People v. Fassler

• Decision Date: 30 October 1992
• Docket Number: No. 72153,72153
• Citation: 153 Ill.2d 49,178 Ill.Dec. 782,605 N.E.2d 576
• Parties: , 178 Ill.Dec. 782 The PEOPLE of the State of Illinois, Appellant, v. Tom FASSLER, Appellee.
• Court: Illinois Supreme Court

Page 576

605 N.E.2d 576

153 Ill.2d 49, 178 Ill.Dec. 782

The PEOPLE of the State of Illinois, Appellant, v. Tom FASSLER, Appellee.

No. 72153.

Supreme Court of Illinois.

Oct. 30, 1992.

Roland W. Burris, Atty. Gen., Springfield, and H. Wesley Wilkins, State's Atty., Jonesboro (Rosalyn B. Kaplan, Solicitor Gen., and Terence M. Madsen, Asst. Atty. Gen., Chicago, and Kenneth R. Boyle, Stephen E. Norris and Gerry R. Arnold, of the Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, of counsel), for People.

Finch & Karraker, P.C., of Anna, for appellee.

Chief Justice MILLER delivered the opinion of the court:

This case requires us to examine alleged irregularities in a grand jury proceeding, including violations of grand jury secrecy and accusations of prosecutorial misconduct.

On September 30, 1988, a Union County grand jury indicted the defendant for aggravated criminal sexual abuse and battery. The charges alleged that the defendant, a school teacher, fondled a 13-year-old female student during class.

In February 1989, a trial judge in the circuit court of Union County dismissed the two-count indictment on several grounds. The appellate court affirmed the dismissal on the sole basis that, contrary to section 112-6(a) of the Code of Criminal Procedure of 1963 (the Code), the victim's mother was present when her daughter testified before the grand jury. (213 Ill.App.3d 43, 156 Ill.Dec. 769, 571 N.E.2d 749.) We granted the State's petition for leave to appeal (134 Ill.2d R. 315).

Section 112-6(a) provides, "Only the State's Attorney, his reporter and any other person authorized by the court or by law may attend the sessions of the Grand Jury." (Ill.Rev.Stat.1989, ch. 38, par. 112-6(a).) In this case, the victim's mother was not authorized to attend the grand jury session. A transcript of the proceedings shows that the mother did not address the grand jury, but at one point told the victim to "calm down." She was present only during her daughter's testimony, and was not present during grand jury deliberations.

The trial judge, in the portion of his order addressing this violation of section 112-6(a), dismissed the indictment against the defendant pursuant to section 114-1(a)(5) of the Code, which allows a court to dismiss an indictment "returned by a Grand Jury which acted contrary to Article 112 of this Code and which results in substantial injustice to the defendant." (Ill.Rev.Stat.1989, ch. 38, par. 114-1(a)(5).) The appellate court, without mentioning section 114-1(a)(5) in its opinion, held that the presence of an unauthorized person in the grand jury room is in itself grounds to dismiss an indictment. 213 Ill.App.3d at 44, 156 Ill.Dec. 769, 571 N.E.2d 749.

The State, citing People v. Arnold (1910), 248 Ill. 169, 93 N.E. 786, and People v. Munson (1925), 319 Ill. 596, 150 N.E. 280, argues that an otherwise valid indictment should not be dismissed unless the defendant can establish that he was prejudiced by the presence of an unauthorized person during grand jury proceedings. In Arnold, a teenage rape victim's mother and father accompanied her into the grand jury room while she testified. This court held that the trial judge properly refused to quash the indictment where there was no prejudice to the defendant from their presence. (Arnold, 248 Ill. at 171-72, 93 N.E. 786.) The Munson court reiterated the rule that "while unauthorized persons are never to be permitted to be present in the grand jury room, the presence of such a person is not sufficient to vitiate the indictment unless it appears that the defendant was prejudiced by such presence." (Munson, 319 Ill. at 604, 150 N.E. 280.) The State maintains that section 114-1(a)(5), with its reference to "substantial injustice," codified this standard, and argues that, because the defendant cannot show that the mere presence of the victim's mother in the grand jury room prejudiced him in any way, the trial court improperly dismissed the indictment.

The defendant, urging us to adopt the per se rule of dismissal embraced by the appellate court, argues alternatively that section 114-1(a)(5) does not apply to this case, or that if it does, substantial injustice is inherent in a violation of section 112-6(a) and should be presumed. We shall address the latter argument first.

The defendant maintains that section 114-1(a)(5) is not a codification of prior case law because Arnold and Munson, which predate the Code of Criminal Procedure, required a showing of "prejudice" when grand jury secrecy is violated, while the legislature used the term "substantial injustice" instead. He argues that these words do not have the same meaning, in that, while "prejudice" refers to an act or omission that affects the outcome of a decision, "injustice" refers to the deprivation of a substantial legal right. (See Black's Law Dictionary 787, 1179 (6th ed. 1990).) The principal aim of the secrecy requirement, the defendant claims, is to protect individuals against charges that are the product of coercion and undue influence. (People v. Hunter (1978), 61 Ill.App.3d 588, 593, 17 Ill.Dec. 736, 376 N.E.2d 1065.) He therefore concludes that violation of a statute designed to afford protection to an accused is sufficiently grievous to constitute "substantial injustice."

In support of his argument that substantial injustice is inherent in a violation of section 112-6(a), the defendant distinguishes People v. Toolen (1983), 116 Ill.App.3d 632, 72 Ill.Dec. 41, 451 N.E.2d 1364; People v. Jackson (1978), 64 Ill.App.3d 307, 21 Ill.Dec. 238, 381 N.E.2d 316, and People v. Hunter (1978), 61 Ill.App.3d 588, 17 Ill.Dec. 736, 376 N.E.2d 1065, which hold that undue influence or coercion will not be presumed from the authorized presence in the grand jury room of someone other than the State's Attorney and his or her reporter. The defendant notes that the victim's mother in this case, unlike the persons involved in Toolen, Jackson, and Hunter, was not authorized to attend the session of the grand jury. He believes that "substantial injustice" should be presumed when the State fails to comply with section 112-6(a). Requiring an accused to demonstrate prejudice whether or not the State obtains prior court authorization, he argues, renders the statute meaningless.

We agree with the defendant that section 112-6(a) clearly mandates that only authorized persons attend grand jury proceedings. It does not by itself, however, require the dismissal of an indictment or provide any other penalty for its violation. Section 114-1(a)(5) provides that an indictment obtained in violation of article 112 may be dismissed if the violation results in substantial injustice to the defendant. Thus, sections 112-6(a) and 114-1(a)(5) must be read together.

Interpreting section 114-1(a)(5) in the manner suggested by the defendant would require us to read the words "substantial injustice" out of the statute or to read into it an exception for violations of section 112-6(a). We believe the legislature intended that a defendant demonstrate substantial injustice before he or she may secure dismissal of an indictment for a violation of section 112-6(a). If the legislature had intended that a violation of section 112-6(a) should result in dismissal of an indictment without a showing of injustice, it could have omitted that requirement from section 114-1(a)(5). Regardless of whether "substantial injustice" may be equated with "prejudice," it requires something more than mere violation of the statute, such as a showing that the purposes of the secrecy requirement were not met, or that, in fact, the indictment was obtained as the result of undue influence or coercion.

The State's failure to obtain court authorization for the attendance of the victim's mother at this session of the grand jury was improper and is not to be condoned. Under section 114-1(a)(5), however, the State's violation of section 112-6(a) must also result in substantial injustice to the defendant before a court may dismiss the indictment against him for this reason.

The defendant has not shown that the unauthorized presence of the victim's mother in the grand jury room, in violation of section 112-6(a), resulted in substantial injustice to him. There has been no showing that the presence of the victim's mother endangered the secrecy of these proceedings, and there is no evidence that her presence influenced her daughter's testimony or the grand jury's decision. The mother of the 13-year-old victim was present only to provide emotional support to her daughter and to put her more at ease while she testified before a group of strangers about a sensitive matter. The record shows that she spoke to the girl only to tell her to "calm down." Thus, the purposes of section 112-6(a) were not undermined by the mother's presence, and the defendant has not demonstrated that her presence prejudiced him or resulted in substantial injustice.

Alternatively, the defendant, who in the trial court asked that the indictment be dismissed pursuant to section 114-1(a)(5), now argues here that the statute is not relevant to this case because the State's Attorney, and not the grand jury, acted contrary to section 112-6(a) by failing to obtain prior court authorization for the victim's mother to attend the proceedings. The defendant has not suggested the conclusion to be drawn from a distinction, assuming it to be valid, between the wrongful acts of a grand jury and those of a prosecutor under these circumstances. Implicit in his argument, however, is the notion that, in the absence of section 114-1(a)(5), a trial judge has inherent authority to dismiss an indictment for the State's Attorney's violation of section 112-6(a) without requiring the accused to establish prejudice or substantial injustice.

This argument is without merit. Initially, we note that section 112-6(a) does not indicate who is responsible for seeking court authorization for the presence of a...