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12/15/88 the People of the State of v. Kent Fields

December 15, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KENT FIELDS, DEFENDANT (KEVIN BRACY, CONTEMNOR-APPELLANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

533 N.E.2d 48, 177 Ill. App. 3d 129, 127 Ill. Dec. 430 1988.IL.1799

Appeal from the Circuit Court of Woodford County; the Hon. Richard M. Baner, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and SPITZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

Kent Fields was charged in the circuit court of Woodford County with the offense of burglary. Upon Fields' motion, the place of trial was transferred to Ford County, where a jury trial was commenced with Judge Richard Baner presiding. On April 14, 1987, the State called contemnor Kevin Bracy to testify. He refused to do so, claiming a privilege against self-incrimination. The proceedings were suspended for one day so that contemnor might summon his counsel to advise him. The next day, with contemnor's counsel present, he persisted in his refusal to testify and the court found him in direct criminal contempt. On August 14, 1987, after a sentencing hearing before Judge Baner, defendant was sentenced to 165 days' imprisonment. Our case No. 4 -- 87 -- 0792 is contemnor's appeal from the finding of direct criminal contempt and the sentence imposed.

In addition to refusing to answer the question resulting in the direct criminal contempt order, the contemnor refused to answer three questions subsequently propounded to him. The State then filed three petitions, each requesting contemnor be held to have been guilty of contempt for refusing to answer the respective questions. The petitions were consolidated for a jury trial before Judge Dehner. Over contemnor's objection that the case should be tried in Ford County where the alleged contempts occurred, the case was tried in Woodford County. On October 15, 1987, a judgment was entered on jury verdicts finding contemnor guilty of each of the three contempts. A sentencing hearing was later held with Judge Baner presiding. On November 16, 1987, the court sentenced contemnor to three terms of 13 months' imprisonment to run concurrently with each other and with the sentence for direct contempt but consecutively to any other sentence. Our case No. 4 -- 87 -- 0923 concerns contemnor's appeal from these convictions and sentences. The two appeals have been consolidated.

Contemnor contends on appeal: (1) his refusal to testify was justified by his fifth amendment privilege; (2) the court erred in refusing to permit defendant to present evidence and argue in regard to the finding of direct contempt that his conduct was not contemptuous; (3) ruling that contemnor's refusal to testify constituted more than one contempt deprived him of due process; (4) holding the jury trial in Woodford County deprived contemnor of a right to be tried in Ford County where the offense occurred; (5) introduction of evidence at his jury trial of contemnor's conviction of direct contempt erroneously interjected irrelevant and prejudicial information before the jury; and (6) reversible error resulted when Judge Baner, who was a witness at the jury trial, conducted the sentencing.

Contemnor had earlier been charged with the burglary for which Fields was on trial together with two other burglaries. He had pleaded guilty to one of the charges under a plea agreement pursuant to which the other charges had been dismissed in bar of action. Thus, this testimony in regard to the instant offense could not have incriminated him in regard to the instant offense because he could not be prosecuted for that offense. Nevertheless, contemnor has maintained that proof of his acts in committing burglaries, prosecution for which was barred, could be used to show his modus operandi, intent or knowledge in regard to other burglaries. See People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.

In response to contemnor's assertion that his testimony might incriminate him in other cases, the prosecutor attempted to bestow upon contemnor immunity, which would eliminate any reasonable danger that contemnor's testimony might be incriminating, by making representations he had obtained promises from assistant State's Attorneys in McLean, Peoria, and Tazewell Counties that they would not use evidence of contemnor's conduct in Woodford County in prosecutions against him in their counties. (The questions asked by the State of contemnor all concerned his activities in Woodford County.) However, the contemnor points out that Illinois legislation creating immunity (Ill. Rev. Stat. 1987, ch. 38, pars. 106-1, 106-2) provides only for grants of transactional immunity (People ex rel. Cruz v. Fitzgerald (1977), 66 Ill. 2d 546, 363 N.E.2d 835), and the immunity referred to by the State was clearly only immunity from the use of certain testimony.

We need not analyze in detail any infirmities in the State's theory that contemnor was required to testify as a result of the representations made by the prosecutor. Contemnor was required to testify because he had promised to testify in the prosecution of Fields as one of the conditions of the plea agreement by which his sentence for one burglary was determined and other charges against him dismissed in bar of action. In People v. Goodwin (1986), 148 Ill. App. 3d 56, 499 N.E.2d 119, this court held that a defendant who promises, as a part of a plea agreement, to give testimony in aid of the prosecution waives fifth amendment rights in that respect and is subject to a contempt sanction for refusal to do so.

Contemnor contends that the terms of the plea agreement he entered into did not require him to give the testimony involved here. The testimony sought from contemnor here concerned the conduct of himself and others including Fields in the commission of two burglaries in Woodford County. This information was part of that contained in a statement given by defendant to the State, but that statement also contained information about the commission of other offenses in other counties. In a Discussion of the nature of the plea agreement between Mr. Harrod, contemnor's counsel in that proceeding, and the court, the following was stated:

"THE COURT: Does the statement relate to any other offenses other than [those] that are being either included today ...


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