THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. M. RUSSELL KIRKLEY et al., Defendants-Appellants.
Third District No. 76-11
Appellate Court of Illinois, Third District
May 2, 1978
377 N.E.2d 540 | 60 Ill. App. 3d 746
BARRY, J., specially concurring.
Edward Petka, State‘s Attorney, of Joliet (Barbara J. Badger, Assistant State‘s Attorney, of counsel), for the People.
Mr. JUSTICE SCOTT delivered the opinion of the court:
This is an appеal from the circuit court of Will County which after trial by jury entered judgments of guilty against the defendants, Russell Kirkley and Robin Kirkley, for the offenses of unlawful possession of a controlled substance and unlawful possession of cannabis. The trial court imposed sentences of imprisonment of not less than 4 years nor more than 6 years on each defendant for the offense of unlawful possession of a controlled substance and sentences of imprisonment on each defendant of not less than 2 years nor more than 6 years for the offense of unlawful possession of cannabis. The sentences imposed on each defendant were to run concurrently.
The defendants at the time of their arrest on January 23, 1975, were husband and wife. Subsеquent to their arrest the defendants were divorced and in this appeal one brief was filed on behalf of both defendants and one only on the behalf of the defendant Russell Kirkley. The issues assigned as error in these briefs are not identical but this court has been requested to consider all issues raised in the respective briefs as being applicable to both defendants. We are of the opinion that this request should be granted since the record discloses that the procedural and factual aspects of the arrest, trial and sentencing of the defendants are identical in every respect. The State further acknowledged during oral argument that the record supports such a finding.
The first issue which we are called upon to consider and determine is whether the defendants’ constitutional right to a prompt preliminary hearing was denied and if so whether a remedy for such a denial exists.
As we have previously stated, the defendants were arrested on January 23, 1975. On January 27, 1975, the defendants made a motion for a preliminary hearing and the trial court set a hearing for the same on
“No person shall be held to answer fоr a crime punishable by death or by imprisonment in the penitentiary unless the initial charge has been brought by an indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause.”
The above provision of the constitution was submitted to the convention by the Committee on Style, Drafting and Submission. The Committee had made a сhange in the wording of the proposed draft and explained the changes as follows:
“This change makes it clear that a person must either be charged initially by grand jury indictment or given a prompt preliminary hearing before being held to answer for a crime punishable by death or by imprisonment in the penitentiary.” 7 Record of Proceedings, Sixth Illinois Constitutional Conventiоn 2600.
Pursuant to our constitutional mandate our legislature has provided for proceedings which are to occur after an accused person is arrested. Our statutes provide that such proceedings shall be commenced without unnecessary delay. (See
In the instant case each of the defendants was charged by a two count criminal complaint of committing offenses which are punishable by imprisonment in the penitentiary. Four days after they were arrested they appeared in court and specifically moved for a preliminary hearing. No preliminary hearing was ever held, but instead 176 days after their arrest they were indicted by a grand jury.
In the case of People v. Howell (1975), 60 Ill. 2d 117, 324 N.E.2d 403, our supreme court was confronted with a situation where a defendant who was arrested in connectiоn with an attempted armed robbery and shooting in a tavern was held in jail without preliminary hearing until he was indicted 65 days later. The court made the following observation:
“Without question, holding the defendant in this case under a criminal charge for 65 days without giving him a prompt preliminary hearing or presenting his case to a grand jury violated the letter and intent of
section 7 of article I of the 1970 Constitution .” People v. Howell (1975), 60 Ill. 2d 117, 119, 324 N.E.2d 403, 404.
In the case of Howell the supreme court noted that the delay of 65 days was the most severe violation of
In the instant case the defendants demanded a preliminary hearing, objected when a sсheduled hearing was continued and in their post-trial motion assigned as error their denial of a prompt probable cause hearing. The delay in the instant case, being 176 days, far overshadows the 65-day delay which our supreme court referred to as a most severe violation of
Reviewing courts of our State have consistently held that an accused has а constitutional right to a prompt probable cause hearing either by a grand jury or by a judge. People v. Moore (1975), 28 Ill. App. 3d 1085, 329 N.E.2d 893; People v. Kent (1972), 54 Ill. 2d 161, 295 N.E.2d 710; People v. Williams (1974), 20 Ill. App. 3d 840, 314 N.E.2d 276; People v. Hunt (1975), 26 Ill. App. 3d 776, 326 N.E.2d 164; People v. Howell (1975), 60 Ill. 2d 117, 324 N.E.2d 403.
While it is recognized and acknowledged that an accused has a constitutional right to a prompt probable cause hearing, our legislature has not implemented the constitutional provisions granting this right by
Referring again to the case of Howell our supreme court stated:
“We consider the delays in giving an accused a prompt preliminary hearing to be a serious deprivation of his constitutional rights and we are deeply concerned about the number of cases in which an accused has not had a prompt probable-cause determination. We consider this a subject for appropriate legislative action and we strongly urge the General Assembly to consider the prompt implementation of this constitutional provision. ***” People v. Howell (1975), 60 Ill. 2d 117, 122-23, 324 N.E. 403, 405.
We agree that sanctions to be imposed for a
The People in their brief without making a contention regarding the same, nevertheless allude to the fact that the defendants on March 10, 1975, when the case was called for hearing on probable cause, presented a motion to quash a search warrant and to suppress evidence derived therefrom. The cause was then continued until the defendants’ motion was resolved. We fail to see why the filing of such motions by the
For the reasons set forth the judgments of guilty entered by the circuit court of Will County against the defendants are reversed.
Judgments reversed.
Mr. PRESIDING JUSTICE STENGEL, specially concurring:
I concur in the result reached in this case, but something more needs to be said. This appeal presents squarеly the question whether this court has authority to impose sanctions for a violation of a person‘s constitutional right to a preliminary hearing. This case is undoubtedly the first Illinois decision where a court has applied the sanction of invalidating a conviction for failure to provide a prompt preliminary hearing.
While the general rule and custom in reversing judgments of conviction after a trial by jury is to remand the cause to the court below for further proceedings, we do possess power on reversal to discharge the prisoner absolutely if justice requires it. People v. Meyers, 397 Ill. 286, 73 N.E.2d 288; People v. Rubin, 366 Ill. 195, 7 N.E.2d 890.
Numerous decisions by the appellate courts of Illinois have refused to grant a reversal of the judgment of conviction in like cases. In People v. Hunt (1st Dist. 1975), 26 Ill. App. 3d 776, 326 N.E.2d 164, the court held that а violation of the right to a preliminary hearing does not invalidate a defendant‘s conviction or entitle him to a dismissal of the charges against him. It has also been held that if an indictment is dismissed because of a violation of the right to a preliminary hearing, prosecution on a new indictment is not barred. People v. Uribe (2d Dist. 1973), 13 Ill. App. 3d 1027, 301 N.E.2d 492, appeal allowed (1974), 55 Ill. 2d 603, motion for summary affirmance allowed September 12, 1974.
The 176-day delay presented here is the longest recorded in Illinоis history, and obviously violates the
“The second paragraph of section 7 does not provide a grant of immunity from prosecution as a sanction for its violation.”
The last word in the fashioning of sanctions was considerеd in People v. Howell (1975), 60 Ill. 2d 117, 324 N.E.2d 403, and the supreme court has called upon the legislature to provide for such sanctions.
While the sanction adopted here may go beyond People v. Howell, the
Mr. JUSTICE BARRY, specially concurring:
I concur in the result reached in this case and also agree with Justice Stengel‘s comments in his special concurring opinion that there is a need for something more to be said regarding this case. In addition, the fact that something should have been done by the Illinois General Assembly to аfford an appropriate sanction to implement the intent of
While I am not convinced that the Illinois constitutional provision for a prompt preliminary hearing impliedly provides an absolute grant of immunity from prosecution as a sanction for its violation, I am convinced that the constitutional provision and the constitutional rights of all those accused of a crime demand our close scrutiny in order to insure that our most fundamental rights as free citizens are not impugned.
In this case, the delays in holding a preliminary hearing were the result of several factors including, most importantly, delays requested by the prosecution and delays actually occasioned by the malfunctions of the court system. We cannot cоndone such extreme delays by affirming defendants’ convictions because it would only add to the wrong already perpetrated. Every accused, whether incarcerated or not, has a right to a prompt preliminary hearing to determine initially whether there is sufficient evidence to continue with the criminal prosecution against him. If the evidence is insufficient a prompt preliminary hearing resulting in an accused‘s discharge will avoid adding further to the State‘s expense of continuing with the prosecution, and to an accused‘s mental anguish and social stigma which naturally result from being accused of criminal conduct. Most importantly, an accused‘s actual freedom is less likely to be taken away even temporarily, if he is innocent, when a prompt preliminary hearing is conducted.
The opinion of the majority in going beyond People v. Howell (1975), 60 Ill. 2d 117, 324 N.E.2d 403, of necessity in the instant case creates a sanction sufficient to call the attention of the legislature to the serious problem presented. I therefore concur in the result we reach today in this case wherein the issue is squarely and properly raised for us, unlike the case of Howell.
I disagree with Justice Stengel‘s position in his special concurring opinion wherein he recites that the subject matter of this case is again appropriate for consideration by the supreme court. It should be recalled
It was also noted in the 1977 Annual Report of the Supreme Court to the General Assembly that in Cook County several efforts have been made to handle this problem thrоugh the enactment of Circuit Court Rules which propose the following procedures:
- Preliminary hearings in felony cases must be held within 30 days of the date of the arrest of an accused. A preliminary hearing may be continued beyond the 30 day period only upon a showing of exceptional circumstances which warrant delay. (Cook County Circuit Court Rule 14.1, effective Mаrch 1, 1977.)
- In Chicago, a defendant not released on bond shall be given a preliminary hearing immediately following the approval of the charges against him by the proper authority. A defendant who posts bond on a felony charge shall be given a preliminary hearing not later than 5 days from the date the charges against him are approved by the proper authority. (General Order No. 77-1(M) of the 1st District of the Municipal Department of the Circuit Court of Cook County, effective March 1, 1977.)
I therefore believe that the judicial sanction we impose today implementing
Furthermore, were I writing the majority opinion in this case, I would have suggested another reason to reverse. I believe that, once a defendant is initially charged by information, probable cause cannot later be found by indictment, but must be established through a prompt preliminary hearing. (People v. Hendrix (1973), 54 Ill. 2d 165, 295 N.E.2d 724 (Justice Ward, dissenting).) Although Hendrix has been cited for the proposition that an indictment, after charges are brought by some other means is sufficient to establish probable cause and vitiates a prompt preliminary hearing (see People v. Moore (5th Dist. 1975), 28 Ill. App. 3d 1085, 329 N.E.2d 893, and cases cited therein), the majority in Hendrix did not so conclude.
The only way Hendrix can be interpreted as stating that an indictment following a charge by information vitiates the need for a prompt preliminary hearing is if Justice Goldenhersh‘s special concurring is read with, and as a part of, the majority. Thе Hendrix majority said only that, at the time of that defendant‘s trial, he must have been indicted because, even though
Because the legislature has now limited the use of the grand jury and because of the use of the phrase “initial charge” in