APPEAL from the Circuit Court of Will County; the Hon. ROBERT
E. HIGGINS, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Defendant, Anthony Rock, was indicted for burglary and theft. After a trial by jury, defendant was found not guilty of burglary and guilty of theft. This appeal is from the judgment of the Circuit Court of Will County finding defendant guilty of theft and sentencing him to not less than two nor more than four years in the Illinois State Penitentiary.
Two issues are raised on this appeal. Defendant contends it was reversible error to admit into evidence an unsigned waiver of constitutional rights form when the defendant merely gave an exculpatory statement to the police. He also contends that comments by the prosecutor in closing argument, to the effect that he intended to indict one of defendant's alibi witnesses, constituted reversible error.
At about 12:15 a.m. on May 18, 1971, Will County Deputy Sheriff Brown, while on duty, had occasion to follow a pickup truck carrying a garden tractor into a rural driveway. When the driver got out of the truck and walked toward the car Brown recognized him as the defendant, Anthony Rock. He had seen defendant in person thirteen times prior to that date. For about twenty to thirty seconds Brown conversed with the man inquiring as to who owned the pickup truck and who owned a garden tractor in the truck. Rock responded that the truck belonged to a person named Rich who was still seated inside the truck and that the tractor was being returned to the person that he, Rock, borrowed it from. The driver then walked toward the house near the driveway, knocked on the door, disappeared behind the house and never did return to the truck.
The truck's other occupant, Richard Milavec, left the truck and came back to talk with Officer Brown. He informed Deputy Brown that he was returning the garden tractor to its owner who lived in the house. About this time, however, the owner of the house, Gilbert Mitchell, came out and stated he did not own the tractor. Milavec was arrested by Officer Brown. The true owner of the tractor later identified it. Rock was taken into custody at 1:25 a.m. and was brought from his home to the jail.
During the direct examination of Officer Brown for the State, he was asked whether he had a conversation with Rock at the jail. Defense counsel at this point objected to the line of questioning on the grounds that "every defendant is entitled to have his constitutional rights read to him," thereby raising the issue of the voluntariness of Rock's exculpatory statement. Officer Brown thereupon testified that he advised Rock of his constitutional rights prior to talking to him by reading to him from a standard rights form identified as People's Exhibit 30. Defense counsel, raising the issue of voluntariness, objected that his client's signature was not on the form. The court sustained the objection "unless it's shown that defendant waived his constitutional rights." "That's what we're trying to show your honor," said Mr. Polito, the assistant State's attorney, "that he did waive his constitutional rights and agreed to talk but refused to sign the form." The court then permitted the State to proceed. Officer Brown was interrogated as to how he used People's Exhibit 30 and without objection testified that he read each of the questions on the form to Rock, e.g., "You have a right to remain silent. Do you understand that." Brown testified that Rock answered "Yes," and that he (i.e., Brown) then wrote beside the question the defendant's response "yes." Continuing his testimony, Brown stated in respect to his use of the exhibit that he conversed with Rock as follows:
"`If you answer any questions, your answers can and will be used against you in court at some later time. Do you understand this?' Mr. Rock answered yes. I wrote the answer yes. `You have the right to talk to a lawyer before answering questions. Do you understand this?' Mr. Rock answered yes and I wrote the answer yes. `If you do not have money to hire a lawyer, a lawyer will be appointed by the court before any questioning to advise you and to be present in case you decide to answer any questions.' I asked him if he understood this and he said yes and I wrote the answer yes. `If you decide to answer questions without a lawyer present you have the right to stop answering at any time.' I asked him if he understood that and he said yes and I wrote the answer yes. `Now, knowing these rights, are you willing to answer questions without first speaking to a lawyer?'"
"Q. [by Mr. Polito] What's his answer?
A. I wrote the answer `yes'.
A. Prior to talking did anyone strike you or force you to answer questions?' His answer was `no' and I wrote the answer `no'. `Prior to talking to me did anyone make any threats that anything would happen to you if you did not answer questions?' His answer was `no' and I wrote the answer `no'. `Prior to talking to me did anyone promise you anything or offer you any rewards of any type for answering questions?' His answer was `no' and I wrote the answer `no'. The bottom part of the form is the waiver of rights and it reads `I certify ...