                                                                            FOURTH DIVISION
                                                                            MAY 29, 2008




No. 1-07-0348


THE PEOPLE OF THE STATE OF ILLINOIS,                 )       Appeal from the
                                                     )       Circuit Court of
       Plaintiff-Appellant,                          )       Cook County.
                                                     )
                v.                                   )       No. 04 CR 5911
                                                     )
TONY OUSLEY and                                      )
DARIENTO ATTERBERRY,                                 )       Honorable
                                                     )       Luciano Panici,
       Defendants-Appellees.                         )       Judge Presiding.


       JUSTICE CAMPBELL delivered the opinion of the court:

       The State of Illinois appeals a decision of the circuit court of Cook County denying its

motion to grant use immunity and compel testimony from a codefendant in a criminal trial.

       The record on appeal discloses that codefendants Tony Ousley, Dariento Atterberry and

Tyrese Jackson were indicted on multiple counts of first degree murder, attempted first degree

murder, and aggravated discharge of a firearm in connection with February 7, 2004, murder of

Brian Hill and attempted first degree murder of Rufus McDaniels and Anthony Bryant.

       Following pretrial discover, the State filed a motion to grant "use immunity" and compel

codefendant Jackson to testify against codefendants Ousley and Atterberry. In the motion, the

State acknowledged that, as an indicted codefendant, Jackson could invoke his fifth amendment

privilege against self-incrimination at trial. Accordingly, the State sought to grant Jackson "use

immunity" pursuant to section 106-2.5 of the Code of Criminal Procedure of 1963 (725 ILCS

5/106-2.5 (West 2006)), which provides in relevant part as follows:
1-07-0348


                         "(b) In lieu of the immunity provided in Section 106-2 of

                 this Code, in any investigation before a Grand Jury, or trial in any

                 court, the court on motion of the State shall order that a witness be

                 granted immunity from prosecution in a criminal case as to any

                 information directly or indirectly derived from the production of

                 evidence from the witness if the witness has refused or is likely to

                 refuse to produce the evidence on the basis of his or her privilege

                 against self-incrimination.

                         (c) The production of evidence so compelled under the

                 order, and any information directly or indirectly derived from it,

                 may not be used against the witness in a criminal case, except in a

                 prosecution for perjury, false swearing, or an offense otherwise

                 involving a failure to comply with the order. An order of immunity

                 granted under this Section does not bar prosecution of the witness,

                 except as specifically provided in this Section." 725 ILCS

                 5/106-2.5(b), (c) (West 2006).1

The State further declared that Jackson had given a videotaped statement to the police at the time

of his arrest, which the State would seek to introduce as substantive evidence against



       1
           Unlike a grant of transactional immunity, a grant of use immunity does not act as an

absolute bar from prosecution but, rather, prohibits the State from using any evidence obtained

under the grant of immunity, or leads derived from that evidence, against the immunized witness

in a later criminal proceeding. People ex rel. Cruz v. Fitzgerald, 66 Ill. 2d 546, 549 (1977).

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codefendants Ousley and Atterberry if Jackson gave live testimony inconsistent with the

videotaped statement, pursuant to section 115-10.1 of the Code of Criminal Procedure of 1963

(725 ILCS 5/115-10.1 (West 2006)).

       Ousley and Atterberry filed a response to the motion, stating that: (1) Jackson gave the

statement in return for a promise of leniency; (2) they had reason to believe Jackson would deny

the veracity of the videotaped statement; and (3) Jackson had professed that, if granted use

immunity, he would not testify to anything of substance. Codefendants argued that to introduce

the videotaped statement under such circumstances would violate Bruton v. United States, 391

U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), and its progeny, which hold that the use of a

nontestifying codefendant's statement at a joint trial violated the defendant's sixth amendment

right to confront and cross-examine the witnesses against him. Codefendants also argued that the

State could not vouch for the veracity of any trial testimony by Jackson and failed to make an

offer of proof regarding Jackson's expected testimony.

       On January 5, 2007, following a hearing on the matter, the trial court denied the State's

motion, ruling that the grant of use immunity would allow the State to admit Jackson's prior

statement in violation of the rationale of Bruton and its progeny. The trial court also stated that if

Jackson was put on the witness stand and failed to testify, there would be an issue under

Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), which holds

that out-of-court statements by witnesses that are testimonial are barred, under the confrontation

clause, unless witnesses are unavailable and defendants had a prior opportunity to cross-examine

the witnesses, regardless of whether such statements are deemed reliable by court.

       The State filed a motion to reconsider, arguing that the statute was mandatory and that if



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Jackson refused to testify, the State "cannot and would not enter the videotape into evidence"

against the codefendants as prohibited by Bruton. The trial court denied the motion to

reconsider. The State then filed a certificate of substantial impairment, stating that the trial

court's order effectively precluded the State from calling Jackson as a witness. The State then

filed a notice of appeal to this court.

        On appeal, the State argues that the trial court erred in denying the motion to grant use

immunity and compel codefendant Jackson to testify because the language of the statute is

mandatory and because the constitutional issues were not ripe for adjudication.

        The cardinal rule of statutory construction is to ascertain and give effect to the intent of

the legislature. People v. McClure, 218 Ill. 2d 375, 381 (2006). The best evidence of legislative

intent is the language of the statutes. McClure, 218 Ill. 2d at 382. "When possible, the court

should interpret the language of a statute according to its plain and ordinary meaning." McClure,

218 Ill. 2d at 382. "If intent can be determined from the plain language of the statute, there is no

need to resort to interpretive aides." McClure, 218 Ill. 2d at 382. When considering the plain

and ordinary meaning, we read the statute as a whole, considering all relevant provisions

together. People v. Olsson, 335 Ill. App. 3d 372, 374 (2002). Moreover, statutes related to the

same subject matter are to be read in conjunction. People v. Cherry Valley Public Library

District, 356 Ill. App. 3d 893, 897 (2005). We are obliged to construe statutes both to avoid

absurd or unjust consequences and to affirm their constitutionality. People v. Williams, 119 Ill.

2d 24, 28 (1987).

        The State places much weight on the use of the word "shall" in the statute. Legislative

use of the word "shall" is generally considered to express a mandatory reading. People v.



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Robinson, 217 Ill. 2d 43, 53 (2005). The State also notes that the transactional immunity statute

uses the more permissive term, "may." 725 ILCS 5/106-1 (West 2006). However, the word

"shall" does not control the outcome and is not determinative. Robinson, 217 Ill. 2d at 53. When

a statute expressly prescribes a consequence for the failure to obey its provision, that is very

strong evidence the legislature intended that consequence to be mandatory. Robinson, 217 Ill. 2d

at 54.

         Section 106-2.5(b) does use the word "shall," which is generally given a mandatory

meaning. However, the statute does not provide a consequence in the event the circuit court fails

to grant the use immunity sought by the State. Moreover, subsection (b) is to be read in light of

the language of subsection (c) providing that testimony given under use immunity is generally

not to be used against the witness in the underlying criminal case.

         In this case, the State seeks to try the codefendants together, with Jackson testifying

against Ousley and Atterberry. The State has conceded that, in the event Jackson refuses to

testify pursuant to the use immunity, it cannot introduce Jackson's videotaped statement to the

police without running afoul of Bruton. Nevertheless, the State argues that the trial court ruled

on the Bruton and Crawford issues before they were ripe because it is not known whether

Jackson will refuse to testify or what he might say if he did testify.

         One of the foundational premises of Bruton and its progeny is that, in the context of a

joint trial, a jury cannot be expected to perform the overwhelming task of considering an

inculpatory statement in determining the guilt or innocence of the declarant and then of ignoring

it in determining the guilt or innocence of any codefendants of the declarant. See Bruton, 391

U.S. at 126-34, 120 L. Ed. 2d at 479-81, 88 S. Ct. at 1622-28. It would be equally unrealistic to



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expect a jury in a joint trial to hear a defendant incriminate himself under a grant of use immunity

and then ignore that self-incrimination when considering that defendant's guilt or innocence. The

State cannot dismiss this as unripe speculation, as the use immunity statute is expressly intended

to apply to cases where the witness has invoked the fifth amendment privilege or is likely to do

so. To permit the State to compel testimony in this situation would not only raise serious

constitutional questions, but also effectively circumvent the protections mandated by subsection

(c) of the use immunity statute.

        In short, constitutional issues would arise regardless of whether Jackson testifies or

refuses to testify. Thus, the issue was ripe for adjudication and was required to be considered in

interpreting the language of section 106-2.5. Reading the statute as mandatory, requiring the

court to grant use immunity in a joint trial, where the declarant's guilt or innocence is at issue,

would create an absurd result with regard to subsection (c) of the statute and raise serious

constitutional questions that may be avoided by construing the statute as permissive in nature.

        The State cites numerous cases in its brief, but none of them involves the situation

presented here, i.e., an attempt to grant use immunity to an indicted but not convicted

codefendant at a joint trial.

        Accordingly, the trial court did not err in denying the State's motion, given the facts and

circumstances presented by the record on appeal. For all of the aforementioned reasons, we

affirm the ruling of the circuit court of Cook County.

        Affirmed.

        O'BRIEN and MURPHY, JJ., concur.




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