APPEAL from the Circuit Court of Cook County; the Hon. BRIAN
DUFF, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
The defendant, Darlene Linzy, was charged by information with two counts of murder. At a preliminary hearing held in the circuit court of Cook County probable cause was found only on two counts of voluntary manslaughter. She was thereafter indicted for two counts of murder. The defendant then filed a motion to quash the indictment, because of the improper and prejudicial conduct of the prosecutor during the grand jury proceedings. This motion was granted by the circuit court, and the People bring this appeal from that order.
The issues presented for review are (1) whether the circuit court has jurisdiction to order the transcript of proceedings before a grand jury in order to determine the propriety of the prosecutor's conduct during such proceedings, and (2) whether the circuit court abused its discretion in finding the prosecutor's conduct before the grand jury was improper.
On January 2, 1975, the defendant, Darlene Linzy, was charged by two complaints with the offense of murder, alleged to have been committed against Linda J. Goodrom and Sharon Donaldson. Thereafter, on January 13, 1975, the defendant appeared for preliminary hearing. After the hearing, the court found there was probable cause to send the case to the grand jury on a charge of voluntary manslaughter.
Despite the court's ruling, the State's Attorney's office presented the case to a grand jury as murder. During the grand jury proceedings a grand juror asked a question of the assistant State's Attorney, "There are no degrees for murder?" The prosecutor's answer was, "No, they have reduced it to voluntary and involuntary, as you know."
Thereafter, the following was said:
"A Juror: It could have been considered voluntary manslaughter?
Mr. O'Malley (assistant State's Attorney): Not under those facts. While there might have been some hot words exchanged
Mr. O'Malley: Voluntary manslaughter you have to have sudden, intense pattern which is caused by serious provocation and under the facts of that case just a slap or hot words would not be considered serious provocation to justify shooting.
No further proceedings were held before the grand jury. The grand jury then returned a two-count indictment against the defendant charging her with the murders of Linda Goodrom and Sharon Donaldson.
On February 18, 1975, the defendant, represented by counsel, was arraigned on the charges of murder, and entered a plea of not guilty as to both charges.
Subsequently, the defendant moved to quash the indictment. Thereafter, arguments were heard on the motion and the trial court dismissed the indictment on August 12, 1977. The trial court also submitted a written memorandum of opinion with the order of dismissal, in which it found the People misstated the law to the grand jury. Of significance to the issues on appeal is the fact the only evidence of the defendant's ...