People v. Hunter

No. 2--97--0697
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellant, ) Nos. 97--CF--256, 97--CF--257
)
v. )
)
MICHAEL HUNTER and JAMES )
McGRAW, ) Honorable
) John R. Goshgarian,
Defendants-Appellees. ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:

The State appeals the order of the circuit court of Lake
County dismissing with prejudice an indictment for involuntary
manslaughter (720 ILCS 5/9--3(a) (West 1996)) against defendants,
Michael Hunter and James McGraw. We affirm.
Defendants were members of the Day By Day Club, a self-help
group for alcoholics. The group met in the second story of a
building located on Central Avenue, which runs through the heart of
the business district in Highland Park.
On April 22, 1995, an officer of the Day By Day Club asked
defendants to remove a couch from their facility. Defendants
decided to remove the couch through a window overlooking Central
Avenue. In a written statement to police, Hunter stated that
defendants tied a rope around the couch and lowered it out the
window. As defendants lowered the couch, the rope slipped and the
couch fell, striking the victim, Benjamin Verde, in the head.
Verde was taken to a hospital, examined, and released that
day. On May 1, 1995, Verde returned to the hospital and discovered
he had sustained three broken ribs and a cracked vertebra. Verde
underwent spinal surgery on May 15, 1995. Verde was readmitted to
the hospital on June 27, 1995, and died on July 6, 1995, from renal
failure, allegedly caused by his spinal injury.
The State indicted defendants on August 23, 1995 (1995
indictment). Detective William Telone of the Highland Park police
department testified before the grand jury on August 23, 1995. One
of the grand jurors asked Telone whether either defendant had given
a statement to the effect that the couch slipped, defendants
slipped, the couch was already falling, or defendants could not
stop the couch. Telone responded, "[N]o, [o]ne statement by one
defendant Mr. Hunter stated that exactly they were removing the
couch through the window, they were throwing it out the window."
Hunter had, however, provided a written statement to police in
which he stated that the rope he and McGraw were using to lower the
couch slipped, causing the couch to fall and strike Verde.
Defendants moved to dismiss the 1995 indictment, alleging that
it was obtained through the use of perjured testimony and that it
violated their due process rights. The trial court dismissed the
1995 indictment on December 27, 1995. The State correctly notes
that the trial court s order of dismissal did not state that the
case was dismissed with prejudice.
The State did not appeal the dismissal of the indictment;
rather, it reindicted defendants on January 29, 1997, for
involuntary manslaughter (1997 indictment). This time, the lead
detective investigating the incident, Bruce Dayno, testified before
the grand jury. On March 4, 1997, defendants filed motions to
dismiss the 1997 indictment. Defendants argued that they were
deprived of their rights to a speedy trial, the 1997 indictment
violated double jeopardy principles, the State was required to
appeal the dismissal of the 1995 indictment, and the prosecutor
failed to disclose the charges against defendants to the grand
jury. The trial court dismissed the indictments with prejudice on
April 11, 1997, finding that the State should have appealed the
earlier dismissal and that the delay between the dismissal of the
1995 indictment and the return of the 1997 indictment prejudiced
defendants. The State timely appeals.
The issue with which we are confronted is one of first
impression: whether the due process violation of obtaining an
indictment through the use of perjured testimony can be cured by
returning a new indictment against the defendant. Section 114--1
of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114--1
(West 1996)) governs the circumstances under which a defendant may
attempt to dismiss criminal charges before trial. It provides, in
relevant part:
"(a) Upon the written motion of the defendant made prior
to trial before or after a plea has been entered the court may
dismiss the indictment *** upon any of the following grounds:
(1) The defendant has not been placed on trial in
compliance with Section 103--5 of this Code;
(2) The prosecution of the offense is barred by Sections
3--3 through 3--8 of the 'Criminal Code of 1961' ***;
(3) The defendant has received immunity from prosecution
for the offenses charged;
(4) The indictment was returned by a Grand Jury which was
improperly selected and which results in substantial injustice
to the defendant;
(5) The indictment was returned by a Grand Jury which
acted contrary to Article 112 of this Code and which results
in substantial injustice to the defendant;
(6) The court in which the charge has been filed does not
have jurisdiction;
(7) The county is an improper place of trial;
(8) The charge does not state an offense;
(9) The indictment is based solely upon the testimony of
an incompetent witness;
(10) The defendant is misnamed in the charge and the
misnomer results in substantial injustice to the defendant.
(11) The requirements of Section 109--3.1 have not been
complied with.
***
(e) Dismissal of the charge upon the grounds set forth in
subsection (a)(4) through (a)(11) of this Section shall not
prevent the return of a new indictment ***." 725 ILCS 5/114--
1 (West 1996).
A trial court may dismiss criminal charges before trial only
for the reasons set forth in section 114--1(a) of the Code or where
there has been a clear denial of due process that prejudices the
defendant. People v. Sparks, 221 Ill. App. 3d 546, 547-48 (1991);
see also People v. Newberry, 166 Ill. 2d 310, 313-14 (1995). While
section 114--1(a) of the Code does not contain a specific provision
addressing the court s ability to dismiss a criminal charge for a
due process violation, this ability is nevertheless recognized as
part of the trial court s inherent authority to guarantee the
defendant a fair trial. People v. Lawson, 67 Ill. 2d 449, 456
(1977).
Because the trial court s order does not specifically
enumerate its reasoning, we must first determine the grounds upon
which the trial court dismissed the 1995 indictment. Defendants
motions to dismiss the 1995 indictment alleged that Telone s
testimony before the grand jury was materially false, perjured, and
misleading. Defendants asked that the charges be dismissed because
of the due process violation resulting from Telone s false
testimony. The trial court granted defendants motions.
Defendants motions did not reference section 114--1(a) of the
Code, nor did they raise any statutory grounds. Thus, the only
rationale available to the trial court to dismiss the indictment
was a due process violation stemming from Telone s testimony before
the grand jury. While the trial court did not explicitly state in
its December 27, 1995, order that the dismissal of the 1995
indictment was premised on a due process violation, we note that,
upon reviewing its earlier ruling in conjunction with the motions
to dismiss the 1997 indictment, the trial court acknowledged that
Telone committed perjury before the grand jury and that the earlier
dismissal was for a violation of due process. Moreover, the trial
court s conclusion is manifestly supported in the record. Thus, it
is clear that the trial court dismissed the 1995 indictment for a
due process violation and did not base its dismissal on any of the
statutory grounds enumerated in section 114--1(a) of the Code.
Section 114--1(e) of the Code enumerates the instances in
which the State will be permitted to again indict a defendant
following the dismissal of criminal charges. 725 ILCS 5/114--1(e)
(West 1996). Section 114--1(e) permits the State to return a new
indictment after dismissal on some, but not all, of the grounds
enumerated in section 114--1(a). Thus, the legislature expressly
limited the circumstances under which the State may seek to again
indict a defendant following the dismissal of criminal charges.
When construing a statute, the expression of one thing in a
provision generally excludes all others, even where there are no
negative words of prohibition. People v. Rose, 268 Ill. App. 3d
174, 178 (1994). By providing that the State may reindict a
defendant in fewer instances than a defendant may seek to dismiss,
the legislature clearly intended to limit the State s opportunity
to reindict to those situations where the defendant s motion to
dismiss was in the nature of a delaying tactic, the grounds of
which could be corrected and a new indictment returned. 725 ILCS
Ann. 5/114--1(e), Committee Comments--1963, at 530 (Smith-Hurd
1992). Thus, under the statute, the State may bring a new
indictment where the previous indictment had a technical fault or
where the defendant simply seeks to delay his trial. The instances
in which the State is prohibited from bringing a new indictment
involve a defendant s constitutional right to be free from multiple
prosecutions for the same crime, a constitutional and statutory
right to a speedy trial, or a contractual right to immunity. See
725 ILCS 5/114--1(a)(1) through (a)(3) (West 1996).
While this case does not fall under the statute, the
legislative intent embodied by the statute guides our
determination. Here, the State secured the 1995 indictment through
the use of perjured testimony. We cannot characterize defendants
objections as a delaying tactic. Nor can we say that the perjury
was a mere technical fault that could be easily remedied by
redrafting the indictment. Moreover, in light of the grand juror s
question, there is a distinct possibility that no indictment would
have been returned had the State s witness responded truthfully.
Therefore, consonant with the public policy embodied in section
114--1 of the Code (725 ILCS 5/114--1 (West 1996)), we hold that
the State may not seek a new indictment after criminal charges have
been dismissed for the due process violation of perjury.
In addition to the public policy of protecting the public
against the overreaching and oppression of the State, our
determination provides the State with a strong deterrent against
future uses of perjured testimony. Honesty and integrity are
essential to the performance of the functions of the police and
prosecutor in our criminal justice system and the maintenance of
our freedoms. "[A]s the guardians of our laws, police officers are
expected to act with integrity, honesty, and trustworthiness."
Sindermann v. Civil Service Comm'n, 275 Ill. App. 3d 917, 928
(1995). This admonition applies with equal force to the
prosecution. If the police and prosecution know that perjured
testimony will lead to the dismissal with prejudice of their cases,
they will be careful to use only truthful testimony. Additionally,
we recognize the ramifications of our holding and emphasize that
this case involves wilful perjury discovered and brought before the
court by defendants. We cannot say that, had the false testimony
been made by accident, mistake, or inadvertency, or had the State
discovered the perjured testimony and brought it to the attention
of the court in order to correct the violation of defendants
rights, our result would be the same. We merely hold that, where
defendants discovered the perjured testimony and the court
dismissed the indictment due to the due process violation arising
from the State s use of perjured testimony, the State may not seek
a new indictment.
In summary, the 1995 indictment was dismissed for a due
process violation arising from the use of perjured testimony before
the grand jury. Thus, the State was foreclosed from seeking a new
indictment against defendants. Accordingly, the trial court
properly dismissed the 1997 indictment.
The judgment of the circuit court of Lake County is affirmed.
Affirmed.
GEIGER, P.J., and McLAREN, J., concur.