Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Will County,
the Hon. Angelo F. Pistilli, Judge, presiding.
MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
In a jury trial in the circuit court of Will County defendant, Richard Green, was convicted of burglary and sentenced to the penitentiary for a term of not less than 5 nor more than 15 years. The appellate court reversed and remanded (53 Ill. App.3d 820), and we allowed the People's petition for leave to appeal. In reversing, the appellate court held that under Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240, the People's cross-examination of defendant concerning his post-arrest silence and certain comments made by the assistant State's Attorney during final argument deprived defendant of due process. The People contend that because defendant had failed to object either to the cross-examination or the allegedly improper argument, the error, if any, was waived, and that plain error should not be recognized where, as here, the evidence of guilt was overwhelming and the error harmless beyond a reasonable doubt. The People contend, too, that the cross-examination was not error for the reason that the matter was first brought out in plaintiff's direct testimony; that what occurred was not cross-examination concerning defendant's post-arrest silence, but was in fact cross-examination concerning post-arrest statements inconsistent with defendant's testimony at trial; and, finally, that the rule in Doyle v. Ohio should not be applied retroactively to a case tried 18 months prior to the date of the Doyle decision.
Defendant and Jessie Couch were indicted for the burglary of a house in Joliet. The owner had recently died and the house was unoccupied. A neighbor who saw two men pry open a window and enter the house phoned the police, who, upon arrival, found defendant hiding under a boat in the garage and Couch hiding in a bedroom closet. Two watches, a ring, a pocket knife and a screwdriver were found in the closet, near Couch. There was an open dresser drawer in the bedroom where Couch was found, and a jewelry box inside the drawer was also open. The executor of the deceased owner's estate was unable to testify that anything was missing from the jewelry box since no inventory had been made of the property in the house.
Defendant and Couch were arrested and advised of their rights. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602.) Police officer Allan Horvath testified that he and his partner, Officer Fitzgerald, received a radio dispatch that there was a burglary in progress and that, upon arrival at the house, he entered the garage. He saw defendant lying underneath a boat. After advising defendant of his constitutional rights he asked him if there was anyone else inside the house, to which defendant replied that there was one other man. He then asked defendant "if there was a car involved," to which defendant replied "No." Defendant was asked if the other man had a gun and defendant replied "No." Defendant said nothing further until reaching the police station, where he asked to see Sergeant Hernandez.
On direct examination defendant testified that he, his wife and children had been locked out of their motel and that, after being unable to locate another place to stay, he entered the house to explore the possibility that he and his family might spend the night there. On cross-examination the following occurred:
"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 house?
A. Tell like why I was there?
Q. Did you say anything to them in the squad car at all?
A. Just when he was reading me, reading my rights.
Q. You didn't talk to them when you were in the squad car? Did you talk to the police officer?
A. When I was in the squad car the only thing I asked they asked me if I understand my rights and I told him yes. That's all I said in the squad car. That's all ...