{ "id": 3127070, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY GLASS, Defendant-Appellant", "name_abbreviation": "People v. Glass", "decision_date": "1981-03-17", "docket_number": "No. 79-764", "first_page": "69", "last_page": "73", "citations": [ { "type": "official", "cite": "94 Ill. App. 3d 69" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "559 F.2d 975", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 942203 ], "opinion_index": 0, "case_paths": [ "/f2d/559/0975-01" ] }, { "cite": "383 N.E.2d 988", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994954 ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0064-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "422 U.S. 171", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9429 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/422/0171-01" ] }, { "cite": "370 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 769", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3404316 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0769-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] }, { "cite": "413 N.E.2d 378", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 546", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5475380 ], "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0546-01" ] }, { "cite": "395 N.E.2d 1203", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 352", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3291337 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0352-01" ] }, { "cite": "406 N.E.2d 939", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 448", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3191064 ], "year": 1979, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0448-01" ] } ], "analysis": { "cardinality": 603, "char_count": 10030, "ocr_confidence": 0.876, "pagerank": { "raw": 9.896602053381583e-08, "percentile": 0.5353900941715135 }, "sha256": "2684acf6f8fec04c6b1b3ad6a5fcf6c70580697efe24e5801eceeabeca8d69e6", "simhash": "1:0c8695383726df29", "word_count": 1685 }, "last_updated": "2023-07-14T16:56:05.907180+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. LEROY GLASS, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE HOPF\ndelivered the opinion of the court:\nDefendant, Leroy Glass, was charged by information with the offense of murder in connection with the homicide of one Willie Bester. (Ill. Rev. Stat. 1977, ch. 38, par. 9 \u2014 1.) Upon a jury trial, defendant was found to be guilty as charged. Judgment was entered on the verdict and the defendant was sentenced to serve a term of confinement in the Illinois State penitentiary of 20 years.\nFrom entry of the judgment of conviction, defendant appeals, contending (1) that the trial court erred in refusing to instruct the jury on voluntary manslaughter where the jury was instructed on self-defense; (2) that a defense witness was improperly impeached by his post-arrest silence; and (3) that the defendant had been denied a fair trial by the prosecutor\u2019s misstatement of evidence during rebuttal argument. A review of the evidence establishes that on the afternoon of August 5,1978, Willie Bester died of gunshot wounds suffered in the course of an altercation with the defendant. This occurred at the decedent\u2019s residence located at 1130 Pond Street in Aurora, Illinois.\nAt trial, the State adduced testimony from the victim\u2019s two daughters, Carrie Mae Bester and Ruth Harris. They testified that on the afternoon in question, the defendant, an acquaintance of the victim, arrived at their home driving a white and brown \u201cT Bird.\u201d The victim requested the defendant and his daughters to do an errand for him and to pick up some wine. Upon their return, all four sat talking and drinking. The defendant left on another occasion returning with a man he introduced as Buddy (also referred to as Birdie Webber). The group continued drinking and talking. Carrie Mae Bester testified that later she walked to the bathroom in the rear of the home. Defendant followed her and made overtures to her. At her refusal, a mutual slapping occurred, and when he struck her with his fist she called for her father. When he arrived in the back room, he pushed the defendant down on a bed. He eventually let the defendant up, but ordered him from the house. Carrie Mae and her father stood in the doorway while defendant went to his car, returned with a gun in his hand, opened the screen door, pointed the gun at the victim and fired several times. The defendant immediately fled the scene. The daughters testified their father never struck the defendant on that day.\nBirdie Webber, for the defense, related a different version. He stated that he and the defendant had met the victim\u2019s daughters and returned them home. They found the victim sitting on a couch. That Carrie eventually walked to the back of the house and called to defendant. Later he heard defendant yell, \u201cGive me back my money.\u201d Carrie Mae called to her father, who jumped up, stuck his hand in his pocket and walked to the back of the house. The defendant called for his help, and he heard the victim say, \u201cI cut his guts out if you come back here and if you don\u2019t get out of the house I\u2019m going to cut his guts out anyway.\u201d Birdie left. He next heard shots coming from the house. Defendant exited, got in his car and left. Birdie did not see the altercation nor the victim with a weapon.\nDefendant\u2019s mother testified that she noticed in the afternoon of the day in question defendant had a broken tooth in his mouth and a lump on his head that was bleeding.\nBirdie Webber allegedly concealed himself, which led to criminal charges against him for obstruction of justice. On the day that he arrived to testify in this matter he was arrested by the authorities. His counsel advised him not to speak to the police. In accordance with the denial of the defendant\u2019s motion in limine, the State cross-examined this witness on his refusal to talk with the prosecutor. The jury was not advised that he exercised his fifth amendment rights.\nAt the close of the trial, instructions were tendered on both self-defense (Illinois Pattern Jury Instructions, Criminal, No. 24.06 (2d ed. 1968) (hereinafter cited as IPI Criminal)) and voluntary manslaughter (IPI Criminal Nos. 7.05 and 7.06). The court refused the instructions on voluntary manslaughter, but allowed the instruction on self-defense. Though the State acquiesced in the self-defense instruction at trial, the State now adopts the position that the defendant was not even entitled to the self-defense instruction, claiming that there was not sufficient evidence to support this.\nIn People v. Bryson (1980), 85 Ill. App. 3d 448, 451, 406 N.E.2d 939, the court, in discussing People v. Woodward (1979), 77 Ill. App. 3d 352, 395 N.E.2d 1203, stated:\n\u201cWe recognize, however, that a self-defense instruction is proper only if there is \u2018some evidence\u2019 of a reasonable belief on the part of the defendant that the use of deadly force was necessary. [Citations.]\u201d\nConsidering the record, it was not error for the trial court to have given this instruction. When viewed from the defense\u2019s evidence, there was evidence of an altercation, that the decedent may have been armed with a knife or cutting instrument of some sort. Further, there was some evidence that the defendant had been injured in this altercation.\nHaving given the instruction on self-defense, we now turn to the necessity of giving voluntary manslaughter instructions, IPI Criminal Nos. 7.05 and 7.06. The Illinois supreme court has recently decided this issue in the case of People v. Lockett (1980), 82 Ill. 2d 546, 553, 413 N.E.2d 378. The court ruled that a self-defense and a voluntary manslaughter instruction should be given when any evidence is presented which shows the subjective belief of the defendant that use of force was necessary. Mr. Justice Moran, speaking for the majority, stated at page 553,\n\u201cWe can conceive of no circumstance when a judge could determine, as a matter of law, that a jury could find the defendant had a reasonable subjective belief the killing was justified, but that the jury could not find the defendant\u2019s subjective belief was unreasonable. So long as some evidence is presented from which a jury could conclude that defendant had a subjective belief, the jury should determine if the belief existed and, if so, whether that belief was reasonable or unreasonable. Consequently, we hold that when the evidence supports the submitting an instruction on justifiable use of force, a tendered IPI Criminal No. 7.05 on voluntary manslaughter also should be given.\u201d\nTherefore, it is necessary that the case be reversed and remanded for a new trial.\nOn a retrial, the issue of the impeachment of the defense witness, Birdie Webber, could be raised again. We conclude that the cross-examination on his post-arrest silence was error.\nConstitutional considerations as pronounced in Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, are not applicable as the post-arrest silence is that of a witness rather than a defendant. (People v. Moss (1977), 54 Ill. App. 3d 769, 370 N.E.2d 89.) The issue must be governed by general principles of evidence. There is a threshold question as to whether the post-arrest silence of the witness was sufficiently inconsistent with his trial testimony to warrant its admission for the purpose of impeachment. In United States v. Hale (1975), 422 U.S. 171,45 L. Ed. 2d 99, 95 S. Ct. 2133, though dealing with a criminal defendant, the court took the position that the assertion of the right to remain silent was not sufficiently inconsistent with later exculpatory testimony to permit using this silence for impeachment. The court reasoned that the failure to explain could be just as much a reliance on his right to remain silent as supporting an inference that the subsequent explanation was a fabrication. In Moss, a witness stated that he, in fact, fired the shots which killed the victim. The court permitted impeachment based upon the pretrial silence of the witness. There, however, the record did not disclose that the witness was warned of his right to remain silent pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and therefore could not on appeal claim the silence was based upon the reliance on such warnings.\nIn People v. Godsey (1978), 74 Ill. 2d 64, 383 N.E.2d 988, the court in refusing to permit the impeachment of the defendant\u2019s wife for her silence before the grand jury, pointed up the possible prejudices to the defendant when the defense witness is impeached in this fashion. The refusal of a witness to testify or speak because of the exercise of self-incrimination rights may lead a jury to imply that the witness was engaged in illegal activities, which can all too easily be transferred over to the defendant. United States v. Rubin (5th Cir. 1977), 559 F.2d 975.\nBirdie Webber was advised by his attorney not to talk to the police. Therefore, his silence would be \u201cinsolubly ambiguous.\u201d It could be nothing more than his reliance upon his constitutional privileges and following the advice of his attorney. Consequently, his silence has not been shown to be inconsistent with his later testimony. Cross-examination on his post-arrest silence should not have been permitted.\nThis matter is being remanded for a new trial. Therefore, there is no need to inquire into the impact of this on the defendant\u2019s trial.\nA further point raised on appeal is the alleged improper rebuttal argument of counsel for the State. The State admittedly had misspoken as to where a bullet had struck the victim in the head. This should be cured on retrial, and as a result no comment is necessary.\nReversed and remanded.\nSEIDENFELD, P. J\u201e and UNVERZAGT, J., concur.", "type": "majority", "author": "Mr. JUSTICE HOPF" } ], "attorneys": [ "Mary Robinson and Josette Skelnik, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Gene Armentrout, State\u2019s Attorney, of Geneva (Phyllis J. Perko and William L. Browers, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY GLASS, Defendant-Appellant.\nSecond District\nNo. 79-764\nOpinion filed March 17, 1981.\nMary Robinson and Josette Skelnik, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nGene Armentrout, State\u2019s Attorney, of Geneva (Phyllis J. Perko and William L. Browers, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0069-01", "first_page_order": 91, "last_page_order": 95 }