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03/20/89 the People of the State of v. Ellen M. Pisani

March 20, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ELLEN M. PISANI, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

536 N.E.2d 247, 180 Ill. App. 3d 812, 129 Ill. Dec. 563 1989.IL.364

Appeal from the Circuit Court of Du Page County; the Hon. Mary Ellen Provenzale, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

After trial by jury, defendant, Ellen M. Pisani, was convicted of two counts of the offense of harassment by telephone (Ill. Rev. Stat. 1985, ch. 134, par. 16.4-1(2)) and was sentenced to concurrent one-year terms of supervision and fines of $500 on each count. Defendant's post-trial motions in arrest of judgment and for a new trial were denied, and she appeals, contending that the complaint and information in which these charges were made were fatally defective as they did not sufficiently inform defendant of the offense charged. We affirm.

In the criminal complaint, it was alleged that on May 9, 1986, defendant, Ellen M. Pisani, committed the offense of harassment by telephone in violation of section 1-1(2) of "An Act to prohibit the use of telephone . . . lines for the sending of certain messages . . ." (Code) (Ill. Rev. Stat. 1985, ch. 134, par. 16.4-1(2)) in that defendant, "with the intent to harass, used telephone communications for the purpose of harassing John Polo." In the information which was filed as to the other offense, it was alleged that on May 8, 1986, defendant committed the offense of harassment by telephone in that, "Ellen M. Pisani, with the intent to harass, made and used telephone communications for the purpose of harassing John Polo at the called number No. 960-5857," in violation of section 1-1(2) of the Code (Ill. Rev. Stat. 1985, ch. 134, par. 16.4-1(2)).

Defendant argues that, as the charging instruments merely use the statutory language of the harassment by telephone statute, they do not meet the notice requirements of due process as the charges fail to particularize the criminal conduct involved.

When reviewing the sufficiency of a charging instrument which has been challenged by a motion in arrest of judgment (Ill. Rev. Stat. 1985, ch. 38, par. 116-2), the court must determine whether the complaint or information comports with the statutory requirements that the charge be in writing and that it state the name of the offense, the statutory provision alleged to have been violated, and the nature and elements of the offense pursuant to the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, pars. 111-3(a)(1), (a)(2), (a)(3); People v. Easter (1981), 102 Ill. App. 3d 974, 977, 430 N.E.2d 612). Where the sufficiency of a charge is attacked by a motion in arrest of judgment, the standard for determining whether the information is deficient is whether the elements of the offense as outlined in the statute are set out in the information. If so, the information is sufficient to allow defendant to prepare her defense and to serve as a bar to future prosecution arising from the same conduct. (People v. Testa (1983), 114 Ill. App. 3d 695, 700, 449 N.E.2d 164.) To determine whether these standards have been met, reference must be made to the plain and ordinary meaning of the words of the charging instrument as read and interpreted by a reasonable person. People v. Hayes (1979), 75 Ill. App. 3d 822, 824, 394 N.E.2d 80.

Defendant argues that by failing to include a description of the criminal act, the complaint and information here failed to particularize the criminal conduct involved. However, the charging instruments state defendant used the telephone to harass plaintiff on specific dates. In upholding the constitutionality of the telephone harassment statute, the supreme court concluded that by applying the maxim noscitur a sociis (a word is known by the company it keeps), the words "abuse" and "harass" take color from the word "threaten" and acquire more restricted meanings. People v. Parkins (1979), 77 Ill. 2d 253, 257-58, 396 N.E.2d 22, cert. denied (1980), 446 U.S. 901, 64 L. Ed. 2d 254, 100 S. Ct. 1825.

Defendant makes reference to cases where a charging instrument was determined to be defective even though following the language of the statute where it failed to particularize criminal conduct. However, the cases cited deal with offenses such as perjury, communicating with a juror, reckless conduct, disorderly conduct and obstructing Justice, where conduct is only generally described in the statute and requires clarification in the charging instrument (see People v. Lyda (1975), 27 Ill. App. 3d 906, 912, 327 N.E.2d 494 (indictment for obstructing Justice by destroying physical evidence without describing the physical evidence was held to be insufficient)) or where specific words must be communicated (see People v. Yarbrough (1987), 162 Ill. App. 3d 748, 750, 516 N.E.2d 607 (indictment for communicating with a juror insufficient where it did not allege the communication)). The statute here does not require the communication of specific words and provides that a violation may occur "whether or not conversation ensues." (Ill. Rev. Stat. 1985, ch. 134, par. 16.4-1(2).) There is no requirement that the charging instruments specify the exact means by which this conduct was carried out. People v. Wisslead (1985), 108 Ill. 2d 389, 397, 484 N.E.2d 1081.

The charging instrument is not the sole means of informing a defendant about particulars concerning his case. In the case at hand, defendant conducted extensive pretrial discovery, and, in rejecting defendant's argument at post-trial proceedings, the trial Judge noted that defense counsel was fully aware of alleged statements made by defendant and of the number of witnesses called. The Judge also noted that if defendant desired additional specific information, she could have moved for a bill of particulars (Ill. Rev. Stat. 1985, ch. 38, par. 111-6), although a bill of particulars would not cure an otherwise void charge. People v. Wisslead (1985), 108 Ill. 2d 389, 397, 484 N.E.2d 1081.

As the indictment and information apprising defendant of the offense charged comported with statutory requirements in outlining the elements of the offense and were sufficiently specific to enable her to prepare her defense and to allow for pleading of the judgment as a bar to future prosecution arising from the same conduct, they were sufficient to withstand defendant's motion in arrest of judgment.

Next, defendant argues that the jury instructions for telephone harassment were defective as they failed to describe any criminal act or conduct, a material element of the ...


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