Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
After a jury trial in the circuit court of Rock Island County, defendant, Everett Godsey, was found guilty of five arson-related offenses, each of which involved the residence of defendant's brother-in-law, Thomas Crom. The jury entered separate guilty verdicts on the following charges: (1) February 1, 1976, arson; (2) February 9, 1976, burglary with intent to commit arson; (3) February 10, 1976, solicitation to commit arson; (4) February 13, 1976, arson; and (5) March 4, 1976, solicitation to commit arson. Defendant was sentenced to concurrent terms of 1 to 10 years' imprisonment for the February 1 arson, the February 9 burglary, the February 13 arson, and the March 4 solicitation. (No judgment of conviction was entered on the February 10 solicitation charge because the trial court deemed the solicitation merged in the completed offenses of burglary (February 9) and arson (February 13). The correctness of this conclusion is not before us.) Defendant appealed from the judgments entered on the verdicts, and the appellate court, in a 2-1 decision, affirmed (57 Ill. App.3d 364). We granted the defendant leave to appeal.
We hold that, under the circumstances of this case, the State's references to defendant's wife's refusal to testify before the grand jury were prejudicial to the defendant and constituted reversible error. Consequently, we do not consider the merits of other issues raised by defendant.
In Grunewald v. United States (1957), 353 U.S. 391, 1 L.Ed.2d 931, 77 S.Ct. 963, the prosecution cross-examined a criminal defendant by asking the same questions which defendant had refused to answer upon the advice of counsel when he had appeared before the grand jury. The jury was instructed that the fifth amendment plea could be used only to reflect upon defendant's credibility, not to imply his guilt. The court held that a defendant's refusal to testify when compelled to appear before a grand jury was not sufficiently inconsistent with later exculpatory testimony to permit its use for impeachment purposes. In reversing the conviction and remanding for a new trial, the court emphasized the prejudice to the defendant which resulted from the likelihood that the jury impermissibly inferred from the defendant's invocation of the fifth amendment privilege that he was either guilty of a crime or committing perjury. Grunewald v. United States (1957), 353 U.S. 391, 421, 1 L.Ed.2d 931, 952, 77 S.Ct. 963, 982.
In United States v. Hale (1975), 422 U.S. 171, 45 L.Ed.2d 99, 95 S.Ct. 2133, the court reached the same conclusion with regard to the impeachment of a defendant who had chosen to remain silent at the time of his arrest. There, it was held that the assertion, upon arrest, of the right to remain silent is not sufficiently inconsistent with later exculpatory trial testimony to permit using it for impeachment purposes. The court reasoned that a person's "failure to offer an explanation during the custodial interrogation can as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory testimony [during trial] was a later fabrication." (United States v. Hale (1975), 422 U.S. 171, 177, 45 L.Ed.2d 99, 105, 95 S.Ct. 2133, 2137.) Again, the court, in ordering a new trial, stressed the intolerably prejudicial impact on the jury, which would be likely to infer guilt from the previous silence.
The danger of prejudice to a criminal defendant also exists when the person impeached by prior silence is a defense witness. The situation first arose in United States v. Tomaiolo (2d Cir. 1957), 249 F.2d 683. There, defendant was indicted for various crimes arising out of a bank robbery. Subsequent to the indictment, defendant's brother was called before the grand jury, where he invoked the fifth amendment and refused to testify. At defendant's trial, the brother was called as a defense witness. On cross-examination, the prosecution brought out the brother's refusal to testify before the grand jury and contended that the brother's prior assertion of the privilege against self-incrimination impeached his credibility because it was inconsistent with his exculpatory trial testimony. The court held that where a grand jury witness reasonably believes that he may be implicated in crime, his reliance on the constitutional privilege against self-incrimination is in no way inconsistent with later nonincriminatory testimony. The court, in determining that there was no basis for the impeachment, observed that reference to the grand jury testimony "would almost certainly lead the jury to think that [the brother] claimed the privilege before the grand jury because he was somehow connected with the robbery, for that is the almost inevitable result of the claim of the Fifth Amendment." (United States v. Tomaiolo (2d Cir. 1957), 249 F.2d 683, 692.) The court concluded that, because of the importance of the witness to the defense and because the witness was defendant's brother, the improper impeachment seriously prejudiced the defendant.
United States v. Rubin (5th Cir. 1977), 559 F.2d 975, furnishes the most thorough inquiry into the propriety of impeaching a defense witness by referring to his prior refusal to testify before the grand jury. In Rubin, the defendant was indicted on multiple counts related to the embezzlement of union funds. Two union organizers testified for the defense only to corroborate evidence which showed that defendant was responsible for disbursing funds for general organizing purposes. On cross-examination, the prosecution elicited from the two defense witnesses answers intended to show that their earlier refusal to testify before the grand jury was inconsistent with their corroboration of defendant's exculpatory position. The court first determined that the grand jury silence failed to convey the threshold inconsistency with the witnesses' exculpatory trial testimony that was necessary to permit the use of the silence to impeach their testimony. The court reasoned that if a grand jury witness justifiably believes that his testimony might supply evidence which could be used against him, his silence is "insolubly ambiguous." It may be nothing more than the witness' proper reliance on his constitutional privilege against self-incrimination, a privilege understandably invoked in grand jury inquiries by the innocent as well as by the guilty. As a result, no basis exists for the use of the grand jury silence for impeachment purposes. (Accord, United States v. Williams (8th Cir. 1972), 464 F.2d 927, 930-31; United States v. Glasser (2d Cir. 1971), 443 F.2d 994, 1005; State v. Boscia (1967), 93 N.J. Super. 586, 600-01, 226 A.2d 643, 650 (involving reference to a witness' refusal to waive the privilege before the grand jury).) This holding, of course, does not apply if a defense witness has conveyed the impression during direct examination that he willingly cooperated with the prosecution in all aspects of its investigation or that he gave the same testimony before the grand jury which he gave at trial. See Doyle v. Ohio (1976), 426 U.S. 610, 619 n. 11, 49 L.Ed.2d 91, 98 n. 11, 96 S.Ct. 2240, 2245 n. 11; United States v. Sing Kee (2d Cir. 1957), 250 F.2d 236, 240; United States v. Fairchild (5th Cir. 1975), 505 F.2d 1378, 1383.
The Rubin court then discussed the risks of prejudice to the defendant which inevitably result from improperly using grand jury silence for impeachment purposes.
"First, where the jury learns that the witness's silence was an exercise of the privilege against self-incrimination, there is a danger the jury will improperly infer guilt on the part of the witness and, depending on the circumstances, transfer that inference to the defendant. [Citations.] Second, without an understanding of the uncertainties a witness faces in testifying before a grand jury, a juror may well attribute undue significance to the fact a witness offered no response to the prosecutor's questions before that tribunal and may thereupon disbelieve the witness's trial testimony." (United States v. Rubin (5th Cir. 1977), 559 F.2d 975, 983.)
Despite its conclusion that the impeachment was improper, the court refrained from reversing the conviction because the testimony of the two witnesses was largely cumulative and only tangential to the theory of defense and because no possibility existed, under the circumstances, that any inference of the witnesses' guilt would be transferred to the defendant.
In the case at bar, it was the defendant's wife whose prior silence before the grand jury was the object of impeachment. Defendant's wife had been called by the defense primarily to rebut the uncorroborated testimony of defendant's ex-girlfriend, who had been a principal State's witness, and to establish an alibi for one of the offenses. On cross-examination, the prosecution sought to impeach her testimony by the following repeated references to her grand jury silence:
"Q. I would like to call your attention to the 7th day of July 1976 in the morning on the fourth floor of the Rock Island County Courthouse before the Rock Island County Grand Jury. Do you remember being called as a witness?
Q. Do you remember being sworn as a witness?
Q. By the foreman of the Grand Jury?
Q. And do you remember whether or not I was ...