Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Ford County,
the Hon. Sam Harrod III, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
David Withers was convicted of theft and of obstructing the performance of a peace officer (Ill. Rev. Stat. 1979, ch. 38, pars. 16-1, 31-1) by a jury in the circuit court of Ford County and was given a sentence of 364 days. The appellate court (89 Ill. App.3d 116) reversed and remanded for a new trial, holding that Withers had been denied a fair trial by the trial judge's refusal to allow defense counsel to argue his motion for a directed verdict at the close of the People's case. We granted the State's petition for leave to appeal.
The defendant's trial lasted only a day. Before the luncheon recess, the State had called three witnesses and had rested its case. Its principal witness was a Paxton police officer who testified that he saw Withers remove $1.40 from a cash box located outside a drug store. Patrons buying newspapers before the store opened for business deposited money in the box through a slit at the top. The officer testified that Withers ran into a hotel when ordered to halt, and that he overtook and subdued the defendant when he resisted arrest.
After the State had presented its case, there was this exchange between defense counsel and the court.
"MR. WILSON: The State has rested, has it not? Does the court wish to entertain motions for directed verdict at this time or would it prefer to wait until after the lunch hour?
THE COURT: Do you feel the need for extended argument?
THE COURT: The record may show that the motion is made and is denied.
MR. WILSON: That was quite a short argument, judge.
THE COURT: I think it was appropriate to the case."
The defendant did not take the stand and did not present any witnesses.
The appellate court held that our procedural law affords the defense a right to argue a motion for a directed verdict and that Withers was deprived of a fair trial. Although the appellate court did not consider the right to argue the motion to be a constitutional right, the defendant contends that the trial judge's summary ruling violated his sixth amendment right to the effective assistance of counsel. In another argument, which the appellate court rejected, the defendant argues that the prosecution's rebuttal constituted an improper reference to his decision not to testify.
We see no merit in the contention that the trial court's denial of argument violated the constitutional assurance of the effective assistance of counsel. The only authority the defendant cites that recognized a sixth amendment right to argue at trial is Herring v. New York (1975), 422 U.S. 853, 45 L.Ed.2d 593, 95 S.Ct. 2550. There, the court held that the right to the assistance of counsel includes a right of the defense to present closing argument in both bench and jury trials. The decision was based upon the court's recognition that summation was among the most important functions in advocacy at the criminal trial. Because "the right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the ...