¶1concurring in the decision:
¶2I choose to take a more simplistic, pragmatic approach to this bench-trial case. While I agree with the result reached by my colleague, Justice Heiple, I find that the post-arrest admissions and testimony of the defendant, while inconsistent with self-defense, are not totally and directly contradictory to her story at trial, and that therefore it was error for the trial court to overrule the defendant’s objections to the prosecutor’s inquiry as to when defendant first told anyone about the victim’s gun.
¶3Initially the defendant indicated that the victim Roach was attacked at some other place, and then at trial indicated that she had lied when she said that. At trial the defendant admitted that she shot Roach. Her prior arrest record, including four prior convictions involving dishonesty, were known to the trial judge, and it is axiomatic that the trial judge need not give any credibility to her testimony. Further, the testimony of other eyewitnesses does not indicate that Roach was armed.
¶4In this case there was substantial evidence of guilt; in fact, the evidence is overwhelming. (See People v. Green (1979), 74 Ill. 2d 444, 386 N.E.2d 272.) The defendant admitted the acts forming the basis for armed violence, the only crime of which she was convicted. The trial judge did not have to believe any aspects of her self-defense claim, including defendant’s totally unsupported allegation that the victim Roach had a gun.
¶5I would find the trial court’s admission of evidence of defendant’s post-arrest silence to have been error, but harmless beyond a reasonable doubt, and therefore not reversible.
¶6dissenting:
¶7I respectfully dissent. The critical issue is whether the defendant’s statement at trial, her statement that one of the victims had a gun, is manifestly inconsistent with the statements she made after her arrest. (People v. Beller (1979), 74 Ill. 2d 514, 522-25, 386 N.E.2d 857; People v. Rehbein (1978), 74 Ill. 2d 435, 441-42, 386 N.E.2d 39, 42, cert. denied (1979), 442 U.S. 919, 61 L. Ed. 2d 287, 99 S. Ct. 2843; People v. Timmons (1983), 114 Ill. App. 3d 861, 449 N.E.2d 1366.) After the arrest, defendant Brooks did not state that her victims were unarmed, or in any other way indicate or suggest that. If she had, then clearly there would be a manifest inconsistency between her trial testimony and her post-arrest statements. The record indicates, however, that the question of whether her victims were armed did not come up at all in those post-arrest statements. And, in fact, the majority does not dispute the lack of inconsistency. They accept that there is no inconsistency between the statements admitting the shooting and Brooks’ subsequent claim of self-defense at trial.
¶8Rather, the majority believes that 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,” which is the rule applied by the court in People v. Better and by this court in People v. Timmons. I do not believe that Anderson v. Charles has such effect upon the rulings of the Illinois Supreme Court. In Anderson v. Charles, the United States Supreme Court found the requisite manifest inconsistency. The defendant in that case made post-arrest statements indicating that he had stolen an auto off the street “about two miles from the local bus station.” At trial he testified that he had stolen the auto from a tire store next to the bus station. The questions by the prosecutor focused upon that clear inconsistency and when and why the defendant changed his mind. The court found that the questions were designed to elicit an explanation of prior inconsistent statements. There is no distinction between the rules applied in Anderson v. Charles and those stated by our supreme court in Rehbein and Beller. The facts in Anderson and Rehbein are very similar, as are the courts’ decisions. I cannot adopt the majority’s construction of Anderson, and find that Anderson stands for the proposition that “[w]hen 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.” In Anderson, the court applied the manifest inconsistency standard, and found the inconsistency present. The majority would apparently do away with that standard, and substitute a vague, indefinite one based upon whether post-arrest statements “comport” with trial testimony.
¶9The issue in Anderson which the United States Supreme Court emphasized was whether the questions by the prosecutor were designed to draw meaning from silence or were designed for the purpose of eliciting an explanation of inconsistent statements. In the instant case, where, as the majority concedes, there were no inconsistent statements, it is difficult to conclude that the prosecutor was seeking to elicit an explanation of inconsistent statements. Rather, he was quite clearly seeking to draw attention to the fact that the defendant had not said anything previously about the victim’s gun and her self-defense claim. He was seeking to draw attention to her previous silence on these matters. This was reversible error. That result, I believe, is dictated by the decisions in Anderson v. Charles, People v. Beller, People v. Rehbein, and People v. Timmons. For this reason, I respectfully dissent.