APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 22, 1977.
The defendant, Joseph Gibbs, was charged with the murder of Isidora Colon. A jury found him guilty of murder. The court sentenced the defendant to 50 to 100 years in the State penitentiary. The defendant raises the following points on appeal, (1) the propriety of the State's cross-examination of the defendant concerning his willingness to admit to killing Isidora Colon: "if you had killed him you would tell us, wouldn't you," and the reference to this testimony in closing argument; and (2) the propriety of the 50- to 100-year sentence in view of the defendant's background and the mandate of article I, section 11 of the Illinois Constitution of 1970.
On the night of the killing, the defendant was at a party with several persons. During the evening the defendant and Dana Wall and others left the party to go over to the apartment of the victim to obtain a sweater of a rival gang. Dana Wall testified that he was with Gibbs when Gibbs knocked on the victim's apartment door and he saw the defendant shoot and kill the victim when the victim opened the door in answer to the knock. Thomas Rodriguez, who was a roommate of the victim, testified that he was present in the apartment with the victim when the knock on the door was heard, saw the victim open the door and saw the defendant shoot and kill the victim. No motive for the crime was established save the suggestion that the victim and the defendant were members of rival street gangs, which suggestion, however, was never established to be a fact. Two alibi witnesses, Clarence Kidd and Michael Trier, testified that the defendant was with them at a party and that the defendant did not leave the party during the course of the evening but left the party only when it was over, which was several hours after the shooting. The defendant testified on his own behalf, denying his involvement in the shooting and claiming to have been at the party at the time of the killing.
The last question put to Gibbs on direct examination was, "Did you kill Isidora Colon?" To this question Gibbs replied, "No, sir." The first questions asked on cross-examination were:
Q. "If you had killed him you would tell us, wouldn't you, Mr. Gibbs?
Defense Counsel: That is objected to as to form.
The Court: You may answer.
Assistant State's Attorney: If you had killed him you would tell us, is that right?