APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
BOWMAN, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After trial by jury defendant, Orlando Martinez, was convicted of rape and sentenced to a term of eight years imprisonment. He appeals, asserting that the trial court erred in three respects:
First, that certain testimony of the arresting officer constituted an impermissible comment on defendant's exercise of his right to remain silent. Second, that it was error to admit testimony of psychiatrists called by both the State and defendant relating to his prior criminal conduct. Third, that the trial court erred in the forms of verdict submitted to the jury on the issue of insanity.
The testimony adduced at trial, insofar as it is relevant to the resolution of the issues raised in this appeal, discloses that on April 28, 1977, a 66-year-old woman was raped in her apartment by an intruder whom she could not thereafter identify beyond a general description. A towel containing blood and semen stains which matched defendant's blood type was recovered from her apartment and Martinez' fingerprint was found in the bathroom. Investigating officers also recovered a Winston cigarette butt.
Prior to his arrest, Martinez was questioned by Officer Thomas Hanlon of the Elmhurst Police Department at the Great Lakes Naval Base where defendant was stationed. Martinez was advised that an investigation of a rape was being conducted, that he was a suspect, and of his Miranda rights. During the interview, Officer Hanlon collected Winston cigarette butts smoked by defendant and informed him they were to be sent to the crime lab for comparison with a cigarette butt found in the victim's apartment. Hanlon further testified that he then had the following dialogue with defendant:
"I asked him if he knew what type of cigarette we might have recovered in the apartment, and he stated that the way his luck was going it was probably a Winston. I advised him that it was a Winston cigarette butt and that the victim smoked Kent cigarettes. He then got rather ruffled and got up and walked out of the room and stated that he had talked to me enough and didn't want to talk to me any longer. At that time the interview was terminated."
Hanlon also testified to other conversations he had with defendant after his arrest, but it is only the foregoing testimony which is alleged by defendant to be an impermissible comment on his right to remain silent.
Dr. Marvin Ziporyn, a psychiatrist called by defendant, referred to a portion of the history he had obtained from defendant relating to his family life and to his alcoholism. On cross-examination, the doctor was asked whether he had also taken a "criminal history" of the defendant. Defendant's objection was sustained by the trial court which limited the State to inquiries relating to prior "anti-social" rather than "criminal" conduct of the defendant. In response to a question regarding past antisocial conduct of defendant contained in the history, Dr. Ziporyn stated defendant had said that he had been in trouble before but did not describe its nature. Dr. Ziporyn also testified to his opinion that at the time of the offense defendant suffered from a mental disease or defect he described as "schizophrenia or schizophrenic reactions, simple type." Subsequently, in response to similar questions propounded by the State to the psychiatrists it called in rebuttal, Dr. Lyle Rossiter testified, without objection, that "he told me that he had been charged with burglarizing a grocery store and also charged with contributing to the sexual delinquency of a minor. He had also been charged, as I recall, with bike theft, but again, as I recall, I believe he said this charge was dropped." Dr. Werner Tuteur testified, also without objection, that "he told me that at one time he was arrested for trespassing and another time a burglary occurred and the third occasion he had difficulties after approaching a 16-year old girl." These aspects of defendant's history were included in hypothetical questions posed by the State to Drs. Tuteur and Rossiter in which they were asked to express their respective opinions as to defendant's sanity at the time of the offense. Dr. Tuteur concluded that the defendant did not suffer from a mental disease or defect but had an "inadequate personality." Dr. Rossiter diagnosed the defendant as having a sociopathic personality and suffering from chronic alcoholism.
Prior to the testimony of Drs. Tuteur and Rossiter the court admonished the jury that the doctors would testify about facts they had learned in taking histories from defendant which were considered by them in forming their medical opinions and that "[t]hese facts should not be considered by you in the guilt part of this case as a fact. It is only a fact as it relates to the medical part of the case."
During the conference on instructions, the trial judge denied defendant's request that the words "and we further find that he has recovered from his condition of insanity" and "and we further find that he is still insane" be added to the forms of verdict submitted to the jury on the grounds that the inclusion of the recovery phraseology would present a collateral issue and distract the jury from the issue of defendant's sanity at the time of the offense.
1, 2 We consider first whether the testimony of Officer Hanlon describing defendant's termination of his interview with the officer requires reversal as an improper comment on defendant's right to remain silent. We note, however, that defendant neither objected to this testimony at trial nor did he raise it as a ground for relief in his post-trial motion. Under these circumstances, defendant has waived this issue as a ground for reversal on appeal (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856; People v. Carlson (1980), 79 Ill.2d 564, 404 N.E.2d 233.) We also find it does not constitute plain error.
Unlike the circumstances of Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240, or People v. Rehbein (1978), 74 Ill.2d 435, 386 N.E.2d 39, cert. denied (1979), 442 U.S. 919, 61 L.Ed.2d 287, 99 S.Ct. 2843, the fact of defendant's reliance on his right to remain silent was not here drawn from him on cross examination (he did not testify in trial) nor did the prosecutor suggest defendant's silence as an indicium of guilt in his argument to the jury.
The testimony characterized by defendant as an impermissible comment on his exercise of the right to remain silent clearly was not a Doyle violation. Defendant had not remained silent during this pre-arrest interview with the investigating officer but had talked with him. He subsequently chose to exercise his right to terminate the conversation, however, and, reasonably enough, the officer so stated. No further reference to the fact of the termination of the conversation was made in the trial of the case. We do not agree that the fact that such an interview ended at defendant's request, without ...