APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN C. LAYNG, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
Defendant, Tim Martinson, was convicted in a jury trial of armed robbery and was sentenced to six years' imprisonment. The basis for defendant's appeal is the alleged error created by the prosecution in cross-examining a defense witness in an attempt to impeach him regarding the witness' post-arrest silence and the alleged error arising from the prosecutor's comment in closing argument in relation to the silence of this witness.
The defendant and Brett Erickson (the defense witness) were both charged with an armed robbery which occurred on October 2, 1978. Erickson was arrested on the night of the robbery, while the defendant was arrested about one week later. On January 5, 1979, the defendant here was granted a severance from his co-defendant, Erickson. Martinson was tried by a jury on January 17 and January 18, 1979. At this time the case against the co-defendant, Erickson, had not yet been tried.
The testimony at defendant's trial established that defendant and Erickson spent most of the day and evening of October 2, 1978, together and that late in the evening Erickson stopped at the home of a relative and returned to the car with a gun; that Erickson then drove to the "Stop and Go" food store in Rockford; Erickson then went into the store and at gun point robbed the cashier on duty of $29; while Erickson was in the store, defendant moved into the driver's seat of the car; Erickson came out of the store, got into the passenger's seat, and defendant drove the car away; about an hour later, they were chased by a police car; the defendant got out of the car and fled; defendant was not captured at that time, but was arrested one week later. Defendant acknowledged his participation in the events of October 2, but attempted to disclaim responsibility by testifying that he did not know about nor did he share Erickson's intent to rob the store. Erickson testified for the defense and essentially corroborated defendant's story that defendant had no knowledge of his intent to rob the store prior to the occurrence.
During the State's cross-examination of Erickson, the following exchange occurred:
"Q. You and your friend, Tim Martinson, have both been in custody since that happened on October 2, 1978 or shortly thereafter, have you not?
Q. When you were arrested by the police and they asked you about this, you didn't tell them anything about Tim Martinson that you've told this jury today, did you?
Q. In fact, you didn't tell them anything at all when you were asked what you did or what Martinson did, did you?
A. I always heard you're supposed to have a lawyer present when you talk to the police.
Q. But that's for your rights. Why, if this man is innocent and he's your friend, why didn't you tell the police what you told this jury?