APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Defendant-appellant Jackie Rush was indicted for murder, convicted of that crime in a jury trial, and sentenced to a term of 60 to 100 years. On appeal he presents four contentions: (1) he was not proven guilty beyond a reasonable doubt, (2) the trial court abused its discretion by permitting the State to impeach defendant's trial testimony with his stricken testimony from the pretrial hearing on a motion to suppress evidence, (3) it was reversible error for the prosecutor to cross-examine defendant about his failure to deny the charge prior to trial and to argue to the jury that this failure created an inference of guilt, (4) defendant's sentence was excessive.
We affirm the judgment of the trial court.
On April 21, 1974, at about 2 a.m. the victim, Warstine Reese, was shot and killed as he used the public telephone in a bar called Skipper's Lounge, located at 69th Street just off Racine in the city of Chicago. One half hour later the defendant was arrested about one block away, near the Chase Lounge. He was subsequently indicted for the murder of Reese.
The State presented the testimony of Charles Reed, an eyewitness to the murder. Reed arrived at Skipper's Lounge at midnight. There were 50 to 70 people inside, mostly in the back of the lounge where the dance floor was. Reed described the lighting as "pretty good" in front and "a little bit dark" further back. He was seated at a table near the front of the lounge along the east wall. There was a bar along the west wall. Also along the west wall was a pay telephone. While Reed was sitting in the booth, facing the west wall, he observed an individual using the pay phone, facing the back of the bar. About a foot and a half behind the individual at the phone Reed saw the defendant, whom he had known for 12 or 13 years. Defendant's arm was extended towards the phone user's head, about six inches away. A woman Reed knew as Brenda was three feet behind the defendant. Reed then heard a gun shot and saw a flash from defendant's arm. The man at the phone fell to the floor, defendant turned towards the front of the lounge and put a gun in his right front pocket as he ran out of the lounge with Brenda. Reed testified that there were no people blocking his view of the defendant at the time of the shooting. On cross-examination he explained that he had not previously related having seen a flash from defendant's arm because no one had asked him before.
The co-owner of the lounge testified that she also heard a shot and saw defendant and Brenda running. She recalled that there were about 50 people in the lounge at the time, most of them in the back. The lighting was dim, but was bright enough so one could see "everything and everybody."
Chicago police officers Thomas Quinn and John Solecki testified that they arrested the defendant at 68th Street and Racine in Chicago, about one block from the Skipper's Lounge and in the vicinity of the Chase Lounge. They were investigating a shooting which had taken place at the Chase Lounge earlier that evening. Brenda had been identified as the girlfriend of a suspect in that shooting, so when they saw her walking with the defendant they sought to question her. The officers were in plain clothes, traveling in an unmarked vehicle. They got out of the car, announced their office, and began to approach the two. Defendant pulled a gun out of his right front coat pocket and held it by his side. After being warned twice by the officers to drop the gun, he threw it two or three feet to his right. The weapon, a .357 magnum revolver, contained five live shells and one spent cartridge casing. A Chicago police officer from the firearms unit testified that the bullet recovered from the head of the deceased was fired from the gun recovered from the defendant. A pathologist testified that the deceased was killed by a bullet wound to the head, fired from no more than a foot away.
In an effort to impeach the testimony of Charles Reed, defendant introduced the testimony of Charlotte Miller and Betty Rush. Betty Rush, defendant's mother, testified that Reed had told her he believed Brenda, not defendant, had done the shooting. Charlotte Miller, a friend of defendant's mother, recalled that Reed had told her he really did not know what happened. Reed in his testimony stated he had talked to these women but denied telling them he did not know what he saw.
Defendant testified that he was in Skipper's Lounge with Brenda at the time of the shooting. He was ordering a drink from the bar when he heard a shot. He ran outside, then began to walk home. When he met Brenda on the street he started to walk with her. They were approached by two officers who told him to get up against the fence and then searched him. One officer picked up a pistol which was 10 feet away from the defendant and did not belong to him. Defendant denied possessing a gun at Skipper's Lounge and denied shooting anyone.
Beatrice Allen, who considered herself a good friend of defendant's sister, testified that she witnessed defendant's arrest. The police jumped out of a car, said "freeze, Charles," and searched the defendant. One officer walked ten feet away and picked up a gun. She never saw defendant with a gun, but she also testified that when the officers drew their guns she fell to the ground and did not watch the defendant.
Chicago police officer Nick Crescenzo testified that he spoke to Investigator Quinn after defendant's arrest and Quinn told him defendant had "pulled a gun out on him." Crescenzo assumed at the time that Quinn meant the gun was pointed at him. However, Investigators Quinn and Solecki both denied telling Crescenzo that defendant pointed a weapon at them.
1 This summary establishes that the evidence of the defendant's guilt was overwhelming. An eyewitness who had known the defendant for at least 12 years identified him as the one who had shot the deceased. Defendant was arrested near the lounge half an hour later with what was determined to be the murder weapon in his possession. Only defendant's testimony directly contradicted this evidence, and the jury was within its discretion in rejecting that testimony and accepting that of the eyewitness and the two police officers who arrested defendant. The State's evidence, clearly accepted by the jury, established defendant's guilt beyond any reasonable doubt.
However, defendant also contends that the trial court erred in permitting the State to impeach him with testimony he gave at a pretrial hearing on his motion to suppress certain evidence. In that hearing defendant was seeking to establish that his warrantless arrest was also made without probable cause and consequently was illegal. Defendant testified that he was walking near 68th and Racine with Brenda when they were stopped by two police officers. The police searched him and then picked up a pistol which had never been in his possession and arrested him for carrying a concealed weapon. Defendant also stated he was with Brenda "at all times" until the officers approached. On cross-examination, over defense objection, the State questioned defendant in detail concerning his activities earlier that evening up to the time of the arrest. Although the court allowed this examination, it indicated that if none of the testimony elicited was ultimately relevant to the issue of probable cause it would be stricken. The State established probable cause with the testimony of Officers Quinn and Solecki who stated that the defendant brandished a weapon when they sought to question him on the street. Accordingly, defendant moved to strike the testimony concerning his activities prior to the time of the arrest, and the trial court granted the motion "* * * as far as this motion [the motion to suppress] is concerned." Before defendant testified at trial the defense moved to bar the State from using any of this stricken testimony as impeachment. The court denied the motion and the State used that testimony to impeach defendant's trial testimony on the following points: when and where he first saw Brenda that night, what time he left the Chase Lounge, how long he talked to his friend Ben in Skipper's Lounge, just where at the bar he was when the shooting occurred, whether he was ordering a drink then or had ordered one three to five minutes earlier, and whether he entered a nearby restaurant after the shooting or just stood outside of it.
2 Defendant concedes that if his testimony at the motion to suppress had been elicited by proper cross-examination it could then be used to impeach his trial testimony. Thus, he relies on the alleged impropriety of the cross-examination as the basis for asserting trial error. Specifically, defendant contends the State acted in bad faith in their examination of the defendant, seeking, in reality, to discover all they could from the defendant under the guise of cross-examination; an examination which defendant contends amounted to deposing the defendant. Such a deposition is, of course, not permitted by the rules of discovery relating to criminal cases. (Ill. Rev. Stat. 1975, ch. 110A, pars. 413, 414.) But defendant has not established that this was the purpose of the State's cross-examination. Defendant had testified that he was with Brenda at all times prior to the arrest. The State's cross-examination concerned his earlier activities with Brenda. The trial court correctly struck this testimony when it determined, after the officers' testimony, that it was not the basis of probable cause for the arrest. But we do not find the analogy to an evidence deposition convincing. The defendant voluntarily took the stand in support of his motion, knowing he would be subject to cross-examination on his testimony. The trial court, in its discretion, allowed a wide-ranging cross-examination initially, but then struck that testimony for purposes of the motion to suppress when it determined that the subject matter was not relevant to the motion. This procedure did not amount to a forced deposition of the defendant; nor has defendant established bad faith on the part of the State in this cross-examination.
3-6 Defendant also contends that the State should not have been permitted to use this stricken cross-examination testimony to impeach him at trial because this would have a chilling effect on a defendant's Fourth Amendment right to testify on his own behalf in a motion to suppress. Defendant cites Simmons v. United States (1968), 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967. But in Simmons the court held only that the testimony of a defendant in support of a motion to suppress could not subsequently be used against him as evidence of guilt at trial. In Harris v. New York (1971), 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643, the Supreme Court held that a defendant could properly be impeached with a statement taken from him in violation of his Miranda rights. The court stated that: "[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury." (401 U.S. 222, 225, 28 L.Ed.2d 1, 4, 91 S.Ct. 643, 645.) The Illinois Supreme Court subsequently construed these two opinions to be in harmony and held that the testimony of a defendant voluntarily given by him in conjunction with his motion to suppress evidence could not be introduced by the State as part of its case in chief, but could be used to impeach the defendant if he testified at trial. (People v. Sturgis (1974), 58 Ill.2d 211, 317 N.E.2d 545, cert. denied (1975), 420 U.S. 936, 43 L.Ed.2d 412, 95 S.Ct. 1144.) This is what was done in the cause before us. Defendant's statements made in conjunction with his motion to suppress were used at trial only after he chose to testify, and then only for purposes of impeachment. Defendant suggests that his answers on cross-examination during the motion to suppress hearing were not voluntary as required by Sturgis. We reject the notion that a defendant who voluntarily testifies in connection with his motion to suppress can be said to be involuntarily testifying when he is cross-examined concerning that testimony. Voluntariness as used in this context has to do with the reliability of the evidence, such as might be of concern when a confession has been coerced. (People v. Doss (1975), 26 Ill. App.3d 1, 324 N.E.2d 210.) We also note that it has long been held in Illinois that testimony which has been stricken as incompetent in one proceeding may still be used to impeach the witness in a later proceeding. (People v. Turner (1914), 265 Ill. 594, 107 N.E. 162.) Indeed, the trial judge here specifically struck the defendant's testimony only insofar as the motion to suppress was concerned. Accordingly, we hold that the trial court did not err in permitting the use for impeachment purposes of the testimony it had stricken on the motion to suppress.
Defendant also contends that reversible error was committed when the State cross-examined him concerning his post-arrest silence and also commented on that silence in final argument to the jury. The defendant first testified to his silence on direct examination by his attorney. He related that when the police arrested him he asked what he was charged with and was told unlawful use of a weapon. His attorney then asked:
"Q. Incidentally, when they said, possession of a weapon, did you say anything to them?
Defendant was taken to the police station and Charles Reed was brought in to see him. After relating this, defendant was asked, by his attorney:
"Q. You say you saw Charles Reed at the station?
Q. And you have known him for a number of years?
Q. Did you speak to Charles Reed?
After Reed left, the officers informed defendant he was being charged with murder. At trial his attorney asked him:
"Q. What if anything did you say when he told you you were being charged with murder?
A. I just put my head down."
On cross-examination, over defense objections, the State was permitted to question defendant concerning this silence. First the prosecution elicited defendant's testimony that he failed to claim his innocence to Charles Reed and two other State witnesses, Geraldine Webb and Ella Owen, when he saw them at the police station:
"Q. And you saw Charles Reed and you put your head ...