2022 IL App (2d) 210231-U No. 2-21-0231 Order filed July 18, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) Nos. 17-CF-1700 ) ) VAN DOUGLAS RICHARDSON, JR., ) Honorable ) Brendan A. Maher, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court. Justices Jorgensen and Schostok concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in denying defendant’s pre-trial motion to dismiss the indictment for first-degree murder. The evidence was sufficient to convict. However, as the State concedes, defendant is subject to a 20-year, not a 25-year, firearm sentencing enhancement. Conviction affirmed. Sentence affirmed as modified.

¶2 Defendant, Van Douglas Richardson, Jr., filed a pre-trial motion pursuant to section 114-

1(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-1(a) (West 2018)) to dismiss the 19-count bill of indictment, which included 16 counts for first-degree murder against defendant and co-defendant, Deon Hart. Hart filed a similar motion. Both defendants argued that

2022 IL App (2d) 210231-U the State misled the grand jury when it presented the testimony of an eye-witness, Marshayla

Whitlock, and elicited that she had provided the police with a prior consistent statement but did not disclose that she had also provided the police with a prior inconsistent statement. The trial court denied both motions in a single ruling. A jury subsequently convicted defendant of first- degree murder. 720 ILCS 5/9-1 (a)(2), (a)(3) (West 2016). It also determined that defendant personally discharged the firearm that proximately caused the victim’s death, making defendant subject to a 25-year sentencing enhancement. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West Supp. 2017).

The trial court sentenced defendant to 40 years’ imprisonment, plus the 25-year sentencing enhancement, for a total of 65 years’ imprisonment.

¶3 On appeal, defendant argues that: (1) the trial court erred in denying his motion to dismiss the indictment1; (2) the evidence was not sufficient to convict for first-degree murder; and (3) even if the evidence was sufficient to convict for first-degree murder, it was at best sufficient to establish that defendant, as one of two shooters firing toward the victim, personally discharged a firearm

(730 ILCS 5/5-8-1(a)(d)(ii) (West Supp. 2017) (20-year enhancement)), not that he personally discharged the firearm that proximately caused the victim’s death (730 ILCS 5/5-8-1(a)(1)(d)(iii)

(West Supp. 2017) (25-year enhancement)).

¶4 We reject defendant’s first two arguments. The State concedes error as to the sentencing enhancement. Accordingly, we affirm defendant’s conviction for first degree murder but vacate

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2022 IL App (2d) 210231-U the 25-year enhancement and impose, instead, a 20-year enhancement, for a total of 60 years’ imprisonment. Conviction affirmed. Sentence affirmed as modified.

¶5 I. BACKGROUND

¶6 On May 24, 2017, two persons fired gunshots from an SUV in the vicinity of an apartment

complex on Sablewood Drive in Rockford. Many people were standing outside, and one person, Lester Sanders, was fatally shot as he sought shelter within his apartment. The State believed that

defendant, then age 27, drove the SUV from which the shots were fired and that both he and codefendant Hart, then age 22, fired shots from the vehicle while Hart’s friend, Whitlock, then age

17, huddled in the backseat. The State charged defendant with multiple counts of first-degree murder.

¶7 A. Pre-Trial

¶8 1. Grand Jury Testimony

¶9 On June 21, 2017, and on August 2, 2017, the State conducted grand jury proceedings, calling Whitlock and Rockford police detective Joseph Danforth.

¶ 10 Whitlock acknowledged that she was presently in custody on a juvenile matter. She testified that she had not received an offer by the State in exchange for her cooperation. Turning to the shooting, Whitlock testified that defendant drove Hart and herself to the Sablewood apartments, where Hart believed he had left his phone. There, Whitlock’s friend, “Biff,” expressed anger toward Whitlock’s group, because they had caused a “commotion” earlier in the day.

¶ 11 Whitlock’s group returned to the vehicle, with defendant driving, Hart in the front passenger seat, and Whitlock in the back seat. Whitlock observed that defendant had a gun on his lap. She also observed that Hart had a gun.

¶ 12 As Whitlock’s group began to drive away, someone outside the vehicle who Whitlock

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2022 IL App (2d) 210231-U could not see yelled “what.” Defendant and the person shouted back and forth. Defendant stuck his gun out of the window and started to shoot. Whitlock estimated that defendant fired four shots

as she screamed, “No, no, stop.” Hart told her to “shut the f*** up,” and Hart then sat on the window frame and began to shoot over the roof of the vehicle. Whitlock estimated that Hart fired six shots. The men then continued to fire in all directions as Whitlock “balled up” in the backseat.

She did not understand the men’s motive: “I didn’t want them to just do all this nonsense that they were doing for no reason.” When the shooting ended, Whitlock remained in the vehicle for some time. Whitlock described her eventual departure:

“We were still in the car, and I was stressing the fact that I wanted to get dropped off. And from there we dropped Deon off onto Green, and [defendant] took me to Auburn

Manor and told me that if I would say anything to the police that they would kill me and they would put a note by my body noting that they killed me because they were already going to jail for murder.”

¶ 13 Whitlock also testified that, on June 14, 2017, she provided a video-recorded statement to

police. The statement was, overall, consistent with the testimony she had just given. In the statement, Whitlock had told police that defendant and Hart may have fired 30 to 50 shots, total, and that no one fired back at them. Also on June 14, 2017, Whitlock identified both defendant and Hart from a photo lineup.

¶ 14 Danforth testified, inter alia, that, on May 24, 2017, he and other officers had responded to the scene of the crime. Among the witnesses to later provide written statements was Stacey

McCaleb. McCaleb stated that, earlier on May 24, 2017, she had been in a fight with Whitlock at

the Sablewood apartments (the “commotion” to which Biff would later refer). Then, later that day, she saw Whitlock return to the Sablewood apartments with two black males (who Danforth

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2022 IL App (2d) 210231-U believed to be defendant and Hart).

¶ 15 Danforth also testified that, on June 14, 2017, he interviewed Whitlock. Whitlock informed him that defendant and Hart shot in the direction of the Sablewood apartments for no apparent reason. This occurred after an unknown person shouted “what” at defendant and Hart. Whitlock was able to pick out defendant and Hart from a photo lineup.

¶ 16 The grand jury returned a 19-count bill of indictment, which included 16 counts of first- degree murder. The counts alleged, variously, that defendant was the shooter that proximately caused the victim’s death, that defendant fired a gun during the commission of the offense (but not

necessarily that he fired the fatal shot), that defendant was accountable for the victim’s murder, and that defendant participated in a forcible felony (aggravated discharge of a firearm) and the victim was killed in the course of that felony.

¶ 17 2. Motion to Dismiss Indictment

¶ 18 On May 29, 2018, defendant moved to dismiss the indictment pursuant to section 114-1(a) of the Code. 725 ILCS 5/114-1(a) (West 2018). He argued that the State violated his due process rights by misleading the jury. Specifically, defendant argued that the State misled the jury when it elicited that, on June 14, 2017, Whitlock gave a statement to police that was consistent with her grand jury testimony, in that she implicated defendant and Hart, but failed to disclose that, on May

25, 2017, Whitlock gave a statement to police that was inconsistent with her grand jury testimony, in that she stated that she did not know the shooters. Defendant did not reference Danforth’s testimony.

¶ 19 Hart filed a similar motion to dismiss the indictment. However, Hart also referenced

Danforth’s testimony. The State filed substantively identical responses to defendant and Hart’s motion to dismiss, and the trial court heard the motions at a joint hearing.

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¶ 20 During the hearing, both defendants contended that People v. Oliver, 368 Ill. App. 3d 690, 697 (2006), controlled. The State, in turn, urged that People v. Torres, 245 Ill. App. 3d 297, 300

(1993), was more on-point. The trial court recognized that, per Oliver, the State was not permitted to mislead a grand jury or allow a witness to testify falsely before a grand jury. The court further

recognized that, per Torres and unlike at a trial where guilt beyond a reasonable doubt is at issue, the State was not required to present exculpatory evidence to the grand jury. The court acknowledged that, because the State referenced Whitlock’s prior consistent statement but not her prior inconsistent statement, “it had some concerns.” Still, the court believed that what had occurred was more similar to a decision to withhold exculpatory evidence than to outright mislead a grand jury or allow a witness to testify falsely. As such, the court denied the motions to dismiss the indictments. The court further indicated that, even if it had granted the motions to dismiss, it would have been with leave to seek reindictment.

¶ 21 B. Trial

¶ 22 At trial, the State prosecuted defendant for first-degree murder. As stated, it pursued multiple theories, including that defendant was the shooter that fired the fatal shot, that defendant

shot a firearm during the commission of the offense, that defendant was accountable for the victim’s death, and felony murder.

¶ 23 1. The State’s Case

¶ 24 The State called three occurrence witnesses: Christine Sanders (the victim’s wife), Marshayla Whitlock (the witness who had testified before the grand jury), and Emily Arrington

(who happened to be on the grounds of the apartment complex on the day of the murder). The State also called Shaquaya Sago (defendant’s girlfriend and owner of the vehicle from which the shots were believed to have been fired) and several investigators, including Joseph Danforth, Bruce

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Voyles, Matthew Gibbons, and Mark Peters.

¶ 25 i. Christine Sanders

¶ 26 Christine Sanders, Lester Sanders’s wife, testified that she, Sanders, and a friend were watching television in the living room of their apartment. Through the screen door, they watched their children and the children from the neighboring apartment play outside. Then, they heard yelling and arguing outside. There were a lot of people outside. Christine and Sanders realized that “there could be the involvement of a gun.” Sanders stepped outside and told his own children

to get in the apartment and the neighbor children to go into their apartment. A short while later, Sanders saw that one neighbor child, a little boy, had wandered back outside. Sanders again stepped outside and shouted at the child to get inside. Sanders’s voice drew the attention of those causing the commotion. Sanders explained to them that he had only been speaking to the child.

Sanders turned around and re-entered his apartment, at which time he was shot through the screen door. Christine could not go to him immediately, because the shooters continued to fire. When the shots stopped, Christine called 9-1-1 and gave Sanders mouth-to-mouth resuscitation until the paramedics arrived.

¶ 27 On cross-examination, Christine agreed that she did not see the shooters. She was not looking outside when the shots were fired, and she did not go outside after the shots were fired.

¶ 28 ii. Marshayla Whitlock

¶ 29 Marshayla Whitlock testified that she planned to meet up with Hart and defendant at a mutual friend’s house. She had not met defendant before, though she knew him as “Bud.”

Whitlock stopped at the Sablewood apartments, a few blocks short of her destination when she got into a fist fight with another girl, Stacey McCaleb. Her friend, Biff, happened to live at or near the Sablewood apartments. As such, after the fist fight, Whitlock went into Biff’s apartment to

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2022 IL App (2d) 210231-U clean herself up.

¶ 30 Hart and defendant then arrived at Biff’s apartment. When Hart, defendant, and Whitlock

went back outside, people had gathered around. The crowd was trying to get Whitlock and McCaleb to fight again, but Whitlock refused. McCaleb’s brother said some words, and Hart drew a gun. The gun was black with an affixed laser. According to Whitlock, Hart was not pointing to

shoot, but merely to display the gun. Whitlock calmed Hart down, and she left with Hart and defendant in an SUV. ¶ 31 After driving a short way, Hart noticed that his phone was missing. Hart, defendant, and Whitlock returned to Biff’s apartment. Biff began to argue with defendant, saying “he didn’t need that stuff,” i.e., the fighting and the commotion, around his apartment. Biff was on parole and did not want trouble.

¶ 32 Defendant, Hart, and Whitlock then got back into the SUV. Defendant sat in the driver’s seat, Hart sat in the front-passenger seat, and Whitlock sat behind Hart in the back seat. Defendant was starting to drive away when Whitlock heard defendant and an unknown person shout the word

“what” at each other. Then, defendant and Hart started shooting. Defendant shot out of his open window and Hart sat on the window frame and shot over the roof of the SUV. Whitlock balled up

in the back seat and screamed at them to stop shooting. She did not know whom defendant and Hart were shooting at. The shooting lasted “a good two to three minutes.”

¶ 33 Whitlock first saw defendant with a gun while in the SUV. The gun was black without an

affixed laser. Following the shooting, Whitlock remained in the SUV with defendant and Hart for another hour. When she left the SUV, defendant told her that he would kill her if she said anything.

¶ 34 Whitlock testified to two different video-taped statements she had given to police. In the first statement, given the day after the shooting on May 25, 2017, Whitlock provided as follows.

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After her fight with McCaleb, Whitlock began to walk home. She was upset, and two men in a dark SUV, whom she did not know, asked if she was okay. A short while later, she heard about

30 gunshots. She did not know what happened. She did not know who the shooters were, and she denied knowing defendant and Hart. The detectives challenged that assertion, telling her that other witnesses had told them that she had been at the scene with defendant and Hart.

¶ 35 In the second statement, given June 14, 2017, Whitlock provided an account of the incident consistent with her trial testimony and implicated defendant and Hart in the shooting. Whitlock provided that statement to two police officers in the presence of a woman whom she referred to as

“mom”; that woman had been her guardian since she was a baby.

¶ 36 Both recorded statements were played for the jury. Whitlock testified that, in the first recording, she had lied. She explained that, at that time, defendant and Hart were not in custody and she was afraid for her life. She acknowledged that, in the second recording, she recently had been arrested in conjunction with her fight with McCaleb and, also, she had been “high” on marijuana. She testified that she was not presently “high.”

¶ 37 iii. Emily Arrington

¶ 38 Emily Arrington testified that she witnessed the shooting. Prior to the shooting, it had been a very busy and chaotic night, with more than 20 people near the premises of the apartment

complex. The people were talking and arguing. She observed the fight between Whitlock and McCaleb. She knew Whitlock but she did not know McCaleb. She saw defendant and Hart outside, but she could not recall whether she saw them before or after Whitlock’s fight. She could hear that Hart was shouting, but she could not hear whether he said anything to defendant.

¶ 39 Arrington saw a person shoot a gun from a green SUV. She believed the shooter to be

Hart, but she could not be sure, because she only saw the shooter from the back. Arrington agreed, 210239

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however, that she had told the police that she had seen Hart perform the shooting from over the roof of the SUV and that she had seen Hart and defendant in the SUV together.

¶ 40 During cross-examination, Arrington first said that she saw defendant driving the SUV. She later said she could not be sure, because Hart obscured her view. She only saw one shooter, Hart.

¶ 41 Arrington provided the police with a statement on September 14, 2017. She did so while in custody on charges of marijuana possession. She agreed to speak about the instant case if

Danforth, one of the interviewers, would agree to help her in regard to a different shooting case in which her daughter had been present. Danforth agreed, but, in actuality, he did not help her. At trial, Arrington denied several of her September 14, 2017, statements. She denied stating that Hart pulled out a gun before Sanders tried to get the children inside the apartment building and that Hart shot Sanders with no explanation.

¶ 42 iv. Shaquaya Sago

¶ 43 Sago testified that she was presently in custody for failure to respond to a subpoena in the instant case. At the time of the shooting, Sago was dating defendant. She owned a green 1999

Mitsubishi Montero SUV. Defendant had use of the SUV. He had a key, and he did not need to ask to use it. Sago knew that defendant took the SUV on the evening of the shooting, but she did not know where he was going. She herself went to a graduation party. When she returned from the graduation party, there was a note on her door to call a police detective. She did not see her

SUV; she later learned that it had already been impounded.

¶ 44 The day after the shooting, the police came to Sago’s house, and she gave them permission

to search the impounded SUV. In addition, on June 4, 2017, she went to the police station and provided the police with a written statement. She gave the statement one day after finding out that

- 10 - 2022 IL App (2d) 210231-U defendant had been cheating on her. She was six months pregnant with his child at the time and she was mad at him. ¶ 45 In the statement, Sago recounted that, the morning after the shooting, she started to get phone calls from defendant’s sister, telling her that there had been a murder and that defendant had done something stupid. When Sago got a hold of defendant, defendant denied being the shooter and told her that Hart did it. However, defendant admitted to Sago that he had been with Hart at the time of the shooting. Sago had seen defendant with a black gun in the past. ¶ 46 Presently, Sago disagreed with certain aspects of her written statement. In particular, Sago denied that defendant ever talked to her about the shooting. Rather, she learned about the shooting from detectives and from Facebook. She explained that, although she signed the written statement, she did not read the statement before signing it. She did not bother to read the statement, because she was mad at defendant. ¶ 47 She agreed, however, that she had signed an acknowledgement that she had read the statement and that the acknowledgement had also been signed by two witnesses. ¶ 48 On cross-examination, Sago testified, contrary to her statement to police, that she had never seen defendant with a gun. Danforth, the detective who had interviewed her, told her that he knew defendant had been cheating on her. Sago believed that Danforth did this to sway her against defendant. ¶ 49 v. Investigating Officers ¶ 50 Joseph Danforth testified that he interviewed Arrington and Sago. As for Arrington, Danforth testified that he showed Arrington two photo lineups. In the first lineup, she identified Hart as the shooter. In the second lineup, she identified defendant as being in what she believed to be a green jeep SUV with Hart. Further, Arrington told Danforth that Hart had gotten out over - 11 - 2022 IL App (2d) 210231-U the front-passenger window and shot over the roof of the SUV. Danforth agreed that he had promised Arrington that he would investigate the shooting case in which her daughter had been present, and, contrary to Arrington’s testimony, that he had done so. As for his interview with Sago, Danforth acknowledged that he told Sago that he knew defendant was cheating on her. Danforth typed Sago’s statement as she spoke. It was his practice to have witnesses read what he had typed before signing a statement. ¶ 51 Bruce Voyles, a Rockford police detective, testified to the security camera video footage that he recovered from the apartment complex. Several different cameras, each of which were set to record upon detecting motion, contained footage of the incident. The footage was shown to the jury. Voyles testified that, based on his training, the footage showed shots being fired from an SUV. “When the vehicle is here you see a small explosion coming from the driver’s side of the vehicle.” Voyles acknowledged that, in the video, it was unclear whether the SUV was green. (It is clear, however, that the SUV is dark in color.) ¶ 52 Danforth, Voyles, and Matthew Gibbons testified to evidence contained within Sago’s SUV. Danforth testified that he responded to the scene. He learned that the suspects’ vehicle, a green SUV, was parked nearby on Searles Avenue (Sago’s residence). He located the vehicle within one hour of the shooting. It was not hidden in any way. Voyles impounded and processed Sago’s SUV. Inside, he found sealed Nicor and ComEd bills addressed to defendant at Sago’s address. He also found Sago’s insurance papers showing that she owned the vehicle. Gibbons, a Rockford police detective, also processed Sago’s SUV. He found a spent, 40-caliber shell casing stuck to the rubber molding above the front passenger door of the SUV. Casings are hot when they are expelled, “[a]nd this casing appeared to have just rolled off the roofline and stuck in that rubber molding.” Still, it was not melted into the molding. Gibbons was able to remove the casing - 12 - 2022 IL App (2d) 210231-U simply by picking it up with his (gloved) fingers. He did not recover any latent fingerprints from the SUV. ¶ 53 Gibbons also processed evidence at the crime scene. By the time Gibbons arrived at the scene, other officers had identified items that they considered to be potential evidence. Gibbons walked through the scene with another officer to mark the items. Gibbons recovered 14 spent shell casings of two different calibers on the street near the shooting. He found two 40-caliber casings and twelve 9-millimeter casings. Gibbons informed the jury that the same firearm cannot discharge two different calibers of casings. ¶ 54 Mark Peters, the forensic pathologist who performed the autopsy testified that Sanders was killed by a single gunshot wound to the left side of his back. ¶ 55 2. Defendant’s Case ¶ 56 Defendant called Danforth, who had previously testified as a witness for the State, as his only witness. Danforth testified to his interviews of Whitlock and Arrington. As to Whitlock, Danforth testified to both the May 25, 2017, and the June 14, 2017, statements. On May 25, 2017, Whitlock denied being present during the shooting, though she admitted to being in a fight near Sablewood apartments earlier in the day. Danforth first mentioned defendant’s and Hart’s names, not Whitlock. Whitlock denied knowing defendant and Hart. However, Danforth did not accept her denials. Danforth believed Whitlock was in a dating relationship with Hart. On June 14, 2017, Whitlock was in custody on a juvenile matter (due to her fight with McCaleb). During that interview, Whitlock identified defendant and Hart as the shooters. Whitlock was presented with a photo lineup that was compiled and administered by a different officer, who was not part of the investigation and did not know which photos depicted the suspects in the case. As to Arrington, Danforth testified that he administered the photo line up, even though he was familiar with the - 13 - 2022 IL App (2d) 210231-U investigation and the suspects. This was less than ideal, but, at the time, there was no one independent of the investigation to administer the line up. ¶ 57 The jury found defendant guilty of first-degree murder in that he committed an act which he knew created a great probability of death or bodily harm. 720 ILCS 5/9-1 (a)(2) (West 2016). It also found defendant guilty of first-degree murder under a felony murder theory in that he committed a forcible felony (aggravated discharge of a firearm) and during the commission of the felony, Sanders was killed. 720 ILCS 5/9-1(a)(3) (West 2016). Further, the jury found that the State proved the following two allegations: defendant personally discharged a firearm during the commission of the offense and defendant personally discharged the firearm that proximately caused Sanders’s death. The trial court sentenced defendant to 40 years, plus a 25-year firearm enhancement based the jury’s finding that defendant personally discharged the firearm that proximately caused Sanders’s death, for a total of 65 years of imprisonment. Defendant filed an unsuccessful post-trial motion, and this appeal followed. ¶ 58 II. ANALYSIS ¶ 59 On appeal, defendant argues that: (1) the trial court erred in denying his motion to dismiss the grand jury’s indictment; (2) the evidence was not sufficient to convict for first-degree murder; and (3) even if the evidence was sufficient to convict for first-degree murder, it was at best sufficient to establish that defendant, as one of two shooters firing toward the victim, personally discharged a firearm (730 ILCS 5/5-8-1(a)(1)(d)(ii) (West Supp. 2017) (20-year enhancement)), not that he personally discharged a firearm that proximately caused the victim’s death (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West Supp. 2017) (25-year enhancement)). ¶ 60 A. Indictment - 14 - 2022 IL App (2d) 210231-U ¶ 61 Defendant argues that the trial court erred in denying his motion to dismiss the grand jury’s indictment. We begin with a general overview of grand jury proceedings. The role of the State’s Attorney’s office in grand jury proceedings is to inform the grand jury of the proposed criminal charges and the applicable law. People v. DiVincenzo, 183 Ill. 2d 239, 254 (1998), abrogated on other grounds by People v. McDonald, 2016 IL 118882 (grand jury analysis continually endorsed by Illinois courts, particularly People v. Wright, 2017 IL 119561, ¶ 61). The role of the grand jury, in turn, is to determine whether probable cause exists that the person who is the subject of the proceedings has committed a crime, thus warranting a trial. Id. The grand jury does not finally adjudicate guilt or innocence. People v. J.H., 136 Ill. 2d 1, 10 (1990). As such, grand jury proceedings are not mini-trials and the State is not bound by technical evidentiary rules and procedures applicable in a criminal trial. Id.; People v. Creque, 72 Ill. 2d 515, 527-28 (1978). For instance, the State has no duty to disclose exculpatory evidence during grand jury proceedings. Torres, 245 Ill. App. 3d at 301. “ ‘[R]equiring the [State] to present exculpatory as well as inculpatory evidence would alter the grand jury’s historical role, transforming it from an accusatory to an adjudicatory body.’ ” Id. (quoting United States v. Williams, 504 U.S. 36, 50 (1992)). ¶ 62 A defendant’s ability to challenge a grand jury indictment is limited. See DiVincenzo, 183 Ill. 2d at 255. For example, a defendant may not challenge the sufficiency of the evidence considered by a grand jury, so long as some evidence was presented. Id. An indictment returned by a legally constituted grand jury is presumed valid (id.), and a defendant may seek the dismissal of the indictment only when: (1) the dismissal is authorized under section 114-1(a) of the Code (725 ILCS 5/114-1(a) (West 2018) (dismissal warranted when, inter alia, defendant has received immunity for the defense charged, the trial court does not have jurisdiction, the charge does not - 15 - 2022 IL App (2d) 210231-U state an offense, or the grand jury was improperly selected or acted in violation of article 112 of the Code)); or (2) there is a clear denial of due process. People v. Stapinski, 2015 IL 118278, ¶ 33. ¶ 63 Here, defendant alleges that there has been a clear denial of due process. “The due process rights of a defendant may be violated if the prosecutor deliberately and intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence.” DiVincenzo, 183 Ill. 2d at 257. However, the court should exercise great restraint in exercising its power to dismiss an indictment based on an allegation that the defendant’s due process rights were violated, and it should only do so when a violation is clear and can be ascertained with certainty. Torres, 245 Ill. App. 3d at 300. Even when the violation is clear, the defendant still must establish actual and substantial prejudice. Id. The burden of proving actual and substantial prejudice rests with the defendant. Id. Prejudice is actual and substantial “only if without [the alleged misconduct] the grand jury would not have indicted the defendant.” Oliver, 368 Ill. App. 3d at 697. The court must balance the gravity of the due process violation against the strength of the evidence supporting the finding of probable cause. Id. “If the evidence was strong enough that the grand jury would have indicted the defendant despite the [State’s] misconduct, the misconduct was not prejudicial. However, if the evidence was so weak that the misconduct induced the grand jury to indict, prejudice is shown.” Id. The mere possibility that an indictment might have been avoided but for the alleged misconduct is not enough to show actual and substantial prejudice. Torres, 245 Ill. App. 3d at 301. ¶ 64 When the facts are not in dispute, we review de novo whether the defendant suffered a prejudicial denial of due process. Stapinski, 2015 IL 118278, ¶ 35. “However, once [that is determined], the trial court’s decision on the appropriate remedy—whether it be dismissal of the indictment or some other remedy—is reviewed for an abuse of discretion.” Id. Further, while a - 16 - 2022 IL App (2d) 210231-U prejudicial violation of due process need not be intentional to warrant dismissal, Oliver, 368 Ill. App. 3d at 696, a determination that State acted intentionally in presenting false or misleading evidence can inform the trial court’s decision as to whether the dismissal will be with prejudice or whether the State may seek to reindict a defendant. See People v. Hunter, 298 Ill. App. 3d 126, 131-32 (1998). Where the State willfully brings perjured testimony before the grand jury, the court is well within its discretion to dismiss the criminal charge against a defendant and prohibit the State from reindicting him. Id. Dismissing an indictment with prejudice is an extreme sanction. People v. Mattis, 367 Ill. App. 3d 432, 436 (2006). In this case, the trial court indicated that, even if it had chosen to dismiss the indictment, it would have been with leave to seek reindictment. ¶ 65 Here, the parties dispute whether the State’s presentation of the evidence at the grand jury proceedings amounted to the mere failure to present exculpatory evidence, as in Torres, or whether the State misled the jury to a degree which would warrant the dismissal of the indictment, as in Oliver. ¶ 66 In Torres, a possession-with-intent-to-deliver case, the State had presented the grand jury with evidence that defendant was apprehended while a passenger in a vehicle containing weapons and eight grams of cocaine. See Torres, 245 Ill. App. 3d at 299, 301-02. 2 However, the State did not inform the grand jury that the driver of the vehicle told police that he had just picked up