APPEAL from the Circuit Court of Madison County; the Hon.
JOSEPH BARR, Judge, presiding.
MR. JUSTICE KUNCE DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 15, 1979.
The defendant-appellant Larry Hinson appeals from his conviction of aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(a)) after a jury trial in the Circuit Court of Madison County.
The State's case included evidence that the defendant was one of approximately 10 men who arrived in two vehicles at the residence of John Bilbruck in East Alton sometime between 12:45 and 12:52 p.m. on December 14, 1976. The men proceeded to the back yard where the victim, Clinton Bramlet, and his employee, Ralph Ford, were installing sewer pipe. Bramlet was operating a backhoe. One of the men, later identified by both Ford and Bramlet as the defendant, climbed upon the machine and struck Bramlet, knocking him to the ground. Bramlet was then beaten. The entire occurrence lasted about a minute. Then the men quickly departed in the two vehicles.
Ford noted the license number of one vehicle, which was later determined to be registered to Curtis Law, a co-worker of the defendant's at an Olin Corporation facility some 10 minutes by automobile from the Bilbruck residence. On December 15, Ford was taken by the police to the gate of the Olin facility where he observed some 100 workers enter the plant. He identified the defendant as Bramlet's initial assailant. While hospitalized, Bramlet identified the defendant's photograph as that of his attacker.
One of the defendant's defenses was alibi. He had been at work on December 14 with a crew of pipefitters which included Curtis Law, Red Medford (with whom the defendant was "buddied up" on the day in question), and Lyndell Johnson, the general foreman of the crew. At approximately 11:55 a.m., according to the defendant, he and Law left work and went to a tavern for lunch; they were joined by Lyndell Johnson. Law returned to work alone in his car shortly before the defendant returned to work with Johnson about 12:30 p.m. Red Medford testified that he saw the defendant back at work close to the sounding of the 12:30 plant whistle and they resumed work together at 12:35 or 12:40 p.m. where they stayed until 4:00 p.m., except for a coffee break at 2:00 or 2:30 p.m.
The defendant's brief assigns five errors to the trial court. The first concerns remarks made by the prosecutor in his closing argument regarding the defendant's failure to call Lyndell Johnson to testify in support of his defense. The defendant contends that the court's permitting these remarks was a denial of his right to a fair trial, citing People v. Munday (1917), 280 Ill. 32, 42, 117 N.E. 286, 292, for the rule that:
"* * * the omission or failure of a defendant in a criminal prosecution to call as witnesses those who could testify of their own knowledge to material facts raises no presumption of law that if called they would have testified unfavorably to him, but the jury may consider his failure to produce or to endeavor to produce such witnesses as a circumstance in determining his guilt, provided it is manifest that it is within the power of the accused to produce such witnesses and that such witnesses are not accessible to the prosecution."
1 Defendant argues that because Lyndell Johnson was subpoenaed by the prosecution and was present just outside the courtroom he was accessible to the State and that the prosecutor told the jury that defendant's failure to call Johnson was substantive proof of the offense. He claims that the prosecutor's remarks in closing argument were outside the Munday rule.
We do not agree. A corollary to the Munday rule is that:
"* * * potential alibi witnesses interjected into the case by the defendant are deemed unavailable to the prosecution and comment with regard to the failure of such witnesses to testify is proper." (People v. Mays (1972), 3 Ill. App.3d 512, 514, 277 N.E.2d 547, 548.)
We conclude that Lyndell Johnson was a potential alibi witness and that he was interjected into this case by the defendant.
Defendant contends Johnson was not a potential alibi witness because the offense occurred between 12:45 and 12:52 p.m. and Red Medford had accounted for the defendant's whereabouts during this period of time. However, because Johnson was with the defendant just prior to the time of the offense and because the defendant tried to prove his activities for time periods prior to and after the time of the offense, as well as during the time of the offense, Lyndell Johnson was a potential alibi witness. (People v. Anthony (1976), 41 Ill. App.3d 1025, 1032, 355 N.E.2d 218, 224.
2 The defendant urges that because Johnson's name was first mentioned during the prosecution's opening statement and next by a witness called by the State, Johnson's name was interjected into this case by the State. We do not agree. Johnson's name was interjected into this case by the defense when he was named as a potential alibi witness in an answer to a discovery request made by the State. In addition, the jury first heard testimony regarding Johnson from a witness during his cross-examination by defense counsel. See People v. Davis (1976), 38 Ill. App.3d 411, 416-17, 347 N.E.2d 818, 823.
We believe the substance of the prosecutor's remarks to have been within the bounds of the Munday rule. Viewed in context, the remarks were fair comment and argument to the jury about Lyndell Johnson's failure to testify.
The second error assigned by the defendant concerns remarks made during the prosecutor's closing argument about the defendant's failure to assert certain specifics of an alibi at the time of his arrest. During cross-examination, the prosecutor asked the defendant whether he had made a statement to the police concerning the offense, whether he had been read his Miranda rights before he gave the statement, and whether he had knowingly and intelligently waived those rights. Following the defendant's affirmative response to those questions, he was examined as follows:
"Q. And he [the arresting officer] questioned you about what happened the day before at the Bilbruck residence?
Q. And you told him you didn't know anything about it?
Q. And you knew what time he was talking about, didn't you? ...