Appeal from the Circuit Court of Kankakee County; the Hon.
John F. Michela, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE DECISION OF THE COURT AND THE FOLLOWING OPINION:
Defendant Susan Brooks was convicted of armed violence at a bench trial in Kankakee County. She was sentenced to a mandatory minimum term of six years of imprisonment.
At trial, the defendant testified that she was at home in her trailer on the evening of September 28, 1983, when the two alleged victims pulled into her driveway. According to the defendant, she went out to their car, took a drink of their whiskey, and all three then went into her trailer. They sat down and began talking and an altercation over children's clothing ensued. According to the defendant, after approximately 15 minutes had passed one of the alleged victims stood up, as if to leave, and pulled a gun out of her pants. The defendant then grabbed her gun which was by the couch and shot the victim in the arm. According to the defendant, she did this to prevent the victim from shooting her. The defendant also denied striking the other alleged victim in the back of his head with a rifle.
Upon arrest, the defendant was given Miranda warnings and taken to the county detention center. At that time, the arresting officers testified, the defendant said they had "no business arresting her and that next time she would kill us all or them all." Later on at the detention center, as one of the officers attempted to quiet the defendant, she told the officer that she "did it all." After a fresh set of Miranda warnings, the defendant told the officer that she had hit one individual with a gun, shot another, and that "next time, she'd kill them all."
On cross-examination, the prosecutor elicited a denial that the defendant had ever made these admissions to an officer. The prosecutor continued by asking when she first mentioned that one of her victims had a gun. The defendant's objection that this was an improper attempt to impeach by means of protected post-arrest silence was overruled. It is from this alleged error that the defendant appeals.
The leading case in this area is Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240. There, the Supreme Court barred the use of defendant's post-arrest silence against him at trial. The principal focus of the opinion was that post-Miranda silence was "insolubly ambiguous," in that one could never be certain whether defendant's silence was, in whole or in part, an exercise of the right to remain silent.
A line of cases that developed from Doyle dealt with the situation where defendant made some statements to the police, but gave additional or different testimony at trial. In People v. Rehbein (1978), 74 Ill.2d 435, 386 N.E.2d 39, defendant was charged with deviate sexual assault and unlawful restraint. He originally gave the police an alibi, but defended on the basis of consent at trial. The prosecution cross-examined him on his failure to mention the victim's consent to the police. The supreme court affirmed Rehbein's conviction. The gist of the holding is that where defendant's statements at trial are wholly inconsistent with prior statements, then impeachment is proper, as with any other prior inconsistent statement.
Defendant argues that the Rehbein holding mandates a reversal in this case, as the statements admitting the shooting and hitting of the victims with a gun are not inconsistent with a claim of self-defense. While this is undoubtedly true, the literal holding of Rehbein and its progeny has no application here.
The case of Anderson v. Charles (1980), 447 U.S. 404, 65 L.Ed.2d 222, 100 S.Ct. 2180, significantly weakens the force of the Rehbein holding. There, defendant gave a story to the police which was wholly inconsistent with his story at trial. Cross-examination was directed at the defendant's failure to tell the latter version to the police. While these facts are identical to Rehbein in all relevant respects, the court did not tailor its holding so narrowly:
"Doyle [Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240] bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." Anderson v. Charles (1980), 447 U.S. 404, 408, 65 L.Ed.2d 222, 226, 100 S.Ct. 2180, 2182.
The focus of the court in Anderson was clear. When a defendant who has been advised of his right to remain silent speaks, he cannot complain of impeachment which directly attacks statements made at trial which do not comport with statements given to the police.
Defendant argues that our recent decision in People v. Timmons (1983), 114 Ill. App.3d 861, 449 N.E.2d 1366, is controlling. In Timmons, defendant was charged with delivery of a controlled substance. Upon arrest, defendant admitted the purchase of "acid," but denied delivering to anyone. At trial, an alibi defense was raised specifying defendant's whereabouts and activities at the time of the alleged delivery. The prosecutor asked defendant why he waited until trial to tell this story. We reversed and remanded due to an absence of a threshold inconsistency between trial testimony and statements given to the police.
Timmons is distinguishable from the case at bar. There, defendant's failure to specify the facts underlying his alibi to the police is exactly what Miranda and Doyle were designed to protect. There was complete consistency between a denial of the acts underlying the offense and an alibi. Thus, any attempt at impeachment necessarily went to defendant's silence upon arrest, as no prior inconsistent statements were made. Here, however, defendant's version as originally given was not wholly consistent with the later version, as the additional fact of self-defense was not mentioned at first. More importantly, though, is the point raised in Anderson. Miranda and Doyle do not protect the defendant who chooses to speak after being warned to remain silent. Furthermore, going beyond the Anderson holding, defendant here actually incriminated herself after being apprised of her rights. It is indeed strange for the defendant to claim a violation of her right to a fair trial based on a Miranda-type error when she waived her Miranda rights by incriminating herself.
It appears at first that this case deviates from two factually identical First District cases (People v. Foster (1980), 81 Ill. App.3d 915, 401 N.E.2d 1221; People v. Robinson (1976), 44 Ill. App.3d 447, 358 N.E.2d 43). However, both cases were decided before Anderson. Also, Robinson was a case where defendant effectively remained completely silent. Caught with a smoking gun, defendant said, "I know my rights. I did it, but I'm not going to tell you why." Since Robinson's shooting of the victim was obvious, his ...