People v. J.H.

554 N.E.2d 961, 136 Ill. 2d 1, 143 Ill. Dec. 889, 1990 Ill. LEXIS 41

• Court: Illinois Supreme Court
• Decided: April 18, 1990
• Docket: 66398
• Status: Published

Opinions

JUSTICE CALVO

delivered the opinion of the court:

The defendant, J.H., was charged by indictment with the murder of Frederick Harris. On the defendant’s motion, the circuit court dismissed the indictment because of prosecutorial misconduct. On appeal, a majority of the appellate court reversed and remanded the cause to the circuit court (164 Ill. App. 3d 718). We granted the defendant’s petition for leave to appeal (107 Ill. 2d R. 315).

The record reveals that on August 18, 1984, at approximately 3 a.m., defendant, J.H., age 15, was at the Roosevelt Road subway station on 1200 South State Street in Chicago, Illinois. Defendant had just come from a party at an establishment called the “Candy Store” at 13th and Michigan. Several of defendant’s friends, Louis Marshall, G.C., Vincent Stepter, Brian Hoard, and three individuals known as Milfred, Ant, and Curry, were also at the station when a southbound train arrived. Three people, one of whom was Frederick Harris, stepped off the train and were heading toward the stairway when G.C. approached Harris. The two shook hands, spoke a few words, and then G.C. yelled, “[W]e got us some.” G.C. proceeded to strike Harris in the head, and after doing so, he, defendant, and several of the other youths began chasing Harris and his two companions. Harris’ friends ran up the stairs in the station, but Harris continued running down the platform with G.C. and defendant in pursuit.

When Harris reached the end of the platform and attempted to climb onto the tracks, G.C. kicked Harris in the back. Consequently, Harris fell onto the third rail of the tracks, where he was electrocuted and subsequently run over by an oncoming train. Shortly thereafter, the police arrived and a murder investigation ensued.

The following facts were disclosed at the hearing on defendant’s motion to dismiss the indictment. On two separate occasions on August 19, the day after the incident, police officers went to the apartment of defendant’s mother, Barbara Humphrey. Ms. Humphrey testified that on their first visit, the officers told her they wanted to question defendant about some “video games.” She informed the officers defendant did not reside with her. When different officers contacted her later that evening, she repeated that defendant no longer lived with her, but lived with his sister and legal guardian, Torra Humphrey. Ms. Humphrey testified the officers assured her, “It was nothing *** to get alarmed about, they just wanted to ask him a few questions.” Then, the officers performed a consensual search of her apartment.

During this second visit, the police officers encountered Gad Israel, defendant’s father, who later testified the officers told him they wanted defendant “for something that happened downtown.” They also told Israel that “[t]hey wanted him [defendant] to be a witness about something,” but did not mention what that “something” was.

The following morning, defendant, his mother, and his father went to police headquarters at 51st Street and Wentworth Avenue. According to Israel, after telling one of the officers that he had to go to work, he was told that he could “go ahead on,” because they would be at the station all day. The officer also told Israel that the police wanted to question defendant as a “witness” regarding “an incident at the el.” Israel left the station around noon and went to work.

Ms. Humphrey remained at the station, and at approximately 1:30 p.m., she and defendant had a conversation with a policeman, a youth officer, and an assistant State’s Attorney. They told her they only wanted to talk to defendant as a witness to a murder at the subway, and that afterward he could go home. Ms. Humphrey believed defendant was not under arrest at that time. She told the three men “it would be okay” for her son to testify before the grand jury.

Before leaving the station at 7 p.m., Ms. Humphrey asked several times about taking defendant home. Initially, she was told defendant could not go home because he had to wait for the arrival of an assistant State’s Attorney. Later, she was told he could not leave because he had to be in court the next day to give the statement he had given the authorities, but he would be home “tomorrow.” Ms. Humphrey did not call an attorney since she “didn’t need a lawyer, it wasn’t nothing he [defendant] had done.”

Clifford Clark, defendant’s counselor from the Unified Delinquency Intervention Services for the Juvenile Court, testified that he went to the police station in the early afternoon on August 20, at the request of defendant’s mother. A police officer told Clark defendant was there “only for some questioning.” At 3 p.m., Clark spoke to defendant in the presence of a female youth officer and two detectives, and then he spoke to defendant alone. After their conversation, Clark waited an hour until he spoke to a “sheriff” about defendant’s release, but according to Clark, the sheriff “kept putting *** [him] off.” Prior to Clark’s leaving the station at 4 or 4:30 p.m., the same officer told him that defendant would be released “as soon as they finished processing.”

The following afternoon, August 21, Clark went to the criminal courts building at 26th and California. When he arrived, he saw the defendant alone in a hallway outside the grand jury room, not handcuffed, and acting “as if he’d been playing basketball.” While at the courthouse, Clark was approached by two people. The first individual inquired as to Clark’s relationship with defendant. The second person told Clark defendant was at the courthouse for questioning and “somebody” would take defendant home.

Torra Humphrey, defendant’s sister and legal guardian, testified that she too went to the criminal courts building on August 21 at 9:30 a.m. Upon her arrival, she observed defendant with another young boy in the snack shop accompanied by a person whom she believed to be a police officer. The man told her defendant had to make a statement and afterward would be ready to go home. The four then left the snack shop and went upstairs to the grand jury room. At approximately 2 p.m., Torra, defendant, and Clark had a discussion with an assistant State’s Attorney during which the attorney told defendant “to tell him his story” and he would help defendant. The attorney also told defendant that defendant could leave after he told his story. Torra left the courthouse at approximately 2:30 p.m. to go to 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 to defendant and Clark, showed them his identification card, and told them he was G.C.’s attorney. Defendant told Epstein that he did not have a lawyer, that he was merely a witness, and that he would be going home after testifying before the grand jury. Defendant proceeded to describe the events of August 18 at the subway station. He never mentioned his participation in the chase and stated he tried to help the victim off of the tracks.

Assistant State’s Attorney John Romano testified that he received a call on August 21, 1984, concerning the Harris murder, and reported to the courthouse at 26th and California. When he arrived, he discussed the case for 30 to 45 minutes with two detectives and read the police reports. He learned that G.C. was in custody and the only individual charged in the case. Romano proceeded to interview five witnesses, including defendant.

Prior to Romano’s interviewing defendant, the detectives informed him that defendant had been on the “el” platform at the time of the murder. Defendant had told police and another assistant State’s Attorney the previous day that he was present when the incident occurred but, for the most part, he observed it from a bench. Defendant did not mention that he chased the victim.

Romano spoke to defendant at approximately 1 p.m. with two detectives present. After asking some preliminary questions, Romano gave defendant Miranda warnings and defendant waived his rights. According to Romano, defendant told basically the same story he had told the police and the other assistant State’s Attorney. Romano then told defendant the other witnesses had related a different story and admonished defendant to tell the truth before testifying in front of the grand jury. As a result, defendant gave a different version of what happened on August 18, which was- substantially the same as his testimony before the grand jury.

Defendant testified before the grand jury at 2 p.m. that same afternoon. Before defendant was sworn in, Romano informed the grand jury that the instant cause was a “John Doe for information only regarding the investigation of the homicide of Mr. Frederick Harris.” He asked the grand jury “to pay close attention to the testimony of the witnesses, as [the State] will be seeking charges.”

The transcript from the grand jury proceedings reveals that Romano first questioned defendant about his age and his being advised of his constitutional rights in their prior interview. Defendant also admitted that he was given his constitutional rights before he spoke to the police and an assistant State’s Attorney on August 20, 1984, and that no threats or promises were made to him. Again, Romano advised defendant of his Miranda rights, which defendant waived. Defendant then proceeded to describe the events that transpired on the subway platform, stating that he participated in the chase with the intent of injuring Harris. Defendant explained that he had told a different story to the authorities on the previous day because he “didn’t want to get involved in it.”

Four other eyewitnesses also testified before the grand jury and described the murder in the same way as defendant. Each observed defendant and G.C. chasing Harris. Following their testimony, Romano informed the grand jury he was seeking a true bill of indictment against G.C. and defendant for the murder of Frederick Harris. After deliberation, the grand jury indicted them both.

Defendant moved to dismiss the indictment, alleging that the “course of conduct leading up to defendant’s appearance before the Grand Jury was clearly calculated police and prosecutorial misconduct and overreaching” resulting in a denial of due process. The circuit court granted defendant’s motion to dismiss, reasoning that the assistant State’s Attorney secretly intended to indict defendant once defendant told his inculpatory story and that the assistant State’s Attorney’s failure to inform defendant of this intention violated defendant’s right to due process because he used the grand jury “like the Inquisition.”

The appellate court, one justice dissenting, reversed the judgment of the circuit court, acknowledging that a circuit court may dismiss an indictment in certain instances because of prosecutorial misconduct, but holding that (1) this defendant’s allegations of coercive detention, entailing fourth, fifth, and sixth amendment violations, did not constitute sufficient justification for dismissal of the indictment, (2) defendant had no due process right to be informed he was a target for indictment, and (3) the circuit court had no authority to inquire into the “adequacy” of evidence presented to the grand jury, so long as there was “some” evidence relative to the charge. (164 Ill. App. 3d at 724-29.) We affirm the judgment of the appellate court. We do not believe dismissal of the indictment is an appropriate remedy in this case.

Inasmuch as the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigation unrestrained by the technical evidentiary and procedural restrictions applicable to a criminal trial. Generally speaking, “the validity of an indictment is not affected by the character of the evidence considered.” (United States v. Calandra (1974), 414 U.S. 338, 343-45, 38 L. Ed. 2d 561, 568-69, 94 S. Ct. 613, 617-18.) In Calandra, the Supreme Court declined to extend the exclusionary rule to grand jury proceedings, holding such an “extension of the exclusionary rule would seriously impede the grand jury.” (Calandra, 414 U.S. at 349, 38 L. Ed. 2d at 572, 94 S. Ct. at 620.) The Court reasoned:

“Permitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury’s primary objective. The probable result would be ‘protracted interruption of grand jury proceedings,’ [citation] effectively transforming them into preliminary trials on the merits. In some cases the delay might be fatal to the enforcement of the criminal law.” (Calandra, 414 U.S. at 349-50, 38 L. Ed. 2d at 572, 94 S. Ct. at 620-21.)

The Court concluded the potential injury to the role and function of the grand jury was not outweighed by the benefits of applying the exclusionary rule in the context of grand jury proceedings:

“Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal. Such an extension would deter only police investigation consciously directed •toward the discovery of evidence solely for use in a grand jury investigation. The incentive to disregard the requirement of the Fourth Amendment solely to obtain an indictment from a grand jury is substantially negated by the inadmissibility of the illegally seized evidence in a subsequent criminal prosecution of the search victim. For the most part, a prosecutor would be unlikely to request an indictment where a conviction could not be obtained. We therefore decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury.” Calandra, 414 U.S. at 351-52, 38 L. Ed. 2d at 573, 94 S. Ct. at 621-22.

Clearly, the exclusionary rule does not bar a grand jury’s consideration of evidence illegally obtained, and use of such evidence does not, absent egregious prosecutorial misconduct, warrant dismissal of an indictment, particularly where, as here, there was other probative, unobjectionable evidence presented to the grand jury. Even if we assume law enforcement officials did violate defendant’s fourth, fifth or sixth amendment rights in the process of procuring defendant’s grand jury testimony, given the facts of this case, defendant would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial; his remedy does not extend to barring the prosecution altogether. (United States v. Morrison (1981), 449 U.S. 361, 365-66, 66 L. Ed. 2d 564, 568-69, 101 S. Ct. 665, 668-69; United States v. Blue (1966), 384 U.S. 251, 255, 16 L. Ed. 2d 510, 514-15, 86 S. Ct. 1416, 1419; United States v. Tapp (5th Cir. 1987), 812 F.2d 177, 178-79; People v. Barton (1984), 122 Ill. App. 3d 1079, 1084.) There is no need to transform grand jury proceedings into a “kind of preliminary trial” (Costello v. United States (1956), 350 U.S. 359, 363, 100 L. Ed. 397, 402, 76 S. Ct. 406, 408) in order to protect defendant’s rights where suppression of evidence prior to trial is just as effective. The most important protection for an accused in our system of law is a fair trial itself. People v. Creque (1978), 72 Ill. 2d 515, 527.

Having determined that the grand jury could consider defendant’s testimony, and that technical evidentiary and procedural restrictions do not apply to grand jury deliberations, we must now consider whether the conduct of the prosecutor warranted dismissal of the indictment. Defendant readily acknowledges, “No Illinois case to date dealing with prosecutorial misconduct has found denial of due process established with requisite certainty to warrant dismissal of an indictment” and “no case since Boone v. The People (1894), 148 Ill. 440, 36 N.E. 99 has found fundamental perversion of the grand jury process itself.” Even Bank of Nova Scotia v. United States (1988), 487 U.S. 250, 263, 101 L. Ed. 2d 228, 243, 108 S. Ct. 2369, 2378, upon which defendant places considerable reliance, suggests that prosecutorial misconduct can usually be “remedied adequately by means other than dismissal” which “allow the court to focus on the culpable individual rather than granting a windfall to the unprejudiced defendant.” Nonetheless, several decisions of this court and other courts indicate prosecutorial misconduct may warrant dismissal of an indictment (People v. Rodgers (1982), 92 Ill. 2d 283, 287) where defendant’s due process rights are violated such that his right to a fair trial is prejudiced (People v. Lawson (1977), 67 Ill. 2d 449, 456-58 (addressing, but not finding, prejudicial pre-indictment delay)) or where the prosecutor’s conduct in some way undermines the integrity of the judicial pro cess (Creque, 72 Ill. 2d at 526) as manifested in grand jury proceedings. Some cases suggest the latter may occur where a prosecutor deliberately or intentionally misleads the grand jury to the prejudice of the defendant (Nova Scotia, 487 U.S. at 261, 101 L. Ed. 2d at 241, 108 S. Ct. at 2377; Creque, 72 Ill. 2d at 523-24; People v. Barton (1989), 190 Ill. App. 3d 701, 709).

We fail to see how defendant’s right to a fair trial could be prejudiced due to prosecutorial misconduct where suppression of the evidence, alleged to have been procured through such misconduct, is an available remedy. Moreover, presentation of the supposedly tainted testimony before the grand jury could not have undermined the integrity of the judicial process where other, untainted evidence connected defendant to the crime, where, according to Calandra, the grand jury could consider evidence so tainted in deciding whether to indict defendant, and where the evidence (defendant’s testimony) was not so clearly inadmissible that the prosecutor perpetrated a fraud on the grand jury in presenting it for consideration, knowing that it would not be admissible at trial. A prosecutor should not be inhibited in his presentation of a case to a grand jury by fear of dismissal due to his ultimately erroneous, but honest, appraisal of the admissibility of certain evidence for trial purposes.

Even if defendant was in custody illegally prior to his grand jury testimony, and the prosecution was aware of the circumstances of his detention, defendant’s testimony would not necessarily be inadmissible at a subsequent trial. The inquiry does not end with a determination that defendant’s initial detention was unlawful. Rather, a court hearing a motion to suppress would consider the temporal proximity of the initial detention and the statement, the presence of any intervening circumstances, and the purpose and flagrance of the official misconduct, along with the giving of Miranda warnings, in deciding whether defendant’s testimony was sufficiently an act of free will to purge the primary taint of the illegal detention. (Brown v. Illinois (1975), 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62.) In this case, a considerable period of time passed between defendant’s arrival at the police station and his testimony before the grand jury, during which time he was accessible to family members, allowed considerable freedom of movement, and given Miranda warnings no less than four times. Defendant’s testimony was not so clearly inadmissible that the prosecutor was guilty of misconduct in presenting it to the grand jury.-

The circuit court ruled the assistant State’s Attorney had “violated defendant’s right to due process of law because he used [the] Grand Jury like the Inquisition.” The court cited Boone v. State (1894), 148 Ill. 440, extensively in its decision.

Initially, we note that the grand jury is an inquisitional body:

“ ‘It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.’ ” (Calandra, 414 U.S. at 343, 38 L. Ed. 2d at 569, 94 S. Ct. at 617, quoting Blair v. United States (1919), 250 U.S. 273, 282, 63 L. Ed. 979, 983, 39 S. Ct. 468, 471.)

As for the circuit court’s reliance upon Boone, we find it misplaced. Boone was already “in custody charged with a crime” when he was compelled to testify before the grand jury, “ignorant of his rights.” (Boone, 148 Ill. at 449.) His testimony was the only evidence before the grand jury. The “danger” which this court found so compelling in Boone was engendered by the prosecution’s failure to have Boone apprised of his constitutional rights in order to dispel any belief that he might be required to answer charges made against him. Apparently, the fact that there was no other evidence presented to implicate Boone also underpinned this court’s decision. We no longer consider Boone good law in view of the sweeping changes that have occurred since 1894. In modern American jurisprudence, the pervasive application of the exclusionary rule adequately addresses the concerns which prompted the Boone decision.

Defendant contends (1) that he was entitled to be warned he was a target for indictment, and (2) that the prosecutor’s failure to advise him in compliance with section 112 — 4(b) of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 112 — 4(b)) prejudiced him, because the Miranda warnings he received failed to specifically inform him (as would section 112 — 4(b)) that he had a right to refuse to answer any question which would tend to incriminate him. We reject both contentions.

It has been held, under factually similar circumstances, that a prosecutor’s failure to specifically warn a defendant he was a target for indictment did not offend constitutional guarantees. United States v. Washington (1977), 431 U.S. 181, 189, 52 L. Ed. 2d 238, 246, 97 S. Ct. 1814, 1819-20.

First, the events which the Washington Court held “clearly put respondent on notice that he was a suspect” parallel similar events in the case at bar. As was the case in Washington, defendant here knew that the grand jury was investigating an offense in which he was involved and that his involvement was known — to a greater or lesser degree — to the authorities; he knew that the authorities were questioning his version of events in light of other information known to them; and he received warnings in the grand jury room which were similar to those Washington received. By the time defendant testified, he was well aware of his potential defendant status. Second, defendant was given Miranda warnings, advising him that he had the right to remain silent, that anything he said could be used against him in court, and that an attorney would be appointed for him upon request. Similar warnings in Washington were held to have adequately alerted Washington to his right to refuse to answer any question which might incriminate him. The Supreme Court stated in Washington:

“It is inconceivable that such a warning would fail to alert him to his right to refuse to answer any question which might incriminate him. This advice also eliminated any possible compulsion to self-incrimination which might otherwise exist. *** Indeed, it’ seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled. Moreover, any possible coercion or unfairness resulting from a witness’ misimpression that he must answer truthfully even questions with incriminatory aspects is completely removed by the warnings given here. Even in the presumed psychologically coercive atmosphere of police custodial interrogation, Miranda does not require that any additional warnings be given simply because the suspect is a potential defendant; indeed, such suspects are potential defendants more often than not.” (Washington, 431 U.S. at 188, 52 L. Ed. 2d at 245-46, 97 S. Ct. at 1819.)

As the purpose of the admonishments in section 112— 4(b) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 112— 4(b)) is to advise a defendant of his right to counsel, and to alert him to his right to refuse to answer any question which might incriminate him, and the Court in Washington held that Miranda warnings, under factually similar circumstances, adequately address those concerns, we hold that the defendant was adequately advised of his rights.

In sum, we find that the prosecutor’s conduct neither prejudiced defendant’s right to a fair trial, nor undermined the integrity of the judicial process; therefore dismissal of the indictment was not warranted.

Finally, we note that defendant could not have been prejudiced by the prosecutor’s alleged misconduct or by the grand jury’s use of defendant’s grand jury testimony, because defendant would have been indicted in any event. The other four boys who testified before the grand jury stated that they saw defendant and G.C. chasing the victim, this after G.C. had identified the victim and two others with him 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 [the victim] into the third rail” of the subway, where he was electrocuted.

A person is legally accountable for the conduct of another when, either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c).) Evidence that defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and will sustain his conviction for an offense committed by another. (People v. Allen (1974), 56 Ill. 2d 536, 541.) Proof of a common purpose can be drawn from the circumstances surrounding the commission of the act. People v. Richardson (1965), 32 Ill. 2d 472, 476-77.

There was some evidence, independent of any alleged impropriety, which connected defendant to the crime. There need only be “some evidence” to connect defendant to the offense charged. (Rodgers, 92 Ill. 2d at 288; People v. Whitlow (1982), 89 Ill. 2d 322, 331.) This evidence alone would have supported the indictment; therefore, even assuming, arguendo, some misconduct did occur, it, and the evidence derived from it, could not have prejudiced the defendant. See Nova Scotia, 487 U.S. at 254,101 L. Ed. 2d at 237,108 S. Ct. at 2373-74.

In view of the foregoing, we hold that dismissal of the indictment was improper. Therefore, the judgment of the appellate court, reversing the circuit court, is affirmed.

Affirmed.