APPEAL from the Circuit Court of Crawford County; the Hon.
RANDALL S. QUINDRY, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
On May 17, 1963, Joseph Daniel King, defendant-petitioner herein, was indicted by a special grand jury in Crawford County, Illinois on a three-count indictment for burglary.
King, hereinafter called the petitioner, was tried to a jury in the Circuit Court of Crawford County on the 14th and 15th of January, 1964. At the conclusion of the People's Case the defendant moved for a directed verdict. The motion was denied by the Court and the defense rested without putting on any evidence. The jury found the petitioner guilty as charged in the indictment. Motion for a new trial was filed on January 29, 1964, and was argued on the 10th of February, 1964. The petitioner was free on bail until the 10th of February hearing. The motion for a new trial was denied and the petitioner was sentenced to confinement in the Illinois State Penitentiary for a period of from seven to fourteen years.
The petitioner, on November 16, 1965, filed a petition for post-conviction relief and asked for appointed counsel. The petition was denied without the appointment of counsel. From that denial the defendant appealed and the Supreme Court in People v. King, 39 Ill.2d 295, 235 N.E.2d 585, reversed and remanded requiring the appointment of counsel and further proceedings on the petition. Counsel was appointed and an amended petition was filed. The State answered denying the allegations contained in the defendant's amended petition.
A hearing was had before the Circuit Court of Crawford County on December 27, 1968. After oral arguments on the merits, the post-conviction relief sought by the petitioner was denied. This appeal is brought from the order of the Circuit Court of Crawford County dismissing the petitioner's amended petition for post-conviction relief.
The petitioner presents for review by this Court the following issues. First, whether the trial court violated petitioner's constitutional right to not be compelled to testify. Second, whether the petitioner was denied due process and deprived of his right to a fair trial because of the introduction into evidence of other crimes. Third, whether the defendant was punished for exercising his right to a jury trial. The issues will be considered in the order presented.
The petitioner bases his first argument on the error in the trial court's statement "Well, I think your client is here, he can he is here to deny it, he can testify". This statement was made by the court in the presence of the jury in overruling defense counsel's objection to a portion of the testimony of Lorance, an alleged accomplice, as hearsay; no objection was made.
• 1 There was constitutional error in the court's statement. We then determine whether the statement was sufficiently erroneous to deny the defendant his right to a fair trial. The Constitution of the State of Illinois provided in Section 10 of Article II. "No person shall be compelled in any criminal case to give evidence against himself * * *". This right has been restated in the Illinois Constitution of 1970 as section 10 of Article I. The legislature has also provided in Ill. Rev. Stat., Sec. 155-1 "* * * A defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be to or upon such neglect". Ill. Rev. Stat., ch. 38, par. 155-1.
Similar provisions are part of the constitutional protections of the Federal law in the 5th and 14th amendments to the Constitution of the United States.
The question presented is controlled by the cases of Chapman v. California, 386 U.S. 18, 87 Sup.Ct. 824, 17 L.Ed.2d 705 and Harrington v. Calif., 395 U.S. 250, 80 Sup.Ct. 1726, 23 L.Ed.2d 285. Both cases cite and recognize Griffith v. Calif., 380 U.S. 609, 85 Sup.Ct. 1229, 14 L.Ed. 106, in which it was held there was a constitutional violation when the prosecutor commented to the jury on the accused's failure to testify. The court in Chapman states "We granted certiorari limited to these questions:
`Where there is a violation of the rule of Griffith v. Calif., 380 U.S. 609 (14 L.Ed.2d 106, 85 Sup.Ct. 1229), (1) can the error be held to be harmless, and (2) if so, was the error harmless in this case?'"
The Supreme Court of the United States then determined at 386 U.S., page 21, "We have no hesitation in saying that the right of these petitioners not to be punished for exercising their Fifth and Fourteenth Amendment right to be silent expressly created by the Federal Constitution itself is a federal right which in absence of appropriate congressional action, it is our responsibility to protect by fashioning the necessary rule". The Court then refused to adopt a rule that would hold all federal constitutional errors harmful. Quoting further from the opinion at 386 U.S., p. 22, "We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction".
The rule then set forth by the Court states "that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt". (386 U.S., p. 24) The opinion established not only that constitutional error may sometimes be treated as harmless error, but also that the federal standard is to be applied in judging the harmlessness of constitutional error in a State Court. While the Chapman opinion did not find that the prosecutor's comment and the judge's interrogation upon the failure of the accused to testify was harmless error, it must be interpreted in the light of the subsequent Harrington opinion. In Chapman, the court pointed out at 386 U.S. 26, that there was a "reasonably strong `circumstantial web of evidence' against petitioners", and the Court also pointed out that "it was also a case in which, absent the constitutionally forbidden comments, honest, fair minded jurors might very well have brought in not-guilty verdicts". In that case, the Court referred to the fact that the prosecutor took full advantage of his rights under the California Constitution to comment on the defendant's failure to testify and in addition the trial court charged the jury that it could draw adverse inferences from petitioner's failure to testify.
In Harrington v. California, supra, the Court purporting to apply Chapman, held harmless the erroneous admission of confessions by two of the accused's accomplices, in a robbery, implicating the accused, where the accused had no opportunity to cross examine the accomplices. The Court held the confessions merely cumulative evidence of the accused's guilt, which had been overwhelmingly established by other evidence. Under Harrington constitutional error would appear to be harmless where the other evidence is so great and convincing as to be considered overwhelming. Fontaine v. ...