Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Williamson
County, the Hon. William Lewis, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Defendant, Stephen T. Beller, was convicted of burglary and felony theft in a jury trial in the circuit court of Williamson County. Before being sentenced, defendant pleaded guilty to three other burglary charges pursuant to a negotiated plea agreement that included a sentence recommendation for all the foregoing offenses and immunity from prosecution with respect to some 70 other burglaries and thefts under investigation. The court sentenced defendant to four terms of 4 to 15 years' imprisonment, the sentences to form consecutive sets of two concurrent sentences each. The appellate court reversed the portion of the judgment which directed that defendant's sentences be consecutive to a previous parole-violation sentence, and otherwise affirmed. (54 Ill. App.3d 1053.) The court rejected defendant's arguments that prosecutorial comments on defendant's failure to offer his exculpatory explanation at the time of his arrest and his failure to call a corroborating witness at trial had violated defendant's privilege against self-incrimination and denied him due process of law. We granted leave to appeal.
On December 13, 1975, the Ronald Morneweg home near Johnson City was burglarized. Police arrested Jimmie D. Walker after Walker sold a ring positively identified as stolen from the Morneweg residence. Walker told police that defendant had been involved in some burglaries and was keeping stolen items in the house where he was staying in Johnson City. After obtaining a warrant, police searched the house, seized a number of items, and arrested defendant. Some of the items seized were positively identified by the Mornewegs at trial as coming from their home; others were identical in type, size and color to items stolen from the home.
Walker, originally a co-defendant in the trial, testified for the State under a statutory grant of immunity (Ill. Rev. Stat. 1975, ch. 38, par. 106-1 et seq.). He stated that he drove the getaway car while Larry Meyer and defendant burglarized the Morneweg residence. He described the subsequent division of the stolen merchandise, detailing the items apportioned to each of the accomplices. Walker identified items seized from defendant's house as belonging to defendant's share of the proceeds from the burglary. Walker also said that defendant had asked him to testify that he had sold some of the stolen items to defendant; Walker said that he refused.
Defendant's testimony raised a defense of innocent purchase. Defendant testified that he had bought from Jimmie Walker most of the items identified at trial as coming from the Morneweg home. He added that he had bought one item from a stranger in a bar. Several other witnesses were called by defendant: Larry Meyer testified that Walker had tried to sell him some of the items in question and that he had driven Walker to defendant's house several times so that Walker could sell defendant some of the items. Mary Lawrence, the mother of defendant's fiancee, testified that Walker and Meyer several times drove up to her house, where defendant was staying, and that defendant went out to the car and returned with several of the items in question. James Lawrence, the brother of defendant's fiancee, testified that he was present in Meyer's house on one occasion when defendant bought one of the stolen items from Walker. Two prisoners from the Williamson County jail testified for the defense that they had overheard Walker in jail telling defendant that he would admit selling some of the stolen items to defendant but that defendant would have to find his own explanations for the other items Walker had sold him. These two witnesses also stated they had been intimidated prior to trial by police talk about perjury penalties and the effect the witnesses' testimony might have upon their own cases. A detective testified in rebuttal that at the request of the State's Attorney the officers interviewed the two prisoners about their intended testimony, and that one said he had not seen or heard anything about which to testify. The other witness indicated he did not know what he had heard and did not know whether he should say anything. The detective testified he had told them about the offense of perjury.
Defendant contends that the prosecutor's reference in closing argument to defendant's failure to offer his exculpatory explanation at the time of his arrest violated his privilege against self-incrimination and denied him a fair trial under the doctrine of Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240. A police detective testified that, when defendant was being driven to the county jail after his arrest, he asked the witness whether police had Larry Meyer in custody and the witness responded that they did not. Meyer subsequently pleaded guilty to the Morneweg burglary in a separate case. The witness added that neither he nor the other officers in the car were questioning defendant at that time. The evidence does not indicate whether defendant had been given the Miranda warnings when he asked the question. Both the appellate court and defendant's brief in this court have asserted that the record did not reveal whether defendant was ever given the Miranda warnings. In fact, however, the record contains a Miranda waiver form signed by defendant shortly after he arrived at the county jail. Aside from the question about Meyer, defendant made no statements to police.
The prosecutor's theory at trial was that defendant's question about Meyer was an implied admission, showing defendant's knowledge of Meyer's involvement in the burglary, implying that defendant was Meyer's accomplice, and demonstrating that defendant's story of innocent purchase from Walker was a subsequent fabrication. The prosecutor made the following closing argument:
"[W]hen the Defendant was arrested you heard Detective Wiseman on the stand say as he was being transported back, `Do you have Larry Meyer under arrest?' He knew at that time that the man that he had gone in the Morneweg house with was in fact Larry Meyer. He knew that that was this co-Defendant. He knew that that was the man, the man who could hurt him most and he wanted to know right then, is Larry Meyer under arrest. * * * Counter-posed against that that very telling item of proof, is the Defendant's statement, I bought these items from who. Walker. Jimmy Walker. I didn't have anything to do with it. Meyer didn't sell me these items. Walker sold me those items.
If that were true, ladies and gentlemen of the jury, when he was arrested, who would he be asking about? He wouldn't ask about Meyer. He would say, do you have Jimmy Walker under arrest. I want to talk to that young man. I want you to talk to that young man because he sold me those items. That's what he would have said. He would not have asked about Meyer, not the one who went in the house with him, he would have asked about the man who sold the stuff to him."
He returned to this theme in rebuttal:
"When this man was arrested, and when he wanted to know where Meyer was, he [sic] co-defendant, he never told anybody, I bought this stuff. From Jimmy Walker. I bought it * * *."
Defendant has characterized these remarks as comments on his post-arrest silence. In view of the rationale of the majority opinion in Doyle, we are compelled to agree. Defendant's question to the police had been volunteered by him, and the prosecutor was entitled to draw legitimate inferences from that question during closing argument. (People v. Parks (1978), 57 Ill. App.3d 405, 409; State v. Dorsey (1978), 224 Kan. 152, 153, 578 P.2d 261, 264; Commonwealth v. Hoffer (1978), ___ Mass. ___, ___, 377 N.E.2d 685, 692; Bell v. State (1977), 267 Ind. 1, ___, 366 N.E.2d 1156, 1160.) The prosecutor, however, did more than this. He emphasized the alleged inconsistency between defendant's question at the time of his arrest and his exculpatory story at trial by stressing the fact that when defendant asked police about Meyer he never mentioned Walker or stated that he had purchased the stolen merchandise. Although defense counsel objected to the prosecutor's comments for the first time on appeal, the appellate court concluded that if the comments violated the rule of Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240, they would constitute plain error.
In Doyle the Supreme Court held that a defendant was denied due process when a State prosecutor sought to impeach the defendant's exculpatory story, told for the first time at trial, by cross-examining him about his failure to tell the story at the time of his arrest after receiving Miranda warnings. The court reasoned that "every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested." (426 U.S. 610, 617, 49 L.Ed.2d 91, 97, 96 S.Ct. 2240, 2244.) A threshold question in this case is whether the Doyle rule is applicable when there is no evidence that defendant was previously given the Miranda warnings. We hold that the rule is applicable. The Miranda warnings do not confer rights on a defendant; they merely advise a defendant, who may be ignorant or intimidated, that he possesses such rights. Since every arrested person has the right to remain silent and may be aware of this right even in the absence of Miranda warnings, post-arrest silence remains "insolubly ambiguous." In People v. Rehbein (1978), 74 Ill.2d 435, 442, we noted that we made "no distinction between the defendant's silence before or after Miranda ...