APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
KRAUSE, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The defendant was convicted of armed robbery, and was sentenced to a term of 4 years to 4 years and one day in the penitentiary. He appeals, contending that the prosecutor committed reversible error in his cross-examination of the defendant, by forcing him to judge the veracity of the witnesses against him, and by telling the jury in closing argument that the defendant was a liar.
The complaining witness, Robert Greenwood, testified he knew the defendant slightly as a result of the defendant having lived in the same apartment building as Greenwood for a short time. During the months of December 1975, and January 1976, the defendant and he had seen each other occasionally and the defendant had visited once or twice in his apartment and he had driven the defendant to work and elsewhere a few times. The defendant, not long before he moved out, according to Greenwood's testimony, had asked to use Greenwood's phone to make a long distance telephone call to Kansas, for which Greenwood had given permission. The charge for this call had not been paid for by the defendant at the time he moved out. (The defendant denied this, claiming he had paid the telephone charge.)
Greenwood testified that at the time of the robbery, April 6, 1976, he had just returned home from work when he heard a knock on the door. Answering it he saw the defendant who said he had come to pay back the money for the telephone call. After saying that, the defendant suddenly reached down into his jeans and came up with a knife, which he pointed at Greenwood's throat. Greenwood testified he was forced at the point of the knife to retreat into the apartment, where the defendant forced him to lie on the bed and put his head under the mattress. After searching the apartment, the defendant asked Greenwood where he kept his money and when Greenwood answered he kept it in his pocket, the defendant forced him to give him the wallet, which contained, according to Greenwood, about $15 or $20. He also took a jar of pennies and left. Greenwood tried to call the police but found the telephone wire had been cut, so he went to another apartment and called the police.
Officer Roe of the Aurora Police Department testified that when he arrived at Greenwood's apartment, Greenwood seemed quite upset and the apartment was in a shambles. When he tried to use the telephone to call in the description of the robber, he found the phone cord had been cut. He used another phone in the building to report the description of the robber to police headquarters and it was immediately broadcast to cruising squad cars. Officer Wennmacher testified he received a description of the robber on the radio alert and shortly afterward he saw a person answering to that description walk by on the sidewalk. He stopped the defendant and patted him down and as he was doing so, noticed a bulge in the defendant's clothing. He reached into the defendant's clothing and pulled out a wallet and a plastic bag containing credit cards, which were issued to Robert Greenwood. He did not find a knife, nor did he find any money on the defendant's person. He arrested the defendant and took him to the police station. Officer Wennmacher testified that when he made the arrest the defendant was walking east, away from the location of his residence, which was in a westerly direction from the squad car. At the police station the defendant was given the Miranda warnings and interrogated. Officer Wennmacher further testified that in the course of the questioning, the defendant was asked if he had threatened Greenwood with a knife. Defendant denied doing so and gave an entirely different version than that given by Greenwood as to what had happened at Greenwood's apartment. He said that earlier he had bought some marijuana from Greenwood and had paid $15 for it. The marijuana proved to be inferior and he had gone back to Greenwood's apartment and asked for his money back. He said Greenwood replied he had no money, whereupon the defendant picked up Greenwood's wallet, which was lying on the coffee table, and said he would keep it until Greenwood returned the $15 he had been paid for the marijuana. He denied threatening Greenwood with a knife or even having a knife.
Greenwood, at the trial, testified that he had never sold any marijuana to the defendant. Officer Wennmacher testified that in the course of his questioning of the defendant, the defendant, in answer to a question as to how he had gotten Greenwood's wallet, said he had just "scared him out of it," rather than threatening him with the knife. Defendant's testimony about the purchase of the marijuana was also inconsistent with his signed statement wherein he stated he took the wallet because he "just needed the money."
The defendant testified he was on his way home when he was arrested. However, Officer Wennmacher testified that the defendant was walking away from his home when he was arrested.
At the trial, in the course of cross-examining the defendant, the prosecutor noted a discrepancy between defendant's statement and the testimony of Detective Martin as to what the defendant told the detective relative to his taking Greenwood's wallet. He asked the defendant if he thought the officer was lying. Relative to another conflict between the defendant's testimony and his signed statement, the prosecutor again asked if the defendant thought the police were lying. There was no objection by defense counsel in either case, and the cross-examination proceeded.
In his closing argument, the State's Attorney pointed out that the defendant's signed statement was at variance with his testimony at trial, and that the defendant was contending, in his testimony, that he did not make the statements attributed to him in the signed statement, which he gave to the police. The State's Attorney remarked, "Det. Martin is lying; Robert Greenwood is lying; everybody is lying but the Defendant in this case. And I ask you, ladies and gentlemen, who has everything to gain and nothing to lose by lying on the witness stand?" Again, there was no objection to this argument in the trial court.
In this appeal the defendant contends he was unfairly prejudiced by the State's Attorney's characterization of his testimony as lies. Moreover, he contends that forcing the defendant to say in his own testimony who was lying, himself or the police, was an improper tactic and was highly prejudicial. He also contends the prosecutor misstated the evidence by arguing that the defendant had admitted the elements of robbery in his signed statement. The statement contained the following:
"Q. Why did you take the mans [sic] wallet?
A. Well I just needed the money.
Q. How did you get the wallet from him?
A. I asked him where was his wallet and he said in his right hip pocket. Then I ...