Appeal from the Circuit Court of Cook County; the Hon. WILLIAM
S. WHITE, Judge, presiding. Reversed and remanded.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Frances Gaines and Evan Mwathery were indicted for the crime of murder. The defendants pleaded not guilty and, after a jury trial, both defendants were found guilty of murder. Each defendant was sentenced to the penitentiary for a term of 50 to 75 years.
The defendants contend on appeal that improper comments by the State's Attorney deprived the defendants of a fair trial; the State's Attorney committed prejudicial error when he made reference to a statement he had agreed not to introduce; and reversible error occurred when the prosecutor turned over grand jury testimony and police reports in front of the jury.
The pertinent facts are these: On February 14, 1966, at 6:00 p.m., Robert Lee Perry was in his apartment located at 6107 South Laflin Street, Chicago, Illinois, when he heard Cleo Gaines calling for help. Perry went out of his apartment and saw Cleo Gaines lying across his apartment door. Gaines died shortly after Perry arrived. Perry then called the police. After the police arrived, Perry received a call from Frances Gaines, one of the defendants, and when she learned that her husband was dead, she asked if someone would come and get her. A doctor testified that Cleo Gaines died as a result of six stab wounds. Earl Dixon testified that in January of 1966, defendant Gaines was living with the defendant Mwathery, and Mwathery had told him that he and Frances Gaines intended to get married and go to Michigan to live. Walter Jefferson, a witness for the State, testified that he was indicted with the two defendants in this case. About three weeks before the death of Cleo Gaines, Jefferson had a conversation with Frances Gaines. She told him she was broke and that "her husband had some insurance money she would like to get hold of." About three weeks later, Frances Gaines asked him if he would like to make $1,000 by accompanying her lover, defendant Mwathery, when he went to kill her husband. Jefferson agreed and accompanied Mwathery to Cleo Gaines' apartment where Mwathery stabbed Gaines several times.
The defendants first contend that improper comments by the State's Attorney deprived the defendants of a fair trial. The defendant Mwathery was represented by an Assistant Public Defender and the defendant Gaines was represented by private counsel in the trial court. During the testimony of the State's accomplice witness Walter Jefferson, the State's Attorney on redirect examination asked the following questions, which were answered in the following manner:
"Q. Now you had a conversation with Mr. Wexler (Assistant Public Defender) on June 8th, is that right?
"Q. And the conversation to which he referred in his cross-examination, do you recall that?
"Q. Now as a matter of fact, at that time Mr. Wexler told you to keep your mouth shut.
"Mr. Wexler: Objection Your Honor. Objection.
"The Court: Objection sustained."
Defense counsel then moved for a mistrial, which the court denied. The defendants argue that the question put to the witness by the State's Attorney was highly prejudicial in that it gave the jury the impression that the Assistant Public Defender was attempting to obstruct justice by hiding evidence. The ruling by the trial court was error but not of such magnitude as to constitute reversible error.
During the closing argument to the jury the State's Attorney made the following remarks:
"Now, Mr. Wexler told you ladies and gentlemen that he is an Assistant Public Defender and that as an Assistant Public Defender he gets paid a salary to do a job in this court room and personally what motive would he have for fabricating anything in this case and since Mr. Wexler went into it I say this to you ladies and gentlemen, Mr. Goldstein is not a Public Defender and Mr. Goldstein represents an individual before this court and, as ...