{ "id": 3472468, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARVIN TERRY, Defendant-Appellee", "name_abbreviation": "People v. Terry", "decision_date": "2003-08-21", "docket_number": "No. 1-02-2287", "first_page": "863", "last_page": "872", "citations": [ { "type": "official", "cite": "342 Ill. App. 3d 863" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "129 Ill. 2d 233", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5566993 ], "year": 1989, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0233-01" ] }, { "cite": "197 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259127 ], "year": 2001, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0001-01" ] }, { "cite": "262 Ill. App. 3d 869", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2852050 ], "year": 1994, "pin_cites": [ { "page": "873" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0869-01" ] }, { "cite": "188 Ill. 2d 91", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536114 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "97" }, { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0091-01" ] }, { "cite": "259 Ill. App. 3d 492", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2873294 ], "year": 1994, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0492-01" ] }, { "cite": "288 Ill. App. 3d 293", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1597009 ], "year": 1997, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0293-01" ] }, { "cite": "158 Ill. 2d 46", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780271 ], "year": 1994, "pin_cites": [ { "page": "51-52" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0046-01" ] } ], "analysis": { "cardinality": 764, "char_count": 20444, "ocr_confidence": 0.76, "pagerank": { "raw": 8.183446889967348e-08, "percentile": 0.47550918991802227 }, "sha256": "28af32b0d38089f9e35daedb2d26b80084b0aa2c1c73f2fb2fa9c7376569cdb5", "simhash": "1:d97af7211a80d7f3", "word_count": 3451 }, "last_updated": "2023-07-14T17:14:05.196224+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "THEIS, EJ., and KARNEZIS, J., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARVIN TERRY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nDefendant Marvin Terry was charged with three counts of the Class 2 felony of harassment of a witness and family members of a witness under section 32 \u2014 4a(a)(2) of the Criminal Code of 1961. 720 ILCS 5/32 \u2014 4a(a)(2) (West 2002). Defendant moved to dismiss the indictment, pursuant to section 114 \u2014 1(a)(8) of the Code of Criminal Procedure of 1963, alleging that it failed to state an offense. 725 ILCS 5/114 \u2014 1(a)(8) (West 2002). After considering both the written and oral arguments presented by the parties, the trial court granted defendant\u2019s motion. The State filed a motion to reconsider. Upon reconsideration, the trial court confirmed the dismissal. The State now appeals, arguing that the trial court misinterpreted section 32\u2014 4a(a)(2) and therefore erred by dismissing the indictment.\nThe main issue on appeal is whether section 32 \u2014 4a(a)(2) protects a person from being harassed after a legal proceeding has concluded, when that person was identified as a potential witness in discovery responses but was never called to testify during the case because the defendant pleaded guilty. For the reasons that follow, we find that the statute does not confer such protection. Therefore, we affirm the trial court\u2019s dismissal of the indictment.\nTo begin, we note that this court was provided with very little information regarding the background of this case. The following facts, however, have been gleaned from the record and provide a rough account of the events leading up to this appeal.\nAt some time prior to the date of the alleged harassment, defendant was charged with aggravated battery, in case No. 01 CR 129850, entitled People v. Terry. The victim of the battery, Edgar Rodriguez, Jr., and his sister, Danielle Rodriguez, were identified as potential witnesses in the State\u2019s responses to defendant\u2019s requests for discovery. Edgar and Danielle were never called to testify in the case, however, because defendant pleaded guilty.\nAs a result of defendant\u2019s plea, he was convicted and sentenced to a term of imprisonment. He was subsequently released on parole. The State alleges that, on January 2, 2002, defendant encountered Danielle and her mother, Marlene Rivera, for the first time since his release. The State further alleges that, during that encounter, defendant drove alongside the women, yelling \u201cTrick, trick, trick\u201d while pointing at them, intending to harass or annoy them. Defendant was arrested the following day and, in a three-count indictment, was charged with \u201cthe offense of Harassment of representatives for the child, jurors, witnesses and family members of representatives for the child, jurors, and witnesses.\u201d Specifically, the first count of the indictment charged that defendant:\n\u201cwith intent to harass or annoy Marlene Rivera, a family member, to wit: mother of Edgar Rodriguez Jr. a person who has served as a potential witness in a legal proceeding, to wit: People of the State of Illinois v. Marvin Terry et. [sic] al. 01 CR129850, because of the potential testimony of Edgar Rodriguez Jr., communicated directly with the family member of Edgar Rodriguez Jr[.], Marlene Rivera, to wit: pointed at and yelled \u2018Trick, trick, trick\u2019 in such a manner as to produce mental anguish or emotional distress to Marlene Rivera ***.\u201d\nThe second and third counts charged defendant with the same conduct \u2014 alleging, however, that it was directed at Danielle, both as a family member of \u201ca person who has served as a potential witness in a legal proceeding\u201d and as \u201ca potential witness in a legal proceeding.\u201d Each count of the indictment cited \u201cChapter 720 Act 5 Section 32\u2014 4a(a)(2) of the Illinois Compiled Statutes 1992 as amended,\u201d as the relevant statute.\nSection 32 \u2014 4a(a)(2) provides:\n\u201cA person who, with intent to harass or annoy one who has served or is serving or who is a family member of a person who has served or is serving (1) as a juror because of the verdict returned by the jury in a pending legal proceeding or the participation of the juror in the verdict or (2) as a witness, or who may he expected to serve as a witness in a pending legal proceeding, because of the testimony or potential testimony of the witness, communicates directly or indirectly with the juror, witness, or family member of a juror or witness in such manner as to produce mental anguish or emotional distress or who conveys a threat of injury or damage to the property or person of any juror, witness, or family member of the juror or witness commits a Class 2 felony.\u201d 720 ILCS 5/32\u2014 4a(a) (West 2002).\nOn March 1, 2002, defendant moved to dismiss the indictment, arguing that it failed to state an offense. The trial court granted defendant\u2019s motion, explaining:\n\u201cAs made clear by the language of the offense, the statute seeks to protect two classes of individuals that may serve as witnesses, as well as their family members: (1) A person that has served or is serving as a witness and (2) a person that may be expected to serve as a witness. In the first instance, the person must be a witness. This covers a person that has already testified in a proceeding already concluded and a person that may be waiting to be called in a matter currently on trial.\nIn the second instance, the person must he someone expected to serve as a witness in a pending legal proceeding. This apparently addresses a legal proceeding still in the pretrial stages. As made clear by the legislative history this would cover individuals named in the witness lists provided by each side. It is clear, however, that a person is a potential witness only while there is \u2018a pending legal proceedings [sic] as set out by the language of the statute.\nIn the case at bar, based on the State\u2019s Response, no one actually took the stand in the underlying criminal matter as defendant pleaded guilty. As such, there is no individual that can fall within the first class of protected individuals. That is, there is no individual that \u2018served or is serving as a witness.\u2019 Although there were certainly individuals that were potential witnesses, by the clear language of the statute in order to fall within the second class of protected individuals there must be a \u2018pending legal proceeding.\u2019 There is no such \u2018pending legal proceeding\u2019 as the legal proceeding concluded by defendant\u2019s plea of guilty.\u201d\nThe crux of the dispute in this appeal is whether the indictment sufficiently sets forth each of the required elements of the offense of harassment of a witness \u2014 specifically, whether the alleged victims fall within a class protected by section 32 \u2014 4a(a)(2). The State takes the position that, because Edgar and Danielle assisted the police and the prosecutors in their investigation and probably would have testified if defendant had not pleaded guilty, they \u201cserved as\u201d witnesses and were protected under the statute despite the fact that defendant\u2019s case was no longer pending. We find the State\u2019s interpretation untenable inasmuch as it contradicts the plain language of the statute and is unsupported by the legislative history of the statute.\nWe begin our analysis by addressing the trial court\u2019s authority to dismiss an indictment. Section 114 \u2014 1(a)(8) provides that, upon the written motion of the defendant made prior to trial before or after a plea has been entered, the court may dismiss an indictment, information or complaint if the charge does not state an offense. 725 ILCS 5/114 \u2014 1(a)(8) (West 2002). To sufficiently allege the commission of an offense, the indictment must: (1) state the name of the offense; (2) cite the statutory provision alleged to have been violated; (3) set forth the nature and elements of the offense charged; (4) state the date and county of the offense; and (5) state the name of the accused. 725 ILCS 5/111 \u2014 3(a) (West 2002). The purpose of section 111 \u2014 3 is to inform the accused of the nature of the offense with which he is charged so that he may prepare a defense and to assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct. People v. Meyers, 158 Ill. 2d 46, 51-52 (1994). If the charging instrument omits an element of an offense with which the accused is intended to be charged, the instrument fails to state a criminal offense. People v. Jones, 288 Ill. App. 3d 293, 296 (1997). An appeal from the dismissal of an indictment requires the reviewing court to determine, de novo, whether the complaint complies with the aforementioned statutory requirements. See People v. Smith, 259 Ill. App. 3d 492, 495, (1994).\nIt is clear from the indictment that the State sought to charge defendant with the offense of harassment of a witness, pursuant to section 32 \u2014 4a(a). Thus, it is our task to determine whether the State sufficiently alleged in the indictment each of the elements of that offense. Specifically, we must address whether the indictment alleges that the victims are among those whom the legislature sought to protect when enacting this statute.\nWe look first to the statute to determine who falls within its range of protection. Where the statutory language is clear and unambiguous, its plain meaning should be given effect. People v. Whitney, 188 Ill. 2d 91, 97 (1999). The language of section 32 \u2014 Ua(a), as it pertains to witnesses, confers protection from harassment upon a person if he or she: (1) has served as a witness; (2) is serving as a witness; (3) is a family member of a person who has served as a witness; (4) is a family member of a person who is serving as a witness; (5) may be expected to serve as a witness in a pending legal proceeding; or (6) is a family member of a person who may be expected to serve as a witness in a pending legal proceeding. 720 ILCS 5/32 \u2014 4a(a)(2) (West 2002).\nLooking next to the indictment, we consider the plain and ordinary meaning of its language as read and interpreted by a reasonable person. See People v. Wilkenson, 262 Ill. App. 3d 869, 873 (1994). The plain language of the indictment identifies the alleged victims as either \u201ca person who has served as a potential witness in a legal proceeding\u201d or as a family member of \u201ca person who has served as a potential witness in a legal proceeding.\u201d As read and interpreted by a reasonable person, the plain and ordinary meaning of \u201cpotential witness\u201d seems to identify a person \u201cwho may be expected to serve as a witness.\u201d The State suggests, however, that the adjective \u201cpotential,\u201d as it is used in the indictment, is essentially surplusage, and that the term \u201cwitness,\u201d without the modifier \u201cpotential,\u201d actually describes Edgar and Danielle. Relying on this argument, the State declined to amend the indictment, stating the following to the trial court:\n\u201cIf the gravemen [sic] of this problem [sic] the term potential, I would be willing to go back to the grand jury and ask for an indictment that doesn\u2019t have the word potential in it.\nIt\u2019s our position that Danielle Rodriquez and Marlene Rivera served as witnesses even though they never testified. I admit they didn\u2019t testify, and I admit that proceeding is concluded. My position is that they served as witnesses despite the fact they never testified.\nAnd I believe as I put in my response, if the legislature wanted to equate testimony with witnesses, they could have drafted that legislation in a much more succinct fashion than they did. I submit the reason it\u2019s drafted the way it is is because it does protect a person who never testified even though that proceeding has come to an end.\u201d\nIn essence, the State argues that the legislature intended the phrase \u201cone who has served as a witness\u201d to encompass a person who was named in discovery responses but was never called to testify. If this interpretation truly reflects the legislature\u2019s intent, the indictment would indeed allege victims who fall within the ambit of the statute\u2019s protection and would survive a motion to dismiss. However, if the legislature did not intend such an interpretation, the indictment would fail. As such, resolution of the main issue in this appeal hinges on statutory interpretation. Specifically, we must determine what the legislature intended by its use of the phrases \u201chas served as a witness\u201d and \u201cmay be expected to serve as a witness.\u201d\nTo determine legislative intent, we look first to the plain language of the statute. People v. Whitney, 188 Ill. 2d 91, 97 (1999). The plain language of the statute reveals that the legislators intended to treat a person who \u201chas served as a witness\u201d as a separate entity from a person \u201cwho may be expected to serve as a witness\u201d \u2014 otherwise the statute would be absurdly redundant. This intent is further revealed by the legislative history of this case.\nPrior to its amendment in 1994, section 32 \u2014 4(a) provided as follows:\n\u201cA person who, with intent to harass or annoy one who has served as a juror or as a witness in a legal proceeding, because of the verdict returned by the jury therein or the participation of such juror in the verdict or because of the testimony of such witness, communicates directly or indirectly with the juror or witness in such manner as to produce mental anguish or emotional distress or who conveys a threat of injury or damage to the property or person of such party or witness or to the property or person of any relative of such party or witness commits a Class 4 felony.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 32 \u2014 4a.\nHowever, prompted by concerns from the Illinois State\u2019s Attorney\u2019s Association arising from gang cases, the legislature proposed to amend the statute to protect not only a person who \u201chas served\u201d or \u201cis serving as a witness,\u201d but also a person who \u201cmay be expected to serve as a witness in a pending legal proceeding.\u201d 88th Ill. Gen. Assem., House Bill 1452, 1994 Sess.\nWe find that the legislature intended to attach different, and mutually exclusive, meanings to the phrases \u201chas served as a witness\u201d and \u201cmay be expected to serve as a witness\u201d \u2014 otherwise, the 1994 amendment would have been meaningless. Thus, it is our next task to determine which one encompasses the alleged victims named in the indictment. To make this determination, we again look to legislative intent. In this instance, it is not readily apparent from the plain language of the statute into which group the legislature intended for a person named in discovery responses but who did not testify to fall. Thus, we look to extrinsic aids \u2014 namely, the legislative debates.\nThe debates in this case reveal that, when adopting the amendment, the legislators intended for a person who is named as a witness in discovery responses to be considered a \u201cpotential witness,\u201d and for that person to be protected by the new provision for a \u201cperson who may be expected to serve as a witness.\u201d Consider the following colloquy:\n\u201c[Representative] Dart: House Bill 1452 would attempt to give potential witnesses the same protection[s] that are afforded under the law to witnesses. This was proposed by the Illinois State\u2019s Attorney\u2019s Association, and I move for its passage.\n[Representative] Wennlund: Could you tell the Ladies and Gentlemen of the House, how is a person to determine who a potential witness is?\n[Representative] Dart: Usually it\u2019s done quite easily through the ... by going through a Motion for Discovery which is done at the initial stage of the trial. At that point, each side is required to list its potential witnesses who they may or may not call to testify in the proceeding. It\u2019s a document that\u2019s filed with the court that each party exchanges and that would be what they\u2019re working off of.\n[Representative] Dart: *** [S]o this would deal with the ones who potentially would be there who may not actually testify \u2019cause they had somebody else who testified to the exact same things. So the State\u2019s Attorney pulled it out of the record or did not put that witness on, and this would attempt to provide them the same protections because in a lot of these gang incidents that we\u2019ve been facing lately, especially in Chicago, you have a lot of instances where witnesses are being threatened and they will not come forth and testify then. This would say that the witness, even though he physically does not testify in the case, if he is there as a witness, potentially going to testify, but he is afforded those same protections. This has been proposed by the State\u2019s Attorney Association because of the problems they\u2019ve been facing in regard to this; namely gang cases.\u201d 88th Ill. Gen. Assem., House Proceedings, April 20, 1993, at 71-73 (statements of Representatives Dart and Wennlund).\nAs potential witnesses who were named in discovery responses, Edgar and Danielle clearly fall among the legislature\u2019s definition of those \u201cwho may be expected to serve\u201d as witnesses. As such, they cannot also be considered among those who have \u201cserved as\u201d witnesses under section 32 \u2014 4a(a).\nHaving determined that the legislature intended for persons such as Edgar and Danielle to be protected by the 1994 amendment, we look back to plain language of the statute to determine the duration of such protection. We find it clear from the statute that the legislature intended for those \u201cwho may be expected to serve as\u201d witnesses to be protected only during the pendency of the legal proceeding. Thus, in this case, where the State has admitted that the underlying proceeding has concluded, we find that neither Edgar, Danielle, nor their mother falls under the protection of the statute. Their protection ended when the case concluded.\nThe State disagrees, arguing that the legislature could not possibly have intended for potential witnesses to \u201close their protection after a case has been adjudicated.\u201d We find, however, that any alleged intent to offer unlimited protection to the potential witnesses is belied by the plain language of the statute, which reveals the drafters\u2019 deliberate inclusion of the limiting phrase \u201cpending legal proceeding.\u201d\nThus, in light of the plain language and the legislative history of this statute, it is clear that the legislature intended for persons, such as Edgar and Danielle, who were named in discovery requests as potential witnesses, and their families, to be protected by the statute only during the pendency of the proceedings. Further, as the State has admitted in this case that the underlying proceeding is no longer pending, the indictment fails to allege a victim who is within the ambit of the statute\u2019s protection. Lacking this essential element of the offense with which the State sought to charge defendant, the indictment was properly dismissed by the trial court.\nWe do not intend by our affirmation in this case to undermine what we believe to be a strong policy argument by the State. We understand the importance of protecting both witnesses and potential witnesses from harassment, even after a case has concluded, particularly in light of the current prevalence of gangs in our neighborhoods. We cannot rewrite the statute, however, to make it consistent with the court\u2019s idea of orderliness and public policy (Lawrence v. Regent Realty Group, Inc., 197 Ill. 2d 1, 11 (2001)), and to interpret the statute as conferring unlimited protection upon Edgar, Danielle and their mother would require us to read in the words \u201cwho may have been expected to serve as a witness in a pending legal proceeding\u201d or \u201cwho may be expected to serve as a witness in a legal proceeding.\u201d Therefore, even though the State\u2019s proposed interpretation of the statute might resolve valid policy concerns, we cannot expand the scope of this statute by affirmatively altering its language \u2014 particularly because we are required to strictly construe this criminal statute in favor of the accused. See People v. Chandler, 129 Ill. 2d 233, 254 (1989).\nAffirmed.\nTHEIS, EJ., and KARNEZIS, J., concur.\nThe statute cited in the indictment was significantly amended after 1992. Thus, the statute applicable in this case is indeed different from that cited in the indictment.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Janet Powers Doyle, and Jeffrey Stein, Assistant State\u2019s Attorneys, of counsel), for the People.", "Edwin A. Burnette, Public Defender, of Chicago (Michael Davidson, Assistant Public Defender, of counsel), for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARVIN TERRY, Defendant-Appellee.\nFirst District (4th Division)\nNo. 1-02-2287\nOpinion filed August 21, 2003.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Janet Powers Doyle, and Jeffrey Stein, Assistant State\u2019s Attorneys, of counsel), for the People.\nEdwin A. Burnette, Public Defender, of Chicago (Michael Davidson, Assistant Public Defender, of counsel), for appellee." }, "file_name": "0863-01", "first_page_order": 881, "last_page_order": 890 }