People v. Crawford Distributing Co., Inc.

• Citation: 78 Ill.2d 70,34 Ill.Dec. 296,397 N.E.2d 1362
• Decision Date: 03 December 1979
• Docket Number: No. 51420,51420
• Parties: , 34 Ill.Dec. 296, 1980-1 Trade Cases P 63,056 The PEOPLE of the State of Illinois, Appellee, v. CRAWFORD DISTRIBUTING COMPANY, INC., et al. Appeal of MAURER DISTRIBUTING CO.
• Court: Supreme Court of Illinois

Page 1362

397 N.E.2d 1362

78 Ill.2d 70, 34 Ill.Dec. 296, 1980-1

Trade Cases P 63,056

The PEOPLE of the State of Illinois, Appellee, v. CRAWFORD DISTRIBUTING COMPANY, INC., et al.

Appeal of MAURER DISTRIBUTING CO.

No. 51420.

Supreme Court of Illinois.

Dec. 3, 1979.

Marshall A. Susler, Robert D. Owen, and Linda M. Castleman of Owen, Roberts, Susler & Murphy, Decatur, for appellant.

William J. Scott, Atty. Gen., Chicago (John E. Noel, Chief, Antitrust Div., and Thomas S. Malciauskas, Asst. Attys. Gen., Chicago, of counsel), for the People.

RYAN, Justice:

Following a jury trial, the defendant, Maurer Distributing Company, a corporation, was convicted in the circuit court of Macon County of engaging in a conspiracy in restraint of trade, in violation of section 3(1)(a) of the Illinois Antitrust Act (Ill.Rev.Stat.1971, ch. 38, par. 60-3(1)(a)) and fined $10,000. The appellate court affirmed the conviction with one justice dissenting (65 Ill.App.3d 790, 22 Ill.Dec. 525, 382 N.E.2d 1223), but granted a certificate of importance, pursuant to Supreme Court Rule 316 (58 Ill.2d R. 316).

Before considering the merits of the case, a procedural matter warrants mentioning. The primary question raised in the defendant's application for a certificate of importance has been rendered moot by our decision in People v. Fife (1979), 76 Ill.2d 418, 30 Ill.Dec. 300, 392 N.E.2d 1345; however, under Rule 316, the whole case comes before us and not just a particular issue. (Nowicki v. Union Starch & Refining Co. (1973), 54 Ill.2d 93, 296 N.E.2d 321.) Thus, we are not confined to answer only the question which the defendant sought to have certified.

The defendant contends the trial court erred in permitting the State to call Michael Maurer as a witness in front of the jury when the State was informed that Maurer would not testify but would plead his fifth amendment privilege. Michael Maurer was the president and sole shareholder of defendant Maurer Distributing Company. Prior to calling him as a witness, the State made a motion, out of the presence of the jury, to grant him immunity pursuant to section 106-1 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1971, ch. 38, par. 106-1). That section provides for a grant of full transactional immunity to the recipient. (People ex rel. Cruz v. Fitzgerald (1977), 66 Ill.2d 546, 6 Ill.Dec. 888, 363 N.E.2d 835.) Maurer objected to the motion and argued that the Attorney General had previously promised immunity not only to him personally, but also to his defendant corporation, and he refused to testify unless this immunity was given. Maurer had previously given a statement to the State in response to a subpoena pursuant to section 7.2 of the Illinois Antitrust Act (Ill.Rev.Stat.1971, ch. 38, par. 60-7.2) during the State's investigative procedure, and he had testified before the grand jury. The State argued that it could not grant any broader immunity than a transactional immunity. The court granted the State's motion. The State then requested that Maurer be called as a witness. However, since Maurer continued to argue that he would not testify but rather plead the fifth amendment, the court determined to have the witness called out of the presence of the jury so that the jury would not be prejudiced. The State called Maurer and he stated his name and address, but when asked where he worked, he claimed his privilege and read from a prepared statement on why he refused to testify.

The court then conducted an examination outside the presence of the jury to determine whether immunity had been granted the Maurer Distributing Company. The court ruled that immunity had never been granted to the corporation, but it made no findings or conclusions with regard to the dimensions of the immunity granted Mr. Maurer. The State then asked the court to call Maurer as the court's witness, but the motion was denied. The State then requested that Maurer be called to testify in front of the jury, and the defense counsel objected on the grounds that Maurer had indicated he would plead the fifth amendment and inferences from this procedure would prejudice their client. The court granted the State's request and Maurer refused to testify. The court ordered him to answer the State's question and he refused. The court then had the jury removed and held a contempt hearing and advised the witness as to his immunity and the consequences of his refusal. The witness then agreed to testify and did testify when the jury was recalled. The defense contends it was reversible error for the State to place Maurer on the stand when it knew he would plead the fifth amendment in front of the jury.

We agree with the appellate court that the episode involving the witness' claiming his privilege did not call for a mistrial either on the theory of prosecutorial misconduct or on a theory of actual or potential prejudice. The problem presented when a witness invokes his fifth amendment privilege in the presence of the jury is not new. Our court has held on several occasions that it is reversible error for the prosecutor to compel a witness to claim his constitutional privilege before the jury when the effect is to suggest by implication or innuendo that the defendant is guilty of a crime. (People v. Myers (1966), 35 Ill.2d 311, 220 N.E.2d 297; People v. Haran (1963), 27 Ill.2d 229, 188 N.E.2d 707; People v. Bennett (1953),413 Ill. 601, 110 N.E.2d 175.) However, the act of a prosecutor calling a witness to the stand with advance knowledge that the witness will invoke the fifth amendment may or may not be error. Each case must be decided in light of its own facts and circumstances, and consideration must be given to the motive of the prosecutor in calling the witness and to the likelihood of the jury drawing unwarranted inferences against the defendant from the fact that the witness has declined to testify on constitutional grounds. (United States v. Quinn (8th Cir. 1976), 543 F.2d 640.) The United States Supreme Court, in Namet v. United States (1963), 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278, noted two situations found in lower court opinions that constitute reversible error when a prosecutor forces a witness to assert his fifth amendment privilege in front of a jury: first, "when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege," and second, where "a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination." Namet v. United States (1963), 373 U.S. 179, 186-87, 83 S.Ct. 1151, 1154-55, 10 L.Ed.2d 278, 283-84.

The present situation does not fall within either of the situations noted by the Supreme Court. Here, the prosecutor had sought and obtained for the witness a grant of immunity from prosecution. Thereafter, the prosecutor did not believe the witness could claim the privilege due to the immunity granted and had every right to demand and to expect the witness' testimony under compulsion by the court if necessary. (Lefkowitz v. Turley (1973),414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274.) The prosecution made no conscious or flagrant attempt to bolster its case as the result of the invocation by the witness of the testimonial privilege. Nor do we find that the one unjustified invocation of the privilege was of such significance as to add critical weight to the prosecution's case in a form not subject to cross-examination. The effect of the answer was minimized or nullified when the witness later recanted and returned to the witness stand and testified, and was subject to questioning by all counsel. Any threat to the defendant's sixth amendment rights of confrontation and cross-examination, due to Maurer's pleading the fifth amendment in front of a jury, was eliminated. (Namet v. United States (1963), 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278; United States v. Quinn (8th Cir. 1976), 543 F.2d 640; United States v. Anderson (D.C.Cir.1974), 165 U.S.App.D.C. 390, 509 F.2d 312; United States v. Foster (7th Cir. 1973), 478 F.2d 1001; United States v. Puntillo (7th Cir. 1971), 440 F.2d 540.) Thus, we hold that the procedure followed did not give rise to reversible error.

The second issue is whether the trial court properly allowed the testimony of Frank Foley and admitted the charts prepared by him into evidence. Frank Foley, an investigator in the office of the Illinois Attorney General, was called as a State's witness. The foundation was laid showing that he was an accountant capable of analyzing voluminous records. He testified to having examined 1,200 to 1,250 invoices selected by the prosecutor from a much larger number subpoenaed from the defendant distributors. (This case originally involved several beer distributor defendants.) He stated that he reviewed, tabulated, summarized and charted the beer price invoices. The invoices selected concerned beer sales by various defendants of the highest selling brands in the most popular container sizes for a 3-day period in late December 1969. Foley's charts depicted the prices which these invoices indicated the defendants charged during the period, and indicated a simultaneous price increase by the distributors, including the present defendant. The charts were to graphically demonstrate to the jury what the sum of the invoices showed and to determine whether the beer invoices obtained from the defendants confirmed that they actually did increase prices in conformity with price increase announcements issued earlier by them. The defense objected to the charts being introduced into evidence, but the judge admitted them since the invoices could be admitted as evidence. The defense now argues that Foley should not have been allowed to testify as an expert, that any expertise he might have was not utilized, and that the charts should not have been admitted into evidence.

It is generally accepted in Illinois that where originals...