APPEAL from the Circuit Court of Rock Island County; the Hon.
ROBERT M. BELL, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Albert Estes, the defendant, after trial by jury in the circuit court of Rock Island County was convicted of the offense of robbery and sentenced to a term of not less than 3 nor more than 10 years in the penitentiary.
No useful purpose would be served by setting forth a recital of the facts which constituted the crime allegedly committed by the defendant since we are concerned with certain testimony adduced during the course of the defendant's trial.
• 1 It is the defendant's contention that reversible error was committed when a witness, Detective Coleman, was permitted to testify as to his refusal to talk after he had indicated that he desired to remain silent. This assignment of error is based upon the following colloquy:
"Witness: * * * I asked him if there were any questions about what his rights were. He said he understood what his rights were. He had been shown the paper, he had seen the paper, and that was it.
Prosecution: Okay, then what did you do?
Witness: I asked him if he wanted to talk to me about the robbery at Super Par.
Prosecution: What did he say?
Witness: He didn't seem like he wanted to talk about it. The only thing he said was he had
Defense Counsel: I object. If he made any indication that he did not want to talk about it, then it was your duty not to talk to him unless his lawyer was present
Prosecution: Judge, if he wants to argue at this point, I think the jury should be excused. Otherwise, I will continue on * * * or if you want to rule now
Court: I will overrule the objection right now.
Witness: He said before actually he made the remark that he didn't want to make a statement. He said that he had witnesses and alibi witnesses to say he wasn't there."
In examining this colloquy it is apparent that it is ambiguous as to whether the defendant's remarks concerning an alibi were made before or after he indicated that he didn't want to talk. We cannot determine with certainty that the defendant voluntarily made his exculpatory remarks prior to being advised as to rights as required by Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. Since we cannot so determine we are compelled to abide by the rule that where an accused exercises his constitutional right not to make a statement, the fact that he may say something else in response to ...