APPEAL from the Circuit Court of Jackson County; the Hon.
RICHARD E. RICHMAN, Judge, presiding.
MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
The defendant, David Cooper, was convicted of burglary following a jury trial in the circuit court of Jackson County and was sentenced to three years imprisonment. He appeals this conviction and argues that he was denied due process of law because during trial the prosecution introduced testimony concerning a confession by him which had previously been suppressed as involuntary.
On the afternoon of November 13, 1979, Southern Illinois University student Greg Toelle was asleep in a Carbondale house occupied by him and three other students. He was disturbed by a noise elsewhere in the house, and went outside where he saw three black males climbing over the fence which surrounded the house. Toelle saw that one of the three was about six feet tall, had medium length hair pulled away from his face, and wore a nearly knee-length tan overcoat and dress trousers. This description matched that given by Mrs. Carmeline Kueker, a neighbor.
Toelle discovered that several rooms in the house had been ransacked. Missing from the house were a stereo, a record cleaner, some money, shotgun shells, prescription medicine, various pieces of physical education equipment, and some marijuana. The stereo was found hidden beneath some bushes inside the fence. Toelle and his roommate, Tim Londrigan, who arrived home soon after the break-in, notified the police. The sudents informed the officer that they intended to "stake out" the back yard in case the thieves returned. The officer seemed less than enthusiastic about this proposal and warned the two to be careful if they tried to catch the criminals.
Toelle and Londrigan replaced the stereo with empty beer cases, and planned a vigil to begin that night. Late that afternoon, Toelle went to the Carbondale police station to attempt to identify the man he had seen fleeing from the scene. Londrigan and another roommate, Bill Svetlik, waited in the house, armed with two shotguns and a hunting knife. At about 5 p.m., the defendant walked through the students' yard to the bushes. Londrigan and Svetlik emerged from the house, but, in the excitement, everything but one shotgun was left behind.
Londrigan cocked the shotgun and told the defendant to stand still. Svetlik took hold of the defendant by the coat, and the students directed him into the house. At first, while all were outside, the defendant claimed to be looking for marijuana plants. Later, he admitted his involvement in the burglary. He offered to return the stolen property to them if they would let him go. After they were satisfied they had enough information to locate the defendant, Londrigan and Svetlik agreed to give the defendant until midnight to recover the goods. Meanwhile, Toelle returned from the police station and identified the defendant as the man whom he had seen earlier that day.
After a 45-minute discussion, the students released Cooper. Although they did not keep a gun or knife trained on Cooper through the entire incident, Londrigan sat across the table from him with a loaded shotgun on his lap, while Svetlik and Toelle stood near the doorways.
The defendant's midnight deadline came and went; the students telephoned him, and gave him more time. When the stolen property was not returned, they notified the police. On November 15, 1979, Officers Joseph Coughlin and Jon Kluge of the Carbondale Police Department went to the house of the defendant with a warrant for his arrest. His mother admitted the officers. Although the defendant was not at home, the officers saw a record cleaner and a bottle of pills, prescribed to Tim Londrigan, in the defendant's room. The defendant was later taken into custody.
Officer Kluge interviewed the defendant on January 22, 1980, in the Jackson County jail. Part of this interview was taped and transcribed. The defendant admitted that he had taken property from the students' house. He also described his capture by the students and his confession to them.
Before trial, defense counsel moved to suppress both confessions given by the defendant. An evidentiary hearing was held at which the circumstances surrounding these confessions were detailed. The court ordered that the statement given by the defendant to the students be suppressed as involuntary. The statement made to Officer Kluge was held admissible. No appeal was taken from the suppression order.
At trial, the People introduced the testimony of Carmeline Kueker, Greg Toelle, Tim Londrigan, Bill Svetlik, and Carbondale police officers Robert Scott and Joseph Coughlin. During the testimony of these witnesses neither the State nor the defendant made reference to the statement which the defendant had given to the students. However, during the cross-examination of Officer Kluge, defense counsel made extensive and explicit reference to the incident during which it was made.
The People rested after Officer Kluge's testimony. The defendant testified that he had heard about the burglary from an acquaintance named Kim Traylor. Traylor, who allegedly told the defendant that he and someone named Richard had broken into the house, also told him where he had hidden the stereo. According to the defendant, he went to the house to recover this property when he was apprehended by the students. The defendant was examined by his attorney on this incident.
The defendant's mother was called as a witness for the defense. She noted that Kim Traylor had indeed visited the defendant on the afternoon of the burglary. Finally, Toelle was asked to identify the record cleaner taken from defendant's house as his. The defense rested after these witnesses.
In rebuttal, the People introduced further testimony from Officer Kluge and Greg Toelle. Officer Kluge recounted the circumstances surrounding the defendant's statement to him. He stated that the defendant had admitted to the burglary, but he did not refer to the defendant's statement to the students. The People offered the transcribed statement into evidence, but it was not admitted, pursuant to the defendant's objection.
Greg Toelle's rebuttal testimony is reproduced here in its entirety:
By MR. STRONG [Assistant State's Attorney]
Q. State your name again for the record.
Q. Mr. Toelle, I would like to refer your attention back to November 13, 1979, at approximately 5:00 in the evening, 5:00 or 6:00 in the evening at your house. At that time were you, did you have a conversation with the defendant in this case, David Cooper?
Q. Who else was present when that conversation took place?
Q. And during the course of that conversation did Mr. Cooper deny any involvement he had had in the burglary at your house?
Q. Did he in fact sir, admit that he had indeed gone ...