                                          No. 3–10–0237

                           Opinion filed February 9, 2011
______________________________________________________________________________

                         IN THE APPELLATE COURT OF ILLINOIS

                                       THIRD DISTRICT

                                            A.D., 2011

THE PEOPLE OF THE STATE OF             )     Appeal from the Circuit Court
ILLINOIS,                              )     of the 21st Judicial Circuit,
                                       )     Kankakee County, Illinois
      Plaintiff-Appellant,             )
                                       )
      v.                               )     No. 09–CF–497
                                       )
DONALD H. SAMPSON,                     )     Honorable
                                       )     Clark E. Erickson,
      Defendant-Appellee.              )     Judge, Presiding.
______________________________________________________________________________

      PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
      Justice Schmidt concurs with the judgment and opinion.
      Justice Holdridge specially concurs with the judgment and opinion.
______________________________________________________________________________

                                            OPINION

       The defendant, Donald H. Sampson, was charged by indictment with two counts of

aggravated battery (720 ILCS 5/12–4(b)(18) (West 2008)) and one count of resisting a

correctional institution employee (720 ILCS 5/31–1(a), (a-7) (West 2008)). The defendant filed a

motion to dismiss the indictment. At the evidentiary hearing, the circuit court found that the

prosecutor engaged in misconduct during the grand jury proceedings and thereby violated the

defendant’s due process rights. Thus, the court granted the defendant’s motion to dismiss the

indictment. On appeal, the State argues that the court’s decision was erroneous. We reverse and

remand.
                                               FACTS

        The information and indictment in this case alleged that the defendant hit one correctional

officer in the head with his fist, bit a second correctional officer on the hand, and wrestled and

struggled with a third correctional officer, which caused injury. The only witness listed on the

indictment was Todd Huntley of the Kankakee County sheriff’s department.

        The defendant filed a motion to dismiss the indictment, which alleged, inter alia, that the

State presented deceptive and inaccurate testimony at the grand jury proceedings. The defendant

claimed that the State violated his due process rights because: (1) the prosecutor did not identify

Huntley as a detective; (2) the prosecutor concealed the hearsay nature of Huntley’s testimony;

and (3) Huntley contradicted himself with regard to which hand the defendant allegedly bit.

        The transcript of Huntley’s testimony to the grand jury revealed that the prosecutor told

the grand jury that the defendant was “charged with three felonies. One is aggravated battery for

striking a correctional officer, the other is aggravated battery for biting a correctional officer, and

the other one is for resisting a correctional officer.” The prosecutor did not make it known to the

grand jury that Huntley was a detective with the Kankakee County sheriff’s department or that

Huntley lacked personal knowledge of the alleged incidents. The prosecutor asked Huntley a

series of leading questions that elicited “yes” responses to all but one of the questions. In this

manner, Huntley testified that during an altercation in prison, the defendant punched a

correctional officer in the face; that incident was also on videotape. Further, the defendant bit the

hand of another correctional officer. Huntley originally stated that the defendant bit the officer’s

right hand, but later stated that the bite occurred on the officer’s left hand. Also, Huntley testified

that a third correctional officer received a cut on his right hand while trying to subdue the


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defendant.

       At the evidentiary hearing on the defendant’s motion, Huntley testified that he based his

testimony before the grand jury on the statements of officers involved with the alleged incidents

and a video of the alleged incidents.

       The circuit court characterized the prosecutor’s handling of the case before the grand jury

as “sloppy.” The court criticized the prosecutor’s procedure of using leading questions to obtain

mere “yes” responses from Huntley and the practice of presenting witnesses from multiple cases

before allowing the grand jury to deliberate on multiple cases at once. Further, the court

questioned the prosecutor’s failures to identify Huntley to the grand jury and to disclose the

hearsay nature of Huntley’s testimony. After finding Huntley’s testimony at the grand jury

hearing to be unreliable, the court found that the State violated the defendant’s due process rights

at the grand jury proceedings. Accordingly, the court granted the defendant’s motion. The State

appealed.

                                            ANALYSIS

       On appeal, the State argues that the circuit court erred when it granted the defendant’s

motion to dismiss the indictment.

       When the facts surrounding what occurred at the grand jury proceedings are undisputed,

as they are here, the question of whether the State prejudicially denied the defendant due process

is reviewed under the de novo standard. People v. Mattis, 367 Ill. App. 3d 432, 435-36 (2006).

               “The grand jury is an English institution, brought to this country by the early

               colonists and incorporated in the Constitution by the Founders. There is every

               reason to believe that our constitutional grand jury was intended to operate


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               substantially like its English progenitor. The basic purpose of the English grand

               jury was to provide a fair method for instituting criminal proceedings against

               persons believed to have committed crimes. Grand jurors were selected from the

               body of the people and their work was not hampered by rigid procedural or

               evidential rules. In fact, grand jurors could act on their own knowledge and were

               free to make their presentments or indictments on such information as they deemed

               satisfactory. Despite its broad power to institute criminal proceedings the grand

               jury grew in popular favor with the years. It acquired an independence in England

               free from control by the Crown or judges. Its adoption in our Constitution as the

               sole method for preferring charges in serious criminal cases shows the high place it

               held as an instrument of justice. And in this country as in England of old the grand

               jury has convened as a body of laymen, free from technical rules, acting in secret,

               pledged to indict no one because of prejudice and to free no one because of special

               favor.” Costello v. United States, 350 U.S. 359, 362 (1956).

See also Blair v. United States, 250 U.S. 273, 279-83 (1919).

       The grand jury determines whether probable cause exists that an individual has committed

a crime. People v. DiVincenzo, 183 Ill. 2d 239, 254 (1998). The grand jury serves a dual

function as an investigatory body and an intermediary between the people and the State (see 725

ILCS 5/112–4(b) (West 2008)), and its proceedings are conducted in secret (725 ILCS 5/112–6

(West 2008)). The prosecutor serves as an advisor to the grand jury and is tasked with informing

the grand jury of the proposed criminal charges and the applicable law. 725 ILCS 5/112–4 (West

2008); DiVincenzo, 183 Ill. 2d at 254.


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       Generally, a defendant may not attack an indictment returned by a legally constituted

grand jury. DiVincenzo, 183 Ill. 2d at 255; Costello, 350 U.S. at 363. In fact, courts have

consistently rejected rules that would effectively turn grand jury proceedings into preliminary

trials. People v. Creque, 72 Ill. 2d 515, 527-28 (1978); People v. J.H., 136 Ill. 2d 1, 10 (1990)

(“[i]nasmuch as the grand jury does not finally adjudicate guilt or innocence, it has traditionally

been allowed to pursue its investigation unrestrained by the technical evidentiary and procedural

restrictions applicable to a criminal trial”); People v. Torres, 245 Ill. App. 3d 297, 301-02 (1993)

(rejecting a rule that would have required the State to present all exculpatory evidence it may

have to the grand jury); United States v. Dionisio, 410 U.S. 1, 17 (1973) (“[a]ny holding that

would saddle a grand jury with minitrials and preliminary showings would assuredly impede its

investigation and frustrate the public’s interest in the fair and expeditious administration of the

criminal laws”); United States v. Calandra, 414 U.S. 338, 349-52 (1974) (declining to extend the

exclusionary rule to grand jury proceedings).

       However, an indictment can be dismissed based on either the grounds listed in section

114-1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114–1(a) (West 2008)) or

prosecutorial misconduct. People v. Fassler, 153 Ill. 2d 49, 58 (1992). In the latter instance:

               “Prosecutorial misconduct must rise to the level of a deprivation of due process or

               a miscarriage of justice. [Citations.] The due process rights of a defendant may be

               violated if the prosecutor deliberately or intentionally misleads the grand jury, uses

               known perjured or false testimony, or presents other deceptive or inaccurate

               evidence. [Citations.] An indictment may also be dismissed where the prosecutor

               has applied undue pressure or coercion so that the indictment is, in effect, that of


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               the prosecutor rather than the grand jury. [Citation.] To warrant dismissal of the

               indictment, defendant must therefore show that the prosecutors prevented the

               grand jury from returning a meaningful indictment by misleading or coercing it.”

               DiVincenzo, 183 Ill. 2d at 257-58.

       In dismissing the indictment in this case, the circuit court found it significant that the State

did not disclose the hearsay nature of Huntley’s testimony. The court found Huntley’s testimony

to be unreliable, in part due to the fact that he contradicted himself with regard to which hand had

been bitten.

       It is well settled that the character of the evidence presented to the grand jury does not

affect the validity of the indictment. Fassler, 153 Ill. 2d at 60; Calandra, 414 U.S. at 344-45. In

fact, an indictment may be based solely upon hearsay. Fassler, 153 Ill. 2d at 60; Costello, 350

U.S. at 363. Generally, the prosecutor is under no duty to inform the grand jury that a witness’s

testimony constitutes hearsay. Creque, 72 Ill. 2d at 524; People v. Pulgar, 323 Ill. App. 3d 1001,

1010 (2001).

       During the evidentiary hearing in this case on the defendant’s motion, the circuit court

agreed with the defendant that this case was controlled by People v. Oliver, 368 Ill. App. 3d 690,

698-99 (2006), in which the court held that a prosecutor engaged in misconduct at the grand jury

proceedings by withholding the hearsay nature of a witness’s testimony and thereby violated the

defendant’s due process rights. In so holding, the court stated:

               “[I]f the only defect in [the witness’s] testimony were that its hearsay nature was

               concealed, we would be hard-pressed to determine that, had the grand juries

               known that the testimony was hearsay, they would not have indicted defendant.


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               However, as the trial court indicated, [the witness’s] testimony was doubly

               deceptive. Not only was its hearsay nature concealed, but it also mischaracterized

               the observations of the actual eyewitness so as to establish probable cause where

               none existed. It is on this point that prejudice arises.” Oliver, 368 Ill. App. 3d at

               697.

       It is important to recognize that Oliver does not stand for the proposition that a prejudicial

deprivation of a defendant’s due process rights always occurs when a prosecutor fails to disclose

the hearsay nature of a witness’s testimony to the grand jury. In fact, four years after the Second

District decided Oliver, it recognized that a prosecutor is under no obligation to disclose the

hearsay nature of a witness’s testimony to the grand jury. People v. Holmes, 397 Ill. App. 3d

737, 742 (2010). Rather, Oliver stands for the proposition that the decision not to disclose the

hearsay nature of a witness’s testimony is problematic only when doing so would constitute

prosecutorial misconduct. Oliver, 368 Ill. App. 3d at 698-99; see also Holmes, 397 Ill. App. 3d

at 742; cf. Torres, 245 Ill. App. 3d at 301 (“[a]lthough the State has no general duty to present

exculpatory evidence to the grand jury, we recognize the possibility that, under certain

circumstances, a prosecutor’s intentional withholding of such evidence could result in a denial of a

defendant’s right to due process”); J.H., 136 Ill. 2d at 11 (“the exclusionary rule does not bar a

grand jury’s consideration of evidence illegally obtained, and use of such evidence does not,

absent egregious prosecutorial misconduct, warrant dismissal of an indictment”).

       In this case, there is no indication from the transcript of the grand jury proceedings that

the prosecutor engaged in misconduct by failing to disclose the hearsay nature of Huntley’s

testimony. Huntley made no statement that his testimony was based on personal observations, as


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was the case in Oliver. Neither the prosecutor’s leading questions nor Huntley’s simple answers

attempted to convey that his testimony was based on personal observations. The record does not

evince an attempt by the prosecutor to mislead or deceive the grand jury in this regard.

       In addition, the discrepancy regarding which hand had been bitten is not indicative of

prosecutorial misconduct. The defendant was charged with aggravated battery for biting an

unspecified hand of a correctional officer, and the prosecutor presented some evidence related to

the charge to the grand jury. See Holmes, 397 Ill. App. 3d at 742-43 (holding that the prosecutor

need not present evidence on every element of the charged offense; rather, all that is required is

some evidence related to the charge). Nothing in the transcript of the grand jury proceedings

evinces an attempt by the prosecutor to mislead or deceive the grand jury in this regard.1

       Further, neither Huntley’s status as a detective nor the reliability of his testimony is a

dispositive consideration in this case. Indictments returned by a legally constituted grand jury are

unassailable on the grounds that the indictment was based on inadequate or incompetent

testimony. DiVincenzo, 183 Ill. 2d at 255; People v. Jones, 19 Ill. 2d 37, 43 (1960) (“it is neither

necessary nor proper, in ruling upon a motion to quash an indictment, to consider the evidence

before the grand jury”); Costello, 350 U.S. at 363-64. In fact, in the grand jury context, a person

not disqualified by law from testifying is considered to be a competent witness, and his or her

testimony is also considered to be competent. Jones, 19 Ill. 2d at 42. There is nothing in the


       1
           Even if there had been something untoward about this discrepancy, we note that minor

discrepancies in grand jury testimony are not prejudicial if they are insignificant to the grand jury’s

determination of probable cause. Mattis, 367 Ill. App. 3d at 436-38; Holmes, 397 Ill. App. 3d at

742-43.

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transcript from the grand jury proceedings to indicate that the prosecutor withheld Huntley’s

status as a detective to mislead or deceive the grand jury.

        Under the circumstances of this case, we do not find the type of irregularity in the grand

jury proceedings that would constitute a ground to invalidate the indictment. We agree with the

circuit court that the prosecutor could have conducted the grand jury proceedings in a more

careful manner. In addition, we share the court’s concerns regarding the appropriate handling of

witnesses presented to a grand jury. Nevertheless, the prosecutor’s conduct in this case did not

deprive the defendant of due process. See DiVincenzo, 183 Ill. 2d at 257-58. Accordingly, we

hold that the prosecutor in fact presented the modicum of evidence necessary for this case to

proceed to trial. See Holmes, 397 Ill. App. 3d at 744; Costello, 350 U.S. at 363.

        For the foregoing reasons, we reverse the judgment of the circuit court of Kankakee

County that dismissed the indictment and remand the cause for further proceedings.

        Reversed and remanded.

        JUSTICE HOLDRIDGE, specially concurring:

        I agree with the result reached by the majority. I write separately to clarify the analysis

that a court should apply when ruling on a motion to dismiss an indictment based upon a

prosecutor’s presentation of deceptive or inaccurate evidence to the grand jury. I also write to

express my disapproval of the manner in which the State presented Detective Huntley’s testimony

during the grand jury proceedings in this case.

        The majority appears to suggest that a prosecutor’s presentation of deceptive information

to the grand jury violates due process only if the deception is deliberate, i.e., only if the

prosecutor actually “attempt[s] *** to mislead or deceive” the grand jury. Slip op. at 8. I


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disagree. Our supreme court has ruled that “[t]he due process rights of a defendant may be

violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known

perjured or false testimony, or presents other deceptive or inaccurate evidence.” (Emphasis

added.) People v. DiVincenzo, 183 Ill. 2d 239, 257 (1998). Applying these standards, our

appellate court has held that the State’s presentation of deceptive evidence may violate due

process “regardless whether the deception was intentional.” People v. Oliver, 368 Ill. App. 3d

690, 696 (2006). Thus, even if the prosecutor did not deliberately attempt to deceive the grand

jury in this case, a due process violation would result if Huntley’s testimony created the false

impression that he was an occurrence witness. See, e.g., Oliver, 368 Ill. App. 3d at 695 (finding a

due process violation where the witness “testified as if he were conveying his personal

observations rather than those of someone else” even though he “did not explicity say” that he

had personally observed the events in question); cf. Creque, 72 Ill. 2d at 524 (finding no due

process violation where the grand jury “could not *** have thought from the investigator’s

[testimony] that he was relating his personal observations of the incident”).

       In my view, the presentation of Huntley’s testimony came dangerously close to the line.

The prosecutor did not identify Huntley as an investigator or ask him whether he had actually

witnessed the events in question. Instead, he merely asked Huntley a series of leading questions

which might well have conveyed the impression that Huntley was an occurrence witness, rather

than a hearsay witness. The trial court correctly characterized this procedure as “sloppy” and

recognized that it created unacceptable risks to the defendant’s due process rights. These risks

could have been easily avoided if the prosecutor had simply asked Huntley to state his occupation




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and to explain the basis of his knowledge. I strongly encourage the State to follow this procedure

in future cases.

          Although I share the trial court’s and my colleagues’ concerns with the prosecutor’s

handling of the grand jury proceedings in this case, I agree with the result reached by the majority

because the defendant failed to show “actual and substantial” prejudice under the rigorous

standards imposed by our supreme court. In order to show prejudice sufficient to warrant the

dismissal of an indictment, a defendant must show that the due process violation at issue “affected

the grand jury’s deliberations.” DiVincenzo, 183 Ill. 2d at 257. This occurs only if the grand jury

would not have indicted the defendant but for the violation. Oliver, 368 Ill. App. 3d at 696-97.

In this case, the defendant failed to show that the grand jury would not have indicted him had it

known that Huntley’s testimony was hearsay. Moreover, although the defendant identifies some

inconsistencies between Huntley’s testimony and the police reports upon which he based his

testimony, none of these inconsistencies “establish[ed] probable cause where none existed” or

were otherwise relevant to the grand jury’s determination of probable cause. Oliver, 368 Ill.

App. 3d at 697. Even if all of the inconsistencies in Huntley’s testimony are disregarded, the

additional evidence before the grand jury—the accuracy of which is not disputed—was sufficient

to support the indictment. See, e.g., People v. Hruza, 312 Ill. App. 3d 319, 323 (2000).

        However, this does not eliminate my concerns regarding the prosecutor’s handling of the

grand jury proceedings in this case. Because of the demanding standard imposed by our supreme

court, it will always be extremely difficult for a defendant to show that a due process violation

resulted in prejudice warranting dismissal of the indictment. However, this does not mean that we

should countenance due process violations when they occur. To the contrary, such violations are


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inexcusable and should be assiduously avoided. Although the State is generally not obligated to

inform the grand jury that a witness’s testimony constitutes hearsay (People v. Holmes, 397 Ill.

App. 3d 737, 742 (2010)), a due process violation occurs if the testimony creates the false

impression that the hearsay witness is testifying as an occurrence witness (Oliver, 368 Ill. App. 3d

at 695). This amounts to the presentation of “deceptive or inaccurate evidence,” which is

prohibited. DiVincenzo, 183 Ill. 2d 239, 257. The State must take steps to ensure that such due

process violations do not occur irrespective of their potential effect on the grand jury’s decision to

indict. I approve of the trial court’s vigilance in this matter, and I strongly encourage prosecutors

to disclose the basis of a hearsay witness’s knowledge in future grand jury proceedings.




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