People v. Vest

• Decision Date: 23 December 2009
• Docket Number: No. 2-08-0281.,2-08-0281.
• Citation: 337 Ill. Dec. 12,921 N.E.2d 1150
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald E. VEST, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

921 N.E.2d 1150

337 Ill. Dec. 12

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald E. VEST, Defendant-Appellant.

No. 2-08-0281.

Appellate Court of Illinois, Second District.

December 23, 2009.

Thomas A. Lilien, Deputy Defender, and Darren E. Miller (Court-appointed), Office of the State Appellate Defender, Elgin, for Ronald E. Vest.

Joseph E. Birkett, DuPage County State's Attorney, Wheaton, Robert J. Biderman, David E. Mannchen, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Justice HUDSON delivered the opinion of the court:

Defendant, Ronald E. Vest, appeals from his conviction of one of four counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)). After the swearing of the regular jurors, but before the selection of the alternates, defendant moved for dismissal of that count, asserting that it failed to describe an offense. The trial court denied that motion. Defendant now asserts that the court erred when it ruled that, because the flaw in the count did not cause him prejudice, the law did not require dismissal of that count and the State could cure the flaw by amendment. We affirm, holding that once voir dire had started, the applicable standard required defendant to show prejudice, something that he does not attempt to do.

I. BACKGROUND

Defendant was initially charged by complaint with four counts of predatory criminal sexual assault of a child. Count III alleged that defendant, who was older than 17, "committed an act of sexual penetration with A.I., who was under 13 years of age when the act was committed, in that said defendant placed his finger in the anus of A.I." (Emphasis added.)

On December 15, 2005, a grand jury indicted defendant on four counts of predatory criminal sexual assault of a child and two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2004)). The third count of predatory criminal sexual assault of a child alleged that defendant "placed his finger on the anus of A.I." (Emphasis added.)

The chronology of the case, at least as it is reflected in the common-law record, becomes somewhat unclear around the time of trial. An evidence disclosure by the State has a file-stamp date of December 11, 2007. After that, a large group of filings bears file-stamp dates of December 18, 2007. This group includes grand-jury transcripts, the jury selection form, the verdict forms (with a note that judgment was entered on December 14, 2007), two defense motions in limine, and a series of stipulations. More to the point here, it includes defendant's motion to dismiss count III of the indictment for failure to state an offense and an order denying that motion. That same order also allowed the State to amend the indictment to allege in count III that "defendant placed his finger in the anus of A.I." (Emphasis added.) Plainly, something caused a delay in the stamping of many of these documents.

The file-stamp dates on the documents that are clearly posttrial suggest that those documents received their stamps without particular delay. On January 4, 2008, defendant filed—that is, the clerk stamped—a motion for a new trial. That motion included the assertion that the court had erred in denying the motion to dismiss count III.

On January 15, 2008, the court sentenced defendant to a total of 39 years' imprisonment, a total that reflected consecutive sentences for the four convictions of predatory criminal sexual assault of a child. On February 8, 2008, defendant moved for a reduction in his sentence. The court denied that motion on March 28, 2008, and defendant filed his notice of appeal on April 1, 2008.

In the transcripts, the chronology becomes clearer. From the transcripts, we learn that, on December 11, 2007, the court acknowledged receipt of motions in limine from both the State and defendant. It noted that it would pick a jury of 12 regular jurors and 2 alternates. Still on December 11, the parties picked the regular jurors and started questioning potential alternates before court adjourned for the day.

Promptly on the morning of December 12, 2007, the defense asked for "leave to file with the court a motion to dismiss on Count Three." The State responded by making an oral motion for leave to amend the indictment. It argued that trial had already started and that the standard for dismissal therefore required that defendant show prejudice. It further argued that testimony before the grand jury had included evidence of anal penetration. The court ruled that the amendment that the State was asking to make was substantial. It deferred ruling on the motions through the remainder of jury selection, and then, with the agreement of the parties, it deferred ruling to allow for research of the standards for dismissal and amendment. Later that day, after the State had started presenting evidence, the court denied defendant's motion and granted the State's, ruling that defendant was entitled to have the flawed count dismissed only if he could show that the amendment would prejudice him.

The transcript persuades us that, despite the file-stamp date on defendant's motion to dismiss count III, defendant filed it on December 12, 2007, after the selection of the regular jurors and before the selection of the alternates.

II. ANALYSIS

On appeal, defendant asserts that, until the entire jury is sworn, including the alternates, the court should not consider whether a flaw in an indictment prejudices a defendant. At that stage, according to defendant, it should dismiss any count that fails to allege the commission of an offense. The State responds, first, that defendant did not file his motion until December 18, 2007, when the trial was over, and, second, that a prejudice requirement becomes applicable upon the commencement of voir dire. We disagree with the State's first contention, but agree with its second.

The parties agree that, if a defendant moves to dismiss a charging instrument in a pretrial motion, the court should dismiss the relevant count if it fails to allege an offense, whereas, if he or she makes that motion anytime after the trial's start, the court should dismiss the relevant count only if the defect prejudices the defendant. See People v. Cuadrado, 214 Ill.2d 79, 86-88, 291 Ill.Dec. 638, 824 N.E.2d 214 (2005). The State does not challenge defendant's contention that the indictment, in stating that defendant "placed his finger on the anus of A.I.," failed to allege the offense of predatory criminal sexual assault of a child. Defendant does not assert that this defect caused him any prejudice. The State, relying on the file-stamp dates in the common-law record, asserts that defendant did not file his motion to dismiss until the trial was over. That is simply a misreading of a confusing record. As we noted, the transcripts show that defendant filed his motion after the regular jurors were sworn, but before the alternates were selected. Thus, the only real dispute is over what event marks the trial's start. That is a question of law, so our review is de novo. See People v. Sutton, 233 Ill.2d 89, 112, 330 Ill.Dec. 198, 908 N.E.2d 50 (2009) (questions of law reviewed de novo).

Defendant, relying on People v. Rand, 291 Ill.App.3d 431, 436, 225 Ill.Dec. 580, 683 N.E.2d 1243 (1997) ("[a] trial is deemed to have commenced after the jury is impaneled and sworn"), asserts that the trial starts only when the entire jury is sworn.¹ The State cites People v. Williams, 59 Ill.2d 402, 404-05, 320 N.E.2d 849 (1974), People v. Johnson, 144 Ill. App.3d 997, 999-1000, 99 Ill.Dec. 186, 495 N.E.2d 633 (1986), and Baird v. Adeli, 214 Ill.App.3d 47, 51, 157 Ill.Dec. 861, 573 N.E.2d 279 (1991), for the proposition that the start of voir dire marks the start of the trial. None of these decisions are entirely on point. In Rand, the issue was whether a defendant had an absolute right to waive a jury trial after the swearing of the jury, but before testimony began. In Williams and Johnson, it was whether a defendant's right to a speedy trial was satisfied when voir dire, but not the State's case in chief, began in the required time. In Baird, it was what stage of proceedings marks the end of "before trial" for purposes of voluntary dismissal under section 2-1009 of the Code of Civil Procedure (now 735 ILCS 5/2-1009 (West 2008)).

Rand, the decision on which defendant relies, is the product of a line of double-jeopardy cases in which courts have relied upon the principles that jeopardy attaches when the trial starts and that the trial starts when the jury is sworn. Because, as we discuss, the critical point for the attachment of jeopardy is the point at which a body has been constituted that has the power to convict the defendant, double-jeopardy cases are not reliable guides to what marks the start of trial. That said, we cannot say that the decisions on which the State relies have sufficient analysis or relevance to make them reliable guides, either. Our own search of Illinois precedent has not uncovered other decisions to provide an obvious resolution. In resolving this issue, we have found helpful a line of federal cases that hold that "before trial" means "before voir dire" where a statute requires the United States to notify a defendant "before trial" of its intent to seek a recidivism enhancement to the sentence. In particular, we look to the reasoning in U.S v. White, 980 F.2d 836 (2nd Cir.1992), which explains why the swearing of the jury as the marker for attachment of jeopardy is not an appropriate marker for the start of trial. We have also found useful to consider why a distinction exists between motions to dismiss before trial and those filed later. As we will explain, we deem that only before voir dire is a defendant's right to an unflawed indictment not to be considered in light of any other considerations.

Rand, defendant's principal authority, and People v. Shick, 101 Ill.App.2d 377, 378-79, ...