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09/16/96 PEOPLE STATE ILLINOIS v. HENRY

September 16, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
HENRY WEILMUENSTER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County. No. 94--CF--493. Honorable John L. Petersen, Judge, Presiding.

Released for Publication October 16, 1996.

The Honorable Justice Hutchinson delivered the opinion of the court: McLAREN, P.j., and Rathje, J., concur.

The opinion of the court was delivered by: Hutchinson

JUSTICE HUTCHINSON delivered the opinion of the court:

The State appeals from the order of the circuit court of Kane County granting the motion of defendant, Henry Weilmuenster, to dismiss an indictment against him issued by a November 1992 statewide grand jury and originally filed in the circuit court of Cook County on March 18, 1994. We affirm.

On March 22, 1994, the indictment was transferred from the circuit court of Cook County to the circuit court of Kane County for trial. Defendant was charged with one count of calculated criminal cannabis conspiracy (720 ILCS 550/9(b) (West 1992)) and three counts of cannabis trafficking (720 ILCS 550/5.1 (West 1992)). Defendant moved to dismiss the indictment, asserting that he had been granted immunity from criminal prosecution in a Cook County proceeding on June 18, 1993, in return for his testimony before another statewide grand jury. The State responded that, in return for his testimony, defendant had been given only limited "use" immunity (725 ILCS 5/106C--2 (West 1992)) rather than the more complete "transactional" immunity from criminal prosecution (see 725 ILCS 5/106--1 (West 1992)); and that defendant knew "the bounds of the immunity granted to him and agreed to cooperate and testify for the State under a grant of Use Immunity." The State further alleged that the incriminating evidence which led to the indictment against him was obtained independently from his testimony before the grand jury. After an extensive evidentiary hearing regarding the nature and scope of the immunity promised and given to defendant, on August 5, 1994, the Kane County court (the court) granted defendant's motion and discharged him.

The State timely appeals. The thrust of the State's arguments is that (1) the Cook County circuit court granted use immunity and defendant understood its parameters; (2) no hearing was necessary before the Kane County circuit court; and (3) the Kane County court improperly reviewed the findings of the circuit court of Cook County and overturned its findings. We disagree for the reasons that follow.

KANE COUNTY PROCEEDING

At the hearing in the Kane County court, defendant testified that, prior to May 13, 1993, Ron Wilson and Ron Bartlett, agents of the Illinois State Police and a drug enforcement agency, visited him while he was incarcerated in the Department of Corrections (DOC) at Taylorville, seeking information during the course of a criminal investigation. Defendant was going to be charged with conspiracy. When asked if he was threatened, defendant testified: "I was told that shit rolls downhill and I do not want to be at the bottom when it all came down." Defendant made a statement to the officers. Another visit took place at the prison on May 13, 1993.

Defendant testified he had been subpoenaed to testify before a statewide grand jury on June 18, 1993. Defendant, who was handcuffed and shackled, was transported by the State Police and others to a Cook County courthouse. The shackles were removed, but he remained handcuffed. He was placed in a holding cell until he was brought before a judge. Prior to that meeting, defendant met with Amy Bertani, an assistant Attorney General, in an office of the courthouse. An officer was present during the meeting. Defendant testified that he was not advised of his right to have an attorney present. When he asked Bertani whether he needed an attorney, she said, "Not at this time." They discussed a grant of immunity. Defendant testified that he was not familiar with the terms "transactional immunity" and "use immunity" and the difference between these types of immunity was not explained to him prior to appearing before the judge.

Defendant further testified that he was brought into a judge's chambers. The judge (Judge Hett) advised defendant of his fifth amendment privilege not to testify and to remain silent. Defendant expected to exercise his right not to testify. The judge explained that defendant could not be prosecuted for what he was about to say. Bertani and the officer were present during this exchange. Defendant testified that he did not ask to have an attorney present because he was told by Bertani that he did not need one at that time; he was going before a judge to have immunity papers signed and he did not need an attorney for that. Defendant believed he was granted immunity from prosecution.

After defendant testified before the statewide grand jury, he was sent back to the penitentiary at Joliet to serve the remainder of his current sentence. Early in 1994, defendant was charged with offenses for which he was arrested and brought before Judge Petersen in the circuit court of Kane County. Defendant told the court he was 33 years old, had an eighth grade education, and obtained a GED.

On cross-examination, defendant testified that agents Wilson and Pat Farrey, who interviewed defendant in prison on May 13, 1993, told him not to discuss his conversation with anyone else. Defendant eventually met Bertani and again met with Farrey just prior to testifying before the grand jury. Defendant asked Bertani if he needed a lawyer. He was brought before the judge in chambers. When the judge asked if he was going to invoke his fifth amendment privilege against self-incrimination if he were called before the statewide grand jury, defendant stated that was his intention. When asked if he had a lawyer, defendant said he did not have the money for a lawyer. The judge did not ask if he wanted a lawyer. The judge told him that the prosecution would not be able to use anything he said before the grand jury and that he would have to testify if he were granted immunity. Defendant said he understood that. He acknowledged that he gave up his right to talk to a lawyer. The judge signed an order (of immunity).

When agents Wilson and Bartlett visited him in prison, they did not tell defendant he would be given immunity if he talked to them. The first time he heard about immunity was from Bertani, just before he testified, after he indicated he would invoke his fifth amendment privilege.

On redirect examination, defendant testified that, when he was brought before the judge in Cook County, he had a conversation with Bertani and Farrey. Farrey stepped out at some point in the conversation. When defendant asked if he needed a lawyer, Bertani said, "Not at this time." Defendant said he was aware that he had a fifth amendment right to remain silent. Defendant said the reason he told the judge he was not looking for a lawyer was because he was told by Bertani that he did not need one at that time. No one explained the immunity to him, and he did not know the difference between transactional and use immunity.

The State moved for a directed finding in its favor, arguing that it was clear that defendant had been given use immunity in the Cook County proceeding. Defense counsel argued that defendant understood he was given transactional ...


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