*1 (No. 7215 3
THE THE ILLINOIS, PEOPLE OF STATE OF Appel-
lant, FASSLER, v. TOM Appellee. 30,1992.
Opinion October filed *3 FREEMAN, JJ., J., CLARK, joined dis- by BILANDIC senting. General, Burris, Springfield, of
Roland W. Attorney Wilkins, Attorney, of Jonesboro and H. Wesley General, and Terence M. B. Solicitor (Rosalyn Kaplan, General, Chicago, of Madsen, Attorney Assistant R. Gerry E. Norris and Boyle, Stephen Kenneth R. Appellate the Office of the State’s Arnold, Attorneys of Vernon, for the Prosecutor, counsel), People. of Mt. P.C., Anna, for Karraker, appellee. Finch & opinion MILLER delivered CHIEF JUSTICE the court: alleged irregularities to examine
This case us requires including violations proceeding, in a misconduct. and accusations jury secrecy prosecutorial 30, 1988, a Union County On September sexual criminal aggravated indicted the defend- charges alleged battery. abuse and female stu- ant, teacher, 13-year-old fondled a school dent class. during court of in the circuit
In a trial judge February on Union dismissed two-count County affirmed dis- court several grounds. appellate *4 112— that, section contrary sole missal on the basis 1963 (the of Criminal Procedure 6(a) of the Code her daugh- when mother was Code), present the victim’s ter Ill. 3d grand (213 App. testified before jury. (134 We the State’s for leave to granted petition appeal Ill. R. 315). 2d the State’s Attor 6(a) provides, “Only
Section 112— his and ney, reporter other authorized any person by court or law attend the Grand by sessions 38, (Ill. 1989, Rev. Stat. ch. Jury.” par. 6(a).) In 112— case, the victim’s to at mother was authorized tend the A grand jury session. transcript proceed ings shows that mother did not address at jury, point but one told the victim to “calm down.” She was her only during daughter’s testimony, and present during grand deliberations.
The trial in the judge, addressing of his order portion this violation of section 6(a), dismissed indict 112— ment against pursuant section 114— Code, 1(a)(5) of the which allows a court to an in dismiss dictment “returned Grand which acted Jury to Article 112 of this contrary Code which results in substantial injustice to the (Ill. defendant.” Rev. Stat. ch. par. court, 1(a)(5).) appellate with 114— out mentioning 1(a)(5) its held opinion, an unauthorized person is in jury room itself grounds dismiss an indictment. 213 Ill. 44. at State, citing v. People Arnold 248 Ill.
169, and People Munson argues that an otherwise valid indictment should not dis missed unless the defendant can establish that he was prejudiced an unauthorized person during grand jury proceedings. Arnold, In teenage victim’s rape mother father her into accompanied the grand room while she testified. This court held that the trial judge properly refused indict quash ment where there was no to the defendant from their presence. (Arnold, 171-72.)
54 Munson court the rule that “while unauthor reiterated in to permitted ized are never be persons of such is room, person the a grand jury it appears to vitiate the indictment unless sufficient such that was prejudiced presence.” the defendant (Munson, sec Ill. maintains 319 State injus its reference to “substantial 1(a)(5), tion with 114 — standard, that, tice,” argues this and because codified mere show that cannot in the room prejudiced mother victim’s him the trial court dismissed improperly in any way, indictment. se rule of per defendant, us urging adopt court, alter- argues the appellate
dismissal embraced by that section does 1(a)(5) apply natively 114 — in case, does, if it is inherent injustice or that substantial 6(a) and should be presumed. a violation section 112 — first. argument We address the latter shall is 1(a)(5) The defendant maintains 114 — Arnold and case law because not a codification of prior Munson, Procedure, the Code of Criminal predate which se when a required showing “prejudice” the term violated, used is while crecy legislature these He argues instead. injustice” “substantial that, while meaning, the same words do not have or affects an act omission that refers to “prejudice” refers to the decision, depriva “injustice” outcome of Dic Black’s Law right. (See tion legal of a substantial aim 787, 1990).) principal 1179 ed. (6th tionary claims, to pro is requirement, secrecy the product that are charges tect against individuals v. Hunter (People (1978), influence. coercion and undue that vi concludes He therefore 588, 593.) 61 3d Ill. App. to an afford protection designed olation of statute “substantial to constitute grievous is sufficiently accused injustice.”
In of his support argument injustice substantial inherent in violation of section the defend 6(a), ant v. Toolen 116 Ill. distinguishes People (1983), App. 3d Jackson 3d People App. v. Hunter People which
hold that undue pre influence coercion will not be sumed from the authorized
room of someone other than Attorney his or her reporter. The defendant notes that vic tim’s mother in this case, unlike the involved persons *6 Toolen, Jackson, Hunter, and was not at authorized to tend the of session the grand jury. He that “sub believes stantial be injustice” should when the presumed State fails to with comply ac 6(a). Requiring an 112— cused to demonstrate or whether the State obtains court prior authorization, he the argues, renders statute meaningless.
We with the agree defendant that section 6(a) 112— clearly only mandates that authorized persons attend It jury proceedings. itself, however, does not by require the dismissal of an or indictment provide any other for its penalty violation. Section pro- 1(a)(5) 114— vides an indictment in obtained violation of article 112 may be dismissed if the violation results in substan- tial to injustice the Thus, defendant. sections 6(a) 112— and 1(a)(5)must be read together. 114—
Interpreting section 1(a)(5) sug- manner 114— the gested defendant would us to the read require words “substantial out of the statute or to injustice” read into it an for of section exception violations 112— 6(a). We believe intended that a defendant legislature injustice demonstrate substantial he or she may before secure of dismissal an indictment for a violation of sec- tion If the vio- 6(a). had intended that a legislature 112— lation of section in an 6(a) should result dismissal of indictment without a it showing of could have injustice, Re- 1(a)(5). from section
omitted that requirement 114 — injustice” may of whether “substantial gardless more something it requires with equated “prejudice,” statute, a showing such as than mere violation of the secrecy requirement were purposes that, in was obtained as met, fact, or or coercion. result undue influence to obtain court authorization failure mother at this session of the victim’s attendance is not to be condoned. improper however, the State’s violation 1(a)(5), Under section 114 — in 6(a) injus- must also result substantial of section 112 — in- to a court dismiss tice the defendant before him for this reason. dictment against the unauthorized has not shown that room, victim’s mother in the grand jury of section resulted substantial 6(a), violation 112 — no showing him. There has been injustice secrecy mother endangered the victim’s her is no these and there evidence proceedings, her daughter’s testimony influenced vic- of the 13-year-old decision. mother grand jury’s her support emotional provide tim was only ease she testified her more at while daughter put *7 matter. a sensitive strangers about group before to tell to the girl only shows that she spoke record 112— Thus, of section the purposes her to “calm down.” and mother’s presence, not undermined 6(a) were her has not demonstrated injustice. in him or resulted substantial prejudiced the trial court defendant, who in Alternatively, to sec- be dismissed pursuant asked that indictment not the statute is here that 1(a)(5), argues tion now 114 — Attorney, the State’s relevant to this case because 6(a) by to section not the acted grand jury, contrary 112 — for the victim’s court authorization failing prior obtain mother to attend the The defendant has proceedings. distinction, conclusion to be drawn from suggested valid, it to wrongful between acts of assuming of a grand those under these circum- jury prosecutor however, stances. his is the notion Implicit argument, that, in the absence of section a trial 1(a)(5), judge 114— has inherent to dismiss an for the authority indictment State’s of section Attorney’s 6(a) violation without 112— the accused to requiring establish substan- tial injustice.
This is without argument merit. we note that Initially, section does not 6(a) indicate who is for responsible 112— court authorization seeking of a person other than State’s and his or her Attorney reporter. (Cf. People Haag (1979),
(where duty grand advise of its right subpoena target of is investigation on the explicitly imposed statute, Attorney by dismissal of un der section 1(a)(5) note improper).) We further 114— that section provides that 4(c) grand jury fore 112— man “shall preside over all hearings” and “deter mine rules procedure” where otherwise except pro vided in (Ill. article 112. Rev. Stat. ch. par. 4(c).) record this case shows that the State’s 112— advised the Attorney grand
anyone other than himself, reporter, his and the testify ing witness “unusual.” The record also shows no member when the jury responded State’s Attorney asked whether anyone objected to the mother’s presence. whether question 1(a)(5) applies 114—
violations of section not of 6(a) is here. consequence 112— The defendant’s that section argument 1(a)(5) does 114— because the State’s apply rather than Attorney, violated section jury, 6(a) amounts to an alie-
58 even allegation, of misconduct. This gation prosecutorial if the of true, analysis. does alter focus our has notes that a trial correctly judge defendant to an for reasons inherent dismiss indictment authority v. 1(a). (People than listed in section other those 114 — Lawson 449, 67 Ill. “The of 455.) preservation 2d (1977), however, re historic of the independence jury, only exercised power such be quires supervisory pro failure to do so will effect of due deprivation when v. (People miscarriage in a of justice.” cess or result Sears A has authority Ill. 2d court (1971), 49 through prosecutorial dismiss an indictment procured such can show misconduct when the accused only misconduct actual and results substantial Bank Nova Scotia United States 487 (1988), him. of 228, 238-39, 2d 108 S. Ct. 250, 256-57, U.S. 101 L. Ed. 2374-75; People v. J.H. 18; 136 2d (1990), Ill. Lawson, 67 2d at 459-60. failed to found, the defendant has already
As we have mother of the victim’s demonstrate Thus, if section 114— him in even any way. prejudiced here, indict- were not dismissal 1(a)(5) applicable violation against prosecutor’s ment warranted. Under 6(a) would 112 — dis- the trial circumstances, judge’s we hold these based on the defendant against missal mother victim’s the unauthorized improper. room was of this case did not resolution court’s appellate which grounds upon other it address require indictment, were all which trial dismissed judge in the appellate State. As the appellee contested any argument here make court, re Splett (In the circuit court judgment. sustain Asbestos v. North American Hammond 225; Ill. 2d cho- has Corp. 195, 209.) The defendant sen only ap- to raise one the issues not reached by *9 pellate court, and we will address it now. argues Attorney, by
The defendant the State’s soliciting before the intentionally hearsay testimony grand “other acts” committed jury allegedly about bad by concerning defendant and rumor innuendo his in misconduct, which reputation, engaged prosecutorial his (U.S. Const., XIV; violated due amend. process rights I, Ill. §2). Const. art. He therefore maintains that the trial could dismiss the indictment judge properly against him to the court’s pursuant supervisory power over the grand jury.
Citing no for this authority proposition, the claims that grand jury to “other testimony pertaining bad acts” the defendant are as a by highly prejudicial matter of in law a prosecution misconduct, for sexual and that such is no testimony less under objectionable these circumstances than it is at trial. The “unfairness” of other allegations misconduct, of sexual he was argues, compounded by rumors testimony concerning defendant had of “done sort thing sum, before.” In the defendant argues that the prosecutor, by soliciting such testimony, exceeded the bounds court- “proper room decorum and fairness” that should apply grand jury setting just as do at trial. they to the
Contrary defendant’s assertion, grand jury are not proceedings intended a trial on approximate the merits. (People v. J.H. 136 (1990), Ill. 2d jury’s power conduct criminal investigations should be accorded the broadest possible scope consist ent with constitutional limitations. v. (People Florendo (1983), 95 Ill. 2d 159.) In what determining matters “ investigate, members act on ‘may tips, rumors, evidence offered or prosecution, ” their own personal knowledge.’ (People Creque 515, 521-22, 72 quoting United States v.
Dionisio 1, 15, 67, 80, 35 L. Ed. 2d 410 U.S. does deter 764, 772.) S. Ct. Because innocence, mine it its guilt may pursue investigation and procedural the technical evidentiary unrestrained J.H., 136 Ill. 2d govern restrictions criminal trials. at 10. if non-
Nevertheless, that even argues the defendant to crimi- rules evidentiary applicable with compliance instance, trials permissible particular nal any pattern Attorney’s “persistent production miscon- constituted prosecutorial prejudicial testimony due dis- We depriving process.” duct agree. to the grand
It
is the
prosecutor’s
duty
cause
tends
to establish probable
information
*10
“Generally
a crime.
the accused has committed
an
is not affected by
‘the
speaking,
validity
” (J.H., 136
the
considered.’
the character
evidence
v.
Calandra
United States
10,
(1974),
Ill.
at
quoting
2d
561, 568-69, 94 S.
338, 343-45,
414
38 L. Ed. 2d
U.S.
not
613,
on its face is
Ct.
indictment valid
617-18.) “[A]n
grand jury
to
on the
the
challenge
ground
subject
evidence
inadequate
incompetent
acted on the basis of
345,
L. Ed.
(Calandra,
***.”
As for about “other bad testimony witness, told the students, in addition to complaining their had touched breasts. grand jury however, not offenses, did alleged about these Testimony
61 become evidence “other” bad acts until after the in sexually dictment abused charging A is witness was returned. complaining to investigate suggested by all criminal evi activity dence. Polk 21 2d (People (1961), 594; People v. Ill. v. Ill. 3d It is Jackson not restricted App. 307.) to considering a offense to have been particular alleged accused, an by bring committed but also may charges other than those sought State’s Attor originally ney. (Jackson, defendant, 310-11.) 3d therefore, will not be heard to he complain that grand prejudiced by decision not indict him jury’s for other alleged offenses.
We note further that much of the defendant’s argu ment on this issue is misplaced. defendant repeat edly characterizes testimony presented before “weak,” as being “vague,” “implausible,” “full inherent He contradictions.” also claims that the State’s Attorney misled the as to the of evidence quantity that would be presented during proceedings. An accused an challenge indict ment on the ground that it is supported sufficient evidence where there is any evidence the in support dictment. (People Rodgers
Guilt or
innocence
fair
be determined at a
trial.
Creque,
We find
nothing
record of these grand jury pro
ceedings that rises to the level
necessary
constitute a
*11
of
deprivation
Lawson,
due process. (See
62 The trial court’s dismissal of indictment stances).) misconduct therefore improper. was prosecutorial or not the remain argued The defendant has briefed dismissed the in judge which trial ing grounds upon he the cause be re dictment; requested neither has court for consideration of these appellate manded to the are therefore waived. Any arguments issues. additional Lloyd Fry Roofing v. A. Co. (See County Cook of 139; v. 80 Ill. 3d People Haag of the we reverse the 135, 137.) judgments Accordingly, to courts, remand the cause and circuit and appellate inconsistent with court for further not proceedings trial this opinion. and
Reversed remanded. CLARK, dissenting: JUSTICE that a concludes majority I dissent. respectfully to an 6(a) is insufficient dismiss violation section 112— a showing special indictment absent evi the defendant must show defendant. Specifically, were secrecy requirement dence the purposes a result met, or as obtained 55-56). Ill. 2d at Be (153 influence coercion undue inher 6(a) I feel a of section cause violation 112— I defendant, dis results in substantial a injustice ently I intimate no se rule of dismissal. agree per and favor a violation applicable whether such rule upon view confine of article of the other subsections any thoughts 6(a) only. to section my it that the veil of outset,
At the must be appreciated ais funda surrounding proceeding secrecy grand jury investigation. (People of a grand jury mental element this end the law To Munson (1925), one permit refuses investigation legally properly who is
during it. before
Most the veil is not Section certainly impenetrable. that a court authorize the 6(a) provides pres ence of someone other than the State’s or a Attorney court instances, at the In such reporter proceedings.
court has heard a for authorization and has request weighed possibility of undue influence or coercion and has made the tacit finding danger either is not occurring present. 213 Ill. 3d at 45-46. App. an
Where unauthorized person pro at however, no ceedings, such has been made. The finding unauthorized individual’s alone is a violation of secrecy required and to proceeding, require the records of the proceeding establish un due influence “kills the statute very prohibits unauthorized other than persons a State’s and a court Attorney 213 Ill. reporter.” 3d at 46. relies on majority two of this court’s opinions
support refusing to dismiss the indictment against I defendant. believe that both are opinions distinguish able. In People v. Munson 319 Ill. this court reversed a circuit court order a motion to denying quash an indictment in which the State’s Attorney appearing before the grand jury was not a licensed attorney.
opinion concludes that the State’s Attorney’s participa tion in the grand jury proceeding prejudiced the defend ant in that the indictment was “procured directly” by the unlicensed Munson, 319 Ill. at attorney. 604. to the prejudice defendant’s interests was a con-
sequence itself, the proceeding conducted one un- to do so. The qualified did Attorney not have the power the indictment. The bring interests of the therefore, were prejudiced, conduct of the State’s his at the Attorney, simply pro- ceeding. Munson,
In therefore, this court concluded that be- cause the indictment was the en- improperly procured,
tire was vitiated. This conclusion was proceeding reached without actual any demonstration in Munson the defendant. Although language appears opinion (Munson, 604; support majority 153 Ill. 2d at I note that was sim 53-54), language dicta not control case. did outcome of the ply *13 People Arnold
In
the second
on
relied
the
the defendant was
opinion
majority,
charged
girl.
indictment with
raping
15-year-old
and her
were witnesses
at
the
girl
parents
grand
in
All
three were
jury proceeding.
present
grand
Arnold,
room at the time each
examined.
being
was
jury
There this court the most again, among observed important protections provided by grand jury pro is the “The ceeding guarantee secrecy. proceedings secret, must be grand jury kept strictly before if present that could not done witnesses should be be rule, is, therefore, examination of each other. during present be to be permitted that one witness must never at the examination another.” added.) (Emphasis (Arnold, 248 Ill. at this court stated 171-72.) Although presence the witness’ simultaneous in of the rule that one witness room was violation at the examina must to -be permitted present never was not other, tion of the it concluded violation “substantial,” the tes through as the was charge proven of other influence Any testimony witnesses. timony or the had on the other was harmless girl of the parents of the witnesses. light testimony remaining in Arnold are simi- relatively the circumstances While court, the issues ad- lar to the ones before presently parents young dressed are distinct. entirely in Arnold were witnesses in the grand jury proceed- girl The issue proceedings. ing present were Arnold au- the witness’ was presence not whether was thorized, but was of the simply timing individuals’ the fact that these three witnesses were —Was present during examination of each other sufficient to quash indictment?
In the present matter, the victim’s mother was authorized to attend session, she yet her during daughter’s examination. The rule violated, that was therefore, was not the same as that in Arnold. Here, the concern is not the of a wit- ness the examination of another during but, rather, of an unauthorized individual during In session. my opinion, substantial injustice inher- ent and presumed should be where there is a violation of 6(a).
The majority concludes otherwise and notes that there was no showing that the presence of the victim’s mother endangered the secrecy proceeding her her presence influenced daughter’s or the testimony grand jury’s decision. As to the former I argument, be- lieve that defendant’s interests were rea- prejudiced by *14 son of the appearance the mother. IAs have stated above, are jury proceedings surrounded se- by crecy. protections afforded by precaution are forfeited mere of an presence unauthorized indi- vidual at the I proceeding. believe that the unauthorized of an presence at a grand individual jury proceeding, more, without enough vitiate the indictment.
As to the evidence of undue coercion, influence or concludes majority that the mother provided emo only tional Ill. 2d support. (153 56.) However, at to the ex tent the mother demonstrated tacit substantiation of her I daughter’s believe testimony, could not jury but be influenced. Al help silently it though or, least, be expected not unusual for a mother to believe word of her child and offer that child her it is not support, insignificant that the daugh-
ter’s was that of the testimony complainant, simply witness prosecution. daughter’s testimony indictment; therefore, was crucial danger the mother’s as an influence on the was all the more I significant. would hold that the unauthorized before any person jury requires the indictment handed down quashed.
JUSTICES BILANDIC and FREEMAN in this join dissent.
(No. 7286 9 DiBENEDETTO, Adm’r of the Es- SANDRA L. Special DiBenedetto, tate of Scott A. v. FLORA Appellee, TOWNSHIP, Appellant. 30,1992.
Opinion October filed