APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
511 N.E.2d 770, 158 Ill. App. 3d 595, 110 Ill. Dec. 593 1987.IL.1010
Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Fitzgerald, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Following a jury trial defendant Gregory Smith was found guilty of armed robbery, armed violence, and aggravated battery. He appeals urging the following: (1) his right to due process was violated by the prosecution's repeated references to his post-arrest silence; and (2) the cumulative impact of numerous instances of prosecutorial misconduct, including improper closing and rebuttal, denied him a fair trial.
The following pertinent testimony was adduced at trial. On the night of February 27, 1984, an armed robbery occurred at the Bee-Gee Tavern in Chicago. Two patrons, Officer James Ahern, an off-duty Chicago police officer, and Joseph Mahoney, were wounded. Nineteen shots were fired in the course of the robbery, which lasted approximately 30 to 60 seconds. Thirteen bullets were traced to two weapons owned by Ahern and six were traced to non-police weapons. Defendant, Fred Brown, and Ricky Anderson were alleged to be the perpetrators of the robbery and related crimes. Fred Brown died of gunshot wounds at the tavern. Defendant and Anderson were both wounded. Defendant was tried separately from Anderson.
At trial defendant admitted being present at the tavern at the time in question but denied that he had participated in the crime. According to defendant the events leading up to the crime began some five days earlier on February 22, 1984. In the early hours of that day Brown came to defendant's house seeking asylum from the police. Brown told defendant that he had just killed a man named Willie Stokes. Brown then slept at defendant's house and left in the morning. Three days later Brown returned with a newspaper which contained an article mentioning a $25,000 or $20,000 reward being offered for any information leading to the prosecution of the murderer of Stokes. Two days later defendant met Brown at a bus stop at 108th and Michigan Avenues. Brown was driving a red Ford and offered defendant a ride. Defendant was carrying a .38 caliber revolver, which he placed in the glove compartment of Brown's car. The two men drove around for a while and eventually picked up Anderson, who was carrying a .25 automatic gun. A second stop was made to pick up some shells for Brown's .12 gauge sawed-off shotgun, which he had under the driver's seat.
Defendant initially thought that Brown was going to drive him home. During the course of the car ride Brown remarked that he would have to kill the people who knew of his participation in the Stokes murder. Defendant assumed that Brown was referring to him because, as far as he knew, he was the only one who knew of the murder. The three men drove west on 79th Street past defendant's apartment. Defendant feared that Brown intended to kill him. Defendant asked Brown to pull over at the Bee-Gee Restaurant so that he could use the men's room. Brown pulled up in front of the tavern and defendant entered, unarmed, and went directly to the men's room. It was about 9:30 p.m. While he was in the men's room he heard a man say: "This is a stickup." He stepped out of the men's room and was shot in the chest by Ahern. Defendant fell to the floor and was shot a second time in the leg. Defendant crawled out the back door when the shooting stopped. He was found by two police officers one-half block west of the tavern, collapsed in the snow. He was taken to Holy Cross Hospital and then transferred to Cook County Hospital. While being questioned at the hospital, defendant stated that he did not know who shot him, that he was unaware that shooting was going to take place, and that he wanted to die.
The State's version of these events was supplied by four eyewitnesses. All four testified that Brown entered the tavern alone at about 9:15 p.m. wearing a red hat. He used the washroom and then left. Two other men entered the tavern approximately 15 minutes later and walked to the rear of the bar. These men were immediately followed by Brown, who put a shotgun to the head of the man nearest the door, Thomas McGowan. Defendant announced a stickup as he stood on the step leading to the men's room. Brown then marched McGowan toward the rear of the bar where there were several other patrons. Brown pushed McGowan face down on the floor. Ahern, armed with a .38 caliber revolver, announced that he was a police officer and shot Brown, who had turned toward him with his shotgun. Next, defendant shot Ahern in the buttocks. Ahern then shot defendant in the chest and also shot Anderson. Defendant next shot another patron, Mahoney, who was attempting to crawl away. Ahern shot defendant a second time. Ahern then retrieved his second weapon and fired seven rounds in Anderson's direction, striking no one. Defendant was arrested a few minutes after the shooting one-half block from the tavern.
Over defense objection the prosecution introduced evidence regarding defendant's failure to relate his exculpatory story at the time of his arrest and interrogation by the Chicago police. They also cross-examined defendant concerning this failure and again referred to it in final argument. The court gave no precautionary instructions regarding the use of defendant's post-arrest silence. Defendant contends that this conduct by the State constitutes a clear violation of his due process rights in accordance with Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.
The touchstone of any inquiry into errors concerning cross-examination of a defendant about his failure to make a post-arrest statement of innocence is United States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133, wherein it was held error for the State to cross-examine a defendant about his post-arrest silence, even faced with his testimony of innocence at trial. In that case the court noted that absent a "threshold inconsistency" between the post-arrest silence and the trial testimony, it was error to permit such cross-examination. (United States v. Hale (1975), 422 U.S. 171, 176, 45 L. Ed. 2d 99, 104-05, 95 S. Ct. 2133, 2136; see also People v. Timmons (1983), 114 Ill. App. 3d 861, 449 N.E.2d 1366.) While Hale and its progeny (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240) involved post-arrest silence, the principles of those cases have been applied in situations where the defendant has been only partially silent after arrest. The crucial inquiry remains whether there is a threshold inconsistency between the defendant's post-arrest silence and his subsequent trial testimony. (People v. Green (1979), 74 Ill. 2d 444, 386 N.E.2d 272; People v. Beller (1979), 74 Ill. 2d 514, 386 N.E.2d 857; People v. Rehbein (1978), 74 Ill. 2d 435, 386 N.E.2d 39.) In Rehbein the defendant was charged with giving a woman a ride in his car, then driving to an isolated area and sexually assaulting her. Police traced defendant by the license number that the complainant had noted on his car. When confronted by police, defendant said that the license plate belonged to a car which had long been inoperable and that he had been at home at the time of the assault. At trial he acknowledged that he had picked up the complainant but asserted that she had initiated the sexual contact and then asked for money. The court permitted cross-examination of the defendant concerning his failure to communicate his consent defense to police at the time of his arrest. In so doing, the court noted that the consent defense was obviously inconsistent with the statements given police after arrest. In Green, however, the court found error in such cross-examination where the defendant's trial testimony was not inconsistent with the statements given at the time of his arrest for burglary. At trial the defendant stated that he entered the building only to find shelter for his family. The court noted that the only deviation in defendant's testimony concerned whether defendant had driven to the scene ...