APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendants Daniel Marine and James Healy appeal from a judgment of the Circuit Court of Williamson County where they were found guilty of burglary after a jury trial.
They make the following contentions in this appeal: (1) That it was prejudicial error to admit the testimony of a fellow prisoner that defendant Marine admitted to a prior, unrelated burglary allegedly committed by both defendants, and to which neither defendant had by any other evidence been connected; (2) that the inculpatory statements of defendant Marine constituted inadmissible hearsay as to defendant Healy, thus depriving Healy of the right of confrontation; (3) that it was error to introduce evidence of an oral statement by defendant Marine where the State's answer to defendants' discovery motion indicated that no such statements existed, even though these statements were known by the Williamson County Detective Unit three months prior to trial; and (4) that the trial court committed reversible error in refusing to allow defendants' cross-examination relating to the credibility of one of the State's witnesses.
On October 5, 1975, at 12:45 a.m., a burglar alarm sounded at the S & S Corporation building in Marion, Illinois. Responding to the alarm, police found no one present, but observed an opening in the west side of the building. The opening had been made by unscrewing and lifting back a portion of corrugated steel and then making a hole through the wallboard made of sheet rock.
Minutes later police at the building received a radio call from an officer of the Energy Police Department requesting assistance. He was in pursuit of a pickup truck, first observed a mile north of the S & S Corporation building traveling away from the burglary. After a brief loss of contact, the truck was located abandoned in a ditch. A pair of black gloves, a crowbar and an ax were found in the pickup truck while a toboggan cap was found on the ground. Footprints were followed from the truck to a wooded area until they were lost near a railroad track which crossed the Johnston City-Herrin blacktop.
At approximately 9:30 a.m. on the same day, Patrolman Glenn Smith observed the defendants Marine and Healy sitting on the bank of the Johnson City-Herrin blacktop about a mile east of the railroad tracks. Officer Smith observed that defendants' clothing was wet and contained vegetation. Having earlier received information that a manhunt was in progress in the Marion area, Patrolman Smith radioed Detective Wiseman of the Williamson County Detective Unit. Upon Wiseman's arrival the defendants were taken into custody.
Laboratory tests run on the plasterboard removed from the S & S Corporation building revealed the presence of gypsum. Gypsum was also found in the clothing of the defendants. Photographs of foot prints found near the area of the ditched truck revealed characteristics similar to the defendants' boots. A hair fragment found at the truck was also found to have similar characteristics to defendant Healy's hair, but no positive identification could be made. Nor were any fingerprints resembling the defendants' identified.
At trial the defendants did not testify but called Raymond Healy, Jr., and Marcia Healy, defendant Healy's brother and sister-in-law. They testified that James Healy had been living with his father in rural Enfield, Illinois, for about two months prior to the time of the arrest. On October 4, 1975, James Healy and Daniel Marine had been working with James's father cleaning up his back yard and fixing his back porch. In order to repair the porch the defendants had to tear down a ceiling made of sheet rock. Sometime around 2:30 p.m., on October 4, 1975, James Healy asked his brother Raymond to take them to Cairo to pick up his paycheck from Inland Towboat Company, his employer. A few hours later Raymond dropped the defendant off on Highway 460 in order to hitchhike to Cairo. On cross-examination Marcia Healy stated that the toboggan cap found outside the abandoned truck was defendant Healy's, while Raymond Healy testified that he had never seen either of the defendants with a toboggan cap.
At the trial the State also produced the testimony of William Bauer, a prisoner who had been in contact with both defendants at the Williamson County Jail on various occasions during the time defendants were awaiting trial. Bauer testified over defense counsel's objection to conversations with the defendants. Testimony at trial reveals that a cell change was about to take place at the county jail and that Marine apparently knew that Bauer would be transferred somewhere near Healy. Bauer testified that Marine told him to inform Healy not to talk to detectives and that he had nothing to worry about unless he had taken off his gloves during the burglary. Bauer further testified that shortly after the cell transfer he relayed Marine's message to Healy.
Over defense counsel's continuing objections, Bauer testified about a second conversation occurring on October 20, 1975. In that conversation defendant Marine indicated that he and Healy committed the burglary of the S & S Corporation by entering the side of the building; that they had taken several items from the establishment which they threw out of the truck while being chased; and that defendant Marine had worn rabbit fur-lined gloves during the burglary. In addition, Bauer testified that Marine remarked that he hoped the police were not investigating any other burglaries in which entry was gained in the same way as at the S & S Machinery building because he and Healy had committed a burglary of a bowling alley in Muddy, Illinois. No part of this conversation took place in Healy's presence, nor did he assent to any part of it.
Paul Beltz, deputy sheriff of Saline County, was called by the State and verified the occurrence of a burglary in Muddy, Illinois, on September 22, 1975. Deputy Beltz also testified that the bowling alley was housed in an aluminum building and entry was made through the back side by prying the siding loose and making a hole in the wall.
Defendant Healy contends that he was denied his constitutional right to confront the witnesses against him when the inculpatory statements of his co-defendant were introduced at trial. Defendant Healy's argument is based upon the United States Supreme Court ruling in Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968). Healy additionally argues that such inculpatory statements were inadmissible hearsay. We agree.
• 1, 2 In Bruton the Supreme Court held that in a joint trial the introduction of an out of court statement by one co-defendant which implicates a second co-defendant, violates the latter's right of confrontation, particularly when the co-defendant who made the statement cannot be subjected to cross-examination at trial. Although the right to cross-examination secured by the confrontation clause is applicable to the States under the fourteenth amendment (Roberts v. Russell, 392 U.S. 293, 20 L.Ed.2d 1100, 88 S.Ct. 1921 (1968)), Illinois law holds that no violation of the Bruton rule occurs when the defendant claiming the benefit of the rule has himself made a similar inculpatory admission which is admitted into evidence. People v. Rosochacki, 41 Ill.2d 483, 244 N.E.2d 136.
In this case neither of the defendants testified at trial. Nevertheless the trial court admitted Bauer's testimony concerning the statements made by Marine on October 20. Although defendant Healy responded to a second statement made by Marine to Bauer, that response was not a similar incriminating statement so as to fall within the ...