Appeal from the Circuit Court of Cook County; the Hon. JAMES
A. GEROULIS, Judge, presiding. Affirmed.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
The defendant, Robert Jackson, was indicted for unlawful sale of narcotics. The jury trial resulted in a verdict and judgment of guilty. The defendant was sentenced to serve ten to thirty years in the penitentiary. No error is alleged in the indictment.
The defendant contends (1) that the prosecutor's comment that the testimony of the State's witness was uncontradicted violated the defendant's constitutional privilege against self-incrimination and (2) that the trial court unfairly restricted the defendant's cross-examination of its informer by:
(a) refusing to require the addict-informer to show her arm to the jury, and
(b) refusing to permit the defense to use the informer's past record in order to show bias.
We will briefly summarize the evidence. A narcotic addict-informer, Helen Stewart, who was on bond for a then pending charge, arranged for a "controlled sale" on January 10, 1966. That afternoon she met with Detective James Arnold. She was searched and given $25 in marked money. Detective Arnold then observed her talking with the defendant at 43rd and Calumet. The officer saw them go into a building. Miss Stewart returned shortly and handed the officer a package the contents of which, after a field test, were determined to be heroin. Miss Stewart said that she had given the defendant the twenty-five dollars for the heroin. The defendant was immediately arrested in a drugstore, where a search of his person revealed the ten dollar bill which had been given to the informer. Seven of the fifteen single dollar bills were found in the drugstore cash register. The other eight dollar bills were never recovered.
The defendant contends that his privilege against self-incrimination was violated when the prosecutor, in his closing argument, repeatedly referred to the fact that the State's case was uncontradicted. The prosecutor characterized Miss Stewart's testimony as uncontradicted and "She told you from the witness stand what happened and that is all that the evidence is." In regard to the meeting between the defendant and the informer and the fact that part of the money used was recovered from the defendant, he said, "Common sense, reasonableness, and the fact that all this is uncontradicted and unrebutted leads you to only one conclusion, that this defendant sold that heroin to Helen Stewart." Again, the prosecutor, in his final argument, said, "All we ask is that you put two and two together and from that you come to only one conclusion, the guilt of this defendant. Because that evidence is uncontradicted, it is unrebutted."
The alleged sale between the informer and the defendant took place while only the two were present out of the hearing of the police officer. The defendant argues that, since he was the only person who could have contradicted the informer's testimony and he did not take the stand, to say that the informer's testimony was uncontradicted is to say that the defendant did not testify, and the comments thus violate his Fifth Amendment privilege. The defendant relies on Griffin v. California, 380 U.S. 609, 85 S Ct 1229, in which it was held to be a denial of the Fifth Amendment protection for the prosecutor and the trial judge to comment on the defendant's failure to testify. The same argument made in the case at bar was made and rejected in People v. Mills, 40 Ill.2d 4, 237 N.E.2d 697.
In Griffin the prosecutor made much of the defendant's failure to testify. The trial court instructed the jury that the failure of the defendant to explain or deny facts within his knowledge as to which there was evidence against him tended to indicate the truth of such evidence and that among the inferences which could be drawn therefrom the ones unfavorable to the defendant were more probable. The United States Supreme Court said that such comment "solemnizes the silence of the accused into evidence against him." 380 U.S. 609, 614. The Fifth Amendment was held by the court to prohibit either comment by the prosecutor on the accused's silence or instructions to the jury that such silence is evidence of guilt.
After Griffin the Supreme Court of Illinois decided Mills. Although the facts of Mills raise a question of whether the defendant was the only one who could have contradicted the State's evidence, the court did uphold the propriety of a prosecutor's comment that the State's case was uncontradicted when only the defendant could contradict it. Griffin was distinguished by the court as being direct prosecutorial comment on the defendant's failure to testify. The court stated the test for such closing argument as being whether the reference was intended to direct the attention of the jury to the defendant's failure to testify.
In this case the record reveals that no objection was made to the prosecutor's comments during the trial nor was this issue included in the post-trial motion. Normally, the issue would therefore be waived. However, we hold that the comments by the prosecutor in this case were not intended to focus on the defendant's silence so as to violate the Mills test. It would be a most unusual jury which would view these comments as a covert attack on the silence of the defendant rather than as an assertion that while the State's main witness had been attacked, her testimony was never contradicted by any evidence. We do not feel that these statements are the direct prosecutorial comments on the defendant's failure to testify necessary to bring a case under Griffin, particularly since the court instructed the jury that the defendant's silence raised no presumption or inference of guilt.
It is next contended that the trial judge unduly restricted the defendant's right to cross-examine by refusing to require the addict-informer to show her arms to the jury. The informer testified that she was a narcotics addict and had taken heroin for approximately fifteen years, the last time being in July, immediately before her present incarceration. She said that when she used narcotics she took it in her arm. The defense counsel then asked her to step down off the stand and show her arms to the jury. The prosecutor's objection was sustained.
In making this contention the defendant relies mainly on People v. Lewis, 25 Ill.2d 396, 185 N.E.2d 168. In that case the informer admitted having been a user of narcotics by means of injecting the narcotics into his arm with a hypodermic needle, but he denied having taken any narcotics for about seven months before he testified. Counsel for the defense asked the witness to take off his coat to exhibit his arm, and an objection was sustained. Since the witness had denied any recent use of narcotics, the Supreme Court held that any scars evidencing a recent use would cast doubt on his whole testimony.
In the case at bar, the witness testified on September 13, 1966, that she had been living in the House of Correction since July 27, 1966. The trial court stated that she had had no opportunity in the House of Correction to be subjected to inoculation of narcotics. Since she admitted that she was a user immediately prior to her incarceration and made no claim that she was a former addict who had given up the habit, no possible purpose could have been served by requiring her to display her arm to the jury. This is in contrast to the Lewis case which we find inapplicable on the facts. The latitude permitted in cross-examination of witnesses at trial is a matter within the ...