No. 3--95--0425
(Consolidated with 3--95--0426)
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 93--CF--552 and
) 94--CF--372
DEBORAH J. NECKOPULOS, ) Honorable
) John Michela,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________
MODIFIED UPON DENIAL OF REHEARING
JUSTICE SLATER delivered the opinion of the Court:
________________________________________________________________
Deborah Neckopulos was charged with unlawful possession of a
controlled substance. 720 ILCS 570/402(c)(West 1994). While on
bond for this offense, Neckopulos was charged with another count
of unlawful possession of a controlled substance. 720 ILCS 570/
402(c)(West 1994). Neckopulos entered negotiated pleas of guilty
to both charges in exchange for the State's agreement not to
object to her placement in TASC. Neckopulos was sentenced to
concurrent 36 month terms of probation conditioned upon her
compliance with the TASC program. The State subsequently filed a
petition to revoke her probation for failure to co-operate with
TASC resulting in her discharge from the program. After a
hearing, the trial court revoked Neckopulos' probation and
sentenced her to consecutive sentences of one and three years.
Neckopulos appeals the order revoking her probation in each case.
Neckopulos raises the following issues on appeal: (1)
whether the trial court erred in revoking her probation because
evidence presented by the State demonstrated that her failure to
attend TASC meetings was not wilful, (2) whether the trial court
erred in revoking her probation because evidence presented by the
State demonstrated that she did not have a meaningful opportunity
to begin drug treatment for her addiction due to her attendance
at only two meetings, (3) whether the trial court erred by
permitting the State to call her as a witness during the
probation revocation hearing in violation of the Criminal
Jurisprudence Act (725 ILCS 125/6 (West 1994)) and, (4) whether
the trial court violated her fifth amendment privilege against
self-incrimination when he compelled her to testify for the State
regarding her failure to attend TASC.
At the probation revocation hearing, the court took judicial
notice of the fact that Neckopulos was placed on probation
conditioned upon her compliance with the TASC program, and that
the alleged violation was noncompliance with that condition.
The State called Neckopulos as its sole witness. Neckopulos
objected to being called as a witness, invoking her fifth
amendment privilege against self-incrimination. The trial court
ruled that the privilege was unavailable to her because the
hearing did not involve a criminal offense, but rather only a
non-criminal allegation of a probation violation. Over
Neckopulos' standing objection, the trial court ordered
Neckopulos to take the stand.
Neckopulos testified that she had been placed on probation
and, as a condition thereof, was obligated to comply with TASC.
She also indicated her awareness that the TASC treatment would
last 36 months. She stated that she attended Duane Dean Recovery
Unit (Duane Dean) as directed by TASC. She was, however, unable
to recall either when she visited Duane Dean or the number of
those visits. She subsequently stated that she attended on
approximately six occasions. She admitted that she stopped
attending Duane Dean though she was not directed to do so by
TASC.
When again asked by the State whether she was aware that
treatment was likely to last for an extended period, Neckopulos
responded in the negative and indicated that she had no memory of
the State's earlier question concerning the duration of her
treatment. Her explanation for this memory failure was that she
was an addict whose "brains are not quite right."
She clarified that she was unable to remember the number of
times she attended Duane Dean because she was almost constantly
high during that time period. She was not aware that she was
required to remain in contact with TASC. She explained that she
did not report to TASC because she was unable to think when on
cocaine. She was not only unaware of the dates of her
appointments, she was unaware what day it was. Finally,
Neckopulos testified that despite her efforts she has been
unsuccessful in both in-patient and out-patient treatment.
The trial court found that by her failure to comply with the
TASC mandate to complete a course of treatment at Duane Dean,
Neckopulos wilfully failed to comply with the terms of probation.
The reason for her failure was that her addiction to cocaine
deprived her of the reasoning to comply.
Neckopulos first argues that the revocation of her probation
was improper because the evidence presented by the State failed
to demonstrate that her probation violation was wilful.
Neckopulos' argument assumes that the State must prove that the
probationer wilfully conducted herself in violation of the
conditions of probation in order for probation revocation to be
proper. This underlying assumption is wholly without supporting
authority, and simply does not accurately state Illinois law.
Probation is a privilege to be employed when "the
defendant's continued presence in society would not be
threatening and the defendant's rehabilitation would be
enhanced." People v. Allegri, 109 Ill. 2d 309, 314, 487 N.E.2d
606, 607 (1985). Due to the fact that the purposes of probation
may be frustrated by nonculpable acts, revocation of probation
need not be based on the wilful conduct of the defendant. People
v. Davis, 123 Ill. App.3d 349, 462 N.E.2d 827 (1984); Allegri,
109 Ill. 2d 309, 487 N.E.2d 606. It is apparent from the facts
of this case that the purpose of Neckopulos' probation was to
enable her to receive treatment for her drug addiction. Her
failure to attend this treatment frustrated the purpose of her
probation regardless of whether such failure was wilful. As the
State was not required to prove that Neckopulos' failure to
comply with TASC was wilful, we conclude that any evidence of
Neckopulos' incapacity for wilful activity did not render the
trial court's revocation of her probation erroneous.
Neckopulos next argues that the trial court's revocation of
her probation was erroneous because she had not had a meaningful
opportunity to begin drug treatment before TASC terminated her
from the program. Like the defendants in People v. Carter, 165
Ill. App. 3d 169, 518 N.E.2d 1068 (1988) and People v. Hamelin,
181 Ill. App. 3d 350, 537 N.E.2d 3 (1989), Neckopulos contends
that her probation violation occurred before she had a meaningful
opportunity to begin treatment and, therefore, revocation of her
probation defeated the goals of crime prevention and
rehabilitation expressed in the Alcoholism and Other Drug Abuse
and Dependency Act (the Drug Abuse Act) (formerly Alcohol and
Substance Abuse Act). 20 ILCS 301/1.1 et. seq. (West 1994).
In Carter, the defendant had been ordered to participate in
an in-patient TASC treatment program. While the defendant was
still tenth on a waiting list for admission into the program, he
violated his probation by committing a theft and probation was
revoked. The appellate court reversed the order revoking
probation, finding that the trial court had improperly used its
discretion to frustrate the purposes of the Drug Abuse Act
because defendant had never had an opportunity to participate in
the program prescribed for him by the court.
Similarly, in Hamelin, the defendant's probation was revoked
before he ever had an opportunity to begin treatment. Hamelin
was sentenced to a prison term to be followed by a period of
probation under the supervision of TASC to treat his drug
addiction. There, the trial court revoked defendant's probation
because defendant attempted to bring cocaine into prison. The
appellate court reversed holding that the defendant should have
had the opportunity to begin the therapy that the trial court
originally prescribed for him.
The cases relied upon by Neckopulos are clearly
distinguishable from the instant case. In both Carter and
Hamelin, the defendants committed probation violations related to
their drug addictions before having the opportunity to commence
the drug treatment prescribed by the court. Neckopulos was not
deprived of an opportunity to begin the treatment prescribed by
the court. In fact, Neckopulos did begin the treatment. She
admitted that after several treatment sessions, she stopped
attending treatment though not directed to do so by TASC. The
lack of progress in her court-prescribed treatment was not caused
by the unavailability of the treatment but rather by her own
failure to take advantage of the opportunity presented. We find
that the trial court's order revoking Neckopulos' probation did
not deprive her of a meaningful opportunity to begin court-
ordered treatment.
Neckopulos next contends that she was called as a witness in
violation of the Criminal Jurisprudence Act (Act). 725 ILCS
125/6 (West 1994). She argues that the Act clearly prohibited
her from being called by the State in the absence of a request by
her to be deemed a competent witness. As she made no such
request, the State improperly called her as a witness at the
hearing to revoke her probation.
The Act provides, in relevant part, that "[a] defendant in
any criminal case or proceeding shall only at his or her own
request be deemed a competent witness, and the person's neglect
to testify shall not create a presumption against the person, nor
shall the court permit a reference or comment to be made to or
upon that neglect." 725 ILCS 125/6 (West 1994).
The issue facing us is one of statutory construction. The
primary rule of statutory construction is to ascertain and give
effect to legislative intent, and that intent is best evidenced
by the language of the statute. People v. Fitzpatrick, 158 Ill.
2d 360, 633 N.E.2d 685 (1994). "Where the statutory language is
clear and unambiguous, it will be given effect without resorting
to other aids for construction." Fitzpatrick, 158 Ill. 2d at
364, 633 N.E. 2d at 687. We find the language of the present
provision to be clear and unambiguous and confine our analysis to
its language.
From the plain language of the provision, we conclude that
it clearly prohibits the State from calling a defendant as a
witness (absent a request on her part) at any criminal
proceeding. However, a revocation proceeding "is not a criminal
proceeding." Minnesota v. Murphy, 465 U.S. 420, 435-436 n.7, 79
L. Ed. 2d 409, 425 n. 7, 104 S. Ct. 1136, 1146-47 n.7 (1984),
citing Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S.
Ct. 1756 (1973). Therefore, the Act, which by its own language
applied only to criminal proceedings, did not bar the State from
calling Neckopulos as a witness at the revocation hearing.
Neckopulos finally contends that her fifth amendment right
against self-incrimination was violated when she was compelled to
be a witness against herself despite her assertion of the
privilege. We find this claim to be without merit.
The fifth amendment provides, in pertinent part, that no
person "shall be compelled in any criminal case to be a witness
against himself." U.S. Const., amend. V. The Supreme Court has
broadly interpreted the fifth amendment prohibition against
compelled testimony to permit a person not only to "refuse to
testify against himself at a criminal trial in which he is the
defendant, but also privileges him not to answer official
questions put to him in any other proceeding, civil or criminal,
formal or informal, where the answers might incriminate him in
future proceedings." Murphy, 465 U.S. 420, 426, 79 L. Ed. 409,
418, 104 S. Ct. 1136, quoting Lefkowitz v. Turley, 414 U.S. 70,
77, 38 L. Ed. 2d 274, 281, 94 S. Ct. 316 (1973).
In Murphy, the Supreme Court was faced with the issue of
whether a probationer's incriminating responses to a probation
officer's questions were admissible against him in a subsequent
criminal proceeding. The Court concluded that if the questions
posed to the probationer, even if relevant to his probationary
status, required 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.
420, 79 L. Ed. 2d 409, 1045 S. Ct. 1136. However, the Court also
noted that:
"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, 79 L. Ed. 2d at
425 n.7., 104 S. Ct. at 1146 n.7.
In People v. Martin, 226 Ill. App. 3d 753, 589 N.E.2d 815,
(1992), the State called a defendant to testify at a probation
revocation hearing concerning a non-criminal violation of a
condition of probation. Following the analysis in Murphy, the
court in Martin concluded that "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." 226 Ill. App. 3d at 759, 589 N.E.2d
at 818. Accord People v. Davis, 216 Ill. App. 3d 884, 576 N.E.2d
510, (1991); People v. Clark, 268 Ill. App. 3d 810, 645 N.E.2d
590 (1995); contra People v. Yantis, 125 Ill. App. 3d 767, 466
N.E.2d 603 (1984).
As the hearing on the petition to revoke Neckopulos'
probation was not a criminal proceeding, the fifth amendment
privilege to decline to take the stand accorded to criminal
defendants at criminal proceedings was not available. Further,
as the State's questions were relevant to Neckopulos' non-
criminal probation violation and posed no realistic threat of
incrimination in a future proceeding, the privilege to decline to
answer particular questions was also unavailable to her.
Therefore, Neckopulos' testimony was not elicited in violation of
the fifth amendment.
For the above reasons, we affirm the decision of the circuit
court.
Affirmed.
McCUSKEY, J., concurring.
No. 3--95--0425
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
Plaintiff-Appellee, )
) No. 93--CF--552 and
v. ) 94--CF--372
DEBORAH J. NECKOPULOS, ) Honorable
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE LYTTON, specially concurring:
_________________________________________________________________
Although I agree with the majority's opinion in most respects,
I specially concur in order to address a troubling procedural
question. What happens when a defendant invokes the Fifth
Amendment and simply refuses to testify at a probation revocation
hearing?
The majority correctly holds that since a probation revocation
hearing is civil, the Fifth Amendment right to remain silent does
not apply in the same manner as in criminal cases. See Murphy v.
Minnesota, 465 U.S. 420, 79 L.Ed. 2d 409, 104 S.Ct. 1136 (1984),
People v. Clark, 268 Ill. App. 3d 810, 645 N.E.2d 590 (1995),
People v. Martin, 226 Ill. App. 3d 753, 589 N.E.2d 815 (1992), and
People v. Davis, 216 Ill. App. 3d 884, 576 N.E.2d 510 (1991). This
holding is correct as far as it goes, but it does not go far
enough.
When the privilege against self incrimination is raised in a
civil context, the party claiming it is required to testify or
suffer certain consequences by remaining silent. If the party
refuses to testify, the court can draw negative inferences against
the party. The fact finder does not violate the Fifth Amendment by
"drawing whatever inference from [a party's] silence that the
circumstances warrant." Baxter v. Palmigiano, 425 U.S. 308, 318,
47 L.Ed 2d 810, 821, 96 S.Ct. 1551, 1557 (1976) (A prison
disciplinary board could properly give a prisoner's silence the
"evidentiary value [that] was warranted by the facts surrounding
his case.").
In Murphy, the Supreme Court extended the Baxter rule to
probation revocation hearings. The court found that probation
revocation hearings were civil in nature, and, unless a statement
would incriminate the defendant in another criminal proceeding, the
defendant could be required to communicate with his probation
officer. The court stated,
"[N]othing in the Federal Constitution would prevent a
State from revoking probation for a refusal to answer
that violated an express condition of probation or from
using the probationer's silence as 'one of a number of
factors to be considered by the finder of fact' in
deciding whether other conditions of probation have been
violated." Murphy, 465 U.S. at 435 n.7, 79 L. Ed. 2d at
425 n.7, 104 S. Ct. at 1146 n.7 (emphasis added),
quoting Lefkowitz v. Cunningham, 431 U.S. 801, 808 n.5,
53 L.Ed. 2d 1, 9 n.5, 97 S.Ct. 2132, ___ n.5 (1977).
This situation can be likened to criminal cases prior to Griffen v.
California, 380 U.S. 609, 14 L. Ed 2d 106, 85 S. Ct. 1229 (1965),
when prosecutors could ask fact finders to draw inferences against
defendants because of their failure to testify. Similarly, today
in probation revocation hearings, prosecutors can ask trial judges
to draw inferences against probationers if they do not testify.
In his treatise of criminal procedure, Professor LaFave
describes the rule as follows: "...the defendant may be required to
testify regarding his noncriminal conduct even if it amounts to a
probation violation or else have his refusal considered against
him." 3 W. LaFave & J. Israel, Criminal Procedure §25.4, at 164
(1984) (emphasis added).
Many jurisdictions have adopted this rule in probation
revocation hearings. See United States v. Robinson, 893 F. 2d 1244
(11th Cir. 1990) (trial court may infer a violation of a condition
of probation from defendant's silence); Calvert v. State, 310
N.W.2d 185 (Iowa 1981) (same); State v. Mangan, 343 So. 2d 599
(Fla. 1977) (same); Cassamassima v. State, 657 So. 2d 906 (Fla.
App. 1995) (probation revoked after refusal to answer); States v.
Ferguson, 72 Ohio App. 3d 714, 595 N.E.2d 1011 (1991) (trial court
may infer a violation of a condition of probation from defendant's
silence); Watson v. State, 388 So. 2d 15, (Fla. App. 1980) (same).
A significant distinction exists between drawing inferences
from a probationer's silence and actually ordering the person to
testify. The result for a probationer may indeed be the same,
depending on the inferences taken in any particular case, but the
distinction should not be ignored. The Illinois cases cited by the
majority point favorably to Professor LaFave, but none address the
situation presented in this case, where the trial judge ordered the
defendant to testify.
Finally, when a prosecutor attempts to prove a violation of
probation, the clear preference must always be to call the State's
own witnesses, such as probation officers or TASC employees. While
a trial court may compel testimony through its contempt powers,
reliance on the defendant's testimony alone should not be
encouraged and could easily backfire. As the trial judge in this
case said,
"And if her brains are fried on the drugs, maybe we ought
to get her off the witness stand and get somebody from
TASC in here and tell what she was directed to do [and]
what she didn't do. Or we can go around and around the
post with people who have got fried brains and [not]
expect anything rational out of them." (Emphasis added.)