¶1dissenting:
¶2I respectfully dissent.
¶3Even though I disagree with the majority’s assessment concerning the voluntary character of defendant’s admissions, I must agree that since the People failed to appeal from the trial court’s order of suppression, they are barred from relitigating the issues decided by that order. (People v. Taylor (1971), 50 Ill. 2d 136, 277 N.E.2d 878.) Therefore, we must treat defendant’s confessions as involuntary, and consequently my emphasis is also on Mr. Justice Stewart’s statement that:
“any criminal trial use against a defendant of his involuntary statement is a denial of due process of law ‘even though there is ample evidence aside from the confession to support the conviction.’ ” (Emphasis in original.) (Mincey v. Arizona (1978), 437 U.S. 385, 398, 57 L. Ed. 2d 290, 303, 98 S. Ct. 2408, 2416.)
¶4My objection to the majority’s reasoning is that they have attempted to apply this language in a vacuum without addressing the fact that defense counsel’s trial tactics invited the complained-of testimony.
¶5Although the majority opinion reproduces Greg Toelle’s rebuttal testimony in its entirety, the majority has failed to detail the testimony, procured by defendant, which made the rebuttal testimony necessary. During its examination of witnesses the State made no reference to the admission which defendant had made to the students. However, during cross-examination of Officer Kluge, defense counsel made explicit reference to this incident. The following excerpts reproduce that cross-examination in pertinent part:
“Q. [DEFENSE COUNSEL] Now in the course of that statement, Detective Kluge, isn’t it true that David Cooper told you that he was taken at gunpoint and at knifepoint in the back yard of 316 Linda Drive later that afternoon?
$ « O
A. [OFFICER KLUGE] He said that there were three men that did approach him with those weapons.
Q. Did he also tell you that they took him into the house at 316 Linda Drive later on that day?
A. Pardon?
Q. Did he also tell you that they took him into the house at 316 Linda Drive on that day?
A. Yes sir.
Q. And isn’t it true, Detective, that during that conversation Mr. Cooper told you that there was an agreement reached between the people at 316 Linda Drive and David Cooper as to the return of certain property that was taken?
A. I don’t think it was specifically mentioned during the tape recorded interview. It may have been discussed prior to that.
Q. Is there something that might refresh your memory on that?
A. The transcript undoubtedly would.
Q. Detective Kluge, I am going to hand you what I have had marked as Defendant’s Exhibit No. 1 for identification and ask you to look at that. Can you tell me what that is, sir?
A. This is a copy of the transcript of the tape recorded statement made by David Cooper on January 22nd, 1980.
# # #
Q. And isn’t it true, sir, that Mr. Cooper told you that he was to return the property that had been taken and the police would not be called or contacted as to him being apprehended there, correct?
A. Yes.
Q. And isn’t it true, Detective Kluge, that David Cooper told you that there was a lot of dope taken from the house and that he was supposed to get the dope back?
A. He said something like that, yes sir.
# # #
Q. Isn’t it also true, Detective Kluge, that David told you that when he was apprehended in the back yard at 316 Linda Drive that he was taken into the house by the side door by the garage?
COURT: Let the record show that witness again referring to the transcript, if that is necessary to refresh his memory.
A. I remember that they did take him inside, I don’t remember specifically what door.
Q. And do you recall when you talked to David, did David tell you that when he was taken into the house at 316 Linda Drive that he was there for sometime?
A. Yes.”
¶6The People rested after Officer Kluge’s testimony. Defendant then testified that he had not participated in the burglary but that he had heard about it from an acquaintance named Kim Traylor. Traylor allegedly told defendant that he and someone named Richard had broken into the house and had hidden the stereo in the bushes. According to defendant, he went to the house to recover this property when he was apprehended by the students. Defendant continued his testimony by making extensive reference to what occurred after he was apprehended. As outlined below, defendant testified that he had told the students he had heard about the burglary but had not participated in it. Defendant was examined by his attorney on this incident, as follows:
“Q. [DEFENSE COUNSEL] Did you in fact go to this place on Linda Drive?
A. [DEFENDANT] Yes, I did.
Q. What happened when you got there?
A. Well, as I was going out toward the direction I made up well if the guy sees me in his yard or something I will just tell them I was cutting through over to my guy’s house next door.
Q. What happened when you got to that yard?
A. I never did make it to the back of the yard. I was right about somewhere in the middle of the yard and two guys came toward me with a gun and one of them had a knife.
Q. Are those the two guys that testified here earlier today?
A. Yes.
Q. After those guys came to you with the guns what happened then?
A. I made up, I was just telling them, you know, I came back here, you know. They was telling me that the house had been broken in and then they looked at me and they said, yeah, you look like the one that done it. I told them, I said, well, I came back you know to get the stuff but I didn’t have nothing to do with the burglary. I also told them you know, before this happened, you know, I was trying to make up a bunch of excuses but he wouldn’t go for it you know, because he had a gun on me so I just told him, you know, the very reason I was really came [sic] there for.
Q. After you told him that, Mr. Cooper, what happened then?
A. Well, that is when they led me into the house.
Q. And did you have a conversation with them in the house?
A. Yes, I did.
Q. And what was that conversation about?
A. It was about the stuff that came up missing, about some dope that also came up missing.
Q. And did you have some sort of an agreement with those people?
A. Yes, I did.
Q. What was the agreement?
A. I told them that I would go to the two guys I had talked to earlier in the day and make an agreement with them that if I got the stuff back and some money, you know, that you won’t call the police in on me.
Q. Did they agree to that?
A. Yes, they did.
Q. And did they let you go?
A. Yes, they did.”
¶7It was only after defendant had elicited testimony, indicating that he had denied direct involvement to the students, that the State offered the rebuttal testimony reproduced in the majority opinion. Therefore, defense counsel invited the rebuttal testimony, and it is well established that a defendant can not complain of testimony invited by defense counsel. (People v. Burage (1961), 23 Ill. 2d 280, 178 N.E.2d 389, cert. denied (1962), 369 U.S. 808, 7 L. Ed. 2d 555, 82 S. Ct. 651; People v. Baker (1980), 82 Ill. App. 3d 240, 402 N.E.2d 662.) Accordingly, it has been authoritatively recognized that constitutionally inadmissible evidence may be allowed in rebuttal under circumstances such as occurred here. This is because “defense tactics which likewise seek to gain extraordinary advantage from the fact of suppression of certain evidence may also be deemed to have ‘opened the door’ … [because there was] a calculated effort to create a high degree of confusion based upon knowledge that any adequate explanation would require some reference to evidence previously suppressed.” (3 LaFave, Search and Seizure §11.6(b), at 711-12 (1978).) Any other rule of law would be ill-founded, because without such a rule the prosecution would be powerless to correct the misrepresentations which a criminal defendant could otherwise make with impunity.
¶8In Illinois this principle has been held to apply to the introduction of a statement (People v. Green (1972), 9 Ill. App. 3d 280, 292 N.E.2d 65), and the failure to make a statement (People v. Lykins (1978), 65 Ill. App. 3d 808, 382 N.E.2d 1242, affirmed (1977), 77 Ill. 2d 35, 394 N.E.2d 1182, cert. denied (1980), 445 U.S. 952, 63 L. Ed. 2d 787, 100 S. Ct. 1602), even though that evidence would otherwise be constitutionally inadmissible. It has also been used to bar objection on appeal to an allegedly involuntary statement used at trial. (People v. Franklin (1966), 74 Ill. App. 2d 392, 220 N.E.2d 872.) In fact, the rule that defendant may not urge reversal on the basis of error which he invited at trial is such a basic tenet of American criminal procedure that Justice Stewart’s statement in Mincey is, beyond doubt, qualified by that rule. (Lawn v. United States (1958), 355 U.S. 339, 2 L. Ed. 2d 321, 78 S. Ct. 311; Dennis v. United States (1951), 341 U.S. 494, 95 L. Ed. 1137, 71 S. Ct. 857; United States v. Steele (8th Cir. 1979), 610 F.2d 504.) Consequently, if defendant invited the use of Toelle’s rebuttal testimony, he cannot claim error from that use.
¶9An examination of the record, especially those portions reproduced here, persuades me that defendant did elicit the evidence of which he now complains. Defense counsel attempted to discredit defendant’s later confession to police by showing that defendant gave it only after: (1) being told by police that he would be better off if he cooperated; and (2) having originally denied direct involvement in the burglary to the students. In procuring this testimony defense counsel not only laid bare the facts and circumstances surrounding the admissions to the students but also introduced defendant’s version of what was said while attempting to keep the prosecution mute. I will not pass judgment on this trial tactic. However, I do not think that the defendant is entitled to a new trial because of the State’s use of rebuttal testimony concerning the same events.
¶10The majority opinion has the effect of turning the trial court’s order of suppression into a one-sided prohibition. Under the majority’s rationale defendants will be free to make virtually any representation concerning a suppressed event, and the State cannot attempt to impeach that statement without risking reversal. For these reasons I would affirm.