Court: Appellate Court of Illinois; April 2, 1993; Illinois; State Appellate Court
Defendant Demetrios Giokaris faced five counts of theft and one count of attempted theft. He moved to dismiss the charges, claiming immunity granted by the State during a grand jury investigation. The trial court granted the motion, leading to the State's appeal. The State argued that the dismissal was improper as limited immunity could be conferred rather than full transactional immunity.
On February 20, 1990, Giokaris received a grand jury subpoena for patient records. After a hearing regarding physician-patient privilege, Judge Bowman conferred immunity at the prosecutor’s request, releasing Giokaris from prosecution related to the production of documents and accompanying testimony. Following this, Giokaris appeared before the grand jury and provided requested documents and testimony. He was subsequently indicted for six offenses linked to his grand jury testimony, including three theft counts and conspiracy to commit theft. One attempted theft charge was dismissed, and Giokaris later moved to dismiss the remaining counts, citing his prior grant of transactional immunity.
The State argued that the precedent set in In re January 1986 Grand Jury No. 217 allowed for limited 'production' immunity, which would not exempt Giokaris from liability for any crimes revealed by the documents. After reviewing the arguments, the trial judge dismissed the indictment, concluding that the Illinois Supreme Court decision in People ex rel. Cruz v. Fitzgerald took precedence over the Appellate Court's ruling in the In re January 1986 Grand Jury No. 217 case. The judge determined that the prosecutor’s questioning had exceeded permissible limits, thereby validating the dismissal. The State maintains that the case in question aligns closely with In re January 1986 Grand Jury No. 217, which allowed for immunity strictly concerning the act of producing documents, not for any underlying offenses they might disclose.
Defendants claimed their Fifth Amendment privilege was inadequately protected by a limited grant of immunity, leading to their contempt for failing to produce subpoenaed documents. The court referenced the Illinois Constitution, which aligns with the Fifth Amendment, and noted the precedent set in *United States v. Doe* (1984), establishing that while the contents of voluntarily kept documents are not privileged, the act of producing such documents may be privileged. The Appellate Court held that to compel production, the State must provide immunity for both the act of production and the accompanying testimonial statements.
In a related case, *In re January 1986 Grand Jury No. 217*, the court affirmed that transactional immunity cannot be converted into lesser protections against prosecution for offenses related to the compelled evidence. The compelled testimony from the defendants, confirming the existence and possession of the records, was deemed not to relate to tax fraud crimes. The court clarified that while immunity protects against prosecution stemming from the act of production, it does not shield the State from using the evidence within the documents for prosecution. The trial court's immunity order was deemed proper, and the request to bar the State from its investigation was denied. The State argued that the principles established in the prior case support the notion that production immunity can exist without violating statutory protections, asserting that the evidence from the documents could be used against the defendants despite their protected testimony. However, the court disagreed, maintaining the integrity of section 106.1 of the Code of Criminal Procedure regarding immunity in grand jury investigations.
Section 106.2 of the Code of Criminal Procedure establishes that an order of immunity protects a witness from prosecution for any offense related to their testimony, except for perjury. The immunity provided is transactional, meaning it grants full protection from prosecution for offenses linked to the compelled testimony, unlike use immunity, which offers limited protection. This distinction was affirmed by the Illinois Supreme Court in People ex rel. Cruz v. Fitzgerald, which clarified that the statutory language grants transactional immunity. This principle has been consistently upheld by appellate courts, emphasizing the necessity for strict compliance with the statutory terms when granting immunity. The case of Cruz involved a defendant indicted for theft who received immunity while testifying in a separate homicide investigation; his immunity was not recognized as use immunity for the theft charges. The court highlighted that the statute does not allow for the conversion of transactional immunity to use immunity in different jurisdictions. Despite potential complications arising from this interpretation, the clear statutory language must be enforced, and any changes should be made by the legislature, not the courts. Furthermore, the appellate court has rejected attempts to limit immunity through agreements in cases involving minors, reaffirming that the statutory provisions create transactional immunity.
The court determined that the trial court lacks inherent authority to grant immunity and can only do so through statutory provisions. Citing relevant case law, it emphasized that Illinois statutes, specifically sections 106.1 and 106.2, provide transactional immunity without the option of converting it into use immunity. The court concluded that since the statute granted full transactional immunity, the defendant could not be further prosecuted or punished. It also noted that the State's reliance on In re January 1986 Grand Jury No. 217 was misplaced, as it has not been endorsed by any published Illinois decision, and that different appellate districts are not obligated to follow each other's rulings. Furthermore, the court found that In re January 1986 Grand Jury No. 217 conflicts with the Illinois Supreme Court's ruling in Cruz and violates the relevant statutory language. Consequently, the dismissal of the indictment by the Du Page County circuit court was affirmed. INGLIS, P.J. and QUETSCH, J. concur.
