Appeal from the Circuit Court of Winnebago County; the Hon.
John C. Layng, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Winnebago County, defendant, Terry Chriswell, appeals from his conviction of burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-1). Defendant presents four issues for review in this court: (1) whether the defendant's constitutional right to remain silent was violated when the prosecutor elicited testimony regarding the defendant's post-arrest silence; (2) whether the prosecutor's cross-examination of defendant regarding a certain bill of sale which defendant had taken to his attorney constituted a violation of the attorney-client privilege; (3) whether Officer Wolford's destruction of certain longhand notes deprived defendant of his constitutional and statutory rights to pretrial discovery and cross-examination; and (4) whether this cause should be remanded for findings of fact regarding a potential conflict of interest in the public defender's office.
On May 12, 1983, James Coffman went to work at the Ed Thorne Hardware Store, located at 7928 North Second Street, Machesney Park, at approximately 5:45 a.m. When he arrived there he discovered that during the night there had been a forcible break-in at the store, and several things had been stolen from within. Among these items were several high caliber handguns which were being held for sale in a locked glass gun cabinet. Some of the glass had been broken out of the cabinet by the burglar, apparently in order to gain access to the handguns. Police were called, and a triangular shard of glass was discovered inside the gun cabinet upon which three distinct fingerprints were found. The prints appeared to be very fresh. Sheriff's deputy Stephanie Eisenach testified that she had seen a car, whose plates were registered to Terry Chriswell, parked on a service drive about a block and a half south of Thorne's between 10 p.m. and midnight on May 11, 1983. She determined that Chriswell's home address was nowhere near to where she saw the car parked. Suspecting that Chriswell might have been involved in the burglary, the sheriff's department compared certain known fingerprints of Terry Chriswell which were on file at the sheriff's department with the three latent prints left on the piece of glass. A positive match of all three fingerprints was made.
On June 17, 1983, approximately five weeks after the burglary, defendant was picked up by the police and was advised of his Miranda rights. Defendant signed a written waiver-of-rights form. He was then questioned about his car's being in the vicinity of the burglary and also about when he had last been at Thorne's before the burglary date. According to Officer Wolford, who conducted the initial interview, Chriswell denied the burglary and stated that he had not been to Thorne's for some time. During a later interview on June 23, 1983, with another officer, defendant stated that he had not been to the burglarized store for over a year and a half. Defendant also informed Officer Wolford that he had sold his car before the date of the burglary but he did not know to whom he had sold it. Wolford then asked whether defendant had transferred the plates, and defendant responded that he thought he had. Wolford then informed defendant that the vehicle was still registered in his name, and defendant did not respond.
On cross-examination, Officer Wolford testified that the interview with defendant lasted approximately 45 minutes to an hour, and that he had prepared the report of the interview four days later from certain hand-written notes taken during the interview. After preparing the report, Wolford destroyed his notes.
Following the presentation of the State's witnesses, two certified documents from the Secretary of State were admitted into evidence. One was a certified copy of an application for 1983 license filled out by the defendant. The license was issued October 5, 1982. The other document, dated July 26, 1983, was a certified copy of the title history to the vehicle in question and contained no evidence of a sale of the vehicle by Terry Chriswell.
Defendant presented four witnesses in his behalf. Carol Chriswell, defendant's sister, testified that she purchased the vehicle in question from Terry on April 22, 1983, about three weeks before the date in question. She stated that Terry removed the license plates at that time. Carol further stated that she did not register the vehicle right away. Carol Kilpin, a notary public and friend of defendant, testified that she notarized a bill of sale for the car on April 22, 1983. A bill of sale was admitted into evidence. Betty Chriswell, defendant's mother, testified that on the night in question Terry was at home with her.
Defendant testified that on the evening in question he was at home. He corroborated his sister's testimony regarding the sale of the vehicle, and the fact that he threw the license plates away at his sister's house. Defendant also testified that the last time he had been at Thorne's was around the first week in May, when he went there to buy some fishing lures. He stated he may have passed the gun case on his way to the fishing department. Regarding his interviews with the police, defendant stated he told the officers he had not been to Thorne's for "a few months anyway." He denied his involvement in the instant burglary, but acknowledged a previous conviction for burglary in 1979.
On cross-examination, defendant was asked when he first brought the bill of sale to his lawyer's office. Defendant responded, over his attorney's objection, that he brought it to his attorney about one week prior to trial. He was also asked during cross-examination whether he told the police during his interviews about his alibi on the evening in question. Defendant first responded, "I don't remember if that ever came up or not." However, later he stated, "I believe I could have told them that."
Defendant was subsequently convicted of burglary, and after a hearing in aggravation and mitigation, he was sentenced to a term of six years' imprisonment in the Department of Corrections. This appeal follows.
• 1 Defendant first contends that his constitutional rights to silence and to due process were violated when the State was permitted to elicit testimony regarding defendant's post-arrest silence. Specifically, defendant argues that his constitutional right not to incriminate himself was violated when Officer Wolford was permitted to testify as to defendant's silence when confronted with the fact that the suspect vehicle was still registered in defendant's name. Defendant also argues that his due process rights were violated when the State was permitted to cross-examine defendant regarding his failure to inform the authorities of his alibi during the post-arrest interviews. (See Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240; 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.) Defendant claims that in the absence of a direct inconsistency between the exculpatory story offered at trial and defendant's pretrial statements, the cross-examination was impermissible.
Defendant's initial argument regarding the license plate registration is premised upon the theory that his silence in the face of Officer Wolford's statement was consistent with the exercise of his fifth amendment rights and merely demonstrated his desire to remain silent during police questioning. Although defendant has cited the Federal case of United States v. Williams (6th Cir. 1981), 665 F.2d 107, as support for his position, this case is not binding on us. Illinois cases dealing with this issue have held that where, after being advised of the Miranda warnings, a defendant chooses to give an explanation to the police regarding a certain subject matter, the defendant has not invoked his fifth amendment rights on that matter. (See People v. Rickard (1981), 99 Ill. App.3d 914, 917-18, 425 N.E.2d 1317 (defendant's statement, "I won't tell you," was construed as not being an indication of the desire to remain silent); see also People v. Trumbull (1978), 67 Ill. App.3d 262, 265, 384 N.E.2d 842.) In such a case, the mere refusal to answer a single question is not construed as an expression of the defendant's desire to remain silent. (People v. Rickard (1981), 99 Ill. App.3d 914, 917, 425 N.E.2d 1317.) Rather, "a more positive manifestation of a desire to invoke the protections of the fifth amendment is required * * *." People v. Rickard (1981), 99 Ill. App.3d 914, 917-18, 425 N.E.2d 1317; see also People v. Trumbull (1978), 67 Ill. App.3d 262, 265, 384 N.E.2d 842.
We believe the foregoing authorities control the instant case. Defendant here did not invoke his right to silence when he was questioned by Officer Wolford about the alleged sale and registration of the vehicle in question. To the contrary, defendant indicated a willingness to talk about this subject and told the officer details as to when he sold the vehicle, that it was a cash sale, that he could not remember to whom he had sold it, and that he thought he had transferred the plates on the car. In view of defendant's substantial statement on this matter, it cannot be said that the defendant invoked his right to remain silent on this subject. It is undisputed that defendant was advised that he had a right to silence, that he understood those rights, and that he subsequently signed a waiver-of-rights form and spoke with the police. Since it was proper for defendant's statements to be presented to the jury, we believe that the surrounding circumstances tending to show the reliability of those statements was also properly before the jury. (See People v. Gan (1979), 76 Ill. App.3d 961, 963, 395 N.E.2d 411.) "Once Miranda rights are voluntarily waived the jury may consider the entire communicative process in order to judge the meaning and accuracy of the volunteered statements." (76 Ill. App.3d 961, 963, 395 N.E.2d 411.) Thus, we conclude that the officer's reference to defendant's silence regarding the license plate registration was not error.
• 2 The second prong of defendant's first argument is that the prosecutor's cross-examination of defendant regarding his failure to mention his alibi contravened the rule enunciated in Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240. The State again argues that comment upon this ...