In re Doe
| Decision Date | 24 April 2013 |
| Docket Number | No. 2-12-0425,2-12-0425 |
| Citation | 2013 IL App (2d) 120425 |
| Parties | In re JOHN DOE INVESTIGATION (Sheila Brown and Marissa Brown, Defendants-Appellants). |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Winnebago County.
¶ 1 Held: Because the trial court abused its discretion in denying defendants' emergency petition to continue the grand jury subpoenas, we vacated the trial court's order finding defendants in indirect criminal contempt. Thus, we reversed the trial court.
¶ 2 On December 17, 2009, the State subpoenaed defendants, Sheila Brown and Marissa Brown, to appear before a grand jury proceeding on December 23, 2009, regarding a shooting the defendants witnessed. On December 21, 2009, defendants filed an emergency petition to continue the proceedings, arguing that they had previously purchased airline tickets to travel to Mississippi on December 23, 2009, to visit relatives for the holidays; the trial court denied the request. Followingthe hearing, defendants' counsel filed a notice of appeal challenging the trial court's order. On the advice of counsel, defendants traveled to Mississippi and did not appear before the grand jury.
¶ 3 Thereafter, the State filed petitions for indirect criminal contempt against defendants. Following a hearing, the trial court entered an order finding defendants in indirect criminal contempt for failing to appear before a grand jury on December 23, 2009. The trial court fined defendants $500 each. Defendants now appeal, contending that the State failed to prove beyond a reasonable doubt that their failure to appear was willful. For the following reasons, we vacate the trial court's order holding defendants in indirect criminal contempt and reverse its judgment.
¶ 5 The record reflects that, on August 24, 2009, defendants witnessed two Rockford police officers shoot Mark Anthony Barmore, resulting in his death. Defendants received subpoenas to appear before a Winnebago County grand jury on September 11, 2009, but were later advised by the State that they would not have to appear. In October 2009, defendants purchased airline tickets to travel to Mississippi on December 23, 2009, to spend the holidays with family. On December 17, 2009, the State again subpoenaed defendants. The subpoenas required defendants to testify before the grand jury on December 23, 2009.
¶ 6 On December 21, 2009, defendants filed an emergency petition to continue the grand jury subpoenas. Defendants noted that the grand jury term had been extended until January 6, 2010, and that they would be available to testify on that date. Defendants noted that they purchased airline tickets "two months ago" to travel to Mississippi to visit relatives. Defendants argued that, because they had arranged to travel on December 23, two days before Christmas and one of the busiest travel days of the year, no other travel options were available other than flying standby, which would not guarantee that they would arrive in Mississippi in time for the holidays.
¶ 7 The State countered that January 6, 2010, was not convenient because the two attorneys handling this matter, the State's Attorney and one of his deputies, were scheduled to be on trial in an unrelated matter. The State argued that defendants were aware that they were involved in this investigation and that, when they made their travel arrangements, they made no effort to share their plans with the State.
¶ 8 During the course of the hearing, the trial court noted that defendants' emergency petition "really boils down to who's going to be inconvenienced here." The State argued that it was not possible for another attorney from the State's Attorney's office to present defendants to the grand jury on January 6, 2010, even though the grand jury was already set to convene on that date. The trial court further inquired into whether another attorney in the State's Attorneys office could be assigned to present the witnesses to the grand jury "knowing that you've got a couple weeks to *** prepare." The State's Attorney responded that he was:
"[C]oncerned about what decision comes that day by the grand jury, that's the completion of the proceedings, and the responsibilities of this office to report that to the community, as the community has taken great interest in this matter, and I think that presents something that *** I could not assign [this matter] to an assistant [S]tate's [A]ttorney to handle."
Thereafter, the following colloquy occurred:
The trial court denied defendants' emergency petition. The trial court opined:
The trial court concluded, "I don't think it really is of such an [e]mergent nature that I want to interfere or postpone the work that the grand jury will be doing on that day in this case."
¶ 9 On December 22, 2009, defendants filed a notice of appeal of the trial court's denial of their emergency petition. On December 28, 2009, the State filed petitions for rules to show cause against defendants for failing to appear at the December 23, 2009, grand jury proceedings. On January 4, 2010, the State filed petitions for adjudication of criminal contempt against defendants. On January 11, 2010, defendants filed motions to stay the contempt proceedings in the trial court pending appellate review. Defendants also filed motions to substitute the trial court judge and raised other jurisdictional challenges. On January 20, 2010, the trial court denied each of defendants' then-pending motions. On February 17, 2010, defendants filed an emergency motion to stay the trial court proceedings pending appellate review, pursuant to Illinois Supreme Court Rule 305(d) (eff. July 1, 2004). On February 19, 2010, the trial court stayed the proceedings. Thereafter, this court dismissed defendants' appeal for lack of jurisdiction (see In re John Doe Investigation, 2011 IL App (2d) 091355).
¶ 10 On March 21, 2012, a bench trial commenced with respect to the State's petitions for criminal attempt. The State presented evidence by way of stipulation. The parties stipulated that defendants were represented by counsel between September 2009 through January 2010, and that counsel appeared before the trial court on December 21, 2009. The parties stipulated that defendants filed an emergency petition to continue the grand jury proceedings on December 21, 2009, and that the subpoenas were received by defendants' attorneys. The subpoenas required defendants' presence on December 23, 2009. The parties stipulated that defendants' attorneys were present at the December 21, 2009, hearing, when the trial court denied defendants' emergency petition. The parties further stipulated that Mr. Bruscato and an assistant State's Attorney appeared at the December 21,2009, hearing, and those attorneys presented witnesses to the grand jury on December 23, 2009, regarding the shooting. The parties stipulated that defendants did not appear pursuant to the December 17 subpoenas. After the trial court admitted the stipulations, the State rested.
¶ 11 Defendants first called Sheila Brown. Sheila testified that her attorney advised her in September 2009 that she was subpoenaed to appear before a grand jury on September 11, 2009, but that she was later advised by her attorneys that she did not have to appear on that date. Thereafter, in September and October, she made arrangements to travel to Mississippi to visit her 66-year-old parents and 89-year-old grandmother. Sheila testified that she conferred with her attorney before making the arrangements, and he advised that "it shouldn't be a problem." Sheila testified that she paid $790 for airline tickets for her and Marissa, and that she heard nothing from the State regarding the grand jury until December 17, 2009. Sheila testified that she discussed the December 17, 2009,...
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