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Walker v. Bruscato

Court of Appeals of Illinois, Second District

July 30, 2019

DAVID D. WALKER, Plaintiff-Appellant,
JOSEPH BRUSCATO, in His Official Capacity as Winnebago County State's Attorney, Defendant-Appellee.

          Appeal from the Circuit Court of Winnebago County. No. 15-MR-189 Honorable J. Edward Prochaska, Judge, Presiding.

          JUSTICE McLAREN delivered the judgment of the court, with opinion. Presiding Justice Birkett and Justice Hudson concurred in the judgment and opinion.



         ¶ 1 Plaintiff, David D. Walker, filed a complaint alleging that defendant, Joseph Bruscato, in his official capacity as the state's attorney of Winnebago County, improperly denied his requests to disclose under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2016)). The trial court granted summary judgment in favor of defendant and against plaintiff. Since the entry of that judgment, Marilyn Hite Ross succeeded Joseph Bruscato as state's attorney.[1] Plaintiff appeals, arguing that the trial court erred because (1) defendant did not provide him with the transcript he requested, (2) defendant failed to provide and maintain the list he sought, as required by section 5 of FOIA (5 ILCS 140/5 (West 2016)), (3) itinerary sheets for individual indictments presented to the grand jury are not exempt from disclosure under section 7(1)(a) of FOIA (id. § 7(1)(a)) or section 112-6 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/112-6 (West 2016)), and (4) the individual deliberations and votes of the grand jurors for indictments returned are not exempt from disclosure. For the following reasons, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 A. Plaintiffs Prior Litigation

         ¶ 4 Initially, we take judicial notice of our own records (see Auto-Owners Insurance Co. v. Konow, 2016 IL App (2d) 150823, ¶ 5), namely, our decision People v. Walker, 2016 IL App (2d) 140922-U, in which we affirmed the denial of plaintiffs section 2-1401 (735 ILCS 5/2-1401 (West 2016)) petition from his murder conviction. We also note that plaintiff asked the trial court and this court to take judicial notice of that decision.

         ¶ 5 In 2001, plaintiff was charged by indictment with the first-degree murder (720 ILCS 5/9-1(a)(3) (West 2000)) of Cornell Thomas. The bill of indictment is a single sheet. The bill appears to contain the foreperson's signature. The back of the bill has an area with a heading "List of Witnesses" and a handwritten entry, "Det. Redmond." The back also states, "returned in open court this 6th day of May, 2001." However, a file stamp indicates that the bill was filed on June 1, 2001. On July 19, 2001, a hearing took place at which plaintiffs speedy-trial rights were at issue. The State told the trial court that it "brought a superseding bill against [codefendant] Nate Carter and a bill on the same day against David Walker on June 6th, so that's when I presented it to the Grand Jury, so, I think [the bill] is wrong as far as the notation of May." The trial court concluded, and the parties agreed, that June 6, 2001, was the date of the indictment for purposes of calculating the speedy-trial deadline for plaintiff.

         ¶ 6 Plaintiff had a jury trial that resulted in a conviction of the murder charged in the indictment. While plaintiff was awaiting sentencing, he filed, pro se, a motion to dismiss the indictment, arguing, in part, that "[t]he grand jury minutes of [June 6, 2001, ] should of beared [sic] the names of Nate Carter [codefendant] and David Walker instead of, 'In re Matter of Nathaniel Carter.'" The transcript of the grand jury testimony indicates that, on June 6, 2001, Robert Redmond, a detective with the Rockford Police Department, testified concerning his investigation of Thomas's shooting death. Redmond's testimony tended to show plaintiffs role in the shooting and revealed an inculpatory statement plaintiff made to police. Redmond's testimony centered on plaintiff but also related to Carter's involvement.

         ¶ 7 The State responded to plaintiffs motion to dismiss the indictment by stating that the "grand jury minutes regarding the charge of first degree murder were turned over to [plaintiff] prior to trial."

         ¶ 8 On April 25, 2003, the day of the sentencing hearing, the trial court heard plaintiffs motion to dismiss the indictment. Regarding the apparent miscaptioning of the grand jury transcript, Assistant State's Attorney Steven Biagi stated:

"I did *** give to Mr. Walker personally on March 28th of this year, a copy of all the Grand Jury testimony that has ever been presented relating to either of his cases. The Grand Jury testimony of Robert Redmond is the sworn testimony *** that resulted in the Bill of Indictment for first degree murder. The court reporter simply put on the title page that it was the matter of Nathaniel Carter. That's an issue of administrative ease ***."

         The trial court denied plaintiffs motion to dismiss the indictment. That same day, the trial court sentenced plaintiff to 50 years' imprisonment. This court affirmed the conviction and sentence on direct appeal. People v. Walker, 357 Ill.App.3d 1094 (2005) (table) (unpublished order under Illinois Supreme Court Rule 23).

         ¶ 9 Thereafter, plaintiff filed seven separate petitions under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)). Plaintiff abandoned the first three petitions, and the trial court dismissed the fourth petition as frivolous. Plaintiff filed his fifth and sixth petitions in May 2006 and his seventh petition in September 2006. On January 3, 2011, plaintiff filed what he called an amended version of his sixth petition. Count I claimed that there was no jurisdiction to indict plaintiff, because the record lacked the grand jury's swearing or impanelment. Plaintiff thus asserted that the indictment was void and, therefore, the conviction was void as well. Count II claimed that the State committed fraud on the court by "passing off the Carter transcript as [plaintiffs] transcript." After the trial court granted the State's motion to dismiss, plaintiff filed a motion to reconsider and for leave to file an amended petition with two additional counts. Count III alleged that the grand jury had not heard evidence against plaintiff, that the caption of the transcript did not contain plaintiffs name, and that the grand jury indicted plaintiff 31 days before Redmond testified. Count IV rested on the same cluster of claims. The trial court denied plaintiffs motion. This court affirmed the trial court decisions to dismiss plaintiffs petition and to deny him leave to amend it. Walker, 2016 IL App (2d) 140922-U, ¶ 29.

         ¶ 10 B. Current FOIA Litigation

         ¶ 11 In 2014, plaintiff sent four requests to the Winnebago County State's Attorney's Office pursuant to FOIA (5 ILCS 140/1 et seq. (West 2016)). In plaintiffs first request, dated July 15, 2014, he sought "a copy of my grand jury transcript in support of my indictment for 1st Degree Murder." In response to plaintiffs request, on July 22, 2014, David Kurlinkus, the FOIA officer for the Winnebago County State's Attorney's Office, sent plaintiff a transcript of Redmond's testimony. Kurlinkus noted in his cover letter to plaintiff that this was "the fourth time this office has produced this document to you *** pursuant to FOIA." The cover page of the transcript states, "BEFORE THE GRAND JURY WINNEBAGO COUNTY, ILLINOIS," and is titled "IN THE MATTER OF NATHANIEL CARTER." According to the transcript, Redmond testified to the grand jury as follows.

         ¶ 12 On October 1, 2000, Redmond was assigned to investigate a murder that occurred in the 300 block of Lincoln Avenue in Rockford. The victim was Thomas, who was found dead on Lincoln Avenue. An autopsy determined that Thomas died from a gunshot wound to the chest. The Rockford Police Department received a tip that plaintiff was possibly involved in the murder. Based on that tip, Redmond went to plaintiffs apartment and found a .38-caliber revolver and a .44-caliber revolver. The Illinois State Police Crime Lab determined that Thomas died from a bullet fired from the .38-caliber revolver. Redmond then spoke with plaintiff, who provided a signed written statement. Redmond testified that, as reflected in the written statement, plaintiff told Redmond the following.

         ¶ 13 The previous Saturday, plaintiff, Carter, and a third man, James Hackler, planned an armed robbery at a house on Lincoln Avenue. Plaintiff drove Carter and Hackler to an address on Lincoln and gave the .38-caliber revolver to Hackler. Carter and Hackler exited the car. While plaintiff was in the car, he heard gunshots. Carter returned to the car.

         ¶ 14 When the prosecutor asked Redmond whether he recognized "Grand Jury Exhibit No. 1," Redmond testified that it was the three-page written statement that he had taken from plaintiff on October 5, 2000. Redmond testified that the statement was signed by himself and plaintiff. The prosecutor presented plaintiffs statement to the grand jury.

         ¶ 15 The last page of the grand jury transcript contains a "Certificate of Shorthand Reporter," naming "Cindia L. Rosatto." Attached to the transcript is a "Grand Jury Exhibit," namely plaintiffs three-page statement. Plaintiffs statement is consistent with Redmond's testimony. The statement also indicates that, after plaintiff heard gunshots while waiting in his car, Carter ran back to plaintiffs car, "yelling, let's go, go." Further, plaintiff stated that he drove around the block and that, when he drove back onto Lincoln, he saw "this boy laying in the street face down [and said to Carter] you all killed Dude."

         ¶ 16 Plaintiffs second request, dated August 12, 2014, asked for a "current or previous list of the types and categories of record available for inspection and copying maintained in your office." Kurlinkus responded to plaintiff in a letter dated August 19, 2014, stating,

"[T]here are no documents under the control of the Winnebago State's Attorney that are responsive to your request. Specifically, this office does not have 'a current list of the types and categories of records available for inspection and copying maintained by your office.' [FOIA] does not require public entities to create documents that do not exist in response to a FOIA request.

         This does not constitute a denial of your request."

         ¶ 17 Plaintiffs third FOIA request, dated October 7, 2014, asked for a copy of the "Itinerary Record/Sheet of individual indictments presented to the grand jury for presentation for May and June 2001." Plaintiffs fourth FOIA request, also dated October 7, 2014, asked for a copy of "individual deliberation and votes of the grand jurors for indictments returned in May and June 2001." In response to plaintiffs third and fourth requests, in a letter dated October 12, 2014, Kurlinkus informed plaintiff that the records he requested would not be produced, because section 7(1)(a) of FOIA (id. ยง 7(1)(a)) exempts records that are specifically prohibited from disclosure by federal or state law. Kurlinkus further explained that section 112-6(a) of the Code (725 ILCS 5/112-6(a) (West 2016)) states that grand jury proceedings are open only to the "State's Attorney, his reporter and any other person ...

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