People ex rel. Cruz v. Fitzgerald

• Decision Date: 20 May 1977
• Docket Number: No. 48864,48864
• Citation: 66 Ill.2d 546,363 N.E.2d 835,6 Ill.Dec. 888
• Parties: , 6 Ill.Dec. 888 The PEOPLE ex rel. Robert CRUZ, Petitioner, v. James FITZGERALD, Judge, et al., Respondents.
• Court: Illinois Supreme Court

Page 835

363 N.E.2d 835

66 Ill.2d 546, 6 Ill.Dec. 888

The PEOPLE ex rel. Robert CRUZ, Petitioner, v. James FITZGERALD, Judge, et al., Respondents.

No. 48864.

Supreme Court of Illinois.

May 20, 1977.

Patrick A. Tuite, Chicago, for petitioner.

William J. Scott, Atty. Gen., Springfield (James B. Zagel, Jayne A. Carr, Asst. Attys. Gen., of counsel), for respondents.

THOMAS J. MORAN, Justice:

This is an original petition for a writ of prohibition to prevent the judges of the Eighteenth Judicial Circuit in Du Page County from presiding over a trial of the petitioner, Robert Cruz, and alternatively or in conjunction with the above, for a writ of Mandamus ordering the State's Attorney for the County of Du Page to refrain from prosecuting him. The petitioner claims that he was granted transactional immunity from prosecution for the offenses now pending in Du Page County by order of the presiding judge of the criminal court of Cook County, but that Du Page Judge James Fitzgerald denied the petitioner's subsequent motion to dismiss the Du Page indictments. Although not affirmatively demonstrated by the record herein, it is alleged by the petitioner, without contradiction, that the Du Page judge ordered the State not to use the compelled testimony in its prosecution of petitioner.

In June of 1975, the petitioner was indicted on five charges of theft in Du Page County. In January of 1976, while these indictments were pending, the petitioner was subpoenaed before the Cook County grand jury which was investigating an unrelated offense of homicide. There, the petitioner refused to answer questions and asserted his right against self-incrimination. Apparently without communicating with the Du Page County State's Attorney, the Cook County prosecutor moved to grant petitioner immunity, and it was granted under section 106--1 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1975, ch. 38, par. 106--1). Before the Cook County grand jury, the prosecutor asked the petitioner if he had told 'Agent Naughton that during a trial that would be coming up, you were going to have two union members * * * offer perjured testimony to get you off the (Du Page County) charges?' The petitioner responded in the negative and asked if the prosecutor wanted him to explain what happened. The prosecutor replied affirmatively and urged, 'Take your time. Go ahead. I want it to be clear.' The petitioner thereupon explained at some length the circumstances out of which the five Du Page County indictments arose and his relationship with the above union members.

Pursuant to section 114--1(a)(3) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1975, ch. 38, par. 114--1(a)(3)), the petitioner subsequently moved the circuit court of Du Page County to dismiss the indictments there pending against him. His motion was based on the grounds that he received immunity from prosecution because of his compelled testimony before the Cook County grand jury regarding those crimes. The Du Page judge denied the motion to dismiss.

The petitioner asserts that he is fully immunized from prosecution in Du Page County because the order of the Cook County court granted him transactional immunity. The State maintains that the grant of immunity in Cook County should only be given the effect of use immunity in the Du Page proceedings.

Under use immunity, a witness' compelled testimony or leads derived therefrom may not be used in his prosecution. Under transactional immunity, however, the witness is fully immunized from prosecution for any offenses to which his compelled testimony may relate. See Kastigar v. United States (1972), 406 U.S. 441, 92 S.Ct. 1653, 32 L.E.2d 212.

Section 106--1 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1975, ch. 38, par. 106--1) provides:

'In any investigation before a Grand Jury, or trial in any court of record, the court on motion of the State may order that any material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce.'

Section 106--2 (Ill.Rev.Stat.1975, ch. 38, par. 106--2) states the effect of immunity:

'Such order of immunity shall forever be a bar to prosecution against the witness for any offense shown in whole or in part by such testimony or other evidence * * *.'

The petitioner correctly points out that virtually identical language granting immunity 'on account of any transaction, matter or thing concerning which he may testify * * *' has been interpreted to confer transactional immunity by the United States Supreme Court in Brown v. Walker (1896), 161 U.S. 591, 594, 16 S.Ct....