Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. Maloney, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Following a trial before a dual jury, defendants Darryl Johnson and Reginald White were found guilty of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)), and sentenced to terms of 35 years in the Illinois Department of Corrections. On appeal both defendants contend that the trial court erred in coercing two witnesses to testify by finding them in contempt of court for exercising their fifth amendment right. Defendant Johnson alone contends that: (1) he was denied a fair trial as a result of cumulative error, including the State's improper use of peremptory challenges to exclude racial minorities; (2) there was no probable cause to arrest him; (3) his arrest was in violation of the fourth amendment; and (4) he was interrogated without knowingly waiving his Miranda rights. Defendant White alone contends that: (1) the dual jury proceeding was improper; (2) the trial court erred in allowing the State to inform the jury that a State witness had been previously found guilty of the murder; and (3) the court erred in allowing a stenographic statement by defendant to go to the jury room. For the reasons that follow, we affirm.
The record sets forth the following facts pertinent to this appeal. On March 12, 1982, 17-year-old Cleave Herron was fatally shot at 19th Street and Kedzie, Chicago. On April 5, 1982, Chicago police detective Daisy Walker became involved in investigating the murder. Detective Walker was told by Eugene Kimball that on March 12 he had a conversation with Reginald White, a leader of the Vice Lords. Kimball stated that White told him that he, Ramon West, and Darryl Johnson were going to "roll on" *fn1 Keith Brice, the leader of the Black Gangster Disciples. Kimball told Detective Walker that he refused to go because he had no gun.
Kimball also related a conversation he overheard the next day. He stated that he heard Ramon West tell Reginald White that they had shot the wrong person. He heard White respond "that they would get Keith Brice later, and to keep it under his hat." Also present at this conversation was Darryl Johnson. Kimball advised Detective Walker that Reginald White and Ramon West could be found at Farragut High School.
Shortly thereafter, White and West were taken into custody and advised of their constitutional rights. Ramon West told police officers that Reginald White had a .22-caliber rifle at the time of the shooting and that he had obtained it from Darryl Cole. The police then located Cole, who told them that he had given the rifle to Darryl Johnson three or four days prior to the shooting. Cole also gave the police officers Darryl Johnson's address.
Detectives Walker and Godbold testified that they went to the address they had been given for Darryl Johnson and knocked at a downstairs door. They testified that a woman told them to come up the stairs to the second-floor apartment. The officers identified themselves to the woman, who was standing in the door to the apartment, and told her they wished to speak to Darryl Johnson. The woman stepped back and opened the door, allowing them into the apartment. The officers saw defendant Johnson lying on a sofa and asked him to accompany them to area four headquarters. Johnson left the apartment with the officers and was arrested and informed of his constitutional rights on the street outside the apartment.
Defendant Johnson filed motions to quash his arrest and suppress the statements that resulted from the arrest. At the hearing on the motions, the parties stipulated that if defendant's aunt, Mary Mack, was called as a witness, she would testify that she did not invite the police officers into Johnson's apartment. Defendant Johnson testified that he was not advised of his right to counsel and his privilege against self-incrimination before he agreed to talk to Assistant State's Attorney Michael Levitin and Detective Johnson. Both motions were denied.
Prior to trial, both defendants moved for separate trials. The trial court granted the motion for severance but ruled that the trial would be conducted as a "dual jury" proceeding, with a separate jury for each defendant. Each jury heard the evidence in the same courtroom simultaneously except when matters pertaining to only one defendant were introduced. Both defendants were found guilty by their respective juries, and they now bring this appeal.
Defendants Johnson and White both contend that the trial court improperly coerced Ramon West and Darryl Cole into testifying by holding them in contempt of court for exercising their fifth amendment privileges against self-incrimination. They further contend that the State compounded the error by vouching for the credibility of West and Cole.
• 1 The fifth amendment privilege, invoked here by defendants, is a personal privilege against self-incrimination. The Supreme Court has held that "[t]he Constitution explicitly prohibits compelling an accused to bear witness `against himself'; it necessarily does not proscribe incriminating statements elicited from another." (Couch v. United States (1973), 409 U.S. 322, 328, 34 L.Ed.2d 548, 554, 93 S.Ct. 611, 616.) Criminal defendants "cannot invoke the privilege of witnesses, co-defendants or even co-conspirators. Nor can [they] successfully claim that their privilege was violated." McCormick, Evidence, sec. 120, at 289 (3d ed. 1984).
• 2 In the instant case, the State called both Ramon West and Darryl Cole as witnesses. Attorneys for both West and Cole advised them to invoke their fifth amendment right against self-incrimination. When they did so, they were held in contempt of court. After receiving, respectively, seven and five contempt citations, they both agreed to testify. Had they persisted in refusing to testify and appealed a final order of contempt to this court, a reviewable issue would have arisen. (See People v. Thornton (1983), 120 Ill. App.3d 983, 987, 458 N.E.2d 1150.) The fact that the contemnors here failed to persist in asserting their fifth amendment rights does not, however, allow the defendants to raise the issue in their appeal. People v. Godsey (1978), 74 Ill.2d 64, 73, 383 N.E.2d 988.
• 3 We also reject defendants' contention that the State compounded the error by vouching for the credibility of Ramon West and Darryl Cole. In response to defense counsel's statement that West and Cole were State's witnesses, the prosecutor stated in his closing rebuttal, "Sure. And I vouch for their credibility." This alleged error is deemed waived as defendants failed to raise the issue in their post-trial motions. We note, however, that in the context of the entire argument, the comment, even if improper, did not constitute reversible error in light of the overwhelming evidence of defendants' guilt. People v. Barnes (1983), 117 Ill. App.3d 965, 978, 453 N.E.2d 1371, appeal denied (1985), 102 Ill.2d 555.
• 4 We next consider whether the prosecutor's comment in closing rebuttal that defendant had requested a lawyer penalized defendant Johnson for exercising his sixth amendment right to counsel. Defendant argues that the prosecutor's remarks constitute plain error (87 Ill.2d R. 615(a)) and necessitate a new trial despite defense counsel's failure to object at trial. He relies principally upon People v. Meredith (1980), 84 Ill. App.3d 1065, 405 N.E.2d 1306, appeal denied (1980), 79 Ill.2d 616. The prosecutor in Meredith stated in closing argument that "he [defendant] knew he had shot those people that is why he went to call his lawyer." We found this comment on defendant's exercise of his sixth amendment rights impermissible because it penalized the defendant for asserting a constitutionally protected privilege. People v. Meredith (1980), 84 Ill. App.3d 1065, 1073, 405 N.E.2d 1306, appeal denied (1980), 79 Ill.2d 616, citing Griffin v. California (1972), 380 U.S. 609, 614, 14 L.Ed.2d 106, 109-10, 85 S.Ct. 1229, 1232-33.
The comments which defendant now objects to, unlike those in Meredith, resulted from the introduction into evidence by the defendant of a court-reported statement in which the defendant requested an attorney. Following his introduction of the statement, defense counsel argued in his summation:
"[Y]ou'll see clearly by reading this [the court-reported statement] that Darryl finally realized that the State is coming down on him, and he's informed that he has a right to a lawyer. He exercises that right, and the questioning continues after he says he wants a lawyer."
In this context, we believe the prosecutor's comment was invited by defense counsel, and defendant cannot now object to the response. People v. Vriner (1978), 74 Ill.2d 329, 344, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L.Ed.2d 296, 99 S.Ct. 2858.
• 5 We next consider defendant Johnson's contention that the trial court erred in refusing to give his non-Illinois Pattern Jury Instruction. The instruction tendered by defense counsel stated: "Mere presence at the scene of a crime or negative acquiescence in a crime is not sufficient to prove a person accountable for the crime." Although slight evidence will justify an instruction on a given defense (People v. Bratcher (1976), 63 Ill.2d 534, 540-41, 349 N.E.2d 31), it is not error for the trial court to refuse an instruction where, as here, the evidence does not support the defense (People v. Mancl (1977), 55 Ill. App.3d 41, 45, 370 N.E.2d 664).
The record shows that defendant Johnson admitted going to look for Keith Brice; admitted carrying a shotgun for six blocks through alleys and gangways in search of Keith Brice; admitted carrying the shotgun "for protection"; and admitted seeing Ramon West fire his shotgun and hearing a second shot fired. These facts sufficiently negate the argument that defendant was "merely present" or "negatively acquiesced" in the murder of Cleave Herron.
Furthermore, the jury here was adequately instructed on the parties' respective theories of the case, including the law relating to accountability. Accordingly, it was not error for the court to refuse to give a "mere presence" instruction. See People v. Craig (1979), 79 ...