APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
The defendant, William Queen, was indicted for the offense of burglary and after trial by jury was found guilty and sentenced to a term of not less than three nor more than ten years in the penitentiary. The sentence was to be served consecutively with a sentence of not less than one nor more than three years in the penitentiary which had previously been imposed upon the defendant by the circuit court of Perry County.
During his trial the defendant testified in his own behalf and while he did not deny that he made an unauthorized entry into Gene's Tavern in the city of Joliet, he offered as an explanation for his acts that he had been compelled to act as a "look out" man for a Lawrence Bryan, who was the instigator of the crime and who actually made the illegal entry into the tavern.
The defendant further testified to the effect that being an unwilling accomplice it was his intention to report the burglary as it was in progress, then slip away thereby leaving the instigator and his tormentor trapped inside the tavern. The defendant stated that his plan was thwarted when Bryan came out of the tavern as a police patrol car cruised by the area and that in order to escape apprehension he was forced to hide in the tavern. When he attempted to leave the building he was apprehended by the police.
The defendant claims reversible error based upon the following incidents which occurred during his trial.
During the course of the trial the State's Attorney brought out on cross-examination that the defendant had at no time ever related this story to the police, but was telling it for the first time when testifying in his own behalf. The trial court denied the defendant's motion for a mistrial based upon this cross-examination.
During the jury deliberations the foreman sent a note to the court which said, "Would like the defendants words on the stand." The trial judge denied this request.
Lastly, when the trial judge denied the jury's request to again hear the defendant's testimony the defendant was not present and he alleges that his absence constitutes error since he was denied the right to be present at every stage of the proceedings.
• 1 Directing our attention to the first issue raised by the defendant it is clear that his contention that reversible error was committed is based upon the premise that when arrested a defendant has a right to remain silent and if the state elicits testimony that he exercised such a right then we have a violation of his testimonial privilege and his right to effective assistance of counsel. In support of this contention the defendant cites the following Illinois cases: People v. Rothe, 358 Ill. 52, 192 N.E. 777; People v. Lampson, 129 Ill. App.2d 72, 262 N.E.2d 601; People v. Woodall, 131 Ill. App.2d 662, 264 N.E.2d 303. An examination of these cases reveals that they are not relevant to the issue before us since they involve testimony to the effect that the defendant had refused to make a statement to the police after his arrest. Our Illinois courts are in unanimous agreement that such testimony is erroneous and prejudicial to the defendant. In the instant case we are presented with a different facet of the problem in that we are called upon to determine whether or not the defendant waives his protection against self-incrimination when he takes the witness stand and testifies in his own behalf by making an exculpatory statement. May then the prosecutor by cross-examination elicit testimony that the defendant had not previously made such a statement to the police? May the prosecutor during final argument comment on defendant's failure to make such an exculpatory statement to the police or to anyone else prior to the time he testified in his own behalf?
We find no Illinois cases to guide us in our determination of this precise issue, however, there are pertinent decisions from other jurisdictions. In support of his contention that reversible error was committed he cites the cases of State v. Stephens, 24 Ohio St.2d 76, 263 N.E.2d 773; United States v. Nolan (CA10-1969), 416 F.2d 588; and United States v. Brinson (6th Cir., 1969), 411 F.2d 1057. We quarrel not with the defendant's interpretation of the law as set forth in these cases. They strongly support his argument and in Stephens the Supreme Court of Ohio after citing and analyzing the cases of Brinson and Nolan stated:
"The right of silence, while singular in the constitutional grant, may be plural in application. That right, once invoked by an accused while under accusation, is not waived by reason of defendant testifying at the trial."
The cases of Stephens, Nolan and Brinson all predicate their reasoning and holdings upon Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, wherein our United States Supreme Court held that an accused when taken into custody has the constitutional right to remain silent and refrain from making either "exculpatory or inculpatory" statements and that this privilege is fulfilled only when the person is guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will."
As stated by Chief Justice Warren in Miranda the United States Supreme Court was directing its attention to and specifically dealing with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation. In Miranda the court laid down strict rules regarding defendant's right to counsel and his right to remain silent. However, it should be noted that the court was concerned with these rights only as they arose during the custodial, pre-trial interrogation state of the proceedings of an accused.
That Miranda was so limited in its application was recognized in a subsequent case when the United States Supreme Court stated in Harris v. New York, 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643:
"Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court's holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence, inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards."
In the instant case the defendant makes no claim that his right against self-incrimination was violated when he was apprehended or at any time prior to trial but maintains that when he made an exculpatory statement during trial, his testimonial privilege continued so that the state was precluded upon cross-examination from attempting to impeach him by asking if he had previously made such a statement to the police.
As we have acknowledged, the cases of Stephens, Brinson and Nolan support the defendant's position, but we are of the opinion that these cases extended an interpretation to Miranda which was not intended by our United States Supreme Court. In People v. Calhoun, 33 Mich. App. 141, 189 N.W.2d 743, we have a strikingly similar factual situation and during the course of the trial the defendant testifying in his own behalf made an exculpatory statement to the effect that he and a co-defendant were duped into committing the crime by a third party. The prosecutor on cross-examination asked the defendant when was the first time that he had told anyone the exculpatory statement that he had just related on direct examination. The defendant stated that he had told his attorney. When asked by the prosecutor if he had ever told the police, he stated that he had not.
In Calhoun the Michigan reviewing court held that such cross-examination by the prosecutor did not constitute reversible error and we quote:
"The adversary process should certainly permit cross-examination as to a defense theory which without any challenge would permit a testifying accused to rely on any hypothesis however nebulous, and yet bars the prosecution from ...