APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
LEIFHEIT, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
In these consolidated cases, the State appeals from orders of the circuit court of Kane County dismissing certain counts of indictments returned by the grand jury against defendants, Marvin Reed and Frederick E. Rodgers, on the grounds no evidence was presented to the grand jury in support of the charges.
Defendant Marvin Reed was charged by an 11-count indictment with felony theft and conspiracy to commit felony theft of a motor vehicle. He moved to dismiss three of the conspiracy counts in the indictment, contending that no evidence supporting those charges was presented to the grand jury. Counsel for defendant advised the trial court in oral argument of the motion that after reading nearly 600 pages of grand jury testimony presented in the case he found no evidence of a conspiracy between his client and those persons named in the indictment as co-conspirators. The State argued, as it does on appeal, that the trial court was not authorized to inquire into the sufficiency of the evidence considered by the grand jury. The trial court, without reading the transcripts of the grand jury testimony and in apparent reliance upon defense counsel's assessment of the evidence considered by the grand jury, rejected the State's argument and dismissed three of the five conspiracy counts in the indictment against Reed.
Defendant Frederick E. Rodgers was charged by an indictment returned by a different grand jury with conspiracy to commit theft of a motor vehicle. He too sought dismissal of the indictment on the grounds there was no evidence to support that charge in either the testimony heard by the grand jury or in reports furnished to defendant by the State. Rodgers' motion to dismiss was heard by a different circuit judge than had heard the similar motion in the associated Reed case. Being aware of the adverse ruling made there, the State argued alternately that the trial court was not authorized to inquire into the sufficiency of the evidence before the grand jury and, also, that there was in fact sufficient evidence before the grand jury of the conspiracy charge against defendant Rodgers to support the indictment. The trial judge reviewed the grand jury transcripts and thereafter dismissed the indictment against Rodgers, citing a lack of evidence to support it.
The State contends these courts> erred in dismissing the charges against defendants, asserting they were precluded by established case law from inquiring into the sufficiency of the evidence considered by a grand jury. (See, e.g., People v. Creque (1978), 72 Ill.2d 515, 382 N.E.2d 793, cert. denied (1979), 441 U.S. 912, 60 L.Ed.2d 384, 99 S.Ct. 2010.) Defendants contend that the requirements of due process and the Illinois statutes require that some evidence be presented to a grand jury and that a court has inherent power to dismiss an indictment where no evidence to support the charges was heard by a grand jury. (See e.g., United States v. Costello (2d Cir. 1955), 221 F.2d 668, aff'd on other grounds (1956), 350 U.S. 359, 100 L.Ed. 397, 76 S.Ct. 406; Ill. Rev. Stat. 1979, ch. 38, par. 112-4.) It appears that the issue, as framed by defendants, is whether a trial court may look behind an indictment which is valid on its face to determine if any evidence was presented to a grand jury to support a charge.
We note initially that the State's alleged failure to offer any evidence in support of these charges to the grand jury is not included in the specified grounds upon which an indictment may be dismissed found in section 114-1(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1979, ch. 38, par. 114-1(a)). It has been held, nevertheless, that a trial court has inherent authority to dismiss an indictment when there has been an "unequivocally clear denial of due process." (People v. Lawson (1977), 67 Ill.2d 449, 456, 367 N.E.2d 1244, 1247; People v. Leannah (1979), 72 Ill. App.3d 504, 506, 391 N.E.2d 187, 189.) Trial courts> have been cautioned, however, to proceed with restraint in such cases, and a due process violation may be remedied only when it can be ascertained with certainty. Lawson, 67 Ill.2d 449, 457, 367 N.E.2d 1244, 1247.
• 1 The 1970 Illinois Constitution, upon which defendants must rely, *fn1 guarantees persons will not be deprived of their liberty without due process of law. (Ill. Const. 1970, art. I, § 2.) It also provides that no person may be held to answer to a felony charge unless he has either been indicted by a grand jury or given a prompt preliminary hearing to establish probable cause where charges have been directly presented to the circuit court by complaint or information filed by the State's Attorney. (Ill. Const. 1970, art. I, § 7.) When the State has chosen to proceed by first presenting a case to a grand jury, and it returns an indictment, a defendant is not entitled to a further hearing in court to test the probable-cause determination made by the grand jury, whether by means of a preliminary hearing (People v. Cawley (1979), 77 Ill. App.3d 780, 784, 396 N.E.2d 865, 868-69; People v. Grew (1979), 69 Ill. App.3d 663, 667-68, 387 N.E.2d 926, 929), or in an evidentiary hearing of a motion to dismiss the indictment. E.g., People v. Creque (1978), 72 Ill.2d 515, 527, 382 N.E.2d 793, 798, cert. denied (1979), 441 U.S. 912, 60 L.Ed.2d 384, 99 S.Ct. 2010; see also People v. Arbogast (1976), 41 Ill. App.3d 187, 191, 353 N.E.2d 434, 438.
We note that although the general assembly is constitutionally empowered to abolish or limit the use of the grand jury (Ill. Const. 1970, art. I, § 7), it has not chosen to do so. Nor has it sought to interpose the requirement of a judicial probable cause hearing following the return of an indictment, regular in form, by a legally constituted grand jury. Defendants concede in the present cases that the indictments are valid on their face.
The grand jury and prosecutor, however, may not proceed in a manner which offends due process of law. (People v. Sears (1971), 49 Ill.2d 14, 36, 273 N.E.2d 380, 392.) Defendants seek to distinguish Creque and earlier cases (see, e.g., People v. Wheeler (1949), 403 Ill. 78, 84 N.E.2d 832; People v. Bladek (1913), 259 Ill. 69, 102 N.E. 243), and contend that the return of an indictment which is not supported by any evidence constitutes a violation of the grand jurors' oaths and of due process. They cite cases from other jurisdictions which lend some support to their arguments. (See United States v. Costello (2d Cir. 1955), 221 F.2d 668, aff'd on other grounds (1956), 350 U.S. 359, 100 L.Ed. 397, 76 S.Ct. 406; Brady v. United States (8th Cir. 1928), 24 F.2d 405; Greenberg v. Superior Court (1942), 19 Cal.2d 319, 121 P.2d 713, and cases cited therein.) Other jurisdictions take a contrary view. See United States v. Addington (10th Cir. 1973), 471 F.2d 560; Annot., 59 A.L.R. 567 (1929), and supplements thereto; see also 42 C.J.S. Indictments & Informations § 24(c)(1) (1944).
A similar issue was presented in People v. Melson (1977), 49 Ill. App.3d 50, 363 N.E.2d 888, where the trial court had dismissed an indictment on the grounds that the grand jury did not have any evidence before it of defendant's mental state, which was an essential element of the offense for which he was indicted. The appellate court reversed, holding that the indictment should not have been dismissed on that ground, citing Costello v. United States (1956), 350 U.S. 359, 100 L.Ed. 397, 76 S.Ct. 406, and People v. Jones (1960), 19 Ill.2d 37, 166 N.E.2d 1. See also People v. Orr (1956), 10 Ill.2d 95, 139 N.E.2d 212, cert. denied (1957), 353 U.S. 987, 1 L. Ed.2d 1145, 77 S.Ct. 1290; People v. Whitlow (1980), 86 Ill. App.3d 858, 411 N.E.2d 1354.
In Costello v. United States, the United States Supreme Court considered whether hearsay evidence alone could support an indictment and responded affirmatively, stating:
"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. This is not required by the Fifth Amendment. 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.
* * * In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial." (Emphasis added.) 350 U.S. 359, 363-64, 100 L.Ed. 397, 402-03, 76 S.Ct. 406, 408.
The Illinois Supreme Court echoed these views in People v. Jones (1960), 19 Ill.2d 37, 166 N.E.2d 1, and rejected an effort by defendant to inquire into the adequacy and ...