APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 94-CR-6193, 94-CR-21344
The opinion of the court was delivered by: Justice Cousins
THE HONORABLE LEO HOLT JUDGE PRESIDING.
On February 4, 1994, defendant, Gus Dasaky, was arrested and indicted under No. 94-CR-6193 for the offenses of armed violence and possession of a controlled substance with intent to deliver. On April 25, 1994, defendant signed a debriefing and consideration agreement with the Cook County State's Attorney's office (CCSAO) in order to minimize his sentence.
When defendant entered into the debriefing and consideration agreement on April 25, 1994, he had two pending cases. The first case, No. 93-C-6- 60848, stemmed from a 1993 arrest for a Class X offense and the second was the 1994 indictment, No. 94-CR-6193. Before the debriefing meeting, the assistant State's Attorney wrote a letter to the defendant's attorney advising that the possibility of the defendant's cooperation would not be pursued if the defendant picked up another case. On May 24, 1994, defendant was arrested and indicted under No. 94-CR-21344 for the offense of possession of a controlled substance with intent to deliver. As a result of the May 1994 arrest, the CCSAO voided the debriefing and consideration agreement between itself and defendant. On May 18, 1995, defendant entered into an agreement to interview with the Illinois Attorney General's office (IAGO) and subsequently testified before a statewide grand jury in regard to a different case. On March 13, 1997, the trial court entered an order granting defendant's pretrial motion to dismiss pending indictments or, in the alternative, enforce the agreement between defendant and the IAGO by executing a Disposition of probation or boot camp in the instant cases. On April 23, 1997, the CCSAO refused to comply with the agreement between defendant and the IAGO, and the trial court accordingly dismissed indictments Nos. 94-CR- 6193 and 94-CR-21344 against defendant. On appeal, the State contends that the trial court erred in finding that the alleged sentencing agreement of probation between the IAGO and defendant was binding upon the CCSAO thus requiring the CCSAO to enforce a Disposition of either probation or boot camp in defendant's pending cases.
On February 4, 1994, defendant was arrested pursuant to a search warrant and indicted under No. 94-CR-6193 by the grand jury in the circuit court of Cook County for armed violence and possession of a controlled substance with intent to deliver.
On March 1, 1994, defendant's attorney, Marc Barnett, wrote a letter to Assistant State's Attorney (ASA) Dave O'Conner stating that defendant was interested in setting up an appointment for the purpose of cooperating. In the letter, Barnett requested that ASA Sandra Brode be assigned the case as she was the ASA appointed to a case defendant had then pending before a different Judge. Thereafter, on March 8, 1994, ASA Brode wrote a letter to Barnett explaining that she could not set up a debriefing meeting until defendant's new case had been assigned to a Judge. However, if defendant picked up another charge of any kind between then and the debriefing, she would not pursue the possibility of defendant's cooperation with the CCSAO.
On April 25, 1994, defendant entered into a debriefing and consideration agreement with the CCSAO. At the time defendant entered into the agreement, he had two pending narcotics cases. The first charge stemmed from defendant's arrest on July 15, 1993, indictment number 93-C6-60848, which is a Class X offense with a minimum sentence of six years in the Illinois Department of Corrections (IDOC). The second charge was a super Class X offense stemming from defendant's arrest on February 4, 1994, indictment number 94-CR-6193, with a minimum sentence of nine years in the IDOC. The April 1994 agreement provided that the consideration defendant would receive was a reduction of charge and/or recommendation of sentence by the CCSAO. The agreement further provided that if defendant was arrested for any crime subsequent to the date of the agreement, it would be null and void.
On May 24, 1994, defendant was arrested by the Metropolitan Enforcement Group (MEG) and indicted under No. 94-CR-21344 for the offense of possession of a controlled substance with intent to deliver, a Class X offense with a minimum sentence of six years in the IDOC. As a result, ASA Brode wrote a letter to Barnett indicating that defendant's arrest on May 24, 1994, "voids any and all agreements that were signed with our office relative to cooperation." The letter further indicated that Special Agent Gary Reichenberger of the MEG was informed that defendant was not to be permitted to work as an informant and that he was to receive no consideration regarding the setting of bond in his pending cases.
In early May 1995, subsequent to defendant's third arrest, Agent Reichenberger, who knew defendant from his two prior arrests, contacted Barnett to set up a meeting with defendant. The meeting resulted in a three-page debriefing report detailing defendant's involvement in criminal activities with MEG "target" Glen Svagdis. A copy of this report was given to Assistant Attorney General (AAG) Clyde Lemons, who was assigned to the IAGO's statewide grand jury bureau.
On May 18, 1995, AAG Lemons met with defendant on behalf of the IAGO and executed the following agreement to interview:
"The [IAGO] agrees to participate in an interview with [defendant] on May 18, 1995. It is also agreed that the [IAGO] will not use any statement made by [defendant], during this interview against him in a criminal prosecution. The statement made by [defendant] during this interview must be completely truthful.
This agreement shall not be construed as statutory immunity pursuant to 725 ILCS 5/106 [sic], in that the [IAGO] may pursue and investigate any and all leads derived in any way from the statements of [defendant] which would result in the acquisition of evidence admissible in a prosecution against him. This agreement, also, shall not be construed to bar the use of statements by [defendant], during the interview as impeachment in the event that he testifies in a manner inconsistent with his statements in any subsequent proceeding.
This agreement shall not be construed as an offer to amend or nolle pros [sic] any past, pending or future charges or construed as a promise to make such an offer in the future."
On May 19, 1995, defendant appeared before a statewide grand jury and was admonished regarding the contents of the agreement to interview entered into between him and the IAGO. Thereafter, he testified consistently with the debriefing report generated by Agent Reichenberger.
Lisa Megan and defendant's brother, John Dasaky, also had Class X charges pending against them and testified regarding the same MEG target. Lisa and John signed similar agreements to interview with the IAGO. Defendant, Lisa, and John were all represented by Barnett at the time the agreements with the IAGO were made and when they appeared before the grand jury. Subsequent to their appearance before the grand jury, Lisa and John pled guilty to their offenses and each was sentenced to a term of probation.
On September 14, 1995, attorney John Armellino filed an appearance on behalf of defendant. Thereafter, on April 22, 1996, defendant filed a pretrial motion to dismiss pending indictments or enforce the agreement.
The hearing on defendant's motion was held on August 5, 1996. Defendant testified that, prior to his May 12, 1995, meeting with Agent Reichenberger, his understanding was that if the information he provided to the MEG was helpful, he would get probation or boot camp. However, he acknowledged that nowhere in the May 1995 agreement was it stated that defendant would get probation or boot camp in exchange for his cooperation.
AAG Lemons testified that he informed defendant that anything defendant said in the interview with the IAGO could not be used against him at a trial unless defendant perjured himself while under oath. He also informed defendant that, despite defendant's cooperation, the IAGO could make no promises regarding any pending cases other than informing the CCSAO that defendant had cooperated. Moreover, neither he nor ...