dissenting:
I cannot agree that a new trial is required for, in my judgment, defendant’s guilt is so clearly established that the alleged error, if thought to be of constitutional stature, was harmless beyond a reasonable doubt. (Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824; People v. Gill, 54 Ill.2d 357.) Two eyewitnesses testified that they saw defendant fire a gun in the direction of the group with which decedent and the injured victim were standing; two other witnesses testified to seeing defendant, at the scene of the shootings. Defendant did not testify, and the only testimony contradicting the eyewitnesses was that of defendant’s alibi witnesses — his mother, father and brother. Their testimony was sufficiently contradictory (the father stated he had awakened defendant at home to watch the fire; the brother testified that defendant had not gone to sleep and that he and defendant had watched the fire together from the back porch; and the mother testified defendant had slept through the entire night until the police arrived and did not get up to watch the fire at all) to prompt the appellate court to state “it is difficult to conceive that any jury of 12 reasonable persons would believe this testimony ***.”
Additionally, while the majority characterizes the complained-of cross-examination as “substantial,” “repeated,” “definitely prejudicial” “insinuations,” its impact, it seems to me, was substantially less than that characterization would lead one to believe. It would unduly prolong this dissent to quote all of the cross-examination in context. Several illustrations may suffice. The opening question addressed to the mother was:
“Weren’t you present on August 25, 1970, at a Juvenile Court hearing when your son presented 4 alibi witnesses saying he was somewhere else?”
An objection to that question was sustained, but, apart from that, it is not, in my judgment, a necessary conclusion that the jury would deduce from that question that those four witnesses had testified in a manner contrary to the mother’s testimony. The “somewhere else” could have been thought by the jury to refer to some place other than the scene of the shootings, an interpretation consistent with the mother’s testimony that her son was at home. A subsequent and somewhat similar question resulted in the following:
“Q. And those four men in fact stated that your son was elsewhere other than—
DEFENSE COUNSEL: Excuse me judge,—
THE COURT: Sustained. Sustained.
DEFENSE COUNSEL: Could we make a statement as to the time, is this before nine—
THE COURT: The jury will disregard the entire question. Put it out of your minds.”
Defense objections, when made to other questions, were, with rare exceptions, sustained, with the result that the jury was never informed by question or answer as to the content of the testimony of the defense witnesses at the earlier hearing, and I simply cannot agree that serious prejudicial error occurred.
I would affirm the judgment of the appellate court.