APPEAL from the Circuit Court of Clinton County; the Hon.
ARTHUR G. HENKEN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
A jury in the circuit court of Clinton County found the defendant, George Stack, guilty of burglary, and he was sentenced to a term of imprisonment of not less than four years nor more than 12 years. The defendant asserts the following issues on appeal: (1) whether it was error for the prosecutor to comment during closing argument on the defendant's post-arrest silence; (2) whether the trial court erred in admitting an oral statement where the defendant was furnished with an incomplete discovery list of the persons present when the statement was made, and where the prosecutor had knowledge of all the people present when the discovery request was made; (3) whether the trial court erred in admitting into evidence a form containing Miranda warnings which was initialed and signed by the defendant; (4) whether the trial court erred by improperly commenting on evidence when it ruled on an objection; (5) whether the trial court erred in refusing to instruct the jury with respect to accomplices and accountability after the State argued an accomplice theory of guilt; and (6) whether the evidence at trial failed to support the defendant's guilt beyond a reasonable doubt.
The defendant and Jack Henry were jointly charged with burglary pursuant to section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 19-1(a)). The pertinent facts pertaining to the burglary are as follows.
On June 27, 1977, at approximately 1 p.m., Ralph Langhauser and August Haislar, employees of the Clinton County Oil Company, returned from their lunch breaks. While standing in the company parking lot Langhauser noticed two men, subsequently identified as the defendant and Henry, and a red pickup truck near the tire loading area. He testified that he saw Henry hoist a tire into the truck. Langhauser's suspicion was aroused because no salesmen were assisting in the loading operation. It was normal company policy for a salesman to accompany a customer to the garage area whenever tires were being loaded after a sale.
Langhauser directed Haislar's attention to the presence of the defendant and Henry near the garage. Langhauser then proceeded to the office to ascertain whether any tires had been sold to the men. After finding out that none were sold, he called the police.
Haislar testified that when he first glanced at the pickup truck he saw the defendant and Henry loading tires. He, too, was suspicious because the loading was being carried out during the lunch hour in the absence of any authorized personnel. Haislar testified that the men started to rush when they saw him approach their truck. They threw one more tire into the truck and then climbed in the cab and started to pull away. When only two feet away from the driver's side of the truck, Haislar asked Henry, the driver, whether he needed assistance. Henry responded affirmatively, but continued to pull away. In his haste he backed the truck into the side of the garage and then sped away. Haislar also noted that the two men appeared nervous when he approached.
Haislar took down the license number of the truck and reported it to the police. A red pickup truck bearing that license number and containing the defendant and Henry was stopped a short while later by the police. Four of the tires found in the back of the truck were identified by Haislar and Langhauser as belonging to the Clinton County Oil Company.
Neither Haislar nor Langhauser testified that they saw the defendant or Henry enter the garage where the tires were stored. Also, they were unable to testify that the garage door was closed before they went on their lunch breaks.
The defendant testified that he never intended to steal any tires from the company. Although admitting on the stand that he helped load the stolen tires, he maintained that he acted only as an innocent bystander. Specifically, he claimed that he was in the employ of Henry at the time of the burglary, and that he never suspected that Henry was procuring the merchandise illegally. However, the defendant could produce no payroll stubs, cancelled checks or other evidence corroborating his claim that he was working for Henry.
The first issue the defendant raises on appeal is whether the prosecutor improperly commented upon the defendant's post-arrest silence.
The prosecutor attempted to rebut the defendant's innocent-by-stander-employee defense by stating in closing argument:
"Why is this the first time we ever heard this version of the story about an hour ago? Never told anyone this before. This is the first we have ever heard this version because the case was so strong that there was just very little else to do."
1, 2 The defendant relies on Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240, in contending that these remarks to the jury constituted improper prosecutorial comment upon post-arrest silence. We agree. However, there was no objection interposed when these remarks were made, nor was the issue adequately raised in the defendant's post-trial motion. Nevertheless, we find that this issue is not waived because such comment constitutes plain error. (People v. Beller (1979), 74 Ill.2d 514, 386 N.E.2d 272; People v. Suggs (1st Dist. 1977), 50 Ill. App.3d 778, 365 N.E.2d 1118.) Accordingly, the question becomes whether the error was harmless or reversible.
3 In Beller, the supreme court noted two exceptions to the Doyle rule prohibiting prosecutorial comment on the post-arrest silence of the accused. The first exception occurs where a defendant offers an exculpatory version of events and informs the jury that he had communicated the same story to the police. Comment about his post-arrest silence is permissible in this instance only if the prosecutor does so for the purpose of impeaching the defendant's post-arrest behavior by demonstrating that no such story was ever relayed to the police prior to his testimony. The second exception occurs where the testimony of a defendant is factually inconsistent with a prior statement made by him. A prosecutor may refer to a defendant's post-arrest silence as long as the reference is made in the context of impeaching the defendant's testimony through a prior inconsistent statement. The court went on to explain factual inconsistency by saying that facts were inconsistent only where they directly contradicted a defendant's ...