People v. Holmes

• Decision Date: 20 October 1977
• Docket Number: No. 76-417,76-417
• Parties: , 11 Ill.Dec. 498 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Willie HOLMES, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1106

368 N.E.2d 1106

54 Ill.App.3d 843, 11 Ill.Dec. 498

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Willie HOLMES, Defendant-Appellee.

No. 76-417.

Appellate Court of Illinois, Third District.

Oct. 20, 1977.

Kenneth A. Grnacek, Joliet, of counsel; Edward Petka, State's Atty., Joliet, for plaintiff-appellant.

Robert J. Agostinelli, Deputy State Appellate Defender, Third Judicial District, Ottawa and Josette Skelnik, Law Student, for defendant-appellee.

ALLOY, Presiding Justice.

This is an appeal by the State pursuant to Supreme Court Rule 604(a) ( Ill.Rev.Stat.1975, ch. 110A, par. 604(a)) from an order of the Circuit Court of Will County granting a motion to dismiss the charge of armed violence on the ground of former jeopardy. The State contends that the prosecution of defendant for armed violence is not barred, under the facts in this case, on the ground of double jeopardy.

From the record it appears that on December 4, 1975, Joan Easter Holmes filed a complaint for divorce in the Circuit Court of Will County as against defendant Willie Holmes. Pursuant to the complaint for divorce, an injunction was issued by an associate judge of the circuit court, enjoining defendant from "accosting or molesting" Joan Holmes. On January 5, 1976, an emergency petition for a rule to show cause was presented on behalf of Joan Holmes, in which it was alleged that defendant had violated the injunction in that:

" * * * on January 3, 1976, at about 10:50 P.M., the defendant, Willie Holmes, came upon the residence of the plaintiff and fired a handgun at the plaintiff three or four times, at which time the plaintiff called the Joliet Police Department and the Joliet Police Department is presently investigating the case."

On January 6, 1976, a hearing on the petition filed by Joan Holmes was held in the circuit court and the plaintiff Joan Holmes was sworn and testified. It appears that defendant may also have been sworn and may have given testimony at that time. By agreement of the parties, however, the hearing on the Joan Holmes' petition was continued until January 20, 1976, to permit submission of the parties to a lie detector test which might be used as evidence at a hearing. The State's Attorney of Will County was not a party to the contempt hearing, and was not given notice of the filing of the petition for a rule to show cause or of the fact that a hearing was being held. On January 20, 1976, by agreement of the parties to the divorce, the cause was "continued generally to be set on call or motion." On April 9, 1976, evidence was heard in the divorce case and the divorce was granted, with a decree of divorce entered on May 4, 1976. The issue of the violation of the injunction was never brought up again by either of the parties or their respective counsel, and no order was ever issued regarding the alleged contempt.

The record also shows that on January 7, 1976, defendant was arrested by the Joliet Police for his alleged actions on January 3, 1976, and was charged with armed violence by a criminal complaint. On January 21, 1976, the State's Attorney of Will County filed an information, charging defendant with commission of armed violence, in violation of par. 33A-2 of the Criminal Code of 1961 (Ill.Rev.Stat.1975, ch. 38, par. 33A-2). On April 15, 1976, defendant filed a motion to dismiss the information based on par. 114-1(a)(2) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1975, ch. 38, par. 114-1(a)(2)), and Article I, Section 10 of the Illinois Constitution of 1970, as well as the Fifth Amendment of the United States Constitution, alleging that the contempt hearing held on January 6, 1976, had previously placed defendant in jeopardy for the same offense. The trial court at first denied defendant's motion, but thereafter, on July 14, 1976, granted defendant's motion to dismiss and concluded that the trial court was bound by the precedent established in People v. Gray (1st Dist.1976), 36 Ill.App.3d 720, 344 N.E.2d 683.

The sole issue presented for review is whether double jeopardy prohibits defendant's criminal prosecution for armed violence based upon the same acts which were previously the subject of a contempt hearing in the divorce action, as we have noted. The petition for leave to appeal had been granted in the People v. Gray case; referred to which had been decided in the Appellate Court, and in that case on appeal (People v. Gray, Docket No. 48424-Agenda 2-May 1977), the Illinois Supreme Court affirmed the Appellate Court and determined, in the case involving similar issues to those presented in the instant case, that the Appellate Court properly dismissed the criminal action by reason of double jeopardy.

In the Gray case, a criminal prosecution had been instituted for aggravated battery and attempted murder after a finding and punishment for indirect criminal contempt. In that case, the defendant Gray struck his wife with a gun and then shot her. This violated a protective order in the divorce proceeding enjoining Gray from striking or molesting his wife. In that case the trial judge conducted a hearing on the wife's emergency petition that Gray be held in contempt of court for assaulting and shooting her. The court there found a willful contempt of court and Gray was sentenced to six months imprisonment.

Thereafter, Gray was indicted for aggravated battery and attempted murder of his wife based upon the same conduct. The trial court had denied the motion to dismiss on the ground of double jeopardy and he was convicted of aggravated battery and sentenced to one to three years imprisonment.

As we have noted, the First District Appellate Court found that Gray had been placed twice in jeopardy for the same offense and reversed the criminal conviction. (36 Ill.App.3d 720, 344 N.E.2d 683). The Supreme Court of this State granted leave to appeal and affirmed the Appellate Court.

It was pointed out in the Supreme Court decision that both the Fifth Amendment to the United States Constitution and Article I, Section 10, of the Illinois Constitution of 1970, protect persons from being placed twice in jeopardy for the same offense. The Supreme Court also stated that the test for determining whether two offenses are sufficiently distinguishable to permit imposition of cumulative punishment is to determine whether...