APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Defendant, Matthew C. Simpson, plead guilty to a charge of burglary and was sentenced to 3 years' probation. Shortly thereafter the Circuit Court of Winnebago County revoked probation following an evidentiary hearing and on August 10, 1973, sentenced defendant to 2 to 6 years in prison. Defendant appeals, contending that the trial court committed reversible eror in considering improper evidence at the sentencing hearing and that the People failed to prove by a preponderance of the evidence the charge of burglary alleged in the petition to revoke probation.
Defendant was originally charged with burglary of a school in Rockford, Illinois. The public defender was appointed to represent him. Subsequently, defendant waived indictment and plead not guilty after an information was filed. Defendant later changed his plea to guilty, and on April 25, 1973, was sentenced to 3 years' probation.
On May 10, 1973, a petition to vacate probation was filed charging that defendant, on May 6, 1973, had burglarized the residence of James D. Boyd, 1118 South Winnebago St., Rockford, Illinois. A private attorney represented defendant at the hearing.
James Boyd, the owner of the burglarized home testified first at the hearing to revoke probation. He had been gone from home with his family, returning about 2:30 P.M. May 6, 1973. The kitchen door was open, and the glass broken out. He noticed records missing from the living room and that the bedroom had been ransacked, with cigarettes and "stuff" taken therefrom. Seven records, nine or ten packs of cigarettes, a stopwatch, some checkbooks, a portable tape player belonging to another person who lived in the house, an Afro pick, a bottle of shampoo, and a brown gangster-style hat were missing. Boyd identified these items taken by police from the three involved as his possessions.
Matthew Davis testified that he, Gary Hunter, and the defendant went to a party at a house on Island Avenue on May 5, 1973. They left the party at 12:30 A.M., and while walking home defendant said he was going to see if James Boyd was home so that they could get a ride home from Boyd. Davis didn't know what time they arrived at the Boyd house, but when they did defendant said Boyd was not at home and asked if they wanted to break in. Davis and Hunter indicated they did not. Simpson then went up to the side door, took something, perhaps a shoe, broke the glass, opened the door, and all three entered. Once inside defendant broke some doors open and they went into the living room. They searched the house. Davis took a stopwatch and some records. Hunter took cigarettes and a hat. Defendant took some records, some cigarettes, and a tape player. Davis could not positively identify the exhibit shown him as that tape player. After 15-20 minutes in the house, they left. The group split at Jefferson Street, and defendant went to the house of a friend. Davis was promised that his burglary charge would be reduced to a misdemeanor in return for his testimony. Davis admitted giving a statement to police after they showed him a statement given by Hunter. He also admitted that he and Hunter discussed their statements while in jail.
Gerald Bost, a police officer, testified to the arrest of Davis and Hunter and the recovery of property taken from the Boyd home. Gary Lindbeck, a police officer, testified that he went to defendant's home in response to a phone call from defendant's mother to pick up eight records and a stereo tape player.
Gary Hunter testified that he, Davis and defendant went to a party at Ann Cole's home on Island Avenue on May 5, 1973. The three left the party at 12:30 A.M. When they passed by the Boyd home, defendant said that he wanted to get even with Boyd and that Boyd had gone to Chicago for the weekend. Simpson knocked on the front door, then they went to a side door where defendant slid the window up and opened the door. They went in and defendant broke an inner door glass with a wrench. They then ran out of the house, came back, and re-entered on the first floor. Defendant took records and a tape player. Hunter indicated that the police wanted defendant badly and that in return, "if I tell the truth," the police would go easy on him. Hunter also testified that the State's attorney told him that if he told the truth his burglary charge would be reduced to petty theft and he would get a year's probation. Hunter spoke to Davis after the arrest of Davis and said that things would be easier for them if they would "tell the truth" and implicate defendant after the police mentioned defendant.
Defendant testified that he, Davis, and Hunter went to Ann Cole's house on Island Avenue at 9:45 P.M. on May 5, 1973. Ann and another girl arrived about a half-hour later. Defendant said that he left the Cole home alone about 11 P.M. Hunter and Davis had left 20-25 minutes earlier and defendant did not see them later that night. Defendant got home about 11:30 P.M. His parents, younger sister, and god-brother [sic] were there. On May 7, 1973, a friend named Taylor told defendant that the police were looking for him. Defendant called the police department that day and spoke to Detective Bost, who came over to defendant's house and took him to the police station. Defendant said that Boyd was a family friend, that he had no quarrels with Boyd and that he was not at Boyd's residence at all on the night in question. After getting home he played cards with his mother and company and did not leave the house that night. He first learned of the burglary on the night of May 6, 1973, when Boyd told him over the telephone that if defendant did not return the stolen property by Wednesday, Boyd would shoot him.
Matthew Simpson, defendant's father, corroborated defendant's testimony as to his coming home and staying there. Delores Simpson, defendant's mother, also corroborated this part of his testimony. She also said that James Boyd came to the house about 2:30 A.M. On May 8, 1973 she called the police and told them that she found a bag in front of the door to her house, and that she did not know who left it there or what it contained. On cross-examination she said that she looked into the bag and saw two records and a tape (player?). (Officer Lindbeck had stated there were eight records and a tape player in the bag.)
Ann Cole testified that on May 5, 1973, defendant, Davis, and Hunter had arrived at her house around 8:30-9:00 P.M. Hunter and Davis left about an hour later. Defendant left alone at 10:30-11 P.M. She said that she and a cousin were already home when defendant, Davis, and Hunter arrived.
The issues on appeal are:
I. Did the trial court commit reversible error in considering improper evidence at the sentencing hearing?
II. Did the People fail to prove by a preponderance of the evidence the charge of burglary set forth in the ...