{ "id": 3550046, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE CIHAK, Defendant-Appellant", "name_abbreviation": "People v. Cihak", "decision_date": "1988-04-26", "docket_number": "No. 86-2955", "first_page": "606", "last_page": "618", "citations": [ { "type": "official", "cite": "169 Ill. App. 3d 606" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "403 N.E.2d 641", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 1079", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3222414 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/1079-01" ] }, { "cite": "447 U.S. 231", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183056 ], "weight": 3, "pin_cites": [ { "page": "240-41" }, { "page": "95-96" }, { "page": "2130" } ], "opinion_index": 0, "case_paths": [ "/us/447/0231-01" ] }, { "cite": "235 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. App. 2d 436", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2820177 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/91/0436-01" ] }, { "cite": "361 N.E.2d 632", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2972534 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0719-01" ] }, { "cite": "408 N.E.2d 47", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 417", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3187171 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0417-01" ] }, { "cite": "492 N.E.2d 517", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 885", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3451716 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0885-01" ] }, { "cite": "121 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "3 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2696705 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/3/0357-01" ] }, { "cite": "223 N.E.2d 117", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "36 Ill. 2d 320", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377150 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-2d/36/0320-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 9, "year": 1967, "pin_cites": [ { "page": "611" }, { "page": "94" }, { "page": "2241" }, { "page": "611" }, { "page": "94" }, { "page": "2241" } ], "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] }, { "cite": "184 N.E.2d 841", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "25 Ill. 2d 219", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5351359 ], "weight": 2, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0219-01" ] }, { "cite": "193 N.E.2d 784", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "29 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2824441 ], "weight": 3, "year": 1962, "pin_cites": [ { "page": "135" }, { "page": "135" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0132-01" ] }, { "cite": "358 N.E.2d 280", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 459", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2816636 ], "weight": 5, "pin_cites": [ { "page": "462" }, { "page": "462" }, { "page": "464" }, { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0459-01" ] }, { "cite": "470 N.E.2d 1222", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3526112 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "583" }, { "page": "579" }, { "page": "584" }, { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0574-01" ] }, { "cite": "558 F.2d 1332", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 946683 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "1335" } ], "opinion_index": 0, "case_paths": [ "/f2d/558/1332-01" ] } ], "analysis": { "cardinality": 1015, "char_count": 29083, "ocr_confidence": 0.775, "pagerank": { "raw": 7.489169720495102e-08, "percentile": 0.4459636449847076 }, "sha256": "712bcec703f60beae3a66d5773bfa6fbf144f2946cd7d6369fe10a6c8d1be0dc", "simhash": "1:9a28b4fa734ad5a5", "word_count": 4652 }, "last_updated": "2023-07-14T17:11:49.091625+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE CIHAK, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STAMOS\ndelivered the opinion of the court:\nDefendant, Wayne Cihak, was charged with using a fictitious name and making a materially false statement on an Illinois application for a certificate of car title. The trial court found defendant guilty. Defendant appeals contending that the court erred in admitting evidence of defendant\u2019s prearrest silence and that he was not proven guilty beyond a reasonable doubt.\nOn December 19, 1984, Chicago police officer John Miller arrested defendant for knowingly permitting \u201canother to register a vehicle with a fictitious name and address with the Illinois Secretary of State.\u201d Defendant\u2019s information charged that defendant was in violation of section 4 \u2014 105(a)(5) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 4 \u2014 105(a)(5)). Section 4 \u2014 105(a)(5) provides that it is a violation for:\n\u201c[A] person to use a false or fictitious name or address or altered, forged, counterfeited or stolen manufacturer\u2019s identification number, or make a material false statement, or fail to disclose a security interest, or conceal any other material fact on any application for any manufacturers statement of origin, certificate of title, junking certificate, salvage certificate, registration card, license plate, temporary registration permit, or registration sticker or commit fraud in connection with any application under this Act.\u201d Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 4-105.\nThe following evidence was adduced at trial. On December 13, 1984, Officer Miller, who was assigned to a special law enforcement team that investigated professional organized auto theft criminal activities, received a telephone call from Sergeant O\u2019Keefe of the Skokie police department. Pursuant to this telephone conversation, Officer Miller obtained a 1983 Buick Regal (Buick) with Illinois license plate number FSN 980 from the Skokie police department and brought it to the auto pound.\nOfficer Miller commenced an investigation of the theft of the Buick. He discovered that the Buick\u2019s vehicle identification number (VIN) was 1G4AJ47AEH102499. The Secretary of State\u2019s office sent Officer Miller a license plate application form and a certified copy of the title for the Buick. While the license number on the chain of title was the same license number that was on the Buick, the VIN number on the chain of title was not the same VIN number that Officer Miller found on the Buick.\nThe last document on the certified chain of title was an application for an Illinois title dated June 22, 1984. The application referred to the Buick and listed the VIN number as 1G4AJ47A7DH837712. The name of the applicant was John Daves or Davis (Daves) and the address that appeared below Daves\u2019 name was 1520 North Sheridan Road, Wilmette, Illinois, 60091. It appeared that Daves had signed the application. The application listed the Buick\u2019s seller as Ideal Auto Sales of 2853 South Kedzie and revealed that the Buick\u2019s title was to be mailed to C&J Automotive Enterprises, Ltd., 1780 North Milwaukee Avenue, Chicago, Illinois, 60647.\nUpon receiving this information, Officer Miller endeavored to locate Daves. Officer Miller took the driver\u2019s license number that was assigned to that name and placed it into the computer. The computer revealed that there was no record of that driver\u2019s license number. Officer Miller\u2019s partner endeavored to locate Daves at the Wilmette address.\nOn December 19, 1984, Officer Miller and Sergeant Patrick Mc-Cafferty proceeded to C&J Automotive Enterprises, Ltd., located at 1780 North Milwaukee Avenue in Chicago. Defendant is the co-owner of C&J Automotive Enterprises, Ltd., doing business as Milwaukee Avenue Auto Parts. Defendant was present in the store; Officer Miller and Sergeant McCafferty then questioned defendant.\nOfficer Miller gave defendant the information regarding the Buick and the fact that the title had been mailed to defendant\u2019s address. He asked defendant to explain it. Defendant answered that he remembered it and that John, a friend of his, had asked him to secure an Illinois title for the vehicle and that it was necessary that a registered Illinois dealer apply for an Illinois title for the vehicle. Defendant stated further that he hand carried the application for title to the Secretary of State\u2019s office and that he paid the $550 tax and $3 application fee; Daves later reimbursed him in full.\nOfficer Miller asked defendant who John Daves or Davis was and defendant responded that Daves owned a body shop on Lawrence Avenue and that defendant had seen Daves at automobile auctions. Officer Miller then asked defendant to telephone Daves so that Officer Miller could speak to him. Defendant called Daves but hung up the phone after defendant was told that \u201cJohn\u201d was not there and would be back until later that afternoon.\nOfficer Miller asked defendant to redial the number so that Officer Miller could confirm what defendant had just told him. Defendant complied; he redialed and handed the telephone over to Officer Miller. Officer Miller did not recognize the voice of the person who answered the telephone, but he asked if there was a person named John Daves or Davis there. The person on the telephone answered that there was no one there with that name. Officer Miller asked who was the owner of the shop and was told that it was John Hernandez.\nOfficer Miller hung up the telephone and confronted defendant. Officer Miller told defendant that he felt that defendant was trying to deceive him. Officer Miller told defendant that he did not believe that there was such a person as John Daves at that telephone number and that he believed that defendant attempted to deceive him when defendant made the first call and hung up before Officer Miller had a chance to talk to the party. Defendant made no response; he remained silent. At this point, Officer Miller placed defendant under arrest, advised him of his rights, and transported him to the police station at 1121 South State Street in Chicago.\nAfter defendant was brought to the State Street police station, Officer Miller asked defendant if defendant would look at some photographs to see if he could identify the person that he knew as John. Defendant identified the photograph of one Joseph Mack and told Officer Miller that this was the person that he knew as John.\nDefendant testified to the following. Defendant is the co-owner of Milwaukee Avenue Auto Parts. Milwaukee Avenue Auto Parts holds a wrecker\u2019s, rebuilder\u2019s, and dealer\u2019s license. Its primary business is selling auto parts, and side businesses include building and repairing automobiles as well as selling them.\nDefendant attends automobile auctions regularly and uses his dealer\u2019s license to purchase complete cars from various dealers without becoming involved in paying taxes. John (defendant never learned what \u201cJohn\u2019s\u201d last name was) first approached defendant at an auction. Thereafter, John would buy cars and parts from Milwaukee Avenue Auto Parts. At an auction, John asked defendant about a car that John had purchased. The State allegedly would not issue John a title for the car because he was no longer a dealer.\nJohn brought a Minnesota title to defendant along with his application for an Illinois title and bill of sale from Ideal Auto Sales. John filled out and signed the application. The Secretary of State\u2019s office would not accept the application because it was outdated. Defendant received a current application and filled it out himself. Defendant left the original application and the new application at the front of his auto shop near the cash register so that John could sign it. John signed the application and took the original application with him; defendant was not present when John signed the application.\nDefendant brought this application to the Secretary of State\u2019s office and paid the $550 tax and $3 application fee from his own funds. The back of the application was stamped with the C&J Auto rubber stamp. Thus, defendant would receive the title after it was processed. About one month later, defendant received the processed title; John then reimbursed defendant and took the title. Defendant, however, did not personally deliver the title to John.\nIn addition, defendant testified that the law requires him to keep a record book of the cars that he buys and sells. In the record book, defendant records from where and from whom he purchased the car. If he sold or scrapped the car, defendant lists to whom the car was sold or scrapped.\nNo entry for the Buick existed in defendant\u2019s record book. Defendant contended that the Buick was never recorded because defendant\u2019s company never bought the Buick. He further testified that he never inquired of John regarding his last name.\nAfter a finding of guilty, the trial judge concluded with the following words:\n\u201cI find the defendant\u2019s actions, statements and explanations to be unworthy of belief and I find the State\u2019s evidence, including the defendant\u2019s admission that he filled out the application is an attempt to deceive the police in saying that there was a John Daves located on Lawrence Avenue, the false exculpatory statement and all the other circumstantial evidence, the totality of the evidence in this case presented by the State to be sufficient.\nThus, there will be a finding of guilty of fictitious name for vehicle titled in the manner and form charged. Finding of guilty.\u201d\nDefendant\u2019s motion for a new trial was denied and the court then conducted a hearing in regard to aggravation and mitigation. Defendant was sentenced to 18 months\u2019 probation with permission to report by phone, and a $500 fine and costs.\nDefendant sets forth two arguments on appeal. First, defendant contends that the court improperly admitted evidence over his objection regarding his prearrest silence. Defendant also contends that he was not guilty beyond a reasonable doubt of registering a vehicle under a fictitious name.\nThe trial court properly admitted evidence of defendant\u2019s prearrest silence. When an incriminating statement is made in the presence and hearing of the accused, and the accused fails to deny, contradict, or object to the statement, both the statement and the fact that the accused failed to deny it are admissible as evidence of the accused\u2019s acquiescence in its truth. (United States v. Mitchell (8th Cir. 1977), 558 F.2d 1332; People v. Miller (1984), 128 Ill. App. 3d 574, 583, 470 N.E.2d 1222; People v. Morgan (1976), 44 Ill. App. 3d 459, 358 N.E.2d 280.) To qualify as an admission by silence or an implied admission, it is essential that the accused heard the incriminating statement and that it was made under circumstances which allowed an opportunity for the accused to reply, and where a man similarly situated would ordinarily have denied the accusation. (People v. McCain (1963), 29 Ill. 2d 132, 135, 193 N.E.2d 784; People v. Smith (1962), 25 Ill. 2d 219, 224, 184 N.E.2d 841.) The theory behind permitting such an admission into court is that the natural reaction of an innocent person would be to deny the accusation. (McCain, 29 Ill. 2d at 135.) Therefore, evidence of the accused\u2019s silence in the face of an accusation is critical. McCain, 29 Ill. 2d at 135.\nIn Mitchell, the defendant appealed from his conviction of willfully and knowingly transporting a stolen motor vehicle in interstate commerce. On appeal, one of the defendant\u2019s contentions was that the trial court erred when it admitted evidence that the defendant remained silent after being accused of giving false information to the police. In disagreeing with the defendant, the court of appeals noted that the day after the defendant\u2019s arrest, the defendant signed a waiver of his Miranda rights and agreed to answer questions for the police.\nWhen asked about his destination at the time of his arrest, the defendant replied that he was going to St. Louis to attend the funeral of homicide victim Jesse Owens. In the defendant\u2019s presence, a police officer phoned the St. Louis police department and was told that there had been no homicide victim named Jesse Owens. At trial, the police officer stated that when he confronted the defendant with this fact, the defendant remained silent. The defendant objected to the police officer\u2019s testimony.\nThe trial court overruled the defendant\u2019s objection, reasoning that the defendant had voluntarily given the police a false statement and that when confronted with a claim of falsehood, a person in the defendant\u2019s situation would normally be expected to give some further explanation. The trial court concluded that the defendant\u2019s failure to explain could be considered by the jury as bearing upon the defendant\u2019s guilt. The court of appeals agreed with the trial court\u2019s reasoning and held that the trial court acted properly when it admitted the police officer\u2019s testimony of the defendant\u2019s silence. Mitchell, 558 F.2d at 1335.\nIn Miller, the defendant, Marilyn, was convicted of syndicated gambling. Jon Sandusky (Agent Sandusky), a special agent with the Illinois Department of Law Enforcement, had a conversation with Marilyn\u2019s father, Robert Dugan, in regard to placing bets. Dugan gave Agent Sandusky a phone number and told Agent Sandusky to ask for Marilyn. Agent Sandusky called the number and spoke with Marilyn several times. Agent Sandusky placed approximately 11 bets totaling $2,375 with Marilyn.\nOne evening, Agent Sandusky saw Dugan with a woman at a restaurant. Dugan introduced the woman to Agent Sandusky. Dugan said, \u201cThis is my daughter, Marilyn, the one you call your bets into ***.\u201d (Miller, 128 Ill. App. 3d at 579.) At Marilyn\u2019s trial, the court admitted Dugan\u2019s statement into evidence. On appeal, Marilyn contended that Dugan\u2019s statement constituted inadmissible hearsay and was not an implied admission. While the appellate court concluded that Dugan\u2019s statement was not an implied admission, it held that Dugan\u2019s statement was the statement of a coconspirator and was thus properly admitted at the trial level under the coconspirator\u2019s declaration exception to the hearsay rule.\nOn the issue of whether Dugan\u2019s statement constituted an implied admission, the court first noted that in order for such a statement to fall within the implied admission exception to the hearsay rule, the People must show the defendant\u2019s failure to deny the accusation. (Miller, 128 Ill. App. 3d at 584.) The Miller court further noted that although it appeared that the defendant must have heard Dugan\u2019s statement, nothing in the record indicated whether the defendant remained silent or denied the accusation. (Miller, 128 Ill. App. 3d at 584.) The court thus concluded that because there was no direct proof of the defendant\u2019s reaction to Dugan\u2019s statement, Dugan\u2019s statement was inadmissible under the implied admission exception to the hearsay rule.\nIn the instant case, the evidence reveals that defendant remained silent in the face of Officer Miller\u2019s accusation that defendant had tried to deceive him. Because there is direct proof of defendant\u2019s reaction to Officer Miller\u2019s statement, under Miller, Dugan\u2019s statement would be admissible under the implied admission exception to the hearsay rule.\nIn Morgan, the defendant was found guilty of burglary and arson. At trial, Linda Harrison testified that she asked the defendant why he had set fire to Monroe\u2019s Cleaners. The defendant then asked Harrison how she knew that. Harrison replied that the defendant\u2019s brother had told her. The defendant proceeded to just laugh and shrug it off. (Morgan, 44 Ill. App. 3d at 462.) On appeal, the defendant argued that Harrison\u2019s testimony was inadmissible. The appellate court rejected the defendant\u2019s contention. The appellate court stated:\n\u201cIt is an established principle of law that when a statement is made in the presence and hearing of an accused, incriminating in character, and such a statement is not denied, contradicted or objected to by him, both the statement and the fact of his failure to deny are admissible in a criminal trial, as evidence of his acquiescence in its truth.\u201d Morgan, 44 Ill. App. 3d at 462.\nThe court continued that although the defendant\u2019s reaction was not one of silence, the defendant\u2019s response could not reasonably be construed as an unequivocal denial of the charge that he had set the fire. The court further noted that the defendant was not under arrest, in custody or the subject of investigation and that Harrison was not connected with any law enforcement officials. (Morgan, 44 Ill. App. 3d at 464.) In affirming the trial court\u2019s decision, the appellate court concluded that \u201c[t]he defendant had every opportunity to deny or object to the accusation and it seems very probable that the ordinary person similarly situated would not have let this accusation go unchallenged.\u201d Morgan, 44 Ill. App. 3d at 465.\nIn the case at bar, defendant alleges that the trial court improperly admitted \u201cthe substance of the telephone call between Detective Miller and some unknown and unidentified person in convicting the defendant.\u201d When Officer Miller questioned defendant at defendant\u2019s Milwaukee Avenue Auto Parts store, Officer Miller asked defendant to telephone \u201cJohn.\u201d Defendant did, and reported that \u201cJohn\u201d was not there. Officer Miller then requested defendant to redial the number and give the telephone to Officer Miller. When Officer Miller asked the party on the other end of the line to confirm that a \u201cJohn Daves/ Davis\u201d worked there, the party answered that there was no \u201cJohn Daves/Davis\u201d at that location. Officer Miller then told defendant that Officer Miller thought that defendant was trying to deceive him with that telephone call. Defendant made no response; he remained silent.\nDefendant sets forth the following cases in support of his contention that Officer Miller\u2019s testimony regarding Officer Miller\u2019s confrontation of defendant and defendant\u2019s subsequent silence was inadmissible. See Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; People v. Aughinbaugh (1967), 36 Ill. 2d 320, 223 N.E.2d 117; People v. Smith (1962), 25 Ill. 2d 219, 184 N.E.2d 841; People v. Bennett (1954), 3 Ill. 2d 357, 121 N.E.2d 595; People v. Graves (1986), 142 Ill. App. 3d 885, 492 N.E.2d 517; People v. Malkiewicz (1980), 86 Ill. App. 3d 417, 408 N.E.2d 47; People v. Deberry (1977), 46 Ill. App. 3d 719, 361 N.E.2d 632; People v. Turner (1968), 91 Ill. App. 2d 436, 235 N.E.2d 317.\nA prosecutor may not seek to impeach a defendant by cross-examining that defendant about his failure to speak after receiving Miranda warnings. (Doyle, 426 U.S. at 611, 49 L. Ed. 2d at 94, 96 S. Ct. at 2241.) Such a use of the defendant\u2019s post-arrest silence violates the defendant\u2019s due process rights. (Doyle, 426 U.S. at 611, 49 L. Ed. 2d at 94, 96 S. Ct. at 2241.) On the other hand, use of a defendant\u2019s prearrest silence to impeach that defendant\u2019s credibility does not violate the United States Constitution. Jenkins v. Anderson (1979), 447 U.S. 231, 240-41, 65 L. Ed. 2d 86, 95-96, 100 S. Ct. 2124, 2130.\nThe issue before this court, however, is whether a defendant\u2019s prearrest silence may be used as substantive evidence against him. While Doyle, addresses the use of a defendant\u2019s post-arrest silence, Jenkins addresses the use of a defendant\u2019s prearrest silence to impeach the defendant\u2019s credibility. Neither Doyle nor Jenkins decided the issue that is presently before this court. Therefore, the Doyle and Jenkins decisions are not inconsistent with the trial court\u2019s finding that defendant\u2019s prearrest silence was admissible as substantive evidence.\nAdditionally, Bennett, Malkiewicz, Aughinbaugh and Turner dealt with the admission of the defendant\u2019s post-arrest silence. In Bennett, the defendant was charged with burglary and arrested. The morning after the defendant\u2019s arrest, the defendant remained silent when accused of the burglary. At trial, the court admitted evidence of the defendant\u2019s post-arrest silence. The appellate court affirmed.\nBennett is irrelevant here for two reasons. First, Bennett involved the defendant\u2019s post-arrest silence. Second, Bennett was decided before Miranda and before Doyle. In light of Doyle, the Bennett court\u2019s admission of the defendant\u2019s post-arrest silence was erroneous.\nLikewise, Malkiewicz and Aughinbaugh involved the defendant\u2019s post-arrest silence. In both Malkiewicz and Aughinbaugh, the court held that the trial court\u2019s admission of the defendant\u2019s post-arrest silence constituted reversible error. Thus, since Malkiewicz and Aughinbaugh do not address the issue before this court, they are not inconsistent with the trial court\u2019s ruling that defendant\u2019s prearrest silence is admissible as substantive evidence.\nThe Turner court also addressed the issue of admission of the defendant\u2019s post-arrest silence. In Turner, however, the court held that the defendant\u2019s post-arrest silence was admissible at trial. Although the Turner court noted the Miranda and Aughinbaugh decisions, the Turner court held that because there was nothing in the record to show that the defendant\u2019s silence was the result of fear of bodily harm, physical pain and suffering, threats, or advice of counsel, evidence of the defendant\u2019s post-arrest silence was admissible.\nSmith, Graves, and Deberry all involved a defendant\u2019s prearrest silence. The Smith and Graves decisions are consistent with the trial court\u2019s finding in the case at bar and do not, in any respect, assist defendant. Smith, which was decided before both Miranda and Doyle, involved a defendant who was found guilty of rape. Several weeks after the alleged rape occurred, the victim recognized the defendant at a tavern. The victim called the police and accompanied the police to the defendant\u2019s house. When the police officer brought the defendant out onto the front porch, the victim pointed to the defendant and stated that he was the man who had raped her. The defendant was then arrested.\nThe defendant\u2019s failure to deny the victim\u2019s accusation was placed into evidence. On appeal, the defendant contended that the admission of his prearrest silence constituted reversible error. The appellate court disagreed and noted that the accusation occurred on the defendant\u2019s own front porch, that there was ample opportunity for him to reply, and that there was no conceivable restraint upon the defendant. In affirming the trial court\u2019s admission of the defendant\u2019s prearrest silence, the court concluded that the defendant\u2019s silence at that time certainly could be considered an implied admission. Contrary to defendant\u2019s position, Smith held that the defendant\u2019s prearrest silence was admissible at trial as an implied admission.\nIn Graves, the defendant was found guilty of murder. The victim had been stabbed in the chest. Following a police investigation, the defendant was implicated in the murder. Five days after the killing, the defendant surrendered to the police and, while in custody, confessed to the murder. The defendant also told the police that he was under the influence of drugs and alcohol at the time of the murder. At trial, the defendant contended for the first time that he had stabbed the victim in self-defense.\nThe prosecutor cross-examined the defendant about the fact that the defendant had remained silent before he was arrested and did not go to the police to report that he had killed the victim in self-defense. The trial court allowed the prosecutor to cross-examine the defendant in this fashion.\nOn appeal, the defendant contended that the trial court erred when it allowed the prosecutor to cross-examine the defendant concerning the self-defense information that the defendant did not divulge to police authorities before he surrendered. In affirming the trial court\u2019s decision, the appellate court held that the use of a defendant\u2019s prearrest silence to impeach the defendant\u2019s credibility is constitutional. The court concluded that the prosecutor\u2019s cross-examination regarding the defendant\u2019s prearrest silence was a proper method to impeach the defendant\u2019s credibility.\nThe Graves court addressed the use of a defendant\u2019s prearrest silence to impeach that defendant\u2019s credibility. As mentioned earlier, the question before this court is whether use of a defendant\u2019s prearrest silence may be used against that defendant as substantive evidence. First, the Graves decision held that a defendant\u2019s prearrest silence may be used against that defendant to impeach his credibility. The Graves court did not hold that a defendant\u2019s prearrest silence could not also be used as substantive evidence against the defendant.\nSecond, the defendant in Graves did not remain silent following accusations or questions. Rather, the fact that the defendant did not seek out the police and set forth his self-defense claim is what constituted the defendant\u2019s prearrest silence. As mentioned above, the appellate court held that the defendant\u2019s failure to go to the police and report the incident and his self-defense claim was admissible to impeach the defendant\u2019s credibility.\nIn the case at bar, Officer Miller confronted defendant with the fact that Officer Miller thought that defendant was trying to deceive him. Thus, Officer Miller accused defendant of deception; defendant did not respond. Defendant, unlike the defendant in Graves, was not expected to speak when not spoken to. Rather, defendant was expected to deny Officer Miller\u2019s accusation that defendant was trying to deceive him. Under Graves, the court expected the defendant to provide unsolicited information to the police regarding his innocence. Pursuant to the rationale in Graves, it would follow that a direct accusation should be met with more than mere silence.\nIn Deberry, the defendant was convicted of the theft of car tires. Officer Haun observed a truck filled with tires and the defendant sitting on the passenger side. Officer Haun asked the defendant where he had received the tires. The defendant answered that they were from all over. The defendant then began naming towns. Officer Harm asked the defendant if the defendant had picked any tires up in Decatur. At about that time, Mr. Worthy, defendant\u2019s employer and codefendant, walked up and the defendant remained silent.\nAt trial, Officer Haun testified to his conversation with the defendant. On appeal, the court determined that the trial court erred in admitting Officer Haun\u2019s testimony regarding the defendant\u2019s prearrest silence. The court noted that one of the requirements for admission of the defendant\u2019s prearrest silence was that it must clearly appear that the defendant knew that he was being asked about the crime for which he was on trial. The court concluded that such a requirement was not met in that case. Applying the plain error doctrine, the appellate court reversed the court below and ruled in favor of the defendant.\nIn the case at bar, Officer Miller accused defendant of deception. Officer Miller did not ask defendant about the crime for which defendant was on trial: falsifying an Illinois application for a certificate of title. However, in Deberry, unlike the case at bar, the defendant was not accused of a crime. Rather, the defendant in Deberry was simply asked whether he had received any of the tires from Decatur. The defendant remained silent. From these facts, it would be erroneous to conclude that the defendant in Deberry remained silent following an accusation.\nOn the other hand, defendant here remained silent in the face of an accusatory statement. Officer Miller made an incriminating statement in defendant\u2019s presence, defendant had an opportunity to reply, and a man similarly situated would ordinarily have denied the accusation. Defendant, however, failed to deny, contradict, or object to the statement. In addition, the incriminating statement was made to defendant before he was arrested. Thus, in light of the Miller, McCain, Morgan, and Smith cases, the trial court in the present case properly admitted evidence of defendant\u2019s prearrest silence.\nWe note that defendant\u2019s brief fails to raise his second contention, regarding proof beyond a reasonable doubt, in the manner that the supreme court rules direct. Defendant raises his second contention within the body of his argument concerning the first contention and cites one case in support of his argument. Defendant cites People v. Einoder (1980), 82 Ill. App. 3d 1079, 403 N.E.2d 641 and argues that facts there are similar to those at bar. A reading of that case fails to substantiate defendant\u2019s contention and we find that defendant was proven guilty beyond a reasonable doubt.\nIn view of the foregoing, the judgment of the circuit court is hereby affirmed.\nAffirmed.\nHARTMAN, P.J., and SCARIANO, J., concur.", "type": "majority", "author": "JUSTICE STAMOS" } ], "attorneys": [ "Daniel E. Radakovich, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Kenneth T. McCurry, James E. Fitzgerald, and Pat Brady, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE CIHAK, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 86\u20142955\nOpinion filed April 26, 1988.\nDaniel E. Radakovich, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Kenneth T. McCurry, James E. Fitzgerald, and Pat Brady, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0606-01", "first_page_order": 628, "last_page_order": 640 }