APPEAL from the Circuit Court of Cook County; the Hon. JOHN F.
HECHINGER, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Allen Suggs (defendant) was convicted of voluntary manslaughter and armed robbery. He was sentenced to 6 years and 8 months to 20 years for manslaughter. No sentence was imposed for armed robbery. Defendant has appealed.
In this court, defendant contends he was denied a fair trial because of questions and comments by the prosecutor concerning defendant's post-arrest silence, improper closing argument and derogatory language directed by the assistant State's Attorney at defense counsel. He further asserts that he was denied effective assistance of counsel; he was not proved guilty beyond a reasonable doubt and the manslaughter and armed robbery were one criminal act so that the latter conviction must be reversed. The State responds that the silence issue was waived or was harmless error and comments during closing argument were proper, not objected to and not prejudicial. The People further urge, the alleged instances of ineffective assistance of counsel were not prejudicial to defendant and he was proved guilty beyond a reasonable doubt.
A full recitation of the evidence is unnecessary because we have concluded that defendant's conviction must be reversed. (People v. Monaghan (1976), 40 Ill. App.3d 322, 323, 352 N.E.2d 295, and cases there cited.) Briefly summarized, the State's case rested on the testimony of Juanita Turner that defendant and another man, Daniels, came to the front door of her apartment between 2 and 3 a.m. on February 8, 1973. Sam Cokely, Jr., who had been living with the witness and had fathered one of her children, answered the door. The witness testified that, after an argument, defendant took a gun from the waistband of Cokely's pants and handed it to Daniels. Cokely had his hands at his sides. Defendant then fatally shot Cokely. Defendant fled with Daniels. The witness testified that a revolver "looked[ed] liked the same one" as had been fired by defendant. The gun was admitted into evidence.
One of the investigating police officers testified that he observed bloodstains "in front of the door" at Turner's apartment and nowhere else. A bullet was also recovered in the hallway near the front of the door. It was stipulated that the condition of the bullet made it unsuitable for comparison with test rounds fired from the pistol introduced by the State.
Defendant testified that he and Daniels went to Turner's apartment and Cokely answered the door. After a brief conversation, he pointed a gun at defendant with his right hand. Defendant grabbed Cokely's gun hand and both men struggled over the gun in the hallway outside Turner's apartment. After drawing his own gun from his coat pocket, defendant shot Cokely in self-defense. On cross-examination, defendant said that he did not know where he and Cokely were standing when the shot was fired, but that Cokely had fallen in front of an adjacent apartment 12 to 15 feet away from Turner's front door.
After the shooting, defendant and Daniels went to a friend's house where defendant gave his gun to the friend. Defendant went to his mother's house where he was arrested in the early morning following the shooting.
In several instances during trial, the State called attention to defendant's post-arrest custodial silence. During cross-examination, the prosecutor asked defendant whether he had told the police what happened after they had come to his mother's house and whether he had told the police at the police station what had happened. Defendant answered negatively to each question. The assistant State's Attorney also elicited defendant's testimony that the first person he had told about his self-defense story was his lawyer, more than two days after the shooting. During re-cross-examination, the prosecutor continued:
"Q: Did the police talk to you about this occurrence?
Q: Did you tell the police about being at Bobby's house?
At this point, defense counsel objected that the question invaded defendant's rights in force during custodial question. The objection was ...