{ "id": 5384586, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL T. CLARKE, Defendant-Appellant", "name_abbreviation": "People v. Clarke", "decision_date": "1993-04-27", "docket_number": "No. 2-91-0953", "first_page": "99", "last_page": "108", "citations": [ { "type": "official", "cite": "245 Ill. App. 3d 99" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "233 Ill. App. 3d 985", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5197246 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0985-01" ] }, { "cite": "143 Ill. App. 3d 636", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5667128 ], "pin_cites": [ { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0636-01" ] }, { "cite": "123 Ill. 2d 322", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550912 ], "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0322-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "pin_cites": [ { "page": "186" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "152 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574027 ], "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0304-01" ] }, { "cite": "97 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5516622 ], "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0487-01" ] }, { "cite": "137 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251434 ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0065-01" ] }, { "cite": "109 Ill. 2d 80", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126872 ], "year": 1990, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0080-01" ] }, { "cite": "220 Ill. App. 3d 214", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274335 ], "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0214-01" ] }, { "cite": "112 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538496 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/112/0111-01" ] }, { "cite": "124 Ill. App. 3d 1041", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3430853 ], "pin_cites": [ { "page": "1043" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/1041-01" ] }, { "cite": "231 Ill. App. 3d 460", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5204219 ], "weight": 2, "pin_cites": [ { "page": "469" }, { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0460-01" ] }, { "cite": "112 S. Ct. 295", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1992, "opinion_index": 0 }, { "cite": "116 L. Ed. 2d 239", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "504 U.S. 719", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11730774 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/504/0719-01" ] }, { "cite": "142 Ill. 2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236771 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/142/0410-01" ] }, { "cite": "149 Ill. 2d 118", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599955 ], "weight": 3, "pin_cites": [ { "page": "145" }, { "page": "145" }, { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0118-01" ] }, { "cite": "598 F.2d 1008", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 493757 ], "opinion_index": 0, "case_paths": [ "/f2d/598/1008-01" ] }, { "cite": "625 F.2d 693", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1283149 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/625/0693-01" ] }, { "cite": "132 Ill. App. 3d 399", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3443884 ], "year": 1986, "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0399-01" ] }, { "cite": "409 U.S. 95", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171852 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/409/0095-01" ] }, { "cite": "105 Ill. App. 3d 92", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5469676 ], "weight": 2, "pin_cites": [ { "page": "98" }, { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0092-01" ] }, { "cite": "104 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147022 ], "weight": 3, "pin_cites": [ { "page": "200" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0194-01" ] }, { "cite": "212 Ill. App. 3d 155", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600794 ], "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0155-01" ] }, { "cite": "221 Ill. App. 3d 298", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5794745 ], "year": 1991, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0298-01" ] }, { "cite": "228 Ill. App. 3d 54", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5220935 ], "year": 1991, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/0054-01" ] }, { "cite": "228 Ill. App. 3d 583", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5219427 ], "weight": 2, "pin_cites": [ { "page": "594" }, { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/0583-01" ] } ], "analysis": { "cardinality": 940, "char_count": 20899, "ocr_confidence": 0.787, "pagerank": { "raw": 6.665883951926641e-08, "percentile": 0.4059867969136425 }, "sha256": "b47f4d877300b4d33965cd95c1373755f859286f7aa0fa487d92ac497a1af775", "simhash": "1:d703f666e3ba3c71", "word_count": 3391 }, "last_updated": "2023-07-14T18:35:03.225726+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL T. CLARKE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nDefendant, Michael T. Clarke, was convicted of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 4(a)) for stabbing Larry Mc-Bain on May 5, 1990. For the following reasons, we reverse and remand.\nDefendant was indicted for attempted murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8 \u2014 4(a), 9 \u2014 1) and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 4(a)) for stabbing McBain on May 5, 1990. The cause proceeded to a jury trial on April 15, 1991. Defendant claimed that he stabbed McBain in self-defense. (Ill. Rev. Stat. 1989, ch. 38, par. 7 \u2014 1.) McBain, however, testified that defendant initiated the incident.\nOn May 5, 1990, at approximately 3:15 a.m., Donald Runblade was driving north on Alpine Road approaching the intersection of Alpine and Harlem Roads in Loves Park, Illinois. Larry McBain was a passenger in Runblade\u2019s vehicle. Defendant was driving alone. Mc-Bain claims that defendant pulled into the right lane and drove next to Runblade\u2019s vehicle for two or three minutes. When McBain looked toward defendant\u2019s car, defendant allegedly made an obscene gesture and threw liquid on Runblade\u2019s car. Defendant sped ahead of them, stopped his car, approached Runblade\u2019s vehicle, and threw a beer bottle which shattered the windshield. McBain exited the car and confronted defendant. McBain turned back and watched Runblade drive away. When McBain turned around, defendant stabbed him in the left rib. McBain jumped back and raised his fists, not realizing he had been stabbed. Defendant allegedly asked, \u201cDo you want me to stab you again?\u201d When McBain responded, \u201cYes,\u201d defendant ran to his car and drove away.\nTo the contrary, defendant claims that McBain was the aggressor. Defendant testified that, while passing Runblade\u2019s vehicle on the right side, McBain made an obscene gesture, referring to defendant with profane language. Defendant contends that he ignored them and continued driving. Runblade would not let him pass and continued to drive alongside defendant\u2019s vehicle. When defendant sped up, Runblade pulled next to his car and told defendant to follow him. When defendant did not follow, Runblade turned around and resumed following defendant. Defendant stopped his car after Runblade allegedly bumped him twice from behind. Runblade stood at the door of his own vehicle, and McBain ran toward defendant. Defendant threw a beer bottle at Runblade\u2019s car. McBain continued to advance and swung at defendant. After warning McBain to leave him alone, defendant produced a pocket knife and threatened to stab McBain. McBain allegedly took another swing, and defendant stabbed him. Defendant ran to his vehicle and drove to the home of Jean Shelton, his girlfriend.\nRunblade contacted the police when he discovered defendant\u2019s car parked in Shelton\u2019s driveway later that morning. Shelton admitted the two officers when they arrived at her home at approximately 4:30 a.m. When defendant came forward, the officers stated that they wanted to talk about the stabbing. Defendant resisted, was handcuffed and read Miranda warnings. Runblade identified defendant as the person involved in the stabbing earlier that evening. After securing defendant in the police car, the officers discovered a pocket knife in the folds of the bedspread in Shelton\u2019s room.\nMcBain suffered a one-inch stab wound to the left upper quadrant, lateral to the midline, just below the rib cage. The doctors at St. Anthony\u2019s Hospital waited a few hours to perform exploratory surgery while the effects of the alcohol McBain consumed that evening dissipated. The surgery revealed a laceration to the left lobe of the liver and perforations to the wall of the stomach and the duodenal wall. The inferior vena cava was also lacerated. After seven days, Mc-Bain was discharged from the hospital against medical advice because he was abusive to hospital personnel.\nDefendant\u2019s theory at trial was that he stabbed McBain in self-defense. (Ill. Rev. Stat. 1989, ch. 38, par. 7 \u2014 1.) The jury was given instructions on attempted murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8\u2014 4(a), 9 \u2014 1), aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 12 \u2014 4(a), 12 \u2014 4(b)(l)), and reckless conduct (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 5(a)) as a lesser included offense. The jury found defendant guilty of aggravated battery. Defendant was sentenced to a term of three years\u2019 imprisonment, and this appeal followed.\nDefendant asserted that he stabbed McBain in self-defense. Thus, he was required to present evidence that he reasonably believed the degree of force used against McBain was necessary to avert the danger of harm. (People v. Turcios (1992), 228 Ill. App. 3d 583, 594.) To raise this defense successfully, defendant was required to present at least some evidence in support of each of the following elements: (1) McBain threatened force against defendant; (2) defendant was not the aggressor; (3) the danger of harm was imminent; (4) the force McBain threatened was unlawful; (5) defendant actually believed that a danger existed, that force was necessary to avert the danger, and that the amount of force defendant used was necessary; and (6) that these beliefs were reasonable. (People v. Chavez (1992), 228 Ill. App. 3d 54, 70; People v. Denny (1991), 221 Ill. App. 3d 298, 301.) Once the defense was raised, a question of fact arose concerning whether defendant\u2019s belief was reasonable, and the burden shifted to the State to prove the defendant\u2019s use of force was not justified. Turcios, 228 Ill. App. 3d at 594; People v. Belpedio (1991), 212 Ill. App. 3d 155,161.\nSince defendant raised the theory of self-defense and defendant and McBain gave extremely different versions of the stabbing, evidence of McBain\u2019s aggressive and violent character was relevant and admissible to indicate who was the aggressor. (People v. Lynch (1984), 104 Ill. 2d 194, 200.) To prove that defendant was not the aggressor, Billy Hopper testified about an incident where McBain bumped Hopper\u2019s automobile three times from behind while in a drive-through restaurant line. Deputy Hogshead testified concerning McBain\u2019s violent conduct after the incident when Hogshead arrested him. On Hogshead\u2019s cross-examination, defense counsel elicited information that Hogshead received a call from Glenn Weber, the prosecuting attorney, the previous evening. Defense counsel explained to the court that the purpose of the call was to \u201csoften\u201d Hogshead\u2019s testimony. Weber, however, explained the purpose of the call as an inquiry of whether Hogshead possessed knowledge of other incidents of violence involving McBain. Responding to defendant\u2019s request to present to the jury the telephone call from Weber to Hogshead, the court stated as follows:\n\u201cTHE COURT: Obviously the witness testified the way [defense counsel] wanted him to and it was, he was not intimidated or anything else and I don\u2019t think it\u2019s appropriate to let the jury start getting into things like that. Then we have to get into all sorts of other things and it takes away from this case. My ruling, I feel, is certainly correct in that regard. If the defense feels that the prosecution made some inappropriate or engaged in some inappropriate conduct it can take whatever action it feels is appropriate, but with regard to this case I feel my ruling is correct.\u201d\nDefendant moved for a mistrial on the basis that the court would not allow the defense to introduce evidence concerning the prosecutor\u2019s phone call to Hogshead. To further support his motion for a mistrial, defense counsel asserted that the prosecuting attorney also telephoned Billy Hopper to inform him of plans to impeach Hopper\u2019s testimony by presenting evidence of a pending case against him. The motion for a mistrial was denied. On appeal, defendant contends that he was denied a fair trial because the testimony of Hopper and Hogshead was allegedly curtailed due to prosecutorial intimidation resulting from the telephone calls.\nWe find defendant\u2019s contention wholly speculative. In denying defendant\u2019s motion for a mistrial, the court advised defendant to preserve the issue of prosecutorial misconduct by filing a post-trial motion and informing the court exactly how the testimony of Hopper and Hogshead was altered. The court suggested that an evidentiary hearing would be held at that time. Defendant did raise the issue of intimidation in his post-trial motion, but did so without specific allegations, argument, affidavits, or testimony by Hopper and Hogshead indicating how the substance of their testimony was altered by the telephone calls.\nDue process of law encompasses a defendant\u2019s right to present witnesses in his own behalf to establish a defense. (People v. McKiness (1982), 105 Ill. App. 3d 92, 98.) Substantial governmental interference with a defense witness\u2019 free and unhampered choice to testify violates a defendant\u2019s right to due process of law under the fourteenth amendment. (Webb v. Texas (1972), 409 U.S. 95, 34 L. Ed. 2d 330, 93 S. Ct. 351; People v. Bailey (1985), 132 Ill. App. 3d 399, 407.) We do not condone a prosecuting attorney\u2019s action in contacting witnesses for the defense when it is calculated to intimidate witnesses and dissuade them from testifying. However, we decline to apply a per se rule in this case. As the court stated in United States v. Weddell (5th Cir. 1986), 800 E2d 1404, 1411, the relevant inquiry is whether the prosecutor\u2019s conduct \u201cso infected the trial with unfairness as to make the resulting conviction a denial of due process.\u201d If the witnesses in this case refused to testify or continue testifying, as in United States v. Blackwell (D.C. Cir. 1982), 694 E2d 1325, United States v. Goodwin (5th Cir. 1980), 625 F.2d 693, United States v. Hammond (5th Cir. 1979), 598 F.2d 1008, and McKiness (105 Ill. App. 3d at 92), our result would be different. Without sufficient allegations and proofs indicating how the substance of the witnesses\u2019 testimony was altered by the telephone calls, we are unable to assess the degree of prejudice to defendant, if any. Therefore, we determine that defendant was not deprived of a fair trial by the prosecutor\u2019s actions in contacting the witnesses.\nNext, defendant contends that he was deprived of a fair trial due to comments made by the prosecutor in closing argument. The prosecutor commented on the testimony of Hopper and Hogshead concerning the incident where McBain allegedly bumped Hopper\u2019s automobile and became aggressive and violent in the drive-through restaurant line and during his arrest by Hogshead later that evening. First, the prosecuting attorney stated that the defense was \u201ctrying to drag [McBain] through the mud by bringing up this irrelevant incident that happened.\u201d Defense counsel objected, and the court informed the jury it would be instructed on the appropriate use of this evidence. Again, the prosecuting attorney referred to the incident and stated that, if the jury considered the incident, it would be \u201cdragging Larry McBain through the mud for no reason because that incident is not probative of what happened [in this case].\u201d Defense counsel objected, and the court again informed the jury that it would receive instructions on the use of evidence of prior acts of violence. Next, the following interchange occurred:\n\u201cPROSECUTOR: You don\u2019t think they [the defense] were dragging Larry McBain through the mud. Why do you think they talked about Billy Hopper and his three kids in the back seat [sic] and his wife and gee[,] they are just going over to Hardee\u2019s to get a sandwich and here is Larry McBain ramming the back of his car. You don\u2019t think they are trying to drag him through the mud with that garbage?\nDEFENSE COUNSEL: I object to the reference of attacks of [sic] a citizen of the State of Illinois as garbage where a person admitted his guilt and being involved in that garbage.\nTHE COURT: Mr. Gaziano, you have had your opportunity to argue the case. You can make an objection but not argue or continue your argument. Objection is overruled.\u201d\nDefendant contends that the State\u2019s closing argument was improper because the prosecutor misstated the law by informing the jury that evidence of McBain\u2019s prior conduct was irrelevant and had no probative value and because of the State\u2019s reference to the defense theory as \u201cgarbage.\u201d\nA defendant is entitled to a trial free from improper prosecutorial argument. The State may comment on the evidence presented during trial and draw reasonable inferences from the evidence. (People v. Johnson (1992), 149 Ill. 2d 118, 145.) However, improper remarks will not justify reversal unless, when viewed in the context of the entire record and argument, the remarks were a material factor in the conviction or resulted in substantial prejudice to the defendant, such that the verdict would have been different if the remarks were not made. Johnson, 149 Ill. 2d at 145; People v. Morgan (1991), 142 Ill. 2d 410, cert, granted (1991), 504 U.S. 719, 116 L. Ed. 2d 239, 112 S. Ct. 295; People v. Garcia (1992), 231 Ill. App. 3d 460, 469.\nMisstating the law in closing argument can be grounds for reversal. (People v. Eckhardt (1984), 124 Ill. App. 3d 1041, 1043.) As we previously stated, evidence of McBain\u2019s prior violent conduct was admissible for the purpose of assessing the credibility of the witnesses\u2019 disparate versions of the stabbing and aiding the jury in determining who was the aggressor. (Lynch, 104 Ill. 2d at 200.) Therefore, the State erred in stating that the testimony of Hopper and Hogshead concerning McBain\u2019s violent character was irrelevant. However, instructing the jury that comments made during closing argument are not evidence and should be disregarded, if not based on the evidence, tends to cure any prejudice from improper remarks. (People v. Morgan (1986), 112 Ill. 2d 111; Garcia, 231 Ill. App. 3d at 469; People v. Graca (1991), 220 Ill. App. 3d 214, 221.) Our review of the record reveals that the court responded to the State\u2019s comments by informing the jury that it would be instructed on the proper use of the evidence. The record further reveals that the jury was instructed that evidence of prior violent or aggressive behavior may be used only for the limited purpose of determining who was the aggressor. (Non-Illinois Pattern Jury Instruction based on People v. Lynch (1984), 104 Ill. 2d 194.) The jury was also instructed that closing statements are not evidence and any statement or argument made by the attorneys which is not based on the evidence should be disregarded. (Illinois Pattern Jury Instructions, Criminal, No. 1.03 (3d ed. 1992).) Although the State erred in stating that testimony concerning McBain\u2019s violent character was irrelevant and not probative of the issue of self-defense, we find that defendant did not incur substantial prejudice by these improper comments alone, as the jury was instructed on the proper use of this evidence.\n\u2022 3 The State\u2019s reference to the theory that McBain was the aggressor as \u201cgarbage\u201d was outside the bounds of proper argument. A defendant is entitled to be tried by an unbiased jury and to be judged on the merits of his case. (People v. Bean (1985), 109 Ill. 2d 80, 101, appeal after remand (1990), 137 Ill. 2d 65.) It is improper for the prosecution to suggest, without evidence, that defense counsel fabricated a defense theory. (People v. Emerson (1983), 97 Ill. 2d 487, 497.) It is also improper for the prosecutor to make statements calculated solely to inflame the passions and prejudices of the jury. (People v. Merideth (1987), 152 Ill. App. 3d 304, 321.) The unsubstantiated personal opinion of the prosecutor characterizing the defense theory of self-defense as \u201cgarbage\u201d was improper. The trial court erred by failing to sustain defense counsel\u2019s objection to this remark.\nDefendant also objects to the State\u2019s characterization of Hopper as a convicted felon during closing argument. Since no objection to this comment was made during trial, defendant has waived the issue. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) However, we will address defendant\u2019s contention on the merits under the plain error rule, as the evidence in this case was closely balanced. 134 Ill. 2d R 615(a).\nThe record reveals that Hopper had a prior conviction of felony theft which could have impeached his credibility as a witness. The credibility of a witness is a proper subject for closing argument. (People v. Richardson (1988), 123 Ill. 2d 322, 356.) The State may comment on the credibility of a witness during closing argument if it is based on facts in the record or inferences fairly drawn from those facts. (Johnson, 149 Ill. 2d at 145; People v. Epps (1986), 143 Ill. App. 3d 636, 640.) The State was entitled to suggest that Hopper was not a credible witness because his prior conviction of felony theft was part of the record.\nAlthough the verdict may not have been different if one of the errors had not been committed, the cumulative impact of the errors was prejudicial to the defendant. To assert self-defense successfully, defendant was required to produce evidence indicating he was not the aggressor. The State\u2019s comments that McBain\u2019s prior aggressive behavior was \u201cnot probative\u201d and irrelevant, coupled with the characterization of the defense as \u201cgarbage,\u201d improperly impugned the validity of defendant\u2019s contentions. For these reasons, we determine that the cumulative impact of the State\u2019s errors was substantially prejudicial such that the verdict may have been different if they were not committed.\nFinally, defendant contends that the trial court erred by failing to disclose certain police reports revealing prior violent conduct by Mc-Bain and Runblade. The defense issued a subpoena duces tecum to the record keeper of the Winnebago County sheriff for all police reports pertaining to McBain and Runblade. The trial court reviewed the reports in camera and released six of them to the defense. The rest of the reports were impounded. The impounded reports are part of the record on appeal, and defense counsel has reviewed them. Defendant contends that the impounded reports reveal or suggest other instances of violent conduct by McBain and Runblade which should have been disclosed to the defense prior to trial.\nDefendant concedes that he failed to object during trial when the reports were impounded or to raise the issue in his post-trial motion for a new trial. Issues raised on appeal are preserved for review by objecting during trial and filing a written post-trial motion which raises the issue of the alleged error. (Enoch, 122 Ill. 2d at 186.) We do not accept the State\u2019s contention that defendant has waived this issue on appeal. The impounded reports became part of the record on appeal, and defense counsel\u2019s first opportunity to review the reports was at this time. The waiver rule does not preclude a defendant from raising issues that defense counsel was unaware of at the trial level.\nSince we will reverse and remand for a new trial on the basis of our ruling on the State\u2019s comments during closing argument, we are not required to address this issue. We note, however, that reports concerning McBain\u2019s prior violent conduct were disclosed to the defense. The defense utilized these reports in support of its theory that defendant stabbed McBain in self-defense by calling witnesses who testified regarding specific instances where McBain exhibited violent and aggressive behavior. The trial court\u2019s decision to exclude admissible evidence does not always constitute reversible error. If the jury was adequately apprised of the nature of the defense by introducing evidence reflecting McBain\u2019s violent and aggressive character, any error may have been harmless. See People v. Taylor (1992), 233 Ill. App. 3d 985.\nFurthermore, the reports concerning prior violent conduct by Runblade are irrelevant in the present case, as the defense sought to prove McBain was the aggressor. Runblade\u2019s conduct on prior occasions is not probative of whether defendant was the aggressor. Therefore, the reports concerning Runblade\u2019s conduct were properly excluded by the trial court.\nFor the foregoing reasons, we reverse the judgment of the circuit court of Winnebago County and remand this cause to the trial court for further proceedings in conformance with the opinion of this court.\nReversed and remanded.\nBOWMAN and COLWELL, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Paul A. Logli, State\u2019s Attorney, of Rockford (William L. Browers and Gregory L. Slovacek, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL T. CLARKE, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 91\u20140953\nOpinion filed April 27, 1993.\nRehearing denied June 1, 1993.\nG. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (William L. Browers and Gregory L. Slovacek, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0099-01", "first_page_order": 119, "last_page_order": 128 }