Appeal from the Circuit Court of Cook County, the Hon. Earl E.
Strayhorn, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 1, 1978.
The defendant, Franklin Creque, was charged in Cook County with the March 13, 1977, aggravated battery and attempted murder of Martha Creque, his wife. At the conclusion of a March 31 preliminary hearing on these charges, the judge found no probable cause existed for the attempted murder charge, but did find probable cause to hold defendant for the aggravated battery (Ill. Rev. Stat. 1977, ch. 38, pars. 109-1 through 109-3). On April 11, a Cook County grand jury indicted defendant on both charges. The circuit court subsequently dismissed the indictment for attempted murder on due process grounds, the State appealed, and we allowed a joint motion to transfer that appeal to this court under Supreme Court Rule 302(b) (58 Ill.2d 302(b)).
The State's sole witness at the preliminary hearing was the victim, Martha Creque. She testified that she was in the living room of her apartment when she heard someone attempting to break in the back door and that she ran to a bedroom and hid behind a door. Defendant, however, succeeded in breaking down the back door and found her in the bedroom. He beat her with his fists and then stabbed her three times in the neck and once in the chest, hand and arm. She testified that defendant's brother, who had also come into the bedroom, told defendant to "come on" and to "stop" and eventually persuaded defendant to quit. Both then ran out the door. Mrs. Creque was uncertain whether defendant's brother actually had to pull defendant away from her.
The State's Attorney's subsequent presentation to the grand jury involved only one witness, an investigating officer whose testimony was essentially a summary of the victim's earlier statements at the preliminary hearing. He did not indicate that defendant quit stabbing his wife when defendant's brother intervened.
The circuit court cited four reasons for its action in allowing defendant's motion to dismiss. First, it found that the prosecution failed to show a "compelling justification" for the use of only hearsay evidence in obtaining the indictment. The difficulty with that finding, of course, is that there is no requirement that the prosecutor meet a "compelling justification" standard before presenting hearsay evidence to the grand jury.
The Supreme Court held in Costello v. United States (1956), 350 U.S. 359, 100 L.Ed. 397, 76 S.Ct. 406, that an indictment may be based solely on hearsay. Speaking for the court, Mr. Justice Black rejected the contention that an indictment is open to challenge because only hearsay evidence was presented to the grand jury. "If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury." (350 U.S. 359, 363, 100 L.Ed. 397, 402, 76 S.Ct. 406, 408.) He also there noted: "Neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act. * * * An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." (350 U.S. 359, 362-64, 100 L.Ed. 397, 401-03, 76 S.Ct. 406, 408-09.) The Supreme Court reaffirmed this rule in United States v. Dionisio (1973), 410 U.S. 1, 35 L.Ed.2d 67, 93 S.Ct. 764, wherein it was stated: "A grand jury has broad investigative powers to determine whether a crime has been committed and who has committed it. The jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge." (410 U.S. 1, 15, 35 L.Ed.2d 67, 80, 93 S.Ct. 764, 772.) (See also Branzburg v. Hayes (1972), 408 U.S. 665, 701, 33 L.Ed.2d 626, 651, 92 S.Ct. 2646, 2667.) And again, in United States v. Calandra (1974), 414 U.S. 338, 344-45, 38 L.Ed.2d 561, 569, 94 S.Ct. 613, 618, the Supreme Court noted: "The grand jury's sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence * * *." The Standards Relating to the Administration of Criminal Justice of the American Bar Association (The Prosecution Function, Standard 3.6 (1971)) state that a prosecutor should present to a grand jury only evidence which he believes admissible at trial. It recognizes, however, that "in appropriate cases the prosecutor may present witnesses to summarize admissible evidence available to him which he believes he will be able to present at trial."
This court has considered the question on numerous occasions. In People v. Jones (1960), 19 Ill.2d 37, 41, the court examined earlier cases stating that "an indictment will not be quashed unless all the witnesses were incompetent or all the testimony upon which it was found was incompetent [citations]" and noted that "[t]he use of the word `incompetent' with reference to both the witnesses and testimony before a grand jury is misleading." The court then explained that those cases should be interpreted to mean "that `incompetent testimony' before a grand jury is only that testimony given by a witness disqualified by law (such as complete mental derangement); and, therefore, if the witness is competent, his testimony before the grand jury is competent." (19 Ill.2d 37, 42.) Quoting Costello the court held that there was no bar to the return of a true bill based on hearsay evidence alone. The court noted that the "law favors promptness in the dispatch of criminal business of the courts> when in harmony with the effective protection of the rights of the accused and the interests of the public. The delay is great when an accused can assail an indictment on this ground [incompetent evidence] and cause the trial court to review all the evidence presented to the grand jury, as was done in this case. Such procedure adds nothing to the assurance of a fair trial to which the accused is entitled." (19 Ill.2d 37, 43.) The principles of People v. Jones were reaffirmed in People v. Hopkins (1973), 53 Ill.2d 452.
Professor Wigmore noted in his treatise on evidence:
"Proceedings before a grand jury are both `ex parte' and interlocutory; moreover, the grand jury only seeks for a `probable cause'; hence, on all principles, the jury-trial rules of Evidence should not apply. Moreover, in point of policy, no rules should hamper their inquiries, nor need a presentment amounting only to probable cause be based on a system of rigid sifting of evidence * * *." (1 Wigmore, Evidence sec. 4, at 21 (3d ed. (1940).)
We agree "on all principles" that the holdings of Costello, Jones and Hopkins apply the proper rule and are dispositive of the contention that an indictment may not be based on hearsay.
Secondly, the circuit judge stated that he dismissed the indictment because the prosecution did not affirmatively disclose to the grand jury the hearsay nature of its evidence. In support of this reasoning, defendant relies on United States v. Estepa (2d Cir. 1972), 471 F.2d 1132, and United States v. Basurto (9th Cir. 1974), 497 F.2d 781. Both cases have been readily distinguished by the courts>, and the validity of their holdings has been questioned in light of subsequent Supreme Court cases (see United States v. Marchand (2d Cir. 1977), 564 F.2d 983, 1001 n. 29, cert. denied (1978), 434 U.S. 1015, 54 L.Ed.2d 760, 98 S.Ct. 732, re Estepa, and United States v. Bracy (9th Cir. 1977), 566 F.2d 649, 655, re Basurto), but even assuming their continued vitality, neither supports the trial court's ruling. Estepa held that an indictment must be dismissed when the grand jury has been misled into thinking that it is hearing the direct evidence of an eyewitness when it is not. However, the court noted that "`[t]here is no affirmative duty to tell the grand jury in haec verba that it is listening to hearsay,' United States v. Malofsky, 388 F.2d 288, 289 (2d Cir.), cert. denied, 390 U.S. 1017, 88 S.Ct. 1273, 20 L.Ed.2d 168 (1968) * * *." (471 F.2d 1132, 1136.) In Basurto, the court merely held that due process is violated when a defendant must stand trial on an indictment which the government knows is based on material, perjured testimony, but the court noted that "no independent inquiry may be made to determine the kind of evidence considered by the grand jury in making its decision. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). To do so would further invade the independence of the grand jury. The holding reached by this court does not affect that established rule." 497 F.2d 781, 785.
Here, there clearly was no attempt to mislead the grand jury. Its members could not, in our judgment, have thought from the investigator's statements that he was relating his personal observations of the incident. (See United States v. Beltram (2d Cir. 1968), 388 F.2d 449, 451, cert. denied (1968), 390 U.S. 1017, 20 L.Ed.2d 168, 88 S.Ct. 1273; 391 U.S. 955, 20 L.Ed.2d 869, 88 S.Ct. 1860.) At the outset, he told the grand jury that he was the officer assigned to investigate the stabbing incident, and it is therefore quite apparent that his testimony was not direct evidence but information gathered by his investigation after the stabbing had occurred. The investigator's testimony was in response to a request to "summarize" what his investigative work had produced. Neither the prosecutor nor he represented the testimony as eyewitness testimony. Indeed, this is obvious from the nature of the testimony itself; for example: "Her husband, Franklin, arrived at the back door; found it locked and subsequently broke the ...