People v. Morris

• Decision Date: 18 April 1990
• Docket Number: No. 68646,68646
• Citation: 554 N.E.2d 150,143 Ill.Dec. 215,135 Ill.2d 540
• Parties: , 143 Ill.Dec. 215 The PEOPLE of the State of Illinois, Appellant, v. Frank MORRIS, Appellee.
• Court: Illinois Supreme Court

Page 150

554 N.E.2d 150

135 Ill.2d 540, 143 Ill.Dec. 215

The PEOPLE of the State of Illinois, Appellant, v. Frank MORRIS, Appellee.

No. 68646.

Supreme Court of Illinois.

Apr. 18, 1990.

Neil F. Hartigan, Atty. Gen., Springfield, and Joseph R. Navarro, State's Atty., Ottawa (Kenneth R. Boyle and William L. Browers, State's Attys. App. Pros., Elgin, of counsel), for people.

Lerner & Kirchner, Champaign, for appellee.

Justice CLARK delivered the opinion of the court:

On May 27, 1986, an indictment was filed in the circuit court of La Salle County charging defendant, Frank Morris, with the offense of indecent liberties with a child (Ill.Rev.Stat.1983, ch. 38, par. 11-4(a)(1)) (count I) for an incident which allegedly took place on October 20, 1984. On February 25, 1988, a grand jury added five additional counts to the indictment, charging defendant with the offenses of aggravated criminal sexual abuse (Ill.Rev.Stat.1984 Supp., ch. 38, par. 12-16(d)), criminal sexual assault (Ill.Rev.Stat.1984 Supp., ch. 38, par. 12-13(a)(1)), and criminal sexual abuse (three counts) (Ill.Rev.Stat.1984 Supp., ch. 38, par. 12-15(a)(1)) (counts II through VI), all arising from the same incident which allegedly took place on October 20, 1984.

On March 8, 1988, defendant filed two pretrial motions to dismiss the indictment. One motion claimed that count I of the indictment should be dismissed because the statute which count I alleged had been violated had been repealed prior to the date that the offense allegedly occurred. The other motion sought dismissal of counts II through VI on the basis that those counts failed to allege facts showing that the statute of limitations had not been violated. The trial court denied defendant's motion to dismiss counts II through VI and then granted his motion to dismiss count I. The case went to trial and defendant was convicted of criminal sexual assault and three counts of criminal sexual abuse. The appellate court, in an unpublished order (182 Ill.App.3d 1107 (unpublished order under Supreme Court Rule 23)), held that counts II through VI should have been dismissed. Consequently, the appellate court reversed the convictions. We granted the State's petition for leave to appeal (107 Ill.2d R. 315).

The parties' arguments center on this court's decision in People v. Strait (1978), 72 Ill.2d 503, 21 Ill.Dec. 365, 381 N.E.2d 692. In that case, this court reaffirmed "the long-established rule that if [an] indictment or information shows on its face that the offense was not committed within the period of limitation facts must be averred which invoke one of the exceptions contained in the statute." (Strait, 72 Ill.2d at 504-05, 21 Ill.Dec. 365, 381 N.E.2d 692.) Strait is still controlling precedent in Illinois and we decline the State's invitation to reconsider or modify this court's decision in that case.

In the instant case, counts II through VI were added to the indictment after the expiration of the three-year-limitation period that is provided for the crimes at issue here by section 3-5(b) of the Criminal Code of 1961 (Ill.Rev.Stat.1987, ch. 38, par. 3-5(b)). The State does not dispute that counts II through VI fail to allege any facts "which invoke one of the exceptions [to the limitation period] contained in the statute." However, the State claims that count I of the indictment supplies facts which invoke the limitation exclusion set forth in section 3-7(c) of the Criminal Code of 1961 (Ill.Rev.Stat.1987, ch. 38, par. 3-7(c)).

Section 3-7 provides:

"Periods Excluded from Limitation. The period within which a prosecution must be commenced does not include any period in which:

* * * * * *

(c) A prosecution is pending against the defendant for the same conduct, even if the indictment or information which commences the prosecution is quashed or the proceedings thereon are set aside, or are reversed on appeal." (Ill.Rev.Stat.1987, ch. 38, par. 3-7.)

According to the State, count I shows that defendant had been indicted within the normal three-year-limitation period applicable to felonies (Ill.Rev.Stat.1987, ch. 38, par 3-5(b)), in that it states that defendant was indicted on May 27, 1986, for conduct alleged to have occurred on October 20, 1984. Thus, the State argues that count I shows on its face that there was a prosecution pending against defendant for the same conduct that gave rise to counts II through VI of the indictment, and therefore count I alleges facts which invoke the limitation exclusion of section 3-7(c) (Ill.Rev.Stat.1987, ch. 38, par. 3-7(c)). Before addressing the merits of the State's claim regarding count I, we must first decide whether allegations from count I can be used to save counts II through VI from dismissal.

It is a well-established rule in Illinois that all counts of a multiple-count indictment should be read as a whole and that elements missing from one count of an indictment may be supplied by another count. (See People v. Hall (1982), 96 Ill.2d 315, 320, 70 Ill.Dec. 836, 450 N.E.2d 309.) Defendant suggests, however, that the rule set forth in Hall should not be applied where, as here, a defendant has made a pretrial challenge to the sufficiency of an indictment. Rather, defendant, without explaining why, claims that the rule should only be followed when a defendant has failed to challenge the sufficiency of an indictment until post-trial. We do not find defendant's contention persuasive.

Appellee further asserts that the Hall rule should not apply where the supporting information is from a count of the indictment that has previously been dismissed. However, in this case, count I was not dismissed until after the trial judge had denied defendant's motion to dismiss counts II through VI. Furthermore, section 3-7(c) of the Criminal Code (Ill.Rev.Stat.1987, ch. 38, par. 3-7(c)) (the limitation exclusion relied upon by the State) explicitly provides that "[a] prosecution is pending against the defendant for the same conduct, even if the indictment or information which commences the prosecution is quashed or the proceedings thereon are set aside, or are reversed on appeal." (Emphasis added.) Consequently, count I of the indictment can be used to supply elements missing from counts II through VI.

We turn now to the question of whether count I sets forth facts which invoke the limitation exclusion of section 3-7(c) of the Criminal Code of 1961 (Ill.Rev.Stat.1987, ch. 38, par. 3-7(c)). As stated earlier, section 3-7 provides: "The period within which a prosecution must be commenced does not include any period in which * * * (c) A prosecution is pending against the defendant for the same conduct." Ill.Rev.Stat.1987, ch. 38, par. 3-7(c).

Appellee claims that section 3-7(c) is not invoked by count I because the conduct involved in count I is different than the conduct which gave rise to counts IV through VI. Appellee's argument is apparently based upon the fact that count I alleges that defendant "inserted his penis into the anus" of the minor while counts IV and VI alleged that defendant "knowingly fondled the penis of" the minor and count V alleged that defendant "knowingly had [the minor] fondle the penis of [defendant]." Appellee argues that each of these instances constitutes a separate act and so the prosecution under count I was not a prosecution for the same conduct as for counts IV through VI. We do not agree.

Section 3-7(c) uses the term "conduct" rather than "acts." "Conduct" is defined by section 2-4 of the Criminal Code of 1961 as "an act or a series of acts, and the accompanying mental state." (Emphasis added.) (Ill.Rev.Stat.1987, ch. 38, par. 2-4.) Count I of the indictment alleges that on October 20, 1984, defendant engaged in an illegal sexual act with a minor. Counts II through VI also allege that defendant engaged in a series of illegal sexual acts with the same minor on the same date. The counts thus refer to a series of illegal sexual acts allegedly engaged in by defendant with the same minor on the same day. We therefore conclude that, under section 2-4 of the Criminal Code of 1961 (Ill.Rev.Stat.1987, ch. 38, par. 2-4), the act set forth in count I was part of the same conduct as the acts set forth in counts II through VI. Accordingly, at the time counts II through VI of the indictment were handed down by the grand jury, there had been "[a]prosecution * * * pending against the defendant for the same conduct" (Ill.Rev.Stat.1987, ch. 38, par. 3-7(c)), and therefore counts II through VI would clearly be excluded from the limitation period under section 3-7(c). However, what is not clear is whether the language in count I properly invokes application of section 3-7(c).

Where an indictment on its face shows that an offense was not committed within the applicable limitation period, it becomes an element of the State's case to allege and prove the existence of facts which invoke an exception to the limitation period. (See People v. Carman (1943), 385 Ill. 23, 25, 52 N.E.2d 197; People v. Ross (1927), 325 Ill. 417, 420, 156 N.E. 303.) As with the other elements which the State must prove, such as the elements of the offense with which a defendant is being charged, "[t]he grounds upon which the People seek to wrest from a defendant the protection of section 3-5 of the Criminal Code [the statute of limitations (Ill.Rev.Stat.1987, ch. 38, par. 3-5) ] should be stated in the information with sufficient specificity to enable him to defend against them." People v. Strait (1978), 72 Ill.2d 503, 506, 21 Ill.Dec. 365, 381 N.E.2d 692; see also People v. Hall (1982), 96 Ill.2d 315, 320, 70 Ill.Dec. 836, 450 N.E.2d 309 (the State must allege the elements of an offense with specificity to "protect[ ] the defendant against being forced to speculate as to the nature or elements of the underlying offense, thus spreading his resources thin, attempting to rebut all of the possibilities, while the prosecutor merely focuses on the most promising...