APPEAL from the Circuit Court of Kane County; the Hon. JAMES
F. QUESTCH, Judge, presiding.
MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the circuit court of Kane County quashing the indictment against the defendant, Scott Lee Miller. The indictment returned by the grand jury had charged the defendant with reckless homicide. (Ill. Rev. Stat. 1979, ch. 38, par. 9-3(a).) The defendant filed a motion to quash the indictment. The defendant's motion recited that it was brought pursuant to sections 114-1(a)(5) and 114-1(a)(9) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 114-1(a)(5) and 114-1(a)(9)).
Section 114-1(a)(9) provides for the dismissal of an indictment if it is based solely on the testimony of an incompetent witness. Incompetent testimony before a grand jury is only that testimony given by a witness disqualified by law, such as complete mental derangement. (People v. Jones (1960), 19 Ill.2d 37, 41-42.) The defendant's motion to quash makes no such allegations, nor did the trial court quash the indictment on the basis of this section. Furthermore, on appeal the defendant has not asserted that section 114-1(a)(9) is an appropriate ground to quash the indictment. Therefore, we consider the motion as having been brought pursuant to section 114-1(a)(5) only.
Section 114-1(a)(5) provides, in substance, that upon a written, pretrial motion of the defendant, the court may dismiss a grand jury indictment if in returning the indictment the grand jury acted contrary to article 112 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1979, ch. 38, art. 112), and if such action resulted in a substantial injustice to the defendant.
The defendant's motion to quash alleges two violations of article 112. First, he alleges that the grand jury violated section 112-4(c) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 112-4(c)) in that the assistant state's attorney, in response to questions asked by the grand jury, gave unsworn testimony. Secondly, the defendant alleges a violation of section 112-7 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 112-7) in that testimony was given and discussions regarding proofs were held off the record.
The trial judge reviewed the transcript of the grand jury proceedings and dismissed the indictment on the grounds that section 112-4(c) and section 112-7 of the Code had been violated.
On appeal, the State first contends that the trial court erred in dismissing the indictment due to the alleged violation of section 112-7 of the Code. Section 112-7 provides: "A transcript shall be made of all questions asked of and answers given by witnesses before the grand jury." (Ill. Rev. Stat. 1979, ch. 38, par. 112-7.) In striking the indictment, the trial court construed section 112-7 as requiring that the entire proceedings before the grand jury, excluding the deliberative process of the grand jury itself, be recorded and transcribed. A reading of the section indicates that there is no such requirement. The section requires only that "all questions asked of and answers given by witnesses before the grand jury" be recorded and transcribed. Ill. Rev. Stat. 1979, ch. 38, par. 112-7; People v. Haag (1979), 80 Ill. App.3d 135, 138.
The transcript of the grand jury proceeding did contain the sworn testimony of a witness named Ed Guzman. He testified that on August 1, 1980, while he was a passenger in an automobile driven by the defendant, the defendant, who was drunk and driving at an excessive rate of speed, struck and killed a pedestrian. A grand juror then inquired as to whether the defendant was given a breathalyzer test. The assistant state's attorney, who was not sworn as a witness, responded. He stated that the defendant had been given a breathalyzer test and that "the results were .17 and .18. Legal is .10." The grand juror also asked whether the defendant had made a statement to the police. Without being sworn, the prosecutor responded that the defendant had made a statement. Then, before the grand jury, he summarized a statement that the defendant allegedly made to the police. The prosecutor summarized as follows:
"All he stated essentially was he was with Mr. Guzman. He corroborated Mr. Guzman's story that he left the house to go buy beer and that he was driving Mr. Guzman's car. They left Chris' Tap, and Mr. Miller said he was driving. He stated he then drove the car north on Hill which would have placed him in the area, then left on South. He denied having an accident and stated he never hit anybody. He was asked if he thought he was under the influence of liquor and unfit to drive. He stated he was and thought he was unfit to drive at the time he was driving."
Another grand juror then asked Mr. Guzman whether he owned the vehicle the defendant was driving. The witness replied, "I sold him the car." At the end of the proceedings, a grand juror made the following comments to Mr. Guzman:
"I wondered why you took a chance. We got it first that it was your car. We didn't know about the sale until you told us."
The defendant's motion to quash the indictment alleged that this juror's remark concerning the ownership of the vehicle indicated that there must have been testimony given off the record in violation of section 112-7. A fair reading of the entire transcript, however, indicates that the juror probably garnered the information concerning the ownership of the vehicle from the prosecutor's summary of the statement allegedly made by the defendant to the police.
In a motion to quash an indictment pursuant to section 114-1(c)(5), the burden of proving the violation of article 112 rests on the defendant and may not be based upon speculation. (People v. Haag (1979), 80 Ill. App.3d 135, 138.) Moreover, the defendant must demonstrate that the impropriety resulted in a substantial injustice to the defendant. Ill. Rev. Stat. 1979, ch. 38, par. 114-1(a)(5).
• 1 Because the juror's comment could easily be explained from an examination of the entire transcript, and because the defendant has produced no other evidence to indicate that there were unrecorded questions asked of or answers given by witnesses before the grand jury, the defendant has failed to demonstrate a violation of section 112-7. The trial court's finding that there was ...