APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, L.T. Upshire, was charged with armed robbery. After a jury trial, he was found guilty of that crime and was sentenced to 25 to 50 years. On appeal defendant contends that the prosecutor's closing argument comments about defendant's post-arrest silence constituted reversible error; that it was error for the prosecutor to cross-examine a defense witness concerning prior convictions; that the trial court erred in admitting into evidence two weapons not used in the robbery; and that the trial court erred in refusing to give the jury a certain instruction.
Two other men were indicted with defendant for the same crime. Charles Nelson pleaded guilty to the charge, and is not involved in this appeal. Booker Walls failed to appear for trial.
At approximately 10 a.m. on July 25, 1974, a hardware store at 760 North Milwaukee Avenue in Chicago was robbed. Alvin Storck, the proprietor, testified that defendant entered the store and asked for paint. As Storck accompanied defendant, the front door opened and a man with a gun announced a robbery. Hearing movement, Storck saw defendant coming toward him with a gun.
A third man entered the store, and Storck saw him and defendant go through several cabinets. Storck was instructed to lie down, but had to arise to open the cash register. Storck was told to lie down again, and his hands were tied behind his back. He heard the men leave and, a few minutes later, the police untied him. A vehicle was in front and a television set and a fan from Storck's store was in it. Storck identified defendant and Nelson as two of the robbers.
Storck stated that all his conversation during the robbery was with Nelson and Walls. He did not see defendant take anything. Storck also testified that at the preliminary hearing he stated he did not see what defendant was doing after he directed defendant to the paint since his attention was focused on another individual.
Officer Frederick Howard of the Chicago Police Department testified that he responded to a radio report of a robbery in progress. When he arrived at the store, he saw defendant placing several items in the trunk of an automobile. When Nelson emerged from the store, Howard ordered both men to stand against a wall. The police recovered a gun from defendant's person and they recovered the store merchandise, a shotgun and a sword from the trunk of the vehicle.
The defense was predicated upon defendant's contention that he had been a customer in the store at the time of the robbery and that Storck mistakenly had identified defendant as a participant. Charles Nelson testified in support of this argument.
Nelson stated that on the date in question Walls and he robbed the hardware store. The pair traveled to the store in Nelson's automobile. As Walls and he were leaving the store, Nelson saw defendant who had no gun. The merchandise was found by the police in Nelson's automobile. Nelson had entered a plea to the charge and had been sentenced to four years to four years and a day.
We first consider whether the prosecutor's comments on defendant's post-arrest silence violated defendant's right to remain silent.
During cross-examination, the prosecutor asked Nelson whether defendant said anything to the police at the time of arrest. Nelson replied that defendant had not said anything to the police.
During closing argument defense counsel made the following comments:
"* * * the squad car come up and Officer Howard pulls up and pulls his gun and puts both of these men against the wall. Why didn't Mr. Upshire at that point say anything? And why didn't Mr. Upshire start protesting his innocence and making some type of actions to establish he had nothing to do with this situation? Well, again, we have here a man who is looking down the barrel of Officer Howard's gun. And I know that if it was me, and I'm sure that you would all have the same feeling, and that is, if somebody was pointing a gun at you and they say, "Get up against that wall," you are not going to try and get into a debate with them about the factual situation just occurred. Who did what? What was done? And what did you do? And who was involved? No, I would pretty ...