Docket No. 88186-Agenda 33-May 2000.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
TRACY GENE NELSON, Appellant.
Opinion filed September 21, 2000.
JUSTICE HEIPLE delivered the opinion of the court:
On April 23, 1997, defendant Tracy Nelson was tried beforea jury in the circuit court of Vermilion County on two counts ofaggravated criminal sexual assault (720 ILCS 5/12-14(a)(2), (a)(4)(West 1996)) and two counts of home invasion (720 ILCS5/12-11(a)(1), (a)(2) (West 1996)). Following a mistrial enteredon motion of defendant, he was again tried on January 20, 1998,and was found guilty on all four counts. For the reasons thatfollow, we reverse defendant's convictions.
On October 12, 1996, a man entered the victim's homewithout authority, beat her and forced her to perform oral sex onhim. The victim identified the defendant as her assailant, and onApril 23, 1997, defendant was tried before a jury for aggravatedcriminal sexual assault and home invasion.
During the course of that trial, the prosecutor became awareof a person (Sherry Beck) who claimed to have overheard aninculpatory statement about defendant made by his wife.Specifically, when the charges for home invasion were read,defendant's wife allegedly said, "He told me the door was open."
Two days after the State became aware of Sherry Beck,defendant called his wife as a witness in his defense. During cross-examination, the State asked defendant's wife whether, when thecharge of home invasion was read, she stated "that wasn't true, hesaid the door was unlocked." Defendant's wife denied making thestatement. Later that day, the State advised defense counsel that heintended to call Sherry Beck as a rebuttal witness to impeachdefendant's wife.
The following day, defendant moved for a mistrial. Duringoral argument on the motion, defense counsel advised that she wasunaware of this alleged statement until the State's cross-examination, and was unaware of Sherry Beck's identity until theState advised of its intention to call her as a rebuttal witness. TheState conceded the timing of the disclosures, but argued that thequestion on cross-examination was made in the hope that lightningwould strike and that the need for the rebuttal witness wasunknown until defendant's wife denied making the statement. Thetrial court granted the mistrial, finding that the prejudice from thisline of questioning outweighed its probative value.(1)
On January 20, 1998, defendant was tried again, and wasultimately convicted on all four counts. After the appellate courtaffirmed defendant's convictions in an unpublished opinion, thiscourt granted defendant's petition for leave to appeal.
In his appeal, defendant initially argues that the second trialwas precluded by the double jeopardy clause. Alternatively, heargues that a series of alleged instances of prosecutorialmisconduct requires reversal. We find that the second trial was notbarred by the constitutional protections against double jeopardy.However, we further find that two of defendant's assertions ofprosecutorial misconduct are well taken, and compel retrial.
We first address the issue of double jeopardy. Defendant didnot raise this argument at his second trial, but the State has notargued waiver to this court.(2) Defendant argues that, when the Statequestioned defendant's wife concerning a statement which was ineffect double hearsay, it did so knowing that such a statement wasinadmissible. He also argues that the State's failure to disclose theexistence of Sherry Beck until after defendant's wife testified, afull day after it learned of her existence, was an intentionaldiscovery violation. Defendant argues that these improper actswere committed to induce him to move for a mistrial. In thealternative, defendant requests that the cause be remanded for anevidentiary hearing on the prosecutor's motives in this regard.
A motion for mistrial by a defendant is deemed to be adeliberate election on his part to forgo his valued right to have hisguilt or innocence determined before the first trier of fact. Peopleex rel. Roberts v. Orenic, 88 Ill. 2d 502, 509 (1981). For doublejeopardy principles to bar a retrial, the prosecutor must actuallyintend to cause a defendant to seek a mistrial. People v.Marchbanks, 125 Ill. App. 3d 796, 798-99 (1984); People v.Townsend, 119 Ill. App. 3d 529, 531 (1983). This court hasrejected more generalized standards focusing on whether theprosecutor's conduct was in bad faith or was intended to harass adefendant. People v. Ramirez, 114 Ill. 2d 125, 130 (1986). See alsoOregon v. Kennedy, 456 U.S. 667, 674, 72 L. Ed. 2d 416, 424, 102S. Ct. 2083, 2088-89 (1982).
Here, the record does not support the assertion that theprosecutor actually intended to cause a mistrial. A prosecutor doesnot demonstrate this intent merely by offering evidence in error,even if done purposely. Ramirez, 114 Ill. 2d at 131. Moreover, therecord demonstrates that the prosecutor believed the evidence wasadmissible; he actively fought the motion for a mistrial, andbelieving the original ruling to be merely a discovery sanction,sought to submit the same evidence at the second trial. We do notbelieve the strong showing required to invoke the protectionagainst double jeopardy has been made. Nor do we believe anevidentiary hearing would be useful; the trial court listened toextended argument on the merits of the motion for mistrial, whichshed significant light on the prosecutor's thought processes andmotives. The second trial against defendant appropriately wentforward without infringement on defendant's right against beingtwice placed in jeopardy.
Defendant next argues that a series of acts constitutingprosecutorial misconduct was committed by the State, denyinghim a fair trial. The State initially responds that defendant's failureto raise these arguments at trial constitutes waiver. Defendantconcedes his failure to adequately preserve the arguments, buturges this court to consider them because they amount to plainerror.
Plain error bypasses the waiver rule. 134 Ill. 2d R. 615(a).Plain error exists when (1) the evidence is closely balanced; or (2)an error is so fundamental and of such magnitude that thedefendant was denied a fair trial. People v. Lucas, 151 Ill. 2d 461,482 (1992). While plain error will be found in either instance, wefind that both situations exist in the instant case. First, theevidence was closely balanced. The conviction rested primarily onthe identification of defendant by the victim, which wassupplemented by police testimony regarding the underlyinginvestigation. The victim conceded that she was under theinfluence of a mild sedative at the time of the incident, which inthe past has affected her by way of "disassociation" (the victim'sterm). She further described this disassociation as having the effectof making her lose time. One police officer testified that the victimrelated the time of the offense as between 6 and 6:15 p.m. Sunseton that day was at 6:18 p.m. No physical evidence linkingdefendant to the crime was introduced.
In his defense, defendant introduced alibi evidence from threewitnesses stating that defendant was with them until after sunset.One witness was able to supplement her estimate of the timelinewith an unrelated incident report she had prepared at a gas stationwith the local police at 6 p.m. After completing the incident reportshe returned to her home, which is where all of the alibi witnessestestified that defendant spent his day and early evening. Combinedwith the testimony that the crime occurred before 6:15 p.m., i.e.,during daylight hours, defendant sought to establish that he couldnot have been the perpetrator.
We find this evidence very closely balanced. Three personsaccounted for defendant's whereabouts through the day into theevening. The time of the incident was pinpointed to a 15-minuteperiod shortly before sunset. Defendant's link to the crime wasestablished through a single witness on mild sedation. While it isthe jury's province to weigh these competing facts, it can hardlybe said that reasonable juries could only draw from them aconclusion of guilt.
We also find that one of the alleged errors, concerning animproper argument to the jury, was so fundamental and of suchmagnitude that the defendant was denied a fair trial. The basis forthis finding is more fully set forth infra. Given that bothcircumstances giving rise to plain error are present with theimproper jury argument, and that one circumstance giving rise toplain error is present with all three arguments, we will addressdefendant's contentions on their merits.
Defendant's first contention of prosecutorial misconductconcerns "mug shot" evidence. During the course of the trial, theState elicited the following testimony from Officer Jack Smith:
"Q. Okay. Why did you meet with [the victim] thatday?
A. I was asked to assist Investigator Anderson whocould not be present in order to show-afford [the victim]an opportunity to look at some photographs.
Q. What kind of photographs?
A. Particular photographs that were shown to herinitially were what we call mug shots. They are in books.These are photographs that are taken when someone is-
Q. Okay.
A. in custody.
***
[Officer Smith]: She stated that-she wanted to know ifwe had by chance another photograph, because thatparticular photograph she stated it appeared to be theperson, but the hair was different, something was differentabout the hair. She thought the hair was too long in thephotograph she was looking at.
Q. So what did you do when she said that?
A. In looking at the photograph that she had depicted itwas a photograph that was dated meaning it was a couplethree years old. I checked our files and found out thatparticular person would have a more recent photograph.I then went to records and obtained a more recentphotograph of the same person and brought it to [thevictim] and showed her that particular photograph, whichwas a more updated photograph.
***
Q. Okay. And do you recall why did you meet with [thevictim] on the second time?
A. There had been a police report made involving thesame person and an opportunity arose for a newphotograph to be taken of the same person that [thevictim] had pointed out on the two earlier occasions."
When identification is a material issue at trial, testimonyrelating the use of mug shots in an investigation may be introducedto show how a defendant was initially linked to the commission ofan offense. However, mug shot evidence tending to inform the juryof a defendant's commission of other, unrelated criminal actsshould not be admitted. People v. Arman, 131 Ill. 2d 115, 123(1989). Here, the jury was informed in a not-so-subtle manner thatdefendant had had mug shots taken on three different occasions,with enough time in between to affect how he looked in thephotos. The testimony also implied that the most recentphotograph was taken at a time proximate to the commission ofthe underlying incident. This is precisely the type of evidenceprohibited by Arman. Nor do we view this as harmless error.When admitted in error, "mug shot" evidence will not warrant areversal when competent evidence establishes the defendant's guiltbeyond a reasonable doubt, and it can be concluded that retrialwithout the challenged evidence would produce no different result.Arman, 131 Ill. 2d at 124. Given the close nature of the evidence,jury speculation as to what might have led to three separate arrests(including one near the time of the underlying crime) could havebeen the difference between conviction and acquittal. Theadmission of the mug shot evidence was reversible error.
Defendant next contends that the State misled the jury duringclosing argument concerning the timing of the incident. Duringclosing argument, defense counsel's principal theme was that thecrime took place before sunset, and that three alibi witnessesaccounted for defendant's whereabouts until after sunset. Insupport of this theme, defense counsel called upon the jury to relyon, inter alia, the victim's testimony in this regard.
The State then led off its rebuttal argument as follows:
"One problem, think back to yesterday. Despite what[defense counsel] wants you to say [the victim] never toldus what time, because she didn't know. She never saidbetween six and 6:15. [Defense counsel] stands up hereand says again and again through [her] argument six to6:15, but [the victim] never said it. She never gave us atime. *** We don't know what time it happened, because[the victim] doesn't know what time it happened, becauseshe couldn't tell us."
In actuality, during the second trial the victim was never askedthe time of the incident. However, she gave the followingtestimony during her first trial:
"Q. Okay. As best you can estimate about what time ofday was this?
A. It had to be like in between six and 6:30.
Q. Could it have been later?
A. I don't-I don't think so.
Q. Okay. Could it have been earlier?
A. No.
Q. And you know that because?
A. Because of the phone calls I made and when I laiddown."
This was the only testimony given by the victim concerning thetime of the incident.
Defendant argues that the prosecutor misled the jury when heargued that the victim did not know when the attack occurred. Inso arguing, he asserts that the prosecutor made statements he knewto be false, given the victim's testimony in the prior trial.
We agree that, if the prosecutor actually remembered thistestimony, his argument would have been improper. However, wealso believe defendant imputes too much knowledge on theprosecutor from the short testimony given nine months prior.Indeed, defense counsel (who also represented defendant at thefirst trial) apparently forgot this testimony; despite the heavyreliance on the time frame, defense counsel asked no questions ofthe victim to clarify the timing of the incident. While we agree thatthe State's principal role is procure justice, we do not forget thata criminal trial is an adversarial one. We will not impute a duty onthe State to remember and secure favorable testimony for thedefendant in a situation such as this; that is the role of defensecounsel. Nor will we presume an improper motive on the part ofthe prosecutor absent more to suggest the same. The State'sargument to the jury in this regard was a fair one, given theevidence adduced at the second trial.
Defendant's final assertion of prosecutorial misconduct alsoconcerns the State's rebuttal argument. The prosecutor culminatedthat argument by stating the following:
"When we get down to it and the case gets into yourhands, you took an oath to well and truly try the issues inthis case. We've all taken oaths. [Defense counsel] and Itook an oath when we became lawyers. The Judge took asimilar oath-took an oath when he became a judge. Wepresent our cases. We argue it to you. The witnesses tookan oath and told you what they said.
The Judge will instruct you on the law, but you took anoath to well and truly try the issues. And part of that oathis what you come in here you don't just forget everythingyou learned in your entire life. You bring in here yourobligation to judge it on your common sense. And youroath is to enforce the law when the law has been provenif the evidence proves it.
Whenever a jury acquits a person who has been provenguilty they don't follow their oaths. And if you let thedefendant, Tracy Nelson, walk out of this courtroom onthis evidence I would suggest you have not lived up toyour oaths.
Many lawyers thank the jury at this point. I don't. I'mnot going to thank you today, because you haven't earnedthat thanks yet. You earn the thanks of the People of theState of Illinois when you rule on the evidence and find inthis case on this evidence the defendant guilty. Only whenyou have come to your verdict have you finished your job.
And you are now the people that you read about in thepaper all the time those people-how could they let thatguy go? How could they convict [sic] that guy? You'rethose people now.
And I would suggest your oaths require you on theevidence here, *** you can see that the defendant isguilty. And I would suggest your oaths require you to findhim guilty on this evidence."
As noted above, defendant failed to preserve his objection tothis argument. We have already held that the evidence was closelybalanced, compelling us to consider defendant's argument underthe plain error rule. With regard to this particular argument, wealso find that the error was so fundamental and of such magnitudethat the defendant was denied a fair trial.
Indeed, this argument is wholly inappropriate. In People v.Kidd, 175 Ill. 2d 1, 50-51 (1996), we recognized this type ofargument as constituting prosecutorial misconduct. Other courtshave come to the same conclusion. Our own appellate court hasheld that remarks regarding a jury violating its oath by acquittinga defendant are inappropriate. People v. Castaneda, 299 Ill. App.3d 779, 786 (1998). The Supreme Court of New Jersey has notedthat, "[R]emarks implying that jurors will violate their oaths ifthey fail to convict *** are improper. [Citations.] *** Althoughthe prosecution in a criminal case may use forceful language insumming up the State's case [citation], it may not, as here,explicitly tell the jurors that they are obligated by their oath toreturn a particular verdict." State v. Pennington, 119 N.J. 547, 576,575 A.2d 816, 831 (1990). The Florida Court of Appeals, whenfaced with a prosecutor who argued that a verdict for a defendantwould be "in violation of your oath [sic] as jurors," quoted itssupreme court when it ruled that " '[u]ltimate deductions from theevidence are for the jury to draw. Counsel may argue whatdeductions in his judgment the evidence would reasonablysupport, but under no circumstances is he warranted in offeringdogmatic statements as to what the evidence proves.' " Redish v.State, 525 So. 2d 928, 930-31 (Fla. App. 1988), quoting Carlile v.State, 176 So. 862, 864 (Fla. 1937).
In Kidd, this court held that a similar argument made duringthe sentencing hearing of a capital case was prosecutorialmisconduct. However, we concluded that the defense's promptobjection and the trial judge's instruction to disregard thecomment cured the error. Here, on the other hand, there was noobjection, and no curative instruction. This fundamental error castssignificant doubt on the reliability of the jury's verdict. Incombination with the erroneous mug shot testimony, it cannot besaid that defendant received a fair trial. His convictions musttherefore be reversed.
Although we find the evidence in this case to be closelybalanced, we nevertheless hold, after a thorough review of therecord, that the evidence was sufficient to support defendant'sconvictions, hence permitting retrial. In so holding, however, wemake no conclusion as to defendant's guilt that would be bindingon retrial. See People v. Placek, 184 Ill. 2d 370, 390-91 (1998).
The judgments of the appellate court and circuit court arehereby reversed and the cause remanded to the circuit court forfurther proceedings.
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.
1. 1There was initially some ambiguity as to whether the mistrial wasgranted simply as a discovery sanction for failure to timely disclose thestatement, causing prejudice to the defense. On re-trial, the courtclarified that it had ruled the statement substantively inadmissible, andon Defendant's motion in limine barred the State from pursuing this lineof questioning.
2. 2The State argued waiver to the appellate court but that courtaddressed the double jeopardy issue on the merits, finding the failure toraise the argument amounted to plain error.