testimony from a police detective that the Home Repair Fraud Statute “specifically
shows some examples” from which intent can be inferred. The examples elicited
by the prosecutor were found in 815 ILCS 515/3(c), which had been held
unconstitutional because it created an unconstitutional presumption. (People v.
Watts, 181 Ill. 2d 133, 692 N.E.2d 315 (1998)). The court concluded that despite
the Illinois Supreme Court’s holding in Watts, the testimony elicited by the
prosecutor informed the grand jury that intent not to perform the contract could
be presumed from the examples cited by the detective.
In addition, in response to a subsequent question from the grand jury, the
prosecutor elicited testimony that home repair fraud does not require a finding
that at the time defendant entered the contract, he lacked intent to complete the
work. The court concluded that under the plain language of §515/3(a)(1) and the
Watts decision, the elements of home repair fraud include the intent not to
perform the work at the time the contract was entered.
3. To obtain dismissal of the indictment, the defendant was required to
show that the prosecutor’s misconduct resulted in actual and substantial
prejudice. The court held that the defendant satisfied this burden because the
evidence which the State presented to the grand jury focused exclusively on what
happened after the work had been started, and did not concern defendant’s intent
when the contract was entered. The court concluded that defendant was
prejudiced because it was not clear that the grand jury would have returned an
indictment had it been properly informed of the applicable law.
The court rejected the State’s argument that a finding of prejudice required
that the prosecutor intentionally misstate the law to the grand jury. “Subjecting
a defendant to criminal prosecution . . . based on the State’s incorrect
presentation of the law to the grand jury deprived him of his right to due process,
whether the assistant State’s Attorney’s actions were intentional or not.”
4. The court concluded, however, that the indictment need not be dismissed
with prejudice. Dismissal with prejudice would be proper if the indictment was
based on perjured testimony which was deliberately presented by the State and
which was discovered by the defense rather than disclosed by the prosecution.
Because no such concerns were present here, the indictment was dismissed
The cause was remanded with instructions for the trial court to dismiss the
indictment without prejudice.
(Defendant was represented by Assistant Defender Philip Payne, Chicago.)
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