author: MR. JUSTICE WARD MR. JUSTICE UNDERWOOD,

text:
    (No. 52471.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHARLES A. ALFANO, Appellee.

      Opinion filed February 22, 1980.

      RYAN, J., took no part.
    UNDERWOOD, J., specially concurring.

      William J. Scott, Attorney General, of Springfield, and Dennis P. Ryan, State’s Attorney, of Waukegan (Donald B. MacKay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Mark P. Seidler and Raymond McKoski, Assistant State’s Attorneys, of counsel), for the People.
    Charles J. O’Laughlin, Michael J. Rovell, and Kathleen J. Purcell, of Jenner & Block, of Chicago, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

In this case, which is a sequel to People ex rel. Illinois Judicial Inquiry Board v. Hartel (1978), 72 Ill. 2d 225 (referred to herein as Alfano I), the State appealed to the appellate court from a judgment of the circuit court of Lake County purporting to acquit the defendant, Charles A. Alfano, an associate judge of the circuit court of Cook County, after a bench trial on charges that he had committed battery and obstructed a police officer in the performance of his duties, both of which offenses are misdemeanors under the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 12 — 3, 31 — 1). We granted a motion by the State for a direct appeal to this court under Rule 302(b). A motion by the Illinois Judicial Inquiry Board (the Board) for leave to file a brief amicus curiae was denied. In its order allowing a direct appeal this court directed the parties to address the question of appeal-ability.

The judgment of the trial court followed rulings in which the court struck the testimony of the witnesses for the State. The defendant contends that the judgment is not appealable in view of article VI, section 6, of the 1970 Illinois Constitution, which provides: “[a] fter a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal. ” The determination of appealability depends in part upon how the judgment below is characterized, so that the question of appealability is closely intertwined with the consideration of the merits, and a somewhat detailed account of the proceedings thus becomes necessary in order to understand fully the issues which are before us.

The offenses with which the defendant was charged took place on September 5, 1977, while Richard M. Whit-more, a detective with the Lake County sheriff’s office, was serving the defendant’s son and another juvenile with traffic citations in response to a complaint from neighbors about their riding of motorcycles. Whitmore was sitting in his car at the time, and the defendant allegedly reached in and struck him on the arm. It was also charged that after the altercation with Whitmore the defendant tried unsuccessfully to persuade Whitmore not to arrest him. Whitmore swore out a complaint, and the defendant was arrested that same day.

The incident took place in a subdivision near the defendant’s summer home in the vicinity of Antioch, and it attracted the attention of a number of nearby residents, some of whom witnessed it. Shortly after the defendant’s arrest, independent investigations into the incident were begun by the sheriff’s office, by counsel retained by the defendant, and by personnel from the Board.

On October 4 the trial court granted a motion by the defendant that the State be directed to furnish the names of persons whom it intended to call as witnesses at the trial. In response to this request the State furnished a list of 14 persons, which included Officer Whitmore, a second officer named James H. Donaldson, and Philip and Rosebud Sunich, private citizens who had been eyewitnesses. The State also furnished various police reports of the incident. No question is raised here as to this pretrial discovery.

On November 30 the defendant filed a motion requesting that the Board be required to produce its files relating to the incident, and he also served a subpoena duces tecum on the Board’s chairman. On December 14 the court denied the Board’s motion to quash the subpoena, and issued an order that the Board produce at the time of trial “[a] 11 written statements, and oral statements reduced to writing which are verbatim or substantially verbatim made by any person named on the state’s list of witnesses.” The order also provided: “The statements of any witness who testifies at the trial shall be made available to the defense upon the conclusion of the witnesses’ direct testimony for the use of the defendant for impeachment purposes, if any.”

The order required the Board to produce for inspection by the court “all evidence obtained by the Board during the Board’s investigation of the conduct of the defendant in its investigation of the incident leading to the criminal charge before the court.” The order continued “the court shall examine the evidence [and] it shall, excluding any work products and excluding the disclosure of any informant whose identity is a prosecution secret, deliver to the defendant any evidence which tends to negate the defendant’s guilt or which is of an exculpatory nature. ”

It was at this juncture that the Board instituted the proceedings in Alfano I, in which this court awarded a writ of mandamus directing the trial judge to expunge his order of December 14.

After this case had resumed in the trial court and the trial judge had expunged his order, the defendant served a new subpoena upon the Board. This second subpoena was drawn more narrowly than its predecessor. It called for materials which fell into three categories, the first of which was designed to comply with the “plurality opinion” in Alfano I:

1. All documents and memoranda which plainly negate the defendant’s guilt.
2. All documents or memoranda which contain statements that are inconsistent with, or contrary to the statements given to the police or the State’s Attorney’s investigators which are attached to the subpoena as exhibit 1. (Exhibit 1 contained 48 pages of reports on interviews with witnesses.)
3. All documents or memoranda which contain statements that are inconsistent with, or contrary to statements given to the Board by 21 named individuals, including Officer Whitmore and Philip and Rosebud Sunich, each of whom was included in the amended list of intended witnesses which the State had given to the defendant. (A second officer, James H. Donaldson, had also been included in the State’s list of intended witnesses, but his name did not appear in the subpoena.)

It will be noted that the subpoena did not in terms call for the production of statements made to the Board or to its investigators, although the subpoena is structured in such a way that some statements of that character would be called for.

On May 4, 1979, the Board filed a motion to quash the subpoena except as to documents which on their face plainly negated the defendant’s guilt. In its motion the Board also represented that it had reviewed all the material in its possession called for by the subpoena, and had determined that none of it “on its face plainly negates the guilt of defendant” or “would undermine substantially the credibility of any of the persons referred to in the subpoena duces tecum, on the basis of the statements of such persons contained in exhibit 1. ”

The trial judge entered an order quashing the subpoena except for documents which on their face plainly negated the defendant’s guilt, and ordered the Board to produce all documents of the latter character. The State represents in its brief and the Board has admitted that it did produce for the defendant certain exculpatory statements which it had obtained from “defendant’s own witnesses.” None of the material was given to the State, and the defendant has not informed us of its contents.

The case came on for trial on August 6, 1979. The defendant waived a jury, and the State called as its first witness Officer Whitmore. No objection to his testimony was made by the defendant at the outset, but at the start of cross-examination Whitmore was asked whether he had been interrogated by an investigator for the Board. Whit-more answered in the affirmative. Asked if he “had a copy of his statement,” the witness stated that he did not. The defendant’s counsel then asked the State’s Attorney for a copy of the statement, and the latter stated that he had no copies of any statements given to the Board. The defendant then moved that Whitmore’s entire testimony be stricken, and the court granted the motion.

The remarks of the trial judge which appear in the report of proceedings show that the basis of his ruling lay in what he regarded as a dilemma created by the decision in Alfano I in that the Board was not required to produce any statements other than those which plainly negated the defendant’s guilt, and that the Board itself was given the sole power to determine what statements would meet that test. Those limitations, in the view of the trial judge, conflicted with the defendant’s right to effective cross-examination and thus with his right to due process, a view which has been repeatedly expressed by this court. See, e.g., People v. Moses (1957), 11 Ill. 2d 84, 89; People v. Johnson (1964), 31 Ill. 2d 602; People v. Cagle (1969), 41 Ill. 2d 528, 531-35; People v. Nichols (1976), 63 Ill. 2d 443; cf. People v. Tate (1976), 63 Ill. 2d 105, 112; People v. Szabo (1977), 55 Ill. App. 3d 866, 870-71. See also the committee comments to Rule 412(c) (73 Ill. 2d R. 412(c)).

With respect to statements which might be used to impeach a witness, the trial court was not aided by the representation which the Board had made in its motion to quash — that no statement made to the Board would undermine the testimony of persons who had already given inconsistent statements to the police.

The question, however, is whether any prior statements given to the Board by a witness were inconsistent with his trial testimony. That is a question which cannot be answered until the witness has actually testified.

In the course of the hearing on the Board’s motion to quash the subpoena, counsel for the Board admitted that there could well be statements which contradicted a witness’ testimony yet did not negate guilt. He gave as an example a witness who testified to having seen the defendant strike Officer Whitmore, but who had stated to the Board that since his view was blocked he could not see exactly what went on.

The views contained in the opinion of Mr. Justice Underwood, concurred in by Mr. Justice Ryan and Mr. Justice Kluczynski, were not wholly agreed to by the other three participating justices. In the concurring opinions it is suggested that evidence which tends to negate or to exculpate should also be produced, as well as evidence which would undermine the credibility of a witness’ testimony. The concurring justices also suggested that in some case, at least, there should be an examination in camera of statements to the Board so that the latter’s determination would not necessarily be final.

While all the justices concurred in the judgment of the court, that concurrence simply reflected an agreement that the order of the trial court was too broad and that, as a minimum requirement, all statements which plainly negated the defendant’s guilt had to be produced. If cases should come before us in the future involving subpoenas having a different scope, Alfano I would not preclude us from reexamining the criteria which are to govern production.

The second witness called by the State was Philip M. Sunich. At the beginning of cross-examination Sunich was asked the same question put to Whitmore, and he stated that to his knowledge he had not been interrogated. The defendant’s motion to strike his testimony was denied. this point the trial was adjourned until the following day.

The next day counsel for the defendant advised the court that he had had a telephone conversation with the counsel for the Board, Milton I. Shadur, in which he had asked Shadur whether Philip Sunich, as well as Rosebud Sunich and James H. Donaldson, whom the State was also planning to put on the stand, had been interviewed by an investigator for the Board. Shadur told the defendant’s counsel that that was the case. At the request of the defendant’s counsel the prosecutor also called Shadur, who confirmed the information he had just given to the defendant’s counsel. It is not clear from the record whether the Board’s files contained verbatim transcripts of statements by the persons interviewed or rather notes prepared by the interviewer. The court then struck the testimony of Mr. Sunich.

The State’s Attorney stipulated that if called as a witness Shadur would testify to the same effect as had just been represented to the court. The counsel for the defendant stated that he would make the same motion to strike the testimony if Donaldson or Ms. Sunich were called to the stand, and the judge stated that he would make the same ruling. The following colloquy then took place:

“MR. McKOSKI [the Assistant State’s Attorney prosecuting the case] : Thank you Judge. I am clear on that now. In any event, the four witnesses’ testimony or two that have been stricken, the State is in, to say the least, the hands are tied. We have not other witnesses to present. The witnesses that testified herein were stricken on or did' not testify but their testimony would have been stricken and therefore the State has nothing to present at this time.
MR. O’LAUGHLIN: Motion for acquittal.
THE COURT: I will find the defendant not guilty.
MR. McKOSKI: Thank you, Judge.”

The following entry appears on the minute book:

“People in open Court by Mr. McKoski Assistant State’s Attorney on behalf of Dennis P. Ryan State’s Attorney— Defendant present in open court and by Charles O’Laughlin — his attorney Trial continues — Motion to Strike testimony of Philip Sunich granted — State rests— Defendant’s Motion for Directed Verdict granted— Defendant discharged — Surety on Bond released — Case closed.”

As part of a motion by the defendant to supplement the record on appeal, which was taken with the case, the defendant’s attorney seeks leave to file an affidavit which recited the conversation with Shadur referred to above. The affidavit also goes on to state that the affiant had been told earlier by an assistant State’s Attorney that Whitmore had been interrogated by the Board, and that on the basis of information from one of his own investigators the affiant “surmised” that the Suniches had also been interrogated, but that he had had no knowledge prior to trial that Officer Donaldson had been interrogated, and that at no time prior to his conversation with Shadur was the affiant advised by any representative of the Board of the names of all persons who had given statements to it. This affidavit is supported by a companion affidavit executed by Shadur.

These affidavits concern factual matters, but the State has filed no objection to the motion, and it is therefore allowed.

We turn now to the question of appealability. As previously noted the defendant characterizes the judgment of the trial court as being precisely what it was stated to be, a finding of not guilty after a trial. The State, on the other hand, characterizes it as a judgment entered on a motion to suppress pursuant to section 114 — 12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 12), as to which an appeal may be taken by the State under Rule 604(a) (73 Ill. 2d R. 604(a)). There are several difficulties with this thesis.

To begin with, the defendant did not ask that the witnesses’ testimony be denied admission. Furthermore, section 114 — 12(c) directs that a motion to suppress shall be made before trial unless the movant was not then aware of the grounds on which it is based. Even if we accept as correct the recitals contained in the two affidavits tendered by the defendant, it seems clear that the defendant did have grounds to believe that at least three of the witnesses had given statements to the Board, and in view of Shadur’s disclosure to him at his request that these witnesses’ statements had been received, we cannot assume that Shadur would not have responded to a similar request made before trial. No such motion was made, however. Assuming arguendo that such a motion would still have been timely if made during the trial, none was then made. The court did not terminate the trial, as is contemplated by section 114 — 12(c), nor was it asked to do so by the State.

A further problem seems to be presented by the decision in People v. Van De Rostyne (1976), 63 Ill. 2d 364. In that case the court drew a distinction between the suppression of evidence and its exclusion, and stated that the former was appropriate only where it was claimed that the evidence in question had been obtained through unlawful means. (See 63 Ill. 2d 364, 367-68.) In the present case there was of course no claim that the testimony of the witnesses had been unlawfully obtained. The claim was rather that the failure to furnish the defendant with a copy of the witnesses’ statements to the Board deprived the defendant of his right to conduct an effective cross-examination.

Moreover, whether or not the remedy of striking the testimony was the correct one under the circumstances, once such action had been taken and the State had advised the court that it had no further witnesses to present, it is not apparent what alternative was available to the trial court other than to enter a judgment of acquittal. Had the State pleaded surprise and requested a recess or short continuance in order to locate other witnesses who had not been interviewed by the Board, we would be confronted by a different situation. The State did not do so, however; it was unable to suggest any other procedure which the court should follow; nor did it, either at the time judgment was entered or in a post-trial motion, raise any objection on this point.

The State urges in the alternative that the judgment of the circuit court fell within Rule 604(a)(1), which provides:

“In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; ***” 73 Ill. 2d R. 604(a)(1).

There can be no question but that the charge here did not fail to state an offense, and no claim is made that dismissal of the charge would be proper under any of the other grounds enumerated in section 114 — 1. It is, of course, true that the grounds enumerated in section 114 — 1 are not exclusive, and that there may be an appeal by the State from a dismissal on other grounds where the substantive effect of the judgment or order results in dismissing the charge. (People v. Love (1968), 39 Ill. 2d 436, 438-40 (right to a speedy trial); People v. Lawson (1977), 67 Ill. 2d 449, 454-57 (preindictment delay).) In other words dismissal of a charge may be appropriate for reasons which amount to a violation of due process other than some defect in the complaint or indictment. While the present case does involve due process considerations, however, the defect here does not relate to delay in bringing the charge or commencing the trial.

It may be that a motion might properly have been entertained if made before trial to dismiss the charges on the ground that a fair opportunity to challenge them would be unconstitutionally denied. Had such a motion been granted, an appeal by the State would not have violated the ban on double jeopardy, since proceedings prior to the trial do not entail jeopardy. (People v. Shields (1979), 76 Ill. 2d 543, 547-48.) No such pretrial motion was made, however, and, as stated in Shields, once the first witness was sworn and the judge began to hear evidence, jeopardy attached. 76 Ill. 2d 543, 546-47.

We therefore conclude that the judgment of the trial court was not appealable in the unusual circumstances of this case.

Appeal dismissed.

MR. JUSTICE RYAN took no part in the consideration or decision of this case.

MR. JUSTICE UNDERWOOD,

specially concurring:

In a curious inversion of what I would consider normal procedure, my colleagues first discuss the merits of the case and then decide the judgment appealed from was not appealable. I agree that, in the circumstances of this case, the “directed verdict” of not guilty is not appealable. I am, however, not at all certain that due process requires that the statements given the Board be produced for inspection once the witness testifies (see People ex rel. Illinois Judicial Inquiry Board v. Hartel (1978), 72 Ill. 2d 225), as I read the court’s dicta to indicate. Because discussion of that question is unnecessary here, I would await its presentation before deciding it.


source: Caselaw Access Project

author: MR. JUSTICE RYAN MR. JUSTICE WARD,

license: Public Domain

text:
    (No. 51768.
    (No. 51835.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BUFFALO CONFECTIONERY COMPANY et al., Appellees. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LAWRENCE LIEBERMAN et al., Appellees. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ERNEST DUKE McNEIL, Appellee.

      Opinion filed February 22, 1980.

      WARD, J., and GOLDENHERSH, C.J., concurring in part and dissenting in part.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay, Melbourne A. Noel, Jr., Fred Montgomery, and Michael B. Weinstein, Assistant Attorneys General, of Chicago, of counsel), for the People.
    George J. Cotsirilos and Robert M. Stephenson, of George J. Cotsirilos & Associates, Ltd., of Chicago, for appellees Lawrence Lieberman and L 8c S Foods, Inc.
    Joseph V. Roddy, of Chicago, for appellees Buffalo Confectionery Company and Peter Nichols.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay, Melbourne A. Noel, Jr., Fred Montgomery, and Michael B. Weinstein, Assistant Attorneys General, of Chicago, of counsel), for the People.
    No appearance for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This case is a consolidation in this court of two cases in which we granted the State’s petition for leave to appeal. It concerns the permissible degree of participation by the Attorney General in the prosecution of cases arising out of the revenue statutes of this State. One of these cases also raises the issue of the propriety of charging the offense of theft under the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1(a)(1)) for a retailer’s failure to pay to the State of Illinois use tax monies as required under the Use Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 439.1 et seq.). The Buffalo Confectionery case (No. 51768) is itself a consolidation of two cases by the appellate court. In each of those cases indictments had been returned against a business entity and an individual. Following dismissal of the indictments by the trial court in each case, the State appealed. The appellate court consolidated the cases on appeal and affirmed the dismissal. (People v. Buffalo Confectionery Co. (1978), 67 Ill. App. 3d 112.) We granted the State’s petition for leave to appeal.

One of the cases in the consolidated Buffalo Confectionery case involved Buffalo Confectionery Company and Peter Nichols, a partner. They were each indicted by a Cook County grand jury on two counts of theft in excess of $150 (Ill. Rev. Stat. 1973, ch. 38, par. 16-l(a)(l)). These defendants filed a motion to dismiss, claiming the indictment had been improperly obtained because: (1) an assistant Attorney General had appeared before the grand jury unaccompanied by an assistant State’s Attorney; and (2) the defendants were improperly charged with a felony under the Criminal Code of 1961 for conduct which, if proved, would constitute a misdemeanor under section 14 of the Use Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 439.14). Since the statute of limitations would bar the filing of the misdemeanor action, the defendants argued that the indictments should be dismissed. In the other case consolidated in the Buffalo Confectionery case, a Cook County grand jury indicted the defendants, L&S Foods, Inc., and Lawrence Lieberman, a corporate officer, on 17 counts of theft in excess of $150 (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1(a)(1)). In addition, Lieberman was indicted on eight counts of signing and filing a fraudulent retailer’s occupation tax return (Ill. Rev. Stat. 1973, ch. 120, par. 452) and L&S Foods, Inc. was indicted on eight counts of filing a fraudulent retailer’s occupation tax return (Ill. Rev. Stat. 1973, ch. 120, par. 452).

In each case an assistant Attorney General had appeared before the grand jury unaccompanied by either the State’s Attorney or an assistant State’s Attorney, and had stated that she or he was assisting a named assistant State’s Attorney. The signature of Bernard Carey, the Cook County State’s Attorney, appeared on the indictments, with the exception of the L&S Foods, Inc., indictment. An assistant State’s Attorney appeared at each defendant’s arraignment and filed a motion for pretrial discovery. The appellate court affirmed the dismissal of all the indictments in these consolidated cases, finding the appearances of the assistant Attorneys General before the grand jury to have been improper in that they were neither authorized by the court nor by law, as required by the grand jury secrecy provision of section 112 — 6(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 112 — 6(a)). People v. Buffalo Confectionery Co. (1978), 67 Ill. App. 3d 112, 116.

The other case (No. 51835) which we have in this court consolidated with the consolidated case we have discussed (No. 51768) involves one defendant, Ernest Duke McNeil. On April 12, 1976, an investigator for the Department of Revenue filed two complaints in the circuit court of Cook County, each charging the defendant with wilful failure to file an Illinois income tax return for the years 1973 and 1974 in violation of section 1301 of the Illinois Income Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 13 — 1301). Defendant McNeil filed a motion to dismiss the complaints, claiming that the assistant Attorney General had improperly initiated and prosecuted the case. During the hearing on defendant’s motion, the assistant Attorney General presented a letter, dated November 23, 1977, from the Cook County State’s Attorney which gave the office of the Attorney General authorization to prosecute the case “effective immediately.” The trial court dismissed the complaints and the appellate court affirmed. (People v. McNeil (1979), 68 Ill. App. 3d 499, 501.) As noted above, this court granted leave to appeal and consolidated this case with the Buffalo Confectionery Company case.

We consider first the issue common to both cases on appeal; that is, whether the Attorney General exceeded his authority in the initiation and prosecution of these revenue cases. For the reasons expressed herein, we find that the Attorney General did not exceed the scope of his authority.

The office of the Illinois Attorney General is a creature of the Illinois Constitution. Article V, section 15, of the Illinois Constitution of 1970 provides:

“The Attorney General shall be the legal officer of the State, and shall have the duties and powers that may be prescribed by law. ”

In Fergus v. Russel (1915), 270 Ill. 304, this court found that the 1870 Constitution granted the Attorney General all the powers associated with that office at common law, and expressly stated that while the legislature could add to these powers, it could not detract from the Attorney General’s common law authority. (Fergus v. Russel (1915), 270 Ill. 304, 339.) (See also Stein v. Howlett (1972), 52 Ill. 2d 570, 586, appeal dismissed (1973), 412 U.S. 925, 37 L. Ed. 2d 152, 93 S. Ct. 2750; Department of Mental Health v. Coty (1968), 38 Ill. 2d 602, 606.) In People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 500-01, this court concluded that the principle of Fergus v. Russel has been incorporated into article V, section 15, of the 1970 Illinois Constitution.

In the case of People v. Massarella (1978), 72 Ill. 2d 531, we examined the common law powers and duties of the Attorney General and found them to include the initiation and prosecution of litigation on behalf of the People. This power may be exercised concurrently with the power of the State’s Attorney to initiate and prosecute all actions, suits, indictments and prosecutions in his county as conferred by statute (Ill. Rev. Stat. 1973, ch. 14, par. 5). (Accord, Note, The Relationship Between the Attorney-General and State’s Attorney in Illinois, 1949 U. Ill. L.F. 507; People v. Nagano (1945), 389 Ill. 231, 249.) We further noted that we have previously held in People v. Looney (1924), 314 Ill. 150, 153-54, that the defendant has no basis for objecting to the appearance of the Attorney General before the grand jury where the State’s Attorney made no objection. People v. Massarella (1978), 72 Ill. 2d 531, 536. Accord, People v. Billburg (1924), 314 Ill. 182, 184-85.

The legislature has enumerated certain duties of both the Attorney General and the State’s Attorney. By statute, the Attorney General is authorized, inter alia, to “attend *** and assist in the prosecution” (Ill. Rev. Stat. 1973, ch. 14, par. 4), and the State’s Attorney is authorized, inter alia, to “commence and prosecute all actions *** in the circuit court for his county, in which the people of the State or county may be concerned” (Ill. Rev. Stat. 1973, ch. 14, par. 5). As we have previously stated, the aforementioned duties and powers of the two officers are concurrent. Thus, the Attorney General lacks the power to take exclusive charge of the prosecution of those cases over which the State’s Attorney shares authority. (People v. Flynn (1941), 375 Ill. 366, 368.) However, where the statute so provides, the Attorney General has exclusive authority to institute and prosecute cases. See, e.g., Ill. Rev. Stat. 1977, ch. 120, par. 453.16 (Cigarette Tax Act prosecution); Ill. Rev. Stat. 1977, ch. 38, par. 60 — 6 (Illinois Antitrust Act prosecution).

It is clear, however, that the Attorney General lacks the authority to initiate an action under the statutes here involved to the exclusion of the State’s Attorney. This lack of exclusive authority to prosecute revenue claims is reflected in the legislative rejection of House Bill 2063 and Senate Bill 976 in the 79th General Assembly. These bills, defeated in the 1975 session of the General Assembly, would have amended section 4 of “An Act in regard to attorneys general and state’s attorneys” (Ill. Rev. Stat. 1973, ch. 14, par. 4) by giving to the Attorney General authority to commence and prosecute offenses involving criminal activity in the collection of State revenues. See People v. Massarella (1977), 53 Ill. App. 3d 774, 784-85.

Since the Attorney General lacked exclusive authority to prosecute these claims, we must determine whether the Attorney General exceeded his authority in the cases before us. The case of People v. Massarella (1978), 72 Ill. 2d 531, is apposite. In Massarella this court held that the Attorney General was authorized to appear before the grand jury where the State’s Attorney expressed no objection. We also held in that case that the grand jury secrecy provision of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 112 — 6(a)) did not prohibit the Attorney General from appearing before the grand jury. We find the facts in our case to be nearly indistinguishable from those of Massarella. Although the indictments we are considering were obtained through the actions of assistant Attorneys General and no assistant State’s Attorney was present, the grand juries were informed that the assistant Attorneys General were assisting named assistants to the State’s Attorney. Three of the four indictments were signed by the State’s Attorney, and an assistant State’s Attorney attended each arraignment and certain pretrial discovery proceedings were conducted in the name of the State’s Attorney. Not only is there an absence of objections by the State’s Attorney to the Attorney General’s participation, but also there was an obvious acquiesence by the State’s Attorney. Our holding in Massarella compels the conclusion that the Attorney General in these indictments was acting within his authority.

Defendants claim that the appearance of the assistant Attorneys General before the grand jury violated the grand jury secrecy provision of the Code of Criminal Procedure of 1963. The provision provides:

“Only the State’s Attorney, his reporter and any other person authorized by the court or by law may attend the sessions of the Grand Jury. Only the grand jurors shall be present during the deliberations and vote of the Grand Jury. ***” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 112 — 6(a).)

This same issue was raised in People v. Massarella (1978), 72 Ill. 2d 531. In Massarella we found the statute was intended to further a policy of grand jury secrecy rather than to enumerate the powers of the State’s Attorney, and we stated: “We do not believe the grand jury provisions can be so narrowly construed as to render the Attorney General’s power to initiate and prosecute these cases a nullity.” People v. Massarella (1978), 72 Ill. 2d 531, 539.

The appellate court has read into our holding in Massarella not only the requirement that the State’s Attorney must approve of the Attorney General’s appearanees before the grand jury but also that the Attorney General must be authorized to do so by the court. That was not the holding of the majority opinion in Massarella. This is clear when one reads the dissent in Massarella which urged, in opposition to the majority opinion, that the trial court had not authorized the appearance of the Attorney General before the grand jury which, the dissent contended, was a prerequisite of his authority to do so.

We are aware that this section of the statute was amended by House Bill 65 in 1975 to add the words “or by law” (italicized above) and that we did not have occasion in the Massarella case to interpret the statute as amended. However, the additional language does not alter our position; that is, that the grand jury secrecy provision, as amended, neither limits nor extends the power of the Attorney General to initiate and prosecute cases in concert with the State’s Attorney. Indeed, the House discussions concerning the amendment indicate that the purpose of the amendment was to allow a “target” witness to have counsel present in the grand jury room and yet preserve the secrecy of the grand jury proceeding. (79th Gen. Assem., H.R. Rec. 53 — 9.) Therefore, we conclude that the appellate courts erred in finding the Attorney General to have improperly prosecuted these actions.

Defendant McNeil’s case did not involve a grand jury proceeding. As stated above, the prosecution against this defendant was instituted by the filing of two complaints by an investigator for the Department of Revenue charging McNeil with wilful failure to file Illinois income tax returns for the years 1973 and 1974. We are therefore not concerned with the grand jury secrecy provisions of the Code of Criminal Procedure of 1963 discussed above. Contrary to the defendant’s contention, the Attorney General did not initiate these proceedings. The complaints, as stated above, were filed by an investigator for the Department of Revenue pursuant to leave of court, and summons was issued thereon. The Attorney General’s participation was in the prosecution of the charges. The State’s Attorney of Cook County did not object, and in a letter dated November 23, 1977, he specifically authorized the Attorney General’s participation prior to the trial court’s dismissal of the charges. Under our holding in Massarella, the Attorney General did not exceed his authority in the prosecution of these complaints, and the trial court erred in dismissing them.

We consider next defendants’ contention in the Buffalo Confectionery case (No. 51768) that the charge of theft in excess of $150 (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1(a)(1)) for the failure to pay to the State taxes in compliance with the provisions of the Use Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 439.1 et seq.) and the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 440 et seq.) was improper.

The defendants attack the charge of theft on two alternative grounds: First, they argue that the revenue penalty provisions and the theft statute contain identical elements. The State was thus compelled, they argue, to further the legislative will and charge the more specified offense under the revenue statute. Second, the defendants claim that the revenue acts give rise to a debtor-creditor relationship between the taxpayer and the State and that such relationship is inconsistent with the charge of theft.

We have repeatedly stated that the State has the discretion to prosecute under either of two statutes where a defendant’s conduct violates both statutes and the statutes contain different elements. This principle remains unchanged even where the violation of one of the statutes would constitute a felony while the violation of the other would merely constitute a misdemeanor. People v. Brooks (1976), 65 Ill. 2d 343, 347; People v. Gordon (1976), 64 Ill. 2d 166, 170; People v. Barlow (1974), 58 Ill. 2d 41, 44; People v. Keegan (1971), 52 Ill. 2d 147, 153, appeal dismissed (1972), 406 U.S. 964, 32 L. Ed. 2d 663, 92 S. Ct. 2408; People v. Parks (1971), 48 Ill. 2d 232, 236, cert, denied (1972), 404 U.S. 1020, 30 L. Ed. 2d 669, 92 S. Ct. 691; People v. Rhodes (1967), 38 Ill. 2d 389, 396.

The penalty provision of the Use Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 439.14) does not contain the same elements as does the theft statute under which the defendants were charged (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1(a)(1)). Under the theft charge the State must prove that the defendants intend to deprive the owners permanently of the use or benefit of the property. Under the Use Tax Act the failure to pay over the funds to the Department of Revenue constitutes an offense. (Ill. Rev. Stat. 1973, ch. 120, pars. 439.9, 439.14.) The State, under the Use Tax Act, need not prove the element of intent which is necessary to be proved under the theft charge. (See People v. Player (1941), 377 Ill. 417.) The criminal intent required for a conviction of the offense of theft is plainly not a necessary element of the offense of failure to pay over to the State use tax monies under the Use Tax Act. A comparison of the provisions of the penalty sections of the Use Tax Act with the statutes involved in Brooks and Gordon compels the conclusion that the decisions in those cases are controlling and that the defendants in this case, except for the reason discussed below, could be properly charged with the offense of theft.

We consider, however, that the alternate contention of the defendants makes the charging of the felony of theft impermissible. Under the statute, the relationship between the retailer and the State of Illinois is that of debtor and creditor, which relationship will not support a charge of theft. Section 8 of the Use Tax Act provides:

“The tax herein required to be collected by any retailer pursuant to this Act, and any such tax collected by any retailer shall constitute a debt owed by the retailer to this State***.” (Emphasis added.) Ill Rev. Stat. 1973, ch. 120, par. 439.8.

The Use Tax Act imposes a tax upon the privilege of using, in this State, tangible personal property purchased at retail from a retailer. (Ill. Rev. Stat. 1973, ch. 120, par. 439.3.) The purpose of the tax is to prevent avoidance of the retailers’ occupation tax by those making out-of-State purchases and to protect Illinois merchants against diversion of business to out-of-State retailers. (Klein Town Builders, Inc. v. Department of Revenue (1966), 36 Ill. 2d 301, 303; Note, 62 Nw. U.L. Rev. 738, 791 (1967).) The use tax scheme was thus designed to complement the Retailers’ Occupation Tax Act. Turner v. Wright (1957), 11 Ill. 2d 161, appeal dismissed (1957), 355 U.S. 65, 2 L. Ed. 2d 106, 78 S. Ct. 140.

The use tax is generally collected from the purchaser by the retailer. However, if the transaction is subject to both the retailers’ occupation tax and the use tax, the retailer may remit to the Department of Revenue the tax owed under the Retailers’-Occupation Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 440 et seq.) and reimburse himself by collecting the use tax from the purchaser at the time of the transaction (Ill. Rev. Stat. 1973, ch. 120, par. 439.9). The retailer is thus able to recoup payment for the retailers’ occupation tax by withholding payment for an equal amount of proceeds collected under the Use Tax Act. Adams v. Jewel Companies, Inc. (1976), 63 Ill. 2d 336, 340.) See also Johnson v. Marshall Field & Co. (1974), 57 Ill. 2d 272 (municipal retailers’ occupation tax).

The State clearly has the authority to pursue a retailer for his failure to pay taxes due under the Retailers ’ Occupation Tax Act. (Ill. Rev. Stat. 1973, ch. 120, par. 452.) The State is authorized, under the Use Tax Act, to pursue either the delinquent purchaser or the delinquent retailer. (Ill. Rev. Stat. 1973, ch. 120, par. 439.14.) Thus, where a transaction is subject to both taxes, the State may proceed against either the purchaser-user for the use tax or against the retailer-seller for the retailers’ occupation tax. Klein Town Builders, Inc. v. Department of Revenue (1966), 36 Ill. 2d 301, 304.

It is clear here that the legislature intended the use taxes, whether collected or not by a retailer, to constitute a debt owed to the State. By virtue of this language, the State is able to impose liability upon the retailer regardless of whether he has collected the use tax. Thus, the State is able to expedite its use-tax-collection procedure in that it is not required to seek out each purchaser liable under the Use Tax Act. See Note, 62 Nw. U.L. Rev. 738, 791-94 (1967). Consistent with this interpretation, in Department of Revenue v. National Bellas Hess, Inc. (1966), 34 Ill. 2d 164, rev’d on grounds not pertinent to this appeal (1967), 386 U.S. 753, 18 L. Ed. 2d 505, 87 S. Ct. 1389, this court stated:

“Section 3 of the Use Tax Act provides that the tax imposed on the purchaser-user is to be collected by the retailer. Section 8 provides that ‘the tax herein required to be collected by any retailer pursuant to this Act, and any such tax collected by any retailer shall constitute a debt owed by the retailer to this State***.’ The effect of these two sections is that the [use] tax is to be collected by the retailer; but if he fails to collect the tax, he himself is liable for its payment. ” (Emphasis added.) 34 Ill. 2d 164, 173.

Because of the complementary relationship of the Use Tax Act and the Retailers’ Occupation Tax Act and the overlapping of the two taxes, the legislature, in order to facilitate the collection of the tax monies due to the State under the two acts, has seen fit to create a debtor-creditor relationship between the retailer and the State for the tax monies due. Similar provisions are found in the Service Use Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 439.38), the Service Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 439.108), and the Cigarette Use Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 453.40).

This court has held that evidence of the type of transaction which leads only to a debtor-creditor relationship will not support a charge of embezzlement or larceny by a bailee. (People v. Becker (1953), 414 Ill. 291, 298.) In Mulford v. People (1891), 139 Ill. 586, 594, the court, in discussing the failure of a defendant to repay money on demand, stated: “It is impossible to see how, under these circumstances, a subsequent failure or refusal by the defendant to repay said money *** could constitute embezzlement or larceny. It would be merely a failure to pay a debt for which an action might lie, but would be no offense against the criminal law.” See also People v. Robinson (1933), 352 Ill. 596, 602. For numerous cases from other jurisdictions reaching similar results, see 29A C.J.S. Embezzlement sec. 10, at 22-23 (1965).

The State contends that once the element of intent to permanently deprive an owner of the use or benefit of his property is added to the debtor-creditor relationship, it then ripens into the crime of theft. In support of this proposition, the State cites People v. Streich (1935), 361 Ill. 490, and People v. Parker (1934), 355 Ill. 258. The language used in those cases refers to the receiving and holding of funds or property of another as not being enough in and of itself to establish embezzlement: “The People must further prove *** that the agent converted the property to his own use with the felonious intent to deprive the owner of the property or its use.” [People v. Parker (1934), 355 Ill. 258, 285.) In our case we do not have a situation where an agent is holding property belonging to another. We have the situation of a retailer who is a debtor under the statute and has failed to pay a debt owed to the State of Illinois. Under these facts it is improper for the State to institute prosecution for theft merely to collect a debt. See 50 Am. Jur. 2d Larceny sec.111 (1970).

The State also cites People v. Kopman (1934), 358 Ill. 479, in support of its position that it was proper to charge the defendants with theft. In that case the defendant was a distributor of motor fuel who collected the tax on the fuel sold and converted the tax monies to his own use. The statute (Smith-Hurd Ill. Rev. Stat. 1933, ch. 120, par. 418) contained no provision creating a debtor-creditor relationship between the distributor and the State. This court noted that under the statute the distributor was the agent of the State as a collector of the tax, which came into the hands of the distributor while he was acting in a fiduciary capacity. This court held that the money did not belong to the distributor but to the State. This is an entirely different legal relationship than that which exists under the Use Tax Act. Kopman is not apposite.

For these reasons we conclude that the defendants, as debtors of the State, cannot be charged with theft.

Accordingly, the judgments of the appellate and circuit courts in cause No. 51768 (Buffalo Confectionery Co. et al.) are affirmed as to the dismissal of the indictments charging the defendants with theft and reversed as to the dismissal of the counts in the indictment charging Lieberman and L 8c S Foods, Inc., with violation of section 13 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 452) and the cause is remanded to the circuit court of Cook County. The judgments of the appellate and circuit courts in cause No. 51835 (People v. McNeil) are reversed, and the cause is remanded to the circuit court of Cook County.

51768 Affirmed in part and reversed in part; cause remanded.

51835 Reversed and remanded.

MR. JUSTICE WARD,

concurring in part and dissenting in part:

I disagree with the majority basically for the reasons stated in my dissent in People v. Massarella (1978), 72 Ill. 2d 531.

I consider that from Massarella and the majority’s holding here there has been an evolution and growth in the prosecutive powers of the Attorney General that cannot be supported.

This appears to be the sequence in the development. The legislature gave the Attorney General authority, when the interests of the People of the State required it, to attend the trial of a person accused of crime and to assist in the prosecution. (Ill. Rev. Stat. 1973, ch. 14, par. 4.) Bills which would have enlarged the powers of the Attorney General were introduced in the General Assembly at its 1975 session. These proposals would have given the Attorney General authority to prosecute for offenses involving the collection of taxes and would have conferred all of the powers of the State’s Attorneys in criminal proceedings. The General Assembly, however, rejected the bills. Manifestly the Attorney General in seeking this legislation recognized the limitations on his prosecutive authority and the necessity of legislative action to enlarge it. Next, the majority in Massarella held that the Attorney General has authority to “assist the State’s Attorney to the extent that he may discharge all those powers of the State’s Attorney at all stages in a prosecution *** where [the State’s Attorney] does not object.” (72 Ill. 2d 531, 538-39.) This is holding, it seems to me, that the passivity of the State’s Attorney may remarkably enlarge the authority and power of the Attorney General to prosecute. The majority states here that the Attorney General has the power concurrently “with the power of the State’s Attorney to initiate and prosecute all actions, suits, indictments and prosecutions.” (78 Ill. 2d at 454.) This certainly goes far beyond the power to “attend the trial of any party accused of crime, and assist in the prosecution.” Ill. Rev. Stat. 1973, ch. 14, par.. 4.

The majority does acknowledge that unless a statute gives the Attorney General exclusive authority to institute and prosecute, as in Cigarette Tax Act cases, he does not have the power to take exclusive charge of the prosecution. (78 Ill. 2d at 455.) It thus recognizes the statutory limitations on the Attorney General’s power to prosecute and their effectiveness.

The majority does not say that this concurrent authority to prosecute is limited to revenue cases, and its holding may be interpreted to mean that the Attorney General, if the State’s Attorney says nothing, will be able to exercise powers of prosecution in all criminal matters.

Accordingly, in cause No. 51768, I concur in the majority’s affirmance of the dismissal of the indictments charging the defendants with theft. I dissent from the majority’s reversal of the dismissal of the other charges in cause No. 51768 and from the reversal of the judgments in cause No. 58135.

MR. CHIEF JUSTICE GOLDENHERSH joins in this partial concurrence and partial dissent.


author: MR. CHIEF JUSTICE GOLDENHERSH MR. JUSTICE RYAN,

text:
    (No. 50635.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. WILLIAM RODERICK HILL, Appellant.

      Opinion filed February 22, 1980.

      RYAN and UNDERWOOD, JJ., concurring in part and dissenting in part.

      William P. O’Malley, of O’Malley, Royce & Hopkins, Ltd., of Chicago, and Elmer Gertz, of Chicago for appellant.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Assistant Attorneys General, of Chicago, and Marcia B. Orr, Iris E. Sholder, Joan S. Cherry, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Aaron L. Meyers, and John Thomas Moran, Assistant Public Defenders, of counsel), amicus curiae.

    Theodore A. Gottfried, State Appellate Defender, of Springfield (Robert E. Davison, Legal Director, and Martin Carlson, Richard E. Cunningham, Verlin Meinz, John H. Reid, Charles M. Schiedel, and Mark Schuster, Assistant Appellate Defenders, of counsel), amicus curiae.

   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of Cook County, defendant, William Roderick Hill, was found guilty of two counts of murder and one count of conspiracy to commit murder. At the request of the People, pursuant to section 9 — 1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d)), a separate sentencing proceeding was conducted before the jury which had found defendant guilty. The jury returned a verdict recommending that defendant be sentenced to death, and the circuit court imposed sentence in accordance with the jury’s recommendation. The circuit court also sentenced defendant to a term of imprisonment of not less than 6 years and 8 months nor more than 20 years for conspiracy. Defendant appeals directly to this court. Ill. Const. 1970, art. VI, sec. 4(b); Ill. Rev. Stat. 1977, ch. 38, par. 9 — l(i); 73 Ill. 2d R. 606.

Defendant, together with Dr. Max Murphy Kaye, was indicted for the murders of Allen Zipperstein on August 23, 1974, and Robert Fields on January 18, 1975. Dr. Kaye died prior to the trial. The People’s witness, Vernice Geary, a dental assistant employed by Dr. Kaye, testified that Kaye had become angry with Robert Fields and said he would pay someone to kill him. Ms. Geary related the offer to defendant, who said he would do it. Approximately two weeks later she saw defendant and Dr. Kaye talking together. Later, she was asked to deliver to defendant a street diagram, a description of a car, and a picture of Robert Fields. When Dr. Kaye learned of the death of Allen Zipperstein, he told Ms. Geary that defendant had killed the wrong man. Nevertheless, Dr. Kaye paid defendant one-half of the agreed sum in cash, which Ms. Geary delivered. Thereafter defendant told her that as a matter of pride he would “finish the job.” On the day Robert Fields was killed, defendant called Ms. Geary, told her he “took care of that job,” and demanded more money.

Thyra Hart testified that she had met defendant at his place of employment. Shortly after meeting Ms. Hart, defendant told her that he had killed Allen Zipper-stein for $10,000. A week later he showed her a checked sports jacket, identified at trial by other witnesses as the one worn by Allen Zipperstein’s killer, and told her that he was wearing it at the time of the killing. Ms. Hart also testified that defendant described to her his preparations to kill Robert Fields. He had visited the Fields home “dressed as a gas man,” knew Fields’ habits well, and knew what kind of car he drove. After Robert Fields was killed, Ms. Hart was contacted by the police. She testified that shortly thereafter defendant demanded to see her, saying he knew she had talked to the police. She went to his place of employment and defendant would not permit her to leave until he ascertained from the newspaper that the police had no new leads.

The People adduced the testimony of a number of other witnesses and introduced into evidence many exhibits which we find it unnecessary to summarize or describe; it suffices to say that the evidence supports the jury’s verdict finding defendant guilty.

We consider first defendant’s contention that the circuit court erred in admitting into evidence testimony concerning certain admissions made by defendant in the course of plea bargaining and that the error was so prejudicial as to require reversal. During the presentation of the People’s case defendant moved orally for an order in limine to exclude all testimony concerning an offer by defendant to plead guilty to the two murders. The statements were made by defendant in the course of a conversation with Joseph Urso, an assistant State’s Attorney who at the time of defendant’s arrest was chief of the Cook County State’s Attorney Felony Review Unit. The motion did not seek to exclude any other portion of the conversation. Following argument the circuit court denied the motion. Urso testified that after being confronted with the taped statement of A. J. Thomas, an alleged accomplice, defendant stated that “You have me on Fields, but not on Zipperstein.” Defendant then asked to speak to Investigator Dvorak of the Chicago Police Department. Urso left the room while defendant talked with Dvorak, and upon returning to the room was told by defendant that he had killed Fields. Urso testified to additional statements made by defendant that he had studied Fields’ habits and knew when he arrived at and what time he left work, and the kind of car he drove. He also stated that he had gone to Fields’ house and, in order to be admitted, pretended to be a gas meter reader. He was then asked if he would give a statement to a court reporter. He stated that he wanted to see “the honcho.” He repeated that he wanted to see “the honcho, the head man.” Urso replied that he “guessed I was the honcho because I determined what he was going to be charged with.” The following ensued:

“Q. What did he say when you said that to him?
A. He said, T want to talk a deal.’
Q. He said, ‘I want to talk a deal?’
A. Yes. And he asked me if I could talk a deal with him.
Q. What did you say?
A. ‘Deal? I guess I could talk a deal with you, but the only person who could approve a deal would be the State’s Attorney himself, Bernard Carey, but I can talk to you.’
Q. After you told him that the only one who could approve a deal, quote, unquote, would be Mr. Carey himself, did Mr. Hill say anything else to you?
A. Yes.
Q. What did he say?
A. He told me that he would confess to both murders, give a statement confessing to both murders, plead guilty to both murders and testify against Dr. Kaye, the person who paid him to kill Mr. Fields, if I could get him a signed affidavit from Mr. Carey that [he] would be sentenced to the minimum 14 years.
After hearing Mr. Hill say that I told him, ‘That’s no deal.’ I asked him if he wanted to give a court reporter’s statement or not. He said, ‘Now I want a lawyer.’ I said, ‘Fine.’ I walked out of the room and instructed the investigators and Commander DiLeonardi not to talk to him any more. The door was locked behind me as the officers left the room with me.”

Joseph DiLeonardi, city-wide homicide commander for the Chicago Police Department, was also permitted to testify that defendant stated that he would plead guilty to both the Zipperstein and Fields murders if the State’s Attorney would guarantee him a minimum of 14 years in the penitentiary. After Urso responded “No deal,” defendant requested an attorney.

James Dvorak, at the time of trial a sergeant with the Chicago Police Department, was on January 20, 1975, an investigator in homicide cases. He testified that defendant requested to see “the top honcho” and that Urso “stated he imagined he was the honcho.” Dvorak testified that defendant stated that he wanted to talk a deal and that Urso replied that he didn’t have the power to make deals since only Bernard Carey could make deals. Defendant stated “that as long as we had him on Fields he would plead guilty to both the Fields and the Zipperstein murder and would testify against Dr. Max Murphy Kaye if he were given a sworn affidavit from Mr. Carey that he would be given the minimum sentence, that being 14 to 14 and a day. Mr. Urso stated that that was not a fair deal.” Upon being asked by Urso whether he wished to give a statement, defendant replied “No, I think I need a lawyer.” The People contend that there was no plea negotiation, and that defendant made the statement sought to be excluded after Assistant State’s Attorney Urso had told him that he did not have authority to approve a “deal.” Citing People v. Carter (1967), 38 Ill. 2d 496, they argue that since the offer was made to an assistant State’s Attorney who had no authority to conduct the negotiation, the statements admitted into evidence did not constitute an offer to enter a plea of guilty. Alternatively, they argue that in the light of the overwhelming evidence of defendant’s guilt, assuming that the court erred in admitting the testimony, the error was harmless.

Although the practice has frequently been criticized, the importance of plea bargaining in the administration of criminal justice was noted by the Supreme Court in Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495. The court said:

“The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States [(1970), 397 U.S. 742, 751-52, 25 L. Ed. 2d 747, 758, 90 S. Ct. 1463, 1470-71.]” 404 U.S. 257, 260-61, 30 L. Ed. 2d 427, 432, 92 S. Ct. 495, 498.

In Kercheval v. United States (1927), 274 U.S. 220, 71 L. Ed. 1009, 47 S. Ct. 582, the Supreme Court recognized the devastating effect of evidence of a withdrawn plea of guilty. (See also People v. Steptore (1972), 51 Ill. 2d 208.) In order that plea discussions may be conducted in an atmosphere of candor, free of the risk that statements made during negotiations will be used as evidence of guilt, our Rule 402(f) provides:

“(f) Plea Discussions, Plea Agreements, Pleas of Guilty Inadmissible Under Certain Circumstances. If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” 73 Ill. 2d R. 402(f).

Similar provisions are contained in Rule 410 of the Federal Rules of Evidence and Rule 11(e)(6) of the Federal Rules of Criminal Procedure.

The statement made by defendant was made after Urso told him “I guess I could talk a deal with you,” and we find apposite the rationale of United States v. Herman (5th Cir. 1977), 544 F.2d 791. In Herman the defendant was taken to the Federal courthouse in Columbus, Georgia, for a removal hearing based upon a charge of murder in Orange County, Florida. He requested that an attorney be appointed to represent him, and the magistrate recessed the hearing in order to obtain an attorney. The defendant remained in the hearing room with two postal inspectors and discussed with them some aspects of the charge and at some point during the conversation made the offer that he would plead guilty to robbery charges and produce the gun used in the murder if the authorities would agree to drop the murder charges. The district court suppressed the statements on the ground that they were plea related. The government appealed. Affirming the judgment, the court of appeals said:

“The government argues, however, that Herman’s statements could not have been plea-related because the postal inspectors had no authority to negotiate a plea. We reject the government’s position. The relevant factor is a defendant’s perception of the government official’s negotiating authority, not the official’s actual authority. The twin goals of encouraging unrestrained plea negotiations and assuring fairness to defendants dictate that any statements made by a defendant as part of an effort to reach a plea agreement must be excluded; it makes no difference that the defendant’s efforts are misguided because the official cannot or will not accept the offer.” 544 F.2d 791, 798.

Concerning the People’s argument that under People v. Carter (1967), 38 Ill. 2d 496, the conversation between defendant and Urso cannot be considered plea negotiations, although we do not imply that under Rule 402(f) the distinction is of any significance, we point out that the offer there was made to a police officer, not an assistant State’s Attorney. Furthermore, the discussion in the opinion in Carter concerns an ABA Standard (ABA Standards, Pleas of Guilty sec. 3.4 (Tent. Draft Feb. 1967)) proposed prior to the adoption of Rule 402.

We have considered the argument that the admission of the testimony was harmless error and do not agree. In People v. Steptore (1972), 51 Ill. 2d 208, in seeking to impeach the testimony of defendant’s sister, the People adduced testimony of a police detective who testified that she had said to an assistant State’s Attorney that “she would consider pleading her brother guilty for two to five or less.” (51 Ill. 2d 208, 216.) This court, relying on Rule 402(f), and despite overwhelming evidence of the defendant’s guilt, recognized the “devastating” effect of such evidence, and held that the error was so prejudicial as to require reversal. Accord, United States v. Brooks (6th Cir. 1976), 536 F.2d 1137; United States v. Smith (10th Cir. 1975), 525 F.2d 1017; United States v. Ross (5th Cir. 1974), 493 F.2d 771; Wilson v. State (1972), 253 Ark. 10, 484 S.W.2d 82; Moulder v. State (1972), 154 Ind. App. 248, 289 N.E.2d 522; Bennett v. Commonwealth (1930), 234 Ky. 333, 28 S.W.2d 24; State v. McGunn (1940), 208 Minn. 349, 294 N.W. 208; State v. Sha (1972), 292 Minn. 182, 193 N.W.2d 829; State v. Abel (1928), 320 Mo. 445, 8 S.W.2d 55; People v. Thomson (1954), 203 Or. 1, 278 P.2d 142; Dykes v. State (Tenn. 1963), 372 S.W.2d 184.

Because the judgment must be reversed and the cause remanded for a new trial, it is necessary to consider whether the death penalty provisions of section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1) are applicable to this case. Defendant contends that the basic tenets of Illinois law preclude retroactive application of those provisions of section 9 — 1 to offenses allegedly committed by him during 1974 and 1975. He argues further that were we to hold that the statute is to be given retroactive effect, such application would be violative of article I, section 16, of the Illinois Constitution of 1970 and article I, section 10, of the Constitution of the United States, which prohibit the promulgation of any ex post facto law. The People contend that Dobbert v. Florida (1977), 432 U.S. 282, 53 L. Ed. 2d 344, 97 S. Ct. 2290, permits the application of the statute as amended effective June 21, 1977, to these offenses and that there is no constitutional impediment to their application. The People argue that application of the statute is precluded only if defendant had an accrued right to be sentenced under the law in effect on the date on which the crimes were committed.

At the time of the commission of these homicides (August 23, 1974, and January 18, 1975) section 5 — 8—1A of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1A) provided that following a conviction for murder under section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 1), if certain circumstances existed, a three-judge panel was to determine whether certain facts occurred and, if so, the defendant was to be sentenced to death unless a majority of the judges of the panel determined that there were compelling reasons for mercy and that no death sentence should be imposed. Section 5 — 8—1A also provided:

“In the event that the death penalty in this Act is held to be unconstitutional by the Supreme Court of the United States or of the State of Illinois, any person convicted of murder shall be sentenced to imprisonment in the penitentiary for any indeterminate term with a minimum of not less than 14 years.” Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1A.

In People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353, this court held section 5 — 8—1A unconstitutional. Thereafter, but prior to trial of this case, the General Assembly enacted Public Act 80 — 26. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1.) Section 9 — 1 (j), effective June 21, 1977, in pertinent part provided:

“In the event that the death penalty in this Act is held to be unconstitutional by the Supreme Court of the United States or of the State of Illinois, any person convicted of murder shall be sentenced by the court to a term of imprisonment under Chapter V of the Unified Code of Corrections.” Ill. Rev. Stat. 1977, ch. 38, par. 9 — l(j).

Neither any provision of section 9 — 1 as enacted in 1977, nor its legislative history, shows any intent that the amendment apply retroactively. Indeed, the express provisions of section 5 — 8—1A and its reenactment in substantially identical form (section 9 — l(j)) clearly demonstrate the contrary intent. We hold, therefore, that for these offenses committed in 1974 and 1975 defendant may not be sentenced to death pursuant to section 9 — 1 of the Criminal Code of 1961. We hold'that if upon retrial defendant is convicted, he cannot be sentenced to death. Because of the conclusion reached we need not and do not discuss either the constitutional questions briefed and argued by the parties concerning the retroactive application or the questions concerning the constitutionality of the death penalty provisions of section 9 — 1 briefed and argued by the parties and amici curiae, the State Appellate Defender and the Public Defender of Cook County.

Defendant contends, and the People now concede, that the conviction for conspiracy must be vacated. Section 8 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 5) provides that “No person shall be convicted of both the inchoate and the principal offense,” and the conviction is accordingly reversed.

Defendant has raised, and the parties have briefed and argued, a number of other contentions. We have reviewed the briefs and arguments, and the authorities cited, and conclude that defendant’s remaining contentions are either without merit or involve matters which are unlikely to occur upon retrial. They need not, therefore, be further considered here.

For the reasons stated the judgment is reversed and the cause is remanded to the circuit court of Cook County for a new trial.

Reversed and remanded.

MR. JUSTICE RYAN,

concurring in part and dissenting in part:

The so-called plea bargaining involved in this case had nothing to do with defendant’s admission of guilt as to the murder of Fields. It pertained solely to the murder of Zipperstein. The majority opinion clearly shows that the defendant had freely admitted his guilt as to the murder of Fields prior to the time that he attempted to bargain with the assistant State’s Attorney for a plea of guilty to both murders. I would, therefore, affirm the defendant’s conviction as to the murder of Fields and remand the cause to the circuit court of Cook County for resentencing. I concur in the majority opinion in all other respects.

MR. JUSTICE UNDERWOOD joins in this partial concurrence and partial dissent.