Appeal from the Circuit Court of McHenry County. Nos. 93-CF-132, 93-CF-133. Honorable Henry L. Cowlin, Judge, Presiding.
Justice Bowman delivered the opinion of the court: Geiger and Doyle, JJ., concur.
The opinion of the court was delivered by: Bowman
JUSTICE BOWMAN delivered the opinion of the court:
Defendants, Randall Beu and Herbert Pitzman, were charged by indictment with eavesdropping (720 ILCS 5/14-2 (West 1992)). Pursuant to defendants' motion, the trial court dismissed the indictment. The State appeals, contending that the court erred in dismissing the indictment based on a finding of a substantial denial of due process.
Defendants Pitzman and Beu are the chief and administrative sergeant, respectively, of the Woodstock police department. The charges in this case arose from the alleged taping of calls on an unlisted, nonemergency telephone line which was used by officers, arrestees and others for personal telephone calls.
We first summarize briefly the evidence before the grand jury. At the relevant time there were six telephone lines into the Woodstock police department. Emergency calls came in on one of two 9-1-1 lines. Lines numbered 338-2131, 338-2132, and 338-2133 were listed nonemergency numbers. Finally, 338-7799 was an unlisted, nonemergency number.
Several officers testified that as part of their training and orientation with the Woodstock police, they were instructed to use 338-7799 for personal calls, since this line was untaped. This was confirmed by memoranda issued by the chief. The officers testified that they had, in fact, used this line for personal calls with friends and relatives. These calls were personal and confidential. The officers did not believe that the calls were being taped and would not have made such calls on that line had they known it was being taped. This line was also used by representatives of the Fraternal Order of Police to conduct union business at a time when negotiations for a new collective bargaining agreement were taking place.
In addition, officers instructed arrestees to use this line to contact their relatives or attorneys. The officers believed that this procedure would protect the arrestees' privacy, since the line was supposedly untaped. In addition, officers occasionally used the line to verify bank alarms.
On or about August 11, 1992, the officers became aware that 338-7799 was in fact being taped. On that date, defendant Pitzman informed an officer that he had heard derogatory comments about Sergeant Beu from listening to tapes of calls made over that line. The grand jury also heard Pitzman's testimony in a related civil case in which he acknowledged authorizing taping of calls on the 338-7799 line.
The grand jury returned a 10-count indictment against both defendants. The parties engaged in reciprocal discovery. Defendants attached to their discovery response a document entitled "Intergovernmental Agreement Between THE COUNTY OF McHENRY and CITY OF WOODSTOCK for Call Handling for Enhanced 9-1-1 Emergency Communications." As the title implies, the agreement provides procedures for processing 9-1-1 calls within McHenry County. The agreement does not indicate who drafted it. It is signed by Ann S. Hughes, county board chairman on behalf of McHenry County, Stephen M. Kite, chairman, on behalf of the McHenry County emergency telephone systems board, and Pitzman on behalf of the Woodstock police department. Defendants also attached a letter from Assistant State's Attorney Mary Kay Walter forwarding a copy of the agreement to Pitzman. The State did not tender the agreement to defendants in its discovery response.
Defendants moved to dismiss the indictment, alleging a substantial denial of due process in the course of the grand jury proceedings. Defendants argued that they acted in the reasonable belief that the intergovernmental agreement required the taping of all incoming calls to the Woodstock police department. Specifically, defendants cited the following portions of the agreement:
"All calls of an administrative or non-emergency nature shall be referred to Woodstock's published non-emergency telephone number.
"The County of McHenry shall cause each McHenry County PSAP Center (including the County PSAP Center) to keep all records, times, and places of all calls for a period of no less than one (1) year, except for recording tapes of all calls which shall be retained a minimum of no less than thirty (30) days. It shall be the responsibility of Woodstock to maintain the report of the call and the Disposition of each call received."
Defendants contended that the State's Attorney's office requested them to comply with the intergovernmental agreement, then prosecuted them for the very conduct which the agreement required. Defendants further alleged that the prosecutor informed the grand jury that it could subpoena any documents it wished, but failed to inform it of the existence of the intergovernmental agreement. Finally, defendants argued that they were prejudiced because the State failed to tender the ...