The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion. Chief Justice Kilbride dissented, with opinion.
¶ 1 After a bench trial, defendant, Terrell Geiger (Geiger), was found guilty of direct criminal contempt for refusing to testify as a State's witness at the murder trial of Javar Hollins. The court imposed a sentence of 20 years' imprisonment. Defendant appealed his sentence to the appellate court, which affirmed with one justice dissenting. 2011 IL App (3d) 090688.
¶ 2 We granted defendant's petition for leave to appeal in this court
(Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)) and now reverse the sentence imposed. We find that the 20-year sentence imposed is grossly disproportionate to the nature of the offense and must be reduced.
¶ 4 In November 2008, Javar Hollins was retried*fn1 for the 1999 murders of Lazerick (L.Z.) Martin and Michael Cox. Although defendant had not testified at Hollins' first trial, he had testified for the State at the trial of Hollins' co-defendant, Joseph Mason. When defendant testified at Mason's trial, he was 15 years old and was a member of the same gang as Hollins and Mason. At Mason's trial, defendant testified that on March 18, 1999, he was at the Avis Motel in Kankakee, where he overheard Hollins, Mason and Dana Dixon planning to rob L.Z. Martin. Defendant also testified that the three men left the motel and, when they returned a short time later, Hollins bragged about shooting Martin in the head. Defendant admitted that, after Hollins and the others returned, he accompanied Hollins and another person (Taylor) to recover the weapons that had been stashed after the robbery, but left before the others disposed of the guns.
¶ 5 On Friday, November 21, 2008, at Hollins' retrial, defendant was brought into court outside the presence of the jury. The prosecutor informed the court that, although he had previously been cooperative, defendant now indicated that he would not testify. The court questioned defendant, who told the court he was refusing to testify because he believed it was his fifth amendment right to do so.
¶ 6 The court advised defendant that, because he had given a statement to the police and had previously testified in the Mason trial, he had no reasonable basis for invoking the fifth amendment privilege at that time. The court further advised him that if he persisted in his refusal to testify and was found in contempt without a trial, he could be sentenced to up to 180 days in jail. However, if the prosecutor filed a formal direct criminal contempt petition against him and he was found in contempt after a trial, he could face "a period of years imprisonment to run consecutive, not concurrent, consecutive to the sentence you are currently serving."
¶ 7 At the court's direction, the jury was brought back into the courtroom and the prosecutor called defendant to the stand. The prosecutor questioned defendant, who confirmed that on March 18, 1999, he had been present at the Avis Motel. However, defendant refused to answer any further questions by the prosecutor, asserting his fifth amendment privilege against self-incrimination. A recess was taken and the jury was dismissed for lunch.
¶ 8 After the lunch recess, the prosecutor filed with the court a criminal contempt petition against defendant, as the court had discussed. Hoping that defendant could be persuaded to testify before the Hollins trial ended, the prosecutor asked the court to appoint Public Defender Gus Regas, who had come to court to represent defendant and advise him regarding his decision on whether to testify. As further incentive, the prosecutor informed the court that he had been authorized to offer defendant use immunity in exchange for his truthful testimony in the Hollins case.
¶ 9 Defendant was brought back into the courtroom and the court advised him that Regas, who was present in the courtroom, had been appointed to represent him. The court also advised defendant that the prosecutor was offering him use immunity in exchange for his truthful testimony in the Hollins trial. Finally, the court read the petition charging defendant with direct criminal contempt, in which the prosecutor asked for a sentence of 20 years' imprisonment if defendant were found in contempt.
¶ 10 After these admonishments, the court asked defendant if he wished to enter a plea on the contempt petition at that time. The public defender asked the court for a brief recess to allow him time to confer with defendant. The court granted the request. About an hour later, court came back into session and, without the jury present, defendant was called to the stand. However, the court did not ask defendant if, after speaking with his attorney, he still refused to testify. In fact, defendant was asked no questions at all. Instead, the court noted on the record that defendant's counsel had left the building and then ordered the contempt case against defendant to be held over to Tuesday, November 25, 2008, for a plea hearing.
¶ 11 On Monday, November 24, 2008, Hollins' trial was completed.
Hollins was found guilty of murder and later sentenced to life imprisonment. His conviction and sentence were upheld on appeal. People v. Hollins, No. 3-09-0126 (2011) ...