People v. Porter, 1-92-1388
| Decision Date | 09 October 1992 |
| Docket Number | No. 1-92-1388,1-92-1388 |
| Citation | 185 Ill.Dec. 566,247 Ill.App.3d 597,614 N.E.2d 1251 |
| Parties | , 185 Ill.Dec. 566 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Derrick PORTER, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Geary W. Kull, Daniel T. Coyne, Chicago, for defendant-appellee.
On February 20, 1992, the trial court allowed the defendant's motion to dismiss based upon double jeopardy grounds. The State filed a motion to reconsider, and that motion was subsequently denied. The State filed this timely appeal. The facts are as follows.
On October 18, 1988, the defendant, Derrick Porter (Porter) was convicted of the murder of Willie Bibbs by a jury requested by the State. On June 6, 1990, this court reversed the conviction following the State's confession of error pursuant to the Illinois Supreme Court's decision in People ex rel. Daley v. Joyce (1988), 126 Ill.2d 209, 127 Ill.Dec. 791, 533 N.E.2d 873.
On October 26, 1989, while in Federal custody pursuant to a Federal passport violation, defendant was indicted along with 37 other alleged members and associates of the El Rukn organization. Defendant was charged with racketeering conspiracy As alleged in the Federal indictment, the murder of Willie Bibbs as well as the five murder conspiracies all were committed between August 1977 and June 1983. The obstruction of justice was alleged to have occurred in 1988. The narcotics conspiracy was alleged to have continued into 1989.
(Count One), substantive racketeering (Count Two), narcotics conspiracy (Count Three), and obstruction of justice (Count Sixteen). In the substantive racketeering count alleged in Count Two of the Federal indictment, defendant was charged with the commission of eight separate predicate racketeering acts, which included five separate conspiracies to commit murder, one murder, obstruction of justice, and conspiracy to distribute narcotics. The one predicate act involving murder charged the murder of Willie Bibbs, which is the subject of the State court murder charges at issue in this case.
At trial on the Federal charges, the defendant brought a motion for a directed verdict under Rule 29 of the Federal Rules of Criminal Procedure. With respect to Counts One and Two, the defendant raised a statute of limitations issue. The trial court stated, "Under the law, specifically Title 18 United States Code, Section 3282, the statute of limitations bars prosecution for any offense that occurred more than five years before the date of the return of the indictment". The court dismissed the obstruction of justice and narcotics conspiracy charges finding that there was insufficient evidence that Porter was a member of the narcotics conspiracy within five years of the date of the return of the indictment. On August 22, 1991, the Federal district court entered an order finding defendant not guilty on Counts One, Two, Three, and Sixteen.
On February 20, 1992, the trial court allowed defendant's motion to dismiss the State murder charges based upon double jeopardy. The State filed a motion to reconsider which was subsequently denied.
The sole issue on appeal is whether the trial court erred in dismissing the State murder charges against defendant on double jeopardy grounds.
The State maintains that the trial court erred in dismissing the State murder charges, because the question as to whether two offenses are the same for the purposes of double jeopardy is a question of legislative intent, and the Federal courts have found that the legislature clearly intended that there be prosecutions for both Federal RICO charges and the predicate offenses. In addition, the State maintains that defendant was not "acquitted" for the murder of Willie Bibbs for purposes of double jeopardy. Conversely, Porter argues that the Federal case and the State case both prosecuted the same offense as defined for the purposes of double jeopardy analysis, and that the defendant was "acquitted" within the meaning of the term acquittal as defined by the United States Supreme Court. Accordingly, Porter maintains that the trial court properly dismissed the indictment pending against the defendant. For the following reasons, we affirm the decision of the trial court.
The fifth amendment guarantee against double jeopardy (U.S. Const., amend. V), enforceable against the States under the fourteenth amendment (U.S. Const., amend. XIV), affords individuals three types of protection: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; People v. Stefan (1992), 146 Ill.2d 324, 166 Ill.Dec. 910, 586 N.E.2d 1239.) The Illinois Constitution provides that "[n]o person shall be compelled in a criminal case to * * * be twice put in jeopardy for the same offense." Ill. Const.1970, art. 1, § 10.
Federal prosecution of a defendant does not necessarily bar a subsequent State prosecution of a defendant. (Bartkus v. Illinois (1959), 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684.) However, section 3-4 of the Illinois Criminal Code of 1961 prohibits such successive prosecutions "unless each prosecution requires proof of a fact not required in the other prosecution." (Ill.Rev.Stat.1991 "(c) A prosecution is barred if the defendant was formerly prosecuted in a District Court of the United States or in a sister State for an offense which is within the concurrent jurisdiction of this State, if such former prosecution:
[185 Ill.Dec. 568] ch. 38, par. 3-4(c)(1); People v. Covelli (1989), 184 Ill.App.3d 114, 132 Ill.Dec. 829, 540 N.E.2d 569.) Section 3-4 of the Illinois Criminal Code of 1961 provides in relevant part
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the offense was not consummated when the former trial began; or
(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the prosecution in this State." Ill.Rev.Stat.1991, ch. 38, par. 3-4(c).
To give rise to a valid claim of double jeopardy, be it based on constitutional or statutory grounds, it must be shown that the two offenses charged are the "same offense." (People v. Johnson (1978), 63 Ill.App.3d 248, 250, 20 Ill.Dec. 483, 485, 380 N.E.2d 461, 463.) The test for determining whether two offenses are the same for double jeopardy purposes has been set forth in Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309, wherein the court stated:
"[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not."
In 1990 the Supreme Court held in Grady v. Corbin (1990), 495 U.S. 508, 520, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548, 564, that a technical comparison of the elements of the two offenses as required by the Blockburger test does not provide sufficient protection for defendants from the burden of multiple trials. The Grady court held that the Blockburger test provides the initial analysis for double jeopardy purposes and if the test's application reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. (Grady, 495 U.S. at 516, 110 S.Ct. at 2090, 109 L.Ed.2d 548.) The critical inquiry in determining whether the government will prove conduct in the subsequent prosecution that constitutes an offense for which the defendant has already been prosecuted is what conduct the State will prove, not the evidence the State will use to prove it. (Grady, 495 U.S. at 521-22, 110 S.Ct. at 2093-94, 109 L.Ed.2d 548.) Although the presentation of specific evidence in one trial does not forever prevent the government from introducing the same evidence in a subsequent proceeding, a State cannot avoid double jeopardy merely by altering in successive prosecutions the evidence offered to prove the same conduct. Grady, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548.
Recently, in People v. Stefan (1992), 146 Ill.2d 324, 336, 166 Ill.Dec. 910, 586 N.E.2d 1239 the Illinois Supreme Court indicated that Grady sets forth the proper double jeopardy test. In Stefan, the Illinois Supreme Court, on an interlocutory appeal brought by the defendant, reversed the trial court's denial of a motion to dismiss indictments for criminal and reckless disposal of hazardous waste into a local sanitary sewer system in violation of the Environmental Protection Act. These indictments followed previous charges brought by the Village of Addison in a municipal prosecution and pleas of guilty in those cases. The issue presented was whether the prior prosecutions for knowingly discharging certain chemicals into the public sewer system in violation of the Addison ordinance acted as a bar under constitutional double jeopardy provisions of the subsequent prosecution for criminal and reckless disposal of hazardous waste in violation of the environmental protection act. After One of the predicate acts of the Federal racketeering charge against Porter was the murder of Willie Bibbs. Count Two, paragraph (10) of the Federal indictment alleges:
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... ... 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; People v. Stefan (1992), 146 Ill.2d 324, 166 Ill.Dec. 910, 586 N.E.2d 1239; People v. Porter (1st Dist.1993), 247 Ill.App.3d 597, 185 Ill.Dec. 566, 614 N.E.2d 1251 (leave to appeal granted 148 Ill.2d 650, 183 Ill.Dec. 28, 610 N.E.2d 1272).) ... ...