APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
The State appeals the dismissal of an indictment charging defendants with deviate sexual assault and the issue presented is whether, under all the facts and circumstances, the five month interim between the occurrence and the indictment deprived them of due process.
It appears that at Cook County Jail, tier E-2, during the midnight shift on September 8, 1976, four inmates (later identified as Charles Latimore, David Rogers, William McGhee, and Jessie Reed) *fn1 escorted another inmate (Kenneth Skawinski) to an empty cell. Shortly thereafter, a jail guard returning from lunch break with his superior observed four men and then Skawinski leave the cell. The guard noticed that Skawinski had perspiration rolling down his forehead and appeared to be shaking, nervous, and in a state of shock. He questioned Skawinski, who first refused to tell what had happened; but, after being promised protection, said that four men had taken him from his cell at knifepoint and that two of them had had anal intercourse with him. He indicated that he could positively identify one of them by a tatoo on his chest.
Later, during the course of a five-day period, Charles Sanders, a jail investigator, took statements from defendants and Reed. Rogers stated that he and Latimore had anal intercourse with Skawinski; that McGhee and Reed were present; but that no force was used in achieving their purpose. Reed indicated that it was Latimore, McGhee, and Rogers who took Skawinski to the empty cell and then ran away when the guard approached. Latimore stated that he took no part in the incident but observed Rogers, Reed and McGhee escort Skawinski to the empty cell. He heard Skawinski being given the option of oral or anal intercourse and choosing the latter. McGhee stated that Latimore, Rogers and Reed asked him to join in an assault upon Skawinski, but he refused. He did, however, observe Rogers having intercourse with Skawinski.
On October 26, the jail closed its investigation and, on November 15, sent the accumulated data to the State's Attorney's office. Its file included among other things several declarative statements that Reed, Rogers, Latimore and McGhee had been positively identified as the assailants, but these statements did not reveal whether the identifications were based upon the observations of Skawinski or jail guards or upon the statements by which defendants implicated each other. In summation, the investigators reported that the absence of the guard on tier E-2 fostered the occurrence but that they were unable to determine whether Skawinski's participation was willing or the result of force.
As with a number of other prior complaints of deviate sexual assault forwarded by the jail's internal investigation unit, the State's Attorney's office began its own investigation to determine whether the alleged assailants should be prosecuted. It appears that several weeks were consumed in locating the jail investigator (Sanders) who was no longer employed at the jail, following which, in late December, the sitting grand jury requested that all matters other than pending investigations against jail officials not be presented. Thus, Sanders and Skawinski did not testify until the new grand jury was impanelled in January 1977. On January 25, a true bill was voted against defendants, and the indictment was returned on February 1.
Defendants were arraigned on February 10, at which time counsel was appointed, but Latimore changed attorneys on May 12. On June 9, each defendant filed a motion for pretrial discovery none of which expressly or impliedly requested a list of prisoners housed on tier E-2 on the date of the occurrence. However, on August 25, 1977, Latimore filed a motion to dismiss the indictment based upon the following: (1) that the preindictment delay; i.e., September 8, 1976, to February 1, 1977, was unreasonable and constituted a denial of due process; (2) that inmates of tier E-2, on the date of the alleged occurrence, whose testimony would exculpate him were released from custody, transferred to other correctional institutions, or otherwise unavailable; and (3) that his inability to ascertain the identity of such witnesses has resulted in substantial prejudice.
On September 26, 1977, he filed a supplemental petition alleging that two persons known to him only as "Treaty" and "Guy Klan" were the individuals who assaulted Skawinski; that he last saw these men in Cook County Jail prior to his transfer from that institution in December 1976; that since returning to the jail upon being indicted in this cause, he has been unable to locate "Treaty" or "Guy Klan" within that institution; and that his "inability * * * to ascertain the identity of the aforementioned individuals has resulted in substantial prejudice to [his] right to a fair trial in violation of the 5th Amendment of the United States Constitution."
At the hearing on his petitions, Latimore agreed to stipulate to the State's Attorney's summation of the investigatory steps taken; i.e., Sanders' initial investigation, transmission of his report to the State's Attorney's office, commencement of investigation by that office, search for Sanders, indictment by the January grand jury. However, he later objected to portions of the recitation on the ground that knowledge of a law enforcement agency is imputed to the prosecution and therefore the need for any investigation beyond that done by the jail investigatory staff was unnecessary and cannot be considered as being reasonable. The trial court granted Latimore's motion to dismiss the indictment on grounds that under the facts and circumstances preindictment delay "seriously hampered" and possibly destroyed the defense.
Within 30 days, the State filed a motion to vacate the dismissal, supported by two affidavits one of Robert Glotz, an acting superintendent of the jail, which stated that a daily record called a tier sheet containing the names of all inmates confined on a given tier was kept in the ordinary course of business; that such sheets are kept for a period of six months and then destroyed; that the tier sheets compiled on September 8, 1976 (the date of the alleged occurrence here), would have been destroyed in the ordinary course of business on or about March 31, 1977; that no demand or request was made for the September 8, 1976, tier sheet compiled for tier E-2 until the State's subpoena duces tecum (on August 25, 1977) required its production at which time the sheet had already been destroyed.
The second affidavit was that of the State's Attorney responsible for investigating the Skawinski complaint. It outlined the investigative steps taken and commented concerning similar complaints of deviate sexual assault forwarded by the jail's investigative staff which, after further investigation, were not prosecuted because of a lack of evidence. Attached as exhibits to this affidavit were the memorandum of the jail's investigatory unit regarding the Skawinski complaint and a reconstruction of the destroyed tier sheet.
At the hearing on the motion to vacate, Eugene Kostelnak, an investigator for the State's Attorney's office, testified that he determined from entries in the tier book that 61 inmates were housed on tier E-2 on September 8, 1976; that from records indicating the dates on which inmates had visitors, received supplies, or were involved in incidents such as fights, he was able to reconstruct a list of 60 such inmates; and that, in addition to supplying the reconstructed tier sheet, those cards of the prisoners on the list which bore photographs were xeroxed. During cross-examination, he testified that only those inmates present for the midnight shift were included. The prosecutor then stipulated that the reconstruction of the list was not requested until after the date on which Latimore's indictment had been dismissed. Kostelnak, recalled for examination by the trial court, further testified that he knew for a fact that the 60 persons named on the reconstructed list were present on tier E-2 at the time in question but admitted that he personally did not make the entries in the records which he used to compile the list and that under the circumstances he could not testify to the accuracy of such entries. On this basis, the trial court denied the motion to vacate the dismissal of the indictment as to Latimore and then also dismissed the indictment as to Rogers and McGhee.
The State contends that the trial court erred in dismissing the indictment. Its position is that the delay was necessary and reasonable; that defendants failed to demonstrate actual and substantial prejudice resulting from the delay; and, alternatively, that if there were any ...