APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, Morris Hooker, was indicted for the armed robbery of Stephen Polcyn. (Ill. Rev. Stat. 1973, ch. 38, par. 18-2.) Following a jury trial he was found guilty and sentenced to a term of imprisonment of 6 to 20 years. On appeal defendant contends that: (1) he was denied a fair trial because of questions and comments by the prosecutor concerning defendant's post-arrest silence; (2) the trial court improperly refused to instruct the jury on the offense of theft; (3) the trial court erred in refusing to answer a question posed by the jury concerning an instruction; (4) defendant was prejudiced by the fact that the jury was inadvertently given a set of instructions containing designations of the proposing party and other extraneous markings; and (5) defendant's maximum sentence is excessive, as compared to the maximum sentences of 18 years imposed on him at the same hearing for similar offenses following pleas of guilty.
A full recitation of the evidence is unnecessary because we have concluded that defendant's conviction must be reversed, and this case remanded for a new trial. (People v. Monaghan (1976), 40 Ill. App.3d 322, 352 N.E.2d 295.) Defendant testified and admitted at trial that on April 30, 1974, he and two other men, Martin Berry and Candido Laureano, went to the Arthur Treacher's Fish and Chips store on Addison Street, displayed a handgun, announced a holdup, forced one employee into a cooler, and took cash from the assistant manager, Stephen Polcyn. The State's witnesses testified to substantially the same sequence of events. While the participants were still inside, police surrounded the store. Polcyn unlocked the front door to allow the police to enter.
Defendant additionally testified that Laureano was also an employee of the Addison Street Arthur Treacher's store. Prior to the incident Laureano told him that Polcyn had "arranged a setup" whereby the armed robbery would merely constitute a theft. According to the plan Polcyn had arranged for defendant and his two cohorts to enter the store, "stick it up, and leave." The gun was brought in case someone else was present in the store. Defendant stated that when the police arrived he said, "I guess we'll have to give up," to which Polcyn replied, "well, we got to." Defendant further stated that the gun only fired pellets, which he did not have during the incident, and that the gun was incapable of firing on the day of the offense.
On cross-examination defendant admitted that he was a former employee of Arthur Treacher's and had been fired four months prior to the instant occurrence. He also admitted that earlier on the evening of April 30, 1974, he, Berry and Laureano had robbed another Arthur Treacher's store on Milwaukee Avenue.
Laura Reich testified in rebuttal for the State that on April 21, 1974, nine days before the instant offense, defendant and one cohort robbed at gunpoint an Arthur Treacher's store on Central Avenue. Also, in rebuttal, Stephen Polcyn testified that he did not know Laureano until after the April 30 incident, and he did not plan with Laureano to steal money from the Addison Street Arthur Treacher's store.
Defendant contends initially that he was denied a fair trial by the prosecution's erroneous inquiry into his failure to raise at any time before trial his claim that the crime was a "setup" by Polcyn and Laureano. Defendant argues that such inquiry, along with closing commentary by the prosecutor, violated his constitutional right to avoid self-incrimination.
The complained of exchange took place during cross-examination of defendant and occurred as follows:
"Q. Did you talk to any of the police officers that night?
Q. You didn't tell them it was a setup and you weren't involved.?
Q. Did you tell you were at the preliminary hearing in this case, right?
Q. Did you testify at the preliminary hearing it was a setup?
Mr. Harris [defense counsel]: Objection.
The Court: Objection sustained.
Mr. Harris: Ask that it be ...