APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
On 22 November 1972, respondent Gregory White (hereinafter respondent) was convicted of robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-1) on a plea of guilty. He was sentenced to probation for a period of 3 years. On 2 February 1973, at a hearing on the petition of the State's Attorney for a rule to show cause why his probation should not be revoked, he was found guilty of having violated a condition of his probation, and his probation was revoked. On 2 March 1973, he was sentenced on his original robbery conviction to a term of not less than 4 years nor more than 8 years in the Illinois State Penitentiary. This is an appeal from the revocation of his probation and from the sentence imposed on the original robbery conviction.
The petition (application) of the State's Attorney for the revocation of respondent's probation is before us as an appendix to respondent's supplemental reply brief. The petition informs the probation judge that, on 20 December 1972, respondent, while on probation for robbery, was arrested for the offenses of armed robbery and of unlawful use of weapons, which arrest is alleged to be a violation of section 117-2(a)(1) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 117-2(a)(1)), as amended by the Act of August 11, 1971 (namely, that, as a condition of probation, probationer shall not violate any penal statute or ordinance of any jurisdiction). The petition recites that, on 20 December 1972, a person stopped a Police Sergeant Moran on the street and told him that he (the person) had just been held up by a man with a gun who had taken his automobile. The person described the automobile. Sergeant Moran notified the police radio operator, gave the description of the automobile, and stated that he was pursuing the vehicle accompanied by the victim. The operator transmitted the message to police officers in patrolling squad cars. One such officer (Officer Lew) pursued and curbed an automobile which corresponded to the broadcast description. The driver, whom Lew identified as the respondent, got out of the automobile and Lew then found the gun which had been used in the taking of the automobile lying in the street at the feet of the driver.
At the hearing on the petition, the first witness for the State was one Mel Williams, a Cook County adult probation officer. Williams, who had with him a copy of the State's Attorney's petition, simply recited the contents of the petition in response to the prosecutor's request that he tell the court what the conditions of probation were and why the petition to revoke probation had been filed. When Williams began to recite what the unnamed victim was alleged to have told Sergeant Moran, respondent objected on grounds of hearsay. When Williams completed his recital of the contents of the petition, respondent objected to all of the recital as hearsay. The probation judge (who was the same trial judge who had placed respondent on probation) overruled the hearsay objections and admitted the testimony of Williams into evidence.
The next witness for the State was Officer Lew, who had arrested respondent. He testified that, while he was alone on patrol in a marked squad car at 3:40 a.m. on 20 December 1972, he had received a radio message describing an automobile which had been reported by an unnamed victim as having just been taken from the victim in an armed robbery, and which was then being pursued by the officer to whom the report had been made, accompanied by the victim. The message requested patrolling police officers to be on the lookout for the car. A hearsay objection to the testimony as to the radio message was overruled. Lew then testified that he had seen an automobile which corresponded to the description of the car reported stolen; he pursued the car and curbed it. He ordered the driver, who was the only occupant of the car, to get out of the car, which the driver did by way of the door to the driver's seat. Lew immediately searched the driver and, as he did so, he saw a .22-caliber automatic pistol lying on the ground just under the driver's door and just to the rear of the left front wheel; it was about two feet away from where the driver was standing. Lew then awaited the arrival of the police officer who had the victim with him. Upon their arrival, the victim (never himself identified by anyone) identified the curbed car as his, identified the person standing alongside the door to the driver's seat as the person who had taken it, and identified the pistol as the weapon which the driver had used in taking the car. Respondent twice objected on hearsay grounds to Lew's testimony as to the several identifications made by the victim; the objections were overruled. Lew then identified respondent as the driver of the curbed car. *fn1 Lew identified State's Exhibit 1 as the automatic pistol he had recovered. He further testified that, at the time he recovered the pistol, it was unloaded and was inoperable owing to a broken firing pin. He also testified that both the victim and the police radio message had mentioned that the offense had been committed by two men, but that respondent had been the only person in the car when he curbed it, and respondent was the only person whom he had arrested. The foregoing testimony of Williams and of Lew was the only oral testimony adduced by the State at the hearing; the only physical evidence was the pistol.
At the close of the State's testimony, respondent moved for a directed finding on the ground that the pistol was not a weapon because it was concededly inoperable as a weapon. As a second ground for his motion, respondent contended that Lew's testimony that the unnamed victim had identified respondent as the person who had taken the victim's automobile at gunpoint was hearsay and should not have been admitted into evidence against respondent. Respondent's motion for a directed finding was denied. Respondent thereupon rested without introducing any evidence in his own behalf.
Since, at several times during the testimony of Officer Lew, respondent had sought to say something, the probation judge questioned respondent directly about his decision to rest his case without introducing any evidence in his own behalf. Respondent said he had been advised by his counsel not to testify, but he did not know about that. The court then questioned respondent, who denied having been in a car at the scene of his arrest, having had any part in any armed robbery, or having had anything to do with any guns. He explained his presence at the scene of his arrest by saying that he was walking from his cousin's house, where he had just visited his cousin who had had a wreck earlier that day, of which respondent had been told. The probation judge expressed his disbelief in respondent's denials and explanation. The probation judge then revoked respondent's probation for the sole reason that he found from the State's evidence that respondent had violated an express condition of his probation, namely, that respondent, while on probation, was not to have anything to do with guns or with persons who were in possession of guns. When respondent denied having stuck anybody up, the judge said: "I am not so much concerned about sticking up, but when I put you on probation, I told you not to be around anybody with guns."
This condition was not expressly stated in the written Order granting probation, but the Report of Proceedings had at the grant of probation on 22 November 1972, shows that the trial judge sentenced respondent "to a period of probation for the term of three years under the conditions that have already been set forth by the Court in open court on the record." One of those conditions was the following:
"THE COURT: Further that during the period of time that you are on probation to me, neither of you [respondent had a co-defendant named James Jackson] will be able to own, possess, use or be in the company of any person who owns, possesses or uses any knife, weapon, blade longer than six inches, any firearm, either hand gun or rifle or shot gun of any category. Do you understand that?
THE DEFENDANTS: Yes, Sir."
After a presentence hearing, the court sentenced respondent, on his plea of guilty to the original charged offense of robbery, to a term of from 4 to 8 years in the Illinois State Penitentiary.
The issues raised on respondent's appeal are as follows:
1. Whether the State proved by a preponderance of the evidence that respondent had committed the offense of armed robbery or of unlawful use of weapons and had therefore violated the condition of his probation that, during his period of probation, he ...