof he said it was an M.O. and we are going to say that they frequented these places. That was their word. He was committing this crime in the same operation, and there is nothing in the crime of Donita Washington that has anything to do with Margaret Hall, that has anything to do with Hanley, that has anything to do with Mr. McMahon. They are two totally separate incidents. The fact that the State says they were committed by the same person does not by and of itself show that they can use that testimony against the defendant. I think that they have used it, that they have made fast and loose — that they have in their desire to get a conviction, have used this testimony when they knew that there was no M.O. they knew these armed robberies were separate and distinct.” (Emphasis added.)

The trial court did not, and indeed the trial court could not, predicate its overruling of the defendant’s mistrial motion on the legal premise that the State’s evidence to establish modus operandi established “a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer.” (People v. Barbour (1982), 106 Ill. App. 3d 993, 999-1000, 436 N.E.2d 667.) Instead the trial court overruled the defendant’s mistrial motion simply because the crimes were similar. This was an erroneous ruling and it was based upon an improper ground. The trial court stated and ruled:

“These two incidents were strikingly similar. *** There is no question in my mind that those incidents are strikingly similar, and the State can use it in their case in chief to establish identification or method of operation, or a combination thereof. *** And your motion for a mistrial is denied.”

The trial court’s reliance on simple similarities in the offenses was a new and novel basis for the admission of evidence of crimes for which an accused was not on trial. The majority’s reliance on the evidence of similarity of the guns and vehicles used in the offenses and that both female victims were threatened with rape as a basis for validating admission of the evidence of the offenses against Bonita Washington was ill founded. Bonita Washington testified that she was not familiar with guns and when asked if the gun used by the offender was a rifle or a shotgun, she merely responded, “No, it was just a small handgun.” Margaret Hall described the offender’s gun as a .22 calibre revolver and Chicago police Lieutenant Robert Hanley described the offender’s gun as a .22 calibre revolver. When asked, “Bid it have a long or short barrel?” Lieutenant Hanley answered:

“It was long hand gun, sir, Saturday Night Special.”

Conversely, Kevin McMahon described the weapon he observed in the offender’s hand as a small revolver, handgun. Regarding the “vehicles used in the offenses,” Officer Margaret Hall and Lieutenant Robert Hanley did not see or describe any vehicle used by the offender.

This inadmissible evidence of the commission of the offenses against Bonita Washington was unduly and heavily relied on by the prosecutors in their closing arguments to persuade the jury to convict the defendant of the Hall-Hanley offenses. The prosecutors argued to the jury:

“You have heard from Donita Washington, you heard from Kevin McMahon, you heard from Michael Hanley, you heard from Margaret Hall about what happened in their lives on March 13th and March 14th of 1983 ***. The evidence we presented to you we presented to you for one purpose, because we only have issue in here *** but it all boils down to one thing. You have to decide whether this is the man who on March 13th and 15th terrorized those four people or whether he didn’t and that is what it boils down to. You are here to decide that. *** I submit to you right now the evidence that you heard from that witness stand proves beyond a reasonable doubt that on March 13th and 14th he committed the armed robbery of Robert Hanley, committed the armed robbery of Margaret Hall and he attempted to kill Robert Hanley and he did it after he robbed and used the implements he gained from Donita Washington.

We presented you those four witnesses, Donita, Hanley, Hall and Kevin in the order in which things happened on that night. We did that for a purpose, because that is the time sequence, that is the time sequence that he did those things to those people.

Donita was first and Hanley and Hall and then Kevin saw what happened and later on he was arrested, months later by Maslanka and talked by McWeeny, listen to what Donita told you.

It is not a difficult case. You will see the picture of her car, that this is her car, she identified it and you will see the small decals, tiptoes she has hanging from the rear view mirror or the boxing gloves and you will see the license plate on there?

What did he do to Donita. He got her coat, he got the socks that he put on his hand, he got the car. And how did he do it? He patted her down, he got her money, he got her jewelry and when he wasn’t satisfied with that, then he wanted some sex from her because he didn’t have enough money and enough jewelry from her.

* * *

I mean, do you remember the way that Donita Washington said she picked that man out? She can’t have imagined things like that, Ladies and Gentlemen. You remember the way she . said ‘will never forget that man, what he did for me, I will never forget him, I didn’t need to see him walk around, I didn’t need him to say anything, I will never forget him.’ Do you think that sounds like it’s true? Do you think that sounds like it’s true? Do you think that is something that happened when a man terrorizes you, when a man tells you he is going to rape you while your son is in the car? Do you think that would be something that is burned in her mind? It sure is.

* * *

*** I want you to take Donita Washington’s testimony and then we Hanley, Hall and Kevin McMahon, pretend for a minute that Kevin McMahon and Margaret Hall and Robert Hanley didn’t see his face, they didn’t see his face. Pretend that for a minute and think about what we have. Think about what Donita Washington tells us about his description, about the coat, about the gloves, about her car and then think about what Hanley and Hall and Kevin tell us about his description, about his coat, about the car, about what he wants and the way he goes about getting what he wants. *** That is powerful evidence, Ladies and Gentlemen, without them seeing his face. You know it’s the same man.

* * *

Donita Washington, is she telling me the truth? Well, let’s weigh that on the scale of truthfulness. That weighs on that scale, that is what it’s here for, you decide whether a man that is convicted like that is a truthful person when he is compared to a person like Donita Washington and Kevin McMahon and Hanley and Maslanka and Hall and McWeeny?

* * *

He grabbed Donita Washington two blocks from his own house and I guess he didn’t have a car and he had to walk over there to grab her and he grabbed her there with her son in the middle of the night in the middle of the street and then he took her car and he took it a mile and a half away, two miles away and he did the same thing to different people a little bit away.

* * *

*** I believe you will all be convinced beyond a reasonable doubt that he is, in fact, the man that committed both the armed robbery of Hanley and Hall and he was the man that was seen by Kevin McMahon, that he was the man that did that with Donita Washington’s car ***.

* * *

It has to be a concerted effort to lie about him and if he is not guilty of this, then those people who paraded onto that witness stand and took that oath, Donita Washington, Kevin McMahon, Lt. Hanley, Dt. McWeeny, Margaret Hall, the Sergeant from Robbins, every one of those persons are the most evil, treacherous and devious people that you will ever meet, because if what they said is not true, each of them individually, then they all had to get together and conspire to get him.

* * *

What motive does Donita Washington have to come in here and say he is the fellow that did it? I will never forget it, he was with the fellow in my car for an hour, he is the guy that had my gray coat, he is the guy that had my car and told me in front of my ten year old son that I didn’t have enough money so he was going to rape me.

* * *

*** This is a once in a lifetime situation. Bonita was in this situation that was burned into her mind. It’s a situation where that face is a face she will never forget.

* * *

In a case like this, this once in a lifetime situation, the mind takes a mental picture and that period of time, that hour, that terrifying terrible hour she was with him is forever burned in her mind and it’s a mental impression that never goes away.

It is a time for her that is frozen in time. So if she is telling the truth that she had to have some motivation for telling you all these terrible things happened, she had to have some motivation to get together to conspire with these other people.

* * *

And if Counsel wants, fine, maybe Hanley and maybe Margaret Hall weren’t able to draw this picture as best they could. What about Bonita Washington, what about what she saw?

My goodness, she had a tremendous opportunity to see what happened. She is with the guy for an hour, she sees his face. Afterwards she sees a lineup, that is not him, that is not him, I see pictures, that is not him. Finally she sees this lineup, instantaneously that is the guy and there is a reason for that. *** Well, if you are in a situation where you are in a car with your son and a fellow that is sitting next to you has a gun, don’t you think that you never forget that image, you never forget that face, ever?

* * *

The evidence that you heard in this case was overwhelming, absolutely overwhelming. You had four different people who saw the person that did the crime, every one of them described him, ***.

* * *

In his opening statement Counsel made certain promises to you. He told you that in his opening statement that Bonita Washington looked at the composite the next day and said ‘that is him.’ Did you hear one iota of evidence that is what happened? She didn’t say that. She got up there and said no, that is I am not satisfied, that is not exactly right to me. She never said, ‘That is him.’

He also testified in opening statement you will hear from Donita Washington about her being armed robbed, but he is not charged with that crime. That is absolutely untrue as well. Stanley Howard is charged with that armed robbery of Donita Washington and he will be tried for it.

* * *

Skulking around in the middle of the night like a predator looking for prey, skulking around until he finds someone to arm rob, skulking around looking to pounce upon someone. You have an opportunity to tell him now ‘No more.’ You have an opportunity to tell the witnesses in this case who had the courage to come forward, to tell you what happened to them, you have an opportunity to tell Donita Washington, yeah, the law is on your side, the law works, the guy you said that did it, fine.” (Emphasis added.)

The majority concludes that the trial court’s instruction to the jury “to consider the evidence [of the commission of the offenses against Donita Washington] only on the issue of defendant’s identification, presence and design" (emphasis added) (169 Ill. App. 3d at 539) justified the admission of that evidence and the court’s denial of the defendant’s in limine motion to exclude it. The prosecutor never suggested that the evidence was presented to establish the defendant’s presence or design. Nevertheless, the trial court instructed the jury:

“Evidence has been received that defendant has been involved in a [sic] offense other than that charged in the indictment. This evidence has been received solely on the issue of defendant’s identification, presence, and design. This evidence may be considered by you only for the limited purpose for which it was received.” (Emphasis added.)

This instruction was incorrect, inapplicable and grossly inadequate to properly direct the jury on its use of the Donita Washington evidence even if it had been properly admitted, which it was not. People v. Lindgren (1980), 79 Ill. 2d 129; People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 272; People v. Tate (1982), 106 Ill. App. 3d 774, 436 N.E.2d 272; People v. Triplett (1981), 99 Ill. App. 3d 1077, 425 N.E.2d 1236; People v. Bucker (1974), 23 Ill. App. 3d 394, 319 N.E.2d 225.

The trial court clearly abused its discretion when it denied the defendant’s request for a continuance to enable him to produce the police officer to whom Donita Washington initially reported the crimes, to testify that Bonita Washington told the officer that she never saw the face of the offender who robbed her, to impeach Bonita Washington’s contrary testimony. At trial, Bonita Washington repeatedly testified that she clearly saw the offender. She described his height, weight and age. She testified further:

“Q. When that person walked up to you when you were on the street, did you look at him?

A. Yes. I did have the opportunity to see him then.

* * *

Q. Bid you see his face?

A. Yes.”

She testified that on November 2, 1984, 18 months after she was robbed, she went to a lineup and “immediately recognized that person that had robbed [her].” And that she did not “have any problem whatsoever [at the lineup] recognizing him,” the defendant in court, as the person who had robbed her, that she “would never forget his face” and that she “remembered exactly who it [was].”

The defense attorney stated that he was taken by surprise by Bonita Washington’s identification testimony of the defendant as her offender. He informed the court that he had a police report given him by the prosecutor which stated that Bonita Washington informed the reporting police officer that she never saw her offender’s face. Bonita Washington denied on cross-examination that she had told the reporting officer that she had not seen the offender’s face. The trial court properly ruled that defense counsel had laid a proper foundation to call the reporting officer. Pursuant to the trial court’s direction, the prosecutor assured the trial court and defense counsel that he would produce the reporting officer for the defense attorney to call as a witness to impeach Bonita Washington’s denial.

When the time arrived for the prosecutor to produce the reporting officers, only one of the two reporting officers was produced, but oddly enough, she did not write the report and she did not remember what Bonita Washington had told them. The reporting officer who wrote in the report that Bonita Washington had stated that she never saw the offender’s face was not produced. The extensive colloquy between the trial court and counsel on the reporting officer’s absence and the defense attorney’s request for a continuance to produce her clearly reveals and substantiates that the trial court abused its discretion in denying the defendant’s request for a continuance to produce the officer:

“THE COURT: I have just been advised that one of [defense attorney’s] witnesses, which is a police officer that wrote the original report relative to an incident involving a Mrs. Washington, one of the officers is present, where is the other officer, Mr. [Assistant State’s Attorney]?

[Assistant State’s Attorney]: The other officer is unavailable. She is on medical, we couldn’t track her down. When the Court said we could try to get both of them, we were successful in getting one, we located the unit she is in, she is in the interview room, she had been interviewed by Counsel.

THE COURT: During the course of the trial, [defense attorney], while questioning Mrs. Washington on cross examination, asked her if she did not, in fact, tell the original police officers, one of which is present, the other which is on the medical, both of which who authored a report. The officer who is present apparently did not actually write the report, her partner is the one on medical, however, Mr. Sherman asked Ms. Washington isn’t it a fact, based on the contents of that report, that Mrs. Washington told you that she couldn’t get a look at the man’s face. Mrs. Washington denied that, therefore [defense attorney] laid a foundation for impeachment and he is not attempting to perfect that impeachment.

He indicated to me, prior to this matter going on the record, that he had a conversation with the second officer, the one that did not actually write the report, but the one that was there, when the interview with Mrs. Washington took place and he indicated she doesn’t recall what was said. *** Mr. [Defense Attorney], you want a continuance because the other officer that is on the medical is not here.

[Defense Attorney]: *** Here is a case where all I know is I have a police report in my possession, a police report which is unequivocal that says that at no point in time was the victim allowed to see the offender’s face.

It’s the most damaging type of evidence in a personal identification that I can think of. Now I am saying to you that in talking to the Officer McCoy, who states to me that she did not author this report, that she does not remember the nature of the conversation, that she does not remember the victims saying that, that in order that, since you have allowed them to bring in the testimony of Donita Washington, in order for my client to get a fair trial, I must have Officer Walker come in to show that this woman, Donita Washington, did not get a look at the offender’s face and it is so critical, critical not because my client is on trial for the crime of Donita Washington, but as we said, other crimes which the Court allowed in.

*** I say to your Honor that in not allowing me to get a continuance to find this officer to impeach that witness is denying my client a fair trial in the most elementary, fundamental way.

THE COURT: All right. It’s not a question of whether or not the witness can be located. The officer that you seek to issue is on medical roll, I don’t know when she will be available here. We are on the final date of the jury trial, if you call the other officer that was present during the interview of Bonita Washington, I will afford you an extremely broad latitude in direct examination to ascertain whether or not that is what Ms. Washington said or whether she recalled what she said, but I am not — What is the prognosis of the other officer?

[Assistant State’s Attorney]: I don’t even know why she is on medical. You know when you call what happens.

THE COURT: On the medical roll. You have one of the officers, ***. I know it’s a problem for you and I realize that, but you do have one of the officers that was present. If the other officer was dead that wouldn’t, I couldn’t give you a continuance, now, could I?

[Defense Attorney]: Now, Judge, we understand if the other officer was dead—

THE COURT: I can only do what is possible and I am not going to continue this matter for that purpose, on that purpose only. You have the other officer and I will afford you an extremely broad latitude.

[Assistant State’s Attorney]: We are not stipulating to what is in there.

THE COURT: You interviewed the officer that is available, the officer that co-authored that report?

[Defense Attorney]: I have talked with her. *** She said she doesn’t remember the report, remember the conversation, she didn’t remember the victim saying to her, ‘at no point in time was the victim allowed to see the offender’s face.’

* * *

[Assistant State’s Attorney]: She didn’t interview the lady.

THE COURT: She co-authored the report.

[Assistant State’s Attorney]: Her name is on the report.

[Defense Attorney]: Your Honor, we are talking about fundamental fairness.

THE COURT: I know what you are talking about. You are also talking about the witness that is unavailable.

[Defense Attorney]: I don’t know why, I have no idea why she is unavailable other than they say she is on medical, but this is the most critical, I mean, we are not talking about something peripheral, I am not talking about something that is minor, I am talking about the thing that goes to the very issue, what this case is all about, identity.

Here is a woman that said on four different occasions ‘You never forget the face of a man that has a gun.’ Now I am showing you that there is a police report written by someone who is at the scene at the time.

THE COURT: All right. Will you stipulate?

[Assistant State’s Attorney]: No.

THE COURT: First of all, just a minute. If that officer is on the medical roll would testify, that she would testify that the statement was contained within her report?

[Assistant State’s Attorney]: No.

THE COURT: Okay. Based on what I have heard thus far, based on the fact that there is a jury in the jury room, based on the fact that the witness you seek is on medical roll and there is no showing, whatsoever, as to when she would be available or what she would testify to, based upon the fact that you have had knowledge in your possession for quite some time, your request for a continuance is denied..

[Defense Attorney]: Then I ask that you allow me, at least, a few minutes for me to try and find out where this officer is, that the fact that she is on medical maybe we can get her home phone number.

It seems to me, your Honor, the fact that there is a jury in the box is not the ultimate issue in this case. The ultimate issue in asking for a date is the Defendant’s right to a fair trial.

* * *

I am telling your Honor you are denying the Defendant a fair trial. This is so damaging, and you realize it yourself, this is a critical thing. We are now talking about the entire issue of this case, which is identification.

Here is a statement by a witness who totally impeaches what she says later. * * *

THE COURT: One further question, Mr. State’s Attorney. In the event that he doesn’t call the co-author of the report, are you going to move to strike that question and answer perfecting impeachment?

[Assistant State’s Attorney]: No, I won’t move.

THE COURT: I think that is very kind of you. All right, you can argue it, then. He is not going to strike it. You can argue she told the police, the police report indicates and she couldn’t see his face and I will afford you broad latitude in your direct examination.

[Defense Attorney]: Then we better put this woman on to the fact — Well, I want to put her on to say that she and the officer did author a report, that her name is on it, that she read it, that though she doesn’t remember the statements made, that this was made by her partner at the time of the event. This is her partner’s report and it has a statement in it, and you [assistant State’s Attorney] can argue to what Ms. Washington testified to.

[Assistant State’s Attorney]: Just on what the law is, Judge, on evidence, you can’t do that. It’s all hearsay. This is something that she is testifying off of on a police report. She didn’t author, she was not part of the conversation, she never heard those words spoken, she doesn’t have the ability to testify to this police report.

THE COURT: I agree. *** And I already ruled I am, not going to give you a continuance. Let me know when you are ready to proceed. I would like to proceed as soon as possible.” (Emphasis added.)

The trial court was not informed of why, for what, when, where or for how long the reporting officer had been or would be on medical. Nor was the trial court told that her court appearance would impair her health or in anyway interfere with her being on medical. From all that appears in the record before us, the trial court was not even told that she was unable to appear because she was on medical. The assistant State’s Attorney merely told the trial court that, “She is on medical, we couldn’t track her down.” Just what effort the assistant State’s Attorney made to locate her was not disclosed to the trial court. Ordinarily, being on medical requires a police officer to be at home or in a hospital convalescing. At the very least the trial court should have inquired and determined when the officer would or could be available and then, based thereon, determine whether to grant the defense attorney’s continuance to produce the officer. There was no reason to unjustly rush to judgment in the case. The offenses were committed on March 14, 1983. The indictment was returned 20 months later, on November 5, 1984. The case had been on the trial call for over a year, from November 30, 1984, to December 9, 1985, and had been up for trial and continued by agreement 16 times. The jury was selected on December 9, 1985, and testimony was presented on December 10, 11 and 12. It was on the afternoon of Thursday, December 12, that the defense attorney requested a continuance to produce the reporting officer as a witness. There was no justification for the trial court to deny the defense attorney’s continuance motion. There was no reason not to have postponed the trial to the next day, Friday, or to over the weekend, Monday, to afford the defense attorney an opportunity to produce the witness to testify on the extremely crucial issue before the jury. Surely the trial court should have granted the defense attorney’s request for “a few minutes to try to find out where the officer is *** to get her home phone number.” For the trial court to have analogized the instant case and the absent officer being on medical with a “dead witness” was not at all helpful in properly ruling on the defense attorney’s continuance request. Even if the officer had been under a defense subpoena, she may not have been available because of her medical condition. Surely, under such circumstances the trial court would have and should have allowed the continuance request.

The trial court’s offer to the defense attorney (1) to call the officer who was present at court but who did not write the report and who did not recall even talking to Donita Washington and (2) to allow “broad latitude on direct examination” of her, was a blatant, totally useless gesture to the defense attorney.

I do not agree with the majority’s conclusion that because “the testimony was alleged impeaching testimony” (169 Ill. App. 3d at 540) the trial court did not abuse its discretion in denying the defense attorney’s request for a continuance to produce the reporting officer and her impeaching testimony. The identification issue was crucial. Washington identified the defendant as her assailant for the first time 20 months after the robbery. Her testimony was extensive. The jury was entitled to know if she initially stated to the officers that she never saw her assailant’s face. The defendant had the right to present such testimony, and he should have been given the opportunity to do so.

Nor do I agree with the majority’s conclusion that because the defendant knew that Washington would testify, her testimony was no surprise to him. The defense attorney unequivocally and without any contradiction stated that he was taken by surprise by Donita Washington’s identification of the defendant as her assailant. The trial court, or the assistant State’s Attorney, did not remotely suggest to the contrary. It is inappropriate for this court so to do ab initio, particularly in the absence of any factual basis therefore.

The majority’s conclusion that “it does not appear that defendant acted diligently to get the absent witness’ impeaching testimony” (169 Ill. App. 3d at 540) contradicts and is unsupported by the record. The defendant was in custody. His attorney properly relied on the assistant State’s Attorney’s assurances to the court and him that the assistant State’s Attorney would produce the witness. Inasmuch as the assistant State’s Attorney did not produce the witness, simply because she was on medical and he could not “track her down,” surely the defense attorney should have been given the chance to locate and produce her.

For the reasons that I have previously stated, the majority’s conclusions that “the witness was unavailable” and “it does not appear that the impeaching testimony would have affected the outcome of the trial” (169 Ill. App. 3d at 540) are clearly erroneous. It is extremely significant that the jury’s deliberations continued way into the night of December 12. When called from their deliberations, the forelady informed the trial court that the jury had not reached any verdict. The trial court directed that they continue their deliberations until the arrival of the bus to take them to their lodging for the night. The jury resumed their deliberations the following morning and sent out written questions regarding Donita Washington’s testimony. When called into court at lunch time, in response to the trial court’s inquiry, the forelady advised the court that the jury had arrived at only two verdicts. The trial judge thereupon gave the jury the Prim instruction (People v. Prim (1972), 53 Ill. 2d 62), stating:

“Relative to the question that was sent out this morning, you have all the evidence. Rely on your collective memory.

All right. I will now issue an additional instruction to you. The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

It is your duty as jurors to consult with one another and deliberate with a view to reaching an agreement. If you can do so without violence to individual judgment.

Each of you must decide the case for yourself. But do so only after an impartial consideration of the evidence with your fellow jurors.

In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it’s erroneous. But do not surrender your honest convictions to the weight or affect to the evidence solely because of an opinion of your fellow jurors or for the mere purpose of returning a verdict.

We are not partisans. You are judges, judges of the facts.

Your sole interest is to ascertain the truth from the evidence in the case. This will be given to you.

You may go back and continue your deliberations. And if you reach any verdicts, you may return those verdicts.”

The jury resumed deliberations but the Prim instruction was unsuccessful in inducing the jury to arrive at additional verdicts. After pointing out that “the jury has had the case for approximately 26 hours,” the trial court terminated the deliberations and called the jury into the courtroom. The trial court stated and inquired, “Ms. Fore-lady, when you were out here previously, you indicated to me you had reached a verdict on two of the three charges. Is that still your present position? And on the third charge you have not reached a verdict, is that your position?” The Forelady responded, “Right.” The trial court received the