dissenting:
I must respectfully dissent from the opinion of the court in this case. The improper and highly inflammatory argument of an over-zealous State’s Attorney and the disregard of the law respecting confessions by the court acted to deprive this defendant of a constitutional trial.
The sole (emphasis supplied) evidence linking this defendant with the crime involved here was a statement made to the investigating officer which the investigating officer was allowed to read into evidence. This statement implicated the defendant and three others who were his companions. The People attempted to introduce a certain pistol into evidence as the murder weapon but it was not admitted because it could not be traced to the defendant. Under this set of facts the statement given by defendant was of the utmost importance. Moreover, it was vastly important that the law be strictly adhered to in respect to such statement irrespective of the guilt or innocence of the accused.
This judge does not contend tha the statement allegedly given by the defendant was not shown to be voluntary. Neither does he contend that it was not competent to be admitted as evidence. The trial judge correctly held that he had the right to determine such questions and did so at the pretrial hearing on the motion to suppress. However, at this latter hearing the court was bound only by the preponderance of the evidence rule. (People v. Nemke (1962), 23 Ill. 2d 591.) The People concede this to be true.
However, there are at least two aspects to every criminal case involving a confession. One is the voluntariness and competency question to be determined by the trial court alone prior to the hearing on the merits of the case. The second aspect is the hearing stage in the presence of the jury. This is to give the jury an opportunity to pass upon the weight and credibility of the alleged statement. Every accused has this right. This right was denied this defendant.
The defendant attempted to exercise this right through his court appointed counsel but was unsuccessful in his efforts. This is shown plainly by the record as indicated by the transcript (questioning by Mr. Nold, counsel for defendant). Counsel for defendant then proceeded to inquire of Detective Stone as follows (speaking of Miranda):
“Q. You stated in and to Mr. Aguirre’s questions that Mr. Vinson was read certain rights which you then described as the Miranda Warnings. Were these read to him on the way to the station or at the station or at both places?
A. Both times
Q. Okay, is there a form that you actually asked him to initial after he has been read his rights?
MR. AGUIRRE: For the People. Your Honor, let me renew my previous objection. This is a matter considered already before the court. It is not within the province of the jury.
MR. NOLD: Your Honor, I think they must look at the circumstances of the statement.
THE COURT: We are not going into the statement any more. You may ask him if there is a form he signs.” (Emphasis supplied.)
After several questions about the waiver form itself, counsel tried again to elicit testimony regarding whether Detective Stone had himself advised the defendant of his rights. The prosecutor responded by requesting a side-bar conference, which is not of record. We may infer however that at this conference the door was closed tighter on any inquiry concerning the statement. We say this because thereafter the questions put to the officer were almost wholly innocuous.
The court clearly erred in limiting the defendant to a perfunctory examination into the circumstances under which Detective Stone took the defendant’s statement. Apparently, it sustained the State’s objections under a misconception that it was the judge alone who had a right to determine not only the admissibility but the validity of the confession; and that the jury had no authority to pass upon any questions touching the weight or credibility to be accorded the confession.
The result of the court’s ruling in this instance was the jury had no opportunity to pass upon the weight or credibility to be given defendant’s alleged statement nor to hear the circumstances surrounding its giving. A further consequence was that accused was in fact tried by the wrong yardstick, i.e., the preponderance of the evidence rule (applied by the judge) and not the rale requiring proof of guilt beyond a reasonable doubt to be determined by members of the jury.
By restricting the defendant’s right of cross-examination of Officer Stone in this case the defendant was denied his rights of due process under the Fourteenth Amendment. Smith v. Illinois (1968), 390 U.S. 129, 19 L. Ed. 2d 956, 88 S. Ct. 748.
As pointed out by counsel, the defendant has the right to present evidence to the jury which affects the weight and credibility of the same after the trial judge has determined that the same is admissible in evidence (People v. Scott (1963), 28 Ill. 2d 131; People v. Schwartz (1954), 3 Ill. 2d 520), and it is established by these cases that it is reversible error to deny him this right.
While it was true that counsel for defendant made no offer of proof, the rule requiring an offer of proof is not absolute. It has not been universally applied. There are matters and rights so fundamental that they must be considered, whenever initially raised. (People v. Burson (1957), 11 Ill. 2d 360, 370, 371; Belfield v. Coop (1956), 8 Ill. 2d 293, 312, 313.) This rule is permissive. It lies within the discretion of the reviewing court to consider an alleged error not raised or brought to the attention of the trial court even if it affects substantial rights. People v. LeMay (1966), 35 Ill. 2d 208.
Here the trial court fully understood the circumstances which defendant’s counsel sought to bring out by reason of having heard the testimony at the motion to suppress. An offer of proof is necessary where there is no other satisfactory indication to the trial judge, opposing counsel, and the reviewing court as to the substance of the proof to be made. (People v. Hoffee (1933), 354 Ill. 123, 140, 188 N.E. 186.) However, an offer of proof is unnecessary whenever the trial judge understands the objection and character of the evidence but will not admit such evidence. (Gore v. Henrotin (1911), 165 Ill. App. 222, 227.) We feel such is the case at bar. See also People v. Moore (1975), 27 Ill. App. 3d 337, 326 N.E.2d 420, to the same effect.
In People v. Burson (1957), 11 Ill. 2d 360, 143 N.E.2d 239, a case decided in 1957, before the enactment of the Code of Criminal Procedure of 1963, the court said at page 370:
“We recognize that counsel for defendant did not present or argue this point; and that the general rule is that where a question is not raised or reserved in the trial court, or where, though raised in the lower court, it is not urged or argued on appeal, it will not be considered and will be deemed to have been waived. However, this is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process. ‘The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.’ 3 Am. Jur., sec. 248, page 33;# *
In People v. McKinstray (1964), 30 Ill. 2d 611, 198 N.E.2d 829, the court quoted the foregoing with approval.
Under the Code, we have a right to consider such errors since, in our opinion, they deprived the accused of a fair and impartial trial. A careful reading of the instant case indicates that the defendant was deprived of a fair trial, and the case should be reversed under the doctine of the plain error rule and the rules of fundamental fairness.
Other examples of reversible error occurred in the trial particularly in the final argument by the prosecutor. It seems plain to this judge that the State’s Attorney attempted to bolster the weakness of his case by resorting to his own “testimony.” Bear in mind there was only one piece of evidence linking defendant with the crime — the defendant’s statement. Yet, despite the fact that it was wholly uncorroborated by other evidence, the prosecutor was able to find within this instrument itself, evidence with which to corroborate it. It was a “self-corroborating” confession in his eyes.
In the argument, the State’s representative was able to out do the defense counsel in what might be termed the “battle of innuendo.” For instance, from his argument the jury might well infer that Brenda McGee was at least a material witness to some aspect of the shooting and that she would have incriminated the defendant had she testified. That the jury would have believed her but inferentially she was not there because she was a sister of a fellow participant. As pointed out by counsel this is tantamount to charging the defendant with hiding evidence. Next, he proceeds to name the other participants and indicates that they are confined in the Department of Juvenile Corrections. Such argument is reversible error even though no objection is raised at the trial. (People v. Smith (1966), 74 Ill. App. 2d 458.) The argument for the People is replete with such instances.
In the opinion adopted in this case the court seemed prone to find the errors of the trial court and those committed by the prosecutor to have been waived where no objection was made at the trial, or the error was not otherwise preserved. Other courts have not been so prone in this respect. (For example, see People v. Popely (1976), 36 Ill. App. 3d 828; People v. Gilmer (1969), 110 Ill. App. 2d 73.) The latter case is particularly informative and very similar to this in that the prosecutor’s comments conveyed to the jury the impression that there was incriminating evidence that was not presented at the trial — particularly eyewitness testimony which would corroborate the defendant’s confession; the defendant’s confession being the only direct evidence in the case.
This same subject arose in People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17. In Sullivan the Illinois Supreme Court reviewed under the plain error doctrine of Supreme Court Rule 615(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 615(a)), error to which trial counsel failed to object. There trial counsel stood mute as the prosecutor disclosed the fact that the defendant’s alleged accomplices had previously pled guilty to the charge lodged against the defendant. In so holding, the supreme court noted that the accused who is separately tried is entided to have his guilt or innocence determined upon evidence against him without being prejudged according to what happened to another.
Here the prosecutor injected into his rebuttal argument facts (not based on the evidence) which sought to associate the defendant with the guilt and untrustworthiness of others, mainly the defendant’s companions whom the prosecutor labeled as unworthy of belief. The error in this case as in Sullivan was so serious that even though trial counsel failed to object this court is not precluded from considering the issue.
A person accused of crime, whether he is guilty or innocent, is entitled to a fair trial. The trial errors herein, viewed separately or cumulatively, deprived defendant of this fundamental right. Moreover, in measuring the extent to which the jury’s verdict has been tainted, we find it significant that each of the errors constitutes a violation of an elementary principle of fair trial proceedings. Such violations should not be tolerated.
I would reverse and remand for a new trial for the many errors pointed out here and by counsel for appellant.