THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT REIMER, Defendant-Appellant.
No. 1-10-1253
Appellate Court of Illinois, First District, Second Division
March 30, 2012
May 3, 2012
Modified Opinion filed May 8, 2012
2012 IL App (1st) 101253
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In a prosecution for home repair fraud, the State violated defendant‘s due process rights by presenting two incorrect statements of law with regard to home repair fraud before the grand jury, namely, that the element of intent could be presumed and that defendant‘s intent at the time of the agreement with the victim was not an element of the offense, and those misstatements resulted in actual and substantial prejudice to defendant; therefore, the cause was remanded with directions to dismiss the indictment without prejudice, since there were no concerns about new deception or perjured testimоny where the State would simply present evidence satisfying the element of defendant‘s intent at the time of the agreement.
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 07-CR-20250; the Hon. Marcus R. Salone, Judge, presiding.
Judgment
Reversed and remanded.
Anita M. Alvarez, State‘s Attorney, of Chicago (Alan J. Spellberg, Ashley Romito, Mary Needham, and Sebastian Soto, Assistant State‘s Attorneys, of counsel), for the People.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justice Connors concurred in the judgment and opinion.
Presiding Justice Quinn specially concurred, with opinion.
OPINION
¶ 1 Defendant, Robert Reimer, was charged with one count of home repair fraud pursuant to section 3(a)(1) of the Home Repair Fraud Act (
¶ 2 JURISDICTION
¶ 3 The circuit court sentenced defendant on April 14, 2010. Defendant timely filed his notice of appeal on April 16, 2010. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below.
¶ 4 BACKGROUND
¶ 5 Defendant was charged by indictment with one count of home repair fraud pursuant to section 3(a)(1) of the Home Repair Fraud Act (Act) (
“KNOWINGLY ENTERED INTO A WRITTEN AGREEMENT OR CONTRACT, WHEN THE AMOUNT OF THE AGREEMENT OR CONTRACT WAS MORE THAN $1,000.00, WITH RITA AVILA FOR HOME REPAIR AND [DEFENDANT] KNOWINGLY PROMISED PERFORMANCE WHICH HE DID NOT INTEN[D] TO PERFORM OR HE KNEW WOULD NOT BE PERFORMED.”
¶ 6 Before the grand jury, Detective Sandra Bryant of the Chicago police department testified she was assigned to investigate a home repair fraud involving
¶ 7 Detective Bryant testified that when Avila went to the address where she believed defendant‘s office was located, she found a vacant lot. When Avila tried to contact defendant through his cell phone, it was disconnected. Defendant never provided Avila with any new contact information. Detective Bryant stated that defendant did not perform $6,000 worth of work on Avila‘s home. Specifically, he was supposed to put in new kitchen cabinets, which defendant never ordered. Defendant admitted to Detective Bryant that he started the work, but did not finish it, claiming that he ran out of money. He further admitted he never gave Avila a new way to contact him.
¶ 8 In response to questions from the grand jury, Detective Bryant testified that the defendant was supposed to “tear out walls and existing cabinets in the kitchen and bathroom, replace cabinets and walls, paint, tile floors, and plumbing work.” Detective Bryant testified that defendant “did demolition work” and “put up some walls.” Detective Bryant testified further that Avila found defendant on Contractors.com as BRB Construction. At one point during Detective Bryant‘s testimony, the grand jury asked the assistant State‘s Attorney, “What makes this a felony case versus a civil case to be taken before a civil court?” In response, the following exchange occurred:
“Q. [Assistant State‘s Attorney]: Detective, I‘m going to ask you a series of questions to answer the Foreman‘s question.
Is it true that according to the home repair fraud statute that once two parties come to an agreement for home repair that if it is shown that the defendant has no intention to complete the work agreed upon, that it is a felony?
A. Yes.
Q. And does the statute also specifically show some examples of how intent to not finish can be inferred?
A. Yes.
Q. And onе of those specific examples is if the defendant changes his business address and does not by writing notify the victim of that change of the address at the time of the change?
A. Yes.
Q. Is intent to not finish the project also shown by the fact that the defendant never made contact with the victim to make any other arrangements?
A. Yes.
Q. And is it also shown by the fact that the victim had no way either in person or by phone or by letter, for that matter, since the address was not existent to contact the contractor?
A. Yes.”
¶ 9 After testifying that defendant “stated he ran out of money” as the reason for not completing the work, the following exchange occurred between the grand jury, the assistant State‘s Attorney, and Detective Bryant:
“THE FOREPERSON: Did he admit that he intended not to complete the project or that he entered into this project with the intention of taking her money and not finishing? The question is: Did he intend not to finish this project on the onset of accepting the job? Q. [Assistant State‘s Attorney]: Detective, is it correct that that is not an element of the offense?
A. [Detective Bryant]: That‘s correct.”
¶ 10 After deliberating, the grand jury delivered a true bill.2
¶ 11 Prior to trial, defendant filed a motion to dismiss his indictment based on due process violations. In his motion, defendant argued that “the State‘s Attorney and the testifying detective misled the grand jury by grossly misstating the law for home repair fraud.”3 Specifically, defendant argued that the State misled the grand jury by stating that intent not to finish repairs can be inferred in a variety of ways even though that subsection of the Home Repair Fraud Act had been severed by our supreme court. See People v. Watts, 181 Ill. 2d 133 (1998). Defendant also pointed to the section of the grand jury transcript where
Detective Bryant, in response to the assistant State‘s Attorney‘s question, stated that defendant‘s intent not to finish the job at the onset of the job was not an element of the offense. Becausе the State did not present evidence of defendant‘s intent not to finish the job at the onset of the contract, defendant argued that the State did not meet its burden of showing intent. Defendant maintained that the State‘s actions before the grand jury resulted in actual and substantial prejudice to him and the indictment against him should be dismissed. Defendant also requested that the indictment be dismissed with prejudice because he contended that the State would have to present contradictory evidence in order to reindict him. Defendant attached to his motion as exhibits the transcript of the grand jury proceedings, a copy of section 3 of the Home Repair Fraud Act (
¶ 12 In response, the State argued that defendant never showed “how his due process rights were violated or how he was actually prejudiced.” The State maintained that it presented evidence showing that defendant did not intend to finish the project and that he did not finish the project. Specifically, the State argued that “the intent not to complete the contract was evident by the defendant‘s actions. The exact timing of when the defendant decided not to complete the contract was an issue for trial and was not required for a finding of probable cause.” The State also argued that it did not commit prosecutorial misconduct because there was no evidence that the assistant State‘s Attorney intentionally misled the grand jury.
¶ 13 The circuit court denied defendant‘s motion. In making its ruling, the court stated that it did not “believe that there was deception sufficient to undermine the determination of probable cause.” The
¶ 14 After a trial, the jury found defendant guilty. Defendant filed a motion for a new trial raising 19 points of error. Relevant to this appeal, defendant argued that the circuit court erred in dismissing his motion to dismiss the indictment. Defendant was sentenced to 30 months’ probation, to payment of restitution to the victim, and to performance of 288 hours of community service.
¶ 15 Defendant timely appealed.
¶ 16 ANALYSIS
¶ 17 We will first look at section 3 of the Home Repair Fraud Act (
¶ 18 Section 3 of the Home Repair Fraud Act
¶ 19 The purpose of the Home Repair Fraud Act “is to prohibit and prevent the knowing use of fraud and deceptive practices to induce an unwitting homeowner to enter into a contract
for home repairs.” People v. Thompson, 275 Ill. App. 3d 725, 732 (1995). Section 3 of the Home Repair Fraud Act, in relevant part, states:
“(a) A person commits the offense of home repair fraud when he knowingly enters into an agreement or contract, written or oral, with a person for home repair, and he knowingly:
(1) Misrepresents a material fact relating to the terms of the contract or agreement or the preexisting or existing condition of any portion of the property involved, or creates or confirms another‘s impression which is false and which he does not believe to be true, or promises performance which he does not intend to perform or knows will not be performed; ***
***
(c) For purposes of subsection (a), paragraph (1), it shall be a rebuttable presumption of intent or knowledge that a person promises performance which he does not intend to perform and knows will not be performed when, after no performance or no substantial performance of a contract or agreement for home repаir, he fails or refuses to return payments made by the victim and he:
(1) fails to acknowledge or respond to a written demand for commencement or completion of home repair within 10 days after such demand is mailed or presented to him by the victim or by the victim‘s legal representative or by a law enforcement or consumer agency acting on behalf of the victim; or
(2) fails to notify the victim in writing of a change of business name or address prior to the completion of the home repair; or
(3) makes false statements or representations to the victim to excuse his non-performance or non-substantial performance; or
(4) uses deception to obtain the victim‘s consent to modification of the terms of the original contract or agreement; or
(5) fails to employ qualified personnel necessary to perform the home repair; or
(6) fails to order or purchase the basic materials required for performance of the home repair; or (7) fails to comply with municipal, county, State or federal regulations or codes relating to the performance of home repair.
Intent and knowledge shall be determined by an evaluation of all circumstances surrounding a transaction and the determination shall not be limited to the time of contract or agreement.
Substantial performance shall not include work performed in a manner of little or no value or work that fails to comply with the appropriate municipal, county, State, or federal regulations or codes.”
815 ILCS 515/3(a)(1) ,(c) (West 2008)
¶ 20 In February of 1998, our supreme court issued its decision in People v. Watts, 181 Ill. 2d 133 (1998). Watts addressed whether subsection (c) under section 3 of the Home Repair Fraud Act violated the “the constitutional limits on the State‘s right to use presumptions in
proving defendant‘s guilt.” Watts, 181 Ill. 2d at 141. The defendant in Watts was charged with one count оf theft and, like the defendant in the case at bar, one count of home repair fraud under section 3(a)(1) of the Act. Id. at 135-36. The circuit court found defendant not guilty of the theft count because “the State failed to prove that defendant had not intended to perform the construction services at the time that he entered into the contract.” Id. at 137-38. As for the home repair fraud count, the supreme court noted that because there was no dispute regarding the existence of a contract between the parties, “the only question at trial was whether defendant had intended to perform the promised work at the time he entered into the contract.” Id. at 138. The trial court found that the State failed to prove defendant intended not to perform his obligations under the contract, but did prove “the factors necessary to raise a presumption of intent” under subsection (c) of the Act which “triggered” the “statutory presumption of intent.” Id. at 138-39. After finding defendant failed to rebut the presumption of intent, the trial court found defendant guilty of home repair fraud. Id. at 139.
¶ 21 In analyzing the issue, our supreme court first noted that “in the area of criminal law, mandatory rebuttable presumptions which shift the burden of production to the defendant are unconstitutional” because they violate the due process clause of both the United States Constitution and the Illinois Constitution. Id. at 147. The supreme court then held that the “presumption contained in subsection (c) is mandatory and, as such, is unconstitutional.” Id. at 149. After holding that subsection (c) was unconstitutional, the court decided that subsection (c) should be severed from the rest of the statute. Id. at 150-51. The supreme court noted that “while we strike subsection (c) of the statute, the remainder of the statute remains intact and valid.” Id. at 151. We note that in making our determination in this case, we must consider our supreme court‘s interpretation of the Home Repair Fraud Act in Watts as part of the statute because the legislature has not yet amended section 3(a)(1) of the Home Repair Fraud Act. See Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 343 (2008) (“Our interpretation is considered
¶ 22 The supreme court also ruled that the defendant in Watts could not be retried on the same home repair fraud count due to collateral estoppel. Watts, 181 Ill. 2d at 152. The court stated, “the circuit court found that the State had not met its burden of proving that the defendant did not intend to perform when he entered into the contract and, as a result, acquitted defendant on the theft count.” Id. The court held that this issue cannot be relitigated because “a court in a retrial under the Act would be left to determine the issue of defendant‘s intent precisely as it was decided under the theft count at the original trial.” Id. Therefore, because the circuit cоurt had already acquitted the defendant of the theft count because the State did not prove defendant had the requisite intent when entering into the contract, the issue had already been decided in defendant‘s favor.4 Id.
¶ 23 Grand Jury
¶ 24 Defendant argues that the circuit court erred in denying his motion to dismiss his indictment. He contends the State misled the grand jury, which he alleges violated his due process rights and resulted in actual and substantial prejudice. Defendant argues that the State misled the grand jury by misinforming it in regard to the intent element of the Home Repair Fraud Act, by specifically relying on subsection (c) of section 3 of the Home Repair Fraud Act, which was severed in Watts. Id. at 149. Defendant maintains that he was prejudiced because absent the misleading testimony, he believes the grand jury would not have returned a true bill against him.
¶ 25 In response, the State first contends defendant affirmatively waived his contention that the State misled thе grand jury. The State points to comments by defense counsel during argument before the circuit court on defendant‘s motion to dismiss the indictment which the State maintains shows that defendant conceded that the State did not act intentionally. The State also argues that the record establishes that the State did not deliberately mislead the grand jurors. In the alternative, the State argues that defendant cannot show that he suffered actual and substantial prejudice. The State contends that there was ample evidence to support the indictment and defendant‘s eventual conviction.
¶ 26 In proceedings before the grand jury, the State‘s Attorney acts as an advisor and presents both the law and the proposed charges against the defendant. People v. DiVincenzo, 183 Ill. 2d 239, 254 (1998). The grand jury is allowed “the broadest possible scope consistent with constitutional limitations” when conducting its investigations. People v. Fassler, 153 Ill. 2d 49, 59 (1992). Our supreme court has stated, and defendant readily admits in his opening brief, that “[c]hallenges to grand jury proceedings are limited.” DiVincenzo, 183 Ill. 2d at 255.
¶ 27 When ruling on a motion to dismiss an indictment, courts typically consider only the transcript of the proceedings before the grand jury. DiVincenzo, 183 Ill. 2d at 255. In doing so, we will review whether defendant suffered a prejudicial denial of due process de novo. People v. Mattis, 367 Ill. App. 3d 432, 435-36 (2006) (“because the essential facts concerning what happened at the grand jury proceedings аre undisputed, we review de novo whether defendant suffered a prejudicial denial of due process that could warrant dismissal“).
¶ 28 Prosecutorial misconduct before the grand jury does not warrant dismissal of the
indictment unless defendant “can show that such misconduct results in actual and substantial prejudice to him.” Fassler, 153 Ill. 2d at 58. Our supreme court, in DiVincenzo, explained:
“To warrant dismissal of the indictment, however, a defendant must ordinarily show that *** any prosecutorial misconduct affected the grand jury‘s deliberations. [Citation.] Prosecutorial misconduct must rise to the level of a deprivation of due process or a miscarriage of justice. [Citations.] The due process rights of a defendant may be violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence. [Citations.] An indictment may also be dismissed where the prosecutor has applied undue pressure or coercion so that the indictment is, in effect, that of the prosecutor rather than the grand jury. [Citation.] To warrant dismissal of the indictment, [a] defendant must therefore show that the prosecutors prevented the grand jury from returning a meaningful indictment by misleading or coercing it.” DiVincenzo, 183 Ill. 2d at 257-58.
¶ 29 In this case, defendant was charged under section 3(a)(1) of the Home Repair Fraud Act. Section 3(a)(1) provides, in relevant part, that home repair fraud is committed when a defendant “knowingly enters into an agreement or contract *** with a person for home repair, and he knowingly: *** promises performance which he does not intend to perform or knows will not be performed.”
“Q. [Assistant State‘s Attorney]: And does the statute also specifically show some examples of how intent to not finish can be inferred?
A. [Detective Bryant]: Yes.
Q. And one of those specific examples is if the defendant changes his business address and does not by writing notify the victim of that change of the address at the time of the change? A. Yes.
Q. Is intent to not finish the project also shown by the fact that the defendant never made contact with the victim to make any other arrangements?
A. Yes.
Q. And is it also shown by the fact that the victim had no way either in person or by phone or by letter, for that matter, since the address was not existent to contact the contractor?
A. Yes.”
This is clearly an incorrect statement of the law of home repair fraud. Before the grand jury, the prosecutor serves as an advisor and is supposed to “inform the grand jury of the proposed charges and the pertinent law.” DiVincenzo, 183 Ill. 2d at 254. In this case, the prosecutor‘s
misstatement of the law made it easier to secure an indictment by informing the grand jury that the element of intent can be presumed.
¶ 30 Later in the grand jury proceedings, the grand jury asked the assistant State‘s Attorney, “Did [defendant] intend not to finish this project on the onset of accepting the job?“, to which the following exchange occurred between the assistant State‘s Attorney and Detective Bryant:
“Q. [Assistant State‘s Attorney]: Detective, is it correct that that is not an element of the offense?
A. [Detective Bryant]: That‘s correct.”
However, the statute clearly states that “A person commits the offense of home repair fraud when he knowingly enters into an agreement or contract *** and he knowingly: *** promises performance which he does not intend to perform or knows will not be performed[.]”
¶ 31 However, misstatements of law by the prosecutor to the grand jury do not automatically result in the indictment being dismissed. Defendant must “show that such misconduct results in actual and substantial prejudice to him.” Fassler, 153 Ill. 2d at 58. We hold defendant has met this burden here. Before the grand jury, Detective Bryant testified that defendant and Avila came to an agreement, Avila paid defendant $2,000, and defendant began
¶ 32 Significantly, the State did not present any evidence to the grand jury regarding defendant‘s intent to not perform the contract at the time the contract was formed, instead
its evidence concentrated only on what occurred once the contract had been formed and the work started. However, the assistant State‘s Attorney‘s two incorrect statements of law to the grand jury both addressed defendant‘s intent. In thе first statement, the assistant State‘s Attorney presented to the grand jury incorrect law that would allow it to presume intent. In the second misstatement, the assistant State‘s Attorney denied that intent was even an element to be proven. The two misstatements affected the grand jury proceedings because without them, we cannot say that a true bill would have been returned. DiVincenzo, 183 Ill. 2d at 257 (“To warrant dismissal of the indictment *** [a] defendant must ordinarily show that *** any prosecutorial misconduct affected the grand jury‘s deliberations.“); see also People v. Oliver, 368 Ill. App. 3d 690, 696-97 (2006) (“a due process violation consisting of prosecutorial misconduct before a grand jury is actually and substantially prejudicial only if without it the grand jury would not have indicted defendant“).
¶ 33 The State maintains that defendant did not suffer actual and substantial prejudice because defendant did not show that the State acted intentionally in misstating the law before the grand jury. The State relies on the Second District‘s decision in People v. Hart, 338 Ill. App. 3d 983 (2003), to argue that defendant must show that the State intentionally misled the grand jury before dismissal of an indictment is warranted. In Hart, the majority stated “[i]n our view, however, there must be, at the very least, intent on the part of some State actor to materially mislead the grand jury in order to give rise to a violation of due process.” Hart, 338 Ill. App. 3d at 991. Justice McLaren concurred, but disagreed with this statement by the majority, classifying it as “obiter dicta,” and commented “it is incorrect to require deception on the part of a State actor” based on prior precedent. Hart, 338 Ill. App. 3d at 995 (McLaren, J., concurring). The majority in People v. Oliver, 368 Ill. App. 3d 690 (2006), also a Second District decision, agreed with Justice McLaren‘s concurrence. Oliver, 368 Ill. App. 3d at 696 (“Thus, in light of DiVincenzo, we hold that the State‘s presentation of deceptive evidence denied defendant due process, regardless whether the deception was intentional.“).5
binding on other districts, divisions, or panels“).
¶ 34 In making our decision, we note that at no time did the State attempt to amend the indictment after securing it. We also note that defendant properly preserved this issue for appeal by both filing a motion to dismiss the indictment before trial and objecting to the indictment after trial. The motion to dismiss the indictment is impоrtant because it occurred before defendant was found guilty.
¶ 35 In a petition for rehearing filed by defendant, he asserts that the conviction should be reversed outright because the evidence presented at trial was insufficient to support a conviction. We are not persuaded.
¶ 36 It is not the function of this court to retry a defendant when reviewing whether the evidence at trial was sufficient to sustain a conviction. People v. Hall, 194 Ill. 2d 305, 329-30 (2000). “Rather, in such cases the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” People v. Smith, 185 Ill. 2d 532, 541 (1999). The trier of fact is responsible for determining a witness‘s credibility and the weight to be given to a witness‘s testimony, as well as drawing any reasonable inferences from the evidence. People v. Jimerson, 127 Ill. 2d 12, 43 (1989). Additionally, the trier of fact‘s findings of credibility are given greater weight because it saw and heard the witnesses. People v. Wheeler, 226 Ill. 2d 92, 114-15 (2007). Circumstantial evidence can sustain a conviction, “provided that such evidence satisfies proof beyond a reasonable doubt of the elements of the crime charged.” Hall, 194 Ill. 2d at 330. However, if the evidence is so unreasonable, unsatisfactory, or improbable that it raises a reasonable doubt as to a defendant‘s guilt, we will reverse a conviction. People v. Evans, 209 Ill. 2d 194, 209 (2004).
¶ 37 After reviewing the evidence in the light most favorable to the State, we conclude that a rational trier of fact could
¶ 38 In this case, circumstantial evidence from both Avila and Joaquin Mina showed that at the time of the agreement, defendant did not intend to perform. Avila testified that at the time she entered into the agreement with defendant, defendant “would need [$]2,000 a week before starting the job and the [$]2,000 was to order my kitchen cabinets, which would take two weeks to be delivered.” Later, defendant promised Avilа that the cabinets would be delivered and installed by July 20, 2007, almost two months after the contract was signed.
Despite both promises by defendant, he never ordered the cabinets, let alone installed them. Avila continued to pay defendant every few weeks at defendant‘s request. Mina testified that it took him five days to complete the work, whereas defendant had worked five weeks, completing minimal work, before quitting the job. Taking this evidence together, it is reasonable to believe that defendant never intended to perform the work promised. It is reasonable to believe that defendant did minimal work, while stretching that work over a five-week time period, to continue to ask Avila for more money. The evidence was sufficient to prove defendant guilty beyond a reasonable doubt. This finding removes the risk of subjecting defendant to double jeopardy. See People v. Taylor, 76 Ill. 2d 289, 309-10 (1979).
¶ 39 Due to our conclusion in this cаse, we do not need to address defendant‘s remaining arguments.
¶ 40 CONCLUSION
¶ 41 The judgment of the circuit court is reversed. On remand, we direct the circuit court to dismiss the indictment without prejudice.
¶ 42 Reversed and remanded.
¶ 43 PRESIDING JUSTICE QUINN, specially concurring:
¶ 44 I agree with the majority that the State violated defendant‘s due process rights by presenting an incorrect statement of law. However, I disagree with the majority‘s assertion that “The comments by the assistant State‘s Attorney and the testifying witness incorrectly claim that intent is not an element of the crime.” Supra ¶ 30.
¶ 45 The transcript of the grand jury proceedings reflects that the grand jury foreman asked the assistant State‘s Attorney (ASA), “Did [defendant] intend not to finish this project on the onset of accepting
“Q. [ASA]: Detective, is it correct that that is not an element of the offense?
A. [Detective Bryant]: That‘s correct.”
¶ 46 The majority correctly point out that subsection (a)(1) of section 3, entitled “Home Repair Fraud,” under which defendant was charged provides:
“A person commits the offense of home repair fraud when he knowingly enters into an agreement or contract, written or oral, with a person for home repair, and he knowingly:
(1) *** [P]romises performance which he does not intend to perform or knows will not be performed[.]”
815 ILCS 515/3 (West 2006).
The majority assert that “The language of the statute makes clear that defendant‘s intent at the time of the agreement is an element of the offense.” Supra ¶ 30.
¶ 47 However, subsection 3(c) in pertinent part provides:
“Intent and knowledge shall be determined by an evaluation of all circumstances surrounding a transaction and the determination shall not be limited to the time of
contract or agreement.”
815 ILCS 515/3(c) (West 2006).
¶ 48 I would read this “penultimate” sentence of subsection (c) to mean that the trier of fact need not limit its determination of when the accused formed the intent to defraud the victim to the time when the contract was entered into. This reading would be supported by Illinois Pattern Jury Instructions, Criminal, No. 13.64 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 13.64), which provides in рertinent part:
“Definition of Home Repair Fraud-Agreement or Contract
A person commits the offense of home repair fraud when he knowingly enters into a contract for an amount exceeding $1,000 with a person for home repair, and he knowingly
***
[3] promises performance which he does not intend to perform or knows will not be performed.”
¶ 49 Defense trial counsel correctly recognized that this language did not restrict the jury to determine the defendant‘s intent at the time when the contract was entered into. That is why he asked that the jurors be given a nonpattern instruction reading: “A person commits home repair fraud when the did not intend to perform the promised work at the time he entered into the contract.”
¶ 50 Having said this, I acknowledge that the majority are absolutely correct when they rely upon People v. Watts, 181 Ill. 2d 133 (1998), where our supreme court held, “There was no dispute that defendant had entered into a contract for home repair. Thus, the only question at trial was whether defendant had intended to perform the promised work at the time he entered into the contract.” Watts, 181 Ill. 2d at 138.
¶ 51 Further, the court in Watts had a completely different interpretation of subsection (c) than I just presented.
“We believe that the penultimate sentence of subsection (c) is intended to assist a defendant by expanding the realm of relevant evidence which he may use to rebut the presumption. For example, if the State triggered the presumption by proving that a defendant had used an unqualified subcontractor, the defendant might attempt to rebut the presumption by introducing evidence of the subcontractor‘s satisfactory performance on prior projects. This would tend to show a good-faith belief on the
defendant‘s part that the subcontractor was qualified and, therefore, that the defendant intended to perform the promised work. If subsection (c) did nоt include the penultimate sentence, the evidence might be considered irrelevant, because the ultimate issue is the defendant‘s intent at the time he entered the contract. However, by explicitly allowing the defendant to introduce evidence ‘not limited to the time of the contract,’ the sentence would allow the introduction of the evidence in the example.” Watts, 181 Ill. 2d at 148-49.
¶ 52 A reading of Watts leads to the conclusion that the majority are correct in holding that the prosecutor misstated the law when he asked/told Detective Bryant that the State was not required to prove that the defendant had the intent not to finish the project when he entered
into the contract. This misstatement of law was erroneous but it did not constitute a denial “that intent was even an element to be proven,” as the majority state twice. I agree with the majority that defendant has shown that this misstatement of law resulted in аctual and substantial prejudice to the defendant. Fassler, 153 Ill. 2d at 58.
¶ 53 I also agree with the majority that Watts further held that “the presumption contained in subsection (c) is mandatory and, as such, is unconstitutional.” Watts, 181 Ill. 2d at 149.
¶ 54 The prosecutor was relying on subsection 3(c)(2) when he asked Detective Bryant whether the statute allowed the grand jurors to infer the defendant‘s intent by defendant‘s failure to notify the victim of his change of address and the facts that defendant never made further contact with victim and the victim had no way to contact the defendant after he stopped working on the project. The ASA phrased the question as, “And does the statute also specifically show some examples of how intent to not finish can be inferred?”
¶ 55 The User‘s Guide to Illinois Pattern Jury Instructions, Criminal, at x (4th ed. Supp. 2011) provides:
“Inferences are a staple of our adversary system and are essential to expeditious resolution of factual questions. Funches, 212 Ill. 2d at 339 ***. An inference is a factuаl conclusion that the jury may rationally draw in its discretion by considering other facts. Id. at 339 ***. By nature, inferences are permissive. Id. The jury is free to accept or reject a suggested inference and no burden is placed on the defendant. Id.; Watts, 181 Ill. 2d at 142 ***.”
¶ 56 In People v. Jordan, 218 Ill. 2d 255 (2006), our supreme court considered section 12-21.6 of the Criminal Code of 1961, entitled “Endangering the life or health of a child” (
“(a) It is unlawful for any person to willfully cause or permit the life or health of a child under the age of 18 to be endangered or to willfully cause or permit a child to be placed in circumstances that endanger the child‘s life or health, except that it is not unlawful for a person to relinquish a child in accordance with the Abandoned Newborn Infant Protection Act.
(b) There is a rebuttable presumption that a person committed the offense if he or she left a child 6 years of age or younger unattended in a motor vehicle for more than 10 minutes.”
720 ILCS 5/12-21.6(a) ,(b) (West 2002).
“Although the State is constitutionally required to prove every element of a crime beyond a reasonable doubt [citation], the State may nonetheless rely upon certain presumptions and inferences to prove its case. Pomykala, 203 Ill. 2d at 202 ***.” Jordan, 218 Ill. 2d at 265.
¶ 58 The court continued:
“Finally, we consider the consequences of the presumption‘s invalidity in this case.
***
*** [W]e believe that a rational trier of fact could have found that defendant knowingly endangered his infant daughter‘s life or health by leaving her unattended in his vehicle. Several factors bear upon that determination, including the setting where the vehicle was parked, the weather conditions, and the amount of time defendant left his daughter alone in the vehicle.” (Emphasis added.) Jordan, 218 Ill. 2d at 268-70.
¶ 59 The court therefore considered the length of time the child was left unattended even though the court struck down subsection (b), which listed this factor as the basis to apply the unconstitutional rebuttable presumption.
¶ 60 Applying the rationale of Jordan to the facts in the instant case, I believe that it would be proper for a prosecutor to argue that all of the factors listed in subsections (c)(1) through (c)(7) may provide the basis for an inference that a defendant is guilty of committing home repair fraud.
¶ 61 This issue is made all the important because, as a very recent law review article points out, “Today, seventeen criminal statutes still include some form of a mandatory presumption.” Theodore A. Gottfried & Peter G. Baroni, Presumрtions, Inferences and Strict Liability in Illinois Criminal Law: Preempting the Presumption of Innocence?“, 41 J. Marshall L. Rev. 715, 722 (2008). In this very well-written article, the authors suggest that these statutes may pass constitutional muster by removing the “rebuttable presumption” language and replacing it with “it may be inferred,” converting the mandatory presumption into a constitutionally acceptable permissive inference. Gottfried & Baroni, supra, at 723.
¶ 62 Finally, I disagree with the majority‘s discussion of the holdings in People v. Hart, 338 Ill. App. 3d 983 (2003), and People v. Oliver, 368 Ill. App. 3d 690 (2006). Both Hart and Oliver involved testimony of witnesses which turned out to be false.
¶ 63 Hart held that: “there must be, at the very least, intent on the part of some State actor to materially mislead the grand jury in order to give rise to a violation of due process.” Hart, 338 Ill. App. 3d at 991. In doing so, the majority relied on People v. J.H., 136 Ill. 2d 1 (1990), which held “[s]ome cases suggest [that undermining the integrity of the
¶ 64 The majority in Oliver held that “the Stаte‘s presentation of deceptive evidence denied defendant due process, regardless [of] whether the deception was intentional.” Oliver, 368 Ill. App. 3d at 696. In doing so, the majority relied on the holding in People v. DiVincenzo, 183 Ill. 2d 239, 257 (1998): “The due process rights of a defendant may be violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence.” Justice Grometer concurred in Oliver, arguing that the above language did not support the majority‘s holding on the immateriality of the prosecutor‘s intention. In doing so, Justice Grometer cited another
portion of the holding in People v. J.H.: “A prosecutor should not be inhibited in his presentation of a case to a grand jury by fear of dismissal due to [this] erroneous, but honest, appraisal of the admissibility of certain evidence for trial purposes.” J.H., 136 Ill. 2d at 13; Oliver, 368 Ill. App. 3d at 701 (Grometer, J., concurring).
¶ 65 Based on the above discussion, I think that the majority in Hart and Justice Grometer‘s concurrence in Oliver are correct in requiring an intentional act on the part of a state actor when a defendant seeks to dismiss an indictment based on the presentation of allegedly false testimony to a grand jury. However, I do not believe that Hart or Oliver has any applicability to the instant case where the prosecutor misstated the law applicable to the charges presented to the grand jury. It is abundantly clear that the prosecutor was unaware of the holding in Watts and did not intentionally mislead the grand jury. Indeed, defense trial counsel told the trial court that he did not believe the prosecutor acted willfully. Consequently, I do not believe that the prosecutor‘s actions before the grand jury constituted prosecutorial misconduct. In the final analysis, however, I believe the defendant has met his burden of showing that the prosecutor‘s misstatement resulted in actual and substantial prejudice to him where the grand jury foreman specifically asked whether the defendant intended not to perform the work when he entered into the contract. Fassler, 153 Ill. 2d at 58. Consequently, I concur in the result reached by the majority.