People v. Burton
| Decision Date | 19 December 1969 |
| Docket Number | No. 38614,38614 |
| Citation | 254 N.E.2d 527,44 Ill.2d 53 |
| Parties | The PEOPLE of the State of Illinois, Defendant in Error, v. James BURTON, Plaintiff in Error. |
| Court | Illinois Supreme Court |
John J. Cleary, Chicago, appointed by the court, for appellant.
William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane and Patrick T. Driscoll, Jr., Asst. State's Attys., of counsel), for the People.
This case is before us on a writ of error issued in May of 1964 to the circuit court of Cook County. A jury found the defendant, James Burton, guilty of the murder of Clemens Tappe, and he was sentenced to imprisonment for not less than 20 nor more than 30 years. He urges several grounds for reversal of his conviction, but we find it necessary to consider only two contentions: first, that the prosecuting attorney's comment on the defendant's failure to testify violated his privilege against self-incrimination; and second, that because of negligence on the part of the defendant's first appointed counsel, the defendant was denied the equal protection of the law.
The victim, age 76, died on June 7, 1963, as a result of cranial injuries inflicted with a blunt instrument. On that night the defendant had visited persons who lived in the apartment building where the decedent resided. One witness saw him knocking on the decedent's door, although there is no direct evidence that the defendant actually entered the decedent's apartment. There was a blood stain on the trousers worn by the defendant on that night, but a laboratory technician was unable to identify the blood as that of the decedent. Technicians were also unable to match a gray hair found on the defendant's trousers with hair of the decedent, except for the general observation that 'the pigmentation was similar.'
There is evidence from which it might be concluded that the defendant knew the decedent and had previously borrowed small amounts of money from him. The decedent's daughter testified that her father had been known to keep on his person a large roll of bills, perhaps $300 or $400 in tens and twenties. The defendant's wife testified that on the night of the murder, her husband, who customarily earned $59 per week, returned home and displayed to her $315 in tens and twenties. The next morning the defendant's brother-in-law saw the defendant count out a similar amount of money. When the defendant was arrested on the day following the murder, he had in his possession $67 in cash and three receipts from an automobile dealer in the total amount of $242.67. There is evidence that the defendant had recently purchased an automobile from the dealer and that his first payment was two days overdue on the day of the murder. The front end of the automobile had been almost totally wrecked in an accident prior to the murder. The defendant gave inconsistent explanations as to how he obtained the relatively large amount of money that was in his possession after the crime.
We consider first the defendant's contention that the State violated his privilege against self-incrimination. During the course of the trial, the prosecuting attorney referred to the existence of blood stains on the defendant's trousers and the defendant's failure to explain them. In his closing argument before the jury, the prosecutor stated: We think that this comment constituted plain error (Sup.Ct. Rule 615, Ill.Rev.Stat. 1967, c. 110A, § 615) for which a new trial must be granted.
In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the Supreme Court held that the fifth amendment privilege against self-incrimination, as it applies to the States through the fourteenth amendment, forbids comment by the prosecutor on the defendant's failure to testify in his own behalf. In addition, section 155--1 of the Code of Criminal Procedure, enacted long before the Supreme Court's decision in the Griffin case, provides: '* * * a defendant in any criminal case or proceeding shall only at his own request be...
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...as uncontradicted and unrebutted, improperly commented on his failure to testify. The prosecution cannot directly (People v. Burton (1969), 44 Ill.2d 53, 56-57, 254 N.E.2d 527), or indirectly (People v. Wollenberg (1967), 37 Ill.2d 480, 488, 229 N.E.2d 490), comment on the defendant's failu......
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