Appeal from the Circuit Court of Macon County; the Hon. Jerry
L. Patton, Judge, presiding.
JUSTICE SPITZ DELIVERED THE OPINION OF THE COURT:
On January 28, 1986, defendant Goodwin was called as a witness in the prosecution of Ricky Talley. After identifying Talley in court, Goodwin refused to testify. A public defender was appointed to represent Goodwin. The State made an offer of immunity in an attempt to compel Goodwin to testify. The court ordered Goodwin to testify. Goodwin refused to testify, and the court found him in direct contempt for his refusal. (Ill. Rev. Stat. 1985, ch. 38, par. 1-3.) On January 30, 1986, the court held a hearing, and a sentence of 179 days of incarceration was imposed for contempt, to be served consecutively to an eight-year sentence which had been imposed on November 13, 1985, for a felony conviction. Notice of appeal was filed on February 28, 1986.
Defendant Smith had been called as a witness in a December 23, 1985, trial of Ricky Talley, which had ended in a mistrial. Smith had previously been a co-defendant in the case, but had entered a guilty plea to one of the pending charges, and had been sentenced to serve a term of five years' imprisonment. Pursuant to the plea agreement, defendant Smith agreed to testify against Talley. In that December 23, 1985, proceeding, Smith acknowledged being present when a home invasion had taken place, but pleaded the fifth amendment in response to further questions. Smith was again called to testify as a witness for the State in the prosecution of Talley on January 28, 1986. During the January 28, 1986, proceeding, the State made an offer of immunity in an attempt to compel Smith to testify. Counsel was appointed to represent Smith, and after consultation, Smith continued to refuse to testify. He was held by the court to be in direct contempt for his refusal to testify (Ill. Rev. Stat. 1985, ch. 38, par. 1-3). On January 31, 1986, a sentencing hearing was held and a sentence of 179 days of incarceration was imposed, to be served consecutively to the sentence already imposed as the result of Smith's guilty plea. Notice of appeal was filed on February 28, 1986.
On appeal, defendants argue that the trial court erred in ordering them to testify, and in holding them in contempt for failing to testify, because the immunity offered by the State and granted by the court did not meet the statutory requirement for immunity.
Section 106-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 106-1) provides:
"In any investigation before a Grand Jury, or trial in any court, the court on motion of the State may order that any material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce."
Section 106-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 106-2) provides:
"Such order of immunity shall forever be a bar to prosecution against the witness for any offense shown in whole or in part by such testimony or other evidence except for perjury committed in the giving of such testimony."
The Illinois Supreme Court has held that these statutory provisions provide transactional immunity. People ex rel. Cruz v. Fitzgerald (1977), 66 Ill.2d 546, 550, 363 N.E.2d 835, 837.
Regarding Goodwin, the following colloquy ensued at Talley's trial:
"THE COURT: And would you spell out for the record what exactly you are offering in the form of immunity that you are asking the Court to grant the order of immunity?
[ASSISTANT STATE'S ATTORNEY]: We are asking for a grant of immunity for any charge that may arise out of this testimony in any what [sic] whatsoever except for the charge of perjury. We'll not prosecute this defendant for that.
THE COURT: Show that offer by the State and that order shall be granted. The witness, Mr. Goodwin, shall be grant immunity on any questions which the State might ask for which criminal prosecution might be brought except for the charge of perjury."
Following this colloquy, both defendant's attorney and the attorney who was representing Talley informed the court that the State's offer and the court's grant of immunity was use immunity as opposed to transactional immunity, and that there was no statutory authority for such a grant of immunity. The assistant ...