APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Phillip Lyons, was charged by indictment with the murder of Rufus Stinson and found guilty of that crime by a jury in the circuit court of Cook County. After a hearing in aggravation and mitigation, he was sentenced to serve not less than 25 nor more than 60 years in the Illinois State Penitentiary. Defendant appeals, contending that certain remarks made by the prosecution on final argument were improper and prejudicial; that the trial court improperly permitted evidence of defendant's refusal to answer questions after his arrest; that the evidence failed to establish his guilt beyond a reasonable doubt; that the trial court incorrectly instructed the jury; and that the trial court erred by permitting the prosecution to introduce improper rebuttal evidence.
On April 14, 1973, at approximately 9 a.m., Rufus Stinson was shot to death during an altercation with defendant, Phillip Lyons. The shooting occurred in a parking lot at 103rd Street near Michigan Avenue, Chicago, Illinois. Just after this incident, defendant left the scene in his automobile and proceeded to the Grand Crossing police station located at 75th and Maryland. There, after being given his Miranda warnings, he told Investigator Charles Grunhard, according to Grunhard, that Rufus Stinson had threatened him with a gun, that a fight had ensued and that the shooting was the accidental result of that fight. The gun which killed Rufus Stinson was never recovered. Defendant also told Investigator Grunhard, according to Grunhard, that he could not recall what, if anything, he had done with it after the shooting.
At trial, the State sought to establish that defendant owned the gun which killed Rufus Stinson, shot the deceased in cold blood and then disposed of the gun on his way to the police station. Defendant did not testify. In final argument to the jury, the assistant State's attorney commented on the disappearance of the alleged murder weapon:
"Where is that gun? I sure wish we had it. Only one man knows where that gun is and he's sitting right there. Phillip Lyons.
And I have not heard one stitch of evidence about that gun."
It is defendant's position that these comments were prejudicial since they improperly called the jury's attention to the fact that defendant had chosen not to testify and encouraged the jury to draw an inference of guilt from that decision. Section 6 of the Criminal Code of 1874 (Ill. Rev. Stat. 1971, ch. 38, par. 155-1) states in pertinent part the following:
"* * * [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 made to or upon such neglect."
The recognized test for determining whether a prosecutor's comment has violated a defendant's exercise of his right to remain silent under this statute was set forth for the first time in Watt v. People (1888), 126 Ill. 9, 32, 18 N.E. 340, 350:
"* * * [W]as the reference intended or calculated to direct the attention of the jury to the defendant's neglect to avail himself of his legal right to testify?"
Here, the prosecutor directly referred to defendant by name and then unambiguously implied that defendant could have offered an explanation for the disappearance of the gun in question, but had chosen to remain silent. Defendant's objection to this argument was overruled. In our opinion, these remarks of the prosecutor constituted a deliberate effort to call the attention of the jury to the fact that defendant had elected not to testify. Accordingly, we find that they were improper and require that the judgment be reversed. (People v. Burton (1969), 44 Ill.2d 53, 254 N.E.2d 527.) Because the comments of the State's attorney concerned the defendant's failure to testify and not his failure to produce physical evidence within his control, we feel that the State's reliance upon People v. Williams (1968), 40 Ill.2d 522, 240 N.E.2d 645, is misplaced and inappropriate.
• 1 Further, the remarks of the prosecutor concerned a material factor in defendant's case, the ownership of the missing gun. For this reason, we are unable to characterize their prejudicial effect as harmless beyond a reasonable doubt. (People v. Cline (1975), 60 Ill.2d 561, 328 N.E.2d 534.) Unlike other cases where improper prosecutorial comments have been viewed as harmless, the proof of defendant's guilt in the instant case was hardly overwhelming. The accounts of the incident given by the State's two occurrence witnesses were fundamentally different. Carl Coleman, whose testimony at a preliminary hearing was read to the jury, *fn1 stated that defendant was seated in his car at the time the shooting occurred. Willie Edward Lee, Jr., a radio announcer for Radio Station WVON, testified that both men were struggling outside the car at the time the shot was fired. Walter Johnson and Walton Key, both witnesses for the defense, testified that the deceased provoked the fatal struggle by first assaulting defendant with a gun or what appeared to be a gun. The State argued that the shooting was unprovoked and deliberate. Such contradictions in the evidence make it impossible to discount the prejudicial effect of the prosecutor's remarks. Accordingly, this case must be remanded for a new trial. People v. Martin (1975), 29 Ill. App.3d 825, 331 N.E.2d 311.
Defendant contends that two other elements of the State's final argument were improper. First, defendant refers to the prosecutor's unsupported pronouncement that defense witnesses Johnson and Key were "* * * lying through their teeth"; second, to the prosecutor's allegedly inflammatory reference to the deceased's wife and children. The State argues, alternatively, that these remarks were proper, but that, if improper, any error was harmless. We have examined the record and conclude that, in view of the evidence, we cannot classify them as harmless error. In our opinion these remarks should not have been made and we presume they will not be repeated upon a retrial.
Defendant also argues that several additional errors were committed at trial. Although this case must be reversed and remanded for a new trial on other grounds, we choose to discuss those questions raised by defendant which may arise again at trial. The first claimed error is the failure of the trial court to inform the jury by instruction that to be culpable for the killing of Rufus Stinson under sections 9-1, 9-2 or 9-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1, 9-2, 9-3), defendant must have acted "without lawful justification." The precise question raised by this omission was carefully reviewed in People v. Wright (1975), 32 Ill. App.3d 736, 743-44, 336 N.E.2d 18, 24-25. There it was held that when an affirmative defense such as ...