APPEAL from the Circuit Court of Cook County; the Hon. HARRY
S. STARK, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment entered in the circuit court of Cook County. The defendant, Lawrence McLean, was indicted for the murder of Loran Overturf and the aggravated battery of Albert Tulo. In a jury trial he was found not guilty of aggravated battery, but guilty of voluntary manslaughter in the death of Overturf and was sentenced to a term of ten to twenty years in the Illinois State Penitentiary.
The issues on appeal are whether the trial court unreasonably restricted cross-examination, whether the jury was improperly informed that defendant and a defense witness had asserted their constitutional right to remain silent while in custody, whether the conduct of the State's Attorney created the impression that defense counsel was hiding unfavorable evidence, and whether the State's closing argument was prejudicial.
Albert Tulo testified that on May 4, 1967, he was in the company of the deceased and three other boys standing in the vicinity of 18th Street and Wolcott when James Gillinger approached them on a bicycle. Gillinger called out the names of the deceased and Tulo, then the defendant and Lowell Davis got out of a car and approached the group. The defendant asked which one of the five had been "messing with one of my boys?" He was referring to an incident two weeks earlier when Tulo had pointed a cap pistol at Davis.
The deceased and Tulo began advancing and McLean pulled a pistol. The deceased twice dared the defendant to shoot and continued to advance and shout obscenities at him. As the defendant backed into the street one shot was fired and Overturf clutched his chest, then three more shots were fired. The defendant testified the first shot was fired accidentally when he backed into a parked car. He said he fired the other shots because he thought the deceased was reaching inside his jacket for a weapon. Tulo, however, testified that McLean was in the middle of the street when the first shot was fired.
The defendant contends he was unduly restricted from impeaching the testimony of Albert Tulo. On direct examination Tulo testified that two weeks prior to the shooting he was in a skating rink with the deceased. At that time he took a toy gun from a young boy, entered the washroom where Lowell Davis was present, pointed the gun at Davis and pulled the trigger. He said he was "fooling around" and that they both laughed about the incident. On cross-examination, defense counsel made the following references to Tulo's testimony before the Grand Jury.
"Q. Do you remember, Albert, testifying before the grand Jury of Cook County, do you remember that, Albert?
Q. All right, I'd like to ask you if you remember this statement.
"Q. Why were you carrying the cap pistol, why?
Your answer was this: "Well, Loran had it and he was in the rink and we were fooling around with it." Now, do you remember being asked that question by the State's ...