APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
J. MALONEY, Judge, presiding.
JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Defendant Dannie Barnes was convicted of murder and concealment of a homicidal death following a jury trial and was sentenced to concurrent terms of 30 and 5 years for those crimes. On appeal defendant contends: (1) the trial court erred in failing to utilize any of defendant's suggested questions during voir dire; (2) the State improperly adduced testimony concerning defendant's exercise of his fifth amendment right to silence; (3) the trial court erred in barring the testimony of a defense witness concerning a statement made to him by the defendant; (4) the trial court should have granted defendant's request that it instruct the jury on voluntary manslaughter; (5) the State's final argument to the jury was inflammatory and prejudicial; (6) the trial court erred in denying defendant's pretrial motion for a continuance.
We reverse and remand for a new trial.
At trial the State established that on September 15, 1979, the partially nude body of a woman was found in a field in Gary, Indiana. Utilizing the woman's high school ring the police determined her identity to be Betty Riley, a resident of Chicago. Subsequent police attempts to locate defendant, Riley's boyfriend, were unsuccessful although the police spoke to defendant's mother and were accompanied to his Chicago home by his brother.
On November 23, 1979, Gregory O'Brien, a police officer with the Naval Training Center in San Diego, met with the defendant and a Navy chaplain, Lieutenant Blackburn, in the chaplain's office. There defendant told O'Brien that he had killed a woman in Chicago. O'Brien then placed the defendant under arrest.
On December 28, 1979, Terrence Gainer, a homicide investigator with the Chicago Police Department, questioned defendant, asking if he wanted to tell what he knew of the death of Betty Riley. Defendant related that he was in the front bedroom of his Chicago apartment with Riley on September 14, 1979, when she began talking about defendant being "worth more dead than he was alive." At this time Riley was standing near a dresser and defendant was sitting on the bed. Defendant told Gainer he thought Riley was reaching for a knife on the dresser. He jumped from the bed, pushed her arm up, and as he did this he picked up an iron from the dresser and threw it at her. The electrical cord wrapped around her neck. Defendant denied having strangled Riley. Subsequently he "dumped" the body in Indiana with his brother's aid. Over defense objections Gainer testified that after relating this statement defendant refused to give a recorded statement of what he had just told Gainer.
Dr. Wei Ping Loh, the pathologist who examined Betty Riley, testified that he observed a transverse mark on her neck 8.2 centimeters in length and 6 centimeters wide. Her larynx appeared to be fractured. He also observed four hemorrhagic areas inside her scalp. It was his opinion to a reasonable degree of medical certainty that the cause of death was a head injury and strangulation. He also testified that the mark on the neck was "most likely made by hand as opposed to a string or a cord."
At the commencement of voir dire defendant submitted 13 supplementary questions which he wished the court to ask the prospective jurors. Defendant contends that the trial court erred in failing to utilize any of these questions. Defendant also contends that the court was required to either permit direct questioning by defense counsel or to pose defendant's questions itself. We find no merit to either of these contentions.
Illinois Supreme Court Rule 234 (Ill. Rev. Stat. 1979, ch. 110A, par. 234) provides:
"The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions."
As is stated in the Supplement to Historical and Practice Notes (Ill. Ann. Stat., ch. 110A, par. 234, Supplement to Historical and Practice Notes, at 178-79 (Smith-Hurd Supp. 1981)):
"This rule was amended effective July 1, 1975 to put the trial judge exclusively in charge of the voir dire examination unless he chooses to permit the parties or their attorneys to participate. Under the old rule the trial judge was required to initiate the voir dire but the parties or their attorneys had a right to supplement the judge's examination.
The new rule, while it allows the trial judge to permit the parties or their attorneys to make direct inquiry, also introduces the alternative, embodied in the comparable federal rule, of requiring the parties to furnish their questions to the trial judge. The amended rule also makes it clear that the determination of which alternative to use, and whether to permit any supplement to its own examination, lies entirely with the court. In this rule 234 departs from the federal rule, which makes supplementary participation by the parties, either directly or through submission of questions to the judge, mandatory. * * *"
• 1 Clearly under this rule the decision whether to permit supplementary questions by counsel, directly or indirectly, is left to the discretion of the trial judge. (See People v. Weinger (1981), 101 Ill. App.3d 857, 428 N.E.2d 924.) Thus contrary to defendant's contention the refusal of the court to permit any such supplementary questions does not constitute error per se. In ruling on defendant's request the trial court stated:
"Counsel, as far as your proposed jurors' questions are concerned some of them of the latter half are included in the Court's usual format of the advice to the jurors and some of those things in the first part the first several questions we do not address to the prospective jurors but at any respect some of your matters are included in the Court's usual advice to the ...