People v. Basile
| Docket Number | 2-21-0740 |
| Decision Date | 23 September 2022 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Daniel D. BASILE III, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
J. Hanley, State's Attorney, of Rockford (Patrick Delfino, Edward R. Psenicka, Katrina M. Kuhn, and Steven A. Rodgers, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Mark A. Byrd, of Rockford, for appellee.
¶ 1 The State appeals from the judgment of the circuit court of Winnebago County dismissing a grand jury indictment against defendant, Daniel D. Basile III. Because the trial court did not err in dismissing the indictment, we affirm.
¶ 3 Defendant was charged by complaint with one count of criminal sexual assault based on his having sexually penetrated the victim, Jane Doe, knowing that she was unable to understand the nature of the act or to give knowing consent ( 720 ILCS 5/11-1.20(a)(2) (West 2018)).
¶ 4 Before the grand jury, the State presented only the testimony of Detective Vince Kelly of the Rockford Police Department. He described what Doe told him about the incident. Doe had gone to a bar with a group of friends, including defendant. After drinking at two bars, Doe was "falling down." Defendant and some friends helped Doe get to defendant's car. Defendant then drove Doe home and went into her home with her. Doe then fell onto a couch in the mudroom and told defendant that she was "good" and that he could leave. Doe told Kelly that she could recall defendant removing her pants and underwear and having sexual intercourse with her in the mudroom. According to Kelly, Doe reported being in and out of awareness because of her intoxication. Doe could not remember how her shoes came off. She later became aware that she was in her bedroom and that defendant was licking her feet. Doe did not know how she got to her bedroom. Defendant then had sexual intercourse with Doe while in her bedroom. Doe denied having performed any sexual acts on defendant, because she was too intoxicated to do so. Doe knew defendant because they both worked at the Rockford Police Department.
¶ 5 At the end of Kelly's testimony, the prosecutor asked if any of the grand jurors had questions for Kelly. One juror asked, "Besides that [Doe] said that this occurred, was there any other evidence that [defendant] actually did this to her?" Kelly answered that he did not completely understand the question. The juror then asked, "You said that [Doe] was extremely intoxicated, correct?" Kelly responded, "Correct." The juror then asked, "How do we know that the person [Doe] claims did this to her did it to her?" Kelly answered, "He told me he did." The juror then commented, "That is all I needed to know."
¶ 6 The grand jury returned an indictment, charging defendant with two counts of criminal sexual assault based on lack of consent ( 720 ILCS 5/11-1.20(a)(2) (West 2018)). Defendant filed a motion to dismiss the indictment, contending that he was denied due process because Kelly's answer to the grand juror's question was false and misleading in that it conveyed to the grand jury that defendant had confessed to the crime. In support of the motion to dismiss, defendant submitted the transcript of the grand jury proceeding and a video-recorded interview of defendant in which he (1) told Kelly that the sexual encounter with Doe was consensual, (2) denied Doe's version of events as to lack of consent, and (3) denied committing criminal sexual assault.
¶ 7 In its response, the State argued that the grand juror's question pertained only to the identity of the person who had sex with Doe and not to whether the sex was consensual or nonconsensual. Correspondingly, when Kelly answered, "[Defendant] told me he did," Kelly was conveying simply that defendant admitted having sex with Doe and not that defendant confessed that the sex was nonconsensual. Thus, according to the State, Kelly's testimony was not false and misleading.
¶ 8 Following a hearing on defendant's motion to dismiss, the trial court found that the grand juror's question was not one of identity and that Kelly's answer essentially informed the grand jury that defendant had confessed to sexually assaulting Doe. That answer was false and misleading, the court determined, because defendant had not confessed to the crime in the video-recorded interview. The court held that, once Kelly gave his answer, the prosecutor was obliged to clarify whether Kelly meant that defendant had confessed to sexually assaulting Doe or had merely admitted that he was the one who had had sex with Doe. The court agreed with the State that, before the grand juror questioned Kelly, the State had presented sufficient evidence to establish probable cause. Nonetheless, the court concluded that Kelly's false and misleading testimony so prejudiced the grand jury proceeding that the indictment must be dismissed. The State, in turn, filed this timely appeal.
¶ 10 On appeal, the State contends that we should reverse the trial court's dismissal of the indictment because defendant failed to demonstrate that Kelly's answer to the grand juror denied defendant due process. The State specifically argues that defendant failed to establish that (1) the State acted intentionally in presenting what defendant claims was deceptive or inaccurate evidence, (2) it was "unequivocally clear" (internal quotation marks omitted) ( People v. Nolan , 2019 IL App (2d) 180354, ¶ 10, 435 Ill.Dec. 774, 140 N.E.3d 824 ) that the State indeed presented deceptive or inaccurate evidence, and (3) defendant suffered "actual and substantial" prejudice (internal quotation marks omitted) ( Nolan , 2019 IL App (2d) 180354, ¶ 10), 435 Ill.Dec. 774, 140 N.E.3d 824 from that evidence.
¶ 11 Before we discuss the merits, we note that the State has filed a motion to strike as argumentative the section titled "Additional Facts for Consideration" in defendant's brief. Illinois Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020) requires that the facts in an appellate brief be "stated accurately and fairly without argument or comment." We agree with the State that portions of the section contain impermissible commentary, and we remind defendant's counsel that our supreme court rules "are not mere suggestions but have the force of law and should be followed." People v. Ruhl , 2021 IL App (2d) 200402, ¶ 56, 456 Ill.Dec. 113, 193 N.E.3d 81. Nonetheless, we decline to strike the entire section but instead will disregard any noncompliant portions.
¶ 12 We turn to our standard of review. Because there is no factual dispute as to the contents of the grand jury transcript or the content of defendant's statement in the video-recorded interview, we review de novo whether defendant was denied due process. See People v. Oliver , 368 Ill. App. 3d 690, 695, 307 Ill.Dec. 38, 859 N.E.2d 38 (2006).
¶ 13 The grand jury determines whether probable cause exists that an individual has committed a crime, thus warranting a trial. Nolan , 2019 IL App (2d) 180354, ¶ 9, 435 Ill.Dec. 774, 140 N.E.3d 824 (citing 725 ILCS 5/112-4 (West 2014) ). Interposing a grand jury between the individual and the State limits indictments for higher crimes to those offenses charged by a group of one's fellow citizens acting independently of the State and the court. Nolan , 2019 IL App (2d) 180354, ¶ 9, 435 Ill.Dec. 774, 140 N.E.3d 824. In that independent role, a grand jury performs two distinct, but equally important, functions: (1) serving as an accuser sworn to investigate and present for trial persons suspected of wrongdoing and (2) standing as a shield between the accuser and the accused, protecting the individual citizen against oppressive and unfounded prosecution. Nolan , 2019 IL App (2d) 180354, ¶ 9, 435 Ill.Dec. 774, 140 N.E.3d 824.
¶ 14 To preserve the grand jury's independence, challenges to its proceedings are limited.
Nolan , 2019 IL App (2d) 180354, ¶ 10, 435 Ill.Dec. 774, 140 N.E.3d 824 (citing People v. DiVincenzo , 183 Ill. 2d 239, 255, 233 Ill.Dec. 273, 700 N.E.2d 981 (1998), abrogated on other grounds by People v. McDonald , 2016 IL 118882, 412 Ill.Dec. 858, 77 N.E.3d 26 ). Generally, a defendant may not question the validity of an indictment returned by a legally constituted grand jury. Nolan , 2019 IL App (2d) 180354, ¶ 10, 435 Ill.Dec. 774, 140 N.E.3d 824. Nor may a defendant challenge the sufficiency of the evidence considered by a grand jury, as long as "some evidence" was presented. Nolan , 2019 IL App (2d) 180354, ¶ 10, 435 Ill.Dec. 774, 140 N.E.3d 824. A defendant may, however, challenge an indictment that was procured through prosecutorial misconduct. Nolan , 2019 IL App (2d) 180354, ¶ 10, 435 Ill.Dec. 774, 140 N.E.3d 824. "A defendant's due process rights can be violated if the prosecutor deliberately misleads the grand jury, knowingly uses perjured or false testimony, ‘or presents other deceptive or inaccurate evidence.’ " Nolan , 2019 IL App (2d) 180354, ¶ 10, 435 Ill.Dec. 774, 140 N.E.3d 824 (quoting DiVincenzo , 183 Ill. 2d at 257, 233 Ill.Dec. 273, 700 N.E.2d 981 ). However, the denial of due process must be "unequivocally clear" and the prejudice "actual and substantial." (Internal quotation marks omitted.) Nolan , 2019 IL App (2d) 180354, ¶ 10, 435 Ill.Dec. 774, 140 N.E.3d 824.
¶ 15 We begin with the State's assertion that defendant was required to establish that the State acted intentionally in presenting deceptive or inaccurate evidence. He was not.
¶ 16 In Oliver , 368 Ill. App. 3d at 696, 307 Ill.Dec. 38, 859 N.E.2d 38, we acknowledged our comment in People v. Hart , 338 Ill. App. 3d 983, 991, 273 Ill.Dec. 731, 789 N.E.2d 905 (2003), that "there must be, at the very least, intent on the part of some State actor to materially mislead the grand jury in order to give rise to a violation of due process." We...
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