Appeal from the Circuit Court of Cook County, Illinois No. 07 CR 20250 The Honorable Marcus R. Salone, Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Connors concurred in the judgment and opinion.
Presiding Justice Quinn specially concurred, with opinion.
¶ 1 Defendant, Robert Reimer, was charged with one count of home repair fraud pursuant to section 3(a)(1) of the Home Repair Fraud Act (815 ILCS 515/3(a)(1) (West 2008)). A jury found defendant guilty. The circuit court sentenced defendant to 30 months probation, to payment of restitution to the victim, and to performance of 288 hours of community service. At issue is whether the State, in presenting the case before the grand jury, violated defendant's due process rights.*fn1 We hold the State did violate defendant's due process rights by presenting two incorrect statements of the law in proceedings before the grand jury. The indictment against defendant must be dismissed as defendant suffered actual and substantial prejudice, because without the State's errors, we cannot say that a true bill would have been returned by the grand jury. Although defendant argues that his indictment should be dismissed with prejudice, we hold that the indictment should be dismissed without prejudice.
¶ 3 The circuit court sentenced defendant on April 14, 2010. Defendant timely filed his notice of appeal on April 16, 2010. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶ 5 Defendant was charged by indictment with one count of home repair fraud pursuant to section 3(a)(1) of the Home Repair Fraud Act (Act) (815 ILCS 515/3(a)(1) (West 2008)). The indictment, in relevant part, stated defendant:
"KNOWINGLY ENTERED INTO A WRITTEN AGREEMENT OR CONTRACT, WHEN THE AMOUNT OF THE AGREEMENT OR CONTRACT WAS MORE THAN $1,000.00, WITH RITA AVILA FOR HOME REPAIR AND [DEFENDANT] KNOWINGLY PROMISED PERFORMANCE WHICH HE DID NOT INTEN[D] TO PERFORM OR HE KNEW WOULD NOT BE PERFORMED."
¶ 6 Before the grand jury, Detective Sandra Bryant of the Chicago police department testified she was assigned to investigate a home repair fraud involving defendant as the offender and Rita Avila as the victim. Detective Bryant testified that through her investigation, she learned that Avila entered into a contract with defendant to perform repairs on her home on June 11, 2007. On that same day Avila paid defendant $2,000. Defendant started work and Avila paid him a total of $6,000. The last check that Avila gave to defendant was on or about July 16, 2007. After July 16, 2007, defendant did not complete any more work on Avila's home. Detective Bryant testified that at the time Avila and defendant came to an agreement, Avila believed she knew where defendant's office was. Avila had defendant's cell phone number, which she used to contact defendant.
¶ 7 Detective Bryant testified that when Avila went to the address where she believed defendant's office was located, she found a vacant lot. When Avila tried to contact defendant through his cell phone, it was disconnected. Defendant never provided Avila with any new contact information. Detective Bryant stated that defendant did not perform $6,000 worth of work on Avila's home. Specifically, he was supposed to put in new kitchen cabinets, which defendant never ordered. Defendant admitted to Detective Bryant that he started the work, but did not finish it, claiming that he ran out of money. He further admitted he never gave Avila a new way to contact him.
¶ 8 In response to questions from the grand jury, Detective Bryant testified that the defendant was supposed to "tear out walls and existing cabinets in the kitchen and bathroom, replace cabinets and walls, paint, tile floors, and plumbing work." Detective Bryant testified that defendant "did demolition work" and "put up some walls." Detective Bryant testified further that Avila found defendant on Contractors.com as BRB Construction. At one point during Detective Bryant's testimony, the grand jury asked the assistant State's Attorney, "What makes this a felony case versus a civil case to be taken before a civil court?" In response, the following exchange occurred:
" Q. [assistant State's Attorney]: Detective, I'm going to ask you a series of questions to answer the Foreman's question.
Is it true that according to the home repair fraud statute that once two parties come to an agreement for home repair that if it is shown that the defendant has no intention to complete the work agreed upon, that it is a felony?
Q. And does the statute also specifically show some examples of how intent to not finish can be inferred?
Q. And one of those specific examples is if the defendant changes his business address and does not by writing notify the victim of that change of the address at the time of the change?
Q. Is intent to not finish the project also shown by the fact that the defendant never made contact with the victim to make any other arrangements?
Q. And is it also shown by the fact that the victim had no way either in person or by phone or by letter, for that matter, since the address was not existent to contact the contractor?
¶ 9 After testifying that defendant "stated he ran out of money" as the reason for not completing the work, the following exchange occurred between the grand jury, the assistant State's Attorney, and Detective Bryant:
"THE FOREPERSON: Did he admit that he intended not to complete the project or that he entered into this project with the intention of taking her money and not finishing? The question is: Did he intend not to finish this project on the onset of accepting the job?
Q. [assistant State's Attorney]: Detective, is it correct that that is not an element of the offense?
A.[Detective Bryant]: That's correct."
¶ 10 After deliberating, the grand jury delivered a true bill.*fn2
¶ 11 Prior to trial, defendant filed a motion to dismiss his indictment based on due process violations. In his motion, defendant argued that "the State's Attorney and the testifying detective misled the grand jury by grossly misstating the law for home repair fraud."*fn3 Specifically, defendant argued that the State misled the grand jury by stating that intent not to finish repairs can be inferred in a variety of ways even though that subsection of the Home Repair Fraud Act had been severed by our supreme court. See People v. Watts, 181 Ill. 2d 133 (1998). Defendant also pointed to the section of the grand jury transcript where Detective Bryant, in response to the assistant State's Attorney's question, stated that defendant's intent not to finish the job at the onset of the job was not an element of the offense. Because the State did not present evidence of defendant's intent not to finish the job at the onset of the contract, defendant argued that the State did not meet its burden of showing intent. Defendant maintained that the State's actions before the grand jury resulted in actual and substantial prejudice to him and the indictment against him should be dismissed. Defendant also requested that the indictment be dismissed with prejudice because he contended that the State would have to present contradictory evidence in order to re-indict him. Defendant attached to his motion as exhibits the transcript of the grand jury proceedings, a copy of section 3 of the Home Repair Fraud Act (815 ILCS 515/3 (West 2008)), and his criminal history report.
¶ 12 In response, the State argued that defendant never showed "how his due process rights were violated or how he was actually prejudiced." The State maintained that it presented evidence showing that defendant did not intend to finish the project and that he did not finish the project. Specifically, the State argued that "the intent not to complete the contract was evident by the defendant's actions. The exact timing of when the defendant decided not to complete the contract was an issue for trial and was not required for a finding of probable cause." The State also argued that it did not commit prosecutorial misconduct because there was no evidence that the assistant State's Attorney intentionally misled the grand jury.
¶ 13 The circuit court denied defendant's motion. In making its ruling, the court stated that it did not "believe that there was deception sufficient to undermine the determination of probable cause." The court commented further that "I think that statement attributed to the defendant wherein the defendant says, I ran out of money. I just wasn't going to do it. He certainly, I think, exerted control over this young lady's money with the intent to deprive her."
¶ 14 After a trial, the jury found defendant guilty. Defendant filed a motion for a new trial raising 19 points of error. Relevant to this appeal, defendant argued that the circuit court erred in dismissing his motion to dismiss the indictment. Defendant was sentenced to 30 months probation, to payment of restitution to the victim, and to performance of 288 hours of community service.
¶ 15 Defendant timely appealed.
¶ 17 We will first look at section 3 of the Home Repair Fraud Act (815 ILCS 515/3(a)(1) (West 2008)), before addressing whether the State, in presenting the case before the grand jury, violated defendant's right to due process.
¶ 18 Section 3 of the Home Repair Fraud Act
¶ 19 The purpose of the Home Repair Fraud Act "is to prohibit and prevent the knowing use of fraud and deceptive practices to induce an unwitting homeowner to enter into a contract for home repairs." People v. Thompson, 275 Ill. App. 3d 725, 732 (1995). Section 3 of the Home Repair Fraud Act, in relevant part, states:
"(a) A person commits the offense of home repair fraud when he knowingly enters into an agreement or contract, written or oral, with a person for home repair, and he knowingly:
(1) Misrepresents a material fact relating to the terms of the contract or agreement or the pre-existing or existing condition of any portion of the property involved, or creates or confirms another's impression which is false and which he does not believe to be true, or promises ...