Appeal from the Circuit Court of Winnebago County; the Hon.
John C. Layng, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, Michael McMullin, was found guilty of burglary by a jury in the circuit court of Winnebago County and was sentenced to a three-year term of imprisonment. Defendant appeals contending that (1) questions by the prosecutor while cross-examining defendant and a comment during the prosecutor's closing argument regarding defendant's failure to protest his innocence to the police officer who arrested him were, even in the absence of prior Miranda warnings, impermissible under Illinois evidentiary law or, alternatively, under the State constitution (Ill. Const., art. I, sec. 10); (2) the trial court erred in not allowing defendant to testify about his state of mind at the time he told a police officer he "should be getting a complaint for possession of stolen property instead of burglary"; (3) the trial court erred in not allowing defense counsel to ask a prospective juror, "And do you understand that if there were two reasonable theories, one pointing toward guilt and the other towards innocence, it is your duty to vote not guilty?" and (4) defendant was denied a fair trial by a closing argument by the prosecutor which included misstatements of evidence and other improper comments.
Late the night of February 9, 1984, Ms. Charlotte Ellis, awakened by the sound of a running engine, looked out her kitchen door window and saw two men and a pickup truck in front of her garage. Ms. Ellis was sure the men saw her because they stopped and looked at her. She woke her husband, Lawrence, and they both saw the truck leaving with two ladders hanging out the back. Inspection of the garage revealed that two ladders and a snowblower were missing. The Ellises returned to the house and telephoned the police to report the burglary.
A short time later, Officer Steven Rudolph, who had received a police call about the burglary, noticed a pickup truck with its lights off travelling in the opposite direction. He made a U-turn and turned on his red lights and the truck stopped. Inside the truck's cab were defendant, who was driving, Vernon Taylor, and Roger Brien. In the back of the truck were a snowblower, which Mr. Ellis identified as the one taken from his garage, and two lawn mowers.
The thrust of the defense was that defendant's two companions had committed the burglary and that defendant had been unaware they were doing so both prior to and during the commission of the offense. (See Ill. Rev. Stat. 1983, ch. 38, pars. 5-2(c) and 19-1(a).) In support of this defense defendant testified, inter alia, that he stopped at Taylor's house around 10 p.m. on February 9, 1984, and drank a beer with Taylor and Brien. Defendant owned a pickup truck and had, earlier in the week, helped Taylor move. Taylor, as he had earlier in the day, asked defendant to help move some things stored at Taylor's landlord's house. Defendant said it was too late and offered to help another time, but Taylor was intoxicated and insistent, so defendant agreed to help that night.
Defendant, Taylor and Brien left Taylor's home and defendant, driving at Taylor's direction, drove them in the truck to the garage where they were seen by the Ellises. Defendant stayed in the truck and paid no attention as Taylor and Brien loaded things in the back. After about five minutes Taylor and Brien were finished and they drove away. As they were driving down the street, the truck's tail-gate fell open and defendant looked back. Defendant saw they were carrying a 40-foot extension ladder which stuck far out the back of the truck. Defendant stopped and, after arguing with Taylor about it, unloaded the ladder by himself and set it against a tree. They drove a few blocks toward Taylor's residence and were then stopped by Officer Rudolph.
Defendant explained that his lights may have been out due to a faulty blinker-dimmer switch which sometimes caused his lights to malfunction. He specifically testified that he had no knowledge prior to or during the offense that anyone inside his truck planned to take anything that did not belong to them and that he did knowingly participate in the burglary.
At trial, Officer Rudolph testified that when he was served with a complaint charging him with burglary defendant said he "should be getting a complaint for possession of stolen property instead of burglary." Defendant testified that he did not recall making the statement but acknowledged that he could have. On cross-examination, the prosecutor asked defendant about this, and then proceeded:
"MR. WHITE [prosecutor]: But you did not tell the officer, `Hey, look, you should not charge me with burglary because I don't know anything'
MR. LIGHT [defense counsel]: (Interrupting) Objection.
THE COURT: Wait until he finishes his question, sir.
MR. WHITE: You did not tell the officer at that time that, `Look, you shouldn't charge me with burglary because I don't know what's going on here?'
THE COURT: Overruled; he ...