APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
511 N.E.2d 842, 158 Ill. App. 3d 330, 110 Ill. Dec. 665 1987.IL.1039
Appeal from the Circuit Court of Madison County; the Hon. Charles Chapman, Judge, presiding.
JUSTICE HARRISON delivered the opinion of the court. KARNS, P.J., and WELCH, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON
Defendant, James Prater, appeals from an order of the circuit court of Madison County finding him in direct criminal contempt of court for refusing to testify at the trial of a codefendant. Defendant was sentenced to serve a six-month term of imprisonment. After defendant filed his notice of appeal, the trial court modified its original sentence to deny him credit for good behavior. Two issues are presented for our review: (1) whether the trial court erred in ordering defendant to testify and in holding him in contempt for refusing to testify where the State had not offered him a grant of immunity and he had invoked his fifth amendment right against self-incrimination, and (2) whether the trial court had the authority to prevent defendant from receiving credit for good behavior on his sentence for contempt. For the reasons which follow, we affirm in part and reverse in part.
The record before us shows that defendant pleaded guilty to a charge of armed robbery arising from an incident which had taken place on August 5, 1985, at the home of Pete Georgevits. For that crime he was sentenced to an 18-year term of imprisonment. Defendant subsequently moved to have the judgment vacated and for leave to withdraw his plea of guilty, but his motion was denied on March 12, 1986. Defendant did not appeal.
On May 14, 1986, defendant was called as a witness by the State in the trial of Raymond Moore, his codefendant. A conference was held in the Judge's chambers attended by the assistant State's Attorney, counsel for Moore, defendant and his attorney. At that conference the following occurred:
"THE COURT: [It's] been indicated that -- that at least off the record in conversations among lawyers that if called as a witness you do not plan to testify in this case., DEFENDANT: Right.
THE COURT: Is that correct or not correct?, DEFENDANT: Right.
THE COURT: And why is it?, DEFENDANT: I just don't want to testify. I don't want nothing to do with it. Do my time and get it over with and that's it.
THE COURT: Okay. What is the basis of your refusal, however?, DEFENDANT: Nothing.
THE COURT: When you mean -- None, what do you mean?, DEFENDANT: None. I just don't want to testify. I don't have nothing to say.
THE COURT: Okay. Have you conferred with [your attorney] about this? I don't want to know what you --, DEFENDANT: Yes.
THE COURT: Well, just to clarify you don't want to say -- answer any questions at all?, DEFENDANT: No.
THE COURT: When you say no that's not clear. You are saying, no, I don't or, no, I don't --, DEFENDANT: No, I don't.
THE COURT: No, I don't want to answer any questions or what is your response?, DEFENDANT: I don't want to answer no questions. I don't want to testify.
THE COURT: You understand, Mr. Prater, that if you are called as a witness and a question is put to you and you simply refuse to testify particularly if I order you to testify that you could be held in ...