APPEAL from the Circuit Court of Alexander County; the Hon.
PEYTON H. KUNCE, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Alexander County finding appellants, a criminal defendant and his lawyer, in contempt of court. Appellants were each prosecuted on three counts of a rule to show cause, charging that their refusal to cooperate fully with the preparation of a presentence report and their filing of a civil action against the presiding judge were contemptuous.
By jury verdict, appellant James Coleson was found guilty of two counts of perjury for falsification of an application for welfare benefits. Coleson, represented by appellant Dennis Hogan, did not testify at trial. The trial judge ordered a presentence investigation of Coleson, and ordered Coleson and Hogan to cooperate fully with the probation officer conducting the investigation. After post-trial motions were filed by Hogan on Coleson's behalf, but prior to sentencing, appellants filed a civil suit against three judges of the circuit court and the State's attorney of Alexander County for damages arising out of bail practices in the criminal proceedings against Coleson.
At an interview with the probation officer, Coleson provided certain background information, but on the advice of Hogan, refused to answer questions material to the perjury offense, asserting instead his rights under the first, fifth and sixth amendments to the United States Constitution. After a hearing on the post-trial motions, the trial judge was informed of appellants' actions at the interview. He then ordered a second interview, ordered Coleson to respond to all questions asked by the officer, ordered Hogan not to interfere, and warned both appellants of possible contempt citations. The trial judge further stated that he was granting full and complete immunity to Coleson for all information given to the probation officer. A second interview was held and again, on Hogan's advice, Coleson refused to answer certain questions and refused to take a literacy test. Sentence for the perjury convictions was thereafter imposed by the trial judge.
A few days prior to sentencing, the trial judge filed a rule to show cause charging appellants with contempt. Count I of the rule related to appellants' actions with respect to the presentence investigation, Counts II and III related to the civil action in which the trial judge was named a defendant. Because of the action pending against him, the trial judge excused himself and another judge, who will hereafter be referred to as the "presiding judge," presided over the contempt proceedings. Appellants were adjudged in contempt of court on all three counts. Hogan was fined $750 for each of the three counts, sentenced to three concurrent 30-day jail terms, and referred for possible disciplinary action to the Attorney Registration and Disciplinary Commission. Coleson was fined $100 for each count.
1 Under the statutes of the State of Illinois a sentencing court is required to order a presentence report for any defendant convicted of a felony, unless waived by the defendant. (Ill. Rev. Stat. 1973, ch. 38, par. 1005-3-1.) The purpose of the presentence report is to provide the court with information about the defendant so that sentence may be imposed, with the court being able to take into account not only the nature and circumstances of the offense but also the history and character of the defendant, his mental and physical condition, and his social situation. (Ill. Rev. Stat. 1973, ch. 38, par. 1005-3-2.) In the instant case, defendant Coleson chose to take advantage of his right to have the court impose an informed sentence, but without discussing certain matters with the investigating officer. Putting aside for a moment the validity of Coleson's asserted privilege against self-incrimination, we are faced with the issue of the power of a sentencing court to order a defendant who does not waive the presentence report to communicate with an investigating probation officer. Does a defendant's failure to waive the report amount to a waiver of any and all objections, legal or personal, that he may have to disclosing certain information?
There exists in this country a right to testimony, based in part on the sixth amendment's right to confrontation and the right to subpoena witnesses, which has been characterized as necessary to the functioning of the courts and to the preservation of an orderly society. (Blair v. United States, 250 U.S. 273, 281, 63 L.Ed. 979, 982-83, 39 S.Ct. 468, 471 (1919); Lilienthal, The Power of Governmental Agencies to Compel Testimony, 39 Harv. L. Rev. 694 (1926).) Based on one party's right to testimony is the concomitant duty in another party to testify. And to effectuate the right to testimony, thus, to enforce the duty to testify, there exists the power to compel testimony. Without a right to testimony, or some governmental necessity, there can be no power to compel. Recognizing the burden of enforcing the duty to testify, Justice Homes stated, "[T]he power to require testimony is limited, as it usually is in English-speaking countries, at least, to the only cases where the sacrifice of privacy is necessary * * *." (Harriman v. Interstate Commerce Com., 211 U.S. 407, 419-20, 53 L.Ed. 253, 263, 29 S.Ct. 115, 118 (1908).) And in order that the proper balance may be struck between the necessity for testimony and the policy of noninterference, the power to compel is possessed primarily by the judiciary. (Lilienthal, at 695; Wigmore, Evidence § 2195 (1961).) Therefore, the power to compel testimony before an inferior judicial officer, such as the probation officer in this case, depends upon the existence of the power in superior court. Wigmore.
In the instant case the validity of the trial judge's order that defendant Coleson communicate with the probation officer depends upon the court's right to the information sought. We can conceive of no basis for such a right. *fn1 To the contrary, a defendant has the right to waive the entire presentence report. (Ill. Rev. Stat. 1973, ch. 38, par. 1005-3-1.) We do not believe that the lack of such a waiver magically creates a right in the court to probe the mind of the defendant or a governmental necessity for his testimony. Courts in other jurisdictions have stated that interrogation of a defendant by a sentencing court is improper after a verdict of guilty has been rendered by a jury. E.g., Heyward v. State, 161 med. 685, 158 A. 897, 900-901 (1932).
2 Furthermore, the Supreme Court has held that at the sentencing stage a defendant still possesses basic due process rights. (Mempa v. Rhay, 389 U.S. 128, 19 L.Ed.2d 336, 88 S.Ct. 254 (1967).) It is our conclusion that a defendant facing sentencing by an Illinois court has the right to be free from the burden of the duty to testify, unless there exists an overriding governmental necessity, or a right to his testimony, neither of which are present in this case.
Then too, it is clear that the defendant's refusal to answer questions was justified under the fifth amendment privilege against self-incrimination. At the time of Coleson's refusal to testify he had been adjudged guilty by a jury of the offense of perjury. The lower court apparently believed that as a result of the guilty verdict, Coleson's fifth amendment privilege ceased. It is true that the removal of the possibility of incrimination, including a final adjudication of guilty, does eliminate the privilege. (Reina v. United States, 364 U.S. 507, 5 L.Ed.2d 249, 81 S.Ct. 260 (1960).) But "[t]he conviction here was not final in several aspects. Sentence had not been imposed." (People v. Hartley, 22 Ill. App.3d 108, 109 (1974).) In Hartley the court held, with ample authority, that where a defendant had not been sentenced, post-trial motions were pending, and the time for appeal had not expired, the jury verdict was not a final conviction such as to extinguist the defendant's fifth amendment privilege. A defendant is entitled to full protection from the effects of his testimony. (Halpin v. Scotti, 415 Ill. 104, 108, 112 N.E.2d 91 (1953).) Reina is clearly distinguishable from Hartley and the case at bar in that the contemnor in Reina was already serving a sentence and there is no indication in that case that any post-conviction remedies were being pursued.
A proper grant of immunity from the use of incriminating testimony can operate to extinguish a witness's privilege against self-incrimination, and can be the basis for a valid order compelling his testimony. (Kastigar v. United States, 406 U.S. 441, 32 L.Ed.2d 212, 92 S.Ct. 1653 (1972).) The statutes of this State provide a procedure where under certain specified circumstances immunity can be granted to a witness and the witness compelled to testify. (Ill. Rev. Stat. 1973, ch. 38, par. 106-3.) Assuming, arguendo, that the presentence investigation is part of a trial, the immunity statute was not complied with in two important respects. First, the trial judge granted immunity to Coleson on its own motion rather than on motion of the State, and secondly, Coleson was the defendant, not a material witness. A grant of immunity under statutory authority must be in strict compliance with the terms of the statute. (People v. Rockola, 339 Ill. 474, 171 N.E. 559 (1930).) In Rockola the Supreme Court reversed a contempt adjudication which was based on a refusal to testify after an invalid grant of immunity. The statute in that case empowered the court to grant immunity in investigations or trials for certain specified offenses, including the crime of bribery. The grant of immunity was held invalid in Rockola because the offense charged in the trial was conspiracy to commit bribery, not the offense itself.
3 Having decided that the immunity granted by the trial judge was not within his statutory authority, there remains the question of a court's inherent power to grant immunity. The courts of this State have no such power. (People v. English, 31 Ill.2d 301, 201 N.E.2d 455 (1964).) The removal of the privilege against self-incrimination by a grant of immunity may only be accomplished by the legislature. (Apodaca v. Viramontes, 53 N.M. 514, 212 P.2d 425, 13 A.L.R.2d 1427 (1949); English. In the words of Judge Cardozo:
"The grant of an immunity is in very truth the assumption of a legislative power * * *. It is the assumption of a power to annul as to individuals or classes the statutory law of crimes, to stem the course of justice, to absolve the grand jurors of the county from the performance of their duties, and the prosecuting officer from his." Doyle v. Hofstader, 257 N.Y. 244, 261-62, 177 N.E. 489, 495 (1931).
Aside from the legal invalidity of the trial judge's grant of immunity, the protection granted was wholly inadequate to protect the defendant against the effects of his statements. A grant of immunity, to be valid, must be co-extensive with the fifth amendment privilege it purports to remove. (Counselman v. Hitchcock, 142 U.S. 547, 35 L.Ed. 1110 (1892); Kastigar v. United States.) In this case the grant of immunity did not protect Coleson from the imposition of a harsher sentence as the result of his testimony, nor is it clear that the information obtained would not be used against him in the event of a retrial.
Another ground on which the lower court seems to have based its judgment are the disclosure limitations imposed upon information obtained in the presentence investigation. Such information may be provided to the sentencing judge, the prosecutor, officials of a penal institution, and anyone else "as ordered by the court." (Ill. Rev. Stat. 1973, ch. 38, par. 1005-3-4.) We do not comprehend, and the State gives us no legal or logical suggestion, how limited disclosure could serve to remove the privilege against self-incrimination.
4 The fact the court ordered Coleson to communicate with the probation officer after overruling the fifth amendment plea does not affect the outcome of this case. As the State contends, all orders and judgments of courts must be complied with promptly, even if believed incorrect. (United States v. United Mine Workers of America, 330 U.S. 258, 91 L.Ed. 884, 67 S.Ct. 677 (1947).) But that general rule does not apply where the order is to reveal information which is asserted to be self-incriminating. (Maness v. Meyers, 419 U.S. 449, 464, 42 L.Ed.2d 574, 586-87, 95 S.Ct. 584, 594 (1975).) The situation is different in that instance because of the possibility of irreparable injury from compliance. Thus, in the area of the fifth amendment, precompliance review may properly be sought, and if the privilege is later held to prevail, the violation of the order no longer supports a contempt citation. Maness v. Meyers.
The final ground on which Coleson's privilege could have been extinguished is that the information obtained by the probation officer would not have been voluntarily ...