Appeal from the Circuit Court of Du Page County. No. 98-CF--1731 Honorable Peter J. Dockery, Judge, Presiding.
The opinion of the court was delivered by: Justice Galasso
After a bench trial, defendant, Blaine Gemeny, was convicted of unlawful communication with a witness (720 ILCS 5/32--4(b) (West 1998)). The trial court denied defendant's motion in arrest of judgment, sentenced defendant to 30 months' probation, and denied his postjudgment motion. Defendant appeals, arguing that (1) the indictment is void, (2) the trial court erred in admitting communications that were privileged under the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (740 ILCS 110/1 et seq. (West 1998)), and (3) he was not proven guilty beyond a reasonable doubt. We agree with defendant's second contention of error. Therefore, we reverse the judgment and remand the cause for a new trial.
The indictment alleges that, on August 27, 1998, defendant, "with the intent to deter John E. Kelly from testifying, fully and truthfully to a matter then pending in the DuPage County Circuit Court, the criminal prosecution of the defendant, did point at John E. Kelly and state: 'you're going to get it buddy.' " Defendant did not move to quash the indictment. The cause proceeded to a bench trial. We summarize the proceedings there.
John E. Kelly, a domestic violence counselor with Du Page County Psychological Services, testified that in April of 1998 he met defendant and performed a psychological assessment. The purpose of the assessment was to enable Kelly to provide defendant with domestic violence counseling that had been ordered as part of defendant's sentence in a criminal case (No. 97--DV--1803). Kelly stated that his next contact with defendant was a message defendant left on Kelly's phone mail. At this point, the State sought to introduce a cassette tape containing that message and two other phone messages from defendant to Kelly. Defendant objected that the messages were privileged. The court reserved a ruling on the objection until after the judge listened to the tape in camera.
Kelly continued his testimony as follows. He had listened several times to three phone messages, which defendant left within the space of about a week. The next time Kelly saw defendant was on August 27, 1998, in court, where Kelly had been subpoenaed to testify in a proceeding to revoke defendant's probation in case No. 97--DV--1803. When defendant's case was called, defendant approached the bench as Kelly sat in his wheelchair against a wall 15 or 20 yards from the bench. The case was continued. As defendant walked past Kelly to exit the courtroom, defendant said, "You're going to get it, buddy" and kept walking. Kelly did not react immediately. Later that day, he testified against defendant.
On cross-examination, Kelly testified that he did not personally have a release from defendant authorizing the disclosure of any of the communications between defendant and Kelly. Kelly added that "DuPage County has a release of information." On redirect examination, Kelly stated that normally a client of his office must sign a release as a prerequisite to an assessment or treatment. However, Kelly could not say that he witnessed defendant execute a release.
David Smith testified as follows. On August 27, 1998, he was sitting in the courtroom gallery. When Smith first saw defendant, the latter was in the gallery area, being disruptive. Later, while the judge was still on the bench, defendant approached Kelly in a corridor between the wall and the gallery. Smith was no more than three feet away. Defendant pointed his finger within three or four inches of Kelly's face, looked at Kelly, and said, "You're going to get it now, buddy." Defendant's tone of voice was "threatening."
The trial court admitted the tape of the phone messages, finding that defendant had waived his confidentiality rights by signing a release. The trial judge also concluded that the tape was not confidential because defendant's treatment was not voluntary but ordered as part of his sentence in the criminal case. The trial court reasoned that defendant could not expect his treatment records to remain private because, to decide whether defendant had complied with his probation, the court in the criminal case could compel the disclosure of the nature of defendant's treatment and what was said during that treatment.
Defendant objected that relying on the release as a ground to admit the tape would violate a defense motion in limine because the State had failed to disclose the consent form to defendant before trial. The State responded only that, until Kelly testified that day, it had been unaware that there was a release form. The trial court agreed with defendant and struck any evidence of defendant's consent to the release of the information on the tape. The court still held the tape was admissible because defendant's treatment had been ordered as part of his sentence.
Defendant's evidence consisted of the report of proceedings for August 27, 1998, when he appeared pro se on petitions to revoke his probation in case Nos. 97--DV--1803 and 97--DV--2036. After the cases were called, there was a short recess. Defendant then admitted the probation violations and the court heard Kelly's testimony in aggravation (this testimony was not transcribed). The court asked defendant if he had any evidence in mitigation. Defendant apologized for getting angry over the phone at Kelly. He explained he had been upset that Kelly did not seem to understand that he could not afford the counseling program Kelly told him to use. Defendant apologized for leaving the messages, saying that he believed they were rude, but not threatening.
The trial judge in the case at bar found defendant guilty of unlawfully communicating with a witness. The judge explained that the messages illuminated defendant's relationship with Kelly and helped to prove that, in telling Kelly he was "going to get it now, buddy," defendant intended to deter Kelly from testifying fully and that Kelly had reason to feel threatened. The judge also stated that Kelly and Smith were credible witnesses.
Defendant filed a motion in arrest of judgment arguing that the indictment was defective because it omitted an element of the offense, i.e., that the communication at issue was a threat of injury or damage to the property or person of any individual (see 720 ILCS 5/32--4(b) (West 1998)). The trial court denied the motion, sentenced defendant to 30 months' probation, and denied his postjudgment motion. Defendant timely appealed.
Defendant's first argument on appeal is that raised in his motion in arrest of judgment, that the indictment is fatally defective because it does not include the "threat" element of unlawful communication with a witness. We agree with the State that this omission was not crucial because defendant waited until after the verdict to attack the sufficiency of the indictment. Under section 116--2(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/116--2(c) (West 1998)), a motion in arrest of judgment alleging that an indictment is defective because it does not charge an offense shall be denied if the indictment apprises the accused of "the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution out of the same conduct." We believe the indictment met this test.
Defendant has not shown how his defense was prejudiced by the indictment's failure to state that his words were a threat to the person or property of an individual. At trial, defendant argued and sought to demonstrate that he did not intend the words as a threat and that Kelly could not reasonably have taken them so. Also, the indictment specifies the exact words defendant used, the date on which he used them, and the witness to whom he directed them, so there is no doubt that defendant's conviction may be pleaded as a bar to future prosecution for the same conduct.
Defendant makes no effort to show prejudice as section 116--2(c) requires. Instead, he argues that, even though he did not attack the indictment until after the verdict, the omission of an element of the offense rendered the indictment void. However, this assertion relies entirely on cases decided under section 116--2 as it read before August 1, 1989. Under the old section 116--2, a trial court was required to grant a motion in arrest of judgment if an indictment did not state an offense. Ill. Rev. Stat. 1987, ch. 38, par. ...