*1 (No. 66398.
THE PEOPLE OF THE STATE OF ILLINOIS, Appel-
lee, J.H., Minor, v. A Appellant.
Opinion April 1990. filed *2 MORAN, C.J., CLARK, J., joined by dissenting.
Paul Biebel, P. and Jr., Stone, N. De- Randolph Public fenders, (Alison Edwards, of Assistant De- Chicago fender, of for counsel), appellant.
Neil General, F. of Hartigan, Springfield, Attorney Cecil Partee, and A. State’s of Attorney, Chicago (Terence Madsen, General, M. Assistant of Attorney Chi- Novi, and and Kim A. cago, Inge Assistant Fryklund State’s of for counsel), People. the Attorneys, the
JUSTICE CALVO delivered the court: opinion J.H., defendant, The indictment with charged by the murder Frederick Harris. the defendant’s mo- On tion, the circuit court dismissed the indictment because a of the majority misconduct. On prosecutorial appeal, court reversed and remanded the cause to the appellate 718). circuit court Ill. 3d We the (164 App. granted (107 for leave to Ill. 2d R. petition appeal 315). 18, 1984,
The record reveals that on August ap- a.m., defendant, J.H., was at the proximately age Road station on 1200 South State subway Roosevelt in Chicago, just Street Illinois. Defendant had come from at an establishment called the Store” at party “Candy friends, 13th and of defendant’s Louis Michigan. Several Marshall, G.C., Hoard, Brian and three Vincent Stepter, Milfred, Ant, individuals as were also Curry, known at the station when a southbound train arrived. Three off Harris, one of whom was Frederick people, stepped train were toward the when heading stairway hands, G.C. Harris. The two shook approached spoke words, few and then G.C. us some.” yelled, got “[W]e head, G.C. Harris in and after strike proceeded so, he, defendant, of the other doing youths and several Harris and his two Harris’ began chasing companions. station, Harris friends ran the stairs but con- up tinued down the with G.C. and defend- running platform ant in pursuit. Harris and at- platform
When reached end tracks, onto Harris in to climb G.C. kicked tempted third rail of the back. Harris fell onto the Consequently, tracks, where he was electrocuted and subsequently thereafter, train. oncoming run over an Shortly a murder ensued. investigation arrived and disclosed at the on hearing facts were following the indictment. two defendant’s motion to dismiss On *4 19, the after the inci- August day occasions on separate dent, of defend- officers went to the police apartment Ms. testi- mother, ant’s Barbara Humphrey. Humphrey visit, fied that told her on their first officers they wanted to defendant some about “video question not She informed officers defendant did re- games.” side with her. different her later When officers contacted no that she that defendant evening, repeated longer her, lived with but lived with his and legal guard- sister ian, Torra Ms. testified the offi- Humphrey. Humphrey *** her, cers assured “It was to get alarmed nothing about, to ask they just wanted him a few questions.” Then, the officers a consensual search of her performed apartment.
During visit, this second officers police encoun- Israel, tered Gad father, later who testified the officers told him wanted “for they some- that thing downtown.” also happened told Israel They that him to “[t]hey wanted be a witness [defendant] about did not what something,” but mention that “some- thing” was.
The following morning, defendant, mother, his his father went to 51st Street police headquarters at Wentworth Avenue. to after According Israel, one telling of the officers that he had work, to he was go told that he could on,” ahead “go they because would be at the station all The officer Israel also told day. wanted a defendant as “witness” re- question “an
garding incident the el.” left Israel the station around noon and went work. station,
Ms. remained at the and at Humphrey ap- 1:30 she and proximately p.m., defendant had conver- sation with a and an youth officer, assistant policeman, State’s told her Attorney. They only wanted to talk they to defendant as a witness to a at the murder subway, and that afterward he could home. Ms. go Humphrey be- lieved defendant was not under that time. arrest at She told the three men “it would be for her son to tes- okay” before the tify grand jury. *5 Humphrey at 7 Ms. the station p.m.,
Before leaving Ini- home. defendant taking times about asked several home because could not go told defendant she was tially, At- State’s of an assistant for the arrival he had to wait he he could not leave because Later, she told was torney. statement he to give in court the next day had to be “tomor- authorities, home but he would be given had she call an since attorney did not row.” Ms. Humphrey he nothing it wasn’t need a lawyer, “didn’t [defendant] had done.” the Uni- counselor from Clark, defendant’s
Clifford for the Juvenile Services fied Intervention Delinquency in the station to the Court, police that he went testified of defend- 20, at the request on August afternoon early defendant told Clark A officer police ant’s mother. Clark At 3 p.m., there for some questioning.” “only of- youth of a female in the presence to defendant spoke he to defendant detectives, and then spoke ficer and two un- an hour conversation, Clark waited their alone. After release, but defendant’s to a “sheriff” about til he spoke *** Clark, “kept putting to the sheriff according [him] 4 or 4:30 at the station leaving to Clark’s off.” Prior would defendant officer told him that the same p.m., finished processing.” as they released “as soon went afternoon, Clark August following The 26th and California. at building criminal courts alone in a hall- the defendant arrived, he saw he When handcuffed, and room, not jury the grand outside way at the While basketball.” playing if he’d been “as acting The two people. courthouse, by was approached Clark with relationship to Clark’s as first individual inquired told Clark person The second defendant. would “somebody” questioning the courthouse for home.
take defendant legal guard- sister Humphrey, Torra courts the criminal went she too ian, testified that building on 21 at August 9:30 a.m. her Upon arrival, she observed defendant with another young in the boy snack a shop accompanied whom she person believed to be officer. man told her defendant had to make a statement and afterward would be ready go home. The four then left the snack and went shop upstairs to the grand room. At approximately Torra, p.m., defendant, and Clark had discussion with an assistant State’s Attorney during which the told attorney defend- ant “to tell him his story” and he would help defendant. *6 The attorney also told defendant that defendant could leave after he told his Torra left the story. courthouse at 2:30 approximately to to p.m. go work.
James Epstein, assistant public defender and counsel for G.C., testified that he interviewed defendant at 11 a.m. on August 21. Clark and Assistant Public Defender Tim Ackerman were present. Epstein introduced himself Clark, defendant and showed them his identification card, and told them he was G.C.’s attorney. Defendant told Epstein that he not did have a that he lawyer, witness, merely and that he would be home going after testifying before the grand Defendant jury. proceeded describe the events of 18 at the August subway station. He never mentioned his in the participation chase and stated he tried to the help victim off of the tracks.
Assistant State’s John Attorney Romano testified that he received a call on 21, 1984, August concerning murder, Harris to the reported courthouse at 26th arrived, and California. When he he discussed the case for 30 to 45 minutes with two detectives and read the police He learned that G.C. was in reports. custody and the individual in the only charged case. Romano pro- ceeded to witnesses, interview five including defendant.
Prior to Romano’s interviewing defendant, the detec- tives informed him that defendant had been on the “el” at the platform time the murder. Defendant had told Attorney pre- and another assistant State’s police the incident oc- vious that he was when day present it from a but, he observed part, curred for most mention that he chased vic- bench. Defendant did not tim. 1 p.m.
Romano to defendant spoke approximately some After present. asking prelimi- with two detectives defendant Miranda warn- gave Romano nary questions, Ro- his rights. According and defendant waived ings the same he had mano, basically story defendant told the other assistant State’s Attorney. told witnesses had re- Romano then defendant the other told defendant to tell lated a different and admonished story As grand jury. the truth in front of testifying before result, hap- a different version of what gave the same on which was- August substantially pened as his the grand jury. before testimony at 2 testified before the grand jury p.m.
Defendant in, defendant was sworn that same afternoon. Before cause that the instant Romano informed the jury in- regarding was a “John Doe for information only He of Mr. Frederick Harris.” of the homicide vestigation the testi- “to attention to asked the close pay witnesses, seeking as will be mony State] [the *7 charges.” re- jury from the transcript grand proceedings his
veals that first defendant about Romano questioned in of his constitutional rights and his advised age being that he their Defendant also admitted interview. prior he to the spoke his before rights constitutional given August on Attorney and an assistant State’s police to him. were made that no threats or promises and of his Miranda defendant Romano advised Again, then pro- Defendant defendant waived. rights, which on sub- transpired the events that ceeded to describe the chase in that he stating participated way platform, with the intent of Harris. Defendant injuring explained that he had told a different authorities on story because he “didn’t want to previous day get involved in it.”
Four other also testified eyewitnesses before grand and jury described murder the same as way defendant. Each observed defendant and G.C. chasing Harris. their Romano Following informed the testimony, he was jury seeking true bill of indictment G.C. and against defendant for the murder of Frederick Harris. After deliberation, the grand indicted them jury both.
Defendant moved to the indictment, dismiss alleging that the “course of conduct leading to defendant’s up ap- pearance before Grand Jury clearly calculated prosecutorial misconduct and overreaching” in a resulting denial of due The circuit process. court granted defendant’s motion to dismiss, reasoning that the assistant State’s Attorney intended to secretly indict defendant once defendant told his inculpatory story that the assistant State’s failure to inform Attorney’s defendant of this intention violated defendant’s right due process because he used the grand “like the In- quisition.”
The appellate court, one justice dissenting, reversed the judgment of the court, circuit acknowledging circuit court may dismiss an indictment in certain in- stances because of misconduct, prosecutorial but holding that (1) this defendant’s allegations coercive deten- tion, entailing fourth, fifth, and sixth amendment viola- tions, did not constitute sufficient justification for dis- missal of the indictment, (2) had no due process right to be informed he awas for indict- target ment, and court (3) circuit had no to in- authority into the quire of evidence “adequacy” to the presented so as there jury, long was “some” evidence rela- *8 10 at We af- (164 724-29.) to Ill. 3d charge. App.
tive the the court. do not be- firm We judgment appellate is an of the indictment appropriate lieve dismissal in this case. remedy as the does not grand finally adjudi-
Inasmuch innocence, it traditionally cate or has been allowed guilt technical by to its unrestrained the pursue investigation restrictions procedural applicable and evidentiary “the of an in- speaking, criminal trial. Generally validity character of the evidence by dictment is not affected the v. Calandra 414 (United States U.S. considered.” 338, 561, 568-69, 613, Ct. 343-45, 38 L. Ed. 2d S. Calandra, ex- 617-18.) the Court declined to In Supreme tend the rule to exclusionary grand jury proceedings, “extension of the rule holding exclusionary such an (Calandra, would grand seriously impede jury.” at Ed. 2d 94 S. Ct. The 620.) U.S. 38 L. at Court reasoned:
“Permitting exclusionary witnesses to invoke the rule be- adjudication fore a of issues grand jury precipitate would and would hitherto reserved for the trial on merits grand delay disrupt jury proceedings. Suppression investiga- halt the of hearings orderly progress would an issues might litigation tion necessitate extended only jury’s related ob- tangentially primary to the inter- jective. ‘protracted would be probable The result effectively ruption jury proceedings,’ [citation] trials the merits. them into on transforming preliminary delay In fatal the enforce- might some cases 349-50, ment 414 U.S. at (Calandra, of the criminal law.” 620-21.) 38 L. 2d at 94 S. Ed. Ct. at the role and potential injury Court concluded not outweighed by function of the grand jury rule in the context exclusionary benefits of applying of grand jury proceedings: might be incremental effect which
“Any deterrent extending grand jury proceedings rule to achieved of police is uncertain at best. Whatever deterrence mis- exclusion may illegally conduct result from the seized *9 trials, evidence from criminal it is unrealistic to assume grand that to application jury proceedings rule goal. that an significantly would further Such extension only police investigation consciously would deter directed in grand (cid:127)toward the for use a discovery solely of evidence jury The incentive investigation. disregard require- to ment of the Fourth obtain an in- solely Amendment to substantially negated dictment from a is the inadmissibility of the evidence in illegally seized a of subsequent prosecution criminal the search victim. For a prosecutor unlikely most would be to part, request an indictment where a conviction could not obtained. We therefore decline to embrace a view would speculative undoubtedly achieve a minimal advance deterrence of misconduct expense at the of Calan- substantially impeding grand jury.” the role of the dra, 351-52, 573, at 414 U.S. 38 L. Ed. 2d 94 at S. Ct. at 621-22. rule
Clearly, the does not exclusionary grand ju- bar ry’s obtained, consideration of evidence and use illegally such not, does evidence absent egregious prosecutorial misconduct, indictment, warrant of an dismissal particu- where, here, larly as there other probative, unobjec- tionable to the presented evidence if grand jury. Even we assume law enforcement officials did violate defend- fourth, ant’s fifth or sixth amendment in the rights pro- cess of defendant’s procuring jury testimony, case, the facts of this given defendant would most be entitled to fruits if suppress evidence and its they trial; were to be used him at his sought against remedy does not extend to barring prosecution altogether. v. (United States Morrison 361, 365-66, 449 U.S. (1981), United 564, 568-69, 668-69; 66 L. Ed. S. 665, 2d 101 Ct. v. States Blue 251, L. (1966), 255, 384 U.S. Ed. 2d v. Tapp 510, S. United States 514-15, 1416, 1419; 86 Ct. v. Barton 177, 178-79; Cir. 812 F.2d People (5th 1987), 1079, There is no need to 1084.) 122 Ill. 3d (1984), App. into “kind of prelim- grand jury proceedings transform U.S. (Costello trial” v. United States inary 406, in or- 408) Ed. 76 S. Ct. 359, 363, 100 L. where rights suppression der defendant’s protect im- trial effective. most evidence is as prior just in our law is for an accused system portant protection v. 72 Ill. 2d People Creque (1978), a fair trial itself. 527. consider determined that the could grand jury
Having
evidentiary
and that
testimony,
technical
delib
restrictions do not apply
grand jury
procedural
now
whether
conduct of
erations, we must
consider
of the indictment.
warranted dismissal
prosecutor
“No Illinois case to
acknowledges,
Defendant
readily
*10
misconduct has found de
date
with
dealing
prosecutorial
certainty
of
with
to
requisite
nial
due
established
process
and “no case since
warrant
of an indictment”
dismissal
440,
Ill.
13 cess 72 at in (Creque, 526) Ill. 2d as manifested the may Some cases latter oc jury proceedings. suggest cur or intentionally where prosecutor deliberately mis to of leads the the defendant prejudice Scotia, at L. Ed. 2d 108 (Nova U.S. 2377; S. 523-24; People Ct. at Ill. 2d at v. Creque, 190 App. 709). Barton Ill. 3d to see to trial right We fail how defendant’s a fair due prejudiced could be misconduct prosecutorial where evidence, of the been suppression alleged have is procured such an rem- through misconduct, available Moreover, of edy. presentation tainted supposedly before the could not have under- testimony grand jury other, mined integrity judicial where process untainted evidence crime, connected defendant to the where, Calandra, according to could con- grand jury sider so tainted in deciding evidence whether to indict defendant, and (defendant’s where evidence testi- not so mony) clearly was that the inadmissible prosecu- tor on in perpetrated fraud the grand jury presenting it for consideration, that it would not admis- knowing A sible at trial. in prosecutor should not be inhibited his presentation of a to a case fear dis- grand jury by erroneous, honest, missal due to his but ultimately ap- praisal of evidence for trial admissibility certain purposes.
Even if defendant his custody illegally prior grand jury and the testimony, prosecution aware detention, his circumstances of testi- *11 would not at mony necessarily be inadmissible a subse- The quent trial. does not end with a inquiry determina- tion that defendant’s initial detention was unlawful. Rather, a court con- motion to would hearing suppress sider temporal the of the initial detention and proximity statement, the the of circum- presence any intervening stances, and the official purpose flagrance
misconduct, the with of Miranda along giving warnings, in deciding whether defendant’s was suffi- testimony act an of free will to the taint of ciently purge primary the (Brown (1975), detention. v. Illinois 422 U.S. illegal 590, 603-04, 416, 427, 2254, L. 95 S. 2261- Ed. 2d Ct. case, In 62.) this a considerable of time be- period passed tween at the defendant’s arrival station and his before the testimony grand during which time he jury, members, was accessible to family allowed considerable movement, freedom of Miranda no given warnings less than four times. Defendant’s was not so testimony clearly inadmissible the of prosecutor guilty misconduct in it presenting jury.-
The circuit court ruled the assistant State’s Attorney had “violated defendant’s to due right of law be- process cause he like used Grand The Jury Inquisition.” [the] court 440, cited Boone v. State 148 Ill. exten- (1894), in its decision. sively note that an we is
Initially, inquisi- tional body:
“ ‘It
grand inquest,
powers
investiga-
is a
with
body
tion and inquisition,
scope
inquiries
of whose
is not to
be limited
or
narrowly by questions
propriety
forecasts
of the probable
investigation,
by
result of the
or
doubts
any particular
whether
will
found properly
individual
” (Calandra,
subject to an accusation
crime.’
414 U.S.
343,
569,
617, quoting
As for the Boone, circuit court’s reliance we find it upon “in misplaced. charged Boone was with already custody a crime” when he was before compelled testify of his 148 Ill. at grand jury, rights.” (Boone, “ignorant 449.) His evidence before the testimony only which this court found so com- grand jury. “danger” engendered prosecution’s Boone was pelling
15 failure to have Boone of his constitutional apprised in order to that rights any might belief he be re- dispel quired answer made him. charges against Apparently, the fact there that was no other evidence presented Boone also implicate this court’s underpinned decision. noWe consider longer Boone law in view of the good changes that sweeping have occurred since In 1894. modern American jurisprudence, pervasive applica- of tion rule exclusionary adequately addresses concerns which the Boone decision. prompted (1)
Defendant contends that he was entitled to be warned he was a for target indictment, (2) and that the failure to prosecutor’s advise him in with compliance sec- tion of 4(b) Code Criminal Procedure 1963 112— (the Rev. ch. Code) (Ill. Stat. par. 4(b)) 112— him, prejudiced because warnings Miranda he re- ceived failed to him specifically (as inform would section 4(b)) that he right had a to refuse to answer any 112— which question would tend to incriminate him. We reject both contentions.
It held, has been under similar factually circum- stances, that a prosecutor’s failure to specifically warn defendant he was a for indictment target did not offend guarantees. constitutional United States v. Washington 181, 189, 238, 246, U.S. L. Ed. 2d 97 S. Ct. 1819-20.
First, the events which the Court Washington held “clearly put respondent on notice he that suspect” parallel similar events in the case bar. As was the in Washington, case defendant here knew that an offense in he investigating which was in- volved and that his involvement was known —to a greater authorities; or lesser degree he knew —to that the authorities were questioning his version events in light them; other information known to he received in the which warnings grand jury room were
similar
to those Washington
received.
time
By
defendant
testified,
he was well aware
of his potential
Miranda
Second,
status.
defendant was
given
him that he
warnings,
advising
had the
to remain
right
silent,
that
he said could
him
anything
against
be used
court,
an
would be
him
attorney
appointed
for
*13
Washington
Similar
in
upon request.
were
warnings
held
to have
alerted
to
adequately
his
Washington
right
refuse
to answer
which
any question
incriminate
might
Supreme Court stated Washington:
him. The
in
“It is inconceivable that such a
fail
warning would
to al-
ert him
right
to his
to refuse to
any question
answer
which might incriminate him. This advice also eliminated
any possible
to self-incrimination
compulsion
might
which
*** Indeed,
otherwise exist.
it’ seems self-evident that
one who is told he is free to
questions
refuse to answer
is
in a
posture
complain
curious
to later
that his answers
Moreover,
were compelled.
any possible coercion or un-
resulting
fairness
from a
misimpression
witness’
that he
must answer truthfully
questions
even
with incriminatory
aspects
completely
is
removed
warnings given
here.
in
presumed
Even
psychologically coercive at-
mosphere
interrogation,
custodial
Miranda does
not require
any
warnings
additional
given
simply
defendant;
suspect
indeed,
because the
is a potential
such
suspects
potential
are
defendants more often than not.”
245-46,
(Washington,
As the of the admonishments in section 112— purpose 4(b) of the 112— (Ill. Code Rev. Stat. ch. par. 4(b)) counsel, is to advise a defendant of his right to alert him to his to refuse to answer right question any and the Court Washing- him, which incriminate might ton held that Miranda under similar warnings, factually circumstances, concerns, address those we adequately hold that the defendant advised his adequately rights.
In sum, we find that the conduct neither prosecutor’s prejudiced trial, to a fair right nor under- mined the integrity judicial process; therefore dis- missal of the indictment was not warranted. we note that
Finally, defendant could not have been prejudiced by prosecutor’s alleged misconduct or by use of defendant’s jury’s grand jury testimony, because defendant would have been indicted in any event. The other four who boys testified before the stated that saw they defendant and G.C. victim, chasing this after had G.C. identified the vic- tim and two others him with as gang members (“Stones”) and had struck the victim in the head. The chase in which defendant and G.C. were engaged ended when G.C. “kicked into the third rail” of the [the victim] where subway, he was electrocuted.
A is person accountable legally for the conduct an- other when, either before or during commission of an offense, and with the intent or promote facilitate such commission, solicits, he aids, abets, or at- agrees, *14 to aid tempts such other person in the planning or com- mission of the offense. (Ill. 1987, 38, Rev. Stat. ch. par. 2(c).) Evidence that defendant attached voluntarily 5— himself to a group bent on acts illegal with of knowledge its design an supports inference that he shared the com- mon purpose and will sustain his conviction for an of- fense committed another. (People v. Allen 56 (1974), 536, Ill. 2d 541.) Proof of a common can purpose drawn from the circumstances surrounding commis- sion of the act. v. People Richardson 32 Ill. (1965), 2d 472, 476-77.
There was some evidence, of independent any alleged which impropriety, connected defendant to the crime. There need be “some only evidence” to connect defend- ant to the offense charged. 288; 92 Ill. 2d at (Rodgers, v. People Whitlow 89 (1982), 322, Ill. 2d This 331.) evi- 18 indictment; have there-
dence alone would supported oc- fore, some misconduct did assuming, arguendo, even cur, it, it, and the evidence derived from could not have Scotia, the defendant. See Nova 487 U.S. at prejudiced 2d 254,101 237,108 L. Ed. S. Ct. at 2373-74. In hold that of view of the we dismissal foregoing, Therefore, the indictment improper. judgment was court, court, the circuit is af- appellate reversing firmed.
Affirmed. MORAN, CHIEF JUSTICE dissenting: I It that an indict dissent. is well settled respectfully ment misconduct is sub through prosecutorial procured to dismissal. Nova Scotia v. United States ject (Bank of (1988), 487 U.S. 101 L. Ed. 2d 108 S. Ct. 2369; 283; v. 92 Ill. 2d v. People Rodgers (1982), People 106; Ill. (1977), 2d v. Lawson Linzy (1979), People Ill. 2d This case a situation where defend 449.) presents ant was the misconduct and was victim prosecutorial as a result of that misconduct. substantially prejudiced The of the circumstances evidences totality a victim of misconduct. prosecutorial Spe- when defendant’s and limited education are cifically, age with the 28-hour unlawful detention coupled period and the that defendant was repeated misrepresentations witness, the fundamental fairness merely undermined. jury proceedings clearly “[T]he is an .of the court and not the tool of integral jury part neither the nor the grand prosecutor prosecutor is vested without regard with power proceed due v. Ill. 2d 36. process.” People Sears detained defendant for prosecutors ap- cause. Defend- 28 hours without proximately probable *15 brought police ant’s defendant parents voluntarily 20, 1984. The station 9 a.m. on approximately August at
19 police officers assured each that their son would parent be allowed to return home after Soon there- questioning. after, defendant’s father left station when a police officer him police to work. At encouraged go approxi- 1:30 defendant’s mately p.m., mother asked a offi- police cer an and assistant State’s if she take could Attorney her son home. Her denied. Several request was times afternoon, during officer juvenile asked if defendant could return home. Each of his requests was At denied. the defendant’s approximately p.m., mother if again asked she could take her son home. Her request again denied. The officer police informed that, her although arrest, her under son not he had in stay order to overnight testify before the grand jury following day.
Defendant was transferred to the criminal courts building following morning. Defendant’s sister ar- rived 9:30 a.m. She was approximately informed that defendant would be allowed to return home after testify- ing before the grand jury. juvenile Defendant’s officer arrived later in the morning was also informed that defendant would be allowed to return home. At approxi- mately Assistant p.m., State’s Romano inter- Attorney of his Miranda viewed defendant after him advising At rights. approximately p.m., be- appeared fore the grand jury.
Prior to his grand defendant was jury appearance, not arrested or formally charged with offense. Nev- any ertheless, it is manifest that in defendant was placed First, custody police. Detective testi- Henry Sigler fied before the grand that defendant was placed Furthermore, on custody. several occasions defendant’s mother juvenile officer asked if defend- leave, ant could and each time their were de- requests evidence, nied. In light this the circuit court deter- mined that defendant was detained the wishes of against *16 The factual find-
his
for
28 hours.
parents
approximately
on review
of the circuit court will not be overturned
ings
v.
(1979),
unless
Conner
manifestly
(People
erroneous.
Here,
Ill. 2d
of the evidence
532.)
great weight
the circuit court’s determination.
supports
that
elected to remain in
The State asserts
for 28 hours
reason-
police custody
voluntarily,
any
in
have
able
would
believed
person
position
(See
that
time.
v.
any
People
he was free to leave
test is what the rea-
(the
Moreover, the 28-hour unlawful period during father, sister and tention, defendant, mother, his his his that defend- repeatedly his officer were all told juvenile never told Defendant was ant was a “witness.” merely Citing a for indictment. target that he was a or suspect 181, 52 L. 431 U.S. Washington (1977), States v. United Ed. 2d 97 S. Ct. holds that the majority State was under no obligation reveal witness’ target status.
In Washington,
moved
respondent
quash
his indict-
ment,
it
arguing
was obtained
violation of his
fifth amendment
self-incrimination. Al-
privilege against
though respondent
theft,
suspected
committing
he was
witness,
before the
as a
brought
grand jury
not
as a
suspect,
about the theft.
testify
Respondent
a series of
given
but was not
warnings,
told
specifically
that he might be indicted. Respondent
his ver-
relayed
sion of the facts
theft,
but the
surrounding
*17
chose not to
jury
believe his testimony and elected to in-
dict him. The United States Supreme Court held that the
valid,
indictment
as the prosecutor was under no ob-
ligation to reveal a witness’ target status.
However, is Washington distinguishable from the in- First, stant case. in Washington, respondent attained the age case, but the instant majority, defendant was a 15-year-old minor with a Furthermore, limited education. in Washington, respondent did not allege governmental misconduct, but in the case, instant the evidence sup- ports the defendant’s allegations of prosecutorial miscon- duct. the During 28-hour period that defendant was in and not custody permitted leave, he was told that he repeatedly was a witness and would be allowed to return home after before the testifying grand jury.
At the of the beginning grand jury proceedings, Ro- mano stated that the instant cause was “John Doe for information,” and asked the grand attention jury pay because the State would The circuit seeking charges. court found that the prosecutor affirmatively misrepre- sented the status of defendant, the because he knowingly to indict him even sought he though brought defendant before grand the as a jury witness. The factual findings un-
of the circuit court will not be overturned on review less erroneous. v. Conner manifestly (People Ill. The circuit that 532.) finding 2d court’s not status was prosecutor misrepresented erroneous. Romano did not Assistant State’s
Although Attorney in the case until three approximately become involved pro- hours before the commencement grand jury office knew ceedings, prosecutor’s throughout more than a mere entire that defendant was wit- period ness. not have been detained over- Defendant would if he a -wit- night, wishes, only his against parents’ Moreover, at five proceedings, ness. jury witnesses, defendant, the homi- testified about including wit- only cide on the “el” Defendant was platform. to receive Un- warnings testifying. ness Miranda before case, der the facts of this defendant would not have been knew advised of his Miranda unless the State rights him. Al- it would be an indictment seeking against does that a Washington require prosecutor not though status, reveal a it does not stand for target witness’ that a can affirmatively misrepre- proposition prosecutor sent that status. detention,
After the 28-hour of unlawful period testify. defendant was brought before However, a subpoena pursuant defendant was not issued *18 Procedure of to section 112—4 of the Code of Criminal 1983, 38, 112-4(b)). ch. While (Ill. par. 1963 Rev. Stat. if defendant necessary would not have been subpoena defendant did not be- appear to testify voluntarily, chose unre- fore the The is testimony grand jury voluntarily. to leave the po- that defendant was not permitted butted he to testify lice station because was required that The is also unrebutted testimony following day. to go defendant that he would be permitted was told that, un- suggests home after Common sense testifying. circumstances, der these minor 15-year-old testified so that he would home. finally permitted go
The 28-hour of unlawful detention and the re- period peated misrepresentations defendant was merely witness reveals the extent of misconduct in prosecutorial this case. Without counsel, benefit of in- criminated himself before the The grand jury. prosecutor abused the entire grand jury process by employing as an inquisitional to extract a body confes- sion defendant. from
While the in majority, sense, a very narrow is correct in as an characterizing grand jury inquisitional body (United States v. Calandra 338, 343-45, (1974), U.S. 561, 568-69, 38 L. 613, Ed. 2d 94 S. Ct. its 617-18), as “reflects its role in scope inquisitor special insuring fair and effective law enforcement.” (414 343-45, U.S. 38 L. Ed. 568-69, 2d at 94 S. Ct. 617-18.) system Our is a jurisprudence just, accusatorial not an un- system, v. Rogers Richmond just, inquisitorial one. (1961), 534, 541, U.S. 5 L. Ed. 2d 766, 81 S. Ct. 739. IAs would find that defendant awas victim of prose- cutorial misconduct, the next is whether question defend- ant was substantially prejudiced as a result of the mis- conduct. (Bank Nova Scotia v. United States 487 U.S. 254, 101 L. 228, 237, Ed. 2d 108 S. Ct. 2369,. I 2373.) would find that defendant was substan-
tially prejudiced. asserts that majority defendant’s to a fair right
trial was not since a motion to prejudiced suppress evidence as served an available It is remedy. axiomatic that -where a fourth, fifth and sixth amend- ment' rights have been is an infringed, suppression avail- That, able however, remedy. is not the question this case. The is question whether defendant’s indictment was procured through prosecutorial so, misconduct. If dismissal is the appropriate v. remedy. (People Linzy *19 ma- otherwise, as the 106, 110.) To hold 78 Ill. 2d
(1979), meaning- to a here, would dismissal relegate does jority rea- the less, By adopting majority’s toothless remedy. through is procured an indictment whenever soning, ad- misconduct, of the evidence suppression prosecutorial would be an availa- grand jury proceeding duced at the would misconduct because prosecutorial ble remedy, amendment fourth, fifth or sixth involve a invariably a meaning- that dismissal remains It is right. important dur- prosecution ful overzealous guard against remedy of the phase proceeding. ing grand jury could not that defendant The also asserts majority other of four testimony have been because prejudiced ma the indictment. witnesses grand jury supported v. Rodgers People 92 Ill. 2d (1982), cites jority v. Whitlow People 89 Ill. for the proposi 2d in support some evidence only tion that there need are because inapposite, These cases the indictment. any evidence there was issues were whether presented has author The circuit court the indictment. to support there is no supporting ev if to dismiss the indictment ity if there is some idence, cannot an indictment but dismiss 290; Whitlow, Rogers, supporting 2d at 92 Ill. evidence. at 89 Ill. 2d 331. allegations prosecutorial there has been
Where
there
is not whether
standard of review
misconduct,
some evidence
To adopt
of the indictment.
is
support
notions of
be-
justice,
all
standard would pervert
such a
there is some
as
long
would stand as
an indictment
cause
the prose-
matter how
evidence,
egregious
no
supporting
re-
judicial
The purpose
may
misconduct
be.
cutorial
the defendant
from
is to protect
a situation
in such
view
the prosecu-
ensure that
and to
prosecution,
overzealous
the grand jury
fulfills
advisor
legal
his role as
tor
influences
that unduly
in a capacity
does not serve
Pro-
Israel,
& J.
Criminal
LaFave
(2
W.
grand jury.
§15.5,
321-22,
cedure
326-28
To
(1984).)
achieve this
end, the
court must
reviewing
determine whether
defendant was substantially
as a result
prejudiced
*20
prosecutorial misconduct. Bank
Scotia,
Nova
487 U.S.
at 256-57,101 L. Ed.
238-39,
2d at
In the instant case, five (defendant witnesses and four other youths) testified that G.C. initiated contact Harris, with instigated the chase across the subway plat- form, and caused Harris to fall onto the third rail of the train tracks. They further testified that defendant partic- in the ipated chase. Defendant admitted that he partici- pated in the chase with the intent of injuring Harris. Defendant was substantially prejudiced because his ad- mission of his conduct as well as his thoughts influenced decision grand jury’s to indict. Furthermore, G.C. and defendant were the indicted; only persons none of the other persons who in the participated chase were in- dicted.
The State emphasizes misconduct did not prejudice defendant, because he received the standard Miranda warnings before with Romano speaking and again before The testifying. question, however, is not whether defendant received and then waived his Miranda rights, but whether defendant intel knowingly, and voluntarily waived those rights. (Miranda v. ligently Arizona 384 U.S. L. Ed. 2d 86 S. Ct. It 1602.) cannot be said that reasonably knowingly, intelligently waived his voluntarily Miranda rights. Defendant was detained for unlawfully over 27 hours before the initial Miranda receiving warn ings, was told that he was repeatedly a wit merely ness and would be permitted return home after testi fying before the grand Furthermore, neither jury. mother, father, sister nor officer juvenile were when he received the Miranda warnings. present the prejudice did not diminish Miranda warnings least one At misconduct. the prosecutorial
caused of the proceed- impropriety recognized juror ings: Why did lawyer? a you want Why
“A didn’t JUROR: a help refuse Why you did lawyer? refuse a you lawyer? Why?
THE WITNESS: he legal want you didn’t Why A JUROR: —when say did no? lawyer, why you you if wanted you asked I know if needed Because I didn’t THE WITNESS: or not. lawyer
* * * here? know are you sister your A Do JUROR: [s-ic] Yes, ma’am. THE WITNESS: you? is here with A She JUROR: to work. go She had to No ma’am. THE WITNESS: or Attorney to the State’s she talk A Did JUROR: *21 down? brought you the police anyone downtown when me brought and father My mother THE WITNESS: station. to the brought you father mother and
A Your JUROR: down here?
THE Yes. WITNESS: police? talk to the Did they A JUROR: the police.” talked to They THE WITNESS: case, the defendant of this the circumstances Under of the prosecu- as a result substantially prejudiced the judgment I reverse misconduct. would torial circuit affirm the judgment court and appellate court. in this dissent. CLARK joins
JUSTICE