APPEAL from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant Elvis L. Bell appeals from an order of the Circuit Court of St. Clair County revoking his probation. He contends that because the only evidence of any violation of the conditions of his probation was an involuntary and improperly admitted confession, the revocation of his probation must be reversed. We agree.
On November 25, 1975, defendant entered a guilty plea to an information charging him with the offense of burglary, and he was subsequently placed on five years' probation. A petition to revoke probation was filed on February 23, 1976, alleging that he had violated a condition of his probation by committing the offense of theft.
At the hearing on the petition, held March 24, 1976, Norman Collins testified that a Sears Die Hard battery, which he had bought new for $30 to $35 six or eight months earlier, was stolen from his automobile in the early morning hours of February 3, 1976. Sergeant Darryl Raymer of the Caseyville police department testified that he participated in the investigation of the theft of the battery from Collins. He testified that he obtained a statement from defendant after informing him of his Miranda rights. Defendant stated that he understood his rights. Raymer said that he did not force defendant to sign the form waiving his rights, nor promise him anything, nor did he see anyone else do so.
On cross-examination of Sergeant Raymer, it was brought out that the last question on the waiver form asked whether defendant wanted to make a statement. This question was answered "No." The sergeant testified that "[a]fter he signed this one here, he sat there for I don't know how long and then he went ahead and made a statement. He talked to the Chief." The sergeant testified that he said nothing to defendant between the time that he answered the question and his subsequent giving of an inculpatory statement. Asked the extent of Chief Donald Paulik's participation in obtaining the statement, Sergeant Raymer said: "Mr. Bell didn't want to give a statement originally and then the Chief talked with him and had Patrolman Lynn of Washington Park to come out and talk with him also." Raymer testified that he was present "99% of the time" that defendant was being questioned by the other officers. Asked if he knew what Patrolman Lynn said to defendant, the sergeant answered: "No, sir, but he didn't promise him anything." Neither Chief Paulik nor Patrolman Lynn were called as witnesses. Defense counsel objected to the introduction of the statement taken from defendant because of these officers' absence, but the objection was overruled and the statement was introduced. In it, defendant confessed that he and two companions stole eight batteries, including the one from Collins car, and sold them the next day for $40.
Defendant took the stand on his own behalf. He testified that he answered "No" to the question at the end of the waiver form: "Having these rights in mind, do you wish to talk to us now?" After he gave the negative response,
"* * * I was taken back into another room; I suppose an interrogation room and when I went back there a sergeant sat down and wanted to know why I wouldn't fill out a statement and wanted to know if I thought it would help if I didn't fill out one and he asked me several questions and I don't remember all of them and Mr. Lynn came up, Officer Lynn came to the police station and talked to me for a few minutes and wanted to know if I would fill out the statement and I said I didn't and I don't think Sergeant Raymer was present then.
Q. So it was only Officer Lynn that was present?
A. I believe so because I remember the sergeant stepped out for a phone call and I don't remember if it was when Officer Lynn was there and Officer Lynn told me he wanted me to go ahead and fill one out and I told [him] I really didn't want to really fill one out.
Q. When you say he wanted you to ?
A. He said it would be best for me if I filled it out.
Q. And what did you take that to mean?
A. Well, I had given Officer [Lynn] some information before which he had responded to and I know he made a bust on it and he said I better have some good information.
Q. Did you receive any compensation for giving him this information; not this incident here, but on the prior occasion?
Q. So you expected well, just give me your expectations of your giving him this information. What did you expect from Officer Lynn if anything?
A. Well, before I had given him some information and he had given me some money for it and I insinuate [sic] that if I had given him this statement he might be able to get the charges dropped. The Caseyville Police Department did say they will be ...