APPEAL from the Circuit Court of Sangamon County; the Hon.
GEORGE P. COUTRAKON, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
VanZile was convicted of aggravated kidnapping, armed robbery and burglary by a jury and was sentenced to 20 to 60 years. A co-indictee, Massey, pleaded guilty following plea bargaining, was sentenced to 10 to 30 years and was the star witness against VanZile.
Errors assigned include: improper cross-examination of some defense witnesses collectively referred to in closing argument as being from the "Menard Penitentiary Witness Bureau"; exclusion of the testimony of one witness whose testimony would have been the same as other witnesses; admission in rebuttal of two prior consistent statements of Massey; denial of another witness' testimony; failure to grant a mistrial after testimony that defendant had committed another crime (smoking marijuana); error in admitting in evidence defendant's silence following Miranda warnings; inflammatory closing argument; outright reversal because the proof was not beyond a reasonable doubt; and, finally, if we affirm, that we should reduce the sentence.
An extensively detailed recital of the facts is not necessary. Rather, somewhat more than usual heed must be paid to the presentation of proof rather than the proof itself. Briefly, Massey testified that he and VanZile had planned the kidnapping for ransom of two Springfield residents. They procured masks and gloves, took their guns, and in the early morning hours of October 24, 1974, went to the home of the victims. They laid in wait in the garage and when the wife came out, they took her into the house at gunpoint, told her husband they wanted $20,000 in small bills, and he then by telephone made arrangements for the money with a bank of which he was a director. The wife was then tied to a bed and Massey stayed with her. Defendant went with the husband. Following VanZile's directions, the husband-victim then went to the bank, got the money, returned on a prearranged route, gave two long horn blasts at a designated point and proceeded back home. Massey, still there with the wife, took the money from the husband, ordered him into the trunk of her car, drove to a remote area, ordered him out and drove off, following a warning not to call any law enforcement officers and to stay put. The husband shortly thereafter gave the alarm. Both he and his wife were unhurt. The kidnappers rendezvoused and went to Massey's home where defendant also lived.
Some "bait" money in the form of prerecorded serial numbers of bills had been included in the $20,000 by bank personnel who became understandably suspicious when they received the call for the money. That same day an informer advised the police that defendant and Massey were the kidnappers. A search warrant was issued and Massey's residence searched. $1,000 in tens, twenties and fifties was discovered, plus $250 in VanZile's room. Massey, his wife and defendant were arrested and charged with the crime. Defendant gave permission for a search of his car where over $9,000 was found in the trunk along with an automatic. VanZile was given the Miranda warnings, was told about the gun, denied that he owned one and said "he didn't want to talk about it." At about the same time Massey admitted his involvement and that of defendant, but said that his wife was not involved. He likewise gave his acquiesence for a search of his wife's car. Over $8,000 was found. Massey then gave a written statement to the police which was in substantial conformity with his oral statement. Mrs. Massey was indicted for obstruction of justice. The plea bargaining agreement contemplated the dropping of her charge, Massey's testimony against defendant and a sentence of 10-30 years. The contract was made and the agreement was lived up to. Mrs. Massey also testified as to what she knew. Defendant denied any involvement.
With regard to the first error raised improper cross-examination seven persons testified for defendant that Massey had told them, or they had heard Massey tell others, that defendant was not involved, that a person unnamed was his partner in crime. These statements were purportedly made either at the Menard Penitentiary or in the Sangamon County Jail. According to one of these witnesses, Massey would not say who helped him but that this person had gotten word to him that if he changed his story, that is, not implicate defendant, his wife would be killed. This witness, as well as all the other six, were examined as to why they would not talk to investigators sent by the State's Attorney. Certain of these witnesses were out on bond, and this was brought out on cross-examination. Others were cross-examined about their appearances as defense witnesses in another criminal case that had taken place previously and about visiting their families while in Springfield for defendant's trial. All of these witnesses were asked by investigators or police what they knew and all had refused to talk.
• 1 Is the refusal to talk to the State's investigators admissible as evidence? Or to put it more directly, was such proof germane to any issue being tried? If it was not, can its admission otherwise, as the State suggests, find approbation in the rule that the extent and latitude of cross-examination is generally for the trial court and such will not cause a reversal unless there has been an abuse of discretion? This latter question answers itself, however, because if this cross-examination was improper, then it would appear to us to be an abuse of discretion, because, no matter how we look at it, evidence that seven witnesses had refused to talk to agents of the State's Attorney in a criminal trial is very damaging indeed. It attacks severely their credibility, for, if one is telling the truth, why not tell such truth to anybody who asks? To our view, there is a reasonable inference to be drawn from a refusal to discuss a matter which would lead reasonable men to wonder if what the witness has testified to was indeed the truth. But in giving the answer as to whether or not there has been abuse of discretion, we also answer the earlier questions.
• 2 The credibility of a witness is always an issue more correctly, in issue. A refusal to talk in advance of trial to the other side reasonably could indicate hostility by the witness to the inquiring side, or at least a bias for, or an interest in, a favorable outcome for the side calling him. We say "could" because triers of the fact need not invariably so conclude, but they reasonably can do so. And if triers of the fact can reasonably infer this, then we do not have forbidden impeachment on a collateral matter, but rather on a very germane matter: the credibility of that witness. Likewise, an imprisoned witness being allowed to visit his family and his prior testimony in previous trials reasonably implies, we think, that such witness could be a professional (we use the word invidiously) witness in that he desires a change of scene or just plain likes to testify, both of which reflect on his very oath and his possible disinclination to tell the truth. The testimony adduced on cross-examination as to one of the witnesses being out on bond and urged as improper was actually brought out on direct by the defense, and thus the "open door" doctrine applies absolving error.
• 3 Under our present system of liberal discovery, both sides at a minimum know the witnesses who will oppose them. Admittedly, both sides have the right to attempt to interview the other's witnesses. Admittedly too, witnesses have a corollary right not to be interviewed if they so choose. But this refusal, in our opinion, can be used against them to argue bias, hostility, interest in outcome, all of which look to credibility. It is a risk the witness or his side takes. That these are reasonable inferences from such conduct cannot be gainsaid. Although they are not inexorable, they are reasonable. It is up to the trier of the fact to accept or reject them. No cases are cited to us squarely in point. The State analogizes the situation to that where a witness failed to assert a fact in a context in which it would have been likely for him to assert it. In People v. McMath (1968), 104 Ill. App.2d 302, 244 N.E.2d 330, an alibi witness was present when defendant was taken into custody in the witness' place of business. He knew that defendant was in custody, knew that a crime had been committed, that defendant was a suspect (indeed, the police questioned defendant in his presence). At the trial he testified that defendant had been in his place of business at the time of the crime. The State was then permitted to bring out on cross-examination his silence at the time defendant was in his presence for the purpose of bringing his credibility into question. As it most certainly did. The court considered this a permissible "tactic": "* * * the prosecutor argued that the failure of [the witness] to speak in defendant's defense at the service station was an indication contrary to his extensive alibi testimony at trial. We feel that the prosecutor's tactic here was permissible" (104 Ill. App.2d 302, 315, 244 N.E.2d 330, 336), and concluded that the cross-examination "was properly founded and was relevant to the jury's determination of the credibility of the witness."
Yet this analogy is not wholly satisfactory. The silence of the witness is more akin to a prior inconsistent statement. Reasonably he should have said something but did not. The inferences so raised by silence became inconsistent with his testimony. We may be crossing a threshold, but it seems to us that when one is asked to be interviewed on what his testimony will be, he declines at the risk that he may be asked later on at trial about such fact and his reasons therefor. It is a risk he takes. Perhaps it can be explained away, but it is nonetheless still a risk. Again, the lack of cases is a puzzlement. We think that it is proper to bring out on cross-examination the fact that the witness has refused to talk to the examiner's side of the case where a fifth amendment privilege against self-incrimination of that witness is not relevant.
Although a civil case, Goertz v. Chicago & North Western Ry. Co. (1958), 19 Ill. App.2d 261, 153 N.E.2d 486, held it proper to examine a witness (as was done here) where it was claimed (as here) that this was error as being impeachment on an immaterial matter. The trial court had permitted an important witness for defendant to be asked to recall whether someone on behalf of plaintiff had asked him for a statement concerning the accident. He could not recall. And with regard to this the reviewing court said:
"It was material to show that he refused to give such a statement. Neither was defendant's witness [named] discredited on immaterial question, the time after the accident when he first saw defendant's representative and who it was he saw. * * * Memory, powers of observation and bias are several elements a jury must consider when evaluating testimony." 19 Ill. App.2d 261, 272, 153 N.E.2d 486, ____.
Cases cited by defendant have variations in factual context which make them readily distinguishable, just as the cases cited by the State as to the failure to assert a fact when otherwise it might have been expected. They are neither applicable nor persuasive here.
Defendant argues that there was something disingenuous, hence improper, in the State attempting to interview these witnesses because they knew full well that they wouldn't talk to them. It is pure surmise and nothing more to say that the investigators knew that they would get the ...