APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Defendant Connie Lewis was indicted and tried for the murder of Robert Broussard. A jury returned a verdict of guilty of voluntary manslaughter and defendant was sentenced to five to 20 years. Defendant appeals contending that the prosecutor's use of defendant's post-arrest silence on cross-examination of defendant and direct examination of other witnesses, violated defendant's right to due process of law; the trial court erroneously instructed the jury on voluntary manslaughter; since the evidence was entirely circumstantial, the trial judge improperly refused to give the second paragraph of IPI Criminal No. 3.02; the trial judge admitted evidence of a dying declaration without having first received the foundation evidence; the trial judge erroneously admitted hearsay testimony as a spontaneous declaration; defendant was denied the right to complete the impeachment of two State witnesses by introducing their prior inconsistent statements; the trial judge allowed the prosecution to introduce evidence of defendant's prior convictions, but denied defendant the right to impeach John Flores through the use of John Flores' prior convictions; the court received incompetent evidence on the cause of death issue; and the State failed to prove defendant guilty beyond a reasonable doubt.
Defendant testified that on October 12, 1972, he was in Jazzbo's Tavern at 83rd and Burley in Chicago from approximately 10:30 p.m. until 1:50 a.m. on October 13; that he then went home to 8308 South Burley where he had been living with Barbara Olmos in a second-floor apartment for about six months. When he arrived Olmos, John Flores, and Robert Broussard, the decedent, were already in the apartment and decedent had already been wounded.
Barbara Olmos and John Flores testified that defendant was present when Broussard was stabbed. The testimony of Olmos and Flores was essentially the same. Flores arrived at the apartment about 1:45 a.m. on the 13th. Broussard admitted Flores to the apartment where Olmos and defendant were quarreling in the bedroom. Flores heard a "thump up against the wall" and went into the bedroom where he saw the defendant choking Olmos. He separated them and hit the defendant knocking him down. Broussard, who had followed Flores to the bedroom, then challenged defendant to pick on someone besides a woman. Defendant arose and hit Broussard in the chest knocking him across the room. Broussard became angry and wanted to fight. Olmos asked Flores to tell them to go outside if they wanted to fight. Olmos, Flores and Broussard left the bedroom and entered the kitchen. Defendant then came out of the bedroom and began "slashing" at Broussard with a butcher knife. It is unclear whether he obtained the knife from the bedroom drawer where Olmos testified she sometimes kept kitchen knives, or from the kitchen table. Both Olmos and Flores agree, however, that as defendant approached Broussard with the knife, Broussard picked up a kitchen chair and attempted to evade defendant by backing into the living room with the chair between him and defendant. The witnesses testified that they heard noises from the living room but neither of them actually saw defendant stab Broussard. They did see defendant come out of the living room with the knife in his hand. Broussard then came out of the living room clutching his chest, fell to his knees and said to Flores, "John, he stabbed me in my heart." Defendant then came into the kitchen after Flores with the knife but Flores managed to disarm him.
Defendant denied he was present when the stabbing took place but regarding what happened after that, the testimony of defendant and the other witnesses is essentially the same. Flores went to Broussard, examined the wound and told Olmos to hold a towel to the wound until he and defendant went for an ambulance since there was no phone in the apartment. It is not clear whether Flores or defendant handed Olmos the towel.
Flores and defendant went downstairs and called the police. A few minutes later Flores flagged down a police patrol car. He told the police officer whose name he later learned was Officer Robert Ellman, that there was a man in the apartment upstairs who had been stabbed. Ellman, Flores and defendant went up to the apartment and Ellman called on the two-way radio he carried for a squadrol to take Broussard to the hospital. When Ellman asked what had happened he received no reply from any of the persons present. The three men then carried Broussard downstairs and laid him on the grass near the squad car. Olmos followed a few minutes later and yelled, "You stabbed him, Connie," and called the defendant obscene names. She then went back upstairs. At that time the squadrol and another police car arrived and Officer Willis Zalalis, at Ellman's direction, put defendant under arrest. Flores went with Broussard in the squadrol to the hospital where Broussard was pronounced dead.
Officer Robert M. Marek who had arrived with Zalalis accompanied Officer Ellman upstairs to talk to Olmos who was described as crying and hysterical. Olmos said nothing but when asked where the knife was, took the knife from the kitchen sink and gave it to the police officers. Ellman and Marek then went downstairs where Marek advised defendant, who had been standing near the squad car with Zalalis of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). Marek and Zalalis, the arresting officers then transported defendant to the police station without questioning him at the scene.
Defendant's first argument on appeal is that under Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976), the prosecutor's use of defendant's post-arrest silence to impeach defendant's exculpatory story told for the first time at trial and the prosecutor's comments in closing argument violate due process. In the instant case defendant testified on direct examination that he was at Jazzbo's and not at the apartment when the stabbing took place. On cross-examination the prosecutor asked the defendant why, upon being arrested, he did not tell the officers that he did not stab Broussard; that he had not been in the apartment when the stabbing took place; that he had been down the block at a tavern where he was known by the bartender. No specific objection was made to this line of testimony regarding defendant's right to remain silent after having been given his constitutional rights.
In Doyle two defendants, Doyle and Wood, were arrested for selling marijuana and were given their rights under Miranda after which defendant Wood apparently opted to remain silent and did not respond to the questions of arresting officers while Doyle asked only "What is this all about?" During trial defendants testified that they thought they were being framed by a police informant. This explanation characterized by the Supreme Court as "exculpatory" and "not implausible," had never been given to arresting officers, police or prosecutors until trial. On cross-examination the prosecutors repeatedly asked defendants if they had told the arresting officers what had happened, offered any explanation or protested their innocence. Over timely objection by defense counsel to each of the questions, defendants were allowed to answer that they had not given any exculpatory explanation to the arresting officers.
The defendants were convicted, their convictions were upheld on appeal and the United States Supreme Court granted certiorari and reversed and remanded holding that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving the Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. The State has not claimed that such use in the circumstances of this case might have been harmless error. Accordingly, petitioners' convictions are reversed * * *." Doyle v. Ohio, 426 U.S. 610, 619, 49 L.Ed.2d 91, 98, 96 S.Ct. 2240, 2245.
The instant case is distinguishable from Doyle in three respects. First, the defense on direct examination asked defendant what he had said to arresting officers. Defendant said that he asked what he was being arrested for and then said nothing else at the scene. Although defendant on appeal suggests that he remained silent after receiving his Miranda warnings, defendant's testimony indicates that he only remained silent at the scene but not after being taken to the police station. Defendant testified on direct examination at trial that when asked by the arresting officers in the police station if he stabbed Broussard, he responded that he had not, that he did not know what had transpired in the apartment since, "I just got there." As in People v. Queen (1974), 56 Ill.2d 560, 310 N.E.2d 166, "[W]e do not have the question presented of the right of the accused to remain silent." Defendant by his own admission did not maintain post-arrest silence, nor did he give his exculpatory explanation for the first time at trial as did the defendants in Doyle.
• 1 Secondly, in Doyle, defense counsel made timely objection to the prosecutor's questions. No such objections were made in the instant case. Defense counsel on direct examination was first to ask defendant what he had said at the police station. No objection at all was made when the prosecutor early in cross-examination asked defendant about his post-arrest silence. Later in cross-examination when a similar line of questions was broached, defense counsel objected to the characterization of defendant's testimony as a "story" and when defendant was asked if he had ever told other members of the community he was not there when Broussard was killed, defense counsel objected stating that it was immaterial and irrelevant. Both objections were sustained. In closing argument only one objection was made to the prosecutor's several references to defendant's post-arrest silence. That objection was a general objection and would seem to refer to the prosecutor's use of the word "story." That objection was overruled. This case is distinguishable from the recent case of People v. Monaghan (1976), 40 Ill. App.3d 322, 352 N.E.2d 295, where this court reversed and remanded because defense counsel's objections while not specific were clearly aimed at the Doyle line of questioning by the prosecutor. Close scrutiny of the record persuades us that this was not the case here. Failure to make proper and timely objection to the admission of evidence claimed to be objectionable generally constitutes a waiver of the right to object and cures the error, if any. (Queen, at 564.) In addition Monaghan involved post-arrest silence, which, as we previously discussed, is not present here.
Thirdly, we believe the error, if any, is harmless beyond a reasonable doubt in light of the evidence against defendant. In this case two witnesses, Flores and Olmos, testified independently that defendant was present in the apartment, argued with Olmos, choked her; that Flores struck defendant and knocked him down; that defendant then hit Broussard and knocked him down. He came after Broussard with a kitchen knife; slashed at Broussard with the knife while Broussard backed into the living room holding a kitchen chair in front of him; came out of the living room with the knife, now with blood on it, in his hand. They testified that Broussard came out of the living room where only he and defendant had been present, clutching his chest and yelling, "John, he stabbed me in my heart."
Their testimony is corroborated by Severine Flores who testified that defendant came to her house around 11:30 that evening looking for her husband, John Flores. She told him John was asleep. He asked if Broussard was there. She said he was and admitted defendant to the house. Defendant asked Broussard if he would go with him to Olmos' house and help him get in through a window since he did not have a key even though he had been living there for about six months. Broussard said he would help him and they left taking a bottle and a half of wine from the refrigerator. This coincides with Flores' testimony that he and Broussard were at Flores' house around 10 p.m. watching television. Flores went to sleep and woke up about 1:30 a.m. He left the house and went to Olmos' apartment arriving about 1:45 a.m. Broussard admitted him to the apartment where defendant and Olmos were quarreling.
Defendant maintains that from 10:30 p.m. until almost 2 a.m. he was at Jazzbo's tavern a half block away from the Olmos apartment and that when he arrived at the apartment Broussard was already ...