{ "id": 3551243, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENT STARKS, Defendant-Appellant", "name_abbreviation": "People v. Starks", "decision_date": "1988-04-26", "docket_number": "No. 85-1582", "first_page": "588", "last_page": "601", "citations": [ { "type": "official", "cite": "169 Ill. App. 3d 588" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "479 U.S. 870", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6418146, 6418596, 6418287, 6418524, 6418804, 6418422, 6418682, 6417756, 6417855 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/479/0870-03", "/us/479/0870-07", "/us/479/0870-04", "/us/479/0870-06", "/us/479/0870-09", "/us/479/0870-05", "/us/479/0870-08", "/us/479/0870-01", "/us/479/0870-02" ] }, { "cite": "56 Ill. 2d 588", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "311 N.E.2d 228", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "page": "236-37" } ], "opinion_index": 0 }, { "cite": "5 Ill. App. 3d 86", "category": "reporters:state", "reporter": "Ill. 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App. 3d 384", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520847 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0384-01" ] } ], "analysis": { "cardinality": 1281, "char_count": 33272, "ocr_confidence": 0.777, "pagerank": { "raw": 1.570766646728118e-07, "percentile": 0.6786642773381769 }, "sha256": "9e076a23c0ea383318fba25b6054340ad8143f5882e2a330f247c5ba177108b0", "simhash": "1:b2343db67b23bac7", "word_count": 5627 }, "last_updated": "2023-07-14T17:11:49.091625+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENT STARKS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STAMOS\ndelivered the opinion of the court:\nDefendant, Kent Starks, appeals from his conviction at a jury trial and sentence to concurrent terms of 40 years\u2019 and 10 years\u2019 imprisonment for murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 \u2014 1) and attempt to commit armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8 \u2014 4). This was defendant\u2019s second trial; his earlier one was the subject of our opinion in People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298, appeal denied (1983), 96 Ill. 2d 548.\nOn appeal, defendant contends that:\n(1) The trial judge failed to ask three requested voir dire questions deemed essential to selection of a fair and impartial jury in People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062.\n(2) The State\u2019s closing argument denied him a fair trial and the right not to have his failure to testify commented on.\n(3) Comments by the trial judge chilled his right to testify in his own behalf.\n(4) The Cook County public defender had a conflict of interest in representing both him and a prosecution witness against whom charges were pending.\n(5) The judge erred in refusing defendant\u2019s \u201cinnocent hypothesis\u201d instruction.\n(6) Imposition of a 40-year sentence was an abuse of discretion.\n(7) The judge erred in considering defendant\u2019s supposed lack of remorse in sentencing.\n(8) The judge erred in sentencing defendant without a proper presentence report or relevant information, and counsel was incompetent for not adducing evidence in mitigation.\nWe reverse on the basis of defendant\u2019s first contention regarding the voir dire.\nFacts\nDefendant was arrested on December 25, 1980, indicted by a grand jury, and at his first trial convicted by a jury of the murder and attempt to commit armed robbery of John Lipinski. He was sentenced to concurrent terms of 40 years\u2019 and 10 years\u2019 imprisonment, respectively. We later reversed his convictions in People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298, appeal denied (1983), 96 Ill. 2d 548. Upon remand, his case was assigned to a new trial judge.\nPrior to jury selection for his new trial on April 11, 1985, defense counsel submitted eight questions for use during voir dire, including three that are at issue in the present case. The questions and the trial judge\u2019s responses to their submission are set forth hereinafter.\nJury selection proceeded. The trial judge\u2019s pertinent statements and questions to the venire are likewise set forth hereinafter.\nAt trial, which began on April 12, 1985, Mark Jones, an acquaintance of defendant, testified that he, Mario Godsey, and defendant were walking northward from the intersection of Parkside Avenue and Division Street in Chicago on the evening of July 21, 1980, after purchasing some wine when they encountered a male pedestrian walking toward them. Jones testified that when they observed the same man a few minutes later walking on his return trip past them on the other side of the street, defendant said he needed some money; ran across the street toward the man; told the man, \u201cStickup, don\u2019t run\u201d; and then ran after the man and shot him in the back after the man began to run. Jones testified that defendant then approached the fallen man and began to search him and that, when defendant rejoined Jones and Godsey later, defendant said that he had shot the man because he had run despite being warned, although defendant added that he had obtained no money from the man.\nPolice officer Johnace Lewis then testified to having found the victim\u2019s body and that it had no identification on it but that $12 in a shirt pocket and a gold chain were on the body when she found it. She added that, when found, the body was lying on its back.\nDr. Edmund Donoghue of the Cook County medical examiner\u2019s office testified that the victim died of a gunshot wound to the left buttocks that involved the bowel and heart. Donoghue also testified that the victim\u2019s chin showed abrasions consistent with falling onto a hard surface and that, after receiving such a wound and falling on his face, a person could have turned himself over.\nMario Godsey, a neighbor of defendant, then testified. His account of the wine purchase, walk along Parkside Avenue, and encounter with the victim generally paralleled Jones\u2019. He also stated that, at the time of his testimony, he was in jail awaiting sentencing on an automobile theft charge; that he had made an arrangement that if he would testify in defendant\u2019s case the State would recommend a two-year sentence on his theft charge; and that the judge in his theft case had told him that he was eligible for an extended 10-year term of imprisonment.\nAssistant State\u2019s Attorney Michael Markovitz testified as to a statement that he said defendant had given him. In the statement attributed to defendant, he was quoted as having told of seizing a gun from Jones to prevent Jones from using it in robbing the victim, whereupon as defendant approached the victim, who was across the street, the gun somehow discharged after someone yelled from a nearby porch. Assistant State\u2019s Attorney Chris Cronson then testified as to defendant\u2019s having signed the statement.\nDefendant did not testify and called only one witness, the owner of a store equivocally identified by Jones as the place where the wine had been bought. The store owner testified that he never sold liquor although there was a liquor store three or four doors from his establishment.\nAt an instructions conference, defense counsel tendered an \u201cinnocent hypothesis\u201d instruction, which was refused. Thereupon, counsel made their closing arguments, and after being instructed on the law, the jury found defendant guilty.\nSentencing took place on May 9, 1985. After defendant\u2019s motion for a new trial was denied, this appeal followed.\nOpinion\nI. VOIR DIRE\nDefendant contends that, by failing to ask three supplemental questions that the defense had submitted for voir dire of the potential jurors, the trial court committed reversible error. In support, defendant cites People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062. The State responds that defendant waived this ground for review by failing to object at trial or to raise it in his post-trial motion and that in any event the trial court fully complied with the Zehr requirements.\nThe three questions at issue were:\n\u201c1. If at the close of all the evidence and after you have heard arguments of counsel you believe that the state has failed to prove the defendant guilty beyond a reasonable doubt, would you have any hesitation whatsoever in returning a verdict of not guilty?\n2. If the defendant, KENT STARKS, decides not to testify in his own behalf, would you hold it against him?\n3. Do you understand that the defendant is presumed innocent and does not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the state?\u201d\nAs to the first question, the trial judge stated: \u201cNumber 1 I always ask.\u201d As to the second and third questions, the judge stated: \u201cI instruct them as far as Number 2 is concerned. I instruct them as to Number 3.\u201d After the judge\u2019s responses as to five other questions that the defense had tendered, this exchange occurred:\n\u201cMR. CONNORS [Defense Counsel]: You are not going to ask Number 6 and 7, but you are going to ask Numbers\u2014\nTHE COURT: Everything else. Everything else basically I ask.\nMR. CONNORS: Would you ask some questions similar to 6 and 7?\nTHE COURT: I always ask questions about what clubs, organizations they belong to, what newspapers and magazines they read.\nMR. CONNORS: I think that it is about it right now.\u201d\nShortly thereafter, this dialogue between defense counsel and the trial judge occurred:\n\u201c[MR. CONNORS, Defense Counsel:] Secondly, I would like to file with the Court my request for supplemental voir dire questions, and to have these questions.\nTHE COURT: We have already-\nMR. CONNORS: I want to keep it part of the record in this case.\nTHE COURT: Sure.\u201d\nDuring his preliminary remarks to the assembly of sworn prospective jurors, the trial judge advised them that they must follow the law as he stated it to them, that the defendant is presumed innocent until or unless the State proves him guilty beyond a reasonable doubt, that the defendant need not prove anything, and that the burden is on the State to prove him guilty beyond a reasonable doubt. The judge then asked the prospective jurors whether\n\u201canything about the nature of the charges here, the defendant is charged with the offense of attempt armed robbery and murder, is there anything about that that starts any juror out one way or another, or you feel you could not give both sides a fair trial? It is not whether you like the armed robbery or murder. None of us do. But merely because the charges are as I have stated, does that start off anyone one way or the other in that you could not give both sides a fair trial? Anybody? Nobody.\u201d\nThereafter, as 32 prospective jurors were examined individually by the trial judge, he asked only five of them any questions that even touched on the subject matter of the three tendered voir dire questions now at issue. Of the five prospective jurors, only two were impaneled.\nWhen one prospective juror acknowledged that he had previously been a juror in a civil case, the judge told him that the burden of proof in a criminal case is different in that the State must prove the defendant guilty beyond a reasonable doubt; the judge then asked the venireman whether he would forget anything he might have learned during the civil case, the venireman answered yes, and he was later impaneled. Another prospective juror with police officers as friends was asked whether, if the State failed to prove guilt beyond a reasonable doubt, she would have any hesitancy in returning a not guilty verdict because she would have to tell a police officer about it; she answered no but was later excused from serving.\nAfter individually examining the first 14 prospective jurors, the trial judge asked them as a group:\n\u201cIs there anything on the mind of any of the fourteen of you that you wish to bring out at this time that you feel could affect your ability here to give both sides a fair trial?\nNothing.\u201d\nThereafter, a prospective juror who had previously served in a civil case was asked whether he would forget any law he had learned then, he answered yes, and he was later impaneled. The judge then asked the next group of four prospective jurors the earlier question regarding anything on their minds that might affect their ability to give the parties a fair trial; no one answered yes. Subsequent groups of six, four, and two, respectively, were each asked a similar question with similar results.\nA prospective juror who declared herself \u201cagainst people with crimes\u201d was advised by the judge as follows: \u201cThat is what the issue is. The defendant is presumed to be innocent of the charges against him, do you understand that?\u201d After an indecisive reply, the judge excused her. Another prospective juror whose father was a police officer was asked by the judge whether, if the State should fail to prove its case beyond a reasonable doubt, he would hesitate to return a not guilty verdict because he would have to explain it to his father; he answered no but was later excused.\nBefore retiring to deliberate, the jurors were instructed that defendant was presumed innocent and that the presumption could be overcome only if from all the evidence they believed beyond a reasonable doubt that he was guilty; that the State had the burden of proof beyond a reasonable doubt; that defendant was not required to prove his innocence; and that the fact that he did not testify should not be considered by them.\nThus, while instructions at the end of trial covered the legal subject matter of the three voir dire questions at issue, no preimpanelment question posed to prospective jurors individually or as a group tested them specifically as to their attitude toward defendant\u2019s failure to testify. Only two prospective jurors (both later excused) were individually questioned at all regarding hesitancy to acquit if guilt remained unproved beyond a reasonable doubt, even though the trial judge had stated beforehand that he always asked such a question. Only one prospective juror (later excused) was individually questioned as to understanding the presumption of innocence.\nAs a group, members of the venire were merely asked whether they were willing to follow the law as the judge would later announce it and whether anything on their minds might prevent them from giving the parties a fair trial. They were also advised before impanelment as to the presumption of innocence, the State\u2019s burden of proof, and defendant\u2019s lack of need to present evidence \u2014 but not as to the impropriety of drawing inferences from defendant\u2019s failure to testify.\nThough the State contends that defendant waived his voir dire contention by failure to object or to raise it in his post-trial motion, the record discloses that in fact it was included in the post-trial motion. Moreover, defense counsel specifically requested that the trial judge ask the tendered supplemental questions on voir dire and was refused as to the second and third questions; he then filed his questions for the record. His so doing amounted to a motion; the refusal, to a partial denial of the motion. Accordingly, defendant did not waive this contention as to the second and third questions (regarding inferences from defendant's failure to testify and his presumption of innocence).\nAs to the first question (regarding hesitancy to return a not guilty verdict), the trial judge stated that he always asked it, but he then failed to do so except in modified form, and then only as to a few jurors; yet, defendant raised no objection at trial to this failure. In similar circumstances, we have held that, despite the requirements of People v. Zehr, failure to object waived the issue. Where there was \u201coverwhelming evidence\u201d of defendant\u2019s guilt, no plain error was found that would vitiate the waiver. People v. Visnack (1985), 135 Ill. App. 3d 113, 124, 481 N.E.2d 744, 751, appeal denied (1985), 111 Ill. 2d 563; see also People v. Kokoraleis (1987), 154 Ill. App. 3d 519, 525, 507 N.E.2d 146, 149, appeal denied (1987), 116 Ill. 2d 569.\nIn the present case, despite the implausibility of some critical exculpatory parts of the statement attributed to defendant and the corroboration that other parts of it afforded to his companions\u2019 testimony, it is arguable whether the evidence against defendant was \u201coverwhelming\u201d as in Visnack, given the witness Godsey\u2019s possible bias as a plea-bargaining theft defendant and the fact that defendant\u2019s statement to the police did implicate Jones rather than defendant. However, we need not decide whether to invoke the plain-error doctrine (107 Ill. 2d R. 615(a)) on the ground that, as in the case cited by the State itself, \u201cwe cannot with certainty conclude in this case that the verdict would not have changed even if the tendered question ] had been asked on voir dire\u201d (People v. Stack (1984), 128 Ill. App. 3d 611, 617, 470 N.E.2d 1252, 1257, affirmed in part and remanded (1986), 112 Ill. 2d 301, 493 N.E.2d 339, cert. denied (1986), 479 U.S. 870, 93 L. Ed. 2d 162, 107 S. Ct. 236; but cf. People v. Pitts (1982), 104 Ill. App. 3d 451, 432 N.E.2d 1062 (harmless error)). We are relieved from having to decide the plain-error issue because defendant has in any case preserved his contentions as to the second and third questions he tendered. The substance of his contentions is thus before us and furnishes an adequate basis for our holding, irrespective of whether he arguably waived his contentions as to the first tendered question.\nIn Zehr, the court considered voir dire questions virtually identical to those submitted by the present defendant. The supreme court agreed with the appellate court that \u201c[e]ach of these questions goes to the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury.\u201d (Emphasis added.) (Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064, quoting from People v. Zehr (1982), 110 Ill. App. 3d 458, 461, 442 N.E.2d 581, 584.) It is\n\u201cessential to the qualification of jurors in a criminal case *** that they know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him. If a juror has a prejudice against any of these basic guarantees, an instruction given at the end of the trial will have little curative effect. It is also vital to the selection of a fair and impartial jury that a juror who finds that the State has failed to sustain its burden of proof of guilt beyond a reasonable doubt have no prejudices against returning a verdict of not guilty.\u201d (Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.)\nAlthough the questions at issue \u201cneed not have been asked in precisely the form submitted, the subject matter of the questions should have been covered in the course of interrogation on voir dire.\u201d (Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064; see also People v. Emerson (1987), 122 Ill. 2d 411, 426 (no \u201cprecise formula\u201d).) Accordingly, the Zehr court found prejudicial and reversible error. See also People v. Thompkins (1988), 121 Ill. 2d 401, 438 (defendant was entitled to have venire asked question his counsel tendered, though court rejected contention that trial judge\u2019s voir dire statement commented adversely on failure to testify).\nThe State argues that in the present case the trial judge admonished the venire as to presumption of innocence, defendant\u2019s right not to present proof, and the State\u2019s burden of proof, and that the jury was instructed on the same subjects. The State cites People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137, appeal denied (1985), 101 Ill. 2d 591, in support. However, Zehr teaches that admonitions and instructions are no substitute for interrogation. Furthermore, in Leamons the trial judge asked the venire panels on 12 occasions whether they disagreed with the principles of law that he had stated. The judge had stated that the defendant need prove nothing, need not present evidence, and could rely simply on the presumption of innocence. The judge had also stated that if the venire were not convinced beyond a reasonable doubt of defendant\u2019s guilt, they must acquit him. In those circumstances, the court found that the three Zehr concerns were sufficiently broached to alleviate any possible error. Leamons, 127 Ill. App. 3d at 1064-66, 469 N.E.2d at 1143-44.\nIn the case at bar, no such comprehensive question as in Leamons regarding disagreement with stated principles was put to the venire as a group; only parts of the three Zehr concerns were raised in the form of questions to a few of the venire members; and no venire member was asked about attitudes toward a defendant who failed to testify. Thus, Leamons fails to shelter such a failure to probe the venire as in the instant case.\nIn addition, two more recent cases demonstrate the inadequacy of the trial judge\u2019s interrogation in the case at bar. In People v. Boswell (1985), 132 Ill. App. 3d 52, 476 N.E.2d 1154, rev\u2019d on other grounds (1986), 111 Ill. 2d 571, 488 N.E.2d 273, though it would have been enough for the trial judge to make a full statement of applicable principles followed by questions of the venire en masse as to their willingness to follow the law even if they disagreed, the judge failed to address and question the venire as to defendant\u2019s right not to testify; therefore, Zehr was not fully complied with. (Boswell, 132 Ill. App. 3d at 56, 476 N.E.2d at 1157-58.) And in People v. Wilson (1985), 139 Ill. App. 3d 726, 487 N.E.2d 1015, rev\u2019d on other grounds (1986), 112 Ill. 2d 567, 513 N.E.2d 844, the trial judge refused to question the venire as to attitudes toward defendant\u2019s failure to testify, even though he admonished them that the defendant need not prove anything and then questioned them as to whether they understood the principle and whether they would follow the law he would give them at the end of trial. Citing Boswell, the appellate court held that the trial judge had not complied with the Zehr requirements. Wilson, 139 Ill. App. 3d at 737, 487 N.E.2d at 1023-24; see also People v. Stewart (1986), 143 Ill. App. 3d 933, 936, 494 N.E.2d 1171, 1173 (question necessary regarding defendant\u2019s failure to offer evidence); People v. Wilson (1986), 141 Ill. App. 3d 388, 389-91, 490 N.E.2d 177, 179 (three Zehr questions should be covered; Leamons distinguished); People v. McMullin (1985), 138 Ill. App. 3d 872, 878-79, 486 N.E.2d 412, 417 (Zehr questions are required); People v. Estes (1984), 127 Ill. App. 3d 642, 655, 469 N.E.2d 275, 285, appeal denied (1984), 101 Ill. 2d 584 (Zehr questions are required).\nWe have recently noted the supreme court\u2019s statement (Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064; accord People v. Emerson (1987), 122 Ill. 2d 411, 425-27) that, although the subject matter of the questions at issue should be covered during venire interrogation, the questions need not be asked in precisely the form submitted. (People v. Cole (1988), 168 Ill. App. 3d 172, 183.) However, in the Cole case, though he did not pose the tendered questions, the trial judge did specifically advise the venire members as a group that \u201c[t]he law does not require the defendant to prove his innocence,\u201d immediately after which he asked whether any of them disagreed with that legal proposition and then repeated that their silence signified their agreement with it. (Cole, 168 Ill. App. 3d at 175.) On appeal, the defendant contended that the judge should have asked the exact questions his counsel had tendered, and in light of Zehr we rejected that contention. We also observed that the trial judge had given the venire members an opportunity to indicate whether they would fail to adhere to the cardinal rules of law represented by the proposed questions\u2019 subject matter and that the judge had properly used his discretion in so broaching the subject matter to the venire. Cole, 168 Ill. App. 3d at 183.\nBy contrast to Cole, the judge in the present case, after making a statement that generally covered most of the subject matter of the three tendered questions, merely asked the prospective jurors whether \u201canything now about the nature of the charges\u201d would prevent them from giving the parties a fair trial. Much later, he simply asked the venire members in groups whether anything on their minds might impede a fair trial. Only two of the ultimately impaneled jurors were ever asked questions that even obliquely related to the critical subject matter, and no prospective juror was ever asked specifically about attitudes toward defendant\u2019s failure to testify. Moreover, though the judge did tell venire members as a group that defendant need not prove anything, he did not specifically tell them that this meant that defendant could fail to testify altogether without being subject to adverse inferences. Such questions or advice would have gone \u201cto the heart\u201d of a particular bias potentially evoked by defendant\u2019s trial strategy. And, even if the judge had specifically advised the venire members that no adverse inference should be drawn from defendant\u2019s failure to testify, the absence of any ensuing inquiry as to their willingness to abide by that rule would not have constituted the requisite interrogation on the subject. See Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.\nThis case is also different from People v. Emerson (1987), 122 Ill. 2d 411, where the critical issue was the presumption of innocence and where the trial judge first secured the venire\u2019s agreement that it would follow the law as he stated it and then discussed with the venire a hypothetical situation in which, if the jurors immediately now retired, they should find the defendant not guilty because they would have heard no evidence to overcome the presumption. The Emerson inquiry, subsequent discussion, and second inquiry were sufficient Zehr compliance. (Emerson, 122 Ill. 2d at 425-27.) Here, however, the trial judge not only failed to discuss with the venire at any length the subject matter of the first and third questions tendered by defendant, but he failed even to bring to the venire\u2019s attention the subject matter of the second question with regard to whether venire members would hold it against defendant if he failed to testify.\nLikewise, this case differs from People v. Hopkins (1987), 160 Ill. App. 3d 967, 513 N.E.2d 1011, appeal denied (1987), 117 Ill. 2d 548, in which the trial judge individually discussed with three venire members, in front of all the others, the fact that the defendant did not have to testify. The Hopkins trial court substantially complied with Zehr by its initial emphasis on the State\u2019s burden and the defendant\u2019s presumption, by its discussion with the three venire members, and by its later instruction that the jury should not consider defendant\u2019s failure to testify. (Hopkins, 160 Ill. App. 3d at 971-72, 513 N.E.2d at 1014-15.) In the case at bar, whether or not the trial court laid similar emphasis on the State\u2019s burden and defendant\u2019s presumption, it clearly never dealt at all during voir dire with the impropriety of drawing adverse inferences from defendant\u2019s failure to testify.\nIt is true, as we noted in People v. Williams (1987), 159 Ill. App. 3d 527, 532, 512 N.E.2d 35, 38, that \u201ca trial judge need not turn the process of selecting a jury into a catechetical exercise.\u201d A trial judge retains discretion to determine how to cover during voir dire the Zehr-identified basic rights of a defendant. (See Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064, Williams, 159 Ill. App. 3d at 532, 512 N.E.2d at 38.) Nevertheless, the questions at issue in the case at bar were almost exactly the very questions addressed in Zehr, and, dis-similarly from Williams, all their subject matter was not covered either by the judge\u2019s statement or by his subsequent inquiries of the venire. By way of further contrast, the questions at issue in Williams numbered eight and were somewhat partial and repetitive, whereas the three questions in the case at bar were concisely comprehensive of factors that are \u201cessential to the qualification of jurors in a criminal case.\u201d Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.\nThis case also differs from People v. Poole (1988), 167 Ill. App. 3d 7, in which the trial judge declined to ask two proffered voir dire questions on the defendant\u2019s right to a presumption of innocence but then apprised the venire of that right and asked each prospective juror whether there were any reasons that the juror could not be fair. (Poole, 167 Ill. App. 3d at 10.) Though we held that the Zehr doctrine did not apply retroactively to Poole, we also concluded that, even if it did apply, the trial judge had satisfied the doctrine\u2019s requirements by discussing the presumption of innocence and then promptly asking venire members whether they could apply the law fairly as it had been explained to them. (Poole, 167 Ill. App. 3d at 11-13.) In the case now at bar, the trial judge\u2019s preliminary statement to the venire omitted the fact that defendant could fail to testify without generating an adverse inference, and thus the statement did not cover all the contents of the tendered questions. Furthermore, the judge\u2019s subsequent mass interrogation of the venire merely asked the members whether anything about the nature of the murder and attempted-armed-robbery charges or anything on their minds would prevent them from being fair, while his individual interrogations only occasionally touched on the subject matter of the questions and never on the critical point of not drawing adverse inferences from defendant\u2019s failure to testify.\nIn the circumstances of this case, we therefore hold that the trial court committed prejudicial and reversible error in failing either to pose to the venire on voir dire the three tendered questions now at issue or otherwise to broach their subject matter sufficiently and secure the venire members\u2019 response thereto. See People v. Thompkins (1988), 121 Ill. 2d 401, 438; People v. Zehr (1984), 103 Ill. 2d 472, 477, 469 N.E.2d 1062, 1064.\nII. OTHER ISSUES\nBecause of our disposition of this appeal, we need not reach other issues raised by defendant. However, two of them conceivably could arise again on retrial, and we therefore address them briefly.\nDefendant contends that certain remarks of the prosecutor during closing argument improperly commented on his failure to testify. From our examination of the record, we conclude that the State could have drawn attention to the lack of a wallet on the victim\u2019s body without, as it did, also drawing attention to the defendant\u2019s failure to testify about that subject or others. The fact and significance of the wallet\u2019s absence in no way depended on defendant\u2019s testimony for establishment; hence, reference to defendant\u2019s silence was wholly unnecessary in order to draw the inference that a wallet had existed or to rebut the implication that it had not existed. The prosecution is not permitted to comment directly or indirectly on a defendant\u2019s failure to take the stand, even though the prosecution may describe the State\u2019s evidence as uncontradicted as long as doing so is not intended or calculated to direct the jury\u2019s attention to defendant\u2019s failure to testify. (People v. Lyles (1985), 106 Ill. 2d 373, 390, 478 N.E.2d 291, 297.) Given the strong constitutional, legislative, and judicial policy against comments on a criminal defendant\u2019s failure to testify, in any retrial at which defendant may likewise fail to testify the State should scrupulously avoid all such comments or insinuations. See, e.g., Ill. Rev. Stat. 1985, ch. 38, par. 155 \u2014 1; Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; People v. Bean (1985), 109 Ill. 2d 80, 97-100, 485 N.E.2d 349, 357-59; People v. Burton (1969), 44 Ill. 2d 53, 56-57, 254 N.E.2d 527, 528-29; People v. Wollenberg (1967), 37 Ill. 2d 480, 487-88, 229 N.E.2d 490, 494-95; People v. Morgan (1960), 20 Ill. 2d 437, 441, 170 N.E.2d 529, 530-31; cf. People v. Bolden (1987), 152 Ill. App. 3d 631, 639, 504 N.E.2d 835, 841-42.\nIn the face of such a clear obligation on the State\u2019s part, the contention that objectionable comment was invited by defense counsel\u2019s own argument cannot prevail. Such an invitation can be accepted when doing so is not for the purpose of calling attention to defendant\u2019s silence (see People v. Lyles (1985), 106 Ill. 2d 373, 390, 478 N.E.2d 291, 297; People v. Dixon (1982), 91 Ill. 2d 346, 350-51, 438 N.E.2d 180, 182-83), but the \u201cinvited error\u201d concept does not, however, \u201cgo so far as to insulate any related remarks the prosecutor may choose to make\u201d (People v. Burke (1985), 136 Ill. App. 3d 593, 604, 483 N.E.2d 674, 683, appeal denied (1985), 111 Ill. 2d 557). See also United States v. Young (1985), 470 U.S. 1, 12-13, 84 L. Ed. 2d 1, 10-11, 105 S. Ct. 1038, 1045 (\u201cinvited response\u201d rule limited to instances of impropriety in initial argument and still requires an assessment of whether defendant was prejudiced by the response; rule should be construed so as not to encourage prosecutors to think it gives \u201clicense to make otherwise improper argument\u201d).\nDefendant also contends that failure to give an \u201cinnocent hypothesis\u201d instruction was error when the \u201csame facts\u201d \u2014 defendant\u2019s alleged statement to police \u2014 were susceptible of both an innocent and a guilty construction. Defendant argues that the statement demonstrated his innocence but that the State was arguing that it was a confession of murder. However, from a review of the record, it is apparent that the State\u2019s argument rested on the condition that the jury disbelieve the purely exculpatory parts of the statement as to intent and motive, so that the remainder might serve to corroborate the entirety of defendant\u2019s participation in the shooting. Thus, the \u201csame facts\u201d were not involved as they were in People v. Lefler (1967), 38 Ill. 2d 216, 230 N.E.2d 827, cited by defendant, and the instruction was not required. See People v. DeHoyos (1975), 31 Ill. App. 3d 12, 19-20, 332 N.E.2d 643, 649, aff'd (1976), 64 Ill. 2d 128, 355 N.E.2d 19; People v. Cannon (1975), 25 Ill. App. 3d 737, 746, 323 N.E.2d 846, 852-53; People v. Decker (1974), 19 5 Ill. App. 3d 86, 97-98, 311 N.E.2d 228, 236-37, appeal denied (1974), 56 Ill. 2d 588.\nIn view of the foregoing, we reverse the judgment and sentence of the trial court and remand this cause to the circuit court of Cook County for a new trial.\nReversed and remanded.\nHARTMAN, P.J., and SCARIANO, J., concur.", "type": "majority", "author": "JUSTICE STAMOS" } ], "attorneys": [ "Steven Clark and Alan D. Goldberg, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Bonnie Meyer Sloan, and Stephen M. Sutera, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENT STARKS, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 85\u20141582\nOpinion filed April 26, 1988.\nSteven Clark and Alan D. Goldberg, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Bonnie Meyer Sloan, and Stephen M. Sutera, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0588-01", "first_page_order": 610, "last_page_order": 623 }