{ "id": 4294257, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD E. VEST, Defendant-Appellant", "name_abbreviation": "People v. Vest", "decision_date": "2009-12-23", "docket_number": "No. 2\u201408\u20140281", "first_page": "289", "last_page": "296", "citations": [ { "type": "official", "cite": "397 Ill. App. 3d 289" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "764 F. Supp. 254", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7383642 ], "year": 1991, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/f-supp/764/0254-01" ] }, { "cite": "29 F.3d 1180", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1840631 ], "year": 1994, "pin_cites": [ { "page": "1183", "parenthetical": "reviewing decisions" } ], "opinion_index": 0, "case_paths": [ "/f3d/29/1180-01" ] }, { "cite": "21 U.S.C. \u00a7851", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2000, "pin_cites": [ { "page": "(a)(1)" }, { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2875659 ], "year": 1975, "pin_cites": [ { "page": "595-96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0574-01" ] }, { "cite": "51 Ill. App. 2d 430", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5277781 ], "year": 1964, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/51/0430-01" ] }, { "cite": "2 Ill. App. 2d 29", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5125744 ], "year": 1954, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/2/0029-01" ] }, { "cite": "204 Ill. 2d 267", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609687 ], "year": 2003, "pin_cites": [ { "page": "283", "parenthetical": "\"Jeopardy attaches when the jury is empaneled and sworn\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0267-01" ] }, { "cite": "23 Ill. App. 3d 997", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2508187 ], "year": 1974, "pin_cites": [ { "page": "998" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0997-01" ] }, { "cite": "394 Ill. 177", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2471064 ], "year": 1946, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/ill/394/0177-01" ] }, { "cite": "88 Ill. App. 2d 251", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 8499276 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/88/0251-01" ] }, { "cite": "22 Ill. 2d 563", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2789613 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0563-01" ] }, { "cite": "101 Ill. App. 2d 377", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2901458 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "378-79" }, { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/101/0377-01" ] }, { "cite": "980 F.2d 836", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10516005 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "841" }, { "page": "841-42" }, { "page": "842" } ], "opinion_index": 0, "case_paths": [ "/f2d/980/0836-01" ] }, { "cite": "214 Ill. App. 3d 47", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5297337 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "51" }, { "page": "51", "parenthetical": "holding that, for purposes of voluntary dismissal under section 2-1009 of the Code of Civil Procedure, \"before trial\" means before the start of jury selection" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0047-01" ] }, { "cite": "144 Ill. App. 3d 997", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3500872 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "999-1000" }, { "page": "999-1000", "parenthetical": "holding that speedy-trial rights are satisfied when voir dire starts in the applicable period" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0997-01" ] }, { "cite": "59 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2960026 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "404-05" }, { "page": "404-05" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0402-01" ] }, { "cite": "291 Ill. App. 3d 431", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456092 ], "year": 1997, "pin_cites": [ { "page": "436", "parenthetical": "\"[a] trial is deemed to have commenced after the jury is impaneled and sworn\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0431-01" ] }, { "cite": "233 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3621273 ], "year": 2009, "pin_cites": [ { "page": "112", "parenthetical": "questions of law reviewed de novo" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/233/0089-01" ] }, { "cite": "214 Ill. 2d 79", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8450632 ], "year": 2005, "pin_cites": [ { "page": "86-88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/214/0079-01" ] } ], "analysis": { "cardinality": 835, "char_count": 18684, "ocr_confidence": 0.744, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14447232251764486 }, "sha256": "33f2db1b5e8eba7716204ab87a2782421a7a5b582ed0496f2cce4c314d8ed5dd", "simhash": "1:da6cf4b02f7e8826", "word_count": 3156 }, "last_updated": "2023-07-14T19:15:46.302641+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD E. VEST, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HUDSON\ndelivered the opinion of the court:\nDefendant, Ronald E. Vest, appeals from his conviction of one of four counts of predatory criminal sexual assault of a child (720 ILCS 5/12\u201414.1(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.\nI. BACKGROUND\nDefendant 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, \u201ccommitted 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.\u201d (Emphasis added.)\nOn 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\u201416(c)(1)(i) (West 2004)). The third count of predatory criminal sexual assault of a child alleged that defendant \u201cplaced his finger on the anus of A.I.\u201d (Emphasis added.)\nThe 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\u2019s 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 \u201cdefendant placed his finger in the anus of A.I.\u201d (Emphasis added.) Plainly, something caused a delay in the stamping of many of these documents.\nThe 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\u2014that is, the clerk stamped\u2014a motion for a new trial. That motion included the assertion that the court had erred in denying the motion to dismiss count III.\nOn January 15, 2008, the court sentenced defendant to a total of 39 years\u2019 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.\nIn 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.\nPromptly on the morning of December 12, 2007, the defense asked for \u201cleave to file with the court a motion to dismiss on Count Three.\u201d 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\u2019s motion and granted the State\u2019s, ruling that defendant was entitled to have the flawed count dismissed only if he could show that the amendment would prejudice him.\nThe transcript persuades us that, despite the file-stamp date on defendant\u2019s 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.\nII. ANALYSIS\nOn 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\u2019s first contention, but agree with its second.\nThe 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\u2019s 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 (2005). The State does not challenge defendant\u2019s contention that the indictment, in stating that defendant \u201cplaced his finger on the anus of A.I.,\u201d 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\u2019s start. That is a question of law, so our review is de novo. See People v. Sutton, 233 Ill. 2d 89, 112 (2009) (questions of law reviewed de novo).\nDefendant, relying on People v. Rand, 291 Ill. App. 3d 431, 436 (1997) (\u201c[a] trial is deemed to have commenced after the jury is impaneled and sworn\u201d), asserts that the trial starts only when the entire jury is sworn. The State cites People v. Williams, 59 Ill. 2d 402, 404-05 (1974), People v. Johnson, 144 Ill. App. 3d 997, 999-1000 (1986), and Baird v. Adeli, 214 Ill. App. 3d 47, 51 (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\u2019s right to a speedy trial was satisfied when voir dire, but not the State\u2019s case in chief, began in the required time. In Baird, it was what stage of proceedings marks the end of \u201cbefore trial\u201d for purposes of voluntary dismissal under section 2\u20141009 of the Code of Civil Procedure (now 735 ILCS 5/2\u20141009 (West 2008)).\nRand, 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 holds that \u201cbefore trial\u201d means \u201cbefore voir dire\u201d where a statute requires the United States to notify a defendant \u201cbefore trial\u201d of its intent to seek a recidivism enhancement to the sentence. In particular, we look to the reasoning in People v. White, 980 F.2d 836 (2d 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\u2019s right to an unflawed indictment not to be considered in light of any other considerations.\nRand, defendant\u2019s principal authority, and People v. Shick, 101 Ill. App. 2d 377, 378-79 (1968), the case on which the Rand court relied, although not themselves double-jeopardy cases, draw primarily on cases considering when jeopardy attaches. In Rand, the issue was whether the defendant had an absolute right to waive his right to a jury trial after the swearing of the jury but before testimony began. The Rand court ruled that, because the swearing of the jury was the start of the trial, whether to allow the requested waiver was within the court\u2019s discretion. In Shick, the issue was whether the court could discharge the defendant based on a purported want of prosecution. The Shick court noted that statute prohibited discharging the defendant until the State had had the opportunity to present its evidence; the court then cited two cases, People v. Friason, 22 Ill. 2d 563 (1961), and Jordan v. Savage, 88 Ill. App. 2d 251 (1967), for the proposition that \u201c[a jury] trial does not begin until the accused has been arraigned and the jury impaneled and sworn.\u201d Shick, 101 Ill. App. 2d at 379. Friason held that \u201c[t]he trial and jeopardy begin when the accused has been arraigned and the jury impaneled and sworn.\u201d Friason, 22 Ill. 2d at 565. Several older double-jeopardy cases articulate the law in a similar manner. Such cases include People v. Watson, 394 Ill. 177, 180 (1946), and People v. Grevan, 23 Ill. App. 3d 997, 998 (1974). More recent cases typically state that jeopardy attaches when the jury is sworn, but do not assert that the swearing of the jury is also the start of the trial. E.g., People v. Henry, 204 Ill. 2d 267, 283 (2003) (\u201cJeopardy attaches when the jury is empaneled and sworn\u201d).\nIn Jordan, on the other hand, the court stated that \u201c \u00a3[i]n general it has been held that the trial begins when the jury are called into the box for examination as to their qualifications and that the calling of a jury is part of the trial.\u2019 \u201d Jordan, 88 Ill. App. 2d at 257, quoting Wilhite v. Agbayani, 2 Ill. App. 2d 29, 33 (1954), citing 53 Am. Jur. Trial \u00a74. It is thus a case that supports the State\u2019s position. The Jordan court looked to Jost v. Hill, 51 Ill. App. 2d 430, 433 (1964), and Wilhite, two cases concerning the timing for voluntary dismissals in civil proceedings. The State points to Williams, 59 Ill. 2d at 404-05, Johnson, 144 Ill. App. 3d at 999-1000 (holding that speedy-trial rights are satisfied when voir dire starts in the applicable period), and Baird, 214 Ill. App. 3d at 51 (holding that, for purposes of voluntary dismissal under section 2\u20141009 of the Code of Civil Procedure, \u201cbefore trial\u201d means before the start of jury selection), as showing that trial starts with voir dire. We also take note of People v. Heidelberg, 33 Ill. App. 3d 574, 595-96 (1975), which cites Wilhite for the proposition that the general meaning of \u201cbefore trial\u201d is before voir dire.\nThe parties here present us with dueling lines of authority and no clear basis upon which to decide the issue. However, several federal cases considering the meaning of \u201cbefore trial\u201d in section 851(a)(1) of Title 21 of the United States Code (21 U.S.C. \u00a7851(a)(1) (2000)) provide us with sound guidance. That provision states:\n\u201cNo person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial *** the United States attorney files an information with the court *** stating in writing the previous convictions to be relied upon.\u201d (Emphasis added.) 21 U.S.C. \u00a7851(a)(1) (2000).\nThe section gives no guidance about the meaning of \u201cbefore trial.\u201d However, the federal courts of appeal have uniformly held that, in this context, \u201cbefore trial\u201d means \u201cbefore voir dire starts.\u201d See United States v. McAllister, 29 F.3d 1180, 1183 (7th Cir. 1994) (reviewing decisions). We have found the analysis in White to be notably helpful in distinguishing between the start of trial and the attachment of jeopardy.\nThe White court noted that, in many other contexts, such as speedy trial, federal courts have held that the start of voir dire marks the start of trial, so that the ordinary meaning of \u201cbefore trial\u201d is \u201cbefore voir dire.\u201d White, 980 F.2d at 841. It recognized, however, that jeopardy attaches with the swearing of the jury and that double-jeopardy decisions thus sometimes call the swearing of the jury the start of the trial. White, 980 F.2d at 841-42. It nevertheless held that double-jeopardy principles are inappropriate in interpreting section 851(a)(1). The trial court in White used a formulation much like that in Friason, holding that, because a \u201ctrial begins and jeopardy attaches when the jury is sworn,\u201d anytime before the swearing of the jury was \u201cbefore trial\u201d under section 851(a)(1). United States v. White, 764 F. Supp. 254, 255 (D. Conn. 1991). The appellate court in White held that double-jeopardy concerns dictate a different mark for the start of trial than in the general case:\n\u201cThe Double Jeopardy Clause protects an individual from twice being subject to the risk of a determination of guilt. [Citation.] That risk comes into play only when \u2018a proceeding begins before a trier \u201chaving jurisdiction to try the question of the guilt or innocence of the accused.\u201d \u2019 [Citations.] Accordingly, the risk associated with trial does not occur, and jeopardy does not attach, until the jury has been empaneled and sworn, and is thus competent to dispense a judgment of guilt. These considerations are inapposite to our inquiry under \u00a7851(a)(1), which requires that we determine when the trial begins, not when the defendant\u2019s exposure to the risk of a guilty verdict begins. Put another way, the Constitution protects against \u2018double jeopardy,\u2019 not \u2018double trial,\u2019 and the attachment of jeopardy does not occur at the commencement of the trial as \u2018trial\u2019 is otherwise commonly defined.\u201d White, 980 F.2d at 842.\nWe find persuasive the White court\u2019s explanation of why the standard for the attachment of jeopardy is inapposite to deciding when, for other purposes, trial begins.\nA holding that the trial begins with voir dire is consonant with our understanding of why the supreme court created separate standards for early and late motions to dismiss. In a typical pretrial setting, nothing will prevent the State from returning to the grand jury if necessary to correct an error in an indictment. Thus, no countervailing interest weighs against a defendant\u2019s right to an unflawed indictment. However, if the defendant succeeds in a motion to dismiss a count during or after trial, the usual choice for the State will be to either abandon the attempt to get a conviction on the dismissed count or try the dismissed count separately. Once voir dire has started, the problems are similar, as this case illustrates. The parties had already invested a day in selecting a jury. It would have likely been impractical for the State to go before the grand jury to get an amended indictment without releasing the jury it had selected in this case. The possibilities here would thus be (1) abandoning the empaneled jury, with the consequent waste of juror time and uncertainty about whether jeopardy had attached on the properly charged counts, (2) abandoning any attempt to get a conviction on count III, with the consequent reduction in the maximum sentence defendant would face, or (3) trying count III separately, with the consequent waste of resources and strain on witnesses. As this case illustrates, by the time voir dire is underway, certain significant interests must be weighed against a defendant\u2019s right to a flawless indictment. Further, a defendant always has protection against an indictment with a flaw that causes him or her prejudice, as a court may grant even a late motion to dismiss in such an instance. The same policy that requires a higher standard for motions to dismiss brought during trial than for motions brought \u201cbefore\u201d trial compels us to construe \u201cbefore\u201d as meaning \u201cbefore voir dire.\u201d\nBecause defendant did not file before trial a motion to dismiss the defective count, under the rule in Cuadrado, he is entitled to have the count dismissed only if he shows that the defect caused him prejudice. Defendant has not attempted to demonstrate how he was prejudiced here. Thus, absent a showing of prejudice to defendant, the trial court was correct to refuse to dismiss count III of the indictment.\nIII. CONCLUSION\nFor the reasons stated, we hold that the trial court correctly refused to dismiss the defective count of the indictment after voir dire had commenced, because the defect did not prejudice defendant. We therefore affirm its judgment.\nAffirmed.\nO\u2019MALLEY and SCHOSTOK, JJ., concur.\nA potential issue here could have been whether the critical point is the swearing of the last of the regular jurors or the swearing of the alternates. Our holding that the critical point was the start of voir dire makes that a non-issue.\nThe problems are reduced if the dismissed count is the sole count.", "type": "majority", "author": "JUSTICE HUDSON" } ], "attorneys": [ "Thomas A. Lilien and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Robert J. Biderman and David E. Mannchen, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD E. VEST, Defendant-Appellant.\nSecond District\nNo. 2\u201408\u20140281\nOpinion filed December 23, 2009.\nThomas A. Lilien and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Robert J. Biderman and David E. Mannchen, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0289-01", "first_page_order": 305, "last_page_order": 312 }