People v. Graves

• Citation: 142 Ill.App.3d 885,97 Ill.Dec. 81,492 N.E.2d 517
• Decision Date: 11 April 1986
• Docket Number: No. 83-2958,83-2958
• Parties: , 97 Ill.Dec. 81 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy GRAVES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 517

492 N.E.2d 517

142 Ill.App.3d 885, 97 Ill.Dec. 81

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy GRAVES, Defendant-Appellant.

No. 83-2958.

Appellate Court of Illinois,

First District, Fifth Division.

April 11, 1986.

[142 Ill.App.3d 887] [97 Ill.Dec. 83] James J. Doherty, Public Defender of Cook County (Donald L. Bertelle, Asst. Public Defender, Chicago, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty., County of Cook (Sheila Rudin, Michael E. Shabat, David A. Cuomo, Asst. State's Attys., of counsel, Bonnie E. Meyer, on brief), Chicago, for plaintiff-appellee.

Justice LORENZ delivered the opinion of the court:

Defendant was charged with the offenses of murder and armed violence. Following a jury trial, defendant was found guilty of murder and sentenced to a term of 22 years imprisonment in the Illinois Department of Corrections. Defendant appeals from the decision of the trial court alleging that numerous instances of prosecutorial misconduct and judicial error warrant the reversal of his conviction.

We affirm.

On November 7, 1982, George Grant was stabbed in the chest. Shortly thereafter he died as a result of the wounds received during the assault. The incident leading to A follow-up investigation of the murder implicated defendant. The police issued a warrant for defendant's arrest upon failing to locate him for questioning. It was not until November 12, 1982, five days after the killing, that defendant was apprehended when he surrendered himself to the police.

[97 Ill.Dec. 84] George Grant's demise occurred on a street corner where the victim, defendnat, and several of their friends had gathered after attending a party at a nearby residence. All were members of an inner-city gang known as the Black Disciples.

While in custody, defendant confessed to the stabbing murder of George Grant. He also informed police that he had been "high" on alcohol and pills at the time of the stabbing. At his trial for murder, the defendant contended for the first time that the killing had been carried out in self-defense.

Following his conviction for murder, defendant was sentenced to 22 years imprisonment. Defendant appeals from the decision of the trial court on the basis that the State impermissibly (1) used his post-arrest silence for impeachment purposes; (2) insinuated that his defense of self-defense was fabricated; (3) commented that its key witness, Christopher Bates, testified despite threats of violence; (4) commented on inadmissible evidence in order to bolster its key witness' credibility; and (5) misstated the law resulting in the reduction of the State's burden of proof. Additionally, defendant contends that the trial judge improperly (6) excluded evidence of the victim's prior conviction for burglary; and (7) allowed defendant's prior conviction to go to the jury as an aggravated battery, rather than an unspecified felony.

OPINION

Defendant initially contends that the State improperly cross-examined him regarding his post-arrest silence and commented upon the same in closing arguments all in contravention of the rule enunciated by the Supreme Court in Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. The State argues that no error was committed since (a) what defendant characterizes as post-arrest silence is in fact pre-arrest silence; (b) defendant failed to remain silent after arrested and advised of his rights; and (c) the prosecutor merely commented on the inconsistency between defendant's post-arrest statements and his trial testimony.

At the root of the controversy is the fact that defendant waited until trial to first relate to police authorities that he killed in self-defense. According to his testimony during direct examination, defendant was approached by George Grant while both were standing on a street corner and asked if he had any "reefer." Defendant answered in the negative, but then added that even if he had some, he would not give him any. Grant suddenly hit him "upside" his head with a piece of metal object in his hand. Defendant became scared and staggered back. When Grant allegedly came towards him to hit him again, defendant pulled out his knife and stabbed the victim in the chest.

The prosecutor's theory at trial was that the aforementioned exculpatory story was offered only after defendant realized that his post-arrest statements to the police about being under the influence of alcohol and drugs were not going to be enough to ward off his conviction. Accordingly, the prosecutor cross-examined defendant about his actions after the stabbing in the following manner:

"Q. You didn't go down to 7045 Normal and tell the police that George Grant had hit you in the head with a metal object, did you?

A. No, I didn't.

Q. And you didn't meet the police at 7101 South Normal and tell them that George Grant had hit you in the head with a metal object, did you?

A. No.

Q. And you didn't go ask the police to find that metal object, did you?

A. No.

* * *

* * * Q. You didn't take that knife down to 7045 Normal and give it to the police and say, here, I stabbed a man, but I did it in self-defense, did you?

A. No.

* * *

* * *

Q. On the 8th of November, you didn't go to the police and tell them about any metal object, did you?

A. No.

Q. On the 9th of November, you didn't go to the police and tell them you were attacked by George Grant, did you?

A. No.

* * *

* * *

It is abundantly clear from this line of questioning that a portion of what defendant characterizes as post-arrest silence during his cross-examination is in fact pre-arrest silence. As such, we must agree with the State that the prosecutor's questions concerning what defendant did not divulge to police authorities before he turned himself in, were proper for impeachment purposes and probative of defendant's credibility.

It is well-established that the Fifth Amendment, as applied to the States through the Fourteenth Amendment, is not violated by the use of pre-arrest silence to impeach a criminal defendant's credibility. (Jenkins v. Anderson (1980), 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86; People v. Adams (1981), 102 Ill.App.3d 1129, 58 Ill.Dec. 325, 430 N.E.2d 267; People v. Hart (1980), 92 Ill.App.3d 272, 47 Ill.Dec. 823, 415 N.E.2d 1136.) ^* The fact that defendant was not apprehended until he surrendered himself to the police five days after the killing and the fact that defendant in those five days did not tell the police that he stabbed George Grant in self-defense is clearly probative of defendant's credibility where he testified at trial for the first time that he killed George Grant in self-defense. Comments on defendant's pre-arrest silence and the inference derived therefrom by the prosecutor in closing argument were therefore also proper. Jenkins v. Anderson (1980), 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86; see, People v. Sinclair (1963), 27 Ill.2d 505, 190 N.E.2d 298.

We further agree with the State that there was no violation of defendant's rights under the Fifth and Fourteenth Amendments since the defendant did not remain silent after arrested and the prosecutor merely commented on the inconsistency between defendant's post-arrest statements and his trial testimony.

It is undisputed that defendant, after turning himself in to the police and being advised of his right to remain silent, confessed to having stabbed George Grant while under the influence of alcohol and drugs. It is also apparent from the record that defendant's post-arrest statements were inconsistent with his subsequent testimony at trial since no claim of self-defense was made at that time. Having chosen to confess to the murder of Grant after being advised of his right to remain silent, defendant cannot now claim that the State impermissibly cross-examined and commented on constitutionally protected silence.

In Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the United States Supreme Court held that due process precludes the State from impeaching defendant's exculpatory story offered for the first time at trial by cross-examination on his failure to offer that explanation to police as an arrestee advised of his Miranda rights. The court further noted that every post-arrest silence is "insolubly ambiguous" since it may merely indicate the arrestee's exercise of his Fifth Amendment right to silence rather than an admission of no defense to incriminating circumstances. (See, e.g., People v. Malkiewicz (1980), 86 Ill.App.3d 417, 41 Ill.Dec. 701, 408 N.E.2d 47.) However, there are well-recognized circumstances in which the State may permissibly comment on post-arrest "silence." Where a defendant does not remain completely silent after being advised of his Miranda rights, his failure to offer an exculpatory story to the police may be used for impeachment purposes. (People v. Henson (1978), 58 Ill.App.3d 42, 15 Ill.Dec. 506, 373 N.E.2d 852; People v. Trumbull (1978), 67 Ill.App.3d 262, 23 Ill.Dec. 935, 384 N.E.2d 842; People v. Dominique (1980), 86 Ill.App.3d 794, 41 Ill.Dec. 858, 408 N.E.2d 280.) Similarly, if defendant's exculpatory testimony at trial is inconsistent with statements he made after being advised of his right to remain silent, comment or evidence about his failure to give the same statement at that time will not violate the Doyle rule. Anderson v. Charles (1980), 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222; People v. Beller (1979), 74 Ill.2d 514, 25 Ill.Dec. 383, 386 N.E.2d 857; People v. Levan (1981), 99 Ill.App.3d 310, 54 Ill.Dec. 793, 425 N.E.2d 1010.

Like the instant case, defendant in Henson made an incriminating statement to police after he was arrested for rape and told of his right to remain silent. At that time the defendant stated, "I was so high that I don't remember what happened, but I guess I screwed her. That's all. I don't remember much else, but after that I walked out." (15 Ill.Dec. 506, 509, 373 N.E.2d...