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01/18/96 PEOPLE STATE ILLINOIS v. GAVINO BENITEZ

January 18, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
GAVINO BENITEZ, APPELLANT.



Appeal from the Circuit Court of Cook County, the Hon. James Zafiratos, Judge, presiding.

Chief Justice Bilandic delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case.

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

Defendant, Gavino Benitez, was convicted of first degree murder and aggravated battery following a bench trial in the circuit court of Cook County. The appellate court affirmed his convictions. (269 Ill. App. 3d 182, 645 N.E.2d 478, 206 Ill. Dec. 473.) We granted defendant's petition for leave to appeal (145 Ill. 2d R. 315) to address his claim that the circuit court lacked jurisdiction over him because he was never properly charged with any offense. Specifically, defendant asserts that the grand jury never returned an indictment against him for the charged offenses.

FACTS

On October 30, 1991, an assistant State's Attorney appeared before the October 1991 grand jury and requested "a true bill" against Alberto Pacheo, Gavino Benitez, and Javier Jimenez "for the offenses of murder committed against Jose Montez and for the offenses of attempt murder, aggravated battery and armed violence committed against Ivan Amador" on or about October 13, 1991. Evidence was produced in support of these allegations. The grand jury deliberated in private. Afterwards, the grand jury foreperson returned and stated, "true bill."

Indictment number 91-CR-26366 was issued and signed by the grand jury foreperson and the State's Attorney. Notably, this indictment charged Alberto Pacheo alone with the first degree murder of Jose Montez and with the attempted murder, armed violence, and aggravated battery of "Marlo Lopez [sic]." The indictment made no mention of defendant or his codefendant Javier Jimenez. It also wrongly listed Marlo Lopez as the surviving victim. The actual surviving victim was Ivan Amador. Marlo Lopez was a witness who had testified at the grand jury proceedings. This indictment was filed in the circuit clerk's office on November 4, 1991.

Despite the omission of defendant's name on the indictment, on November 27, 1991, the State's Attorney's office notified defendant by letter that a grand jury had returned indictment 91-CR-26366 against him on October 30, 1991. Arraignment was set for December 3, 1991.

Defendant appeared at the December 3, 1991, arraignment with counsel. Codefendant Alberto Pacheo also appeared. The circuit court granted the State leave to file indictment 91-CR-26366. The State tendered copies of this indictment to defense counsel.

As tendered to defense counsel, indictment 91-CR-26366 now charged defendant, along with Alberto Pacheo and Javier Jimenez, with the first degree murder of Jose Montez and with the attempted murder, aggravated battery, and armed violence of Ivan Amador on or about October 13, 1991. This second indictment did not bear the signature of the grand jury foreperson or the State's Attorney. The charges set forth in the second indictment precisely tracked the evidence that the State's Attorney's office had presented to the grand jury. The grand jury had not reconvened prior to the issuance of the second indictment, and there is no record of any motion to amend the original indictment.

Defense counsel acknowledged receipt of the second indictment when it was tendered to him in court. At that time, he also entered a plea of not guilty to the charges.

Defendant's bench trial began 13 months later in January 1993. On the second day of trial, after commencement of the State's case in chief, defense counsel alerted the circuit court that "it had just come to [his] attention that the indictment in this case *** does not contain the name of Gavino Benitez." Defense counsel referred the court to the first indictment, filed on November 4, 1991, which named only Alberto Pacheo. Defense counsel stated that he wanted to obtain the original document and the grand jury transcript to confirm whether the grand jury had in fact returned an indictment against defendant. Defense counsel agreed to allow the trial to proceed with the understanding that he was "not waiving anything."

When the issue was revisited and argued during trial, the circuit court ruled that the second indictment, naming all three codefendants, was valid. The court later adjudged defendant guilty of first degree murder and aggravated battery.

Defendant filed a post-trial motion to vacate his convictions, claiming they resulted from a void and invalid indictment. The circuit court conducted an evidentiary hearing on the matter, in which some of the above facts were revealed.

Additionally, at the evidentiary hearing, defendant called Edwin Anderson, a supervisor in the circuit clerk's office. Anderson testified that a grand jury hears evidence presented to it by the State's Attorney's office. If the grand jury returns a "no bill," the result would be no charges. On the other hand, a "true bill" returned by the grand jury is a determination that certain charges will be brought against certain individuals. Books and records with respect to no bills and true bills are kept by the office of the clerk. Anderson examined these records. The record entitled Clerk's Journal, Grand Jury for October, November of 1991 indicates that a true bill was returned against defendant Gavino Benitez on the three charges of attempted murder, aggravated battery, and armed violence, but not for murder. One of the grand jurors herself, the secretary of the October 1991 grand jury, made this entry in the clerk's journal. Anderson testified that he diligently searched the entire records of the clerk's office and was unable to find any record showing that a true bill had been returned against defendant Gavino Benitez for the charge of murder.

The parties stipulated that Gary A. Pines, the foreperson of the October 1991 grand jury, would testify that he signed the first indictment on or about October 30, 1991. That grand jury then ceased to exist on the last day of October 1991. To the best of his knowledge and belief, he always signed the true bills returned by the grand jury, and no true bill was returned by the grand jury which did not bear his signature.

The parties also stipulated that the assistant State's Attorney who supervised the grand jury unit would testify that he was familiar with the established customs and procedures of the October 1991 grand jury. When the grand jury foreperson announced "true bill" at the end of the grand jury deliberations, he meant that a true bill was voted against all three defendants as requested by the State's Attorney's office. Any no bill issued as to any of the charges would have been specifically delineated. Significantly, this assistant State's Attorney would also testify that the second indictment was prepared by secretaries in his unit of the State's Attorney's office. He offered no further details on the circumstances surrounding the preparation of the second indictment.

During oral argument on the motion to vacate, the State claimed that there simply had been a mistake in the paper work. The State asked the court to disregard the first indictment and to find the second indictment valid. The State emphasized that the second indictment precisely tracked the evidence that was presented to the grand jury, as confirmed by the grand jury transcript. An assistant State's Attorney argued as follows:

"The paper work occurs, the State's Attorney's Office prepares the Indictment charging one person, then they prepare a piece of paper work charging three people with Murder two months later.

They prepared two documents, one they prepare in October or shortly after, maybe early November, but it's again according to normal procedures of the Grand Jury Unit of the State's Attorney's Office. The ...


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