People v. DeWitt

383 N.E.2d 694, 66 Ill. App. 3d 146, 22 Ill. Dec. 886, 1978 Ill. App. LEXIS 3627
Appellate Court of Illinois·Decided November 21, 1978·No. 77-279·Published·Cited by 12 cases

Opinions

Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

Defendant, Vernon De Witt, entered a negotiated plea of guilty to the offense of burglary in the circuit court of Saline County and was sentenced to two years probation. Seven months thereafter a petition to revoke probation was filed based on an alleged felony-theft committed by defendant. Following a probation revocation hearing the lower court found that defendant violated a condition of his probation as alleged and consequently sentenced defendant to a term of one to three years imprisonment on the underlying conviction. Defendant appeals.

Three issues are presented for our consideration: (1) whether the State failed to meet its burden of proof; (2) whether the defendant was denied a fair revocation hearing because the court refused to grant defense discovery motions; and (3) whether the court abused its discretion in denying a defense request for a continuance.

At the revocation hearing Henry and Edith Miller testified that on January 1, 1977, they drove to Indiana, leaving their son Donald to take care of their trailer-home. They returned on January 4, and discovered that a large quantity of coins were missing from their home. These included *177.50 in wrapped coin rolls and approximately *25 in additional loose change.

Donald Miller testified that after his parents left on January 1, he invited eight people to his parents’ home for a party. Those present at the party were defendant, Roger Rochwalik, Agnes Snyder, two other women and three children. The party lasted throughout the night and into the morning of January 2.

Agnes Snyder then testified that on January 3 or 4, defendant came to her home which she shared with Roger Rochwalik. She stated that she was unsure of the date of this meeting and, on cross-examination, stated that this meeting may have likely taken place on January 3. This was the first time Snyder had seen Rochwalik and defendant together since the party at the Miller’s home. During the course of the meeting, Rochwalik asked defendant, “to go outside and bring the money in.” She stated that defendant then brought in several rolls of coins and counted out some money which was then used to purchase “pot.” On the next night, defendant again visited Rochwalik and during this meeting Snyder heard defendant estimate that “we must have gotten *150 or *200 in coins.” Snyder also testified that Rochwalik admitted to her that he had stolen the coins from the Miller’s home.

In his own behalf, defendant testified that he had visited Rochwalik on January 2 and again on January 4, but he denied the substance of Snyder’s testimony concerning the coins. Further, he denied stealing the coins. He testified that he slept at his home during the day of January 3 and had spent the remainder of that day with Linda Allen. Other defense witnesses testified that they saw defendant leave his home on January 3 with Allen.

The primary testimony linking defendant to the theft was that of Agnes Snyder. Defendant first contends that this testimony cannot support the trial court’s finding because, he argues, it was inconsistent and untrustworthy. We have carefully reviewed the record and we find no substantial inconsistencies in Snyder’s testimony. While the witness was unsure of the dates of the meetings between defendant and Rochwalik, her confusion in this respect was repeatedly admitted by her and, in any event, was of minor importance to the gist of her testimony. Defendant further urges that the “tenor” of her testimony was not worthy of belief and he points to various conflicts between her testimony and that of defense witnesses. However, questions of witness credibility and conflicting evidence are matters for the trial judge to resolve as the trier-of-fact. Because he sees and hears the witnesses, he is in a position superior to a reviewing court for assessing their demeanor, judging their credibility and weighing the evidence. (People v. Cooper, 66 Ill. 2d 509, 363 N.E.2d 817; People v. Crowell, 53 Ill. 2d 447, 292 N.E.2d 721.) Only when the testimony is contrary to the manifest weight of the evidence will a reviewing court substitute its judgment for that of the trial court. (People v. Crowell.) In the instant case, we find the evidence neither so unsatisfactory, improbable, nor insufficient as to warrant disturbing the findings of the lower court.

We turn next to defendant’s contention concerning discovery. Prior to the revocation hearing, defendant filed a motion requesting the production of any statements made by prosecution witnesses. The request was renewed at the hearing and was denied by the trial court. The record shows that there had existed several such written statements including one by Agnes Snyder.

Defendant contends that the lower court erred in denying the discovery under the Supreme Court Rules governing discovery in criminal cases (Ill. Rev. Stat. 1977, ch. 110A, pars. 411-415). In support thereof, he urges that we construe the language in Rule 411 liberally so as to require the application of the discovery rules in probation revocation proceedings. He also urges that the statutory rights to “confrontation, cross-examination and representation by counsel” of a probationer in a probation revocation hearing (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6— 4(c)) would be illusory without the application of the discovery rules.

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People v. DeWitt, 383 N.E.2d 694, 66 Ill. App. 3d 146, 22 Ill. Dec. 886, 1978 Ill. App. LEXIS 3627 (Ill. Ct. App. 1978).

383 N.E.2d 694 (People v. DeWitt) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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