People v. Denson

Decision Date21 January 1975
Docket NumberNo. 46453,46453
Citation59 Ill.2d 546,322 N.E.2d 464
PartiesThe PEOPLE of the State of Illinois, Appellee, v. Barbara DENSON, Appellant.
CourtIllinois Supreme Court

Sam Adam, Edward M. Genson, James J. Cutrone, and Alan Blumenthal, Chicago, for appellant.

William J. Scott, Atty. Gen., Springfield, and Bernard Carey, State's Atty., Chicago (James B. Zagel and Jayne A. Carr, Asst. Attys. Gen., and Patrick T. Driscoll, Jr., and Thomas D. Rafter, Asst. State's Attys., of counsel), for the People.

DAVIS, Justice:

This case originated in the circuit court of Cook County and involves a sentence of 6 months for contempt. The appellate court affirmed the sentence (16 Ill.App.3d 230, 305 N.E.2d 263), and we granted leave to appeal. Facts essential to the decision of this case are related in the appellate opinion, and we here adopt that statement of facts.

The appellant was called to testify as a witness for the State in the murder trial of Curtis Berry. Although not legally married, she had lived with him as his wife for a number of years, and had given incriminating testimony against him before the grand jury, the result of which was Berry's indictment for murder. The appellant was called as a witness at the trial, was then made a court's witness, and eventually was granted immunity under article 106 of the Code of Criminal Procedure (Ill.Rev.Stat.1969, ch. 38, pars. 106--1, 106--2), which provided:

'106--1. Granting of Immunity. 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.

106--2. 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 except for perjury committed in the giving of such testimony.'

She still refused to testify, claiming that the immunity granted was not as broad as her fifth amendment rights; however, the statute in question was so construed in People v. Walker (1963), 28 Ill.2d 585, 192 N.E.2d 819, where, without citing authority, the People suggested that immunity is not to be extended to prior perjury, and there the court, at page 509, 192 N.E.2d at page 823, stated: 'The short answer to the People's suggestion, of course, is that the statute contains no exception as to prior perjury, and that such an exception would render it invalid.' And, at page 591, 192 N.E.2d at page 823, stated: 'A charge of perjury cannot, therefore, be predicated upon the falsity of those statements. The situation is not altered by section 32--2 of the Criminal Code of 1961 * * *. In the words of the immunity statute, the offense of perjury by inconsistent statements was shown 'in whole or part' by the testimony that he gave under the statutory grant of immunity.'

Ordinarily, the fact that the scope of immunity was sufficient would be the conclusive answer to the claim that the contempt holding was proper. The circumstances of the case at bar are unique, however, and resort should be had to the record. The initial confusion began during the trial of Curtis Berry when on May 25, 1971, Miss Denson was called as a witness by the State and requested to confer with her attorney, Sam Adam, before answering any questions. The court directed her to answer the prosecutor's questions, noting that she had not claimed 'certain protections.' She proceeded to answer the questions put to her, whereupon the prosecutor claimed that she was answering in a manner which indicated she would be a hostile witness and asked that she be made a court's witness so that he might cross-examine her. A hearing was held outside of the presence of the jury, and the judge ruled that she should be called as a court's witness.

After the noon recess, Miss Denson returned with her attorney, and was given an opportunity to confer with him. Attorney Adam then made the following representation to the court:

'If your Honor please. I represent Miss Denson a witness before your Honor, and she and I have conferred today and on other occasions, and I have also been in your Honor's court this morning and heard some of the questions asked of her and some of her responses outside the presence of the jury.

After our conference, Judge, it is my opinion if she testifies in this case that answers to questions asked of her may well tend to incriminate her, and at this time, your Honor, if the Court please, she would assert her right not to testify on the grounds that any answers given by her may result in incriminating evidence being used or being asserted by the State against her. She would rely upon the 5th Amendment to the Constitution and the 14th Amendment to the Constitution.

Pursuant to your Honor's direction I did advise her that there are sanctions, if your Honor please, that your Honor might take such as contempt, if in fact her answers would not incriminate her.

But it is her honest belief, and after conferring with me it is my opinion also, and I have advised her, having testified before the Grand Jury and having made statements at other places, and also statements under oath this morning, it is my advice to her, Judge, if she testifies now in this cause at this time her answers to questions may tend to incriminate her, and she would assert that privilege not to testify.'

When Adam pointed out that Miss Denson had not been represented by counsel when she testified before the grand jury the prosecutor replied:

'She was represented by the State's Attorney there. I may draw the attention of the Court to the fact she is Count 3 of this indictment, a victim in Count 3 of the indictment, and she was represented by her lawyer, and her lawyer is the State's Attorney of Cook County at that time, and her rights were fully protected by the State's Attorney of Cook County.'

Eventually it was established that Miss Denson was going to refuse to answer any questions on the basis that to do so would violate her rights under the fifth amendment to the United States Constitution, and the State agreed to provide her with immunity from prosecution.

Upon the People's motion, the trial judge then entered an order of immunity under article 106 of the Code of Criminal Procedure (Ill.Rev.Stat.1969, ch. 38, par. 106--1 et seq.). The original order of immunity submitted by the People read as follows:

'It is hereby ordered that Barbara Denson, pursuant to Chapter 38, Article 106, is hereby granted immunity from prosecution * * * from all liability to be prosecuted or punished on account of any matter except Chapter 38, Sec. 32--2, Illinois Revised Statutes, 1969, to which she shall testify.'

Before the judge signed the proposed order quoted above, counsel for Miss Denson noted its broad reference to the Illinois perjury statute (Ill.Rev.Stat.1969, ch. 38, par. 32--2) and in an ensuing colloquy, the court, with the concurrence of Miss Denson's counsel and the assistant State's Attorney entered the following amended order:

'This cause coming on to be heard upon motion of the PEOPLE OF THE STATE OF ILLINOIS, and the Court being fully advised in the premises:

IT IS HEREBY ORDERED that BARBARA DENSON, pursuant to Chapter 38, Section (Article) 106, is granted immunity from prosecution in the above entitled cause from all liability to be prosecuted or punished on account of any testimony or other evidence she may be required to produce except for perjury committed in the giving of such testimony.'

The trial judge, with the agreement of the assistant State's Attorney, made it clear, before entering this amended order, that the immunity being conferred had the full breadth of that granted by article 106 of the Code of Criminal Procedure.

After consulting with her attorney following entry of the immunity order, Miss Denson again refused to testify. The trial judge then found Miss Denson in contempt of court and entered the following order:

'IT IS THEREFORE ORDERED AND ADJUDGED that the contemnor, Barbara Denson, because of the said direct contempt of this Court is hereby committed to the County Jail of Cook County * * * until such time as she appears before this Court and answers the questions propounded to her thereby purging herself of her aforesaid contumacious acts.'

Thereafter the contemnor again appeared in court and stated she would not testify, and the court ruled as follows:

'The Court is of the opinion that the record clearly shows that Miss Denson has violated the order of the Court to testify even though she has been granted immunity and that she has committed contumacious conduct that is a direct contempt of this Court, and this Court now sentences her to six months in the County Jail or until such time as she purges herself of her contempt, which means that if Miss Denson should change her mind and decide to testify at any time prior thereto she may purge herself of her contempt and be relieved of this order.'

The basic problem was that the court and the attorneys could not agree on what testimony was to be included in the order, I.e., what constituted 'such testimony.'

It is readily apparent that the prosecutor did not believe that Miss Denson had been granted immunity from the perjury, if any, which she had previously committed before the grand jury. It is less clear whether or not the prosecutor thought that he would be able to use the testimony given under immunity to establish that prior perjury. It is fair to assume that the prosecutor did intend to so use the testimony if it was inconsistent with the grand jury testimony or he would have agreed to Adam's request that the State agree not to use the grand jury testimony vis-a-vis the immunity testimony for the purpose of showing inconsistent statements. Section 32--2(a)(b) of the Criminal Code in force at that time (Ill.Rev.Stat.1969, ch. 38,...

To continue reading

Request your trial
8 cases
  • U.S. v. Patrick
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • September 23, 1976
    ...of inconsistent statements on immunity grants was discussed by the Illinois Supreme Court in the recent case of People v. Denson, 59 Ill.2d 546, 322 N.E.2d 464 (1975). In Denson the witness was held in contempt for refusal to testify at trial despite her being granted immunity for such test......
  • Sunset Travel, Inc. v. Lovecchio, 81-1960
    • United States
    • United States Appellate Court of Illinois
    • March 24, 1983
    ...contempt proceeding is coercive in nature, its intent being to obtain compliance with the court's order or judgment. People v. Denson (1975), 59 Ill.2d 546, 322 N.E.2d 464. In Marcisz v. Marcisz (1976), 65 Ill.2d 206, 208-9, 2 Ill.Dec. 310, 312, 357 N.E.2d 477, 479, the court, quoting from ......
  • Cooper v. Rockford Newspapers, Inc.
    • United States
    • United States Appellate Court of Illinois
    • June 30, 1977
    ...104, 105 (1969). See also People ex rel. Kunce v. Hogan, Ill. 7 Ill.Dec. 63, 364 N.E.2d 50 (1977) (Doc. 48553); People v. Denson, 59 Ill.2d 546, 554-5, 322 N.E.2d 464 (1975).) In this case there was no actual or imminent interference with the administration of justice. The trial judge who e......
  • People v. Todd
    • United States
    • Illinois Supreme Court
    • January 21, 1975
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT