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10/26/87 the People of the State of v. Brian Foley

October 26, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BRIAN FOLEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

515 N.E.2d 351, 162 Ill. App. 3d 282, 113 Ill. Dec. 542 1987.IL.1589

Appeal from the Circuit Court of Kane County; the Hon. Barry E. Puklin, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. REINHARD and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

In a bench trial, the defendant, Brian Foley, was convicted of two counts of home invasion and two counts of armed robbery and was sentenced to concurrent terms of seven years' imprisonment for each offense. He appeals, contending that the home invasion convictions cannot stand because they are based upon new indictments returned by the grand jury during the trial and that the armed robbery convictions were barred by principles of double jeopardy.

On November 13, 1984, the grand jury returned two separate indictments against the defendant, a single-count indictment for a home invasion in St. Charles, Illinois, and a three-count indictment for a home invasion in Sleepy Hollow, Illinois, and the armed robbery of two persons in the home.

The indictment in case No. 84 -- CF -- 780 (St. Charles) alleged that on November 5, 1984, defendant had committed the offense of home invasion "in that he, not a peace officer acting in the line of duty, knowingly entered, without authority, the dwelling place of Patsy Ballard, having reason to know others to be present within that dwelling while armed with a dangerous weapon, a gun." Count 1 of the indictment in case No. 84 -- CF -- 781 (Sleepy Hollow) alleged that on October 31, 1984, defendant had committed the offense of home invasion "in that he, not a peace officer acting in the line of duty, and without authority, entered the dwelling place of James W. Miller, located at 121 Rainbow Drive, Sleepy Hollow, Kane County, Illinois, having reason to know others to be present within that dwelling while armed with a dangerous weapon, a gun." Counts 2 and 3 charged defendant with the armed robbery of James and Martha Miller, who were present in the home on that date.

Prior to trial, the State filed a motion for joinder of the trial of this defendant for the offenses charged in the two indictments with the trials of two other defendants who had been charged by separate indictments for the same offenses, and it was so ordered. Ultimately, however, as each defendant had separate counsel and was not ready for trial at the same time, the defendants were tried separately.

Trial of defendant Foley's joined cases commenced on July 15, 1985, before the court, and the State called three witnesses who were sworn and testified relating to the home invasion and armed robbery offenses charged in indictment No. 84 -- CF -- 781 (Sleepy Hollow). Trial was recessed on July 16, before the State had completed its case, and did not resume until August 30, 1985. At that time, the trial Judge was advised that two new "amended" indictments relating to the Sleepy Hollow and St. Charles offenses for which defendant was on trial had been returned by the grand jury. Amended indictment No. 84 -- CF -- 781 (Sleepy Hollow) realleged the armed robbery counts as in the original indictment and added to the home invasion count the phrase "used force or threatened the use of force upon the person of James Miller," a necessary element which had been omitted from the statement of the offense in the original indictment. Amended indictment No. 84 -- CF -- 780 (St. Charles) similarly added to the home invasion count the allegation "used force or threatened the use of force upon the person of Patsy Ballard," which had been omitted from the original indictment. A second count was added to the amended indictment relating to the St. Charles occurrence alleging that defendant also committed the offense of home invasion by entering the dwelling of Patsy Ballard and causing injury to her.

Defendant moved to quash the amended indictments, arguing that as trial had commenced jeopardy had attached to each of the offenses charged in the original indictments relating to the Sleepy Hollow and St. Charles offenses and that the State was not authorized to amend the indictments during trial to correct the substantive defect in its charges of the offense of home invasion by adding the omitted essential element. Defendant's counsel candidly acknowledged in the trial court that he had been aware of the omission of the essential element in both original indictments where they sought to allege the offense of home invasion, and that he had intended to move to quash those counts at the close of the State's evidence.

The assistant State's Attorney agreed that both original indictments were fatally defective as to the home invasion counts and argued that the State could file an amended indictment returned by the grand jury at any time. The prosecutor also disputed whether the Sleepy Hollow and St. Charles indictments were joined for trial, and, as no evidence had yet been presented as to the St. Charles home invasion charge, asserted that jeopardy had not attached to it.

The trial court denied defendant's motion to quash the amended indictments, finding that as the original indictments, at least those counts charging home invasion, were defective, the court did not acquire jurisdiction over the cases until the filing of the amended indictments. It reserved ruling on the joinder issue, and the prosecutor indicated the State would not seek a nolle prosequi of either the original or amended indictments until the court ruled on the joinder question.

When the trial resumed on October 24, 1985, the State presented its witnesses for the St. Charles charges and rested. The trial next continued on November 15, 1985, when defendant renewed his motion to dismiss the amended indictments. The trial court first determined that the two original indictments had, in fact, been joined for trial, then denied defendant's motion to dismiss, finding again that it lacked jurisdiction of the original indictments for failure to adequately state the home invasion offenses and acquired jurisdiction of the offenses for the first time ...


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