Appeal from the Circuit Court of Fulton County. No. 00-CF-159 Honorable William Henderson, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
Following a jury trial in the circuit court of Fulton County, defendant, George L. Clark, was convicted of one count of armed robbery (720 ILCS 5/18--2 (West 2000)) and one count of home invasion (720 ILCS 5/12--11 (West 2000)). Defendant now appeals, alleging three errors. First, he contends that it was error for the State to impeach him with his post-arrest silence. Second, he asserts that the State's closing argument was unfairly prejudicial. Third, defendant argues that he is entitled to an additional day of credit for time spent in custody prior to trial. We agree with defendant's first two contentions; hence, we reverse and remand this cause for a new trial. Since we are reversing, the third issue raised by defendant, as it pertains to sentencing, is moot.
Before turning to the merits of defendant's arguments, we note that the first two errors defendant asserts have not been properly preserved for appellate review. Defendant claims that the evidence at his trial was closely balanced and asks that we review both claims as plain error. See People v. Austin, 328 Ill. App. 3d 798, 807 (2002); 134 Ill. 2d R. 615(a). In the instant case, the evidence was closely balanced.
The evidence against defendant was as follows: (1) the victim identified her attacker as a white male in his forties of about defendant's build; (2) defendant owned a pair of sneakers like those described by the victim; (3) defendant had access to a knife similar to that described by the victim, although her description was incomplete; (4) defendant owned two snap-brim hats, one black and one tan, and the victim described her attacker as wearing a dark, beret-type hat, although she stated at another time it was brown or grey; both hats arguably fit within her two descriptions, and the presence of at least one of them in defendant's home was necessarily coincidental; and (5) one of defendant's fingerprints was recovered from the back of one of the victim's jewelry boxes.
In his defense, defendant presented three alibi witnesses. Their testimony was incomplete; however, their unwillingness to testify to anything more specific speaks to their credibility, as does the fact that none of them were close friends of defendant. Essentially, their testimony, accepted as true, would not conclusively establish that defendant did not commit the robbery; however, it did make this proposition more likely. Regarding the fingerprint, defendant stated that he had previously entered the victim's home, months earlier when he was living across the street from her, looking for money. The victim testified that she was a fastidious cleaner. The print, however, was found on the back of the jewelry box. It is conceivable that she could have missed it, and her cleaning would explain the absence of other prints
In short, defendant's conviction necessarily involved the rejection of his alibi and his explanation of how his fingerprint got into the victim's house. Thus, issues of credibility abounded in the trial below. Accordingly, we conclude that the evidence in this case was sufficiently close to warrant the application of the plain-error doctrine (see People v. Aguirre, 291 Ill. App. 3d 1028, 1035 (1997)), and we will review defendant's two claims of error.
Defendant first claims that it was error for the State to impeach him with his post-arrest silence. At trial, the following colloquy ensued between defendant and the State:
"Q: Okay[.] Now, you say you got arrested on August 17th; correct?
Q: Did you ask anyone why?
Q: What did they tell you?
A: They told me I was being arrested for armed robbery, home invasion.
Q: Did you ask them when?
A: I figured they would tell me when they were ready for me to know.
Q: Okay. Did you tell them they ...