Opinion
No. 1-05-0810
November 19, 2008.
Appeal from the Circuit Court of Cook County, Illinois, No. 98 CR 26083 (04), Honorable Daniel P. Darcy, Judge, presiding.
On September 30, 1998, defendant, Carmecita Williams, was charged with criminal drug conspiracy ( 720 ILCS 570/405.1 (West 1998)) and official misconduct ( 720 ILCS 5/33-3(b) (West 1998)). A joint bench trial was conducted from June 23, 2003, to January 3, 2005, on those charges and related charges against codefendants, Greg Stroud (Stroud), Sean Stroud and Dwight Chandler. The trial court ultimately granted defendant's motion for directed verdict with respect to the criminal drug conspiracy charge. Defendant was convicted on the official misconduct charge and sentenced to 24 months' probation and 250 hours of community service. Stroud was convicted of criminal drug conspiracy and other charges while the two remaining codefendants were acquitted.
Defendant and Stroud appealed their convictions. In a related opinion, we upheld Stroud's convictions and sentence. In this appeal, defendant maintains that the trial court erred in finding that the State proved she violated a law beyond a reasonable doubt. Defendant also asserts that the official misconduct statute is unconstitutional and that she suffered from ineffective assistance of trial counsel. For the following reasons, we affirm the decision of the trial court.
I. BACKGROUND
On September 30, 1998, the grand jury returned indictments for criminal drug conspiracy and official misconduct against defendant. The official misconduct indictment alleged that defendant:
"Committed the offense of official misconduct in that she, a public employee, namely an employee of the Village of Glenwood, Illinois, in her official capacity as police dispatcher knowingly performed an act which she knew she is forbidden by law to perform, to wit: she notified Greg Stroud about police activity near his residence in South Holland, Illinois, in order to facilitate illegal drug-dealing by Greg Stroud, in violation of Chapter 720, Section 5/33-3(b) of the Illinois Compiled Statutes 1997 as amended[.]"
At trial, the State presented extensive evidence to support its case that Stroud led a criminal drug conspiracy by conducting a cocaine distribution ring out of his home at 15617 South State Street, South Holland, Illinois. The evidence showed that as the undercover operation expanded, the police received several court orders authorizing surveillance of Stroud and others. The relevant order to this appeal authorized the police to intercept and record telephone calls made to Stroud's home from June 17, 1998, to August 15, 1998.
On the night of July 12, 1998, three calls were intercepted that were attributed to defendant. The first two calls were made from a telephone line registered to the Village of Glenwood and the third call originated from a line with listed subscriber "Carmencita" Williams. The tapes and transcripts of these calls were admitted into evidence.
The first call from the Village of Glenwood was placed at 9:48 p.m. and the transcript of the phone call reads, in pertinent part:
"DEFENDANT: Keep your scan[n]er on there is some stuff going on in your area[.]
MR. STROUD: Say what[?]
DEFENDANT: Keep your scanner on[.]
MR. STROUD: What up?
DEFENDANT: OK I'm at work[.]
MR. STROUD: What do you hear[?]
DEFENDANT: I'm at work[.]
MR. STROUD: OK[.]
DEFENDANT: OK[.]"
The second recorded call was placed 20 minutes later, at 10:08 p.m., from the same number listed to the Village of Glenwood and the transcript reads in pertinent part:
"DEFENDANT: You have some eyes staged at the college[.]
MR. STROUD: Say again[.]
DEFENDANT: At the college[.]
MR. STROUD: At the college[.]
DEFENDANT: Yeah[.]
MR. STROUD: What! — A [b]urglary or something?
DEFNDANT: Huh! — No — Some eyes[.] You know what I'm [s]aying?
MR. STROUD: Yeah[.]
DEFENDANT: At the co — co — co —
MR. STROUD: I know what you're saying[.]
DEFENDANT: OK[.]
MR. STROUD: Thanks[.]
DEFENDANT: Don't worry about that other stuff you're hearing about the barricaded subject that's not what I'm talking about[.]
MR. STROUD: Yeah — Yeah when you get off call me[.]
DEFENDANT: I sure will[.]"
The final call from defendant came from her home telephone number and was intercepted at 11:30 p.m. on July 12, 1998, and the transcript of the call reads, in pertinent part:
"MR. STROUD: Yeah[.]
DEFENDANT: Yeah it's me[.]
MR. STROUD: What up?
DEFENDANT: Uh — I don't know exactly what — what's going on — It ain't like I really heard nothing[.] It's like OK this guy over there on 160 something and South Park he done barricade his house — Barricade his self in the house and we had to send a SERT team over there so we —
MR. STROUD: You all district go that far?
DEFENDANT: Huh?
MR. STROUD: You all district go that far?
DEFENDANT: Yeah we all District 3 — Even South Holland[.]
MR. STROUD: OK[.]
DEFENDANT: And uh — We send a SERT team in the area we have to let any agents know in the area that we're coming through and there'll be a lot of radio traffic so either they can change frequencies or whatever and I know I had to send it via computer[.]
MR. STROUD: Alright[.]
DEFENDANT: I had to sent it over to they use posts like post one — post two for locations[.]
MR. STROUD: Alright[.]
DEFENDANT: I just so happen to know where post 20 is and that's South Suburban College[.]
MR. STROUD: Uh huh[.]
DEFENDANT: So I'm not sure what agency you know if there's FBI —
DEA — or ATF or whatever but we just know there's agents in the area — Eh you know and they at South Suburban cause that's where I had to send the message to[.]
***
MR. STROUD: Huh? — Would have to be one of them ATF or FBI?
DEFENDANT: Yeah — It's one of them it's it's either ATF[,] FBI or DEA cause those are the only ones that let us know where they at[.]
MR. STROUD: OK[.]
DEFENDANT: Those three agents you know those three departments will let us know that they in the area not exactly where they at but they in the area so like I said they give us different posts they'll —
MR. STROUD: Now what — What frequency frequency — X3 (stuttering) is the one[?]
***
DEFENDANT: OK you pick up Hazelcrest,] Homewood[,] Glenwood — Thornton and Glenwood is in there[.]
MR. STROUD: OK — (Unintelligible) See what that's about let me know[.]
DEFENDANT: Yeah basically they probably won't I probably won't hear nothing but if I do I'll let you know[.]
MR. STROUD: OK bet[.]
DEFENDANT: Alright[.]
MR. STROUD: Everybody alright?
DEFENDANT: Yeah they OK[.]
MR. STROUD: Oke Doke[.]
DEFENDANT: Alright[.]
MR. STROUD: Hey thanks[.]
DEFENDANT: Uh hm."
Evidence at trial showed that defendant was a part-time dispatcher for the Village of Glenwood police department and was working at the time these calls were placed from the Village telephone to Stroud. Alex DiMare, a retired deputy chief of the Glenwood police department and defendant's former supervisor, testified that dispatchers are civilian public employees who are responsible for disseminating information amongst police officers. DiMare testified that the department's work records established defendant's employment at the time of the phone calls. He also testified as to the training involved for the dispatcher position. DiMare testified that all employees of the department are trained and given verbal and written materials regarding the department's rules and regulations. DiMare added that the rules and regulations are posted in public view in the police department and in their reference library.
DiMare testified that those trainings and materials specifically cover the department's rules and policy concerning confidential information. DiMare testified that the rules and regulations were adopted by the village trustees in 1985 and in effect from that time through DiMare's retirement on June 28, 2000. DiMare continued on to read the rules concerning confidential information into evidence:
"Section B under Confidential Information Section 1: Members shall treat as confidential the official business of the police department and shall not reveal police information outside the department except as provided elsewhere by the rules and regulations as required by law or competent authority. Information contained in the police records, other information ordinarily accessible only to members of the department shall be confidential. Names of informants, complainants, witnesses, other persons known to the police are to be considered confidential. Silence shall be maintained to safeguard such information unless authorized by the contrary by the commanding officer.
* * *
[U]nder confidential information section 3: Members shall not discuss or impart confidential information to anyone except those whom it was intended or as directed to by their commanding officers or under the due process of law.
Under Section 4, also under the 1985 adopted rules and regulations of the Glenwood Police Department: Members shall not communicate information which may delay arrest or aid the person to escape, destroy evidence or remove stolen property. They shall not communicate information regarding an arrest made by them or a case to which they are assigned except with the consent of their commanding officers. Members shall not communicate information relating to proposed or actual arrests or cases investigated or to be investigated except to the arresting officers or the officers assigned to that case or the commanding officer. They shall not give information or refrain or refer to any case outside the department or agency except through official channels.
Also, under Section 5, members shall not make known or to any person the contents of any directive order which they may receive unless required by the nature of the order."
DiMare concluded by testifying that the information imparted by defendant to Stroud was confidential information of the police department. Therefore, DiMare explained, defendant violated each of the sections recited above. DiMare admitted that he did not conduct an investigation into this situation, but stated that defendant revealed confidential information by disclosing the location of the SERT team and the presence of outside agencies. DiMare opined that defendant's actions jeopardized the investigation and safety of the officers and agents involved. Additional testimony indicated that the department informed officers to no longer use the parking lot of the South Suburban College as a staging area.
Defendant testified in her own defense and admitted that she made the three phone calls detailed above. Defendant explained that Stroud was the father of her second son, who was 14 years old at the time of trial. Defendant stated that Stroud would often watch their son, in addition to defendant's first son, who was 10 years older, and he was watching them on the night of the calls. Defendant testified that she knew Stroud had a police scanner but that she did not know he was a narcotics dealer. Defendant claimed that she did not know whether police or agents were staged near Stroud's home but she was just "throwing something at him." Defendant testified that she called about the nearby barricade situation and made up the other information to give him the impression police were watching and see if he was doing anything illegal.
On cross-examination, defendant admitted that when she started working for the Village of Glenwood police department she was informed of the rules of the department and given a written copy of the rules. Defendant testified that she was told what confidential information was and that it was a violation of the rules to discuss or impart confidential information to anyone except those to whom the information was directed. Defendant admitted that this policy was important to ensure the safety of policemen in their work. However, defendant reiterated her claim that she did not disclose any confidential information.
As noted above, the trial court granted defendant's motion for a directed finding with respect to the drug conspiracy charge, but denied the motion with respect to the official misconduct charge. At the conclusion of the trial, defendant was found guilty of the official misconduct charge and sentenced to 24 months' probation and 250 hours of community service. Defendant appealed her conviction for official misconduct, alleging that the State failed to prove that she disseminated confidential information in violation of any law. Defendant also alleged that the official misconduct statute is unconstitutional and she suffered from ineffective assistance of counsel.
As ordered by this court following oral argument, the parties submitted supplemental briefs on the issue of whether the Glenwood police department's rules and regulations were "law" for purposes of the official misconduct statute. The State provided copies of the Village of Glenwood ordinances covering the police department. In addition, the State provided the minutes of the November 19, 1985, meeting where the village trustees approved the rules and regulations package, as testified to by DiMare.
II. ANALYSIS A. Proof Beyond a Reasonable Doubt a Law Was Violated
Defendant first claims that the State failed to prove that she committed any act "forbidden by law" as required under the section 33-3(b) of the Criminal Code of 1961 (official misconduct statute) ( 720 ILCS 5/33-3(b) (West 1998)). Defendant argues that the statute requires a violation of a statute, administrative law or legal duty, and the State merely claimed that she violated an "employee manual." Defendant asserts that even if the police rules and regulations were considered "law," she claims that the State failed to prove that she disseminated any confidential information in violation of those rules and her conviction must be reversed.
1. The Village of Glenwood Police Department Rules and Regulations
Whether the police department rules and regulations are positive law to support a conviction for official misconduct is the central issue in this case. This matter received ample attention in the parties' briefs and at oral argument. As noted above, following oral argument, the parties also submitted supplemental briefs on this subject. This question of what constitutes "law" for purposes of the official misconduct statute is a question of law and our standard of review is de novo. People v. Howard, 228 Ill. 2d 428, 432 (2008).
Defendant argues that the nature of the law that she allegedly violated was simply a rule from an employee manual and not a law as envisioned by the legislature in its enactment of the official misconduct statute. Defendant notes that our supreme court stated that a violation of the statute may arise from behavior forbidden by statute, supreme court rule, administrative rules and regulations, or tenets of a professional code. Fellhauer v. City of Geneva, 142 Ill. 2d 495, 506 (1991). Defendant argues that extending the reach of the statute to an employee manual in this case would be too far an extension from the already expansive reading of "law" by the Fellhauer court.
Defendant argues that such an expansion was denied in People v. Gray, 221 Ill. App. 3d 677 (1991), a case factually similar to the instant case. In Gray, the defendant was a janitor at a home run by the Illinois Department of Veterans Affairs. The defendant developed a relationship with a resident that led to the resident's investment of $60,000 in a restaurant defendant had been planning. Gray, 221 Ill. App. 3d at 678-80. The defendant resigned as a janitor and opened his restaurant, which was unprofitable and closed after eight months. The defendant then had a falling out with the resident investor based on some accounting issues and the defendant's inability to return his investment. The State charged the defendant with official misconduct based on his violation of a personnel manual that prohibited employees from soliciting or accepting financial assistance from residents. Gray, 221 Ill. App. 3d at 681. The Fourth District of this court reversed the defendant's conviction, finding that "without more," the standard of section 33-3(b) was not met by the violation of a "mere rule of employment" because the rule in question was simply created by someone in authority at the veterans home. Gray, 221 Ill. App. 3d at 683-84. Accordingly, the court concluded that the violation of such a rule was not an exploitation of the public through an official position and should not be a Class 3 felony. Gray, 221 Ill. App. 3d at 685.
Defendant also contends that People v. Selby, 298 Ill. App. 3d 605 (1998), supports reversal. In Selby, the defendants were correctional officers charged with official misconduct, inter alia, for violating a specific section of the Illinois Administrative Code forbidding socializing with prisoners by having sexual intercourse with inmates. Selby, 298 Ill. App. 3d at 608-09. Defendant argues that in this case, unlike in Selby, the charges were not predicated upon the violation of the Illinois Administrative Code, but simply a rule of employment. Accordingly, defendant concludes that Selby is instructive on what is required to be considered "law" for the official misconduct statute and an essential element of the crime is missing.
In her supplemental brief following oral argument, defendant contends that the evidence presented by the State regarding the Village of Glenwood's enactment of the police department's rules and procedures was not properly of record and should be disregarded. Even if accepted by this court, defendant asserts that she does not fit under the category of employees delineated by the rules and regulations. Defendant also asserts that the State failed to show that these rules applied to her. Defendant adds that the State also cannot argue now that her conviction could have been supported by any other statutory violations as these theories were not in the charging instrument or advanced at trial.
The State responds that defendant's attempt to "trivialize her reprehensible criminal conduct" by labeling the rules and procedures as an "employee manual" is unavailing. As the State notes, an official misconduct charge may be based on an administrative rule or regulation, even absent any penalty provision for that rule. People v. Becker, 315 Ill. App. 3d 980, 1000 (2000). Such a rule or regulation enjoys a presumption of validity and has the force and effect of law. Becker, 315 Ill. App. 3d at 1000. The State asserts that the confidentiality rules as read into the record by DiMare were not only identified and shown to be approved by the Village of Glenwood, but the evidence indicated that defendant was trained on the rules and given paper copies of them. The State asserts in their supplemental brief that, with the approval of the village trustees, these were not simply part of an employee manual, but were village ordinances.
The State argues that defendant's intent was clearly shown by the investigation of Stroud and the plain language of defendant's recorded conversations with him. The State notes that the trier of fact is responsible for credibility determinations and, based on the testimony at trial had every right to disregard defendant's proffered excuses. The State points to testimony that defendant's disclosures jeopardized ongoing investigations and forced the police department to modify operations. The State asserts that it is "noteworthy" that section 4 of the confidentiality rules is very similar to section 31-5 of the Criminal Code of 1961. 720 ILCS 5/31-5 (West 2004). Accordingly, the State concludes that defendant's conviction must be upheld for her clear violation of a local ordinance as documented at trial.
The official misconduct statute was designed to prevent public officials from abusing their position in violation of the law for personal gain or criminal enterprise. Fellhauer, 142 Ill. 2d at 506. In Howard, our supreme court recently considered what constitutes a predicate unlawful act for purposes of section 33(c) of the official misconduct statute. Contrary to defendant's concern, the Howard court considered and expanded the holdings in Fellhauer and People v. Grever, 222 Ill. 2d 321 (2006). Howard, 228 Ill. 2d at 432-33. The Grever court refused to impose criminal liability under the official misconduct statute based upon the "amorphous concept of a `breach of fiduciary duty.'" Grever, 222 Ill. 2d at 338. The Howard court found that a violation of the Illinois Constitution, as the supreme law of this state, was not an amorphous concept and could serve as a predicate act. The court concluded this was consistent with the finding in Grever that a violation need not be specifically described in the Criminal Code. Howard, 228 Ill. 2d at 437, quoting Grever, 222 Ill. 2d at 337.
The Howard court noted its concern that such a ruling could enhance the specter of overzealous prosecution of official misconduct allegations. However, it softened this concern with the reality that winning a conviction under the statute is not a simple matter, "particularly if a prosecutor should attempt to utilize the statute without considering that its reach is not limitless." Howard, 228 Ill. 2d at 438. Furthermore, the court pointed out that there is no de minimis exception within the statute and indicated this issue may only be considered by the legislature. The court concluded that this issue was ripe for such review and strongly suggested that this occur. Howard, 228 Ill. 2d at 438-39.
Unlike Gray, where the situation was more akin to a friendship that was abused than the abuse of official capacity, the facts of this case present a more serious situation. The Gray court expressed "serious misgivings" with the thought that "a mere rule of employment, without more, meets the standard of section 33-3(b)." Gray, 221 Ill. App. 3d at 684. Here, the facts present more than an abused friendship, but a clear violation of the public trust by defendant's disclosure of confidential information that endangered not only the investigation, but police officers. Furthermore, there is "more" to the rule in this case than a `mere rule of employment.' The Village of Glenwood is a home rule community and thus, under Article VII of the Illinois Constitution of 1970, has "the same powers as the sovereign except where such powers are limited by the General Assembly" that must be construed liberally. City of Urbana v. Houser, 67 Ill. 2d 268, 273 (1977), citing Ill. Const. 1970, art. VII, §§ 6(a), ( i), (m).
The confidentiality rules are part of the police department rules and regulations which were approved and codified as an ordinance by a home rule community. Despite defendant's claim to the contrary, we may take judicial notice of these ordinances. Kyles v. Maryville Academy, 359 Ill. App. 3d 423, 437-38 (2005). We also are authorized by our Code of Civil Procedure to call upon counsel to aid us in obtaining this information. 735 ILCS 5/8-1004 (West 2004).
This was not a violation of an amorphous concept such as a fiduciary duty or simply a rule of employment. The importance of these rules and the ramifications of failing to follow them is obvious. Although in dicta as pointed out by defendant in her supplemental brief, the Fourth District of our court has found that a violation of police department policy may provide the basis of a charge for violation of section 33-3(b) of the official misconduct statute. People v. Hollingsead, 210 Ill. App. 3d 750, 767 (1991). The evidence in this case showed that not only were the confidentiality rules the expressed policy of the police department, but of the village by its approval and enactment. These rules and their approval are matters of public record and sufficient to support a charge of official misconduct.
2. Proof Defendant Disseminated Confidential Information
Defendant continues to argue that, even if the rules and regulations are considered "law" for purposes of the official misconduct statute, the State failed to prove that she possessed, much less disseminated, any confidential information. Defendant asserts that the State merely proved that she made three facially innocuous calls to Stroud, who was watching their son at the time of the calls. Defendant argues that the State failed to prove that the information was confidential or that defendant possessed any criminal intent or criminal purpose in making the calls to Stroud.
Defendant adds that the State failed to show any other telephone calls from her to Stroud during the time his telephone lines were monitored. Defendant remained an employee of the Glenwood police department following the calls until the time of her arrest and no evidence of any additional calls was presented. Defendant concludes that the State failed to prove that any investigation was made into these calls or evidence presented to prove the information discussed was true or confidential.
In determining whether sufficient evidence was presented to support a conviction, we view the evidence in a light most favorable to the prosecution. We must allow all reasonable inferences to determine if no reasonable person could find defendant guilty beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). It is the function of the trier of fact to assess the credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. People v. Cox, 377 Ill. App. 3d 690, 697 (2007).
DiMare testified that defendant was a public employee as a dispatcher for the Glenwood police department. DiMare stated that all employees of the police department are verbally instructed that the dissemination of confidential information is prohibited. As detailed above, DiMare read into the record the portions of the rules and regulations covering this issue and testified that all employees are given paper copies of these rules. DiMare opined that defendant disclosed confidential information to Stroud and that this jeopardized the ongoing operation at South Suburban College, resulting in a change in the staging area by the police department.
Defendant does not deny making the calls to Stroud or the substance of the calls as transcribed above. Defendant testified that she was trained on the rules and regulations, including the confidentiality rules, when she started working for the Glenwood police department. Defendant further admitted that these rules banned the dissemination of confidential information or any information that may delay arrest or aid a person to escape. Defendant stated that she understood the public safety and the safety of police officers would be compromised if these rules were violated.
As the trier of fact, the trial court obviously found incredible defendant's claims that she made up the information imparted to Stroud as part of a scheme to find out if he was up to something. Evidence showed that the Glenwood police department and other law enforcement were staged at South Suburban College at that time and this plan was modified after the telephone calls were intercepted. Based on the plain language of the transcripts of the telephone calls and trial testimony, and the inferences that may be made from each, the trial court properly found the State proved the elements of official misconduct against defendant. Accordingly, we cannot say that no reasonable person could find defendant guilty beyond a reasonable doubt.
B. Constitutionality of Official Misconduct Statute
Defendant next argues that the official misconduct statute is unconstitutional both facially and as applied to her. Defendant asserts that the statute is facially invalid because it violates the due process clause in its overbroad application criminalizing innocent behavior. Defendant also claims that the statute is unconstitutionally vague. She admits that she did not assert these claims at trial, but notes that the constitutionality of a criminal statute may be raised at any time. People v. Wright, 194 Ill. 2d 1, 23 (2000). We agree with this, but note that defendant failed to inform the Attorney General of Illinois of this constitutional challenge as required by Supreme Court Rule 19. 210 Ill. 2d R. 19. However, as we do not find the official misconduct statute to be unconstitutional, we do not find it necessary to inform the Attorney General prior to our decision. See 210 Ill. 2d R. 18.
We review constitutional challenges to a statute de novo. People v. Butler, 375 Ill. App. 3d 269, 271 (2007). However, statutes are presumed to be constitutional and the party challenging the statute has the burden of proving its invalidity. Wright, 194 Ill. 2d at 24. Further, a reviewing court will resolve any doubtful construction of a statute in the favor of its validity. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 291 (2003).
1. Due Process Challenge as Overbroad
Defendant claims that section 33-3(b) of the official misconduct statute violates due process as overbroad because it subjects innocent conduct to a criminal penalty. Defendant contends that the statute is unconstitutional as it does not require a showing of a criminal mental state to apply a criminal penalty, but merely the violation of another statute, administrative law, or simply a legal duty. As addressed above, defendant properly notes that our review is de novo; however, she fails to note that where a statute does not affect a fundamental constitutional right, we apply the rational basis test in determining compliance with substantive due process requirements. Wright, 194 Ill. 2d at 24. Under this test, we must uphold a statute if it" `bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective.'" Wright, 194 Ill. 2d at 24, quoting People v. Adams, 144 Ill. 2d 381, 390 (1991).
We first note that the State framed its response to defendant's argument under the overbreadth doctrine. Under that doctrine, which was designed to protect first amendment freedoms, a statute may be found unconstitutional if it "(1) criminalizes a substantial amount of protected behavior, relative to the law's plainly legitimate sweep, and (2) is not susceptible to a limiting construction that avoids constitutional problems." People v. Jamesson, 329 Ill. App. 3d 446, 453 (2002). However, as noted above, defendant presented a due process challenge to the statute on the ground that it criminalized innocent behavior. See Wright, 194 Ill. 2d 1 (2000), People v. Zaremba, 158 Ill. 2d 36 (1994); In re K.C., 186 Ill. 2d 542 (1999); People v. Wick, 107 Ill. 2d 62 (1985). Despite this, in her response and supplemental briefs, defendant has argued that the statute must be found unconstitutional under the overbreadth doctrine as well as it would criminalize protected behavior that is prohibited by the rules and regulations.
However, we do agree with the State that the opinion in People v. Kleffman, 90 Ill. App. 3d 1 (1980), applies to this case. The Kleffman court considered a challenge to section 33-3(c) of the official misconduct statute under the overbreadth doctrine. The court concluded that the overbreadth doctrine had no significance to a challenge of section 33-3(c) because it did not purport to regulate speech, press, or any other constitutionally protected right. Furthermore, as section 33-3(c) requires an act in excess of the lawful authority of the public officer, the court found it rendered the statute inapplicable to constitutionally protected conduct. Kleffman, 90 Ill. App. 3d at 3.
Similarly, section 33-3(b) applies to the knowing commission of acts forbidden by law. As such, it does not purport to regulate speech, press, or any other constitutionally protected right. Where speech is an integral part of unlawful conduct, it is not constitutionally protected. Chicago Real Estate Board v. City of Chicago, 36 Ill. 2d 530, 552-53 (1967). We agree this section is inapplicable to protected conduct and a facial attack of the statute may not stand. People v. Taher, 329 Ill. App. 3d 1007, 1013 (2002).
Defendant's due process claim that the act punishes innocent action must be considered under the rational basis test. As noted above, the official misconduct statute was designed to prevent public officials from abusing their position in violation of the law for personal gain or criminal enterprise. Fellhauer, 142 Ill. 2d at 506. Clearly, prohibiting public officers from knowingly performing, in their official capacity, an act that they know to be forbidden by law serves the public interest and the purpose of the statute of prohibiting unlawful acts by public officers. Section 33-3(b) requires the culpable mental state of knowledge by requiring proof the person charged knowingly performed an act knowingly forbidden by law. This is reasonably designed to achieve its purpose and, by definition, does not punish innocent conduct as it requires knowingly conducting an act known to be against the law.
2. Vagueness Challenge
A statute may also be challenged as unconstitutionally vague even if it does not reach a substantial amount of protected behavior. A statute is unconstitutionally vague if it fails to provide notice that would enable an ordinary person to understand what conduct it prohibits and it fails to provide sufficient standards to stop arbitrary and discriminatory enforcement. City of Chicago v. Morales, 527 U.S. 41, 56, 144 L. Ed. 2d 67, 80 (1999), 119 S. Ct. 1849, 1859. Defendant argues that section 33-3(b) of the official misconduct statute fails to apprise ordinary persons adequate notice that they may be criminally liable for actions in violation of an "employee manual" and thus is impermissibly vague.
Defendant argues that the phrase "forbidden by law" from section 33-3(b) is not defined by the statute. 720 ILCS 5/33-3(b) (West 1998). Defendant contends that this term is essential to understanding the meaning and scope of the official misconduct statute and since it is undefined, exactly what conduct is illegal is vague and confusing. Defendant argues that since the official misconduct statute is criminal, it could be read to mean only criminal laws. However, defendant points out that the Fellhauer court defined "law" much more expansively, and the statute could be read under this expanded understanding. Defendant likens this situation to a public employee attorney who could face criminal sanctions for violations of our supreme court rules or a rule of the Attorney Registration and Discipline Commission.
Defendant asserts that this leads to an unworkable standard and enables arbitrary and discriminatory enforcement. Defendant argues that minimal guidelines must be provided by the statute, individual policemen, prosecutors and juries may follow their own personal predilections against various persons. People v. Maness, 191 Ill. 2d 478,484 (2000). In Maness, our supreme court found the legislature's failure to define "reasonable steps" a parent must take in order to avoid prosecution for permitting the sexual abuse of a child provided no guidelines to follow from case to case. Maness, 191 Ill. 2d at 486-87. Defendant contends the same exists in the instant case because there are so many conceivable interpretations of what "law" means.
As addressed above, absent the implication of first amendment activity, we address the contention the statute is unconstitutionally vague only as applied on the facts of this individual case. People v. Taher, 329 Ill. App. 3d 1007, 1013 (2002). We find that the language in this case is not comparable to that in Maness. The phrase "forbidden by law" does not contain the same lack of clarity as "reasonable steps." We simply cannot find that a person of ordinary intelligence would guess that calling a drug dealer to inform him where police were gathering and conducting surveillance was unlawful. Accordingly, as we construe a statute to be constitutional where reasonable, we conclude that defendant has failed to meet the burden of rebutting the presumption of constitutionality of the statute and establishing the statute was vague as applied to her. Cryns, 203 Ill. 2d at 292.
C. Effective Assistance of Counsel
Defendant next claims that she suffered from ineffective assistance of counsel for defense counsel's failure to move to dismiss the indictment as fatally defective. On appeal, this court reviews such claims under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984), which our supreme court recognized in People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). Under Strickland, to determine whether there has been a violation of the defendant's right to effective assistance of counsel, the defendant must show: (1) that his counsel's "representation fell below an objective standard of reasonableness"; and (2) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068; People v. Shatner, 174 Ill. 2d 133, 144 (1996). If such a claim can be disposed of on the ground that the defendant did not suffer sufficient prejudice, the court need not consider the first prong. People v. Bloomingburg, 346 Ill. App. 3d 308, 316-17 (2004).
If we do review an attorney's actions, we must show great deference to the attorney's decisions as there is a strong presumption that an attorney has acted adequately. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. Trial counsel has the right to make ultimate decisions with respect to trial strategy and tactics and these decisions are ordinarily not reviewable. People v. Adams, 338 Ill. App. 3d 471, 477 (2003). A defendant is entitled to competent, not perfect, representation. For example, if an attorney undertook poor strategy or another attorney would have handled the situation differently, that does not in itself render the representation ineffective or inadequate. People v. Palmer, 162 Ill. 2d 465, 475-76 (1994).
The State argues that when a defendant challenges the sufficiency of an indictment for the first time on appeal, this court need only determine whether the indictment apprised the defendant of the precise offense charged with enough specificity to prepare a defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. People v. Maggette, 195 Ill. 2d 336, 347-48 (2001). However, as defendant responds, she is not arguing purely that the indictment was defective, but that she suffered ineffective assistance of counsel for the failure to move to dismiss the indictment at trial. Defendant asserts that the indictment was fatally defective because it did not specifically cite to the law broken. People v. Grever, 222 Ill. 2d 321, 337 (2006). Therefore, defendant claims that she was not fully apprised of the charge against her and trial counsel's ability to defend against the official misconduct charge was compromised. People v. Romo, 85 Ill. App. 3d 886, 894 (1980).
However, the State continues to argue, and we agree, that defendant did not suffer prejudice from any alleged ineffective assistance of counsel. The State notes that defendant received quality counsel as proven by the acquittal of the more serious charge of criminal drug conspiracy against defendant and defendant cannot point to serious deficiencies. The State contends that counsel understood the nature of the official misconduct allegation and adequately questioned witnesses on this charge as well. The State adds that even if defense counsel had moved to dismiss the indictment, it simply would have reindicted defendant.
While we agree that the indictment could have been more detailed, we also agree that defendant did not suffer from ineffective assistance of counsel. An indictment minimally must allege facts that show the defendant violated an identifiable law. Grever, 222 Ill. 2d at 337. Sufficient facts were included in the indictment and a sufficient case was presented on defendant's behalf. The State's claim it would have simply reindicted defendant is not controlling, but it does further support the argument that defense counsel understood the allegations and followed a trial strategy. We cannot say that defense counsel did not appreciate this possibility and concluded it was defendant's best interests to continue forward under the instant indictment. Defense counsel presented a strong case and achieved an acquittal of the more serious charge against defendant. The facts would not change with a new indictment and counsel's performance and actions were reasonable.
III. CONCLUSION
For the foregoing reasons, we affirm the decision of the trial court.
Affirmed.
CAMPBELL, J., concurs.
The majority holds that Carmecita Williams, a civilian employee, is guilty of official misconduct because she violated a Glenwood municipal ordinance. The Glenwood municipal ordinance that Ms. Williams is alleged to have violated is not a law. In addition, the Glenwood municipal ordinance, the predicate offense, only applies to sworn officers, and not to civilian employees like Ms. Williams. Accordingly, I respectfully dissent because Ms. Williams, a civilian employee, is not guilty of official misconduct because the Glenwood municipal ordinance, the predicate offense, is not a law and only applies to sworn officers.
See People v. Howard, 228 Ill. 2d 428, 436 (2008) (holding that the Illinois Constitution can serve as the predicate unlawful act for the offense of official misconduct).
The majority takes the position, based upon article VII of the Illinois Constitution, that the Village of Glenwood is a home rule municipality. Ill. Const. 1970, art. VII, § 6. Therefore, the majority reasons that (1) the confidentiality rules Ms. Williams is alleged to have violated are part of the Village of Glenwood police department's rules and regulations, (2) the confidentiality rules were approved and codified as an ordinance by a home rule community, and (3) a violation of the ordinance is a violation of a "law" within the meaning of the official misconduct statute ( 720 ILCS 5/33-3(b) (West 1998) ("A public officer or employee commits misconduct when, in his official capacity, he ***[k]nowingly performs an act which he knows he is forbidden by law to perform")). An examination of the Illinois Constitution reveals that only the legislature promulgates laws. See Ill. Const. 1970, art. IV, §§ 8(b), (c) (the General Assembly shall enact laws only by bill and no bill shall become a law without the concurrence of a majority of the members elected to each house). Further examination of the Illinois Constitution reveals that home rule units of government, including municipalities, promulgate ordinances. See Ill. Const. 1970, art. VII, § 6(c) (article VII delineates the powers of home rule units and provides that municipalities promulgate ordinances). In light of the preceding, I submit that the Illinois Constitution makes it clear that only the legislature promulgates laws and that a home rule municipality only promulgates ordinances. Compare Ill. Const. 1970, art. IV, §§ 8(b), (c); Ill. Const. 1970, art. VII, § 6(c). Accordingly, the Glenwood municipal ordinance at issue in the instant case is an ordinance and not a law, and a violation of the ordinance is not a violation of a law within the purview of the official misconduct statute. Compare Ill. Const. 1970, art. IV, § 8(b), (c), with Ill. Const. 1970, art. VII, § 6(c). See also 720 ILCS 5/33-3(b) (West 1998). However, even if I was to assume that the Glenwood municipal ordinance was a law within the purview of the official misconduct statute ( 720 ILCS 5/33-3(b) (West 1998)), and that a violation of the Glenwood municipal ordinance constituted the commission of a predicate act that triggers a violation of the official misconduct statute, I would still reverse Ms. Williams' official misconduct conviction because the Glenwood municipal ordinance does not apply to her. Article II, section 58-42, of the Village of Glenwood Municipal Code provides that the chief of police may make or prescribe rules and regulations that, when approved by the village president and board of trustees, "shall be binding on the members of the police department." (Emphasis added.) Village of Glenwood Municipal Code art. II, § 58-42 (eff. May 1, 2007). Article II, section 58-31, of the Village of Glenwood Municipal Code provides that the police department "shall consist of one chief of police, one deputy chief of police four sergeants and 19 patrol officers, and such other members as may be provided for from time to time by the village president and board of trustees." Village of Glenwood Municipal Code art. II, § 58-31 (eff. May 1, 2007). In addition, article II, section 58-34, of the Village of Glenwood Municipal Code lists the rank of the police department members: chief of police, deputy chief, full-time sergeants, and patrol officers. Village of Glenwood Municipal Code art. II, § 58-34 (eff. May 1, 2007). Noticeably absent from the list of police department members set forth in the Village of Glenwood Municipal Code are civilian employees. See Village of Glenwood Municipal Code art. II, §§ 58-31, 58-34 (eff. May 1, 2007). Moreover, there is no evidence in the record that indicates that civilian employees, like Ms. Williams, are the "other members" of the police department that were provided for by the village president or board of trustees. Village of Glenwood Municipal Code art. II, § 58-31 (eff. May 1, 2007).
The official misconduct statute is clear that it applies to acts that violate laws. 720 ILCS 5/33-3(b) (West 1998). The official misconduct statute does not apply to acts that violate confidentiality rules and regulations promulgated by a chief of police and approved by a village board of trustees. 720 ILCS 5/33-3(b) (West 1998). It is axiomatic that criminal or penal statutes, like the official misconduct statute and like the Glenwood municipal ordinance, the predicate offense in this case, are to be strictly construed in favor of the accused (People v. Grever, 222 Ill. 2d 321, 338 (2006)), and nothing should be taken by intendment or implication beyond the obvious or literal meaning of the statute. People v. Laubscher, 183 Ill. 2d 330, 337 (1998), citing People v. Woodard, 175 Ill. 2d 435, 444 (1997); People v. Shinkle, 128 Ill. 2d 480, 486 (1989). When I strictly construe the Glenwood municipal ordinance, there is no reference to civilian employees in the ordinance; therefore, without intendment or implication, the ordinance does not apply to Ms. Williams. Accordingly, the majority was in error when it extended the definition of "law" to include the confidentiality rules and regulations promulgated by Glenwood's chief of police and approved by the village board of trustees. See also People v. Gray, 221 Ill. App. 3d 677, 684 (1991) (in reversing the defendant's conviction of official misconduct, this court noted that it had serious misgivings as to whether a mere rule of employment, without more, met the standard set forth in section 33-3(b) of the Criminal Code).
CONCLUSION
In order for Ms. Williams to be found guilty, the State had to prove that Ms. Williams (1) performed an act, and (2) that the act was forbidden by law. 720 ILCS 5/33-3(b) (West 1998). I note that Ms. Williams' indictment for official misconduct did not allege that she violated the Glenwood police department's rules or regulations. Instead, the indictment alleged that Ms. Williams "knowingly performed an act which she knew is forbidden by law to perform, to wit: she notified Greg Stroud about police activity near his residence in South Holland, Illinois, in order to facilitate illegal drug-dealing by Greg Stroud, in violation of Chapter 720, Section 5/33-3(b) of the Illinois Compiled Statutes 1997 as amended." In Grever, the Illinois Supreme Court held that the official misconduct statute requires that the charging instrument specify the law allegedly violated in the course of committing the offense. Grever, 222 Ill. 2d at 335. Indeed, the only "law" referred to in the indictment is the official misconduct statute. The official misconduct statute's requirement that the public employee perform an act forbidden by "law" would have to be an act forbidden by a "law" other than the misconduct statute. By failing to cite a law and by only presenting evidence that Ms. Williams violated the Glenwood municipal ordinance, which is not a law within the purview of section 33-3(b) of the Criminal Code ( 720 ILCS 5/33-3(b) (West 1998)), and, if the ordinance is a law, the ordinance does not apply to civilian employees, the State failed to present evidence that established that Ms. Williams, a civilian employee, performed an act that is forbidden by law. Therefore, because Ms. Williams is not a sworn officer and because she did not perform an act forbidden by law, she did not violate the official misconduct statute. 720 ILCS 5/33-3(b) (West 1998). Accordingly, I would hold that there is no evidence in the record that Ms. Williams performed an act forbidden by law and reverse her conviction for official misconduct.