Appeal from the Circuit Court ILLINOIS, of the 21st Judicial Circuit, Kankakee County, Illinois Plaintiff-Appellee, Circuit No. 08-MR-518 Honorable Clark E. Erickson, Judge, Presiding.
The opinion of the court was delivered by: Justice Schmidt
JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice Wright concurred in the judgment and opinion.
Justice Holdridge dissented, with opinion.
¶ 1 Following a bench trial, the circuit court of Kankakee County convicted defendant, Terrell Geiger, of direct criminal contempt of court and sentenced him to 20 years' incarceration. Defendant appeals, claiming his sentence is excessive and grossly disproportionate to the nature of the offense.
¶ 3 The record indicates that on April 8, 1999, defendant gave a statement to the police in which he discussed his knowledge of facts surrounding the double murder of Michael Cox and Lazeric Martin. While at a hotel, defendant heard Joe Mason and Javar Hollis discussing "sticking someone up for a couple of G's." Howard Wilson, Jimmy Murry and Terry Lowe were in attendance at the hotel that day as well. After walking around, the group retreated to defendant's room, where they "were hanging out and drinking."
¶ 4 Defendant's statement indicates that while the group was together, "Javar was talking like, 'I'm going to get me a nigger,' " which indicated to defendant that Javar intended "to go do the robbery." Defendant's statement continues noting that, "Awhile after Joe and Javar left, a girl named Nina came to our room and told us that she was over at Lonnie's house and she heard someone next door get their head blown off. Joe came back to the room first. I went outside the room and saw Javar running to the hotel. Javar came up to me and said, 'it took me a long time but I got that nigger.'"
¶ 5 Defendant told police that while he was with Javar that night, "Javar told me what had happened." Javar indicated that Lazeric was panicking after Javar began robbing him. Javar noted he then shot Lazeric in the leg after which Lazeric said, "Just spare me my life." Thereafter, Joe shot Lazeric twice in the head. Javar indicated that he then went outside and shot Michael Cox with a pistol-grip Mosseberg shotgun. Defendant's statement revealed other material facts surrounding the murders as well.
¶ 6 The State did not call defendant to testify during Javar Hollins' first trial for the murder of Lazeric Martin and Michael Cox. Hollins was convicted, but this court reversed his conviction in People v. Hollins, 366 Ill. App. 3d 533 (2006), due to issues involving jury selection. The State did, however, call defendant to testify in the trial of Hollins' co-defendant, Joseph Mason. In the trial against Mason, defendant testified consistent with the statement given to the police.
¶ 7 While Geiger was in the custody of the Department of Corrections, the trial court issued a writ of habeas corpus ad testificandum, ordering his presence as a witness in the second murder trial of Hollins. When calling Geiger to the stand, the prosecution informed the trial court that it expected defendant to assert his right against self-incrimination under the fifth amendment (U.S. Const., amend. V), but argued Geiger's testimony would not be inculpatory. The trial court asked for an offer of proof. The State proffered that it believed Geiger, "if permitted to testify," would testify consistent with his prior statement to the police and testimony during the trial of Joseph Mason. The prosecutor suggested that if defendant refused to testify against Hollins, he should be sentenced to 180 days in jail with no day-for-day credit for direct criminal contempt. The trial court indicated it could not deny defendant day-for-day good time, but stated it could sentence defendant to a term longer than 180 days if the State filed a formal contempt petition.
¶ 8 The trial court noted, "This is someone who everyone is in agreement that he is -- that he does not have a Fifth Amendment right." The State then called defendant to the stand. The trial judge informed him that he had no right to remain silent based upon his testimony in the trial against Mason and his 1999 statement to the police. Specifically, the trial court stated defendant was "not subjecting yourself to any criminal - - to being charged with any crime as a result of your testimony. Okay? Therefore, you don't have a right to take the Fifth Amendment."
¶ 9 Nevertheless, defendant informed the court that he intended to assert his fifth amendment right and not testify. The trial court informed defendant that if the State filed a formal petition for criminal contempt of court, the possible punishment could be "a period of years" in prison. Defendant indicated he understood.
¶ 10 The State then questioned defendant. He indicated he was present at the hotel on the date of the murders. Thereafter, defendant refused to answer any further questions. The judge admonished defendant that he had no right to refuse to testify; defendant persisted in his refusal.
¶ 11 During a recess, the State filed a formal petition charging defendant with criminal contempt. The petition alleged that defendant violated the judge's order to testify, even though he had no right under the fifth amendment to do so. The petition asserted that due to the nature of the serious charges against Hollins and ...