dissenting:
The prosecutor’s improper inquiry into the defendant’s post-arrest silence was not harmless error. A prosecutor's comment upon the “silence of the accused is a crooked knife and one likely to turn in the prosecutor’s hand. The circumstances under which it will not occasion a reversal are few and discrete.” (United States v. Edwards (5th Cir. 1978), 576 F.2d 1152, 1155.) I would affirm the judgment of the appellate court which reversed the defendant’s convictions of murder, aggravated kidnaping and robbery, and remand the cause to the circuit court of Morgan County for a new trial.
The State’s case against the defendant depended heavily upon the testimony of Randy Williams, the defendant’s alleged accomplice. As the appellate court observed, “nothing except Williams’ testimony directly links [the defendant] with the crimes.” 104 Ill. App. 3d 57, 61.
Accomplice testimony of this kind is inherently unreliable as it often may be motivated by pressures other than the witness’ desire to reveal the truth, “such as the promise of leniency or immunity and malice toward the accused.” (People v. Wilson (1977), 66 Ill. 2d 346, 349.) This court has often stated that it “will not hesitate to reverse a conviction based upon the testimony of an accomplice when that testimony lacks material corroboration or is discredited by other credible evidence.” E.g., People v. Hermens (1955), 5 Ill. 2d 277, 286.
In this case, the defendant vigorously disputed Williams’ version of the events on the evening of the murder and the following morning. The defendant denied any involvement in the crime and implicated Williams. The jury had the sole responsibility for resolving the sharp conflict between the testimony of Williams and the testimony of the defendant. The resolution of this conflict depended totally upon the jury’s assessment of the defendant’s credibility, for the other evidence in the case could have fairly supported either the defendant’s or Williams’ story. The record clearly shows that the prosecutor, the trial court judge and the appellate court all understood that “[t]he trial was essentially a credibility contest between defendant *** and Randy Williams.” 104 Ill. App. 3d 57, 61.
Given the importance of the defendant’s credibility at his trial, I cannot say beyond a reasonable doubt that the prosecutor’s reference to the defendant’s post-arrest silence did not affect the jury’s verdict. The prosecutor’s statement— “Why didn’t you tell the story to anybody when you got arrested?” — was obviously calculated to undermine the credibility of the defendant’s story with the jury. I do not understand how anyone could know beyond a reasonable doubt that it did not succeed.
The majority erroneously maintains that the trial court’s cautionary instructions rendered the prosecutor’s improper inquiry harmless error. An improper inquiry by the prosecutor concerning the defendant’s post-arrest silence is not automatically remedied by a cautionary instruction. (See e.g., United States v. Curtis (3rd Cir. 1981), 644 F.2d 263, 270-71; cert. denied (1982), 459 U.S. 1018, 74 L. Ed. 2d 512, 103 S. Ct. 379; United States v. Prescott (9th Cir. 1978), 581 F.2d 1343, 1352; Morgan v. Hall (1st Cir. 1978), 569 F.2d 1161, 1168, cert. denied (1978), 437 U.S. 910, 57 L. Ed. 2d 1142, 98 S. Ct. 3103; see also, United States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133.) If the majority were correct, the prosecutor would have little incentive to avoid such inquiries on cross-examination of the defendant; he could safely inform the jury of the defendant’s post-arrest silence, risking only an objection by the defendant’s counsel and a cautionary instruction by the trial court. A cautionary instruction is at best only a partial remedy. Cf. Bruton v. United States (1968), 391 U.S. 123, 136-37, 20 L. Ed. 476, 485, 88 S. Ct. 1620, 1628.) The instruction may confuse the jury; or the jury may disregard it and use the defendant’s silence against him anyway. In a close case like this one, based wholly upon accomplice testimony and circumstantial evidence, the reference to post-arrest silence can work extreme prejudice against the defendant, notwithstanding a cautionary instruction. In such cases the defendant must receive a new trial, for the Miranda warnings mean nothing unless an innocent defendant can remain silent at his arrest without prejudicing his case.
Even if a proper cautionary instruction could have cured the prosecutor’s improper reference to the defendant’s post-arrest silence, the instruction given in this case was insufficient. The trial court only directed the jury to ignore the prosecutor’s remarks ‘‘for the time being.” This instruction is not a precise and unambiguous statement to the jury that it should ignore the prosecutor’s remarks. Given that the trial was essentially a credibility contest between Williams and the defendant, this opaque instruction did not render the prosecutor’s remarks harmless error. It did not prevent the prosecutor’s highly questionable cross-examination tactic from infecting the defendant’s entire testimony and lowering its value to the jury.
In my opinion, the prosecutor’s improper remarks were not harmless error and the judgment of the appellate court should be affirmed and the cause remanded to the circuit court for a new trial.