People v. Silverstein
| Citation | 328 N.E.2d 316,60 Ill.2d 464 |
| Decision Date | 24 March 1975 |
| Docket Number | No. 46851,46851 |
| Parties | The PEOPLE of the State of Illinois, Appellant, v. Enoch SILVERSTEIN et al., Appellees. |
| Court | Supreme Court of Illinois |
William J. Scott, Atty. Gen., Springfield (James B. Zagel, Jayne A. Carr, and Michael J. Murphy, Asst. Attys., Gen., of counsel), for appellant.
Joseph A. Lamendella and Eugene F. LaPorte, Chicago (Schippers, Betar, Lamendella & O'Brien, Chicago, of counsel), for appellees.
The People appealed from the judgment of the circuit court of Cook County entered upon allowance of defendants' motion to dismiss six criminal complaints against each of the defendants, Sidney Silverstein and Enoch Silverstein, charging them with failure to file use tax returns (Ill.Rev.Stat.1971, ch. 120, par. 439.14) and with filing fraudulent retailers' occupation tax returns (par. 452). The appellate court affirmed (19 Ill.App.3d 826, 313 N.E.2d 309), and we allowed the People's petition for leave to appeal.
In their motion to dismiss defendants alleged, in pertinent part, that 'Prosecution personnel advised a person having relevant material and information to refrain from discussing the case with defense counsel.' In the affidavit of defendants' counsel, filed in support of the motion, counsel stated that in a telephone conversation with one Jack Kleinman, an auditor for the Illinois Department of Revenue who had 'engaged in audit activities related to the subject matter of the prosecution,' counsel had asked Kleinman to discuss with him 'all matters within his knowledge concerning the instant prosecution'; that later Kleinman called defendants' counsel and stated that on instruction from Phillip Mitchell, chief of the Intelligence Division of the Illinois Department of Revenue, Kleinman could not speak to defense counsel, and that defense counsel 'should direct his requests to Mitchell and his aides.'
There is nothing in the record to indicate that defendants' counsel discussed the matter with Mitchell or that he, at any time, attempted to do so.
Some eight months later the People filed a response to defendants' motion to dismiss, admitting all the factual allegations in defense counsel's affidavit, but alleging that Mitchell, upon advice of the Attorney General's office, had withdrawn his instructions and had told Kleinman that he was free to discuss the case with defense counsel if he chose to do so.
The circuit court conducted a hearing on the motion to dismiss, at which time Mitchell testified that he had not informed Kleinman that he was free to discuss the case with defense counsel until approximately eight months after he was advised by the Attorney General's office to do so. The circuit court expressed concern about the lapse of time since the filing of the motion to dismiss and, relying on Gregory v. United States (1966), 125 U.S.App.D.C. 140, 369 F.2d 185, dismissed the complaints.
The People contend here, as they did in the appellate court, that the circuit court erred in dismissing the complaints for the reason that such dismissal was not based on one of the exclusive statutory grounds for dismissal enumerated in section 114--1(a) of the Code of Criminal Procedure (Ill.Rev.Stat.1971, ch. 38, par. 114--1(a)). Defendants contend that the erroneous instructions to Kleinman, uncorrected for a period of eight months, made it impossible for them to properly prepare their defense, thus making a fair trial impossible and depriving them of due process of law. They argue that the constitutional requirement of due process supersedes the purported statutory limitation of the circuit court's authority for dismissal and that the action of the circuit court was in the exercise of its...
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