APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendant, Darvie Tate, was found guilty of two counts of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4) and one count of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2). He was sentenced to a term of 3 to 9 years for both counts of aggravated battery and to a term of 10 to 25 years for armed robbery, the sentences to run concurrently.
On appeal, defendant contends: (1) his constitutional right to remain silent was violated and he was denied a fair trial when the prosecution was permitted to cross-examine him regarding his post-arrest silence; (2) the prosecution made several improper and prejudicial comments during closing and rebuttal arguments which warrant reversal; and (3) while the alleged errors, considered separately, may not have deprived him of a fair trial, their cumulative effect did.
We find the State erred in cross-examining the defendant regarding his post-arrest silence and that the error was prejudicial. Accordingly, we reverse and remand for a new trial.
The complaining witness, Gary Poggemiller, testified that on August 5, 1972, at approximately 8:25 p.m. he entered the Beanery restaurant located at 4900 South Merrimac Street in Stickney Township. Poggemiller stated that he sat down at the restaurant's counter and ordered a cup of coffee. Seated at the counter with him, approximately 15 to 20 feet away, were four men, later allegedly identified as Michael Newman, Nathaniel Williams, Isaiah Sumerall and the defendant, Darvie Tate. While Poggemiller was drinking his coffee, the four men paid their bills and left.
Poggemiller stated that a few minutes had elapsed when he heard a noise emanating from outside the restaurant. When he walked over to the restaurant's front window to investigate, he saw the same four men standing alongside an old black Cadillac, with its trunk hood up. Poggemiller said he then returned to his seat, finished his coffee and paid his bill.
He further testified that two of the four men, Sumerall and Newman, had reentered the restaurant and were standing by the door. Poggemiller asserted that as he reached the door intending to leave, Sumerall grabbed his arm. Also, he said that as he jumped back breaking loose from the hold, Newman threw a brick at him. Sumerall and Newman then drew knives from their pockets. While Sumerall jumped over the restaurant counter and held his knife to the neck of an employee, Poggemiller stated that Newman chased him through the restaurant and that the defendant and Williams, meanwhile, entered the restaurant through a side door and ordered the employees to lay on the floor.
Poggemiller asserted he was eventually cornered in the restaurant by the defendant and knocked down to the floor on his back. While the defendant held a large knife pointed towards him, another man went through his pockets taking his wallet and keys. One of the men then stated: "Get this guy good because he hit me." Poggemiller contended that the defendant and one of the other men proceeded to stab him several times in the chest and forehead. Poggemiller said that the defendant slit open his neck and that he bled profusely. Two of the men then grabbed money from the restaurant's cash register.
Poggemiller testified that he and the restaurant's employees were then herded to the back of the restaurant where they were locked inside a shed. After waiting approximately three minutes for the four men to leave, one of the employees broke down the door with a meat cleaver he found in the shed. The employees immediately called the police and an ambulance for him.
Poggemiller further testified that he was hospitalized for about a week. Two weeks after the incident had occurred he was shown 12 to 15 photographs. Among the photographs were those of the defendant, Newman, Sumerall and Williams. Poggemiller stated he could not identify, from the photographs, any of the men involved in the armed robbery. At no time was Poggemiller able to furnish the police with a description of any of the four men. About a month after the incident, Poggemiller saw the defendant in court when the defendant was taken out of the lock-up. For the first time, Poggemiller identified the defendant as one of the four men involved in the armed robbery and as one of the men who had stabbed him. Poggemiller also identified the defendant at trial.
Steven Rousey, a special agent with the Illinois Central Gulf Railroad, testified that on August 5, 1972 he was patrolling a railroad yard at 4700 South Merrimac. As Officer Rousey drove past the Beanery restaurant, a restaurant at which he often ate, he noticed a black Cadillac parked out front. The car's trunk was open. Officer Rousey saw a television set in the trunk which he thought resembled the one owned by the Beanery. He also observed a man standing inside the restaurant's doorway.
Officer Rousey decided to investigate. He turned his car around and drove back toward the Beanery. As he approached the restaurant he saw four men in the Cadillac. When he drew near the Cadillac, it sped off. Officer Rousey pursued it. At the intersection of 51st Street and Central Avenue the Cadillac ran a red light, was struck by a vehicle travelling in the opposite direction and crashed into a traffic pole.
The four men scrambled out of the Cadillac and ran east on 51st Street. Officer Rousey chased the four men on foot. He lost sight of them after a few blocks. Upon returning to his car, he discovered that a Cook County sheriff and a Chicago police officer had apprehended one of the four men, Isaiah Sumerall.
Raymond Hentig, an officer with the Cook County Sheriff's Police Department, testified that he was on duty on August 5, 1972. He stated that he received a radio dispatch that day that an armed robbery had occurred and he was to assist in trying to apprehend four suspects. He was told the suspects had crashed their car at the corner of 51st Street and Central Avenue and fled on foot. When he reached the vicinity of the accident, a passerby told Hentig that a man was hiding in the parking lot of a nearby school. Sheriff Hentig investigated and discovered Nathaniel Williams hiding behind a car in the parking lot. At this time a Chicago police officer joined Sheriff Hentig and the two men placed Williams under arrest.
Sheriff Hentig testified that a young girl then walked up and told him someone was also hiding in the bushes near the school. Hentig walked up to a fence located in front of the bushes, pulled out his service revolver and ordered the man to come out. Isaiah Sumerall emerged holding a T-shirt which contained currency and coins amounting to $46.50. Sumerall was placed under arrest. Sumerall and Williams were transported to the Bedford Park police station.
Isaiah Sumerall was called as a witness for the State. Sumerall had already been tried, convicted of armed robbery and aggravated battery and sentenced for his participation in the same crime for which the defendant was on trial. Two prosecuting attorneys had told Sumerall that if he testified against the defendant they would write a letter to Sumerall's parole board and would also inform the judge who had sentenced Sumerall about his cooperation. Sumerall understood that this might result in a reduction of his sentence.
Sumerall stated that he had known the defendant for nine years and considered him a friend. Sumerall testified that he, the defendant, Michael Newman and Nathaniel Williams were driving around in a 1966 black Cadillac the night of August 5, 1972. The four men drove to the Beanery restaurant to get something to eat. It was about 8:20 p.m.
There were four other people in the restaurant, three employees and Gary Poggemiller. When they finished eating and paid their bills, the four men left the restaurant and sat in the black Cadillac. After a few minutes had elapsed Williams and the defendant got out of the car and walked to the side of the restaurant building. Newman and Sumerall walked toward the restaurant's front door. On the way to the front door Newman picked up a brick.
As Newman and Sumerall entered the restaurant, Poggemiller was coming out. Sumerall testified that Newman grabbed Poggemiller. When Poggemiller jumped back Newman threw the brick at him. Poggemiller ran toward the back of the restaurant.
Sumerall further testified that the defendant and Williams came into the restaurant through a side door. The defendant began chasing Poggemiller. Newman ran to the kitchen and emerged with a butcher knife. The defendant caught Poggemiller and they struggled. Newman ran up and stabbed Poggemiller. Sumerall testified he then saw the defendant slash at Poggemiller with a knife but he did not see the defendant cut Poggemiller. Then, the defendant and Williams locked Poggemiller and the restaurant employees in a shed. Williams grabbed the restaurant's television set on the way out and put it in the car's trunk. He attempted to close the trunk but the TV was too large to allow the trunk to close. Williams then jumped into the car and drove off.
Sumerall's testimony at this point corroborated Officer Rousey's and Sheriff Hentig's testimony regarding the pursuit of the black Cadillac, its collision at 51st and Central, the chase of the four men on foot, and the capture of Sumerall by Hentig. Sumerall testified further that he was taken to the Bedford Park police station where he was interrogated by Investigator Dirk Lowry.
On cross-examination Sumerall stated that Lowry threatened him at the police station. "[Investigator Lowry] told me if that white boy die he is going to kill me." Then Lowry said "You might as well go ahead and tell me the whole story, I know it anyway." Sumerall also admitted that at the hearing in his own case on the motion to suppress certain evidence, he had testified: "[Investigator Lowry] said if I don't tell him what he wants to know he is going to bust my head." Sumerall stated that he did not tell Lowry everything he told the jury in the instant case.
On redirect examination the prosecutor questioned Sumerall as to what he told Investigator Lowry when he was interrogated:
"BY MR. PETERSEN: Q. On the night you were arrested you talked to Investigator Dick Lowry, is that correct?
Q. Now, you say you never mentioned the name of Darvie Tate?
A. I didn't mention it before he mentioned it to me.
THE COURT: Overruled. Next ...