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People v. Seymour





APPEAL from the Circuit Court of Randolph County; the Hon. CARL H. BECKER, Judge, presiding.


On September 18, 1975, the defendants, David Seymour and Ray Harper pled guilty to the charge of unlawful possession of cannabis. They were placed on three years probation.

A petition to revoke defendants' probation was filed on February 5, 1976, alleging that both defendants committed various offenses, including unlawful possession of hypodermic needles, unlawful exchange of same and also a burglary. After a hearing, the Circuit Court of Randolph County found that there was enough evidence to support a finding that the defendants had committed the burglary and the offenses involving needles and syringes and revoked defendants' probation. They were sentenced to a term of one to three years in the penitentiary.

Defendants' appeal is based on the grounds that the prosecution failed to sustain its burden of proof. In passing on this claim it will be necessary to go over the evidence in some detail, but first we must address ourself to the problem of mootness which has been raised by the state.

• 1 The State argues that the issue of defendants' probation being properly revoked is moot because defendants are now released on parole from the penitentiary. As authority for this proposition, the State cites People v. North, 3 Ill. App.3d 428, 278 N.E.2d 401 (1972). The opinion in that case is much less than one-half page so it is difficult to ascertain the specific criteria the court is resorting to in making the mootness determination. Moreover, it appears that the defendant in that case may have been attempting to challenge the original conviction for which he was placed on probation. Clearly, this did not lie within the scope of review at the hearing on his probation revocation. Nevertheless, North is cited in People v. Yackle, 42 Ill. App.3d 695, 356 N.E.2d 664 (1976), which held that the probationer's claim was moot because the most that could be obtained under the circumstances would be the vacation of the order of revocation and sentence and the consequent return of the defendant to probationary status. Mere release of the prisoner should not mechanically foreclose consideration of the merits by the court. There is a great deal at stake in a probation revocation hearing and it should be surrounded with the requisite elements of due process. As stated by our supreme court in People v. Pier, 51 Ill.2d 96, 100, 281 N.E.2d 284 (1972):

"Since the results of a probation revocation may be a deprivation of liberty and, consequently, as serious as the original determination of guilt * * * due process of law requires that a defendant charged with having violated his probation be entitled to a conscientious judicial determination of the charge according to accepted and well recognized procedural methods." (Emphasis added.)

• 2, 3 Many deep and abiding problems are encountered primarily at a low level of visibility in the criminal process — in the contest of prosecutions for minor offenses which carry only short sentences. People deprived of constitutional rights at this level should not be left remediless and defenseless against repetitions of such improper conduct. A criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. (Sibron v. New York, 392 U.S. 40, 20 L.Ed.2d 917, 88 S.Ct. 1889 (1968).) Although the term has been served, the results of the probation revocation may persist. Subsequent convictions may carry greater penalties; civil rights may be affected. The instant case involves parole status dependent upon close supervision of both defendants and out-patient treatment at a mental health center for defendant, Ray Harper. For these reasons, the defendants are entitled to show that the probation revocation was invalid.

In considering whether the State has met its burden of proof, we will examine the burglary charge first and then the hypodermic needle charges, because the charges are based on two different sources of evidence.

The State's two primary witnesses of the burglary charges were Nathan Harper, a brother of defendant Ray Harper, and Rob Eldridge. Both of these witnesses gave statements to the police implicating defendants in a burglary. Harper and Eldridge were in custody for unrelated charges, which were dismissed as a result of giving the statements accusing the defendants. In addition both Nathan Harper and Eldridge received immunity from prosecution for the burglary in which they involved defendants.

By the time defendants' revocation hearing was had, and despite threats of prosecution for perjury, both Nathan Harper and Eldridge unequivocally denied the truth of the statements they had previously given to the police. Harper claimed that the police threatened to send him back to a detention center if he did not sign the statement and the only reason he did sign the statement was because he did not want to go back to the detention center. Eldridge testified that he was threatened with jail if he did not sign the statement implicating defendants.

• 4 In their statements, both Nathan Harper and Eldridge admitted to being accomplices in the burglary. As accomplices, their credibility is subject to inherent doubt. Furthermore, because these two received rewards for their statements in the form of immunity, those statements should receive very close scrutiny. As stated by the court in People v. Mostafa, 5 Ill. App.3d 158, 175, 274 N.E.2d 846 "the utmost caution is required of a court or jury when reliance is on accomplice testimony alone." This problem was considered recently in the case of People v. Marshall, 26 Ill. App.3d 905, 910, 326 N.E.2d 246, 251 (1975), wherein the court stated:

"When accomplice witnesses have hopes of reward from prosecution, their testimony should not be accepted unless it carries with it absolute conviction of its truth. * * *

The reasons for the restricted weight to be placed upon the uncorroborated testimony of an alleged accomplice was stated in People v. Hermens (1955), 5 Ill.2d 277, 285, 125 N.E.2d 500, 504-05:

`* * * [S]uch testimony has inherent weaknesses, being testimony of a confessed criminal and fraught with dangers of motives such as malice toward the accused, fear, threats, promises or hopes of leniency, or benefits from the ...

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