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People v. Denson

NOVEMBER 20, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

BARBARA DENSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH E. WILSON, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Barbara Denson (hereinafter "contemnor") was adjudged in contempt of court for having refused to answer questions propounded to her on various occasions as a witness in a murder trial, and, as a consequence of her refusals, contemnor was committed to the Cook County Jail. This appeal emanates from the adjudgment of contempt.

Before undertaking to state and analyze the issues presented for review, a somewhat detailed recitation of the sequence and substance of the events which transpired before the court below is necessary.

THE HEARING OF MAY 25, 1971

On May 25, 1971, one Curtis Berry, with whom contemnor had lived for some time, was on trial for murder when contemnor was called upon to testify as a State's witness. After having stated her name and address, contemnor informed the court, outside the presence of the jury, that she did not wish to answer further questions until she had the opportunity to confer with her attorney, who was not present when the questioning began; the court ordered contemnor to answer the questions put to her.

After certain questions were asked by the prosecutor and answered by contemnor, the State sought to impeach contemnor based upon alleged inconsistencies between the answers she had just given and prior statements contemnor had made before the grand jury which had indicted Berry. The court then ruled that a proper foundation had been laid to show inconsistent statements and permitted contemnor to be called as the court's witness subject to cross-examination by both the prosecution and the defense.

After a recess in the proceedings, during which contemnor had the opportunity to confer with her attorney, she returned to the stand, and, except for stating her name and address, refused to answer any further questions, on advice of counsel, claiming that her answers might tend to incriminate her. Upon motion of the State, the court then entered an order of immunity, pursuant to section 106 of Illinois' Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 106 et seq.), which conferred upon contemnor immunity from prosecution for any offense shown in whole or in part by her testimony "except perjury in the giving of such testimony." *fn1

Following the entry of the immunity order, counsel for contemnor informed the court that contemnor would persist in her refusal to testify, owing to her belief that her testimony would subject her to an indictment for perjury because of the testimony contemnor had given previously before the grand jury which had indicted Berry. Called to the stand again, contemnor persisted in her refusal to testify, and, after the court admonished contemnor with regard to the consequences of her continued refusal, the court found contemnor guilty of direct contempt of court and entered an order which read, in essential part:

"IT IS THEREFORE ORDERED AND ADJUDGED that the contemnor, Barbara Denson, because of the said direct contempt of this Court is hereby committed to the County Jail of Cook County until such time as she appears before this Court and answers the questions propounded to her thereby purging herself of her aforesaid contumacious acts."

Prior to the entry of the contempt order, the court had indicated that contemnor would return to court from day to day to determine whether she would purge herself of contempt. The proceedings were continued, and contemnor was incarcerated in the Cook County Jail.

THE HEARING ON MAY 26, 1971

On May 26, 1971, contemnor was brought before the court, and again refused to testify in the Berry trial on the grounds that her testimony might incriminate her. Contemnor's counsel explained to the court that contemnor feared a prosecution for perjury which she may have committed before the grand jury, and that if the State would provide contemnor with immunity from prosecution for perjury, then contemnor would reconsider her position relative to her refusal to testify. The State declined to request of the court immunity from a perjury prosecution, and the court continued the proceedings until the following day; contemnor remained in custody.

THE HEARING ON MAY 27, 1971

On May 27, 1971, contemnor was again brought before the court and again refused to testify in the Berry trial, her counsel reiterating the same arguments made in her behalf the previous day. Subsequently, the court stated:

"The Court is of the opinion that the record clearly shows that Miss Denson has violated the order of the Court to testify even though she has been granted immunity and that she has committed contumacious conduct that is a direct contempt of this Court, and this Court now sentences her to six months in the County Jail or until such time as she purges herself of her contempt, which means that if Miss Denson should change her mind and decide to testify at any time prior thereto she may purge herself of her contempt and be relieved of this order."

Thereafter, the court entered an order and finding of direct contempt by contemnor which concluded:

"IT IS THEREFORE ORDERED AND ADJUDGED that the contemnor, Barbara Denson, because of the said direct contempt of this Court is hereby sentenced to the County Jail of Cook County for a period of six (6) months or until such time as she appears before this Court and answers the questions ...


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