APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Larry Patterson (defendant) was found guilty of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2), and sentenced to 5 to 15 years. Defendant has appealed.
In this court, defendant contends that he was not proved guilty beyond a reasonable doubt because the alibi evidence was strong and the identification was defective. He also asserts that he was denied a fair trial as a result of several prosecutorial errors during cross-examination and final argument, including violations of the privilege against self-incrimination and comments on matters not in evidence, and that he was prevented from demonstrating the bias of a witness for the People.
The People urge that the identification was positive and the alibi evidence was insufficient to raise a reasonable doubt of guilt, and defendant was not denied a fair trial because the challenged final argument was based on the evidence or given in response to defendant's argument and any prejudicial effect was cured by the court. The State further denies that defendant's right to remain silent was infringed and denies that any prejudice resulted from the court's refusal to permit the alleged evidence of bias of the witness.
At trial, two ticket counter employees identified defendant as the man who had robbed an airline office at gunpoint on the afternoon of October 23, 1971. Defendant testified that he was employed as a furniture mover on the date of the crime and had helped to move three families that day. He also testified that, after a guilty plea, he had been previously convicted of robbery and had served time in the penitentiary. He testified that he had never been convicted of any other crime. A truck driver testified that on the date of the armed robbery, between 7:30 a.m. and 8 p.m., he, defendant and a third man had moved three households and defendant had not left his presence during that time. Moving company records tended to show that defendant had received three moving assignments on October 23, 1971, but this was a subject of dispute. Further summary of the evidence, or expression of any opinion thereon, is neither necessary nor appropriate in view of our conclusion that the conviction must be reversed and the cause remanded because grossly improper final argument and prejudicial cross-examination by the prosecutor resulted in denial of a fair trial. See the cases cited in People v. Monaghan (1976), 40 Ill. App.3d 322, 323, 352 N.E.2d 295.
• 1 The record before us reflects multiple violations of the fundamental principle that statements of fact not based upon the evidence may not properly be argued before a jury (People v. Beier (1963), 29 Ill.2d 511, 517, 194 N.E.2d 280; People v. Johnson (1976), 35 Ill. App.3d 666, 668, 341 N.E.2d 443). In arguing beyond the record, a prosecutor, in substance, introduces his own unsworn testimony in lieu of competent evidence. (People v. Vasquez (1972), 8 Ill. App.3d 679, 681, 291 N.E.2d 5.) This type of argument must be strongly condemned if we are to perpetuate a fair and impartial administration of criminal justice.
During rebuttal argument, one of the assistant State's Attorneys, in charging that defendant's alibi had been recently fabricated, stated:
"Well, the police cannot check an alibi, when he never tells them about it for over three years. * * * Do you wait for over three years and then spring it during the middle of trial, and then turn around and have the gall to say why didn't the police check it in March [when defendant was arrested]? He [sic] reason they didn't check it in March was because he didn't tell them about it in March.
MR. HOWARD [defense attorney]: Objection. There is no evidence of that. Objection."
The assistant State's Attorney then added: "And the reason he didn't tell them about it was because it didn't exist in March." The court sustained the objection and struck "the last part of that phrase." In spite of the objection, and the action promptly taken by the trial judge, the prosecutor persisted: "All right, not having told them about it in March ." At this point, another objection was sustained.
• 2 This portion of the argument was clearly beyond the record and any legitimate inferences that could be drawn from it. The sole evidence bearing on the prosecutor's assertion was defendant's testimony that after his arrest he had a conversation about the robbery with a policeman. The substance of that conversation does not appear in the record. The argument that defendant failed to inform the police of his alibi was thus outside the record, inflammatory and wholly unwarranted. In addition, even if these remarks had been supported by the record, we have serious doubts that they would have been proper. The United States Supreme Court, without reaching the constitutional issue raised by the privilege against self-incrimination, has noted that a defendant's silence while in custody may be insolubly ambiguous and the prejudicial effect of this fact upon the jury may outweigh its probative value. (United States v. Hale (1975), 422 U.S. 171, 45 L.Ed.2d 99, 95 S.Ct. 2133.) This principle was recently cited with approval in People v. Wright (1975), 32 Ill. App.3d 736, 742, 336 N.E.2d 18, where this court refused to classify the error as harmless.
• 3 The State's Attorney continued far outside the record in a similarly prejudicial manner when he argued: "How about the preliminary hearing in front of Judge Sulski? Do you think he mentioned it [the alibi] then? I mean, now we are in the courtroom. * * * We are talking about now, being in a courtroom, with the lawyer, his own lawyer. Where is the alibi then? Nowhere, no mention of that alibi." The record contains no testimony concerning defendant's participation in any preliminary hearing. This argument was grossly improper. In addition, defendant was not required to present his defenses at the preliminary proceedings. (People v. Bonner (1967), 37 Ill.2d 553, 557, 229 N.E.2d 527.) A preliminary hearing may be terminated once probable cause has been established. (37 Ill.2d 553, 560.) Although no objection was made to this argument, it patently served only to curtail the opportunity for a fair appraisal of defendant's alibi evidence by the jury. It was definitely unfair and prejudicial. This court may and should consider "error relating to seriously prejudicial arguments of counsel, even though no objection was made at trial." (People v. Young (1975), 33 Ill. App.3d 443, 447, 337 N.E.2d 40, and cases there cited.) This is particularly true where the error, not objected to, is but one of a series of repeated and seriously prejudicial acts of misconduct in cross-examination and final argument to which proper objections were made.
• 4 The State contends that the comments about defendant's failure to assert his alibi were legitimate response to specified portions of defense counsel's final argument. We have examined these cited sections of the defense argument and find that they contain a review of the alibi evidence and a statement by defense counsel that if he were charged with an offense occurring five or six months ago, all he could do would be to present evidence of his whereabouts on the day of the crime. We are unable to conclude that the prosecutor's remarks were invited by defense argument.
Regarding the comments on defendant's silence, we have limited our review to the prejudice flowing from the State's Attorney's reliance upon matters not in evidence. We do not reach or consider the possible significance on constitutional grounds of the use for impeachment purposes of defendant's failure to assert his alibi after his arrest or at the preliminary hearing. These issues are not raised by the record before us. Whether such evidence would be constitutionally permissible on retrial of this case depends in part on several facts, not present here, such as the substance of defendant's ...