concurring in part and dissenting in part:
I concur with the majority opinion except for that part finding harmless error in the trial court’s refusal to allow the testimony of Professor Nicol concerning the hypothetical trajectory of the bullet that struck the victim. I respectfully submit the circuit court committed reversible error when it did not allow the expert witness to answer the hypothetical question posed to him concerning the angle at which the bullet crippling the victim entered her body and I would reverse and remand for a new trial. Defendant contends that the shooting was an unfortunate accident. He testified that the gun accidently discharged as he fell over a plastic bag of laundry when his hand struck the side of the doorway leading out of his bedroom. The question posed sought to establish the angle at which the bullet entered the victim’s body because if it had been moving upwards when it struck her, this fact would have supported defendant’s testimony that the gun had gone off as he was falling over the bag. If he had aimed the gun and deliberately shot her in the back as the victim suggests, the bullet more probably would have entered her body at the approximate horizontal.
A defendant is entitled to every reasonable opportunity to present evidence which might tend to create reasonable doubt as to his guilt. (People v. Cole (1964), 30 Ill. 2d 375, 380, 196 N.E.2d 691.) The testimony which defense counsel had attempted to elicit from the expert in the instant case would have been positive evidence of defendant’s innocence, in corroboration with and in support of other defense evidence. Had that evidence been submitted to the jury, it would have had a much more direct bearing on his guilt or innocence than argument of counsel which the jury was instructed to disregard if not based upon the evidence. (People’s Instruction No. 3, Illinois Pattern Jury Instructions, Criminal, No. 1.03 (2d ed. 1981).) The fact that this theory was argued to the jury, as noted in the majority opinion, is therefore of little solace to the defense. Realistically, this court cannot weigh the effect of such evidence and as the supreme court held in People v. Watson (1966), 36 Ill. 2d 228, 232, 221 N.E.2d 645, one who is charged with a crime should be allowed to present a proper defense and, if the evidence offered is competent, it should be permitted to go to the jury for whatever it is worth. This is particularly crucial in the present case where the evidence was close. Had defendant’s expert witness been allowed to testify and had the jury believed him, it might very well have accepted defendant’s version of events, that the shooting was accidental, caused by his tripping over a plastic bag, which was seen in the bedroom doorway after the shooting by an independent witness, Candice Thomas, a neighbor. See, e.g., People v. Calhoun (1972), 4 Ill. App. 3d 683, 281 N.E.2d 363.
The State’s contention that this issue was waived when defendant failed to make an offer of proof, relying on Simon v. Plotkin (1977), 50 Ill. App. 3d 603, 365 N.E.2d 1022, and Tolefree v. March (1981), 99 Ill. App. 3d 1011, 425 N.E.2d 1247, appeal denied (1981), 85 Ill. 2d 582, is in my opinion without merit. In Tolefree, the appellate court held that no offer of proof is necessary where, as here, the evidence sought to be introduced or the questions asked in themselves demonstrate their purpose and materiality. See also Volvo of America Corp. v. Gibson (1980), 83 Ill. App. 3d 487, 491, 404 N.E.2d 406; Schusler v. Fletcher (1966), 74 Ill. App. 2d 249, 253, 219 N.E.2d 588, appeal denied (1967), 35 Ill. 2d 630.
For the foregoing reasons I would reverse and remand for a new trial.