*1 labeled a revocation probation at this whether proceeding or a deferred sentencing.” dilemma in the probation statement basic foregoing recognizes for criminal system being punished
revocation namely person raising has at least thereby offenses of which he not been convicted due Unlike other states Illinois has for some questions. procedural process time both decision and statute counsel required representation by our indicating thereof at revocation proceedings waiver probation standards are in a course of with other of our evolution along aspects sentencing (People Coffman, 83 227 N.E.2d procedures. I think this case illustrates the need for re-examination of our 108.) revocation criminal are in- system where offenses probation subsequent volved. Illinois, State v. William Plaintiff-Appellee,
Queen, Defendant-Appellant. 71-143;
(No.
Third District —December 1972.
STOUDER, dissenting. J., P. *2 Barton, Ottawa, of Defender of Project, appellant. L. John Polito, Joseph Assistant State’s for the Attorney, People. Joliet, Mr. SCOTT delivered the of the court: JUSTICE defendant, WiUiam was indicted for the offense of bur- Queen, glary after trial jury was found and sentenced a term by guilty of not less than three nor more than ten in the years penitentiary. sentence was to be served with a sentence not less than consecutively one nor more than three years in the which had penitentiary previously been imposed defendant upon by circuit court of Perry County. his trial the defendant
During testified in his own behalf and while he did not that he deny made an unauthorized entry into Gene’s Tavern he city offered anas Joliet, explanation for his acts he had that been to act as a compeUed “look out” man for a Lawrence who Bryan, instigator was the of the crime and who made the actually iUegal entry into the tavern.
The defendant further testified to the effect that being an unwilling was his intention it accomplice report as it burglary was leaving then progress, slip away thereby instigator and his tormentor inside the tavern. The defendant trapped stated that his plan thwarted when came out of Bryan the tavern as a pohce car patrol the area and that in order cruised escape apprehension he was forced to hide in When he tavern. to leave attempted the building he was apprehended police.
The defendant claims reversible error based upon following inci- dents which occurred his trial. course trial the
During State’s Attorney brought out on cross-examination that the defendant had at no time ever related this to the but was story police, telling it for the first time when testifying The trial in his own behalf. court denied the defendant’s motion for a mistrial this based upon cross-examination.
During jury deliberations the foreman sent a note to the said, which like “Would the defendants words on the stand.” The trial denied this request. when the trial Lastly, judge denied the jury’s request to again hear alleges and he not present defendant’s the defendant was testimony right that his absence he was denied constitutes error since present stage every proceedings. the defendant first issue raised by attention to the our
Directing is based error was committed that reversible is clear that his contention to remain right has a a defendant that arrested when upon premise right that he exercised such silent if the state elicits and his of his testimonial privilege then we have violation the defendant this contention effective assistance of counsel. Rothe, 192 N.E. People cases: Ill. cites the Illinois following 601; People 262 N.E.2d Lampson, Ill.App.2d these 303. An examination of Woodall, 131 264 N.E.2d issue before us since they to the cases are relevant reveals make a the defendant had refused to to the effect that involve testimony are in unani after his Our Illinois courts statement to arrest. police mous that such is erroneous agreement prejudicial a different facet of the instant are presented case we defendant. to determine whether or not we are called problem upon when he self-incrimination protection against waives behalf an ex takes the witness stand and testifies in his own making elicit statement. then the cross-examination May culpatory prosecutor a statement that the defendant had not made such previously *3 final comment on May argument to the police? prosecutor during defendant’s failure to make such an statement to the exculpatory police or to else to the time he testified in his own behalf? anyone prior this us in our determination of guide pre- Illinois cases
We find no
from other
however,
jurisdictions.
are
decisions
issue,
there
pertinent
cise
was
reversible error
committed he cites
his contention that
support
773;
76,
Ohio
263 N.E.2d
United
Stephens, 24
St.2d
the cases of State v.
United
v. Brin-
416 F.2d
and
States
(CA10-1969),
States Nolan
cused when state- or inculpatory” “exculpatory from making silent and refrain either is guar- only person when this is fulfilled and that privilege ments in the un- to speak he chooses remain unless anteed the “to silent right exercise of his own will.” fettered Su- States United Miranda As Chief Warren in stated Juctice with dealing and specifically its attention to Court was
preme directing is sub- who an individual from of statements obtained admissibility laid down Miranda the jected interrogation. to custodial police to remain and his right rules counsel strict defendant’s regarding concerned However, it the court was silent. should be noted that custodial, interrogation these as arose rights only during pre-trial state of the of an accused. proceedings in a sub was recognized limited in its application Miranda was so
That Harris stated in Court when the United States sequent Supreme 643: York, New 401 U.S. 28 L.Ed.2d S.Ct. as read can indeed be
“Some in the Miranda opinion comments for any pur- a bar to use an uncounseled statement indicating all but discussion of that at necessary issue pose, Miranda controlling. Court’s and cannot be as holding regarded statements of barred the from its case with making an having effectively accused made while in or custody prior evidence, It counsel. does not from Miranda that waiving follow against inadmissible an accused in the case in chief prosecution’s barred all the trust- provided course purposes, worthiness of the evidence satisfies standards.” legal against makes no claim that his right In the instant case time self-incrimination when he was apprehended was violated to trial maintains that an statement but when he made prior exculpatory trial, state was his testimonial continued so that the during privilege him precluded upon cross-examination from attempting impeach if he had asking made such statement to the previously police. Brinson and Nolan Stephens, have the cases of acknowledged, As we defendant’s but we are of the that these position, an to Miranda which was not intended interpretation cases extended Calhoun, United States Court. In Supreme Mich.App. our 189 N.W.2d we similar factual situation strikingly of the trial the defendant in his own behalf the course testifying statement the effect that a co-defendant made an he and exculpatory *4 into the crime a third duped committing party. prosecutor were on cross-examination asked the defendant when was the first time that statement related anyone he had told that he had exculpatory just on direct The defendant stated he attorney. examination. had told his When asked if he had he stated ever told prosecutor police, that he had not. court held that such cross- reviewing the Michigan Calhoun did not constitute reversible error
examination by prosecutor we quote:
“The should cross-examination process certainly permit adversaiy as ato defense which without would theory any challenge permit nebulous, accused to on however testifying rely any hypothesis of it bars from yet subjecting specifics the prosecution ” to ‘truth-testing devices.’ Su the decision of the United States the court relied on In Calhoun York, 91 S.Ct. Harris v. New 401 U.S. 28 L.Ed.2d Court in preme a defendant held that a statement inadmissible against where was safeguards in chief because of lack of procedural prosecution’s standards, its satisfies legal Miranda if trustworthiness may, required of defen credibility to attack the be used for impeachment purposes that in the. Michigan dant’s trial It clear Calhoun testimony. as as inconsistent non utterances as well including Harris interpreted as for the use of being utterances permissible impeachment purposes in With this testimony. of a defendant’s attacking credibility Russell, terpretation agree. we N.W. Mich.App. 2d commenced line of which made prosecution questioning reference to defendant’s after he made an exculpatory silence previous held to statement trial. Such cross examination was not be preju dicial referring and the court in the matter of the considering to the defendant’s silence stated: prior in Miranda Arizona it is clear the decision
“Since [Citation.] officers can no longer that silence in communicating police But there is against nothing, used as an admission interest. examination once the defendant Miranda that forbids such cross As Learned Hand stated in United has chosen to testify. Judge Pierre 132 F.2d 1942), States v. St. 840: (C.A.L., truth, is to ‘It must be conceded that privilege suppress that does not mean it is privilege garble but it. * * * It not furnish one side with what be false should evidence means deprive detecting ” imposition.’ The issue which we are now resolved in the considering clearly when the United States Court stated: Supreme Harris case privileged testify criminal his own “Every defense, to refuse to do But that so. cannot be con- privilege * * * to include perjury. Having strued commit *5 to obligation an was under stand, taken the voluntarily petitioner no did here and and the truthfully accurately, speak the ad- devices of truth-testing more than utilize the traditional ** * Miranda cannot shield versary process. provided by The defense, a way of by into a license to use perverted perjury ut- inconsistent free of prior from the risk confrontation with terances.” before mindful of on the
Being
question
the
division of authorities
sharp
us we are
of
reasoned authorities
nevertheless
the
that the better
opinion
are the
of
was not
cases
that reversible error
Calhoun
Harris and
committed in the instant case
the
cross-examination
prosecutor’s
to
it
regard
defendant’s
to
statement nor
his reference
exculpatory
States,
62,
final
v.
argument. See also
United
Walden
347 U.S.
503,
354;
98 L.Ed.
74 S.Ct.
52
N.E.2d
People
Ill.2d
284
Speed,
636;
51
McCorry,
Ill.2d
We next direct our attention to the contention of the defendant that the trial denying court erred in the the to once request jury again of hear the testimony of the defendant. At the outset it should be that noted our state a does not have statute the reading testimony to of pertaining ato jury after they have retired to deliberate their upon verdict. absence such a statute we do not that an believe the defendant has absolute to right have 265 testimony repeated. (See Vaughn, State Close, P.2d State v. 148 A. Even where such a statute 764.) it has been held that is not that the present mandatory trial judge his state recollection of or testimony that be read the jury to and the court’s refusal to comply with defendant’s request Weil, certain testimony was an repeated not abuse of (State discretion. L. Ohio N.E.2d Abs. appeal dismissed Ohio St. 816.) analyzation N.E.2d After an of the cases cited in the sub briefs mitted to parties this and further appeal considering compre hensive analysis question in 50 presented A.L.R.2d 176 we are that better rule that whether ain particular certain portions testimony should be read to the rests in jury discretion tire court.
The defendant stresses that the paramount issue for the de- to jury cide in the instant case was credibility his and that the trial court refused to permit to review evidence which related to this The directly issue. state argues to permit a hear defendant’s repetition testimony would be giving undue promi- to it nence over other testimony. fail examining record we to find that the trial of the defen
dant was of such complexity or fraught technicalities that would
serve to confuse a of the defendant jury. Neither the witness was best The trial was in the lengthy. judge position a determine whether to hear or not there a for the necessity was repetition of the was defendant’s testimony. procedure He deemed such find unnecessary and in the us light of the record before dowe the court’s refusal anwas abuse of discretion. denied his right as error that he was assigns
Lastly outside trial when the communicated with judge where the of his defendant is the incident referring presence. testimony. When judge jury’s request refused the hear his again his he con made refusal the defendant was not present tends that absence violated his constitutional present every stage proceedings against him. classified, so was discussion, if refusal could be judge’s in fact in did not and the defendant’s absence matter which procedural *6 him. the against present proceedings his
fringe upon Woods, 27 Hudson, People 263 46 Ill.2d N.E.2d (People is the of the issue raised N.E.2d Also determinative 293.) Ill.2d 189 Miller, In Miller juror Ill.2d 455. People case of N.E.2d a bailiff to tell the requested a case for murder involving sentence, the information on a life that the wanted more jury judge bailiff that he could not information. give any sent word the by judge such a would not be deemed com reply Our court held that supreme the We believe munication to the outside defendant. presence jury the defendant’s contention which cited are of dispositive that the cases merit. we deem to be without the of Will
For the reasons set forth the circuit court judgment County affirmed. affirmed.
Judgment
DIXON, concurs. J., dissenting: STOUDER PRESIDING
Mr. JUSTICE my the opinion prejudicial court. with the agree majority I do not a new trial. requiring trial errors occurred after some deliberating the majority opinion indicated in the jury As the the in turn delivered note to bailiff who a note to the time delivered the on the read, like Defendant’s words ‘Would trial The note judge. not tran- note was upon receipt transpired stand.” Whatever may have the reference to what only reporter the court scribed filed State which in a record supplemental is contained happened that the indicating Other than judge. an account contains State’s and that the defen- and defense counsel Attorney present were not, re- on the dant the account has no bearing judge’s particular to the on the note sponse following jury’s request. wrote judge and had it returned to the must decide on the basis of “You jury, heard in the courtroom. I can not have any witnesses read to you.”
My conclusion, that colleagues have concluded and I with the agree whether derived from statute or rule the trial does have of law judge discretion to to and respond Indeed no case jury inquiries. reply the contrary is cited in the or was cited majority brief of the Thus the trial judge State. was in error when he determined he had no discretion to grant jury’s request. Harmon, N.E.2d although
dealing witness, of a rereading some presents what circumstances and analogous of its would language holding seem to be equally Harmon, to the instant applicable according case. bailiff, to the he was summoned and asked some legal ques tions which he declined to He then answer. reported inquiry judge that the had indicating legal questions but not specifying any particular question. The judge requested be called attorneys but when informed that they were not there the directed the judge bailiff to return to the “Tell jury and the legal questions will be resolved by They the Court. have the problem the facts. have all They the Instructions.” It developed was concerned whether a homicide would be murder or accidental when the defendant aiming gun at one accidentally discharged the same person resulting the death of a third As be seen from person. may an account of the facts foregoing in the Plarmon case the request by related to instructions and the court concluded both that an instruction covering had not inquiry been that the trial given and should responded jury’s *7 inquiry. this connection it should be noted that the court only held that the additional instruction or advice should have been given but that error occurred where the judge knowing of some questions in the jurors’ minds failed to ascertain what the was. problem Such a conclusion is broad to include all enough requests for information a and re assistance quires judge whenever possible even to the extent of seeking clarify doubts which the jurors may See express. also Kucala, v. 7 Ill.App.3d 1029. the trial has
Conceding
judge
discretion to
with
comply
the request
of the jury, my colleagues
to the trial
contrary
own
judge’s
determination
discretion,
that he had no
conclude that he did not abuse his discretion
249;
265
citing,
Vaughn,
State
P.2d
State v. Close
(1930), 148 A.
Weil,
cases
State v.
The three
Ohio L. Abs.
on this which subject at least reasoning implication reject earlier New Close, case of to a Jersey State 148 A. With respect 764. request a and his jury concerning two letters written witness cross examination with thereto the observed: respect Wolf “When a retires to consider their verdict their discussion doubt, or failure of definite recollection
produce disagreement, as to a said his testimony. what witness in the course of particular they If on the request enlightenment subject through reading circumstance, his in the absence of some unusual testimony, should be The true administration of re- request granted. justice such quires action. Where there is some doubt in the minds said, as to a witness jurors what it cannot be to anyone prejudicial by rehearing to have that doubt removed one of trials a is to be considered system witness. If under decision, entrusted it must intelligent enough powers ask sense to have their memories enough be assumed they about refreshed as to those which only portions do not reading are in If ask for further they disagreement. they there is no in a to demand it.” party The court declared: also full, of our fair when days purpose procedure these
“In all evidence in a case both before relevant and free exposure trial, no reason for insisting lay- there is just and during and unanimous of all unfailing memory must have an men jurors hear in the courtroom. There should be sub- en- seeming hesitency past for any stituted [citation] our trial judges.” discretion of lightened Jackson, F.2d U.S. deliberations its During the comt whether character named “Sarge” asked its foreman through trial was a government employee. mentioned had been who of the defendant for of Federal violation involved The case not a witness was involved in the although and “Sarge” laws narcotic was a informer at the time. to the record according paid transaction authority respond request doubted the trial judge However there- requested. not remember fact did event and in *8 government retired but after an of remarks upon again exchange the counsel and defense counsel that the portion the court concluded the How with this reread to testimony dealing jury. should be subject ever the the returned its before jury guilty verdict finding could be the trial testimony reread and on it was held review committed re error in the prejudicial jury’s to declining comply on F.2d 583 quest. Relying such cases as Rosenberg, United States v. L.Ed the court (2d cert. denied 344 73 S.Ct. Cir.) U.S. said, has said “that a information what a witness jury may given upon if it it is con to furnish well settled.” possible Jackson cluded the failure to at permit of the relevant reading time when it would have been created useful deliberations jury’s unfairness to defendant. The Standards American Association Bar Trial, draft, Relating dealing Section 5.2 in section approved Jury with Jury Verdicts, Deliberations and provides;
“5. to review evidence. Jury request deliberation, after for If the a review
(a) jury, retiring requests evidence, or of certain shall be conducted reasonable, Whenever the jury’s request courtroom. Court, defense, after notice and counsel prosecutor shall have the requested parts read to jury shall to re-examine permit the requested materials admitted into evidence. The Court need
(b) not submit evidence to the for review beyond specifically requested by jury, but its discretion the Court also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the requested.” evidence course not been foregoing provisions approved adopted statute, or decision in this rule State. However the provisions are expositive generally
deemed rules prevailing on the subject. to the tentative draft commentary In the of the foregoing standard the committee 134-138) emphasizes that (pages the judge ought as- with the compliance sist request possible whenever discretion should exercise his not to do so only when the request is un- reasonable. The committee concluded it was undesirable and unfair to confusion of relegate its recollections when the means were hand to avoid unfairness. Rejecting contention that rereading testimony might unduly certain emphasize aspects of the evidence the committee observed that attention special to the disputed testimony had occurred and already efforts to enlighten the members of the jury could than hardly be other beneficial. Prim, concludes that where Ill.2d the Court had assistance reached an further seeking but were not impasse
or enlightenment the jury the court should and not abandon respond to its in own devices even must be the court’s observations though herently neutral at The case such a stage proceedings. sensitive is mentioned not issue in the because of its direct relevance to the ought instant but rather in rule which general to have been of the trial the trial the need applied by judge namely *9 judge to for respond cooperatively request and to affirmatively jury’s assistance.
Whether in this case be ruling effect of the judge’s prejudicial considered as a he had no to result of his determination that authority his grant discretionary or that he somehow or exercised request it is the defendant’s my refusal to have authority opinion judge’s reread sole issue in the was and Indeed the prejudicial unfair. case was the of the defendant’s credibility testimony judged primarily for its plausibility or That the did have some implausibility. jury prob- lem concerning defendant’s The my of undisputed. colleagues that the should had no such or that en- jury problem lightenment unnecessary was to the facts and contrary speculative. The of the request was reasonable and could have been satis- readily fied without inconvenience. to the issue is the defendant’s claim foregoing
Related that he was his at all right present stages By denied on relying trial. Miller, 84, Woods, 13 Ill.2d 148 N.E.2d People People v. Ill.2d Hudson, 177, 393, N.E.2d 293 and 46 Ill.2d People 263 N.E.2d treat this issue as a my colleagues involving merely discussion which in took chambers after the note from place was received. a Miller case involved citation defendant’s contempt against counsel after a mistrial which occurred had been declared a and before trial new had been In Woods the court that concluded a motion pre-trial held. for continuation or advancement on the docket was not of a such nature as require to defendant’s attendance. personal in the Hudson Finally case counsel for a co-defendant moved a mistrial and finding contempt against witness (appealing did not in join motion) held that a conducted in hearing chambers on in such motion the absence of the defendant was proper. the real issue is not the in hearing
However chambers but rather the in the judge communication between absence of the defendant. chambers being The discussion in course part transaction. Beck, stated; 305 Ill. N.E. Court People defendant was entitled to “The public in jury, every at every to present he had a to participate, of which part done, to everything know to stage proceedings, think best might as he action and to take such make objections, is well law and for his protection. his rights for securing be re- will which a judgment is error for in state that it settled this with the communication hold any for a trial versed in verdict, except their deliberate upon after retirement to their open court.” facts Harmon, 244 N.E.2d court concluded:
which are earlier this opinion, case detailed in in its the trial court event, “In followed by procedure defen- outside the presence communication with the jury re- itself, was, dant sufficiently prejudicial and his attorney quire reversal the conviction.” Harmon is in- between judge
The communication and conse- in the instant case from the communication distinguishable This was erroneous. the instant case I believe quently procedure refusing of the case is so related to the conduct of the judge aspect be-my adds additional jury’s respond request lief that error occurred. prejudicial and the colleagues other issue discussed my
With
respect
of defendant
his silence
regarding
the cross examination
holding that
*10
Calhoun,
there is no doubt but that
time of
proper
arrest was
Ramirz,
743, and United
441 Fed.
141,
33
States
189 N.W.2d
Mich.App.
It
950,
position
2d
are
on
clearly
point
support
majority.
case
an
of the exception
can
be said that each
represents
application
also
1,
N.Y.,
in
L.Ed.2d
to the Miranda rule created Harris
401 U.S.
28
of the Harris case are still
implications
The probative that an assertion of will misconduct spontaneously common experience or of innocence. Where the circumstances are a denial such protest invite or the reasons expected for such silence required that no hav- response This guilt to ing tendency prove disappear. does not de- principle or either on the of the Miranda application non-application As pend rule. 870
the court 52, 192 observed in People v. Rothe (1934), 358 Ill. N.E.
“The court an permitted officer prove by the defendants refused to make a statement at the station. police In this refusal they were within their and the rights, fact that refused to make a statement had no either tendency prove or disprove charge against them. The admission this evi- dence was prejudicial, and it since was neither material nor rele- vant to the issue tried, it should being have been excluded.” The same result if follows even the accused is advised of his rights under Miranda. v. Lampson, 262 (People N.E.2d 601 and Matos, United States F.2d Such 1071.) evidence is held inap- propriate because of its lack of value and probative this characteristic is the same whether it be considered from the point view tending prove guilt for impeaching credibility. Unlike Harris evidence of silence or refusal to is inadmissible speak in support prosecution’s case not because was illegally obtained but because of its lack of pro- bative The essential value. nature or character of the evidence or the reasons its exclusion do not change merely because the defendant testifies. This to me is a distinguishing difference on depending the in- herent quality evidence and is beyond the particular holding the Harris case as it relating does to evidence originally excluded on ac- count of some illegality in the procedure.
In further my conclusion that evidence of silence is im- proper even for pmposes it seems impeachment to me that if such evidence were the warning and proper advice required Miranda would expanded provide not that if only the accused waived his to remain silent he whatever said might be used against him but also if he exercised his right to remain silent such fact could be used to attack or diminish his if he credibility elected to testify his own behalf. (United States v. Brinson (6th Cir. 1969), 411 F.2d To the 1057.) same effect is States, v. United Johnson U.S. S.Ct. which in dicta L.Ed. declared that the trial court not erred in only the defendant to permitting refuse to answer question but also erred to advise the failing defendant that his refusal to answer could be commented and was upon commented upon. holding dicta because the Court also held that defendant had withdrawn his objection to the complained argument and hence it was not preserved for review. *11 it seems to me a matter of
Finally legal sophistry that an say ac- no but then duty speak cused under let his election so to do later as having consequences. be considered adverse