Appeal from the Circuit Court of Cook County. No. 1999 MISC. 1 Honorable Michael P. Toomin, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice McBRIDE
On March 24, 1999, petitioner, E.H., by and through his maternal grandmother, Rosetta Crawford, and his mother, Sonya Crawford, filed a petition for the appointment of a special prosecutor and other relief to investigate and prosecute Chicago police detectives Allen Nathaniel and James Cassidy for criminal misconduct allegedly committed during their investigation of the sexual assault and murder of Ryan Harris. The petition alleges that Nathaniel and Cassidy concocted, fabricated, framed and created false evidence which implicated 8-year-old E.H. and 7-year-old R.G. in the sexual assault and murder of 11-year-old Ryan Harris. The petition alleges that on August 10, 1998, Nathaniel perjured himself during his testimony at the probable cause hearing in juvenile court. The petition further states that Detective Cassidy has a brother, Scott Cassidy, who is an assistant State's Attorney and holds the position of supervisor of the Organized Crime Division of the Cook County State's Attorney's office. Petitioner argues this created a conflict of interest between the State's Attorney's office and the Chicago police department. The petition also alleges impropriety in the investigation, charging and prosecution of the Anna Gilvis home invasion and murder and the Donald Rudolph and Connie Hall murders. As the Gilvis, Rudolph and Hall allegations are not before this court on this appeal, they will not be addressed. Cook County State's Attorney Richard A. Devine was allowed to intervene as respondent and on April 7, 1999, filed an objection to the petition for the appointment of a special prosecutor.
On July 27, 1999, petitioner filed an amended petition for the appointment of a special prosecutor. In this amended petition, petitioner alleges Assistant State's Attorney Michael Oppenheimer conspired with Detectives Nathaniel and Cassidy to concoct, fabricate, frame and create false and perjured evidence to implicate E.H. and R.G. in the sexual assault and murder of Ryan Harris. Specifically, petitioner alleges that Oppenheimer induced Nathaniel to testify perjuriously at the August 10, 1998, hearing and unlawfully withheld favorable evidence and facts from E.H., R.G. and their attorneys that exculpated and established that E.H. and R.G. were not in any way involved in the crimes against Harris.
On November 23, 1999, respondent filed a motion pursuant to section 2-615(e) of the Code of Civil Procedure (735 ILCS 5/2-615(e)(West 1998)) for judgment on the pleadings. On January 12, 2000, petitioner filed an answer to respondent's motion. After a hearing on the motion on March 13, 2000, the trial court granted respondent's motion for judgment on the pleadings. The trial court filed a written memorandum of opinion and order on March 23, 2000. This appeal followed.
On appeal, petitioner argues that the trial court erroneously granted respondent's motion for judgment on the pleadings. Specifically, he argues his petition was sufficient to establish a cause of action for the appointment of a special prosecutor arguing respondent had a conflict of interest that prohibited respondent from investigating charges petitioner filed against certain police officers and respondent's employee.
Section 2-615(e) allows any party to move for judgment on the pleadings. 735 ILCS 5/2-615(e) (West 1998). The purpose of a motion for judgment on the pleadings is to test the sufficiency of the pleadings by determining whether the petitioner is entitled to the relief sought. Teeple v. Hunziker, 118 Ill. App. 3d 492, 496, 454 N.E.2d 1174 (1983); Tim Thompson, Inc. v. Village of Hinsdale, 247 Ill. App. 3d 863, 890, 617 N.E.2d 1227 (1993). It concedes all well-pleaded facts set forth in the pleading and draws all fair inferences therefrom. Richco Plastic Co. v. IMS Co., 288 Ill. App. 3d 782, 786, 681 N.E.2d 56 (1997). Moreover, in determining the sufficiency of any claim, the court will disregard any conclusions that are not supported by allegations of specific facts. Richco Plastic Co., 288 Ill. App. 3d at 784. "On review of an order granting judgment on the pleadings, the appellate court must ascertain whether the trial court correctly determined that no genuine issue as to any material fact was presented by the pleadings and, if there was no such issue, whether judgment was correctly entered." Teeple, 118 Ill. App. 3d at 497. We review the trial court's dismissal of the pleadings de novo. Richco Plastic Co., 288 Ill. App. 3d at 785.
Petitioner argues that his petition and amended petition sufficiently established a cause of action for the appointment of a special prosecutor. Pursuant to section 3-9005 of the Counties Code, the State's Attorney has the power and duty to prosecute all actions brought by any county officer and to defend all actions brought against his county, or against any county or state officer. 55 ILCS 5/3-9005 (West 1998). Additionally, the statute allows for the appointment of a special prosecutor in certain circumstances:
"Whenever the State's attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding ***." 55 ILCS 5/3- 9008 (West 1998).
The purpose of this statute is to "prevent any influence upon the discharge of the duties of the State's Attorney by reason of personal interest." People v. Morley, 287 Ill. App. 3d 499, 503-04, 678 N.E.2d 1235 (1997). The decision to appoint a special prosecutor is within the discretion of the trial court. People v. Arrington, 297 Ill. App. 3d 1, 3, 696 N.E.2d 1229 (1998). In the present case, the decision rests upon the word "interested" as used in section 3-9008. The Illinois Supreme Court has held that the only situations in which the State's Attorney could be considered "interested" so as to authorize the appointment of a special prosecutor are where (1) he or she is interested as a private individual; or (2) he or she is an actual party to the litigation. Environmental Protection Agency v. Pollution Control Board, 69 Ill. 2d 394, 400-01, 372 N.E.2d 50 (1977); Morley, 287 Ill. App. 3d at 504.
The record below reveals the following facts. On July 28, 1998, around 3 p.m., the body of 11-year-old Ryan Harris was found in a rear yard on South Parnell Avenue. According to the medical examiner, Harris died from blunt trauma to her head and asphyxiation. When Harris's body was found, a pair of girl's underwear was stuffed in her mouth and there was foliage and leaves in her nose. The medical examiner also noted a half-inch gash to her vagina. On August 9, 1998, Detective Nathaniel spoke with eight-year-old E.H. and seven-year-old R.G. The detective spoke first with R.G. after obtaining permission to speak with him from his grandmother. R.G. told the detective that he and E.H. were playing with Harris in the rear of 6636 South Parnell Avenue. E.H. and R.G. were throwing rocks back and forth and Harris was on a bicycle. R.G. hit Harris in the back of the head with a rock which caused Harris to fall off her bike. R.G. and E.H. moved Harris's bike to a wooded area behind the building. E.H. and R.G. then each took an arm and dragged Ryan into the same wooded area. R.G. told the detective that they then began to "play with [Harris] very softly." R.G. began rubbing leaves and foliage over Harris's body and placed leaves and stems in her nose. R.G. and E.H. pulled down Harris's underwear and pants. R.G. placed Harris's underwear in her mouth. R.G. told the detective that after it got dark, R.G. and E.H. went to R.G.'s grandmother's home to play with puppies. After this conversation, the detective explained to R.G. his Miranda rights and called two youth officers into the room. R.G. repeated essentially the same story with the two youth officers present.
After speaking with R.G. about the incident, Detective Nathaniel spoke with E.H.'s mother. E.H. allowed her son to be interviewed by the police. After having his rights explained to him, E.H. told the detective that he and R.G. were throwing rocks and R.G. hit Harris in the back of the head with a rock. E.H. said that once Harris was on the ground, R.G. started playing with her body. After E.H. saw R.G. playing with Harris's body, E.H. got on his bike, rode home and watched cartoons. E.H. essentially repeated his account of what happened in the presence of a youth officer. Thereafter, both boys were remanded into juvenile custody and charged in delinquent petitions with first degree murder.
On September 4, 1998, after receiving additional physical evidence relating to the investigation, the State entered a nolle prosequi against both R.G. and E.H.
Petitioner contends that the trial court abused its discretion when it failed to appoint a special prosecutor to investigate the charges he raised against Nathaniel and Cassidy. Petitioner maintains that Nathaniel and Cassidy fabricated confessions from E.H. and R.G. and that Nathaniel presented false testimony at the probable cause hearing. However, petitioner fails to present this court with any specific facts or circumstances to show that the conduct of Nathaniel and Cassidy throughout the Ryan Harris criminal investigation would warrant or ...