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People v. Ousley

September 24, 2009


The opinion of the court was delivered by: Justice Thomas

Chief Justice Fitzgerald and Justices Freeman, Kilbride, Garman, Karmeier, and Burke concurred in the judgment and opinion.


At issue in this case is whether the Illinois use immunity statute (725 ILCS 5/106--2.5 (West 2006)) is mandatory or permissive. The State filed a motion in the circuit court of Cook County seeking an order allowing it to grant use immunity to Tyrese Jackson in order to compel his testimony against his co-defendants, Tony Ousley and Dariento Atterberry. The trial court denied the State's motion. The appellate court affirmed, holding that the use immunity statute is permissive, so that the trial court did not err in denying the State's motion. 383 Ill. App. 3d 1073. The State then petitioned this court for leave to appeal pursuant to Supreme Court Rule 315 (210 Ill. 2d R. 315(a)). We allowed the State's petition for leave to appeal and now reverse the lower courts.


The February 2004 grand jury of the circuit court of Cook County filed indictments charging defendants Tyrese Jackson, Tony Ousley and Dariento Atterberry with multiple counts of first degree murder, attempted first degree murder, and aggravated discharge of a firearm. The charges stemmed from the February 7, 2004, murder of Brian Hill and the attempted first degree murder of Rufus McDaniels and Anthony Bryant. At the time of his arrest, defendant Jackson gave a videotaped statement.

Following pretrial discovery, the State filed a motion to allow "use immunity" to compel Jackson to testify against Ousley and Atterberry (defendants). The motion stated that Jackson was an indicted co-defendant and had a fifth amendment right not to testify against defendants. The State intended to call Jackson as a witness at trial, granting him use immunity pursuant to section 106--2.5(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/106--2.5(b) (West 2006)) to compel his testimony in his co-defendants' case. The motion stated that if Jackson testified inconsistently with his videotaped statement, the State planned to introduce Jackson's videotaped statement as substantive evidence against defendants pursuant to section 115--10.1 of the Code (725 ILCS 5/115--10.1 (West 2006)). The State requested that the trial court allow Jackson to testify against defendants and requested that the court grant Jackson immunity from prosecution as to any information directly or indirectly derived from the production of evidence during Jackson's testimony.

Defendants filed a response to the State's motion. Defendants alleged that Jackson gave his videotaped statement pursuant to the State's promise of leniency. Defendants believed Jackson would deny the veracity of his videotaped statement and, if granted use immunity, would not testify to anything of substance, so that the State would then seek to introduce Jackson's videotaped statement to impeach his testimony. Defendants maintained that the introduction of Jackson's videotaped statement against them would circumvent the rules of evidence as well as the rule set forth in Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476, 88 S.Ct. 1620 (1968). Further, the State could not vouch for the veracity of Jackson's testimony or set forth a legitimate offer of proof that Jackson would testify to anything of substance. Defendants therefore asked that the trial court preclude Jackson from testifying, preclude the State from introducing Jackson's videotape into evidence, and require the State to provide, as a condition precedent to calling Jackson as a witness in any capacity, an offer of proof of what the State expected Jackson to testify to at trial.

Following a hearing, the trial court denied the State's motion. The trial court believed that granting the State's motion would create problems under both Bruton and Crawford v. Washington, 541 U.S. 36, 158 L.Ed. 2d 177, 124 S.Ct. 1354 (2004). In Bruton, the United States Supreme Court held that the admission of a statement, at a joint trial, by a non-testifying co-defendant that expressly implicates the defendant in the crime violates the defendant's constitutional right to confront witnesses against him. Bruton, 391 U.S. at 137, 20 L.Ed. 2d at 485-86, 88 S.Ct. at 1628. In Crawford, the Court held that testimonial out-of-court statements may be admitted as evidence at trial only if the declarant testifies, or if the declarant is unavailable the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. 36, 158 L.Ed. 2d 177, 124 S.Ct. 1354 (2004).

With regard to Bruton, the court stated, "[A]s far as I am concerned, Mr. Jackson, he is still a co-defendant, I don't care if he is going to be severed, if he is going to be tried differently, he is still a co-defendant in this case, so that is one of our main concerns." The trial court also stated that if Jackson refused to testify on the stand, defendants would not have an opportunity for effective cross-examination, thus presenting a problem under Crawford.

The State then filed a motion to reconsider. The State observed that the use immunity statute provided that on motion of the State, the court "shall" order that a witness be granted immunity. The State argued that the plain language of the statute made clear that there are no restrictions on who can receive use immunity and that the State has the sole discretion to grant use immunity. Further, if Jackson testified under a grant of use immunity, he would be subject to cross-examination, so that there would be no Crawford violation. In addition, if Jackson refused to testify under use immunity, the State would not, and could not, under Bruton, enter Jackson's videotaped statement into evidence against defendants.

The trial court denied the State's motion to reconsider. The trial court agreed with the State's interpretation of "shall" as mandatory, but refused to give Jackson use immunity given the court's constitutional concerns regarding Crawford and Bruton. Thereafter, the State filed a certificate of substantial impairment (210 Ill. 2d R. 604(a)(1)) and notice of appeal.

On appeal, the State argued that the trial court lacked the authority to deny its motion under the use immunity statute. The State also argued that the constitutional issues relied upon by the trial court were not ripe for adjudication. In affirming the trial court, the appellate court held that the trial court did not err in ruling on the constitutional Bruton and Crawford issues. 383 Ill. App. 3d at 1077. With regard to the statute, the appellate court concluded that the statute was permissive rather than mandatory, so that the trial court did not err in denying the State's motion to grant use immunity. 383 Ill. App. 3d at 1077.

The State filed a petition for rehearing in the appellate court, pointing out that the court's presumption that the three co-defendants would be tried together in a joint trial was incorrect.*fn1 The appellate court denied the State's petition for rehearing.


As a threshold matter, we must address whether this case is moot because Jackson has pled guilty in connection with the underlying case. A case becomes moot when the issues involved in the trial court have ceased to exist because intervening events have made it impossible for the reviewing court to render effectual relief to the complaining party. People v. Roberson, 212 Ill. 2d 430, 435 (2004). A reviewing court should not decide a case where the judgment would have only an advisory effect. Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 8 (1997). In addition, this court does not review cases merely to set precedent or to guide future litigation. Berlin, 179 Ill. 2d at 8.

At oral argument in this case, questions arose concerning whether Jackson's guilty plea rendered this appeal moot. Upon review, we find that the appeal has not been rendered moot. A central concern of the lower courts in denying the State's motion to grant use immunity was the fact that Jackson's trial had not been severed from defendants' trial. However, the trial court also found that even if Jackson's trial was severed, a Bruton problem would remain because Jackson was still a co-defendant, presumably as opposed to a witness, in the case. The trial court additionally denied the State's motion based upon its finding of a potential Crawford issue, which would arise if Jackson was granted use immunity and continued to refuse to testify on the stand. Both issues remain even though it is now undisputed that Jackson will not be tried with defendants. Consequently, Jackson's guilty plea does not render this case moot.

Under the fifth amendment, a witness in a criminal case may refuse to answer questions which might incriminate him when he has reasonable cause to believe he might subject himself to prosecution if he answers. People v. Edgeston, 157 Ill. 2d 201, 220 (1993). Thus, immunity statutes seek a rational accommodation between the imperatives of the privilege against self-incrimination and the legitimate demands of the government to compel citizens to testify. Kastigar v. United States, 406 U.S. 441, 445-46, 32 L.Ed. 2d 212, 217-18, 92 S.Ct. 1653, 1656-57 (1972). In general, once a defendant enters a plea of guilty, he waives his privilege against compulsory self-incrimination. People v. Williams, 188 Ill. 2d 365, 370 (1999). This court must determine, then, whether Jackson's guilty plea waived his privilege against compulsory self-incrimination, so that the State no longer needs use immunity in order to compel Jackson's testimony against his co-defendants.

As our appellate court has recognized, a defendant may raise the fifth amendment shield until his conviction has become final. People v. Dmitriyev, 302 Ill. App. 3d 814, 820 (1998). In this case, although Jackson has pled guilty, we have no evidence or information establishing that Jackson's conviction has become final. We do not know whether sentence has been imposed, whether time remains to file a motion withdraw the guilty plea, whether the time for appeal has passed, or whether Jackson plans to collaterally attack his guilty plea. See People v. Edgeston, 157 Ill. 2d 201 (1993) (despite guilty plea, real danger of incrimination remained, allowing accomplice to assert privilege against self-incrimination in defendant's trial because accomplice intended to collaterally challenge his guilty plea and renege on plea agreement); People v. Morales, 102 Ill. App. 3d 900 (1981) (trial court correctly allowed witness to invoke privilege against self-incrimination even though witness had pled guilty and been sentenced, because time for filing a motion to withdraw his guilty plea remained); People v. Hartley, 22 Ill. App. 3d 108 (1974) (witness' conviction was not final because sentence had not been imposed and time for appeal had not expired; therefore, even though witness had been convicted, witness could claim privilege against self-incrimination at trial of his ...

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