Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. Kenneth E. Wilson, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT: This case originated in the circuit court of Cook County and involves a sentence of 6 months for contempt. The appellate court affirmed the sentence (16 Ill. App.3d 230), and we granted leave to appeal. Facts essential to the decision of this case are related in the appellate opinion, and we here adopt that statement of facts.
The appellant was called to testify as a witness for the State in the murder trial of Curtis Berry. Although not legally married, she had lived with him as his wife for a number of years, and had given incriminating testimony against him before the grand jury, the result of which was Berry's indictment for murder. The appellant was called as a witness at the trial, was then made a court's witness, and eventually was granted immunity under article 106 of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, pars. 106-1, 106-2), which provided:
"106-1. Granting of Immunity. In any investigation before a Grand Jury, or trial in any court of record, the court on motion of the State may order that any material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce.
106-2. Effect of Immunity. Such order of immunity shall forever be a bar to prosecution against the witness for any offense shown in whole or in part by such testimony or other evidence except for perjury committed in the giving of such testimony."
She still refused to testify, claiming that the immunity granted was not as broad as her fifth amendment rights; however, the statute in question was so construed in People v. Walker (1963), 28 Ill.2d 585, where, without citing authority, the People suggested that immunity is not to be extended to prior perjury, and there the court, at page 590, stated: "The short answer to the People's suggestion, of course, is that the statute contains no exception as to prior perjury, and that such an exception would render it invalid." And, at page 591, stated: "A charge of perjury cannot, therefore, be predicated upon the falsity of those statements. The situation is not altered by section 32-2 of the Criminal Code of 1961 * * *. In the words of the immunity statute, the offense of perjury by inconsistent statements was shown `in whole or part' by the testimony that he gave under the statutory grant of immunity."
Ordinarily, the fact that the scope of immunity was sufficient would be the conclusive answer to the claim that the contempt holding was proper. The circumstances of the case at bar are unique, however, and resort should be had to the record. The initial confusion began during the trial of Curtis Berry when on May 25, 1971, Miss Denson was called as a witness by the State and requested to confer with her attorney, Sam Adam, before answering any questions. The court directed her to answer the prosecutor's questions, noting that she had not claimed "certain protections." She proceeded to answer the questions put to her, whereupon the prosecutor claimed that she was answering in a manner which indicated she would be a hostile witness and asked that she be made a court's witness so that he might cross-examine her. A hearing was held outside of the presence of the jury, and the judge ruled that she should be called as a court's witness.
After the noon recess, Miss Denson returned with her attorney, and was given an opportunity to confer with him. Attorney Adam then made the following representation to the court:
"If your Honor please. I represent Miss Denson a witness before your Honor, and she and I have conferred today and on other occasions, and I have also been in your Honor's court this morning and heard some of the questions asked of her and some of her responses outside the presence of the jury.
After our conference, Judge, it is my opinion if she testifies in this case that answers to questions asked of her may well tend to incriminate her, and at this time, your Honor, if the Court please, she would assert her right not to testify on the grounds that any answers given by her may result in incriminating evidence being used or being asserted by the State against her. She would rely upon the 5th Amendment to the Constitution and the 14th Amendment to the Constitution.
Pursuant to your Honor's direction I did advise her that there are sanctions, if your Honor please, that your Honor might take such as contempt, if in fact her answers would not incriminate her.
But it is her honest belief, and after conferring with me it is my opinion also, and I have advised her, having testified before the Grand Jury and having made statements at other places, and also statements under oath this morning, it is my advise to her, Judge, if she testifies now in this cause at this time her answers to questions may tend to incriminate her, and she would assert that privilege not to testify."
When Adam pointed out that Miss Denson had not been represented by counsel when she testified before the grand jury the prosecutor replied:
"She was represented by the State's Attorney there. I may draw the attention of the Court to the fact she is Count 3 of this indictment, a victim in Count 3 of the indictment, and she was represented by her lawyer, and her lawyer is the State's Attorney of Cook County at that time, and her rights were fully protected by the State's Attorney of Cook County."
Eventually it was established that Miss Denson was going to refuse to answer any questions on the basis that to do so would violate her rights under the fifth amendment to the United States Constitution, and the ...