People v. Barfield
State: Illinois
Court: 5th District Appellate
Docket No: 5-96-0250
Case Date: 06/02/1997
Rule 23 Order filed
April 16, 1997;
Motion to publish granted
June 2, 1997. NO. 5-96-0250
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jackson County.
)
v. ) No. 95-CF-74
)
KUMASI J. BARFIELD, ) Honorable
) Kimberly L. Dahlen,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
JUSTICE HOPKINS delivered the opinion of the court:
Defendant, Kumasi J. Barfield, appeals from the decision of
the circuit court of Jackson County denying his motion to dismiss
the charge against him of armed robbery. Defendant filed the
motion to dismiss this charge, claiming that it was barred on the
grounds of double jeopardy. Defendant claims that he was formerly
tried before a jury on the same charge and that the trial court,
Honorable David W. Watt Jr., presiding, improperly granted the
State's motion for a mistrial over defendant's objection. On
appeal, we consider whether the trial court abused its discretion
in granting the mistrial. We affirm.
DEFENDANT'S DUTY TO PROVIDE AN ADEQUATE RECORD
We note initially that defendant has not provided this court
with a complete transcript of the jury trial that ended in a
mistrial. Defendant's request for the report of the proceedings
asks the court reporters to prepare only the transcript of the
hearing on defendant's motion to dismiss and the portion of the
jury trial consisting of the last witness through the end of the
trial. Additionally, it appears that defendant submitted the same
incomplete record of the jury trial to the trial court, Honorable
Kimberly J. Dahlen presiding, on defendant's motion to dismiss.
It is defendant's duty as the appellant to provide this court
with a complete record from which we may review his claims of
error. People v. Schuppert, 217 Ill. App. 3d 715 (1991). Without
an adequate record, the court of review is required to presume
"every reasonable intendment against defendant," and "[a]ny factual
questions concerning the adequacy of the evidence against defendant
must therefore be resolved against the defendant." Schuppert, 217
Ill. App. 3d at 717. On review, where the record is inadequate to
resolve the factual disputes, the court addresses only the legal
questions presented by the appeal. Schuppert, 217 Ill. App. 3d at
717; see also Supreme Court Rule 608 (134 Ill. 2d R. 608). In the
case at bar, we will address the factual questions to the extent of
our ability to do so with an incomplete record.
FACTS
We summarize the evidence from the portion of the jury trial
defendant has provided. On the second day of the jury trial on the
charge of armed robbery, Carbondale Police Detective Donald T.
Barrett testified that he investigated an armed robbery that
occurred on February 10, 1995. Barrett interviewed defendant and
two other suspects after the robbery. According to Barrett,
defendant told him about where he was and whom he was with on the
night of the robbery, and defendant's version of the events of that
night was consistent with the versions given by the other two
suspects. Barrett also testified that the robbery victim
"identified Mr. Barfield from a show-up line-up as being the person
that actually committed the robbery with the gun" but that the
victim could not identify the other two persons who were involved.
During cross-examination of Barrett, Paul Christenson,
defendant's attorney, began questioning Barrett and arguing to the
court, in the presence of the jury, about a videotape of defendant
and the two other suspects. The videotape was allegedly made in
the Old Town Liquor store shortly after the robbery but could not
be found at the time of trial. The court sustained all of the
State's objections to the relevance of the videotape.
Christenson then asked Barrett what time the robbery occurred,
to which Barrett responded that he checked with the Bank of
Carbondale officials and that they "pulled the records from the ATM
machine and it showed--." The State objected to the testimony
regarding the ATM records on the grounds of hearsay, and the trial
court sustained the objection. Defense counsel continued to ask
questions of Barrett concerning the time of the robbery, to which
Barrett continued to respond about the ATM records, and objections
were made and sustained each time. Finally, Barrett responded that
the robbery victim listed the time of the robbery between 8 and
8:15 p.m.
After this answer by Barrett, the following exchange occurred:
"MR. CHRISTENSON [defense attorney]: Between 8:00 and
8:15?
WITNESS: Yes sir, I believe that's what he testified.
Q: Even though the bank records say 8:19 when he
withdrew the--
MR. HAMROCK [Assistant State's Attorney]: Objection,
facts not in evidence.
THE COURT: Mr. Christenson, the bank records are
hearsay. They are not admissible *** and the jury is
instructed to disregard any reference to bank records.
MR. CHRISTENSON: Well, it was 8:19--
MR. HAMROCK: Objection, Your Honor.
THE COURT: Mr. Christenson.
MR. CHRISTENSON: Your honor, I have documents to show--
THE COURT: Mr. Christenson, it is hearsay. It is not
admissible. You do it again, you are in contempt of court.
MR. CHRISTENSON: Excuse me, I thought the time of the
robbery was important.
MR. HAMROCK: Objection, commentary, Your Honor.
THE COURT: Ask your next question."
Christenson then went back to questioning Barrett about the
videotape, to which the court again sustained the State's
objection. Christenson then began to argue with the court about
the videotape, but the court instructed Christenson "to avoid any
questions about the videotape." Christenson requested to make an
offer of proof, which the court decided to allow after Christenson
finished cross-examining Detective Barrett. Christenson continued
to cross-examine Barrett, asking nine additional questions
regarding the alleged videotape, to which four objections by the
State were sustained by the court.
Defense counsel next attempted to question Detective Barrett
about a property release form from the Jackson County sheriff's
office. However, Barrett did not know anything about the property
release form, and the court ruled that defendant failed to lay the
proper foundation to have this exhibit admitted into evidence.
After Barrett finished his testimony, the State rested its
case. Defense counsel did not ask the court to conduct an offer of
proof in regards to the videotape. Defendant rested without
presenting any evidence on his behalf.
After defendant rested his case, the State made a motion for
mistrial. As grounds for the mistrial, the State argued that
defense counsel improperly asked questions about the ATM records,
the property release form, and the allegedly missing videotape.
The State argued: "[Defense counsel] placed all of this before the
jury in improper form and has attempted, in the People's view,
through his questioning to present evidence to the trier of fact
which is not in this record and cannot be considered by them, and
I believe that he has tainted this jury."
The court took a recess and then asked the prosecuting
attorney whether there was any way, short of mistrial, to resolve
these problems. The State argued that no limiting instructions or
other cautionary measures would be sufficient to cure the error,
since defense counsel ignored the court's rulings by continuing to
ask questions about these matters after the court sustained the
State's objections. Christenson objected to a mistrial; he
conceded that some of his references may have been "highly
improper," but he argued that the errors did not demand a mistrial.
The trial judge stated that an instruction to the jury to disregard
the improper evidence would be insufficient, since defense counsel
asked the same improper questions two or three times after the
court sustained objections.
After hearing the parties argue their respective positions,
the court ruled as follows:
"THE COURT: Well Counsel, in a search for truth it is a
two way street, and the People are just as entitled to a fair
trial as is the defendant. And not individually, but
cumulatively the Bank of Carbondale [ATM records], the
property release form from the Jackson County Sheriff's
Department and the reference to the tape, this Court believes
cumulatively are sufficient to grant the State's motion, and
the Court is going to declare a mistrial."
After the mistrial, the State again charged defendant with the
crime of armed robbery, based upon the same facts. Defendant filed
a motion to dismiss the charge and filed a memorandum in support of
the motion to dismiss. Defendant attached only a transcript for
the portion of the jury trial from Detective Barrett's testimony
through the end of the trial, including the motion to dismiss.
Defendant also attached a transcript for a portion of his
attorney's cross-examination of "Officer Hampton." The following
is a portion of Hampton's testimony:
"MR. CHRISTENSON: Good afternoon, Officer Hampton. I am
Paul Christenson. I am defense counsel. I also need to ask
you a few questions. I want to get the timing right. The ATM
robbery, do you know that ATM machine where he got the $20 was
at 8:19 when he got that?
OFFICER HAMPTON: I am not aware of that, no."
At the hearing on defendant's motion to dismiss, Christenson
argued, before Judge Dahlen, that the mistrial was not manifestly
necessary for several reasons: (1) that the motion for a mistrial
was an attempt by the State to salvage a weak case that did not
prove defendant guilty beyond a reasonable doubt; (2) that the ATM
records were not hearsay because they were not offered to prove the
truth of the matter; (3) that the court's instruction to the jury
to disregard any references to the ATM records was sufficient to
cure any error; (4) that the court should have told the jury to
disregard the references to the videotape but did not; and (5) that
the State was not prejudiced by defense counsel's references to the
property release form. Defendant did not argue that the trial
court hindered him in any way from presenting witnesses from the
sheriff's office, the bank, or Old Town Liquors.
The court denied defendant's motion to dismiss, finding as
follows:
"THE COURT: The trial judge in this case explored the
possibility of giving an instruction to the jury ***, and at
points [in] time had given instructions to the jury. However,
even though he instructed the jury, questions kept coming on
the same issues. The Defendant obviously has the utmost right
not to be tried twice for the same offense. But the State
also, as was stated by Judge Watt, has a right to a fair trial
also and, in this instance, the Prosecution was not accused of
misconduct, in any way. The Court, on its own didn't ask for
a mistrial. The Court *** had considered everything in the
record, had considered everything that had taken place,
indicated that the cumulative violations of the judge's
evidentiary rulings cautioned his decision that an impartial
verdict could not be reached in this matter.
***
*** There were innuendoes, although innuendoes in
reference to what transpired in the pages and pages of
questions after objections were sustained, the innuendoes all
could lead a reasonable person to believe that there was a
coverup of some sort but there was no proper evidence before
the jury to support any of that."
The court found that Judge Watt did not abuse his discretion
in declaring a mistrial and that the mistrial was manifestly
necessary, and accordingly, the court denied defendant's motion to
dismiss. Defendant appeals from that ruling.
DISCUSSION
The court may properly declare a mistrial whenever there is a
manifest necessity to do so or the ends of justice would be
defeated unless a mistrial is granted. People v. Vilt, 139 Ill.
App. 3d 868, 873 (1985). In Illinois v. Somerville, 410 U.S. 458,
35 L. Ed. 2d 425, 93 S. Ct. 1066 (1973), the United States Supreme
Court concluded that the question of whether to grant a mistrial is
a matter within the sound discretion of the trial judge and that
double jeopardy does not arise unless that discretion is abused.
Somerville, 410 U.S. at ___, 35 L. Ed. 2d at ___, 93 S. Ct. at
1069. A trial judge properly exercises his discretion in declaring
a mistrial if an impartial verdict cannot be reached or, upon
review, a verdict of conviction would have to be reversed due to
obvious procedural error. Somerville, 410 U.S. at ___, 35 L. Ed.
2d at ___, 93 S. Ct. at 1070; Vilt, 139 Ill. App. 3d at 873.
The trial judge is best situated to make an intelligent
decision regarding the need for a mistrial in any given case.
Somerville, 410 U.S. at 462, 35 L. Ed. 2d at ___, 93 S. Ct. at
1069; People v. Chaffin, 49 Ill. 2d 356, 362 (1971); People v.
Cooper, 210 Ill. App. 3d 427, 433 (1991). The law recognizes that
judges are not clairvoyant and that his or her determination that
the jury could not render an impartial verdict may or may not be
correct. "However, the overriding interest in the even-handed
administration of justice requires that a reviewing court accord
the highest degree of respect to a trial judge's evaluation of the
likelihood that the impartiality of one or more jurors may have
been affected by an improper line of questioning." Vilt, 139 Ill.
App. 3d at 873 (citing Arizona v. Washington, 434 U.S. 497, 54 L.
Ed. 2d 717, 98 S. Ct. 824 (1978)). The trial judge's discretion is
not only broad but must be applied flexibly to the unique situation
of each individual case. Cooper, 210 Ill. App. 3d at 433.
In the case at bar, defendant argues that Judge Watt abused
his discretion in declaring a mistrial because the State was not
prejudiced by defense counsel's improper conduct and because less
drastic alternatives were available to deal with the problem.
Defendant breaks his argument into three sections corresponding to
the three grounds for mistrial stated by the court, the ATM
records, the videotape, and the property release form from the
sheriff's office. We decline to address these arguments
separately, since the judge specifically stated when he granted the
mistrial that the errors were not sufficient individually to
necessitate a mistrial but that cumulatively these errors made a
mistrial necessary.
We find that the trial court did not abuse its discretion in
declaring a mistrial. First, without a record of the entire jury
trial, we cannot say that other grounds for the trial court's
decision do not exist in other parts of the record. Second, the
record we have supports the trial judge's finding that defense
counsel refused to abide by his rulings and continued to ask
questions and make statements in the jury's presence regarding
evidence that the court had clearly ruled inadmissible. A trial
attorney cannot be permitted to obtain by misconduct a result he
has failed to obtain by proper use of the rules of evidence.
People v. Lucas, 58 Ill. App. 3d 541, 549 (1978). The portion of
the record included on appeal supports the trial judge's finding
that a cautionary instruction to the jury would not cure the error
under the circumstances of this case.
Accordingly, we affirm Judge Dahlen's denial of defendant's
motion to dismiss the charge against him on the grounds of double
jeopardy, and we remand this case to the trial court for further
proceedings.
Affirmed and remanded.
KUEHN, P.J., and WELCH, J., concur.
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