{ "id": 5408797, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. George Lewis, Defendant-Appellant", "name_abbreviation": "People v. Lewis", "decision_date": "1975-05-13", "docket_number": "No. 58619", "first_page": "777", "last_page": "781", "citations": [ { "type": "official", "cite": "28 Ill. App. 3d 777" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "404 Ill. 487", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5308647 ], "year": 1961, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/ill/404/0487-01" ] }, { "cite": "303 N.E.2d 192", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.App.3d 716", "category": "reporters:state", "reporter": "Ill. 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App.", "case_ids": [ 3387392, 3387583 ], "opinion_index": 0, "case_paths": [ "/ill-app/314/0198-01", "/ill-app/314/0198-02" ] }, { "cite": "79 A.L.R.2d 890", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "year": 1961, "pin_cites": [ { "page": "930-931" }, { "page": "897-907" } ], "opinion_index": 0 }, { "cite": "265 Minn. 377", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 363497 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/minn/265/0377-01" ] }, { "cite": "244 Iowa 1343", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8644127 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/iowa/244/1343-01" ] }, { "cite": "256 N.E.2d 449", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill.2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2889895 ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0458-01" ] }, { "cite": "155 N.E.2d 641", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill.App.2d 156", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5195206 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/20/0156-01" ] }, { "cite": "168 Ill.App. 541", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5346391 ], "opinion_index": 0, "case_paths": [ "/ill-app/168/0541-01" ] }, { "cite": "315 N.E.2d 116", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill.App.3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5344413 ], "pin_cites": [ { "page": "749-750" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0745-01" ] }, { "cite": "302 N.E.2d 709", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.App.3d 446", "category": "reporters:state", "reporter": "Ill. 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App. 2d", "case_ids": [ 1590981 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0480-01" ] }, { "cite": "299 N.E.2d 503", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill.App.3d 503", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2854921 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0503-01" ] }, { "cite": "292 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill.2d 447", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927159 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0447-01" ] }, { "cite": "517 S.W.2d 293", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10123937 ], "opinion_index": 0, "case_paths": [ "/sw2d/517/0293-01" ] }, { "cite": "50 Wis. 2d 540", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8671303 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/wis-2d/50/0540-01" ] }, { "cite": "246 N.E.2d 35", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "107 Ill.App.2d 177", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1596850 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-2d/107/0177-01" ] }, { "cite": "164 N.E.2d 528", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "24 Ill. App.2d 364", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5209638 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-2d/24/0364-01" ] }, { "cite": "59 Colum. L. Rev. 311", "category": "journals:journal", "reporter": "Colum. L. Rev.", "year": 1959, "pin_cites": [ { "page": "325" } ], "opinion_index": 0 }, { "cite": "389 U.S. 128", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11335632 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/389/0128-01" ] }, { "cite": "227 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "83 Ill.App. 2d 272", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2557582 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-2d/83/0272-01" ] }, { "cite": "302 N.E.2d, 244", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.App.3d 93", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2682370 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0093-01" ] }, { "cite": "264 N.E.2d 589", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "130 Ill.App.2d 192", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2827555 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0192-01" ] } ], "analysis": { "cardinality": 653, "char_count": 10986, "ocr_confidence": 0.74, "pagerank": { "raw": 1.3056557103294478e-07, "percentile": 0.6231575663291566 }, "sha256": "148e23191ebbd483d128a51724bc1f28673960de44f1cf932e71957a2790f7d5", "simhash": "1:4e8731953dc5b6f1", "word_count": 1813 }, "last_updated": "2023-07-14T21:36:05.902616+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. George Lewis, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE LEIGHTON\ndelivered the opinion of the court:\nThis appeal is from an order that revoked an admission to probation. The dispositive issue is whether the trial court erred in ordering the revocation on evidence that consisted only of a hearsay statement read under oath by a probation officer.\nI.\nIn November 1971, appellant George Lewis pled guilty to a charge of theft and was admitted to probation for 5 years. Under the terms of the probation order, he was to report monthly to a probation officer and not violate any criminal law of this state. July 28, 1972, on allegations that he had violated the order, the Probation Department filed an application asking that a warrant issue for appellant\u2019s arrest. The warrant issued; and on September 6, a rule was entered requiring appellant to show cause why his probation should not be terminated. The application was supported by an unsworn statement which reported appellant\u2019s conduct as known to unnamed persons in the Probation Department. The statement was signed by Robert L. Moran, deputy chief probation officer, although he did not claim personal knowledge of the facts reported.\nFive days later, with appellant present and represented by court-appointed counsel, the trial court conducted a hearing to determine whether there were grounds for revocation. When it began, appellant\u2019s counsel inquired of the State if it had available for introduction in evidence \u201c* # * the certified copy of a conviction or any conviction that may have been the basis as alleged in the petition on the rule * * The assistant State\u2019s attorney answered the inquiry by saying that he had \u201csome testimony of the probation officer if we get to that point. If it\u2019s required, we will respond to that.\u201d Thereafter, on being directed by the court to proceed, the State called Mel Williams, a probation officer who was sworn as a witness and then read to the court what Robert Moran had said in the statement filed in support of the rule. This reading reviewed appellant\u2019s admission to probation in 1971 and continued with a recital that his arrest had been requested \u201c* * * when it was reported to the Court that the subject had failed to report to the probation officer as ordered by rule of Court. And also in that on June 30, 1972, the defendant appeared in Branch 28 of the First Municipal District at which time he was convicted of attempt to commit a crime in Case Number 72-116007 and he was sentenced to 30 days in the House of Correction, time considered served. The probation office [sic] further reports to the Court that on April 7, 1972, the subject was convicted of the charge of 38-22-50 in Case Number 72-942289 in Branch 57 of the First Municipal District at which time he was sentenced to serve a term of 60 days in the House of Correction by his Honor Judge Arthur Zelezinski.\u201d\nWhen Williams finished his reading, the trial judge inquired of appelIant\u2019s counsel if he wanted to cross-examine the witness. Counsel said he did not. Then, on the court\u2019s inquiry whether the State had anything else to offer, the assistant State\u2019s attorney replied, \u201cNothing, your Honor, at this time.\u201d On hearing this, appellant\u2019s counsel again inquired \u201c* # * if the State has a certified copy of either of those convictions that are mentioned.\u201d He said that he wanted to look at the records of the alleged convictions. The trial judge then observed that the State had not offered any. \u201cWell, then,\u201d replied appellant\u2019s counsel, \u201call they are going on at this time is the mere hearsay allegation that this is what happened.\u201d To this statement, the trial judge responded that Williams\u2019 testimony was \u201cHearsay allegation under oath.\u201d\nImmediately thereafter, a colloquy ensued in which appellant\u2019s counsel stated that his client was not going to offer any testimony but was insisting on the State proving the grounds for revocation of the probation. Thereupon, the trial court announced it was finding \u201c\u00b0 * * that based upon the testimony that it has heard, there is a violation of probation. A condition of the probation was placed upon Mr. Lewis by me at the time I placed him on probation. The order of court will be that his probation will be terminated having been revoked as unsatisfactory.\u201d The revocation order was entered; a hearing in aggravation and mitigation was conducted; and appellant was sentenced to serve 5 to 8 years. The issue presented arises from the revocation of his probation.\nII.\nThe revocation of a probation is a question that rests in the sound discretion of the trial court. (People v. Williams, 130 Ill.App.2d 192, 264 N.E.2d 589; People v. Brooks, 14 Ill.App.3d 93, 302 N.E.2d, 244.) A probationer, however, has rights in his probation which must be respected in any revocation proceeding. (People v. Coffman, 83 Ill.App. 2d 272, 227 N.E.2d 108; compare Mempa v. Rhay, 389 U.S. 128, 19 L.Ed. 2d 336, 88 S.Ct. 254 (1967); see ABA Standards Relating to Probation \u00a7\u00a7 5.1 to 5.4 (1970); Note, Legal Aspects of Probation Revocation, 59 Colum. L. Rev. 311, 325 (1959).) For this reason, it is generally said that he cannot be deprived of his liberty by revocation of his probation without being accorded substantial justice. (See People v. Price, 24 Ill. App.2d 364, 164 N.E.2d 528; People v. Sluder, 107 Ill.App.2d 177, 246 N.E.2d 35; State ex rel. Johnson v. Cady (1971), 50 Wis. 2d 540, 185 N.W.2d 306; Scamardo v. State (Tex. Cr. App. 1974), 517 S.W.2d 293.) The violations with which he may be charged must be proved by a preponderance of the evidence. (People v. Crowell, 53 Ill.2d 447, 292 N.E.2d 721; People v. Coleman, 12 Ill.App.3d 503, 299 N.E.2d 503.) And the. burden of proof is on the State. People v. Arroyo, 112 Ill.App.2d 480, 251 N.E.2d 409; People v. Hicks, 125 Ill.App.2d 48, 259 N.E.2d 846; see Ill. Rev. Stat. 1971, ch. 38, par. 117 \u2014 3(b).\nIn this case, Probation Officer Mel WilHams was the only witness and his testimony the only evidence presented at the revocation hearing. WilHams was caHed to prove the State\u2019s claim that appellant had violated the terms of his probation. From what he said, however, it was clear that he lacked personal knowledge of appellant\u2019s conduct during the time in question. As his entire testimony, WHliams read the unsworn statement of Chief Deputy Probation Officer Robert L. Moran, the one filed by the Department to support tire rule to show cause. Moran\u2019s statement was read by Williams to prove the truth of the matters he had asserted. This was hearsay. (People v. Carpenter, 28 Ill.2d 116, 121, 190 N.E.2d 738.) It was not competent evidence. (People v. Dotson, 111 Ill.App.2d 306, 310, 250 N.E.2d 174; Patton v. Armstrong, 6 Ill.App.3d 998, 286 N.E.2d 351; compare People v. Collins, 14 Ill.App.3d 446, 448, 302 N.E.2d 709; People v. Dandridge, 20 Ill.App.3d 745, 749-750, 315 N.E.2d 116.) And recognizing this fact, appellant\u2019s counsel pointed to the hearsay nature of the State\u2019s evidence; but his comments only drew the trial judge\u2019s response that it was \u201c[hjearsay allegation under oath.\u201d It is true, as the State argues, that the comments were not specific objections to the admissibility of WilHams\u2019 testimony. However, they expressed the objection that the evidence, because it was entirely hears\u00e1y, was not competent to prove the violations which the State claimed would support revocation of appellant\u2019s probation.\nThis objection-has particular application to this case. When Williams read the statement, he could not repeat Moran\u2019s expression of personal knowledge that appellant failed to report to a probation officer and had suffered convictions for crimes while he was on probation Careful scrutiny of Moran\u2019s statement shows it recited what the Probation Department was reporting to the court from some undisclosed source. This statement was read to prove facts which the State claimed would show appellant had violated his probation. It is a general rule that hearsay evidence does not tend to establish a fact sought to be proven. (Reeve v. Leibrandt Plumbing Co., 168 Ill.App. 541.) Even when it is received without objection and thus considered competent, hearsay evidence falls short of the proof necesary to deprive a man of his liberty. (Looby v. Buck, 20 Ill.App.2d 156, 155 N.E.2d 641; compare People v. McCoy, 44 Ill.2d 458, 256 N.E.2d 449.) To the extent that courts have considered testimony of the kind given by Williams, they have given it little or no weight as probative evidence. (See Shepard v. Gerholdt (1953), 244 Iowa 1343, 60 N.W.2d 547; Oltmanns v. Oltmanns (Minn. Sup. Ct., 1963), 265 Minn. 377, 121 N.W.2d 779; Annot., 79 A.L.R.2d 890, 930-931 (1961).) This is particularly true where, as in the case before us, the hearsay is a repetition of hearsay. Therefore, the trial court erred in ordering revocation of appellant\u2019s probation on evidence that consisted only of a hearsay statement read under oath by Probation Officer Mel Williams. The revocation order, and the sentence imposed thereafter, are reversed; the cause is remanded for further proceedings not inconsistent with the views expressed in this opinion. People v. Warren, 314 Ill. App. 198, 40 N.E.2d 845 (abstract opinion); see Brown v. State (Del. 1968), 249 A.2d 269.\nReversed and remanded with directions.\nDOWNING, P. J., and HAYES, J., concur.\nNo effort was made, as could have been, to qualify Williams as a witness who would have testified from duly maintained records of business in the Probation Department. (See Supreme Court Rule 236(a), Ill. Rev. Stat. 1971, ch. 110A, par. 236(a); Ill. Rev. Stat. 1971, ch. 38, par. 115 \u2014 5; People v. Wells, 80 Ill.App.2d 187, 224 N.E.2d 288; 32 C.J.S. Evidence \u00a7 638; compare Atlee Electric Co. v. Johnson Construction Co., 14 Ill.App.3d 716, 303 N.E.2d 192.) Therefore, our opinion in this case is not intended to suggest that. only a probation officer with personal knowledge of a probationer\u2019s conduct can give competent evidence in a revocation proceeding.\nThe State, under such circumstances, should be prepared to offer certified copies of the convictions and be prepared to establish that the person convicted was, in fact, the probationer.\nWe are not unmindful of cases in this state which, under different circumstances, have held that hearsay which is admitted without objection may be considered and given its natural probative effect. (See Town of Cicero v. Industrial Corn., 404 Ill. 487, 495.) It is our view, however, that from the comments of defendant\u2019s counsel, Williams\u2019 testimony was not \u201cconsent\u201d hearsay. Compare Annot., 79 A.L.R.2d 890, 897-907 (1961).", "type": "majority", "author": "Mr. JUSTICE LEIGHTON" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (J. Powers McGuire, Assistant Public Defender, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Kenneth L. Gillis, Thomas A. Mauet, and John B. Adams, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. George Lewis, Defendant-Appellant.\n(No. 58619;\nFirst District (2nd Division)\nMay 13, 1975.\nJames J. Doherty, Public Defender, of Chicago (J. Powers McGuire, Assistant Public Defender, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Kenneth L. Gillis, Thomas A. Mauet, and John B. Adams, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0777-01", "first_page_order": 801, "last_page_order": 805 }