No. 2-21-0740 Opinion filed September 23, 2022 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellant, ) ) v. ) No. 19-CF-2828 ) DANIEL D. BASILE III, ) Honorable ) Brendan A. Maher, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Hutchinson and Jorgensen concurred in the judgment and opinion.

OPINION

¶1 The State appeals from the judgment of the circuit court of Winnebago County dismissing

a grand jury indictment against defendant, Daniel D. Basile III. Because the trial court did not err

in dismissing the indictment, we affirm.

¶2 I. BACKGROUND

¶3 Defendant was charged by complaint with one count of criminal sexual assault based on

his having sexually penetrated the victim, Jane Doe, knowing that she was unable to understand

the nature of the act or to give knowing consent (720 ILCS 5/11-1.20(a)(2) (West 2018)).

¶4 Before the grand jury, the State presented only the testimony of Detective Vince Kelly of

the Rockford Police Department. He described what Doe told him about the incident. Doe had

gone to a bar with a group of friends, including defendant. After drinking at two bars, Doe was

“falling down.” Defendant and some friends helped Doe get to defendant’s car. Defendant then

drove Doe home and went into her home with her. Doe then fell onto a couch in the mudroom and

told defendant that she was “good” and that he could leave. Doe told Kelly that she could recall

defendant removing her pants and underwear and having sexual intercourse with her in the

mudroom. According to Kelly, Doe reported being in and out of awareness because of her

intoxication. Doe could not remember how her shoes came off. She later became aware that she

was in her bedroom and that defendant was licking her feet. Doe did not know how she got to her

bedroom. Defendant then had sexual intercourse with Doe while in her bedroom. Doe denied

having performed any sexual acts on defendant, because she was too intoxicated to do so. Doe

knew defendant because they both worked at the Rockford Police Department.

¶5 At the end of Kelly’s testimony, the prosecutor asked if any of the grand jurors had

questions for Kelly. One juror asked, “Besides that [Doe] said that this occurred, was there any

other evidence that [defendant] actually did this to her?” Kelly answered that he did not completely

understand the question. The juror then asked, “You said that [Doe] was extremely intoxicated,

correct?” Kelly responded, “Correct.” The juror then asked, “How do we know that the person

[Doe] claims did this to her did it to her?” Kelly answered, “He told me he did.” The juror then

commented, “That is all I needed to know.”

¶6 The grand jury returned an indictment, charging defendant with two counts of criminal

sexual assault based on lack of consent (720 ILCS 5/11-1.20(a)(2) (West 2018)). Defendant filed

a motion to dismiss the indictment, contending that he was denied due process because Kelly’s

answer to the grand juror’s question was false and misleading in that it conveyed to the grand jury

that defendant had confessed to the crime. In support of the motion to dismiss, defendant submitted

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the transcript of the grand jury proceeding and a video-recorded interview of defendant in which

he (1) told Kelly that the sexual encounter with Doe was consensual, (2) denied Doe’s version of

events as to lack of consent, and (3) denied committing criminal sexual assault.

¶7 In its response, the State argued that the grand juror’s question pertained only to the identity

of the person who had sex with Doe and not to whether the sex was consensual or nonconsensual.

Correspondingly, when Kelly answered, “[Defendant] told me he did,” Kelly was conveying

simply that defendant admitted having sex with Doe and not that defendant confessed that the sex

was nonconsensual. Thus, according to the State, Kelly’s testimony was not false and misleading.

¶8 Following a hearing on defendant’s motion to dismiss, the trial court found that the grand

juror’s question was not one of identity and that Kelly’s answer essentially informed the grand

jury that defendant had confessed to sexually assaulting Doe. That answer was false and

misleading, the court determined, because defendant had not confessed to the crime in the video-

recorded interview. The court held that, once Kelly gave his answer, the prosecutor was obliged

to clarify whether Kelly meant that defendant had confessed to sexually assaulting Doe or had

merely admitted that he was the one who had had sex with Doe. The court agreed with the State

that, before the grand juror questioned Kelly, the State had presented sufficient evidence to

establish probable cause. Nonetheless, the court concluded that Kelly’s false and misleading

testimony so prejudiced the grand jury proceeding that the indictment must be dismissed. The

State, in turn, filed this timely appeal.

¶9 II. ANALYSIS

¶ 10 On appeal, the State contends that we should reverse the trial court’s dismissal of the

indictment because defendant failed to demonstrate that Kelly’s answer to the grand juror denied

defendant due process. The State specifically argues that defendant failed to establish that (1) the

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State acted intentionally in presenting what defendant claims was deceptive or inaccurate evidence,

(2) it was “unequivocally clear” (internal quotation marks omitted) (People v. Nolan,

) that the State indeed presented deceptive or inaccurate evidence, and

(3) defendant suffered “actual and substantial” prejudice (internal quotation marks omitted)

(Nolan,

) from that evidence.

¶ 11 Before we discuss the merits, we note that the State has filed a motion to strike as

argumentative the section titled “Additional Facts for Consideration” in defendant’s brief. Illinois

Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020) requires that the facts in an appellate brief be

“stated accurately and fairly without argument or comment.” We agree with the State that portions

of the section contain impermissible commentary, and we remind defendant’s counsel that our

supreme court rules “are not mere suggestions but have the force of law and should be followed.”

People v. Ruhl,

. Nonetheless, we decline to strike the entire section

but instead will disregard any noncompliant portions.

¶ 12 We turn to our standard of review. Because there is no factual dispute as to the contents of

the grand jury transcript or the content of defendant’s statement in the video-recorded interview,

we review de novo whether defendant was denied due process. See People v. Oliver,

(2006).

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

a crime, thus warranting a trial. Nolan,

(citing 725 ILCS 5/112-4

(West 2014)). Interposing a grand jury between the individual and the State limits indictments for

higher crimes to those offenses charged by a group of one’s fellow citizens acting independently

of the State and the court. Nolan,

. In that independent role, a grand

jury performs two distinct, but equally important, functions: (1) serving as an accuser sworn to

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investigate and present for trial persons suspected of wrongdoing and (2) standing as a shield

between the accuser and the accused, protecting the individual citizen against oppressive and

unfounded prosecution. Nolan,

.

¶ 14 To preserve the grand jury’s independence, challenges to its proceedings are limited.

Nolan,

(citing People v. DiVincenzo,

(1998),

abrogated on other grounds by People v. McDonald,

). Generally, a defendant

may not question the validity of an indictment returned by a legally constituted grand jury. Nolan,

. Nor may a defendant challenge the sufficiency of the evidence

considered by a grand jury, as long as “some evidence” was presented. Nolan,

. A defendant may, however, challenge an indictment that was procured through

prosecutorial misconduct. Nolan,

. “A defendant’s due process

rights can be violated if the prosecutor deliberately misleads the grand jury, knowingly uses

perjured or false testimony, ‘or presents other deceptive or inaccurate evidence.’ ” Nolan,

(quoting DiVincenzo,

). However, the denial of due process

must be “unequivocally clear” and the prejudice “actual and substantial.” (Internal quotation marks

omitted.) Nolan,

.

¶ 15 We begin with the State’s assertion that defendant was required to establish that the State

acted intentionally in presenting deceptive or inaccurate evidence. He was not.

¶ 16 In Oliver,

, we acknowledged our comment in People v. Hart,

(2003), that “there must be, at the very least, intent on the part of some State

actor to materially mislead the grand jury in order to give rise to a violation of due process.” We

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characterized our comment in Hart as dicta. Oliver,

.1 More importantly,

we noted that such a proposition was untenable in light of DiVincenzo (see DiVincenzo,

). Oliver,

. Accordingly, in light of DiVincenzo, we held that the

State’s presentation of a police officer’s deceptive testimony denied the defendant due process,

regardless of whether the deception was intentional. Oliver,

. Here, we

follow our more recent holding in Oliver and conclude that defendant was not required to establish

that the State’s production of deceptive or inaccurate evidence was intentional.

¶ 17 We next address whether the State did indeed present deceptive or inaccurate evidence. In

answering that question, we initially note that the State does not dispute that defendant never

admitted to Kelly that the sexual encounter with Doe was nonconsensual or otherwise confessed

to the crime. Rather, the State asserts that Kelly’s answer to the grand juror’s question was neither

deceptive nor inaccurate, because it did not suggest that defendant had confessed to the crime. We

disagree.

¶ 18 We begin with the grand juror’s questions. When the grand juror asked Kelly if there was

any evidence, other than Doe’s statement, that defendant “actually did this to [Doe],” Kelly

responded that he did not completely understand the question. The grand juror then rhetorically

1 The court in Oliver agreed with Justice McLaren’s special concurrence in Hart, wherein

he related: “In addition to this being obiter dicta, it is incorrect to require deception on the part of

a State actor. The case cited by defendant and its precursors suggest the opposite conclusion. See

People v. DeCesare,

(1989); People v. Wolfe,

(1983);

People v. Rivera,

(1979).” Hart,

(McLaren, J., specially

concurring).

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asked if Kelly had testified that Doe was extremely intoxicated, and Kelly answered that he had.

The grand juror then asked, “How do we know that the person [Doe] claims did this to her did it

to her?” The State maintains that the grand juror was asking merely about the identity of the person

who had sex with Doe. We disagree. The operative verbiage of the grand juror’s question was not

“person” but “actually did this to her” and “did it to her.” That is, the grand juror was asking not

what other evidence identified defendant as the person who had sex with Doe but, rather, what

other evidence established the sex as sexual assault. Since the grand juror was asking whether there

was any other evidence that defendant had committed the crime, Kelly’s answer that defendant

“told [Kelly] he did” can only be interpreted as meaning that defendant had confessed to the crime.

That of course, was deceptive and inaccurate, as defendant never admitted to engaging in

nonconsensual sex with Doe or otherwise confessed to the crime.

¶ 19 We next address whether defendant suffered actual and substantial prejudice from Kelly’s

false testimony. He did.

¶ 20 A due process violation based on prosecutorial misconduct before a grand jury is actually

and substantially prejudicial only if, without it, the grand jury would not have indicted the

defendant. Oliver,

. Thus, a court must balance the gravity and

seriousness of the misconduct with the sufficiency of the evidence supporting the probable cause

finding. Oliver,

. If the evidence was strong enough that the grand jury

would have indicted the defendant despite the misconduct, the misconduct was not prejudicial.

Oliver,

. However, if the evidence was so weak that the misconduct induced

the grand jury to indict, prejudice is shown. Oliver,

.

¶ 21 Here, the evidence apart from Kelly’s false testimony that defendant had confessed was

not so strong that the grand jury would have indicted defendant on that evidence alone. As

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discussed, Kelly was the only witness to testify. His testimony was based on statements from the

victim. Because she was extremely intoxicated, her account as reported by Kelly would have been

questionable at best. Indeed, the grand juror prefaced his/her question by noting Doe’s extreme

intoxication. Further, the grand juror then asked if there was any evidence, beyond what Doe had

told Kelly, to show that defendant had committed the crime. That certainly implies that at least

one grand juror did not think that there was sufficient evidence to establish probable cause. We

conclude that the evidence was weak enough that the grand jury would not have indicted defendant

apart from Kelly’s deceptive and inaccurate testimony.

¶ 22 This conclusion becomes even clearer when we consider the intrinsic weight of Kelly’s

deceptive and inaccurate testimony that defendant confessed to the crime. “ ‘A confession is like

no other evidence.’ ” People v. Rebollar-Vergara,

(McLaren J.,

dissenting) (quoting Arizona v. Fulminante,

(1991) (plurality opinion)). It is

probably the most probative and damaging evidence that can be admitted against a defendant.

Fulminante,

. It is so damaging that a jury should not be expected to ignore it

despite being instructed to do so. Rebollar-Vergara,

(McLaren

J., dissenting) (citing Fulminante,

(White, J., dissenting, joined by Marshall,

Blackmun, and Stevens, JJ.)). Our supreme court has noted that a confession is the most powerful

piece of evidence that the State can offer, and its effect on a jury is incalculable. People v. Simpson,

. Put another way, “[t]here is nothing more damning than a defendant’s own

words admitting his guilt.” Rebollar-Vergara,

(McLaren, J.,

dissenting).

¶ 23 Given the extremely incriminating impact of a defendant’s confession, we do not doubt

that the grand jury was swayed by Kelly’s testimony that defendant admitted to the offense. Such

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impact was manifest in the grand juror’s comment that defendant’s confession to Kelly was “all

[the juror] needed to know.” We emphasize that, no matter whether Kelly meant to deceive, the

State had a duty to correct his false testimony. See People v. Simpson,

(2001).

Presumably, had the State asked follow-up questions, Kelly would have clarified that defendant

had not in fact confessed to sexual assault but, rather, had merely admitted to having consensual

sex with the victim. In response to defendant’s motion to dismiss, the State advised the court that

an assistant state’s attorney unfamiliar with the case presented it to the grand jury. Such a

questionable practice certainly does not excuse the failure to clarify Kelly’s testimony. As it

happened, the State left unabated the prejudicial impact of Kelly’s deceptive and inaccurate

testimony. Thus, when we balance the powerful incriminating impact of Kelly’s deceptive and

inaccurate testimony that defendant confessed to the crime against the weak independent evidence

of his guilt, we conclude that defendant was actually and substantially prejudiced by Kelly’s

testimony.

¶ 24 Because the State submitted deceptive and inaccurate testimony that defendant confessed

to the crime, and that testimony resulted in actual and substantial prejudice to defendant, there was

a clear and unequivocal denial of due process. Thus, the trial court properly dismissed the

indictment.

¶ 25 III. CONCLUSION

¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of Winnebago

County.

¶ 27 Affirmed.

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People v. Basile,

Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 19-CF- 2828; the Hon. Brendan A. Maher, Judge, presiding.

Attorneys J. Hanley, State’s Attorney, of Rockford (Patrick Delfino, Edward for R. Psenicka, Katrina M. Kuhn, and Steven A. Rodgers, of State’s Appellant: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Attorneys Mark A. Byrd, of Rockford, for appellee. for Appellee:

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