APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
After a jury trial the defendant, Terry Kent, was found guilty of unlawful use of weapons: Possession of a shotgun with a barrel less than 18 inches (Ill. Rev. Stat. 1969, ch. 38, par. 24-1(a)7). He was sentenced to the Illinois State Penitentiary for a term of two to five years. On appeal, the defendant presents the following issues for review:
1. Whether the prosecutor's closing argument constituted prejudicial error.
2. Whether the prosecutor's introduction of another criminal charge against the defendant constituted prejudicial error.
3. Whether the trial judge's voir dire panel instructions constituted reversible error.
4. Whether the State failed to prove the defendant guilty beyond a reasonable doubt.
At about 2:30 A.M. on November 18, 1971, Chicago Police Officers Michael Bass and Walter Kupetis stopped a car driven by the defendant, Terry Kent, for making a left turn without giving a signal. While waiting for Kent to produce his driver's license, Officer Bass observed the barrel of a rifle or shotgun underneath a coat lying on the front seat of the car between Kent and his passenger, David Johnson. Subsequently the gun was identified as a .12 gauge J.C. Higgins pump, sawed-off shotgun. It contained three shells.
At trial the defendant testified that the gun belonged to his passenger, David Johnson. Kent testified that earlier on the night of his arrest he had been at a tavern that was robbed by Johnson, who then "ordered" Kent to drive him around. Kent further testified that he had told a detective shortly after his arrest that he "didn't know anything about this" and that it was not until January 7, 1971 that he "got a chance" to tell anyone that he was a captive of Johnson at the time of his arrest. On cross-examination, he denied telling the arresting officers that he had obtained the gun from a man down the street for $20.
The first point Kent raises in his appeal is that the prosecutor's closing argument constituted prejudicial error because repeated comments were made on the fact that the defendant did not assert his defense of compulsion until he had been in jail for seven weeks. He objects to the following statements made by the prosecutor in closing argument:
"What he does is allows himself to be taken, like any good citizen would be taken who is a victim, allows himself to be handcuffed, transported into a police station without saying a word, or just listening to a police officer saying tell it to the judge, he allows himself to be taken before a judge, where he says nothing, to be held in jail for six or seven weeks, says nothing. And finally he says something to the judge that he was a victim. Here is a man that sat over in jail and said nothing and now eight weeks later think of the defense. Any why [sic] is it a good defense to him? Because at this point now Johnson is a fugitive from justice."
Kent contends that since a defendant has the right to remain silent upon arrest, it was error for the prosecutor to imply to the jury that he had a duty to speak and that his failure to do so indicated guilt.
It is quite true that a defendant has the right to remain silent upon being taken into custody (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 103-2 (a)), and that the exercise of that right shall not be subject to comment at trial. (People v. Lewerenz (1962), 24 Ill.2d 295, 181 N.E.2d 99.) However, at issue here is not the defendant's right to remain silent but his credibility stemming from various explanations of how he happened to be driving a car with a sawed-off shotgun next to him.
The evidence clearly indicates that Kent did not exercise his right to remain silent but voluntarily made a statement to the police. There are two versions of that statement: According to Kent's testimony, he told the police that he "didn't know anything about this"; according to the arresting officers, Kent stated that he had purchased the gun. Even if Kent's version is accepted, his initial denial of any knowledge of the events in question and his later assertion that he was a captive is a conflict by omission. If the testimony of the arresting officers is accepted, there is a direct conflict in Kent's explanations.
To support his contention, Kent relies upon People v. McVet (1972), 7 Ill. App.3d 381, 287 N.E.2d 479, in which the court stated that cross-examination regarding the defendant's silence upon arrest was error capable of suggesting to the jury that defendant had a duty to speak and that his failure to do so indicated guilt. However, that case is clearly distinguishable from the situation presented by ...