APPEAL from the Circuit Court of Peoria County; the Hon.
RICHARD E. EAGLETON, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 7, 1975.
After trial by jury in the circuit court of Peoria County, defendant, Booker Blakes, was convicted of armed robbery and sentenced to a term of not less than 5 years nor more than 20 years in the Illinois State Penitentiary. This appeal is from that judgment.
On January 29, 1973, at approximately 8:30 P.M. a man came into the Western Avenue Liquor Store and committed an armed robbery. About 2 weeks later defendant was arrested for this armed robbery. Prior to trial, defendant was served with a motion that he inform the People prior to trial if he intended to assert an alibi defense and if so, the names and addresses of witnesses whom he might call in support of that defense. Defendant objected to the request. His objection was overruled and he was ordered to respond. (This order was prior to the holding in People v. Fields, 59 Ill.2d 516, 322 N.E.2d 33, and the propriety of the order is not in issue.) Defendant submitted a list containing the names and addresses of four witnesses he intended to call to establish his alibi defense. Of the four names defendant listed he called two, his sister Dorothy Jackson and his friend John Fleming. The defendant's sister Dorothy Jackson, testified defendant came to her house at about 5 minutes after 8 on January 29, 1973, and left 15 minutes later. John Flemming testified he was at Dorothy Jackson's house when defendant arrived about 8 o'clock and they left together at about 8:15. He drove defendant to Neal's Lounge and dropped him off, and defendant was still there when Flemming returned at 9 o'clock. He also stated that the Western Liquor Store is about 2 1/2 miles from Neal's Lounge. Defendant testified he remained at Neal's Lounge from the time he was dropped off until about 1:30 A.M.
On cross-examination of defendant the following testimony occurred regarding defendant's presence in Neal's Lounge:
"Q. Who was in Neal's at the time you went there January 29, 1973?
A. There were quite a few people in there.
Q. Who, in particular that you knew?
A. George Johnson, William Cathrew, a guy by the name of Russell, Joe Moore, Herman Carter. There was a lot of others but I can't remember everybody's name.
Q. Those names you happen to remember right now?
None of these names were on the list of four witnesses submitted by defendant prior to trial. It should also be noted defendant was not asked who saw him in the lounge on the date in question. He was asked who was in the lounge that he knew.
• 1, 2 The first issue on appeal relates to the propriety of the assistant State's attorney's eliciting from defendant on cross-examination the names of potential alibi witnesses. A recent case, People v. Mays, 3 Ill. App.3d 512, 277 N.E.2d 547, disposes of this issue. In Mays the defendant claimed the prosecution's comment upon defendant's failure to produce certain witnesses shifted the burden of proof to defendant to prove his innocence. The court cited People v. Munday, 280 Ill. 32, 117 N.E. 286, for the general rule that it is improper for the prosecution to comment on defendant's failure to present witnesses when such witnesses are easily accessible to both parties and People v. Smith, 74 Ill. App.2d 458, 221 N.E.2d 68, for the further rule that such comment is permitted where such witnesses are unavailable to the prosecution. The court went on to state, "As a subsidiary application of the general rule potential alibi witnesses injected into the case by the defendant are deemed unavailable to the prosecution and comment with regard to the failure of such witnesses to testify is proper. People v. Gray, 52 Ill. App.2d 177, 201 N.E.2d 756." (3 Ill. App.3d 512, 514.) The issue in Mays was whether the potential witnesses there were injected into the case by defendant. The court in resolving the questions held: "When the names are elicited by cross-examination it is our conclusion that the responsibility for the failure of the defendant to produce such witnesses can not be assessed against the defendant or has the same significance as when the defendant himself refers to such potential witnesses in an apparent attempt to bolster his defense." (3 Ill. App.3d 512, 516.) We hold it was error in the case at bar to allow the People to elicit from defendant on cross-examination the names of potential alibi witnesses.
The related issue is whether it was reversible error for the assistant State's attorney to comment in closing argument on defendant's failure to produce these potential alibi witnesses. A portion of the assistant State's attorney's closing argument which defendant contends was error and ...