APPEAL from the Circuit Court of Will County; the Hon. ANGELO
F. PISTILLI, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Appellant, Walter Racinowski, was convicted of escape (Ill. Rev. Stat. 1975, ch. 38, par. 1003-6-4). He was thereupon sentenced to an extended determinate sentence of 12 years' imprisonment, with such term to run consecutively to the term of imprisonment for which he had been incarcerated originally. The charges were brought by information and appellant's case was tried by a jury. He appeals both his conviction and sentence to this court.
On September 23, 1974, Walter Racinowski was committed to the adult division of the Illinois Department of Corrections, Joliet Correctional Center. He was received at the center on November 23, 1974. His security classification at that time was "medium." On March 11, 1975, appellant's security classification was changed to "minimum with supervision," and on June 25, 1975, his classification was changed to "minimum," the highest grade at the center.
On August 7, 1975, the appellant, Racinowski, was given the job of repairman at Deepwell No. 3, a water pumping station located across the street from the main prison facility. At the time appellant lived alone at Deepwell No. 2, which is not a cellhouse but is built like a garage. Racinowski walked, some 10 times a day, unaccompanied by a guard, from his residence at Deepwell No. 2 to his work assignment at Deepwell No. 3. This walk took him through three gates, an administration building, a parking lot and across Collins Street.
On October 15, 1976, Racinowski called the armory and told the officer on duty that he would be late returning from his job assignment because of a steam leak. Racinowski then walked away from the building, went down to Woodruff Road and there hitchhiked a ride on a truck to Chicago. On April 22, 1978, while he was using the name of George Bliss, Racinowski was arrested for robbery. Subsequently, he was convicted of that crime. He was returned to the Joliet Correctional Center on June 8, 1978.
On the date of his arrival (June 8, 1978), after being advised of his Miranda rights, Racinowski made an oral statement to James Cantrill, correction lieutenant, and Racinowski also executed a handwritten statement. In these statements, appellant declared that on October 15, 1976, he was working at Deepwell No. 3. He stated that at about 8 p.m. he read a letter from his mother, which he had received a few days before, telling him that his mother and brother were both seriously ill. At approximately 8:30 p.m. he called the armory, telling the officer there that he would be late because of the steam leak. He also wrote that "after making the call I have decided * * * I was going to walk off from the Joliet Correctional Center." Appellant then explained how he walked off, hitched a ride to Chicago, visited his mother, from whom he received money, and proceeded to a northside hotel in Chicago.
Appellant's defense to the charge of escape was "necessity," i.e., that the conduct which would otherwise be an offense is justifiable if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct. The claimed injury which defendant was trying to avoid when he walked away from Deepwell No. 3 (he stated on trial and urges on appeal) was the loss of his life or serious injury to his person. Defendant testified at the trial that, on June 15, 1976, he was approached by an inmate named Jones, who requested that he bring narcotics into the institution for some black gang members. Defendant said he walked away but some minutes later was threatened at knifepoint by Jones. Defendant further testified that on August 16, 1976, he was approached by another inmate, Smokey, who threatened him verbally regarding the same matter. Defendant testified that he believed both these two men to be members of black gangs. Neither incident was reported to authorities. Defendant stated that he believed the authorities would not help him and, furthermore, that his record might fall into the hands of gang members, causing him further trouble from that source.
On appeal in this court, defendant first contends that the prosecution erred in bringing to the attention of the jury, both in cross-examination and in closing arguments, the fact that defendant had made no mention of these threats in his statement to Lieutenant Cantrill. Defendant claims that he was deprived of his privilege against self-incrimination by virtue thereof under the Illinois Constitution (Ill. Const. 1970, art. I, § 10) and United States Constitution, amendments Five and Fourteen. The United States Supreme Court in Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240, held that a defendant's silence normally could not be used against him in a State prosecution. The court there reasoned that the right to silence, of which every accused must be informed, would be meaningless if the fact of such silence was, in the ordinary case, used against the defendant at a trial.
This rule has been interpreted and elaborated upon within the past year by the Illinois Supreme Court in People v. Beller (1979), 74 Ill.2d 514, 386 N.E.2d 857 (see People v. Rehbein (1978), 74 Ill.2d 435, 386 N.E.2d 39).
The violation alleged by the prosecutor to have been committed by the defendant in the instant case under the doctrine announced in the Doyle and Beller cases referred to involved a question put to defendant upon cross-examination and a remark by the prosecutor in his rebuttal summation.
In cross-examination, the prosecutor questioned defendant by stating, "You were not returned to the Joliet Correctional Center until about June 8, 1978?" to which the defendant responded, "That's right." The prosecutor further asked, "On that particular date, you gave that statement * * * or wrote that statement to Mr. Cantrill. Is that correct?" Defendant answered, "How I left that institution, yes." Question: "You have testified on direct that you didn't give a reason why you left the institution?" Answer: "All he asked me was how I left the institution." Question: "You were leaving because your mother was sick and your brother was sick. That was not a reason, that was just something to throw into the statement?" Answer: "No. The real reason was if they got my file * * * would get into some inmates hands I would have been dead on arrival." Question: "But there, again, at that particular point, you decided not to tell anybody the real reason why you left Joliet?" Answer: "What good would it do? The people aren't going to help you."
It is apparent that defendant's reference to the "real reason" for his behavior is clearly sufficient to alert a trial judge to a manifest inconsistency in his custodial and trial statements. Under the standards set forth in People v. Beller (1979), 74 Ill.2d 514, 386 N.E.2d 857, Racinowski's failure to tell his whole story to Lieutenant Cantrill could be properly commented upon by the prosecution under the standards set forth in the Beller case. Under the procedures in the instant case, we need not extend a discussion of that issue for the reason that the allegedly objectionable question came in response to direct examination of defendant by his own counsel, where he was asked why he left the institution on October 15, and to which the defendant replied, "Well, according to them threats, I was worried about getting stabbed or something, and I was reading a letter I got from my people about my brother. He was in serious condition. He had a blood clot on his brain. So, I said, since I can't get no protection, I just left." The prosecutor questioned defendant as to whether Cantrill had asked him to write why he left the prison and defendant said, "No," and when the prosecutor further asked him if that was "an explanation as to why you left does not appear in there?" defendant answered, "No, it does not appear in here."
1 Here it is obvious that defense counsel is the first to bring to the attention of the jury the fact that the defendant's story of fearing for his life does not appear in his statement to Lieutenant Cantrill. At the trial, defendant also objected to the remark in the prosecutor's rebuttal summation, where the prosecutor said, "Mr. Racinowski at no time ever made mention of threats while in the prison or out, or back on the 8th of June, 1978, * * *. The first available opportunity he has to tell an official, `hey, I left because I was afraid', what does he say, he says, I received a letter from my mother, and my mother was sick and my brother was sick, and then I decided to go." The references to defendant's failure to complain prior to his escape, outside of a Miranda type of interrogation, were proper and are not objected to here. The objection was to the prosecutor's mention of the defendant's failure to allege threats in his June 8, 1978, statement. We note, also, in this connection, that the prosecution's rebuttal came after a summation by the defense attorney which included the following statement:
"I put to you, ladies and gentlemen of the jury, the defendant's own testimony said that he did not tell Mr. Cantrill why he left because Mr. Cantrill did not ask him why he left. They didn't even talk about why he left. Cantrill didn't ask him, but I did."
It is notable, therefore, that Racinowski's silence as to his reason for leaving and that he omitted stating the reason relating to threats to Cantrill or to write out any such reason, were all brought to the attention of the jury by his own attorney before being commented upon by the prosecutor. Accordingly, we find no ...