Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Will County;
the Hon. Michael A. Orenic, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
William Queen, the defendant, was found guilty of burglary by a jury in the circuit court of Will County and was sentenced to a term of not less than 3 years nor more than 10 years in the penitentiary. The sentence was ordered to run consecutively to two sentences of 1 to 3 years imposed earlier in the circuit court of Perry County for other burglaries. The appellate court affirmed the judgment, with one justice dissenting (People v. Queen, 8 Ill. App.3d 858), and we allowed leave to appeal.
At about 4:30 A.M. on September 24, 1970, two Joliet police officers, James Grace and David Farmer, observed Lawrence Bryan in the vicinity of Gene's tavern in Joliet. Bryan, who, one of the officers testified, had a reputation as a burglar of taverns, emerged from the shadows at the tavern and walked rapidly away from it. Their suspicions aroused, the officers went to the tavern to examine the premises. After checking the front of the tavern for evidence of any entry, they proceeded to the rear of the tavern and observed the door there being slowly closed. There was next a sound of breaking glass in the front of the tavern and shortly thereafter the defendant jumped through a broken window to the sidewalk. The defendant exclaimed: "Don't shoot, don't shoot." He was ordered to lie down and notified he was under arrest. The tavern premises were checked and no one was found in the tavern. The prosecutor, apparently anticipating defense testimony that the defendant was intoxicated, questioned the officers as to whether the defendant had any trouble in walking and whether they had observed any odor of alcohol or other evidence of intoxication. Their answers were in the negative. There was no testimony by the officers that they had advised the defendant of his rights under Miranda v. Arizona, 384 U.S. 436. The prosecutor, in asking the policemen whether the defendant had spoken to them, cautioned them not to state what the defendant had said, apparently believing this would have been inadmissible. He asked them to describe only the defendant's manner of speech. The officers said that while the defendant had spoken little, his speech was not slurred but coherent.
The defendant testified that 2 or 3 days prior to the entry of the tavern he had met Bryan on the street in Joliet and that Bryan had told him of his plans to burglarize Gene's tavern. Bryan told him that he needed money to hire a lawyer because the police were "hot on his trail" for certain crimes and he needed money to engage an attorney. He asked the defendant to help him in the burglary of the tavern and the defendant said he refused. The defendant walked into a department store and Bryan followed him and told him that if he didn't come with him on the burglary that he would implicate the defendant in a crime with respect to which the police were "hot on his trail." He said that Bryan asked him to stand outside as a lookout when Bryan would be burglarizing the tavern. Bryan's plan was to search for money but if none were found he planned to leave and pick up a friend's auto. He would then load liquor from the tavern into the auto. The defendant testified he again refused to participate. The defendant was worried, however, by Bryan's threat and later thought the solution would be to ostensibly participate with Bryan but in reality to plan to have Bryan arrested when committing the crime. His plan was that he would stand outside Gene's Tavern and when Bryan came from the tavern and went to get the friend's automobile to transport the liquor which would be loaded into it, the defendant would enter the tavern and call the police, notifying them of the burglary in progress. The police would arrive and Bryan would be arrested. The defendant did not say what his plan would have been had there been money in the tavern. Bryan's plan, he testified, was to take the liquor and load it in the car only if he did not find money in the tavern. The defendant testified that his plan was thwarted when Bryan came out of the tavern as a police car was cruising near the tavern. Bryan walked away and the defendant entered the tavern to hide. He said that in attempting to leave the building he broke a window with a tire iron and "dove right into the arms of the police."
On his cross-examination there was this colloquy:
"Q. [prosecutor] Did you ever relate the [above] story to the police?
MR. ANDREANO: [defense attorney] Objection.
THE WITNESS: [the defendant] Not now, this is the only time I ever said anything about it.
BY MR. POLITO: [prosecutor]
Q. This is the first time you ever related this story?
Q. Why didn't you relate it to ...