People v. Aughinbaugh

Decision Date19 January 1967
Docket NumberNo. 38991,38991
Citation36 Ill.2d 320,223 N.E.2d 117
PartiesThe PEOPLE of the State of Illinois, Defendant in Error, v. Robert D. AUGHINBAUGH, Plaintiff in Error.
CourtIllinois Supreme Court

Marvin S. Helfand, Chicago, for plaintiff in error.

William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and James S. Veldman, Asst. State's Attys., of counsel,) for defendant in error.


Robert D. Aughinbaugh was found guilty of robbery and armed robbery in a Cook County circuit court jury trial and was sentenced to 10 to 20 years imprisonment. He appeals directly here contending his constitutional rights were violated by testimony and comments as to his silence at the time he was identified in a police lineup. He also charges the trial court erred in refusing to order the State to provide him with a copy of the grand jury testimony of two of its witnesses, in limiting his cross-examination of the State's rebuttal witness, and in allowing the State to introduce a gun into evidence.

Defendant was charged with the robbery of the Burton's Men's Shop in Chicago at 6:30 P.M. on December 16, 1961. At his trial the State called Joseph Geneles, proprietor of the store as its first witness. Part of Geneles's testimony related to his identification of the defendant in a police lineup on January 17, 1962. He said that he identified the defendant, who was standing with his back to him, by touching him on the shoulder, and that, when he did this, defendant said nothing.

A Chicago police detective, Eugene Kalinowski, also testified as to the identification of the defendant in the police lineup. He said that Geneles and Jacqueline Cwick, who became involved when she entered Geneles's store as a customer during the robbery, identified the defendant, in turn, by tapping him on the shoulder and that defendant did not say anything either time he was so identified.

While the tacit admission rule obtains in this State, and the silence of a defendant in the face of an accusation of guilt may be shown at his trial as evidence of guilt, such evidence should be received with caution and only when the conditions upon which it becomes admissible are clearly shown to exist. (People v. Bennett, 3 Ill.2d 357, 361, 121 N.E.2d 595.) It must affirmatively appear that the defendant knew he was being asked about the crime for which he is on trial, for it is the assumption that one similarly situated would ordinarily deny the imputation of guilt which renders admissible defendant's failure to do so. (See People v. Smith, 25 Ill.2d 219, 224, 184 N.E.2d 841; People v. Bennett, 3 Ill.2d 357, 361, 121 N.E.2d 595.) There is no evidence in this record that defendant was told on December 17 why he was then arrested or the purpose of his subsequent placement in the lineup. When Geneles and Miss Cwick identified defendant, he was standing with his back to them. They identified him simply by touching him on the shoulder, without any oral accusation. Officer Kalinowski testified that, in a normal voice and while within five feet of defendant, he 'asked them if they recognized him in the lineup or showup that they should tap that person on the shoulder'. He also said that, in the presence of Miss Cwick, Geneles indicated that this was the man who had been in his store but, apart from the serious question as to adequacy of this statement, there is no showing that this was audible to defendant. Geneles testified that 'they told me to go up and point to the man I think caused the trouble to me.' It is clear that the combined effect of this testimony falls considerably short of establishing that it was then known to defendant that he was being charged with the robbery of the Burton's Men's Shop, (People v. Gratton, 28 Ill.2d 450, 455, 192 N.E.2d 903.) We therefore conclude that defendant's silence at the time of the lineup identification cannot be considered a tacit admission of his guilt, and admission of such evidence, when coupled with the comment thereon by the State's attorney during argument to the jury, constituted reversible error. Since this case must be retried, it is necessary to consider several other alleged errors, as the questions involved are likely to recur. Among these is the contention that the trial court improperly refused to order the State to supply defendant, as requested by him, with the grand jury minutes relating to the testimony of two of its witnesses, Geneles and Christie. Defendant's request was made at the conclusion of the direct testimony of each of the witnesses, and called for the production of transcripts of such testimony, if transcribed, or, if not, for production of the court reporter who took the testimony that he might read his notes thereof to defense counsel. The State indicated it had no transcripts, and the trial judge denied the request because no transcripts were available and 'if they want the court reporter who took the transcript (Sic) they can bring him in by the customary method.'

In People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399, we extended to grand jury minutes the rule of People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197, and People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1, that statements of prosecution witnesses in possession and control of the State must, on a proper showing, be made available to defendant. The law, so far as we are aware, does not require that the testimony of witnesses before a grand jury be recorded. Section 112--6 of the Code of Criminal Procedure (Ill.Rev.Stat.1965, chap. 38, par. 112--6) allows, but does not compel, court appointment of a reporter to attend sessions of a grand jury if the State's attorney does not assign one. Johnson does not deal with this aspect of the question. Since there is no absolute requirement, constitutional or otherwise, that testimony before a grand jury be recorded, there may well be many cases in which no record exists. (United States v. Cianchetti (2d cir. 1963) 315 F.2d 584.) It is clear that defendant can have no right to production under ...

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44 cases
  • People v. Conley
    • United States
    • United States Appellate Court of Illinois
    • August 2, 1989
    ...the State objected to questions asking Carroll to describe the offender. The defendant's argument assumes that People v. Aughinbaugh (1967), 36 Ill.2d 320, 223 N.E.2d 117 and People v. Morris (1964), 30 Ill.2d 406, 197 N.E.2d 433, are controlling. These decisions hold that where identificat......
  • People v. Thomas
    • United States
    • Illinois Supreme Court
    • July 3, 1990
  • People v. Foster, 4-89-0958
    • United States
    • United States Appellate Court of Illinois
    • July 5, 1990
    ... ... There have been cases where pre-arrest silence may be indicative of guilt where the defendant remained silent under circumstances in which a reasonable person would ordinarily deny involvement. (See People ... Page 1295 ... [145 Ill.Dec. 393] v. Aughinbaugh (1967), 36 Ill.2d 320, 223 N.E.2d 117.) However, in post-arrest situations, defendant has a right against self-incrimination which may not be infringed. The only question here is whether defendant's failure to remain completely silent so distinguishes this case as to allow the State to comment ... ...
  • People v. Averhart
    • United States
    • United States Appellate Court of Illinois
    • December 30, 1999
    ...may concern any matter that goes to explain, modify, discredit or destroy the testimony of the witness. People v. Aughinbaugh, 36 Ill.2d 320, 223 N.E.2d 117 (1967). The jury is entitled to the details of the theory of defense so it can make an informed judgment, and thus the right to cross-......
  • Request a trial to view additional results
1 books & journal articles
  • Admissibility of Prior Testimony
    • United States
    • Colorado Bar Association Colorado Lawyer No. 11-2, February 1982
    • Invalid date
    ...38. U.S. v. Flecha, 539 F.2d 874 (2d Cir. 1976). 39. Naples v. U.S., 344 F.2d 508 (D.C. Cir. 1964). 40. Id. 41. People v. Aughinbaugh, 223 N.E.2d 117 (Ill. 1967); Boultan v. State, 377 S.W.2d 936 (Tenn. 1964); People v. Bennett, 110 N.E.2d 175 (Ill. 1953). 42. C.R.E. Rule 801(d)(2). 43. Mah......

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