Appeal from the Circuit Court of Cook County; the Hon. Richard
J. Fitzgerald, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Cook County holding Constantine August Taddeo and Joseph Bronge, two grand jury witnesses (hereinafter referred to as defendants), in contempt of court for refusing to testify before the grand jury. For the reasons stated below, we affirm in part, reverse in part and remand for further proceedings.
Defendants were called before the Extended March 1982 Cook County Grand Jury investigating the disappearance of Salvatore Pullia. Both asserted their fifth amendment privilege against self-incrimination and refused to answer the questions asked of them. On April 30, 1982, the State requested a grant of immunity (Ill. Rev. Stat. 1981, ch. 38, par. 106-1) for each witness. Both were granted immunity pursuant to court order.
Appearing before the grand jury with grants of immunity, both again refused to answer the questions put to them. Instead, they objected, stating:
"I respectfully refuse to answer the questions because your inquiry is based upon illegal electronic surveillance obtained by violation of Title 18 of the United States Code, Section 2510 and the following sections and in particular Section 2515 and hereby make a claim according to Title 18, United States Code, Section 3504."
On May 12, 1982, the State presented petitions and affidavits to the circuit court for a rule to show cause for each defendant. They replied both in writing and at the hearing for contempt that they were not in violation of the circuit court's immunity order because the grand jury questions were based on illegal electronic surveillance. (18 U.S.C. § 2510 et seq.; sec. 3504 (1976).) The State argued their contentions were "bare claims" not sufficient to place a burden on the State to disprove the contentions of illegal surveillance. The assistant State's Attorney also stated:
"On the other hand, your Honor, I can say under oath as an officer of the Court, if need to be sworn in, the State has not applied for nor have they used any eavesdropping devices to obtain any evidence which is the basis for any of the questions for either [defendant].
The State has not been provided with any information from the Federal Government that they have obtained by electronic eavesdropping or wiretapping which is the basis for any of our questioning of [the defendants]."
During the hearing, counsel for defendants acknowledged that the claims were not substantiated, but that they could be verified.
The circuit court found the State's in-court oral statement adequately met defendants' claim of illegal electronic surveillance. It then held defendants to be in contempt of court unless they purged themselves by testifying before the grand jury. Upon the representations of counsel that defendants would stand on their claims, the circuit court found them in contempt of court.
An oral motion to vacate the orders on immunity and contempt, the petitions for rule to show cause order and to quash the grand jury subpoenas was denied. Enforcement of the order of contempt was stayed pending this appeal.
Two issues are raised by defendants: (1) whether the statutory scheme for granting immunity in Illinois to "material witnesses" is constitutional; and (2) whether defendants were properly held in contempt of court where the State made an oral, in-court denial of the witnesses' claims of illegal electronic surveillance.
Defendants argue that section 106-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 106-1), granting immunity to a "material witness," is unconstitutional, violating the fifth amendment of the United States Constitution and article I, sections 2 and 10 of the Illinois Constitution. It is argued that the granting of immunity to a "material witness" under this statute is not coextensive with the privilege against self-incrimination. (See Kastigar v. United States (1972), 406 U.S. 441, 32 L.Ed.2d 212, 92 S.Ct. 1653.) Defendants' ...