APPEAL from the Circuit Court of Cook County; the Hon.
MARVIN E. ASPEN, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Following a presentation by assistant Attorneys General of the State of Illinois, the Cook County grand jury returned a 49-count indictment on June 8, 1973. That indictment was brought against numerous parties including Benedetto J. Massarella, Raymond J. Battersby, Raymond Weglowski, Eugene Kriwiel, Bee Jay's Truck Stop, Inc. (BJTS), Mideast Transport, Inc. (Mideast), Mid-Town Petroleum, Inc. (Mid-Town), and Midwest Fuel Transportation, Inc. (Midwest). In essence, the indictment charged the named individuals and corporations with conspiracy, perjury, theft, and tax evasion.
After a jury trial Massarella was found guilty of conspiracy, theft, and one count of perjury; he was found not guilty of a second count of perjury. BJTS was found guilty of conspiracy and theft. Mideast was found guilty of conspiracy. Thereafter, Massarella was sentenced for theft to 5 years probation, 2 years periodic imprisonment, and a $10,000 fine, and ordered to pay restitution in the amount of $425,407 to the State of Illinois. In addition he was sentenced to 1 to 3 years in the penitentiary and fined $10,000 for perjury. BJTS and Mideast were each sentenced to pay a $10,000 fine and ordered to pay $425,407 in restitution to the State of Illinois.
Defendants, Massarella, BJTS, and Mideast, now appeal from the judgments and the sentences, raising 15 issues for our review. These issues include whether the indictment should have been dismissed due to the Attorney General's allegedly improper presentation to the grand jury and subsequent prosecution of the cause; whether the trial court should have recused himself; whether the trial court erred in denying defendants' motion for a substitution of judges; and numerous alleged errors re court rulings pertaining to the failure to dismiss counts in the indictment, continuances, rulings pertaining to the trial of the case, sufficiency of the evidence, polling of the jury, the hearing in aggravation and mitigation, and the sentences imposed.
Many of the counts in the indictment were dismissed prior to trial. Five of the original 49 counts, however, remained in the indictment. The indictees and unindicted co-conspirators were charged with conspiring to commit theft of Illinois motor fuel tax monies. Defendant Massarella was charged with committing perjury in a legal proceeding *fn1 and in certain deposition testimony given in a separate proceeding. *fn2 In connection with the legal proceeding for which Massarella was charged with perjury, Battersby was also similarly charged. Finally, BJTS and Massarella, individually and as president of BJTS, were charged with theft of Illinois motor fuel tax monies. Defendants Battersby, Mid-Town, Kriwiel, Weglowski, and Midwest pleaded guilty to conspiracy to commit theft. Battersby also pleaded guilty to perjury.
Due to our disposition of the appeal, we need not set forth all of the testimony or pass upon all of the errors raised. The State's evidence purported to show that defendant Massarella entered into an agreement with Raymond Battersby in the summer of 1967 to divert untaxed heating oil to defendant BJTS for subsequent sale as taxed diesel fuel. At the time, Massarella was both president and sole shareholder of BJTS, a corporation which operated a Chicago truck stop; Battersby was both president and principal shareholder of Mid-Town, a corporation which sold oils, diesel fuel, and gasoline. The untaxed diesel fuel was obtained from oil terminals serving as suppliers to Battersby and Mid-Town and was transported by an employee of Massarella and BJTS in a vehicle owned by Mideast, a corporation controlled by Massarella. In support of their guilty pleas, Battersby and Kriwiel stipulated that Massarella paid them in cash to cover the transactions by maintaining false business records.
The evidence also purported to show that in furtherance of the agreement with Battersby, Massarella entered into additional agreements with other individuals. As a result of such agreements, BJTS received more untaxed diesel fuel from other sources. The fuel was purchased through Rella Enterprises, a sole proprietorship owned by Massarella. Between August 1967 and May 1971, Massarella and BJTS obtained 6,238,057 gallons of untaxed diesel fuel. When BJTS sold the diesel fuel, however, it collected Illinois motor fuel tax from its customers. Thus, the total amount of tax collected and retained by Massarella was $425,407.
Massarella initiated a lawsuit in August 1971, wherein he sought to enjoin the Illinois Department of Revenue from investigating him individually and his business. In the course of that suit, Massarella denied that he had purchased fuel from Mid-Town prior to January 1971, and denied that he had ever purchased fuel through Rella Enterprises. Battersby later admitted that he lied in that proceeding when he denied selling untaxed fuel to BJTS; Kriwiel admitted that he lied to investigators from the Revenue Department when questioned about the entire scheme. At trial, Massarella affirmed his previous testimony given in that lawsuit. He contended that a former employee owned the vehicle used to haul the fuel and that the employee did so pursuant to an agreement between the employee and Battersby. Massarella denied the existence of any conspiracy involving either himself or BJTS.
Following a jury trial, Massarella was found guilty of conspiracy, theft, and perjury; BJTS was found guilty of conspiracy and theft; Mideast was found guilty of conspiracy. This appeal follows.
Defendants contend that the indictment against them should have been dismissed because the Attorney General, improperly and in excess of his authority, instituted the proceedings, presented the cause to the grand jury, and entirely conducted the prosecution of the case. We agree.
A historical examination of Illinois laws governing grand jury activities illustrates the impropriety of the Attorney General's appearance before the grand jury. The following language from People v. Sears (1971), 49 Ill.2d 14, 26-27, 273 N.E.2d 380, is particularly instructive:
"The statutory provision with respect to witnesses before the grand jury, enacted in 1827 (Rev. Laws 1827, p. 162, § 175) provided `In all complaints exhibited before the grand jury of any county, they shall hear the witnesses, on behalf of the people only.' This provision was reenacted in 1833 (Rev. Laws 1833, p. 213, § 177), in 1845 (Rev. Stat. 1845, p. 186, § 187), in 1874 (Rev. Stat. 1874, p. 407), and remained in force and effect until the enactment of section 112-4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, par. 112-4(a)) which provides `The Grand Jury shall hear all evidence presented by the State's Attorney.'
Section 5 of `An Act in Regard to Attorneys General and State's Attorneys' (Ill. Rev. Stat. 1969, ch. 14, par. 5) (approved March 22, 1872, L. 1871-2, p. 190), as amended in 1967, provides that one of the duties of the State's Attorney shall be `To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the state or county may be concerned.' This provision has been in force and effect virtually without change or modification since February 19, 1827. Revised Laws of Illinois 1833, Revised Statutes of Illinois 1845, Illinois Laws 1873-4."
We note that prior to the enactment of the Code of Criminal Procedure of 1963, the representative of the people who dealt with the grand jury was ordinarily called "the prosecutor" or "the prosecuting attorney." (30 Pope's Digest, vol. II, § 4, at 607 (1815) (Illinois Historical Collection, vol. XXX); Rev. Laws 1827, § 167, at 161; Rev. Laws 1833, § 169, at 211-12; Rev. Stat. 1845, § 179, § 189, at 184, 186; Rev. Stat. 1874, ch. 38, div. XI, § 2, § 7.) Thus, at one time there may have been confusion as to whether the Attorney General or the State's Attorney was the proper representative of the people in criminal ...