APPEAL from the Circuit Court of Cook County; the Hon. BRIAN
B. DUFF, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 23, 1979.
Philip Grew (defendant) was indicted for intimidation and communicating with a witness. (Ill. Rev. Stat. 1977, ch. 38, pars. 12-6(a)(1) and 32-4(b).) After a hearing, the trial court granted defendant's motion to dismiss the indictment. The People have appealed.
The charges against defendant pertained to Levar Lewis, a prosecution witness in the trial of Ellis McInnis for the murder of Mark Gromer. Defendant was acquainted with both Lewis and McInnis. They had all worked at the same restaurant.
The motion to dismiss the indictment averred substantially that the defendant was entitled to a preliminary hearing and the conduct of the prosecutor which resulted in defendant's failure to receive such a hearing constituted a violation of due process; and also the conduct of the prosecutor interfered with defendant's first amendment rights.
The trial court held a lengthy evidentiary hearing upon the motion to dismiss. The trial court also made oral findings and filed a voluminous written opinion. The trial court found that the "totality of the facts" indicated a "clear abuse of the Grand Jury by the State's Attorney", an improper "denial of a preliminary hearing" and an "infringement of First Amendment Rights" and also a "denial of due process."
Thereafter, the State filed a written motion for reconsideration, rehearing and vacation of the order of dismissal. The motion was supported by a memorandum of fact and law and by an affidavit by Thomas J. McCarthy, an assistant State's Attorney who was assigned to prosecution of the case against McInnis. After hearing extensive argument of counsel, the trial court denied the State's motion.
In their brief in this court, the People contend that defendant had no constitutional right to a preliminary hearing but probable cause was determined by the grand jury and that the trial court erred when it found that the indictment had been obtained by prosecutorial misconduct. Defendant responds that the trial court had power to dismiss the indictment for prosecutorial misconduct and violation of defendant's right to due process of law and that defendant was denied that right; defendant was wrongfully denied his right to a preliminary hearing; the decision of the State to indict defendant directly was based upon constitutionally impermissible motives so that dismissal of the indictment was the appropriate remedy.
The transcript of the grand jury proceedings of September 9, 1977, shows that assistant State's Attorney Robert Fuenty appeared before the grand jury. He called assistant State's Attorney James J. McCarthy as his only witness. Mr. Fuenty advised the jurors that they had the right to subpoena and question any person against whom the State's Attorney was seeking an indictment. He stated the charges against the defendant and read the pertinent statutes to the jury.
Mr. McCarthy testified that Levar Lewis, whom he referred to as a material witness, had been asked by defendant if he intended to be a witness in the case against Ellis McInnis. Lewis had told Mr. McCarthy that the defendant stated he was working for McInnis' lawyer. Lewis also told Mr. McCarthy that defendant had said that he (Lewis) should watch his back and "* * * should not in fact testify against Ellis McInnis."
Mr. McCarthy told the grand jury that on August 26, 1977, Lewis claimed he was shot at by an unidentified male person. Mr. McCarthy stated that Lewis was in protective custody and that after Lewis had informed the State's Attorney of his conversation with defendant an arrest warrant was obtained for the defendant. Mr. McCarthy also testified that the defendant had turned himself in to the Chicago Police and was out on bond.
A juror asked Mr. McCarthy about the statement that the defendant had been working for McInnis' attorney. Mr. McCarthy replied that he had been unable to verify whether "* * * he was in fact working for them" although one of the attorneys had stated that he knew the defendant. When asked if the defendant had revealed whether he had been working for the attorney, Mr. McCarthy replied that the defendant had made no statement after his arrest. Finally, a juror asked if the man who fired the shots at Lewis had been arrested. Mr. McCarthy responded negatively, stating that Lewis was unable to identify the person who had shot at him.
Chester Slaughter, attorney for Ellis McInnis, and James McCarthy both testified at the hearing held by the trial court on the motion to quash the indictment. Mr. Slaughter, the defense attorney in the McInnis trial, testified that he had been contacted by the defendant who had identified himself as a friend of Ellis McInnis. Mr. Slaughter stated that he subsequently met with defendant and they discussed the pending case against McInnis. Defendant told Mr. Slaughter that he knew individuals who had information which could be helpful to McInnis' defense. Mr. Slaughter also testified that he requested the defendant to introduce him to Levar Lewis whom defendant stated he knew. Mr. Slaughter testified that he had told the State's Attorney that defendant had assisted him in the preparation of the McInnis defense. He further testified that after receiving information from the State's Attorney's office that there was an arrest warrant outstanding for the defendant, he told Mr. McCarthy that he would surrender the defendant. Mr. Slaughter testified that he called the defendant at his parents' home in Michigan to tell him about the existence of the warrant.
On redirect examination Mr. Slaughter testified that defendant contacted him because of the conflicting reports contained in the newspapers concerning the murder and ...