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People v. Hunter

July 31, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
MICHAEL HUNTER AND JAMES MCGRAW, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Inglis delivered the opinion of the court:

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Appeal from the Circuit Court of Lake County.

Nos. 97--CF--256, 97--CF--257

Honorable John R. Goshgarian, Judge, Presiding.

The State appeals the order of the circuit court of Lake County dismissing with prejudice an indictment for involuntary manslaughter (720 ILCS 5/9--3(a) (West 1996)) against defendants, Michael Hunter and James McGraw.

We affirm.

Defendants were members of the Day By Day Club, a self-help group for alcoholics. The group met in the second story of a building located on Central Avenue, which runs through the heart of the business district in Highland Park.

On April 22, 1995, an officer of the Day By Day Club asked defendants to remove a couch from their facility. Defendants decided to remove the couch through a window overlooking Central Avenue. In a written statement to police, Hunter stated that defendants tied a rope around the couch and lowered it out the window. As defendants lowered the couch, the rope slipped and the couch fell, striking the victim, Benjamin Verde, in the head.

Verde was taken to a hospital, examined, and released that day. On May 1, 1995, Verde returned to the hospital and discovered he had sustained three broken ribs and a cracked vertebra. Verde underwent spinal surgery on May 15, 1995. Verde was readmitted to the hospital on June 27, 1995, and died on July 6, 1995, from renal failure, allegedly caused by his spinal injury.

The State indicted defendants on August 23, 1995 (1995 indictment). Detective William Telone of the Highland Park police department testified before the grand jury on August 23, 1995. One of the grand jurors asked Telone whether either defendant had given a statement to the effect that the couch slipped, defendants slipped, the couch was already falling, or defendants could not stop the couch. Telone responded, "[N]o, [o]ne statement by one defendant Mr. Hunter stated that exactly they were removing the couch through the window, they were throwing it out the window." Hunter had, however, provided a written statement to police in which he stated that the rope he and McGraw were using to lower the couch slipped, causing the couch to fall and strike Verde.

Defendants moved to dismiss the 1995 indictment, alleging that it was obtained through the use of perjured testimony and that it violated their due process rights. The trial court dismissed the 1995 indictment on December 27, 1995. The State correctly notes that the trial court's order of dismissal did not state that the case was dismissed with prejudice.

The State did not appeal the dismissal of the indictment; rather, it reindicted defendants on January 29, 1997, for involuntary manslaughter (1997 indictment). This time, the lead detective investigating the incident, Bruce Dayno, testified before the grand jury. On March 4, 1997, defendants filed motions to dismiss the 1997 indictment. Defendants argued that they were deprived of their rights to a speedy trial, the 1997 indictment violated double jeopardy principles, the State was required to appeal the dismissal of the 1995 indictment, and the prosecutor failed to disclose the charges against defendants to the grand jury. The trial court dismissed the indictments with prejudice on April 11, 1997, finding that the State should have appealed the earlier dismissal and that the delay between the dismissal of the 1995 indictment and the return of the 1997 indictment prejudiced defendants. The State timely appeals.

The issue with which we are confronted is one of first impression: whether the due process violation of obtaining an indictment through the use of perjured testimony can be cured by returning a new indictment against the defendant. Section 114--1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114--1 (West 1996)) governs the circumstances under which a defendant may attempt to dismiss criminal charges before trial. It provides, in relevant part:

"(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment ...


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