{ "id": 349554, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL McNAIRY, Defendant-Appellant", "name_abbreviation": "People v. McNairy", "decision_date": "1999-12-15", "docket_number": "No. 2\u201498\u20140682", "first_page": "220", "last_page": "223", "citations": [ { "type": "official", "cite": "309 Ill. App. 3d 220" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "51 Ill. 2d 96", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391034 ], "year": 1972, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0096-01" ] }, { "cite": "11 Ill. App. 3d 775", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2928650 ], "year": 1973, "pin_cites": [ { "page": "779" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0775-01" ] }, { "cite": "296 Ill. App. 3d 146", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222632 ], "year": 1998, "pin_cites": [ { "page": "148", "parenthetical": "probation revocation proceeding is \"noncriminal\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0146-01" ] }, { "cite": "226 Ill. App. 3d 753", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5238794 ], "year": 1992, "pin_cites": [ { "page": "759" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0753-01" ] }, { "cite": "125 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3632399 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "771" }, { "page": "771", "parenthetical": "proceeding is \"still criminal\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0767-01" ] }, { "cite": "465 U.S. 420", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11336129 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/465/0420-01" ] }, { "cite": "245 Ill. App. 3d 977", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383744 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "980" }, { "page": "981" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0977-01" ] }, { "cite": "216 Ill. App. 3d 884", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5288173 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "888" }, { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0884-01" ] } ], "analysis": { "cardinality": 443, "char_count": 7517, "ocr_confidence": 0.753, "pagerank": { "raw": 6.518572866892625e-08, "percentile": 0.4005013419701303 }, "sha256": "ec283119cdb773fd41f92e993d6f52f8034c9bbe672349e890f08671aadd692f", "simhash": "1:81ae2bc22fc88b65", "word_count": 1206 }, "last_updated": "2023-07-14T20:36:09.526568+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. EARL McNAIRY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nDefendant, Earl McNairy, appeals from the trial court\u2019s order revoking his probation and sentencing him to a two-year prison term for theft (720 ILCS 5/16 \u2014 1(a)(2)(A) (West 1994)). On appeal, defendant argues that the trial court improperly ordered him to testify as the State\u2019s adverse witness in the probation revocation proceeding. Defendant contends that article I, section 10, of the Illinois Constitution (111. Const. 1970, art. I, \u00a7 10) confers a privilege against self-incrimination that extends to noncriminal probation violations. Defendant also contends that the State did not sufficiently prove that he violated his probation. We affirm.\nDefendant pleaded guilty to a charge of theft and was sentenced to 30 months\u2019 probation and 120 days\u2019 imprisonment. On May 31, 1996, defendant admitted a probation violation, and the trial court sentenced him to 180 days\u2019 imprisonment and continued probation. Each month, defendant was required to report to his probation officer, Marvelle Vonderohe.\nOn July 1, 1997, the State filed a second probation revocation petition, alleging that defendant failed to report from January 1997 to May 1997. At the revocation hearing, the State called defendant, over his objection, as an adverse witness. Defendant testified only that he could not remember whether he contacted the probation office during that period.\nVonderohe testified that on June 10, 1996, she explained the probation reporting requirements to defendant and told him that he must receive permission before leaving the state. Vonderohe also testified that she did not communicate with defendant from January to May 1997. In July 1997, defendant told Vonderohe that he had left her a voice mail message in July 1996 detailing his plans to go to Mississippi to visit a relative who was ill.\nDefendant then testified on his own behalf and admitted that he went to Mississippi in July 1996 and returned in June 1997. Although he left Illinois without receiving Vonderohe\u2019s permission, he denied knowing that he violated his probation when he did so. Defendant also claimed that he left Vonderohe a July 1996 voice mail message detailing his plans to go to Mississippi. Vonderohe testified in rebuttal that she reviewed with defendant the standard terms of probation, including restrictions on out-of-state travel, before defendant left the state.\nThe trial court found the petition to revoke was proved by a preponderance of the evidence. Defendant\u2019s motion for a new hearing was denied, and the court resentenced defendant to a term of two years in the Department of Corrections. This appeal followed.\nDefendant contends that he was denied a fundamentally fair revocation hearing because he was forced to testify as a witness for the State. In a probation relocation proceeding, the State must establish, by a preponderance of the evidence, that the defendant violated a condition of his probation. People v. Davis, 216 Ill. App. 3d 884, 888 (1991). A probationer is entitled to due process of law at a probation revocation hearing; however, only \u201cminimum requirements\u201d of due process need be applied. People v. Kruszyna, 245 Ill. App. 3d 977, 980 (1993). These \u201cminimum requirements\u201d include an opportunity for the probationer to.be heard, present evidence, confront witnesses, and be represented by counsel \u2014 in other words, a fair determination that the acts that formed the basis for the revocation petition did occur and that fairness be accorded a probationer during the proceeding. Kruszyna, 245 Ill. App. 3d at 981.\nThe United States Supreme Court has determined that compelling a probationer to testify as to criminal violations of probation does not offend the privilege against self-incrimination contained in the fifth amendment to the United States Constitution (U.S. Const., amend. V). See Minnesota v. Murphy, 465 U.S. 420, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984). This state, at about the same time, had held that probation revocation proceedings were criminal in nature, albeit with a lesser burden of proof, and, therefore, a defendant could not be called to testify against himself in such a proceeding. See People v. Yantis, 125 Ill. App. 3d 767, 771 (1984). However, this court commented that Yantis was \u201ceffectively overruled by Murphy.\u201d See Davis, 216 Ill. App. 3d at 890. Later, the appellate court explicitly stated \u201cthat consistent with the fifth amendment to the United States Constitution, the State may call a defendant to testify at a probation revocation hearing to elicit testimony which would show that the defendant had violated conditions of his probation but which would not incriminate him in any other proceedings.\u201d People v. Martin, 226 Ill. App. 3d 753, 759 (1992).\nThe Illinois Constitution, similar to the fifth amendment to the United States Constitution, provides that \u201c[n]o person shall be compelled in a criminal case to give evidence against himself.\u201d Ill. Const. 1970, art. I, \u00a7 10. Appellate courts have disagreed as to whether a probation revocation hearing is a criminal case. See People v. Bell, 296 Ill. App. 3d 146, 148 (1998) (probation revocation proceeding is \u201cnoncriminal\u201d); Yantis, 125 Ill. App. 3d at 771 (proceeding is \u201cstill criminal\u201d). The term \u201ccriminal case\u201d has been interpreted to mean any case or proceeding, criminal, civil, or quasi-criminal, in which a person\u2019s testimony might tend to convict him of a criminal offense or subject him to a fine or incarceration. People v. Davis, 11 Ill. App. 3d 775, 779 (1973). We agree with this definition. A probation revocation hearing can have a profound impact on the life, liberty, and property of the defendant. See People v. Pier, 51 Ill. 2d 96, 100 (1972). Upon a finding that the terms of probation have been violated, a defendant may be resentenced to any disposition that was available at the time of the initial sentencing. 730 ILCS 5/5 \u2014 6\u20144 (West 1998). Thus, a defendant resentenced after a probation revocation hearing could end up with additional fines, in jail, or, as here, in prison. A proceeding with such results requires more than the \u201cminimum requirements\u201d of due process. Clearly, a defendant\u2019s testimony in a probation revocation hearing might subject him to a fine or incarceration. Therefore, the protections afforded under article I, section 10, of the Illinois Constitution apply to a probation revocation proceeding. Accordingly, a defendant may not be called as a witness by the State to testify against himself in such a proceeding. Here, the trial court erred in allowing the State to call defendant to testify as an adverse witness.\nHowever, in this case, the error was harmless. Defendant\u2019s testimony when called by the State was vague and did not actually implicate defendant in a probation violation. The testimony given by Vonderohe was sufficient for the court to find a violation of the probation rules. Therefore, we affirm the trial court\u2019s judgment in this case.\nThe judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nGEIGER and RAPE JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "G. Joseph Weller and Bruce Kirkham, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin P Moltz and Marshall M. Stevens, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL McNAIRY, Defendant-Appellant.\nSecond District\nNo. 2\u201498\u20140682\nOpinion filed December 15, 1999.\nG. Joseph Weller and Bruce Kirkham, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin P Moltz and Marshall M. Stevens, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0220-01", "first_page_order": 240, "last_page_order": 243 }