Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Morgan County,
the Hon. Howard Lee White, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 27, 1983.
Charles Miller (defendant), Clarence Armstrong and Randy Williams were charged by information with the offenses of murder, kidnaping, aggravated kidnaping and armed robbery of Neil Gorsuch in violation of sections 9-1(a)(1), 10-1(a)(2), 10-2(a)(5), and 18-2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a)(1), 10-1(a)(2), 10-2(a)(5), 18-2(a)). Defendant and Armstrong were tried separately. (Williams pleaded guilty to the charge of kidnaping and agreed to testify against defendant and Armstrong in return for which the State dismissed the other charges pending against him.) Following a jury trial in the circuit court of Morgan County, defendant was found guilty of all charges except armed robbery. He was, instead, found guilty of robbery. Although, in a separate sentencing proceeding, the State sought the death penalty, the jury recommended that defendant be sentenced to imprisonment. The trial judge sentenced defendant to concurrent terms of 80 years' imprisonment for murder, 30 years for aggravated kidnaping, and seven years for robbery. (The judge vacated defendant's kidnaping conviction because it is a lesser included offense of aggravated kidnaping.) The appellate court reversed defendant's convictions and remanded the cause for a new trial on the ground that the prosecutor improperly cross-examined defendant regarding his post-arrest silence. (104 Ill. App.3d 57.) We granted the State leave to appeal.
Although defendant, in his answering brief, alleges numerous errors in the trial court proceedings, we find it necessary to address only the following issues: (1) whether the prosecutor improperly cross-examined defendant as to his post-arrest silence, and (2) if so, whether the error was harmless beyond a reasonable doubt.
The record discloses that, during the evening of February 8, 1980, Randy Williams, his brother Richard, and Clarence Armstrong were drinking at the Regulator Tavern in Jacksonville. The victim, later identified as 23-year-old Neil Gorsuch, was also present at the tavern and occasionally conversed with Armstrong. Gorsuch was not previously acquainted with the Williams or Armstrong. At approximately 1:30 a.m. on February 9, 1980, all four individuals left the tavern together. Later that afternoon, the victim's body was discovered partially submerged in a creek near the Markham bridge in Morgan County.
Randy Williams, the State's chief witness, testified that Armstrong offered the victim a ride to the motel at which the victim was staying. Richard Williams was driving his girlfriend's car. Randy sat next to him in the front seat, and Armstrong and Gorsuch were in the back seat. Richard first drove himself to his home, where he and his girlfriend lived, and allowed Randy to borrow the car for the evening. He began driving, with the victim and Armstrong seated in the back seat.
Randy further stated that, after driving for some time, Armstrong began hitting Gorsuch. Although his reason for administering the beating is unclear, it seems that Armstrong believed the victim was making sexual advances. Randy eventually drove to his parents' house, at which time Armstrong took Randy's stocking cap and pulled it down over the victim's face. He then ordered him to go into the bathroom and wash off the blood. Once inside, it was discovered that the victim had defecated in his pants. He cleaned himself, and subsequently threw out his underwear.
While the victim was in the bathroom, Armstrong pocketed Randy's .32-caliber revolver which was loaded with one bullet. He also obtained Randy's shotgun and some ammunition.
The trio then returned to the car, and Armstrong shoved Gorsuch into the rear seat. He then sat in the front seat with Randy, and directed him to drive to a trailer court. Sometime during the ride, Armstrong fired the revolver into the back seat. The bullet did not strike the victim. Randy parked at the designated trailer home, which Armstrong then entered. He returned a few minutes later and sat in the front seat. Shortly thereafter, defendant emerged from the trailer and sat in the back seat of the car with the victim. Randy began driving again, at Armstrong's direction. He stated that it was still dark out at this time.
During the course of the ride, Armstrong requested the victim to perform fellatio. He refused, and Armstrong asked if he wanted to "be hurt." He still resisted, and Armstrong informed him that he was a "dead man." The defendant subsequently asked the victim if he had any money. When he indicated that he did, defendant began to hit him and demanded his money. Randy stated that he "heard" defendant rustling through the victim's pockets.
Armstrong directed Randy to stop the car when they reached the Markham bridge. Defendant exited the car, and Armstrong handed him the shotgun. Armstrong then pulled the victim out of the car, removed the stocking cap which was still covering his face, and pushed him against the railing of the bridge. Defendant, while standing at a distance of 10 to 12 feet from the victim, shot him in the back of the head. Armstrong reloaded the shotgun, and he also shot the victim in the head. He then placed a third shell in the gun, handed it to Randy, and ordered him to shoot the victim. Randy shot and missed, and the shell rolled through a gap in the bridge and dropped underneath. The gun was reloaded and Armstrong threatened Randy that he "better do it right, or we'll bury [you] with him." Randy fired a second shot at the victim and thought he may have hit him. Armstrong then grabbed the victim by the feet and "flipped" him over the railing of the bridge into the creek below.
At Armstrong's direction, Randy retrieved the spent shells, except the one which fell under the bridge. All three returned to the car and sat in the front seat, with Randy driving. The shells, and the victim's wallet and driver's license were thrown out the window on the passenger side of the car.
The witness further testified that he gave Armstrong a ride home, and then he and the defendant went to a cafe, owned by Mrs. Williams, for breakfast. It was beginning to get light when they arrived at the restaurant.
Later that evening, the defendant, the Williams brothers, and Richard's girlfriend went to the Williams' house. Randy stated that, while at his parents' home, he, Richard and defendant went into a bedroom to talk. At one point during the conversation, defendant admitted to participating in the killing.
During cross-examination, Randy's testimony was impeached in certain respects. Defense counsel elicited the fact that, in a statement he gave the police following his arrest, he indicated that Armstrong fired the revolver into the rear seat of the car as they approached the murder site. He also, at one point, denied having any contact with the victim. In his statement, he indicated that Armstrong did not enter the trailer at which defendant was staying; he just opened the storm door and ...