APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
548 N.E.2d 743, 192 Ill. App. 3d 387, 139 Ill. Dec. 358 1989.IL.1973
Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.
JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
Following a jury trial, the defendant, Carl Bradley, was found guilty of the offense of possession of a stolen motor vehicle and was sentenced to five years' imprisonment. Defendant now appeals from that conviction.
On appeal, defendant contends that (1) his fifth amendment right to remain silent and Illinois' evidentiary rule prohibiting the State from commenting on his post-arrest silence were violated; (2) there was error where the jury was not instructed that the State bore the burden of proving that the defendant intended to permanently deprive the victim of the use or benefit of his automobile; (3) he received ineffective assistance of counsel where his attorney did not subpoena certain witnesses who would have testified in his favor; and (4) the statute under which he was convicted is unconstitutional in that it makes a first conviction for possession of a stolen motor vehicle a greater class offense than the more serious offense of auto theft.
At trial, Larry Gordon testified that on September 13, 1986, his wife, Zeolia, owned a 1984 Lincoln Continental automobile. On that date Gordon drove his wife's car to a two-story brick building at Kedzie Avenue and Washington Boulevard in Chicago, where he was scheduled to work painting the building's second-floor windows. At approximately 8 p.m., when he was preparing to stop work for the day, the defendant, Carl Bradley, approached him and the two struck up a conversation. The defendant's girl friend subsequently arrived bringing some sandwiches, and the three of them continued their conversation while eating the sandwiches. The defendant's girl friend left, and the two men continued to talk.
Gordon further testified that when he was getting ready to leave, he offered the defendant a ride and the defendant accepted. The two men drove in the 1984 Lincoln Continental to a nearby gas station where Gordon got out of his car with the keys, pumped for gas and paid for the gasoline. They next stopped at a liquor store where the defendant went in and purchased beer while Gordon waited in the car. Gordon drove the car around the corner, where he stopped the car near an alley. The two men sat in the automobile and talked as they drank several cans of beer and listened to the car radio. During this time Gordon twice left the automobile to urinate in the alley. The first time he left the car he took his car keys with him. The second time he left the car, however, he did not remove the keys from the ignition. As he returned to the car, he observed the defendant driving the car away. Gordon stated he waited for approximately 15 to 20 minutes for the defendant to return. When he did not, Gordon telephoned his wife. Thereafter, Gordon's wife arrived in the couple's other automobile to pick up her husband. The two of them drove around the area for about 20 minutes looking for defendant. When they failed to find the defendant and their car, they returned home and called the police. The police came to the Gordon home, and Gordon filed a report that the automobile was stolen. Gordon further stated that he did not know the defendant's name or where the man lived. At the time the car was stolen, it was not insured since the policy had expired in June 1986.
Zeolia Gordon, the wife of Larry Gordon, testified that the 1984 Lincoln Continental which was stolen was purchased in November 1985 and was registered in her name. On September 13, 1986, her husband left their house in the morning with the car to go to work. Between 11 p.m. and 11:30 p.m. she received a phone call from her husband, who told her the car had been taken. She went to pick up her husband, and they drove around the area looking for the car. After searching unsuccessfully for the car, they proceeded home and notified the police. On September 16, 1986, she was called to the police station at Harrison and Kedzie in Chicago, where she identified her stolen automobile. The rear portion of the car was damaged.
Chicago police officer David Graney testified that he and his partner went to the Gordons' residence at approximately midnight on September 13, 1986. Graney's testimony and written report stated that Gordon told him that he was in a store when his car was stolen. Gordon further told the officer that the ignition was locked and that the keys were not in the vehicle.
Police officer Joseph Scardino and Officer Christopher Prendkowski both testified that they were working together driving an unmarked police car on the night of September 16, 1986. The police car they were using was equipped with a small mobile computer which could be used to check license plate and vehicle identification numbers. At about 10:30 p.m. they noticed a Lincoln Continental automobile which was blocking the entrance to an alley. A check of the license plate number of this automobile revealed that it was listed as stolen. As they passed the stolen automobile, a man and a woman got out of the car. The officers identified the man as the defendant. The officers further observed the two individuals go into an apartment building. The officers kept a watch on the automobile in the hope that the defendant might return to it. Officers Scardino and Prendkowski further testified that after approximately 30 to 45 minutes, defendant again came out of the apartment building, entered the stolen automobile and began to drive away. The officers followed for a short distance until the defendant pulled over to the curb. The defendant was placed under arrest and informed of his rights and taken to the police station. In an interview at the police station, the officers further stated that the defendant told them that he had received the keys for the Lincoln Continental from the owner, who wished to dispose of it so that he might collect the insurance. When the defendant was asked why there were many other keys also on the key ring, the defendant did not respond. I
The defendant first contends that the prosecution improperly brought out at trial that he had exercised his right to remain silent when questioned in police custody in violation of Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. It is well established that use by the prosecution of an arrestee's post- Miranda silence for impeachment purposes is improper. (Doyle, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; United States ex rel. Allen v. Franzen (7th Cir. 1981), 659 F.2d 745, cert. denied (1982), 456 U.S. 928, 72 L. Ed. 2d 444, 102 S. Ct. 1975; People v. Krueger (1980), 82 Ill. 2d 305, 412 N.E.2d 537; People v. Green (1979), 74 Ill. 2d 444, 386 N.E.2d 272; People v. Tate (1978), 63 Ill. App. 3d 119, 379 N.E.2d 693; People v. Nolan (1987), 152 Ill. App. 3d 260, 504 N.E.2d 205.) Illinois also recognizes an impropriety in drawing a negative inference from an accused's exercise of his right to remain silent, both because it impermissibly penalizes the accused for exercising his rights and because an accused's exercise of his right is not inconsistent with a claim of innocence. (People v. Lewerenz (1962), 24 Ill. 2d 295, 181 N.E.2d 99; People v. McMullin (1985), 138 Ill. App. 3d 872, 486 N.E.2d 412.) Further, the principles of Doyle apply even if the defendant remains only partially silent after his arrest and even if he does not take the stand at trial.
In the case at bar, two police officers testified that at the time of defendant's arrest, he was informed of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, including his right to remain silent. Subsequently, the defendant stated that he understood those rights and was transported to the police station. The officers testified that at the police station, the defendant was taken to an interview room and one officer informed him that the vehicle in his possession at the time of his arrest was stolen. The defendant responded that it was not stolen. The defendant was then asked how he obtained the keys to the vehicle, and the defendant responded that he had obtained the keys from its owner, who wanted the car disposed of so that he ...