Fairchild, Chief Judge, Tone, Circuit Judge, and Hoffman, Senior District Judge.*fn*
HOFFMAN, Senior District Judge.
This is an appeal from an order of the district court denying a petition for a Writ of Habeas Corpus. At issue is whether the petitioner's Constitutional rights under the Fifth, Sixth and Fourteenth Amendments were violated by the questioning and argument of the State's Attorney at trial concerning petitioner's silence when confronted and identified at a lineup.
At approximately 10:00 P.M. on January 10, 1969, two men entered DD's Bar-B-Q at 5430 South State Street in Chicago, Illinois. The shorter of the two men announced a "stickup" and, during the course of the ensuing robbery, fatally shot a patron named James Blay. The taller robber remained in the rear of the restaurant with his gun drawn.
Some two months after the robbery the manager of the restaurant, Gladys Ambrose, and a customer who was in the restaurant at the time of the robbery, Sam Franklin, each identified Edgar Ross from a photograph as the taller of the two robbers. Ross was then arrested and once again identified by Mrs. Ambrose when he appeared in a lineup. Mr. Franklin, however, did not identify Ross at the lineup, claiming later that he was afraid to do so.
Ross was subsequently indicted by the Cook County Grand Jury on the charges of murder and armed robbery. At his trial, Gladys Ambrose was called as a witness for the prosecution and examined with respect to the lineup in which she identified Ross.
Q. Did you pick out a man from that group of men as being the man who came in on January 10, 1969, and shot Mr. James Blay?
Q. And who did you pick out?
A. The gentleman there -- Mr. Ross. (Indicating)
Q. And when you viewed the Defendant, Edgar Ross, did Mr. Ross say anything to you?
Q. And as you view Edgar Ross right now, is Edgar Ross the man that came in and shot James Blay on January 10, 1969?
The police officer who conducted the lineup, Rudolph Nimocks, was also called by the prosecution, and during his direct ...