Appeal from the Circuit Court of Cook County. No. 02 CR 1689 The Honorable Rodolfo Garcia, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
Defendant Marvin Terry was charged with three counts of the Class 2 felony of harassment of a witness and family members of a witness under section 32-4a(a)(2) of the Criminal Code of 1961. 720 ILCS 5/ 32-4a(a)(2) (West 2002). Defendant moved to dismiss the indictment, pursuant to section 114-1(a)(8) of the Code of Criminal Procedure of 1963, alleging that it failed to state an offense. 725 ILCS 5/ 114-1(a)(8) (West 2002). After considering both the written and oral arguments presented by the parties, the trial court granted defendant's motion. The State filed a motion to reconsider. Upon reconsideration, the trial court confirmed the dismissal. The State now appeals, arguing that the trial court misinterpreted section 32-4a(a)(2) and therefore erred by dismissing the indictment.
The main issue on appeal is whether section 32-4a(a)(2) protects a person from being harassed after a legal proceeding has concluded, when that person was identified as a potential witness in discovery responses but was never called to testify during the case because the defendant pleaded guilty. For the reasons that follow, we find that the statute does not confer such protection. Therefore, we affirm the trial court's dismissal of the indictment.
To begin, we note that this court was provided with very little information regarding the background of this case. The following facts, however, have been gleaned from the record and provide a rough account of the events leading up to this appeal.
At some time prior to the date of the alleged harassment, defendant was charged with aggravated battery, in case No. 01 CR 129850, entitled People v Terry. The victim of the battery, Edgar Rodriguez, Jr., and his sister, Danielle Rodriguez, were identified as potential witnesses in the State's responses to defendant's requests for discovery. Edgar and Danielle were never called to testify in the case, however, because defendant pleaded guilty.
As a result of defendant's plea, he was convicted and sentenced to a term of imprisonment. He was subsequently released on parole. The State alleges that, on January 2, 2002, defendant encountered Danielle and her mother, Marlene Rivera, for the first time since his release. The State further alleges that, during that encounter, defendant drove alongside the women, yelling "Trick, trick, trick" while pointing at them, intending to harass or annoy them. Defendant was arrested the following day and, in a three-count indictment, was charged with "the offense of Harassment of representatives for the child, jurors, witnesses and family members of representatives for the child, jurors, and witnesses." Specifically, the first count of the indictment charged that defendant:
"with intent to harass or annoy Marlene Rivera, a family member, to wit: mother of Edgar Rodriguez Jr. a person who has served as a potential witness in a legal proceeding, to wit: People of the State of Illinois v. Marvin Terry et. [sic] al. 01 CR129850, because of the potential testimony of Edgar Rodriguez Jr., communicated directly with the family member of Edgar Rodriguez Jr[.], Marlene Rivera, to wit: pointed at and yelled 'Trick, trick, trick' in such a manner as to produce mental anguish or emotional distress to Marlene Rivera ***."
The second and third counts charged defendant with the same conduct -alleging, however, that it was directed at Danielle, both as a family member of "a person who has served as a potential witness in a legal proceeding" and as "a potential witness in a legal proceeding." Each count of the indictment cited "Chapter 720 Act 5 Section 32-4a(a)(2) of the Illinois Compiled Statutes 1992 as amended," as the relevant statute. *fn1
Section 32-4a(a)(2) provides:
"A person who, with intent to harass or annoy one who has served or is serving or who is a family member of a person who has served or is serving (1) as a juror because of the verdict returned by the jury in a pending legal proceeding or the participation of the juror in the verdict or (2) as a witness, or who may be expected to serve as a witness in a pending legal proceeding, because of the testimony or potential testimony of the witness, communicates directly or indirectly with the juror, witness, or family member of a juror or witness in such manner as to produce mental anguish or emotional distress or who conveys a threat of injury or damage to the property or person of any juror, witness, or family member of the juror or witness commits a Class 2 felony." 720 ILCS 5/32-4a(a) (West 2002).
On March 1, 2002, defendant moved to dismiss the indictment, arguing that it failed to state an offense. The trial court granted defendant's motion, explaining:
"As made clear by the language of the offense, the statute seeks to protect two classes of individuals that may serve as witnesses, as well as their family members: (1) A person that has served or is serving as a witness and (2) a person that may be expected to serve as a witness. In the first instance, the person must be a witness. This covers a person that has already testified in a proceeding already concluded and a person that may be waiting to be called in a matter currently on trial.
In the second instance, the person must be someone expected to serve as a witness in a pending legal proceeding. This apparently addresses a legal proceeding still in the pretrial stages. As made clear by the legislative history this would cover individuals named in the witness lists provided by each side. It is clear, however, that a person is a potential witness only ...