APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN MACKOFF, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Richard B. Moss, was charged by indictment with the offense of murder in connection with the homicide of one Craig Saunders. (Ill. Rev. Stat. 1971, ch. 38, par. 9-1.) Upon a jury trial defendant was found to be guilty as charged. Judgment was entered on the verdict and defendant was sentenced to serve a term of confinement in the Illinois State Penitentiary of 15-45 years.
From entry of the judgment of conviction defendant appeals contending (1) that the trial court abused its discretion in unduly extending the scope of cross-examination by the prosecution of certain defense witnesses; (2) that the trial court erred in permitting the State to present rebuttal testimony which had been previously offered in its case-in-chief; (3) that the prosecution's closing argument was improper and served to deny defendant a fair trial; and (4) that the trial court unduly restricted defendant's closing argument.
A review of the evidence establishes that in the late evening hours of Saturday, January 26, 1974, Craig Saunders died of gunshot wounds suffered during the course of a tavern brawl which erupted outside the Rusty Nail Pub located at 5800 West Belmont Avenue in Chicago, Illinois. Among those involved in the altercation were Saunders, Rick Avenna, James Crowe, William Paradise, Edward Passeri and defendant, Richard Moss.
At trial, the State adduced the testimony of Avenna, Paradise and Crowe in its case-in-chief. Each testified that he arrived at the tavern in the company of the deceased at approximately 10 p.m. and that the quartet drank beer, played games and mingled in the crowd. Shortly before midnight, a "verbal argument" ensued between the deceased and defendant which escalated to the suggestion that they "step outside." Avenna, Paradise, Crowe and Saunders left the tavern en masse along with defendant and his friend, Edward Passeri.
According to the State's witnesses, defendant and Passeri attacked Saunders immediately as he left the tavern and two separate fist-fights subsequently developed. Saunders and Passeri fought near an automobile parked on the street adjacent to the tavern. Paradise and defendant struggled in the nearby intersection. During the several minutes in which the fights occurred the entire vicinity was illuminated by streetlamps and light emanating from the tavern.
Avenna, Paradise and Crowe testified that they observed defendant run to a Buick automobile parked outside the tavern, stoop so as to reach under the front end of the vehicle and then stand up with his hand concealed inside his coat pocket. Avenna testified that defendant thereafter attempted to enter the vehicle from the passenger side without success. Defendant then drew a gun from his coat, ran to where Passeri and Saunders were fighting and, after ordering Passeri from the line of fire, defendant discharged the weapon twice into Saunders' body. Saunders was struck in the head and chest by two .22-calibre bullets and subsequently died of his wounds.
As police arrived on the scene both defendant and Passeri fled. Passeri was captured a few blocks away and defendant was arrested at his home the next day. Examination of the Buick automobile established that it was owned by defendant. A box containing 19 .22-calibre bullets was recovered from the vehicle's rear seat.
Defendant adduced the testimony of Edward Passeri who stated that he had fired the shots which killed Craig Saunders. According to Passeri, he and defendant were ambushed as they left the tavern by Saunders and his party. During the course of the struggle, Saunders dazed Passeri by stabbing him in the head with a pair of scissors. Passeri observed a group of men attacking defendant and Saunders again accosted Passeri by threatening to kill him. Passeri then drew a weapon concealed in his boot, shot Saunders and fled with defendant.
On cross-examination and over defense objection, Passeri stated that prior to trial he had failed to inform the police, the prosecution or anyone outside his family or attorney that he had shot Saunders. Passeri admitted that he was aware that defendant had been charged with murder in connection with the shooting.
Defendant testified in his own behalf and denied possessing a weapon on the night in question or shooting Craig Saunders. Defendant explained that the initial altercation resulted when Saunders pushed him from a bar stool and that during the fight defendant attempted to flee but found his vehicle locked.
In rebuttal, the State adduced the testimony of Chicago Police Department Investigator Frank Radke who indicated that on January 27, 1974, he interviewed Edward Passeri and that Passeri denied all knowledge of the shooting. The State also was permitted to adduce the testimony of Avenna, Paradise and Crowe and each stated that defendant and not Passeri shot the deceased.
• 1 Defendant primarily contends that in several instances the trial court erred in unduly extending the scope of the prosecution's cross-examination of certain defense witnesses. We note at the outset that the scope and extent of the cross-examination rests largely in the discretion of the trial court and only in the case of a clear abuse of discretion, resulting in manifest prejudice to the complaining party, will a reviewing court interfere with the trial court's ruling. People v. Moretti (1955), 6 Ill.2d 494, 129 N.E.2d 709.
Within this context, defendant's initial contention is that pursuant to Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240, the prosecutor's use of Edward Passeri's post-arrest silence to impeach Passeri's testimony that he shot Craig Saunders constitutes a denial of Passeri's and defendant's right to due process of law. In the instant case and over defense objection, the prosecution elicted from Passeri that during the 17 months in which he was aware that defendant was incarcerated, awaiting trial on a charge of murder in connection with the shooting of the deceased, Passeri failed to inform the prosecution or the police that he had fired the fatal shots.
• 2 Doyle represents a case in which two defendants, Doyle and Wood, were advised of their right to remain silent in line with Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. At their trials, each defendant took the stand and gave an exculpatory story that had not previously been told to the prosecution or police. Over their counsel's objection, defendants were cross-examined as to why they had not given the arresting officer the exculpatory explanations. In reversing defendants' convictions, the United States Supreme Court held that the use for impeachment purposes of defendants' silence, at the time of their arrest and after they had received Miranda warnings, violated the due process clause of the Fourteenth Amendment. The rationale for the Court's decision was that silence following such warnings would be "insolubly ambiguous"; moreover, it would be fundamentally unfair to allow an arrestee's silence to be used to impeach an explanation subsequently given at trial after he had been impliedly assured, by the Miranda warnings, that his silence would carry no penalty.
However, the situation with which we are confronted (i.e., cross-examination of a defense witness as to post-arrest, preliminary hearing and general pretrial silence), was expressly reserved for consideration by the Court. Indeed, the Court noted that such averments of error "present different considerations from those implicated by cross-examining petitioners as defendants as to their silence after receiving Miranda warnings at the time of arrest." 426 U.S. 610, 616 n. 6, 49 L.Ed.2d 91, 96 n. 6, 96 S.Ct. 2240, 2244.
• 3-5 It is clear that had Passeri been a party to the instant litigation he would be unable to assert in his behalf the matters currently assigned as error. The record fails to establish that Passeri was warned of his right to remain silent pursuant to Miranda. While defendant suggests that such warnings must be "presumed" to have been given as "standard practice," we deem such concerns to be singularly unsuited as matters for judicial notice. It cannot be maintained on appeal that Passeri's pretrial silence was in any way based upon a reliance on such warnings. Hence, the rationale of Doyle is inapplicable to the cross-examination of Passeri. The record does clearly establish that Passeri was expressly and repeatedly advised by the court and counsel of his right against self-incrimination before he testified at defendant's trial. Passeri's rights under the Fifth Amendment, therefore, were intelligently and knowingly waived. In all respects, the cross-examination of Passeri regarding his pretrial silence constitutes a proper means of impeaching his testimony at trial.
Even if defendant's argument with respect to Passeri's constitutional privilege was persuasive, the opportunity to urge this theory must be denied for lack of standing. Defendant does not complain of violations of his own rights under Doyle, but only infringements of the privilege enjoyed by another. We hold the instant privilege to be personal and incapable of being vicariously asserted. See United States v. Zouras (7th Cir. 1974), 497 F.2d 1115.
• 6 Next, defendant contends that the trial court improperly and with prejudice to defendant permitted the prosecution to adduce hearsay testimony as substantive evidence of defendant's guilt. Specifically, defendant complains of the ...