Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.
Reversed and remanded.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
A jury found the appellant, John Svizzero, guilty of burglary and he was sentenced to the penitentiary for a term of ten to twenty years.
Svizzero and four other men, who were indicted with him, were apprehended in a building located at 36 South Peoria Street, Chicago. The building was the headquarters for various unions and its custodian, John Waterford, resided with his wife on the fourth floor. Around 4 a.m. on October 17, 1963, the Waterfords heard noises in the building. Waterford investigated, then returned to his apartment and called the police. Policemen converged on the building and Waterford went down the fire escape to let them in.
While waiting to be admitted into the building, the policemen observed flashlights shining on the second floor. On that floor, in the office of the Roofers' Union, they found Svizzero and two other men, John Johnson and Bruno Dispenza. Another man, Ernest Pucillo, was discovered in the same office under a desk. The fifth man, Eugene Yocca, was hiding in a compartment under the roof.
The office of the Cement Masons' Union also had been broken into and it was for this burglary that the five men were indicted. Three safes in this office had been opened and $1,300 was missing. The $70 petty cash fund was gone.
The defendant contends that the trial court erred: (1) in refusing to allow him access to a pretrial statement of one of the State's witnesses, (2) in admitting into evidence the statement he made to the police and (3) in permitting the State to impeach a defense witness.
In oral argument before us the defendant waived his first contention. Although he maintained that the trial court erred in ruling that the statement was not discoverable, he conceded that the error was harmless.
His second contention, based on the failure of the police to warn him of his right to remain silent and to inform him of his right to counsel, was neither waived nor argued. Although he conceded that the case law in Illinois is contrary to his contention, he preserved the point. This makes it necessary for us to pass upon it. The rules implementing the right to maintain silence under accusation and to the assistance of counsel announced in Miranda v. Arizona, 384 U.S. 436 (1966), need not be applied to trials commencing before June 13, 1966, Johnson v. New Jersey, 384 U.S. 719 (1966); and in Illinois it has been held that they will not be, People v. Williams, 36 Ill.2d 194, 222 N.E.2d 321 (1966); People v. Kirk, 36 Ill.2d 292, 222 N.E.2d 498 (1966). The defendant's trial took place in 1964. Since the record does not indicate that he requested counsel while detained in police headquarters and he does not contend that his statements were not voluntary, the admission of the statements in evidence was not error. People v. Latimer, 35 Ill.2d 178, 220 N.E.2d 314 (1966).
Svizzero's third point pertains to the impeachment of Pucillo who pleaded guilty and testified for the defense. Svizzero, when questioned by the police, had said that the burglary was not his operation and that he needed money for a bondsman and for attorney fees. He did not testify, however, at the trial; his defense was included in that of his co-defendants, Johnson and Yocca.
Johnson testified that he, Svizzero and Yocca were painting a house in Canton, Ohio, from October 14th through the 16th; that they arrived in Chicago early on the morning of the 17th; that on their way home he telephoned his wife who told him Pucillo, from whom he had borrowed the auto he was driving, wanted him to come to 36 South Peoria Street where Pucillo was gambling; that they went to that address and were met by Pucillo who opened the door, told them to park the car and come upstairs; that when they reached the second floor Dispenza came running by yelling to Pucillo that the police were coming, and that shortly thereafter they were placed under arrest. He denied breaking into the building or knowing of the burglary prior to his arrest. Yocca testified similarly. Mrs. Johnson also corroborated her husband.
Pucillo, who had entered a plea of guilty just before the trial started, testified that he, Bruno Dispenza (who pled guilty three months before the trial) and two other men, whom the police did not capture, broke into the building and the Cement Masons' office. He said he had loaned his automobile to Johnson and that on the night of the burglary he told Johnson's wife that he needed his car badly and to tell her husband to bring it to him regardless of what time he came in. He said he had not discussed the burglary with Svizzero, Johnson or Yocca, that they were not present when he and his confederates entered the building, that he was acting as the lookout and he let them in.
Upon cross-examination the prosecutor attempted to impeach Pucillo on the basis that his testimony was inconsistent with what had taken place at the time he pleaded guilty. The record shows that before Pucillo's plea was accepted his attorney, the attorney for Svizzero and the prosecutors conferred with the trial judge in his chambers. Pucillo was brought in and the following took place:
The Court: ". . . Mr. State's Attorney, advise me of what the facts are in the case.
Assistant State's Attorney: ". . . [T]he defendant, while in the company of Bruno Dispenza, John Johnson, John Svizzero and Eugene Yocca, entered into the various union halls located at 36 South Peoria . . . and that upon entering the premises they entered with intent to commit burglary therein, and took certain property, and were ...