APPEAL from the Circuit Court of Cook County; the Hon. JOHN A.
OUSKA, Judge, presiding.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 11, 1974.
The defendants-appellees were charged on December 30, 1971, with a failure to file use tax returns and with filing fraudulent retailer's occupation tax returns (Ill. Rev. Stat. 1971, ch. 120, pars. 439.14 and par. 452). There were six complaints filed against each of the defendants. On May 24, 1972, the defendants filed a motion to dismiss which was granted by the trial court on January 25, 1973. This appeal arises from the dismissal of all the complaints.
The defendants' motion to dismiss alleged, inter alia, that "Prosecution personnel advised a person having relevant material and information to refrain from discussing the case with defense counsel." The motion to dismiss was supported by an affidavit of the defendants' attorney in which he stated that on approximately April 7, 1972, he had a telephone conversation with Jack Kleinman, an auditor of the Illinois Department of Revenue. Mr. Kleinman had engaged in audit activities concerning the subject matter of the defendants' prosecution and the defendants' attorney asked Mr. Kleinman to discuss all matters within his knowledge concerning the prosecution. The defendants' attorney further stated that later the same day he received a call from Kleinman in which Kleinman stated that he had spoken with Phillip Mitchell, the Chief of the Intelligence Division of the Illinois Department of Revenue, and that Mitchell told Kleinman that Kleinman could not speak to the defense counsel.
The State did not file a response to the defendants' motion to dismiss until January 11, 1973. In its response the State admitted that Mitchell had told Kleinman not to discuss the prosecution with defense counsel. However, Mitchell upon advice by the Attorney General's office, subsequently told Kleinman he could discuss the case with defense counsel if he chose to do so. Attached to the State's response was an affidavit of Mr. Mitchell dated January 9, 1973. In the affidavit Mitchell stated that in April of 1972 he told Kleinman not to discuss the case with defendant's attorney but later rescinded this instruction and told Kleinman he was free to discuss the case with defense counsel or the defendants if he chose to do so.
A hearing on the motion to dismiss was held on January 25, 1973. At the hearing Mr. Mitchell testified that in the early summer of 1972 the assistant Attorney General prosecuting the case spoke to him concerning the validity of the instructions he had given Kleinman. Mitchell stated that he did not speak to Kleinman again until several days before January 9, 1973 at which time he told Kleinman he could discuss the case with defense counsel if he wished to. Several times during the hearing the trial court made specific reference to and was very concerned about the long lapse of time between the date the motion to dismiss was filed and the date on which an error in instructing Kleinman had been admitted.
"But when it is this long and the attorneys are on the trial call, that this is a trial call and we can pursue this on any date that the case comes up for trial, I don't know why this mistake should be allowed to go ahead. That is, should be sanctions in anything short of dismissal."
After arguments on the motion to dismiss were completed, the trial court dismissed all the complaints. The court specifically relied on the case of Gregory v. United States, 369 F.2d 185, 1966, and stated that it was dismissing the case on the constitutional points contained therein. The State has appealed and contends that the dismissal order is erroneous because it is not based on one of the 10 grounds set forth in section 114-1(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114-1(a)). The State also contends the trial court erred in dismissing the complaints because any error was cured by the State giving proper instructions to Mr. Kleinman before the case was placed on the trial call. We do not agree and are of the opinion that under the particular facts existing in this case the trial court did not err in dismissing all of the complaints.
The Gregory case on which the trial court relied involved a criminal prosecution for murder, robbery and assault with a dangerous weapon. In that case the prosecutor had instructed the prosecution witnesses not to talk to anyone unless he was present. The defendant was convicted on all counts but on appeal the United States Court of Appeals (Dist. of Columbia) found that the prosecutor's advice denied the defendant a fair trial and reversed and remanded the case for a new trial.
The court stated at 187 to 188:
"The purpose of 18 U.S.C. § 3432 requiring that in capital cases the defendant be furnished a list of the names and addresses of the witnesses to be called by the Government is to assist defense counsel in preparing the defense by interviewing the witnesses. Witnesses, particularly eye witnesses, to a crime are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them. Here the defendant was denied that opportunity which, not only the statute, but elemental fairness and due process required that he have."
The court went on to state:
"A criminal trial, like its civil counterpart, is a quest for truth. That quest will more often be successful if both sides have an equal opportunity to interview the persons who have the information from which the truth may be determined. The current tendency in the criminal law is in the direction of discovery of the facts before the trial and elimination of surprise at trial. A related development in the criminal law is the requirement that the prosecution not frustrate the defense in the preparation of its case. Information favorable to the defense must be made available to the defense. Brady v. State of Maryland, 373 U.S. 83, S.Ct. 1194, 10 L.Ed.2d 215 (1963) * * * It is not suggested here that there was any direct suppression of evidence. But there was unquestionably a suppression of the means by which the defense could obtain evidence. The defense could not know what the eye witnesses to the events in suit were to testify to or how firm they were ...