Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. Maloney, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant Kent Starks was convicted of murder and attempted armed robbery after a jury trial. Sentences of 40 years for murder and 10 years for attempted armed robbery were entered on the verdict. Defendant appeals, contending that he was denied a fair trial by virtue of: (1) the testimony of and prosecutorial comment concerning the deceased's survivors; (2) cross-examination and argument concerning a collateral act of misconduct by defendant; (3) the State's failure to complete an impeachment of defendant; (4) cross-examination on a hypothetical matter implicating defendant's fifth amendment rights; (5) the prosecutor's comments insinuating that the rules of evidence prevented him from presenting relevant evidence to the jury; (6) the prosecutor's comments that defendant and his witnesses were liars and that defense counsel was engaging in trickery and misrepresentation; (7) the prosecutor's comments which tended to denigrate the standard of proof; (8) the trial court's restriction of the testimony of a reputation witness; (9) ineffective assistance of counsel in that (a) counsel failed to obtain discovery of all witnesses to defendant's custodial statement and paved the way for the admission of the statement by calling defendant as a witness; (b) counsel failed to lay a foundation for impeachment of the State's pivotal witness; (c) counsel failed to list an alibi witness in discovery, and the witness was excluded; (d) counsel elicited testimony which indicated that several persons who did not testify had implicated defendant. Defendant also contends that his sentences were excessive.
At about 10:30 p.m. on July 21, 1980, police officers Janis Lewis and Timothy Collins responded to a radio call concerning a shooting at 1215 North Parkside Avenue in Chicago. When they arrived at the scene, they found the body of John Lipinski lying on his back on the sidewalk. The officers found a gold chain and medallion around his neck, a gold watch around his wrist, and $132 in his pocket. The officers discovered a white towel with green stripes lying 10 to 20 feet south of the body. An autopsy revealed that the deceased was killed by a single bullet which entered at the left buttock, traversed the intestines and diaphragm, and perforated the heart.
Defendant was arrested for the murder of John Lipinski on December 24, 1980. The arresting officer testified that he arrested defendant after interviewing Willie Hicks, Mario Godsey, and Mark Jones. Defendant gave a custodial statement to an assistant State's Attorney the next morning. In that statement, defendant said that he was walking north on Parkside with Mark Jones and Mario Godsey on the night of the shooting, when a Caucasian man passed them going south. Jones showed defendant a gun and stated that he was going to rob someone. Defendant told Jones to forget about robbing anyone and took the gun from him. Defendant then crossed to the side of the street where the Caucasian was walking. When he stepped on the curb, someone shouted from a porch. Defendant turned to see who it was, and the gun went off, shooting the Caucasian in the back. Defendant walked up to him and asked him if he was alright. The man said, "my head, my head." Defendant left the scene, dropping a green and white towel on the other side of the street.
Prior to trial, defense counsel moved to suppress the statement on the grounds that defendant was intoxicated when he gave the statement, that the statement was not voluntary, and that defendant's hand was guided by an assistant State's Attorney when he printed his name at the bottom of it. The motion was denied, and the statement was published to the jury in the State's rebuttal case.
A summary of the significant testimony elicited at trial follows.
The State's first witness was Ginelly Viteri, John Lipinski's fiancee. She testified that she and the deceased had spent the day before the shooting together at the beach, and that they had spoken on the telephone on the night that he was killed. She also testified that she and the deceased had made plans to pick up their marriage license the next day. When asked if she ever spoke to him again, she said that she had not, and when asked where she had next seen him, she replied "at the funeral parlor."
The next witness was Marie Lipinski, the deceased's mother. She testified that on the night of the shooting, the deceased had told her that he was going out to get some ice. She suggested that he take the car, and he said, "Ma, don't worry about me. I'm a big boy and I can take care of myself." She stated that she learned that her son had been killed from policemen who came to the house early the next morning.
Edward Eckman testified that he lived at 1246 North Parkside. On the night of the shooting the street lights were out due to a power failure. Around 10 or 10:15 p.m. Eckman heard voices, footsteps, and a gunshot outside his house. He looked out and saw one figure wearing something light around his neck running south on Parkside. He saw two other figures running in the same direction. He then went outside and found John Lipinski's body on the sidewalk two doors north.
Mark Jones testified for the State that he and Mario Godsey were at defendant's house at 9:30 p.m. on July 21, 1980. They left to get a drink, walking north on Parkside. They saw a white man walking towards them. They continued walking, and the man returned, walking in the same direction as they were on the other side of the street. Defendant said "there goes the white man again" and that he needed some money. The man started running, and defendant pointed the gun at him and shot him in the back. He began to search the man as Jones and Godsey ran away. Jones also stated that defendant was wearing a cap, short pants, and tennis shoes, and was carrying a green and white striped towel. On cross-examination, Jones stated that he did not tell anyone about the shooting until he was arrested on December 24, 1980. Jones also stated that he had lived with defendant's family at times, but that he was not living with them at the time of the shooting.
Ernestine Ford, defendant's mother, was the first witness for the defense. She testified that she, defendant, his sister, and Hattie English lived at 1009 North Parkside at the time of the shooting, and that Mark Jones stayed with them approximately three times a week during that period. She stated that Jones had spent the night with them on July 20, 1980, and that he left the house on July 21 wearing shorts, a cap, and a light colored towel around his neck. She also testified that defendant was in the house from early evening until 11 p.m. on July 21, and that defendant always wore long pants, never shorts. At 11 p.m. defendant walked Hattie English to the bus stop.
Kenna Ford, defendant's sister, also testified that defendant remained at home from early evening till 11 p.m. Hattie English testified that defendant walked her to the bus stop at 11 p.m. where they waited for a bus for approximately 15 minutes. She also testified that she saw Jones leave defendant's house at about noon that day wearing shorts and a cap and carrying a green towel.
Victor Evans, a neighbor of defendant, testified that he saw Jones on July 21 at about 4 p.m., and that Jones was wearing shorts and a cap and a towel around his neck. He also testified that he saw defendant at about 6:30 p.m. of that day and again at 11 p.m., the latter time with a woman. Evans stated that he had never seen defendant wearing short pants.
Defendant testified that he was at home on the night of July 21, 1980. He had been laid off his job as a streets and sanitation worker but had a part-time job at a variety store and was collecting unemployment. He did not go anywhere with Jones or Godsey that night, but had played basketball with Godsey at 4:30 that afternoon. He did not know that he was charged with the shooting of John Lipinski until December 25, 1980, when he was told of the charges at the police station. He had seen Jones, Hicks, and Godsey at the station after his arrest the previous evening. On cross-examination, defendant denied having told police officers that he was on Parkside with Jones and Godsey on July 21, and stated that he did not recall telling the police any of the details contained in his custodial statement. Other portions of defendant's cross-examination raise significant issues on appeal and will be recounted in detail below.
• 1 The jury found defendant guilty of murder and attempted armed robbery. Defendant was sentenced to 40 years for murder and 10 years for attempted armed robbery, and this appeal followed.
Approximately 13 distinct issues are raised by defendant on appeal. The issues concerning the State's examination of the survivors of the deceased, the cross-examination of defendant, and the State's closing argument all have significant merit. No defense objections were made during the pertinent portions of defendant's cross-examination or the State's closing argument, and the only issue noted in defendant's post-trial motion was the contention that defendant was prejudiced by the State's continued disparagement of defense counsel, defense witnesses, and defendant during closing and rebuttal argument. During rebuttal argument, defense objections to remarks concerning the burden of proof and defendant's failure to call a witness were overruled. Some defense objections to the testimony of the survivors of the deceased were sustained, but the bulk of their testimony was received without objection. However, we elect to review all of these assignments of error under the plain error rule (87 Ill.2d R. 615(a)). That rule may be invoked in situations where the record shows the commission of errors that substantially affect the defendant's rights. (People v. Baynes (1981), 88 Ill.2d 225, 231, 430 N.E.2d 1070.) The evidence in this case is not so overwhelming that we can say that the pervasive pattern of error which is apparent from the record did not operate to deny defendant his right to a fair trial, and thus we shall not treat the issues noted above as waived.
• 2 The first assignment of error concerns the testimony of the State's first two witnesses, Marie Lipinski and Ginelly Viteri. Both testified to their last contacts with the deceased, Marie Lipinski stating that deceased had told her as he was leaving the house that she was not to worry about him because he was a "big boy" and could "take care of [him]self," and Ginelly Viteri testifying that she and the deceased had planned to go to City Hall to pick up their marriage license the next day, that she spoke with him on the telephone on the night of the shooting, and that she next saw the deceased at the funeral parlor.
It is well settled that it is improper for a prosecutor to refer to the family of a murder victim either by evidence or argument. (People v. Hyde (1971), 1 Ill. App.3d 831, 840, 275 N.E.2d 239.) Where testimony that the deceased has left survivors is not elicited incidentally, but is presented to the jury in such a way as to lead the jury to believe that it is material, its admission constitutes reversible error unless an objection thereto is sustained and a curative instruction given. People v. Bernette (1964), 30 Ill.2d 359, 371, 197 N.E.2d 436.
In the instant case, the testimony elicited from these two witnesses cast no light upon the guilt or innocence of the accused, and could only serve to inflame the passions of the jury. Although objections were made, and some were sustained as to particular portions of the testimony of these witnesses, the testimony summarized above was all received by the jury, some of it over the objection of counsel. The State contends that these two witnesses were "life and death" witnesses, and that therefore their testimony was properly admitted. It is true that the State may present "life and death" witnesses, even where the defendant stipulates to the identity of the deceased and to his death. (People v. Speck (1968), 41 Ill.2d 177, 201-02, 242 N.E.2d 208, modified on other grounds (1971), 403 U.S. 946, 29 L.Ed.2d 855, 91 S.Ct. 2279.) Such testimony must be presented, however, without placing undue emphasis on the fact that the deceased has left a family behind. (See People v. Speck (1968), 41 Ill.2d 177, 202; People v. Mitchell (1979), 78 Ill. App.3d 458, 460-61, 397 N.E.2d 156.) That such is not the case here is demonstrated by the emphasis that the prosecutor placed on the deceased's relationship to the witnesses in closing and rebuttal arguments. Those statements were as follows:
"The next day John Lipinski was going to get his marriage license * * * [defendant] took away his right to get married, his right to have a happy life, his right to finish school and maybe get a better job, his right ...