Appeal from the Circuit Court of Cook County 97 CR 0015
The opinion of the court was delivered by: Justice Leavitt
Honorable Edward M. Fiala, Judge Presiding.
A Judge found Jarvis McNeal in direct criminal contempt of court after he invoked his fifth amendment privilege against self-incrimination and refused to testify as a prosecution witness/victim at Dante Brown's trial for murder, attempt murder and aggravated battery. The Judge sentenced McNeal to six months incarceration, and ordered that sentence to run consecutively with whatever sentence might later be imposed for then-pending charges against McNeal of murder and unlawful use of a weapon. We reverse the trial court's order, and vacate McNeal's sentence.
Brown was charged with the July 1993, gang-related murder of Gary Pittman and attempt murder of Jarvis McNeal at 5700 South Paulina in Chicago. McNeal was much later charged with a gang-related murder which occurred in December 1995, within a two or three block radius of 5700 South Paulina, and unlawful use of a weapon in an unrelated incident. In October 1996, McNeal indicated, through counsel, he intended to invoke his fifth amendment right, and refuse to testify at Brown's trial. At a hearing held to determine whether McNeal would be allowed to refuse to testify, McNeal's lawyer urged the two mens' crimes were part of a series of shootings in an ongoing gang war in the neighborhood, and that McNeal's testimony, which would certainly include his gang-affiliation, would be incriminating at his own murder trial. The Judge however found there was no reasonable basis for McNeal's refusal to testify.
On January 14, 1997, when McNeal was called and sworn, he refused to testify, even after the Judge ordered him to do so. The Judge found him in direct criminal contempt of court. The Judge further instructed McNeal could change his mind and testify at any time during the Brown trial, and thereby avoid being sentenced for contempt. McNeal never altered his position, and, after Brown was convicted, the Judge sentenced McNeal.
McNeal raises the following issues: (1) whether the Judge erred in finding invocation of his fifth amendment right to refrain from self-incrimination was improper and contemptuous, (2) whether a criminal contempt citation was the proper remedy if contemptuous conduct in fact occurred here, and (3) whether the Judge erred in imposing a sentence to be served consecutively with any potential future sentence. The State concedes a sentence may not be ordered to run consecutively with a sentence not yet imposed, and the Judge's ruling in that respect was erroneous. People v. Reed, 237 Ill. App. 3d 561, 562, 604 N.E.2d 1107 (1992).
The fifth amendment provides, in part, "No person *** shall be compelled to be a witness against himself ***." U.S. Const. amend. V; see also Ill. Const. 1970, art. I, sec. 10. The United States Supreme Court long ago stated the policies and purposes of the fifth amendment:
"It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; *** our sense of fair play which dictates a fair state-individual balance by requiring the government in its contest with the individual to shoulder the entire load; our respect for the inviolability of the human personality ***; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent." Murphy v. Waterfront Com. of New York Harbor, 378 U.S. 52, 55, 12 L. Ed. 2d 174, 84 S. Ct. 1594 (1964) (citations omitted).
While the accused may assert the privilege as an excuse for refusing to take the stand, a witness may assert the privilege only with respect to particular questions. United States v. Manno, 118 F. Supp. 511, 517 (N.D. Ill. 1954). Furthermore, a witness may exercise his right to avoid self-incrimination only where he has reasonable cause to suspect the possibility of subsequent prosecution from a direct answer. However, the witness need not prove the answer to a particular question would necessarily subject him to prosecution. People v. Cooper, 202 Ill. App. 3d 336, 341, 559 N.E.2d 942 (1990). As the U.S. Supreme Court stated:
"[I]f the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial Judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence." Hoffman v. United States, 341 U.S. 479, 486-87, 95 L. Ed. 1118, 71 S. Ct. 814 (1951) (citation omitted).
The privilege extends not only to answers that would in themselves support a conviction but also to answers that might furnish a link in a chain of evidence needed to prosecute the ...