NO. 4-96-0145
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE JANUARY 1996 TERM GRAND JURY, ) Appeal from
SUBPOENA DUCES TECUM, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Sangamon County
Plaintiff-Appellee, ) No. 96NC434
v. )
MAMIE G. WILLIAMS, ) Honorable
Defendant-Appellant. ) Leo J. Zappa, Jr.,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
This case arises from an effort to quash a grand jury
subpoena duces tecum requiring Mamie G. Williams (defendant) to
submit handwriting exemplars, fingerprints, and photographs of
herself. The trial court denied defendant's motion to quash.
Defendant appeals, and we affirm.
I. BACKGROUND
On January 25, 1996, the Sangamon County grand jury
issued a subpoena duces tecum commanding defendant to appear
before the Sangamon County grand jury on February 29, 1996, at 9
a.m. The subpoena also commanded her to "provide handwriting
exemplars, fingerprints and photographs of yourself in your
possession or control."
On January 31, 1996, defendant filed a motion to quash
the grand jury subpoena, in which she alleged that she had been
the subject of an investigation conducted primarily by special
agent Ned Bandy of the Illinois State Police. Bandy had asked
defendant to provide him the same items that were the subject of
the grand jury subpoena duces tecum, and she had refused. Defen-
dant further claimed that "it appears from the circumstances that
a Grand Jury subpoena has here been deployed merely to assist or
further an independent police investigation." Last, defendant
complained that the grand jury subpoena improperly infringed upon
her constitutional right of privacy, in violation of article I,
section 6, of the 1970 Illinois Constitution, because it was
issued "without any apparent showing of relevance and individual-
ized suspicion."
On February 20, 1996, the trial court conducted a
hearing on defendant's motion at which a Sangamon County assis-
tant State's Attorney told the court that investigators, includ-
ing Bandy, believed that the case they were pursuing was appro-
priate for the grand jury's investigation, and the grand jury
needed to obtain additional information to further that investi-
gation. The assistant State's Attorney also represented that it
was only after evidence had been presented to the grand jury that
the grand jury issued the subpoena in question. She further
represented that, to the best of her knowledge, the State's
Attorney's office had not yet received a transcript of the
testimony presented to the grand jury. The assistant State's
Attorney claimed that a "particularized and individualized
showing *** was made at the time [the case] was presented *** to
the Grand Jury to satisfy them [sic] to issue the subpoena." She
then invited the court to review the transcript of the grand jury
proceedings for itself.
In response, defendant argued that the State had failed
to produce anything at the hearing, and in fact "[t]he State has
produced absolutely nothing to show there was even a [g]rand
[j]ury convened." The following discussion then took place:
"THE COURT: I will find out who is
preparing the transcript and review it to see
if any of these issues regarding reasonable
suspicion are allowed, so I'll take it under
advisement and I'll let you know as quickly
as possible.
[Defense counsel]: Judge, the deadline
to comply with [the g]rand [j]ury['s subpoe-
na] is coming up. I take it that the --
THE COURT: You'll have a decision by
the 29th [of February] unless the court re-
porter tells me that the transcript can't be
done by then, but if I find that out, I'll
call your office and let you know.
[Defense counsel]: Or could, Judge, as
an alternative could the Court rule that the
[g]rand [j]ury subpoena is held in abeyance
until the time -- until five days after the
Court's ruling?
THE COURT: That's fine."
Two days later, on February 22, 1996, the trial court
entered the following written order: "Cause called for hearing
on Defendant's Motion to Quash Grand Jury Subpoena. Arguments
made and considered. Motion denied." Defendant filed nothing
further in the trial court and sought no clarification of the
court's order.
On February 28, 1996, defendant filed a notice of
appeal. The next day, she filed an emergency motion to stay the
effect of the grand jury subpoena. This court subsequently
denied that motion.
On June 7, 1996, the State filed a motion with this
court seeking to supplement the record on appeal with Bandy's
January 25, 1996, grand jury testimony regarding defendant's
alleged criminal activities. On June 11, 1996, defendant filed a
motion in opposition to that request, and on June 12, 1996, this
court denied the State's request.
On June 17, 1996, the State filed a motion to reconsid-
er this court's order denying its motion to supplement the
record, arguing in part that the transcript of the February 20,
1996, hearing indicated the trial court intended to review the
grand jury transcript at issue, and that the court did not enter
a written order denying defendant's motion to quash the grand
jury subpoena until two days later, February 22, 1996. On June
19, 1996, defendant filed a motion in opposition to reconsidera-
tion, and this court ordered the State's motion taken with the
case.
In her motion in opposition, defendant contends that
allowing the State to amend the record would violate "a cardinal
rule of appellate practice"--that exhibits or evidence which were
not made part of the record below cannot be considered for the
first time on appeal. Although we agree with that general
statement, we conclude, based upon our review of this record,
that the grand jury transcript in question is not in fact being
considered for the first time on appeal. At the conclusion of
the February 20, 1996, hearing, the trial court made clear its
intention to obtain and consider the grand jury transcript
containing Bandy's testimony. Two days later, the court entered
an order denying defendant's motion. While it would have been
preferable for the trial court to explicitly state that it had in
fact considered Bandy's grand jury testimony during the interven-
ing two days, the record sufficiently supports the inference that
the court should be taken at its word: it said it would rule
only after it reviewed the transcript, and its ruling two days
later strongly implies that is just what happened.
We note, however, that the trial court never formally
admitted into evidence the transcript of the grand jury testimo-
ny. Thus, this case presents a difficult question: Whether we
can allow amendment of the record to include the transcript of
the grand jury testimony when the court never formally received
it. Supreme Court Rule 329, which governs amendments to the
record after a case is on appeal, states as follows:
"The record on appeal shall be taken as
true and correct unless shown to be otherwise
and corrected in a manner permitted by this
rule. Material omissions or inaccuracies or
improper authentication may be corrected by
stipulation of the parties or by the trial
court, either before or after the record is
transmitted to the reviewing court, or by the
reviewing court or a judge thereof. Any
controversy as to whether the record accu-
rately discloses what occurred in the trial
court shall be submitted to and settled by
that court and the record made to conform to
the truth. If the record is insufficient to
present fully and fairly the questions in-
volved, the requisite portions may be sup-
plied at the cost of the appellant. If nec-
essary, a supplemental record may be certi-
fied and transmitted." (Emphasis added.)
134 Ill. 2d R. 329.
Supreme Court Rule 612(g) provides that Supreme Court Rule 329
applies to criminal appeals. 134 Ill. 2d R. 612(g).
The comments of the Committee drafting Rule 329, as
amended in 1982, state:
"This rule is a comprehensive provision
covering amendment of the record on appeal,
correction of improper authentication, and
the settling of any questions concerning
whether the record conforms to the truth. It
contains portions of former Rule 36(3) and
(4). Under this sweeping provision, it will
be possible to supply omissions, correct
inaccuracies or improper authentication, or
settle any controversy as to whether the
record on appeal accurately discloses what
occurred at the trial by the procedure that
will most appropriately solve the particular
problem. In view of the liberal terms of
this paragraph, the rather elaborate provi-
sions of former Rule 36(4), requiring that a
claim as to improper authentication be raised
by motion before or at the time of the filing
of the brief of the party making the claim,
were eliminated as no longer necessary.
Unless there is some real prejudice involved,
there will be no incentive for claiming im-
proper authentication." 134 Ill. 2d R. 329,
Committee Comments, at 289.
In People v. Chitwood, 67 Ill. 2d 443, 367 N.E.2d 1331
(1977), the Supreme Court of Illinois held that the appellate
court should have permitted amendment of a trial court record to
include an affidavit filed in that court which showed that the
defendant had made a valid jury waiver and agreed to a bench
trial. The trial court had apparently held a hearing in regard
to the affidavit and indicated it was true. The supreme court
described Rule 329--which was in substantially the same form then
as now--as "a very broad provision whose object is to allow the
record on appeal to be amended to correct inaccuracies, supply
omissions, correct improper authentication and settle controver-
sies as to whether the record on appeal accurately discloses what
occurred at trial." Chitwood, 67 Ill. 2d at 447, 367 N.E.2d at
1333.
In People v. Miller, 190 Ill. App. 3d 981, 548 N.E.2d 1
(1989), defendant claimed that he had been deprived of an oppor-
tunity to prepare for trial when on the Friday before a Monday
trial, the State furnished voluminous discovery to the defense,
and the defense did not have enough time to study it. The State
contended that all significant information had been furnished
earlier in police reports. The appellate court permitted the
State to amend the record to include those police reports, noting
that the police reports were (1) referred to in answers to
discovery, (2) mentioned in the judge's notes, and (3) referred
to in trial testimony. Miller, 190 Ill. App. 3d at 989, 548
N.E.2d at 6.
Here, the grand jury transcripts were mentioned of
record and the parties agreed that they should be examined by the
trial court. Defendant has not argued that the transcripts are
not authentic. Amending the record to include the transcripts
provides a more accurate record of what happened in the trial
court. The Miller opinion warned that new evidence cannot be
introduced by supplementing the record on appeal. Miller, 190
Ill. App. 3d at 989, 548 N.E.2d at 6. However, these transcripts
do not constitute new evidence; instead, as we noted earlier, the
record shows that the trial court previously considered this
evidence. We hold that the "broad" coverage of Rule 329 requires
the court to allow the State to amend the record to include the
transcripts. Accordingly, we grant the State's motion to recon-
sider and will permit the State to supplement the record on
appeal with the transcript of Bandy's testimony from the January
25, 1996, proceedings before the Sangamon County grand jury.
Before concluding our remarks on this point, we wish to
make the following observations. First, if defendant seriously
doubted that the trial court had done what it stated it intended
to do, defendant could have sought a further hearing or clarifi-
cation by that court before she filed her notice of appeal.
Second, defendant--as appellant--bears the burden of producing a
record sufficiently complete to permit a court of review to
resolve all issues presented on appeal. In this case, the
prosecutor told defendant at the February 20, 1996, hearing, that
Bandy testified before the Sangamon County grand jury on January
25, 1996, and that the State relied upon that testimony as
justification for issuing the subpoena at issue here. None-
theless, this record contains no indication that defendant tried
to obtain a transcript of that testimony to include as part of
this record, despite the testimony's obvious significance.
Without the January 25, 1996, transcript, defendant's appeal
before this court is in a stronger posture; thus, to deny the
State's motion to reconsider its request to supplement the record
on appeal would be to reward defendant for not providing a
complete record, as required by Supreme Court Rule 323(a) (see
155 Ill. 2d R. 323(a)). All of these circumstances strongly
counsel that this court should grant the State's motion to
reconsider, which we now do.
Bandy testified before the grand jury on January 25,
1996, essentially as follows: A woman staying at a local women's
crisis center had a credit card stolen from her purse and $3,000
charged on it. Through a "Caller ID" system, the credit card
company informed Bandy that unauthorized calls regarding that
credit card came from defendant's residence. Defendant worked at
the crisis center during the time the credit card was stolen.
Bandy asked the grand jury for a subpoena duces tecum to (1) put
defendant's photo in a photo lineup to be shown to clerks who
furnished property charged to the stolen card; (2) compare
defendant's handwriting from known exemplars to the handwriting
on some of the charge slips; and (3) obtain defendant's finger-
prints to compare them with fingerprints that the police may be
able to raise from the charge slips.
II. ANALYSIS
Defendant based her motion to quash the grand jury's
subpoena on two grounds: (1) the State failed to meet its burden
of showing individualized suspicion and relevance in order to
justify the issuance of the subpoena; and (2) the circumstances
of this case indicate that special agent Bandy was using the
grand jury's subpoena "merely to further his own independent
investigation." Regarding the first argument, we hold that
Bandy's sworn testimony before the Sangamon County grand jury on
January 25, 1996, more than sufficed to provide whatever "indi-
vidualized suspicion and relevance" is required to justify
issuing the grand jury subpoena. See In re May 1991 Will County
Grand Jury, 152 Ill. 2d 381, 393-94, 604 N.E.2d 929, 935-36
(1992) (hereafter In re May).
The second ground for defendant's argument--that Bandy
used the grand jury's subpoena "merely to further his own inde-
pendent investigation"--apparently derives from In re Rende, 262
Ill. App. 3d 464, 472, 633 N.E.2d 746, 751 (1993), a case in
which the appellate court, following the supreme court's holding
in In re May, quashed a grand jury subpoena seeking to compel the
defendant's appearance in a lineup. The appellate court in Rende
held that the remarks of the prosecutor before the grand jury
were both "unsworn and factually insufficient" to establish the
required individualized suspicion and relevance. Rende, 262 Ill.
App. 3d at 470, 633 N.E.2d at 750. The court in Rende also con-
cluded that the record failed to show that the prosecutor's
statement in question was brought to the trial court's attention
before it ruled upon the motion to quash the grand jury subpoena.
As the Rende court explained, "[t]here is nothing in the record
to show that the trial judge examined or was guided by [the
prosecutor's] statement." Rende, 262 Ill. App. 3d at 470, 633
N.E.2d at 750.
After so holding, the Rende court added the following
dicta:
"We note however, in the event enforce-
ment is again sought with respect to this
grand jury subpoena, the trial court should
bear in mind that a grand jury subpoena can-
not be deployed merely to assist a police
investigation. Its power cannot be used as a
means simply to further an independent police
investigation. See People v. DeLaire, 240
Ill. App. 3d [1012], 1022-23[, 610 N.E.2d
1277, 1284 (1993)]:
`The prosecutor or police may not
usurp the powers of the grand jury.
"The subpoena power
of the grand jury is
designed for its own use,
not to further indepen-
dent investigations of
the prosecutor or police.
In most jurisdictions,
the prosecutor may have
subpoenas issued without
advance authorization of
the grand jury but the
purpose of the subpoena
must be to produce evi-
dence for use of the
grand jury." [Citation.]
The prosecutor may screen the mate-
rials prior to the presentation to
the jurors, but he may not use the
subpoena as a ruse to obtain infor-
mation.'
Thus while we do not believe that the
lineup must necessarily be conducted in the
presence of the grand jury, if it does take
place on the outside, it must still be con-
ducted on behalf of the grand jury to assist
its investigative function.
Therefore, in enforcing a subpoena which
seeks to compel a lineup appearance outside
of the grand jury's presence, as was the case
here, the trial court should obtain the as-
surance of the State's Attorney that the
lineup be conducted on behalf of the grand
jury and that the results will be reported
back to it." (Emphasis added.) Rende, 262
Ill. App. 3d at 472-73, 633 N.E.2d at 751-52.
We are not sure what the Rende and DeLaire courts meant
when they cautioned against a grand jury subpoena being "deployed
merely to assist a police investigation," or the grand jury's
powers being "used as a means simply to further an independent
police investigation." Rende, 262 Ill. App. 3d at 472, 633
N.E.2d at 751. Except when investigating possible criminal
conduct by the police themselves, the grand jury works in concert
with the police to investigate alleged criminal behavior and to
bring charges based thereon when probable cause exists to do so.
Further, the State's Attorney, who is the county's chief law
enforcement officer, coordinates the work of the grand jury and
the police.
Article 112 of the Code of Criminal Procedure of 1963
(725 ILCS 5/112-1 et seq. (West 1994)), which governs grand jury
proceedings, makes clear the close working relationship between
the State's Attorney, the grand jury, and the police. The grand
jury shall convene as ordered by the circuit court "on its own
motion or that of the State's Attorney." 725 ILCS 5/112-3(b)
(West 1994). The grand jury shall hear all evidence presented by
the State's Attorney (725 ILCS 5/112-4(a) (West 1994)), and has
the right "to obtain and examine any documents *** relevant to
the matter being prosecuted by the State's Attorney" (725 ILCS
5/112-4(b) (West 1994)). Of course, experience shows that the
evidence presented by the State's Attorney to the grand jury
overwhelmingly consists of police testimony. Last, disclosure of
matters occurring before the grand jury, which would otherwise be
prohibited, may be made to:
"a. a State's Attorney for use in the
performance of such State's Attorney's duty;
and
b. such government personnel as are
deemed necessary by the State's Attorney in
the performance of such State's Attorney's
duty to enforce State criminal law." 725
ILCS 5/112-6(c)(1)(a), (c)(1)(b) (West 1994).
The only limitation--if it even can be called that--on the
State's Attorney's power to disclose grand jury proceedings to
"government personnel" (an intentionally broad term which, at a
minimum, includes the police) is that the State's Attorney must
promptly provide the court that impaneled the grand jury with the
names of the persons to whom such disclosure has been made. 725
ILCS 5/112-6(c)(2) (West 1994).
The DeLaire court correctly described the broad inves-
tigative powers of the grand jury, as follows:
"The grand jury occupies a unique role in our
criminal justice system. It is an investiga-
tory body charged with the responsibility of
determining whether probable cause that a
crime has occurred exists. The grand jury
can investigate merely on a suspicion that
the law is being violated or even just be-
cause it wants assurance that it is not. ***
The State is not required to justify the
issuance of a subpoena by establishing proba-
ble cause because the very purpose of the
request is to ascertain whether probable
cause exists." DeLaire, 240 Ill. App. 3d at
1021, 610 N.E.2d at 1282-83.
See also People v. Fassler, 153 Ill. 2d 49, 59, 605 N.E.2d 576,
581 (1992) (grand jury's power to conduct criminal investigations
should be accorded broadest possible scope).
Given the context of the relationship between the
State's Attorney, the grand jury, and the police, we have diffi-
culty imagining a scenario in which the concerns expressed by the
Rende court--namely, an abuse of the grand jury's power "to
further an independent police investigation," would apply.
Rende, 262 Ill. App. 3d at 472, 633 N.E.2d at 751. Although the
police have important powers to investigate and make arrests,
those powers are limited. The police do not possess the authori-
ty to charge someone with a crime; only the State's Attorney (or
the grand jury, acting invariably at the State's Attorney's
behest) possesses that authority. While the police may arrest
someone based upon an officer's reasonable belief that the person
committed some crime, the length of that person's custody (based
upon the officer's action) will typically last only a few hours,
until a prosecutor reviews the case, decides whether to initiate
formal criminal charges, and, if so, determines which ones. The
State's Attorney is the county's chief law enforcement officer
precisely because the State's Attorney alone possesses these two
extraordinary powers.
When the Rende court speaks of "independent police
investigations," it implies investigations independent of the
State's Attorney and the grand jury. But if the police are
conducting such an independent investigation, to what end? Given
the many demands high crime rates impose upon the police, and
given their severely limited resources, can they really be con-
ducting investigations independent of the State's Attorney and
grand jury with the sole purpose of satisfying their idle curios-
ity? Surely police investigations are conducted in the ultimate
hope that the police will be able to ascertain the identity of
the person who committed the crime being investigated, and that
the police will then be able to persuade the State's Attorney or
grand jury to file formal charges. If this assessment is cor-
rect, the concerns expressed in Rende and DeLaire are groundless.
We conclude that Rende and DeLaire should be limited to
the factual contexts in which they arose: post-indictment use of
a grand jury subpoena duces tecum to obtain material that the
State should obtain--if obtainable at all--through formal discov-
ery procedures provided by Supreme Court Rule 413 (134 Ill. 2d R.
413). We agree with this holding because, when the grand jury
has returned an indictment, its work in that particular case has
ended, unless (1) the State wishes to seek additional charges
against the indicted defendant, or (2) the State wishes to charge
additional defendants. Neither circumstance was present in Rende
or DeLaire.
We have gone to some length to express our disagreement
with the dicta from Rende and DeLaire regarding concerns about
"independent police investigations" because of the problems that
dicta can cause. This case is a prime example, given defendant's
claim that Bandy used the grand jury's subpoena "merely to
further his own independent investigation." The record before us
makes clear that no "independent investigation" ever existed
and--in the context of this case--that conducting an "independent
investigation" would make absolutely no sense. After all, what
is Bandy supposed to do with the results of his completed inves-
tigation, if not call them to the attention of the State's
Attorney for use in bringing formal charges, either by informa-
tion or grand jury indictment? Accordingly, we reject
defendant's argument that Bandy misused the grand jury's powers.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
COOK, P.J. and GREEN, J., concur.