APPEAL from the Circuit Court of Will County; the Hon. A.F.
PISTILLI, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
The defendant, Richard Green, appeals from his conviction of burglary following a jury trial in Will County.
Green raises two issues for review: (1) Whether his rights under the Fifth and Fourteenth Amendments to the United States Constitution were violated where the prosecutor cross-examined him regarding his post-arrest silence and commented during summation on that silence. (2) Whether the prosecutor overstepped the bounds of proper argument, thereby prejudicing defendant, where he repeatedly misstated the evidence during summation.
Defendant Green and one Jessie Couch were jointly indicted for burglary on August 8, 1974. The evidence established that Mrs. Elizabeth Spights of 317 Sherman Avenue in Joliet, Illinois, observed, from her second floor window, two men pry open and enter a window in a neighboring house. This incident occurred at about 10 p.m. on July 6, 1974. The home that was broken into and entered was vacant at that time as it was part of the deceased owner's estate. While the two men were in the process of prying open the window, Mrs. Spights phoned the police. Mrs. Spights said the police arrived on the scene within 10-15 seconds after they were called. By this time the two men had entered the home and closed the window. The police spoke momentarily with Mrs. Spights, then surrounded the house and gained entry by breaking in a small door. The defendant was discovered in the garage hiding under a boat and Couch was found in a closet of one of the bedrooms. A watch, a ring, and a screwdriver were found by Couch's feet and another watch and a pocket knife were found on the shelf above his head. The top dresser drawer in the bedroom where Couch was found was open and a jewelry box inside the drawer was open. No determinative finding of either defendants' fingerprints on any of the above objects was established. Both men were arrested and advised of their rights pursuant to the landmark case of Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, in due course.
The executor of the estate of the deceased owner of the vacant house testified that the house was part of an estate and no one other than himself had authority to enter the house on July 6, 1974. On July 4, 1974, he had examined the house and found it to be secure. He was unable, however, to testify as to the contents of the jewelry box because no inventory of the personal property in the home had ever been made.
Defendant presented exculpatory evidence tending to negate any inference that he broke into and entered the house with a felonious intent. Green testified that he and Couch broke into the house in order to find a place for Green's wife and young children to spend the night since they had earlier been locked out of the motel where they were staying for not paying the rent.
Mrs. Couch, wife of the defendant's accomplice, testified that from her vantage point in a parked car just down the street, she had observed the police arrive at the scene around one-half minute after Green and her husband went up to the house.
Without objection the defendant was cross-examined by the prosecutor concerning his exculpatory reason for entering the house and his failure to inform the police of this reason immediately after he was arrested. The prosecutor also commented upon defendant's post-arrest silence during closing arguments.
On rebuttal the State produced the manager of the motel who stated that the defendant had not been locked out for nonpayment of rent and presented the motel records as substantiation.
Resolution of the first issue raised is determinative of this appeal. We agree with defendant that reversible error occurred when the prosecutor cross-examined Green concerning his post-arrest silence and commented on that fact to the jury in his closing argument. Immediately upon being apprehended Green responded to police questions concerning whether anyone else was in the house, whether he was armed and how he had traveled to the house. Thereafter he was given his Miranda warnings, and then he refused to respond to police questions. Excerpts of the defendant's testimony on cross-examination, redirect and recross are the best method of illustrating the alleged error.
Cross-examination of Richard Green by assistant State's Attorney:
"Q. Mr. Green, when the police took you to the car, to the squad car, did you tell them from the time you left the house until the time you went to the squad car why you went into the house?
A. When I got down to the station they told me
Q. That's not the question I ask you, Sir Did you tell the police?
A. Why I went into the ...