September 17, 2002; Corrected Opinion October 2, 2002.
Appeal from the Circuit Court of Shelby County. No. 99-CF-68 Honorable Patrick J. Hitpas, Judge, presiding.
The opinion of the court was delivered by: Justice Kuehn
We are presented a case where three lawyers who work for the State's Attorneys Appellate Prosecutor's office teamed up to successfully prosecute and convict Robert Woodall of multiple crimes, including the execution-style murder of a young woman named Heather Lynch. Either the trio conducted an error-free prosecution or the defendant has simply bypassed other potential issues, confident in his challenge of their power to do what they did.
The defendant raises but one question for our review. It rests upon the contention that the people who prosecuted him were all illegitimate interlopers, masquerading as representatives of the State. We are asked to decide whether the defendant's multiple convictions stand for naught, rendered null and void by virtue of a prosecution championed by attorneys who lacked the legal authority to act on the State's behalf.
The defendant's argument is based upon a recently amended statutory provision that creates the State's Attorneys Appellate Prosecutor's office. Pub. Act 92-683, eff. July 16, 2002 (amending 725 ILCS 210/4.01 (West 2000)). The earlier version of the statute, and the powers that it conveyed at the time of the defendant's trial, fuels the argument. It is essentially as follows. Attorneys employed by the State's Attorneys Appellate Prosecutor's office (the Agency) are prohibited by statute from participation in criminal trials other than those expressly authorized by the Agency's enabling legislation. That legislation does not permit the Agency employees to assist local prosecutors in the trial of cases involving the type of charge leveled here. Therefore, the Agency employees lacked the legal authority to conduct a trial on the State's behalf. It follows that the trial itself was structurally flawed from the beginning. Everything that happened, including the jury's decision, is a virtual nullity, voided by the absence of a valid commission to prosecute.
The facts pertinent to this argument are undisputed. The State's Attorney for Shelby County, through an assistant State's Attorney, filed a nine-count information on July 2, 1999, charging the defendant with five different theories of murder in the death of Heather Lynch. Heather died from a close-range gunshot wound to the head, inflicted on May 4, 1999. The information also charged the defendant with home invasion and residential burglary in connection with the murder. The last two counts of the information charged the defendant with a residential burglary and an arson committed on February 23, 1999. The gun that fired a .380-caliber projectile, removed from Heather's brain during the autopsy, was one of the items taken in this earlier residential burglary.
On August 13, 1999, Robert Broverman, the State's Attorney for Shelby County, executed two documents, each of which was entitled "Appointment of Special Assistant State's Attorney" and "Oath of Office." The documents purported to pass on the prosecutorial powers that Broverman enjoyed by virtue of his office. He wanted two Agency attorneys, Tim Huyett and Allan Lolie, to be his assistants. Each of the documents included a notarized oath of office. Huyett and Lolie took an oath to faithfully discharge the State's Attorney's duties.
On August 31, 1999, a Shelby County grand jury returned a two-count indictment that supplanted the last two counts of the information. The grand jury inquiry was not conducted by the Shelby County State's Attorney. The grand jury proceedings that led to the indictment were conducted by Huyett. Huyett had been administered the oath included on the document that Broverman drafted and executed in an effort to authorize Huyett's actions. However, he was not authorized by the Shelby County board to conduct the State's business as an assistant State's Attorney and was not appointed by the circuit court to serve as a special prosecutor.
The defendant went to trial for the criminal offenses charged in the information and the two crimes charged by way of indictment. A Shelby County jury found him guilty of murder and home invasion for the acts that he committed on May 4, 1999, and guilty of residential burglary and arson for the conduct that he engaged in on February 23, 1999. The defendant currently serves a 10-year term of imprisonment for residential burglary and a 55-year prison term for murder. No judgment was entered on the other verdicts.
The Shelby County State's Attorney did not participate in any part of the trial. Allan Lolie and Ed Parkinson shared the task of trying the defendant. Each is an attorney who works for the Agency. Lolie had taken the oath that accompanied Broverman's effort to authorize his prosecutorial acts, just like Huyett. However, Broverman had not tried to create a position for Parkinson to fill. Parkinson was administered no oath. Lolie and Parkinson were not court-appointed to serve as special prosecutors. Neither was authorized by the Shelby County board to serve as an assistant State's Attorney.
The defendant's two trial attorneys did not challenge the validity of the indictment, even though Huyett had not been court-appointed to conduct the grand jury inquiry. Moreover, they did not question whether Huyett, Lolie, or Parkinson had any business prosecuting their client. They allowed the trio to represent the State's interests before, during, and after the trial, without objection or complaint. On several occasions during the course of the proceedings, the trial judge referred to Lolie and Parkinson as "special assistant State's Attorneys," a designation consistent with Broverman's effort to make Lolie his assistant.
There is no dispute over the fact that the circuit court did not exercise its statutory authority under section 3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 1998)). None of the three Agency attorneys were appointed by court order to perform as special prosecutors. However, the State maintains that the trial judge's recognition of Lolie and Parkinson as "special assistant State's Attorneys," coupled with the State's Attorney's effort to unilaterally appoint Lolie and Huyett, was sufficient to provide them with the authority to prosecute the case.
Initially, we need to examine the Agency's enabling legislation as it existed at the time of this prosecution. We need to consider the statutory grant of prosecutorial authority that our legislature had in place at that time, in order to decide whether Huyett, Lolie, and Parkinson were empowered to conduct the State's business in their capacity as employees of the Agency.
Attorneys hired by the Agency are not constitutional officers. Their powers are derived from the statute that created them, and those powers are strictly limited by the authority conferred upon the Agency by our state legislators. See Siddens v. Industrial Comm'n, 304 Ill. App. 3d 506, 510-11, 711 N.E.2d 18, 21 (1999).
The State's Attorneys Appellate Prosecutor's Act (the Act) (725 ILCS 210/1 et seq. (West 1998)) expressly provides for those legal matters in which attorneys employed by the Agency are entitled to represent the State's interests. The most obvious matters, consistent with the Agency's primary purpose, are criminal appeals. The statutory grant of authority to appear on the State's behalf includes the power to assist county prosecutors in the trial of certain limited matters. Section 4.01 of the Act (725 ILCS 210/4.01 (West 1998)) provides the scope of authority by listing those things that the Agency may be relied upon to do for local prosecutors in order to assist them in the discharge of their constitutionally based duties. That provision used to read like this:
"The Office may also assist [c]county State's Attorneys in the discharge of their duties under the Illinois Controlled Substances Act [(720 ILCS 550/100 et seq. (West 1998))], the Narcotics Profit Forfeiture Act [(725 ILCS 175/1 et seq. (West 1998))], and the Illinois Public Labor Relations Act [(5 ILCS 315/1 et seq. (West 1998))], including negotiations conducted on behalf of a county or pursuant to an intergovernmental agreement[,] as well as in the trial and appeal of said cases and of tax objections ***." 725 ILCS 210/4.01 (West 1998).
In People v. Ward, 326 Ill. App. 3d 897, 902-03, 762 N.E.2d 685, 690 (2002), we interpreted this exact statutory provision and decided that the legislative enumeration of the specific trial matters upon which Agency attorneys could appear meant that those same attorneys were not authorized to assist local prosecutors with any trial matter not listed. We held that Agency lawyers could not roam the state as special assistant State's Attorneys, able to assist on any kind of trial matter, unless the legislature provided for it. *fn1
In Ward, an Agency attorney took over the prosecution of a criminal case where the charges originated under the Cannabis Control Act (720 ILCS 550/1 et seq. (West 1996)), rather than the Illinois Controlled Substances Act (720 ILCS 570/100 et seq. (West 1996)). Ward, 326 Ill. App. 3d at 900, 762 N.E.2d at 688. There was no court-ordered appointment, and the county board had not authorized anyone to act as an assistant State's Attorney. Ward, 326 Ill. App. 3d at 902, 762 N.E.2d at 690. The Agency attorney was not compensated by the county, receiving only his Agency pay for the work that he put into the prosecution. There was no question over the capacity in which he prosecuted the case. He prosecuted it as an Agency employee assisting a local prosecutor. Thus, we had no need to determine whether a lawyer hired to work for the Agency could have his or her statutory authority judicially expanded by an appointment as a special assistant State's Attorney. We did not have to decide whether a court's statutory power to appoint a special prosecutor could be used to appoint an Agency attorney as a special assistant, who, in that capacity, could work on a criminal case beyond the Agency's statutory charge.
Here, the State argues that the Shelby County State's Attorney's effort to appoint the Agency attorneys as assistants, coupled with the trial court's recognition of those attorneys as representatives of the State, served as an appointment that granted the authority to prosecute the case. The State argues that the attorneys were effectively made court-appointed "special assistant State's Attorneys."
The defendant counters the State's argument in two ways. First, he contests the appointment process relied upon, arguing that attorneys cannot be appointed special prosecutors by the method employed. Second, he maintains that attorneys who work for the Agency are disqualified from criminal trial work on any matter not authorized by statute. Therefore, he argues that Lolie and Huyett could not lawfully accept their appointments as special assistants even if those appointments were legitimate.
We note that the State's Attorneys Appellate Prosecutor's Act provides: "The Director may, with the concurrence of the board, hire such employees, including part-time employees, as are necessary to carry out Office duties ***. All Attorneys hired as part-time employees who devote 50% or more of their time to Office duties are prohibited from the private practice of law." 725 ILCS 210/7.02 (West 1998). We assume that most part-time Agency attorneys maintain a private practice, servicing clients other than the Agency. Those attorneys could take on an appointment to specially prosecute a case and charge the county a handsome fee for doing so. Or, if they chose to, they could provide the service for free. Many of the Agency's part-time attorneys bring with them a depth of experience in the art of prosecution and are therefore prime candidates for an appointment as a special prosecutor. As part-time Agency lawyers, they could be appointed pursuant to the statutory authority established by section 3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 1998)), just like any other licensed attorney engaged in private practice.
Conceivably, Huyett, Lolie, and Parkinson are part-time Agency attorneys who do not devote the bulk of their work to Agency duties and therefore maintain private practices. But nothing has been offered by either party on the nature of their Agency hire. Regardless, we think that the appointment process relied upon by the State was flawed.
In order to examine that appointment process, we have to recognize two documents that were not a part of the record on appeal. They were submitted by the State with a request that we take judicial notice of them. The defendant raises legitimate concerns over whether the two documents were ever made a part of any public record, but nonetheless he asks ...