*1 (No. 50638 . ILLINOIS,
THE OF THE STATE OF PEOPLE Appellee, GODSEY, v. EVERETT Appellant.
Opinion December 1978. filed *2 UNDERWOOD, RYAN and JJ„ dissenting. Moline, Wulf, for appellant. N. De
James and General, Scott, of Springfield, Attorney William J. Island of Rock Keefe, (Donald State’s Attorney, Edward Noel, Assistant Jr., Melbourne A. and B. Mackay E. General, Hinterlong, Attorneys Chicago, James Commission, of Service of the State’s Attorneys Appellate Ottawa, for the People. counsel),
MR. MORAN delivered opinion JUSTICE court: court of Rock Island in the circuit
After found defendant, Everett Godsey, guilty County, offenses, involved the each of which five arson-related brother-in-law, Grom. Thomas residence of defendant’s on the verdicts entered following separate guilty arson; 1, 1976, February February (2) charges: (1) *3 arson; 1976, intent to commit February with (3) burglary arson; 13, 10, 1976, February solicitation to commit (4) arson; 4, 1976, solicitation to commit 1976, March and (5) of 1 to concurrent terms was sentenced arson. Defendant arson, 1 the the February to 10 years’ imprisonment arson, the 13 and 9 the February February burglary, of conviction was 4 March solicitation. (No judgment the solicitation because entered on the 10 February charge in the com deemed the solicitation trial court merged arson offenses (February 9) burglary pleted is not this conclusion The correctness of (February 13). from the Defendant before judgments appealed us.) court, a verdicts, entered the and the 2-1 on appellate the decision, We affirmed Ill. 3d 364). granted (57 App. defendant leave to appeal. case, this that, the circumstances of
We hold under refusal to testify references to defendant’s wife’s State’s to defendant were before the jury grand do not we and constituted reversible error. Consequently, other raised defendant. consider the merits of issues 391, U.S. In Grunewald v. United States (1957), 963, 931, 1 L. Ed. 77 S. Ct. 2d a same cross-examined criminal asking to defendant had refused answer upon questions he before advice counsel when had appeared grand fifth The was instructed that amendment jury. could used to reflect defendant’s plea upon a not his The court held that credibility, imply guilt. refusal when to testify compelled appear before was not inconsistent with sufficiently later its use for exculpatory testimony permit impeach ment In the conviction and purposes. remanding reversing trial, for a new the court to the emphasized defendant which resulted from the likelihood that the jury inferred defendant’s invocation impermissibly the fifth amendment that he was either privilege guilty crime or Grunewald v. United States perjury. committing 391, 421, 931, 952, 353 U.S. 1 L. Ed. 77 S. Ct. (1957), 2d 963, 982.
In United States v. 171, Hale U.S. 45 L. Ed. 95 S. Ct. the court reached the same conclusion with of a defendant regard impeachment who had chosen to remain silent at the time of his arrest. There, it was held that assertion, arrest, upon to remain is silent not right inconsistent sufficiently with later exculpatory it for permit using purposes. court reasoned that person’s “failure to offer an the custodial explanation during can be taken to interrogation indicate reliance easily on to remain silent as to an right inference that support *4 the explanatory a later was [during trial] fabrication.” States Hale 171, v. (United U.S. 422 177, 99, 105, 45 L. Ed. 2133, 95 S. Ct. 2137.) Again, court, trial, in stressed the
the a new intolerably ordering be likely on the would impact jury, infer from the silence. guilt previous to a criminal defendant also
The danger is the silence a exists when person impeached prior arose in United defense witness. The situation first States There, v. Tomaiolo 683. Cir. 249 F.2d (2d 1957), out a was for various crimes indicted arising indictment, to the defendant’s bank robbery. Subsequent he called before the where invoked brother was grand jury, At and refused to the fifth amendment testify.
trial, called the brother was defense witness. On cross-examination, out brought brother’s refusal before testify grand jury contended that assertion brother’s prior his credi- self-incrimination impeached against privilege his bility exculpatory because it inconsistent with was witness that where jury The court held testimony. grand crime, in his that he implicated believes reasonably self- constitutional against reliance on privilege later nonin- no inconsistent with incrimination is in way court, The testimony. criminatory determining no there was basis for the observed that impeachment, reference “would almost grand jury testimony claimed lead the to think that certainly brother] [the he because before privilege is the somehow connected with robbery, of the Fifth Amend- of the claim almost inevitable result v. Tomaiolo Cir. ment.” States (2d 1957), (United that, because concluded F.2d and because the to the defense of the witness importance brother, impeach- was defendant’s improper witness the defendant. ment seriously prejudiced Cir. F.2d United States Rubin (5th 1977), into furnishes the propriety most thorough inquiry to his prior defense witness by referring impeaching
69 Rubin, refusal In before the testify jury. grand counts related indicted on multiple embezzlement of union funds. union Two organizers for the to corroborate testified defense evidence that defendant for dis showed was responsible funds for On cross- bursing general purposes. organizing examination, elicited from two de prosecution fense witnesses answers intended to show that their earlier refusal to before the was inconsistent testify jury grand their with corroboration of defendant’s exculpatory posi tion. The first determined that the silence jury grand failed to the threshold with the convey inconsistency witnesses’ that was exculpatory testimony necessary use the silence to their permit impeach The court reasoned that if a testimony. witness grand jury believes that his evi justifiably testimony might supply him, dence which could be used his silence is against It than “insolubly more ambiguous.” nothing witness’ reliance on his constitutional proper privilege self-incrimination, against understandably privilege invoked in the innocent as jury well as grand inquiries result, As a no basis exists for the use of the guilty. silence for jury grand impeachment purposes. (Accord, United States v. Williams 927, Cir. 464 (8th 1972), F.2d 930-31; United States v. Glasser Cir. 443 F.2d (2d 1971), 994, 1005; 586, State v. Boscia 93 Super. N.J. 600-01, 643, 650 reference 226 A.2d (involving witness’ refusal to waive the before the privilege grand course, This does not if a jury).) defense holding, apply witness has direct exami conveyed impression during nation that he with the cooperated willingly all of its he or that aspects same investigation gave before the which he at trial. See jury gave 610, n.11, v. Ohio Doyle U.S. 619 49 L. Ed. (1976), 426 91, n.11, n.11; 98 96 S. Ct. United States 240; Kee Cir. United Sing (2d 250 F.2d 1957), 1378, 1383. Cir. States v. Fairchild F.2d 1975), (5th the risks of court then discussed The Rubin result the defendant which inevitably improperly silence for purposes. using grand the witness’s “First, learns that where the jury an exercise of silence was privilege against self-incrimination, will there is danger of the witness infer on the improperly part guilt circumstances, transfer and, on the depending the defendant. inference to [Citations.] *6 the uncer- Second, without an understanding a before a witness faces in tainties testifying grand undue attribute well significance jury, juror no offered response to the fact a witness that tribunal and before questions prosecutor’s trial testi- the witness’s disbelieve may thereupon Cir. States Rubin (5th 1977), mony.” (United 559 F.2d its that im- conclusion was
Despite the conviction the court refrained from proper, reversing witnesses was because the of the two testimony largely of defense to the theory cumulative and only tangential existed, the circum- under and because no possibility would be stances, of the witnesses’ inference any guilt to the defendant. transferred whose bar, was the defendant’s wife In the case at was object silence before prior grand called had been Defendant’s wife impeachment. uncorroborated testimony to rebut the defense primarily had been who principal of defendant’s ex-girlfriend, one an alibi for witness, to establish State’s cross-examination, sought offenses. On refer- repeated her following impeach her silence: ences to your to the 7th attention
“Q. I would like to call fourth floor of morning on the day in the July County the Rock Island Courthouse before the Rock County you Island Jury. Grand being Do remember called as a witness? Yes,
A. I do. Q. you being Do remember sworn a witness? Yes, A. I do.
Q. By Jury? the foreman of the Grand A. Yes.
Q. you do And or remember whether not I was questioning you? Yes, you
A. was.
Q. there reporter And there too?
A. Yes. Q. Isn’t it a you fact that I the question, asked ‘Do you know a person named Thomas Crom.’ And that you answered, T refuse to answer on the grounds it might- ’ incriminate me. Yes,
A. I remember.
Q. you say Did this?
A. Yes.
Q. asked, is it And a fact I ‘Is Thomas Crom your answered, you brother-in-law?’ And ‘I refuse to answer.’
A. Yes. Q.- Isn’t it a you, you fact that I asked ‘Have ever your discussed with husband the fires which occurred on the residence of Thomas Crom located at 102 15th Avenue, Heights, Silvis said, you Illinois?’ And ‘I refuse to *7 answer for the same reason.’
A. Yes.
Q. Isn’t it a you, fact that I you asked ‘Have ever discussed with Ova Godsey the fires which occurred at answered, that you residence.’ And ‘I refuse to answer.’ A. Yes.
Q. Isn’t it you, your a fact that I asked ‘Does answered, husband own a shotgun.’ you And T refuse to answer.’
A. Yes.
Q. you, Isn’t it a I your fact asked ‘Has husband answered, gone hunting?’ ever you And T refuse to answer.’
A. Yes.
Q. you, you it a fact that I ‘Do know Isn’t asked any on the anything shooting night about which occurred of February early morning February of 16 or the hours 1976, 17, you involving your husband.’ And refused to answer.
A. Yes.” is clear It that there was no whatsoever justification for the admission of such for testimony on the purposes. Irrespective impact no was made establish jury, attempt threshold between the silence any inconsistency and the at trial. defendant’s wife None testimony which defendant’s wife refused to before answer questions were even asked of at trial. defendant’s wife grand jury There was no that wife or defendant’s abused suggestion asserted her fifth amendment before improperly privilege no With foundation for use of grand jury. proper silence to of the credibility grand jury impeach wife, we the admission of such find was error. State defendant waived considera urges tion to make of this error on evidentiary appeal failing at Rule trial. Court contemporaneous objection Supreme that errors substantial provides “affecting 615(a) rights be noted were not may they although brought attention of the trial court.” Ill. R. This 2d (58 615(a).) rule, referred to as the court has stated that this commonly rule, a means error” is to be “plain applied the harshness of the strict application ameliorating v. Howell Ill. (People waiver rule. 2d (1975), 120-21; Manzella People 56 Ill. 187, 195-96.) here the error result magnitude “[W] of the defendant to a fair substantial right trial, we have on occasions considered nevertheless proper the error as it had been properly preserved though Because the use of Ill. 2d improper appeal.” (56 silence to a defense witness may grand jury impeach
73 to a fair trial substantially prejudice right with the indelible jury impression leaving in criminal or because witness such activity implicated defendant, be transferred to we will implication might consider of the error on defendant’s trial. impact Defendant maintains that reference to the defendant’s wife’s silence not violated rules jury accepted defendant, of evidence and but that seriously prejudiced the error his constitutional A defend- transgressed rights. ant, however, is not entitled to the of the protection self-incrimination where prosecutorial privilege against abuse is of exercise of the another’s privilege. privilege self-incrimination is a one and cannot be against personal asserted a defense vicariously through witness. United States v. Rubin 559 Cir. (5th F.2d 1977), McCormick, 984. Also see Evidence sec. at ed. 254-55 (2d 1972). course,
Our does not a defendant preclude holding, 'to the abuse of the defense objection predicating witness’ on nonconstitutional Nor does privilege grounds. that the use of inadmissible imply testi impeachment will be less a defendant than mony an error which violates a constitutional It means that merely right. before we can determine error in that a nonconstitutional the admission of was reversible impeachment error, the defendant must show that the error could have contributed to his conviction. v. Sullivan People (1978), 36, 44; Ill. 2d v. Weathers People Ill. 114, 120-21.
Here, we must appraise prejudicial impact on improper four convictions. separate was not entered on a fifth (Judgment are We conviction.) mindful of the which can result from injustice conjecturing have improper testimony, substantially defendant, influenced a of a did not contribute to the verdict. Under circum- ordinary
stances, the we would review offenses separately convictions, have determine which if resulted any, may from the of use defendant’s prejudicial impeachment factors, however, silence. wife’s Two us grand jury prevent such an in this case. approach using First, the reveals that the record State’s quite clearly trial was to treat the offenses as separate strategy of each one common scheme. Because of the projections offenses related to arson the residence of involving brother-in-law, defendant’s most of the incriminating evidence which was the commission of introduced prove one offense also tended to the defendant in the implicate Moreover, commission of the other offenses. admissions which defendant had made to State’s witnesses of varying tended to him in a vendetta credibility implicate general brother-in-law, his rather than to him in against implicate the commission of offense. The cumulative any specific weak, result circumstantial cases was the against the 1 as to arson and the 9 February February were bolstered evidence burglary stronger implicating the defendant in the 13 arson and the March 4 February solicitation.
It is in this context that we the prejudicial weigh of the The of testimony impact improper impeachment. the defendant’s wife was not directed toward all the of nor was it as critical to the defense of some charges, was to the defense of others. The record charges The discloses the wife’s was not following: testimony directed at all to the 1 arson. Her February testimony on the 9 to the extent February only impacted burglary that it tended to the uncorroborated testimony impeach who was State’s principal ex-girlfriend, to the 4 witness as to this offense. With March regard solicitation, her force was of minimal testimony However, of two State’s witnesses. testimony rebutting arson, wife as to the the defendant’s February in the defense. Her served the dual linchpin testimony function of an alibi and providing contradicting summations, In the both testimony ex-girlfriend. the State defense of the pitted testimony defendant’s wife. ex-girlfriend against not defendant’s wife under- mined the defense of those to which she directly charges testified, it tended but to enhance the credibility whose the entire case. ex-girlfriend, testimony permeated of defendant’s wife Though improper impeachment was most defense in prejudicial regard arson, in such February setting, on the well have impact over onto the jury may spilled other We do not there charges. dispute *10 sufficient evidence to convict defendant of some of the offenses but we where cannot determine charged, with any assurance the extent which to a error highly case, the entire we affirm cannot of the permeated any convictions.
Second, we cannot overlook in this case the likelihood that the not on inferred the of only part guilt wife her refusal to before testify that but the inference also grand jury, transferred to the defendant. The likelihood is most acute in precisely case; is, this of that one in which the type relationship between the defense witness and the is ex- and close one in which the defense tremely witness’ prior fifth amendment was directed toward the same plea criminal involvement as that for which defendant is on Here, trial. would have been natural for the to quite draw the inference a from wife’s refusal to before testify that she was not so her grand jury much sheltering but that of her husband. such When inference is guilt, drawn, the to defendant not would be limited to prejudice those were affected charges improperly discredited trial of defendant’s wife. The the defendant and
inference would directly stigmatize him from a fair and on impartial any prevent securing of charges. stated, that reasons we hold the substantial
For the of defend- caused improper reversed, the convictions be wife ant’s requires a new trial. that defendant granted are and circuit courts appellate judgments to the circuit court of reversed and the cause is remanded a new County Rock Island trial.
Reversed and remanded. RYAN, MR. dissenting: JUSTICE liberal Because of extremely application majority’s I dissent. error must respectfully principle, plain the heretofore We have reaffirmed only recently that failure object accepted understanding generally a constitutes waiver erroneous trial proceedings an this doctrine is error exception error. The plain clause is to be rule and not meant general saving general record, in the all errors may appear to preserve have the attention of or not been they brought whether trial court. 73 Ill. 2d (People Precup (1978), This was carved out the waiver doctrine as exception matter so that could take review grace notice of on record errors which deprived appearing a fair and means of the accused of substantial enjoying 11 Ill. v. Burson trial. (People impartial *11 a sense, trial error upon a any impinges In 370-71.) However, the trial. deprivation to fair right litigant’s court’s attention the has heretofore commanded such serious has been of the error under exception plain due of in the context of process. as to be nature spoken rule, Burson, court, Thus, in the waiver in this discussing stated: not
“However, and this is a rule of administration of or will and it not jurisdiction to power, operate an accused of his constitutional of deprive rights 360, due Ill. process.” 2d (11 370.) court the This has also held error plain exception appli in cable criminal cases where the evidence is bal closely v.Pickett anced. 54 Ill Until a 2d (People (1973), 280, 283.) recent liberalization of the error the plain exception by State, courts of this and the by of the appellate majority case, in this error was in a limited plain only applied number of cases for limited of ameliorat purpose occasioned an adherence ing hardship by unyielding the waiver doctrine. error has been in vast number
Recently, plain urged both this cases in court and in our courts. The appellate can, of this to a occurrence be frequency great degree, fact in most criminal by explained appeals defendant is counsel that did not represented represent record, him in the court. if In appellate reviewing counsel finds error that was not in preserved by objection court, the trial can he seek review of that error under error We plain cannot fault exception. appellate counsel error in these circumstances. urging plain Indeed, it is his do to his client to so. duty Considering recent liberal State, error in is this interpretation plain record, could, doubtful if he face such a file an Andersmotion and brief the court that there are informing no meritorious issues to review. Anders v. (See California L. Ed. U.S. 87 Ct. S. However, the fact thpt courts are review being constantly consider trial error requested unobjected-to error does not our plain heretofore limited require application as the expanded. exception Just advocate consider it his appellate duty represent his error, client I consider it our plain duty urging define, exactitude, with some boundaries This we have heretofore done. I no see reason exception. *12 we adhere to these limits. Unless for expanding error of the plain exception, limited application previously to be asked consider in this State will courts review trial error which advo- appellate every unobjected-to the record. cate uncover in may combing through is conversant with the not Inasmuch as trial judge cannot, he in the trial defendant’s trial counsel’s plan, in involve himself every absence of an safely objection, at error. It is not to constitute situation may appear to intentionally all unusual for a defense attorney permit cross-examination to conduct prosecutor objectionable for a redirect door very and thereby helpful open to counsel is the present examination. It obligation and to the admissibility to objections procedures Standards, Trial The Function evidence. (ABA this standard to commentary The sec. 5.7 Judge, (1972).) at states 71: page the trial intended to admonish
“This standard is permitting fairness in self-restraint and judge to exercise for the defense to for counsel they limits appropriate duties. Within perform their judicial be interference.” should free set out in the cross-examination Admittedly, erroneous, an absence of was but majority opinion have terminated could not safely objection judge the door it. This cross-examination certainly opened conversations redirect examination other concerning and the have taken between the may prosecutor place wife, her or some the wife for explanation answer, have to which would not otherwise been refusal known, have admissible. So far the trial would judge wanted to redirect defense counsel have pursue might such made examination which proper. cross-examination error to hold that since the seems opinion in the raised motion was properly preserved post-trial not at the trial. be To properly objected although the error at must the trial and preserved, objected raised in the motion. The post-trial purpose requiring at the trial is to the trial objection permit error or to correct it so that the defendant prevent receive a fair trial and so that it not be will necessary *13 a new trial. If the defendant does not raise the error grant motion, until the can error be corrected post-trial the same by sacrifice of that would be judicial economy review; involved the issue for the first time on by raising is, aof new trial. granting Also, the defendant to allow silently permitting error to enter the and then to record raise the issue in a is, motion to a to him insure post-trial degree, permitting himself an unsuccessful trial. Such against procedure the defendant permits allow erroneous evidence admitted, to, that he is an unobjected knowing creating issue which he can later raise as a for a new ground should he be convicted.
I do not think that the decisions this court should such tactics. them to succeed is not encourage Permitting fair with the trial the defendant playing judge permits a reversal of his gain advantage obtaining conviction based his own failure to act. Dean upon (See Tavern, Keith’s & Inc. Ralph’s Ill. App. I would hold that the defendant has waived error now thereto complained by failing object during trial.
MR. UNDERWOOD in this dissent. joins JUSTICE