People v. Saulsbury

• Decision Date: 16 December 1977
• Docket Number: No. 14033,14033
• Parties: , 13 Ill.Dec. 470 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry SAULSBURY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 165

371 N.E.2d 165

55 Ill.App.3d 663, 13 Ill.Dec. 470

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry SAULSBURY, Defendant-Appellant.

No. 14033.

Appellate Court of Illinois, Fourth District.

Dec. 16, 1977.

Richard J. Wilson, Deputy Defender, Barbara A. Chasnoff, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Edward Y. Crandall, State's Atty., Rushville, Robert C. Perry, Principal Atty., State's Attys. Appellate Service, Jane F. Bularzik, Staff Atty., Springfield, for plaintiff-appellee.

LEWIS, Justice.

The defendant was tried by a jury, found guilty of murder, and received a 25 to 75 year sentence. He argues on appeal that he was not proved guilty beyond a reasonable doubt and that he was denied due process when the prosecutor's cross-examination and closing arguments dwelled on defendant's post-arrest silence.

Defendant does not contend that he did not stab Cooper, but rather argues that the act was in self-defense. We will not disturb the jury verdict unless it is plainly apparent that proof beyond a reasonable doubt is lacking (People v. Hansen (1963), 28 Ill.2d 322, 192 N.E.2d 359, cert. denied, 376 U.S. 910, 84 S.Ct. 665, 11 L.Ed.2d 608). A review of the record indicates that Saulsbury's version of the events is denied by other witnesses. Defense counsel in closing argument conceded this point when he stated that if the jury believed the other witnesses they would have to find the defendant guilty. Particularly crucial is the testimony of the deceased's girlfriend that a broken bottle Saulsbury claims the deceased raised to strike him with was in Cooper's same back pocket when Cooper returned to his sister's apartment clutching his chest. This implies that the bottle never left Cooper's pocket. If defendant was unaware of a weapon, there was no reason to use deadly force in self-defense. Also significant are the differences between Lorenda Carpenter's and Saulsbury's testimony as to exactly what happened. Carpenter testified: (1) She asked Saulsbury to put the knife away after they returned to the apartment and he refused; (2) Cooper brought his hand up, but then brought it down again and it was only after that that Saulsbury invited him into the apartment; Cooper stepped in and he was immediately stabbed.

The State also argues that the evidence of defendant's flight after stabbing is circumstantial evidence of guilt. It is well established that evidence of flight is admissible to show consciousness of guilt. People v. Harris (1972), 52 Ill.2d 558, 288 N.E.2d 385.

Under all the evidence in this case, the evidence was sufficient to sustain the verdict.

The second issue concerns prosecution comments and questions regarding Saulsbury's post-arrest, post-Miranda silence. After defendant left the scene of the stabbing, he went to some friends. These friends were not at home, but Saulsbury saw Lorenda Carpenter who tried to persuade defendant to turn himself in. He refused because he was on parole and did not think the authorities would believe him. He then testified on direct examination that, when he was arrested several hours after the incident, he did not volunteer any explanation to the sheriff because the sheriff had read him his rights and, since he was on parole, he did not think they would believe him.

The following cross-examination occurred:

"Q. And you also testified that Sheriff Miller arrested you, he gave you your Miranda warnings and that you didn't * * *

A. That's right.

Q. (continuing) told you that you didn't have to say anything that anything you say could and would be used against you?

A. Yes.

Q. And you exercised your constitutional right not to tell him anything, is that correct?

A. Yes."

The prosecutor also asked if Saulsbury made a statement after he learned that Cooper was dead and he was being charged with murder. Defendant replied, "No."

In Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the Supreme Court held that prosecutorial questions and comments on the defendant's post-arrest silence violate due process and cannot be used as impeachment of defendant's credibility. In the case at bar, no objection was made either to the prosecutor's questions or his closing arguments. Several cases have held that this kind of error is not waived by the lack of objection. (People v. Monaghan (1976), 40 Ill.App.3d 322, 352 N.E.2d 295; People v. McDowell (1972), 4 Ill.App.3d 382, 280 N.E.2d 471.) It has been recognized as reversible error under the "Plain Error" Rule (Supreme Court Rule 615, Ill.Rev.Stat.1975, ch. 110A, par. 615); Monaghan; People v. Kennedy (1975), 33 Ill.App.3d 857, 338 N.E.2d 414; People v. Suggs (1977), 50 Ill.App.3d 778, 8 Ill.Dec. 732, 365 N.E.2d 1118.

As detailed above, there is a line of authority in Illinois which...