People v. Martin

• Decision Date: 28 February 1992
• Docket Number: No. 4-91-0432,4-91-0432
• Citation: 589 N.E.2d 815,226 Ill.App.3d 753
• Parties: , 168 Ill.Dec. 415 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Gary Don MARTIN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 815

589 N.E.2d 815

226 Ill.App.3d 753, 168 Ill.Dec. 415

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Gary Don MARTIN, Defendant-Appellee.

No. 4-91-0432.

Appellate Court of Illinois Fourth District.

Feb. 28, 1992.

Craig H. DeArmond, State's Atty., Danville, Kenneth R. Boyle, Director, State's Attorneys Appellate Prosecutor, Robert J. Biderman, Deputy Director, James Majors, Staff Atty., Springfield, for plaintiff-appellant.

Robert E. McIntire, Public Defender of Vermilion County, Jeffrey N. Aldag, Asst. Public Defender, Danville, for defendant-appellee.

Justice STEIGMANN delivered the opinion of the court:

This appeal presents the issue of whether the State may call a defendant to testify at a probation revocation hearing to elicit testimony which would show that defendant had violated conditions of his probation but which would not incriminate him in any other proceedings. We hold that the State may do so.

I. FACTS

In January 1989, defendant, Gary Martin, pleaded guilty to driving while under the influence of alcohol and driving while his driver's license was suspended (Ill.Rev.Stat.1989, ch. 95 1/2, pars. 11-501(a)(2), 6-303(a)). In July 1989, the trial court sentenced defendant to one year's probation on each charge, subject to various conditions, including that he support his two children.

In May 1990, with the agreement of the parties, the trial court extended both of defendant's probationary sentences through January 12, 1991. The court again imposed as a condition of his probation that he support his two dependent children.

In November 1990, the State filed a petition to revoke defendant's probation which alleged in part that he had violated the terms of his probation by failing to support his two children. In April 1991, the trial court conducted a hearing on this petition, and the State called defendant to testify, apparently to show through his testimony that he had failed to support his children. Defendant objected, claiming that his fifth amendment privilege against self-incrimination prohibited the State from calling him as a witness. (See U.S. Const., amend. V.) The trial court continued the hearing and received written arguments from the parties. The court ultimately sustained defendant's objection. The State filed a certificate of impairment and brings this appeal.

II. APPEALABILITY OF TRIAL COURT'S RULING

This court first must determine whether we have jurisdiction of this appeal under Supreme Court Rule 604(a)(1), which reads as follows:

"When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence." 134 Ill.2d R. 604(a)(1).

An unusual feature of this appeal is that the trial court's action which the State here challenges occurred midtrial, not as the result of some pretrial ruling. In People v. Davidson (1983), 116 Ill.App.3d 164, 165, 71 Ill.Dec. 824, 825, 451 N.E.2d 978, 979, the court also dealt with the State's appeal of a midtrial order; in that case, the order barred the State from using handwriting exemplars the State obtained from the defendant. In Davidson the trial court had granted defendant's motion to bar use of the exemplars on the ground that excerpts from some of the letters defendant was compelled to write violated his fifth amendment rights. (Davidson, 116 Ill.App.3d at 165, 71 Ill.Dec. at 825, 451 N.E.2d at 979.) The State appealed that ruling, and defendant challenged the State's right to do so. The court in Davidson rejected defendant's challenge, citing People v. Flatt (1980), 82 Ill.2d 250, 264, 45 Ill.Dec. 158, 165, 412 N.E.2d 509, 516 (State must be permitted a review of authority of trial court to enter midtrial suppression order which substantially impairs State's ability to prosecute the case), among other authorities. The Davidson court provided the following analysis:

"The rule which thus emerges from the cases is that a motion based on criteria relating to the perceived truthfulness, reliability, or relevance of the proffered evidence 'excludes' evidence * * *; a motion which is based on public policies forbidding the use of certain evidence despite its relevance and apparent trustworthiness 'suppresses' evidence * * *." (Emphasis added.) Davidson, 116 Ill.App.3d at 170, 71 Ill.Dec. at 829, 451 N.E.2d at 983.

In People v. Smith (1987), 151 Ill.App.3d 922, 925, 104 Ill.Dec. 869, 871, 503 N.E.2d 584, 586, the court cited the above quotation from Davidson approvingly and held that the State could appeal a midtrial order barring it from eliciting testimony about how the defendant in that case, a truck driver, had assisted a State Police officer with a tape measure as the officer measured the axle length of defendant's truck. The apparent basis of the trial court's ruling was that defendant's participation in measuring the axle violated his right not to be forced to participate in the gathering of physical evidence against him. Smith, 151 Ill.App.3d at 925, 104 Ill.Dec. at 870, 503 N.E.2d at 585.

We agree with the foregoing authority and conclude that the trial court's sustaining defendant's objection to the State's attempt to call him to the witness stand was based upon defendant's claimed exercise of a constitutional right, as opposed to a mere evidentiary ruling. In other words, the trial court's action barring the State from calling defendant to the witness stand had nothing to do with the "perceived truthfulness, reliability, or relevance" of his testimony; instead, that action was "based on public policies forbidding the use of certain evidence despite its relevance and apparent trustworthiness." (Davidson, 116 Ill.App.3d at 170, 71 Ill.Dec. at 829, 451 N.E.2d at 983.) Accordingly, we hold that the State may bring this appeal under Supreme Court Rule 604(a)(1).

III. APPLICABILITY OF FIFTH

AMENDMENT TO PROBATION REVOCATION PROCEEDINGS

In its written ruling, the trial court explained the issue before it as whether defendant's fifth amendment privilege applies at probation revocation hearings,

"as to questions which would not incriminate the Defendant as to non-criminal acts. There is no question posed that the Defendant would be entitled to raise the privilege if he were asked questions that might tend to incriminate him on a subsequent offense or other offenses. The issue here is whether statements can be elicited from the Defendant which would tend to cause a revocation of his * * * probation but not cause him to be prosecuted in other proceedings."

In People v. Yantis (1984), 125 Ill.App.3d 767, 769, 81 Ill.Dec. 17, 18, 466 N.E.2d 603, 604, the State called the defendant as its only witness at the hearing on the State's petition to revoke defendant's probation. The State's petition alleged that he had failed to comply with the conditions of his probation that he pay restitution, costs, and a fine. On the basis of defendant's testimony, the trial court ruled that he had violated the terms of his probation and resentenced defendant accordingly. Yantis, 125 Ill.App.3d at 768, 81 Ill.Dec. at 18, 466 N.E.2d at 604.

On appeal, the defendant in Yantis contended that he was denied effective assistance of counsel because his attorney did not object when the State called him to testify as its sole witness. In order to resolve that claim, this court in Yantis wrote that "[a] preliminary inquiry must be made as to whether the fifth amendment privilege exists at a probation revocation hearing." (Yantis, 125 Ill.App.3d at 769, 81 Ill.Dec. at 18, 466 N.E.2d at 604.) Ultimately, this court concluded that such a privilege does exist at probation revocation hearings. Yantis, 125 Ill.App.3d at 769, 81 Ill.Dec. at 19, 466 N.E.2d at 605.

Contemporaneously with the decision of this court in Yantis, the United States Supreme Court, in Minnesota v. Murphy (1984), 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409, addressed the issue of whether the fifth amendment applied to prohibit the introduction into evidence in a subsequent criminal prosecution of admissions made by defendant to his probation officer. The Court held that if questions put to the probationer, however relevant they might be to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution, then a fifth amendment right against self-incrimination would likely attach. ( Murphy, 465 U.S. at 435, 104 S.Ct. at 1146, 79 L.Ed.2d at 424-25.) In footnote 7, however, the Court noted the following:

"The situation would be different if the questions put to a probationer were relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding. * * * Neither, in our view, would the privilege be available on the ground that answering such questions might reveal a violation of [a probationary] requirement and result in the termination of probation. Although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding." Murphy, 465 U.S. at 435 n. 7, 104 S.Ct. at 1146 n. 7, 79 L.Ed.2d at 425 n. 7.

Two years after its decision in Murphy, the Supreme Court, in Allen v. Illinois (1986), 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296, dealt with the question of whether proceedings under the Illinois Sexually Dangerous Persons Act (Ill.Rev.Stat.1985, ch. 38, par. 105-1.01 et seq.) were "criminal" within the meaning of the fifth amendment's guarantee against compulsory self-incrimination. In the course of resolving that issue, the Court referred to its decision in Murphy and wrote the following:

"Only two Terms ago, in Minnesota v. Murphy, 465 U.S. at 435, n. 7, [104 S.Ct. at 1146 n. 7, 79 L.Ed.2d at 425, n. 7], this Court...