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People v. Lawson

OPINION FILED JUNE 1, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JAMES LAWSON, APPELLEE. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

PAUL DUNN, APPELLEE. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

IRVING MCCASKILL ET AL., APPELLEES.



No. 48554. — Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Macon County, the Hon, Albert G. Webber III, Judge, presiding.

No. 48637. — Appeal from the Appellate Court for the MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Basil G. Greanias, State's Attorney, of Decatur (Jerry Finney, Assistant State's Attorney, of counsel), for the People.

Marshall A. Susler, of Owen, Roberts, Susler & Taylor, of Decatur, for appellee.

Basil G. Greanias, State's Attorney, of Decatur (Jerry Finney, Assistant State's Attorney, of counsel), for the People.

Norman J. Fombelle, of Burger, Fombelle, Wheeler & Dvorak, of Decatur (Norman J. Fombelle, of counsel), for appellees.

On appeal to us, these three cases, People v. Lawson (1976), 38 Ill. App.3d 239, People v. Dunn (1976), 38 Ill. App.3d 251, and People v. McCaskill (1976), 37 Ill. App.3d 1076, were consolidated. In each of the cases the State's Attorney appealed from the judgments of the appellate court. The similar facts are that all the defendants were indicted November 6, 1974, by a Macon County grand jury for unlawful delivery and unlawful possession of a controlled substance under sections 401(b) and 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, pars. 1401(b), 1402(b)). The defendants did not learn of the charges until after the indictments were returned, and they contended they were prejudiced by the delay between the alleged acts and the indictment.

Defendant James Lawson was indicted for alleged acts occurring November 15, 1973. The trial court, on Lawson's motion, dismissed on the ground that the nearly one-year delay denied him due process. The accused's testimony, in the view of the trial court, supported his allegation of prejudice, that is, inability to remember. The appellate court affirmed with a dissent. In the case of defendant Paul Dunn, the trial court again dismissed and for the same reason. Defendant Dunn's acts allegedly took place February 7, 1974. However, the appellate court reversed and remanded because it felt that Dunn, who had not testified, failed to show actual prejudice in his affidavit.

In the last case, that of James Hicks and Irving McCaskill, Hicks was indicted for an act said to have taken place December 17, 1973. McCaskill's alleged criminal violations occurred January 2 and February 2, 1974. After affidavits alleging inability to recall or reconstruct events were submitted by the two, their cases were consolidated for the purpose of hearing their motions to dismiss. Although defendants Hicks and McCaskill did not testify, the testimony of others in both cases demonstrated prejudice to the satisfaction of the trial court, which dismissed the indictments. Pursuant to Supreme Court Rule 23 (58 Ill.2d R. 23), the appellate court issued an order affirming the trial court's dismissal.

The State's Attorney objected to the trial court's dismissals, contending that the court could only do so on one of the grounds listed in section 114-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 114-1) and not on the basis of a denial of due process. In any event, the State asserted, prejudicial delay or denial of due process was not adequately shown by the defendants. Additionally, the State said in the case of Hicks and McCaskill that improper evidence was admitted in the form of affidavits which the State could not refute.

The two basic issues in the consolidated cases before us are: (1) whether the trial court has authority to dismiss an indictment, information or complaint on the basis of denial of due process even though that is not one of the grounds listed in section 114-1 of the Code of Criminal Procedure of 1963, and, if so, (2) whether the preindictment delay was so prejudicial as to be a denial of due process.

We are aware of appellate court cases holding that the trial court may not dismiss an indictment for any reason other than the reasons given in section 114-1 of the Code of Criminal Procedure of 1963. (See, e.g., People v. Shick (1st Dist. 1968), 101 Ill. App.2d 377, and People v. Abel (3d Dist. 1974), 21 Ill. App.3d 314.) We are also aware of conflicting appellate court decisions. However, we believe that on the basis of the reasoning of our past decisions and that of the appellate courts> and on the basis of the reasoning of the United States Supreme Court, we must conclude that a trial court does have an inherent authority to dismiss an indictment in a criminal case where there has been a clear denial of due process even though that is not a stated ground in section 114-1.

People v. Love (1968), 39 Ill.2d 436, has made clear that section 114-1 is not the only basis on which the People must rely when it appeals from a dismissal of an indictment by the trial court. The intent of Rule 604(a) (58 Ill.2d R. 604(a)) "was not to reduce the State's Attorney's right of appeal [from a dismissal] to only the ten grounds set forth in the statute [Ill. Rev. Stat. 1973, ch. 38, par. 114-1], but to include within that right those instances whereby the substantive effect of the judgment would be the dismissal of the indictment, information or complaint." (Emphasis added.) (People v. Rotramel (2d Dist. 1972), 5 Ill. App.3d 196, 198, citing People v. Love.) In other words, the grounds for dismissing an indictment under section 114-1 are not exclusive. (Those appellate court cases holding that section 114-1 is exclusive, e.g., Shick and Abel, can be distinguished in that a question of due process was not involved.) Moreover, the trial court has "inherent authority to insure the defendants a fair trial" and may impose sanctions to do so. (People v. Endress (4th Dist. 1969), 106 Ill. App.2d 217, 223.) Because the trial court has the obligation to insure a fair trial, it would seem only reasonable that, where there has been an unequivocally clear denial of due process such as actual and substantial prejudicial delay before an indictment or arrest, the trial court has the inherent authority to dismiss. Due process is a fundamental premise of our system of justice and is constitutionally guaranteed by the fourteenth amendment. It does not need enabling legislation. That would be the effect of our holding if we adopted the State's view.

There is another point to consider: the efficient and effective administration of justice. As People v. Silverstein (1st Dist. 1974), 19 Ill. App.3d 826, rev'd on other grounds (1975), 60 Ill.2d 464, has pointed out, where a denial of due process (in that case a wrongful instruction from the People which resulted in the inability of the defendant to gather evidence) occurs before trial and has not been corrected, then the courts> "are not required to engage in futile or useless acts and to proceed to trial" (19 Ill. App.3d 826, 833); they may dismiss. Otherwise, an appeal for preindictment delay could only be taken in a post-conviction proceeding, as the State has conceded, after a trial on ...


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