                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Bennett, 2013 IL App (1st) 121168




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    SHANNON BENNETT, Defendant-Appellant.



District & No.             First District, Third Division
                           Docket No. 1-12-1168


Filed                      July 3, 2013


Held                       In a murder trial, the denial of defendant’s motion to dismiss all charges
(Note: This syllabus       following the declaration of a mistrial was upheld, where the record failed
constitutes no part of     to sustain his contention that the prosecutor’s “dumb mistakes” were
the opinion of the court   intended to provoke defendant’s successful motion for a mistrial and
but has been prepared      warranted dismissal on double jeopardy grounds.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CR-11926; the
Review                     Hon. Rosemary Grant-Higgins, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Michael F. Clancy, of Law Offices of Michael F. Clancy, Ltd., and
Appeal                      Matthew McQuaid, both of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Peter Fischer and Marci
                            Jacobs, Assistant State’s Attorneys, of counsel), for the People.


Panel                       JUSTICE HYMAN delivered the judgment of the court, with opinion.
                            Presiding Justice Neville and Justice Pierce concurred in the judgment
                            and opinion.



                                              OPINION

¶1          During defendant Shannon Bennett’s jury trial, his defense counsel successfully moved
        for a mistrial based on the prosecutor’s introduction of evidence of Bennett’s drug dealing.
        Bennett was charged with 18 counts of first degree murder in the 2008 shooting deaths of
        three people. Having secured a mistrial, Bennett’s counsel moved to dismiss the charges
        altogether based on double jeopardy protections. Following written submissions on the
        motion, the trial court refused to dismiss the charges stating, “While I find that the State
        made a dumb mistake, I do not believe that it was the State’s intent to goad the defendant
        into moving for a mistrial or that it was the State’s intent to seek a new trial in the hopes of
        getting a more favorable result.” Bennett, in this interlocutory appeal, contends the trial court
        erred in denying the motion to dismiss on double jeopardy grounds. We affirm.

¶2                                             Background
¶3          At trial, the State asserted that Vanity Murff, Lawrence Jackson and Corey Washington
        were shot on June 29, 2008, in a dispute between the Lakeside Gangster Disciples and the
        Black P Stone gangs in retaliation for the earlier death of a friend of defendant. The State
        contended Bennett committed the crime accompanied by Senica Ratliff and John Williams,
        with Bennett as the gunman, and that Raymond Brown was friends with the victims but aided
        the offenders by letting them inside the victims’ building.
¶4          Jeremi Brooks testified that in 2008 he was a Gangster Disciple and knew most of the
        people involved in the crime, including Bennett, whom Brooks said was a Gangster Disciple
        he knew “from around the neighborhood.” Brooks said he also knew Brown from previously
        selling him crack cocaine. On the night of the shooting, Brooks observed Brown and Bennett
        plan the crime.
¶5          The State’s next witness was Brown, who acknowledged he had been charged in the case
        and agreed to plead guilty to conspiracy to commit first degree murder. The prosecutor asked
        Brown if, as part of his plea agreement, he was placed in protective custody. Defense counsel


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       objected and, in a sidebar discussion, counsel requested a mistrial, asserting the question
       implied Bennett was a “dangerous person.” The prosecutor responded the jury had the right
       to know the circumstances of Brown’s plea agreement. The court sustained Bennett’s
       counsel’s objection, concluding the probative value of the fact of protective custody was
       outweighed by its prejudicial effect. The prosecutor withdrew the question. The court denied
       Bennett’s motion for a mistrial. Brown testified that he would likely receive a 12-year
       sentence in exchange for his plea.
¶6         The prosecutor then asked Brown how he knew Bennett and if he knew Bennett was in
       a gang in 2008. Brown responded he knew Bennett was a “GD” and had previously bought
       drugs from Bennett. The defense objected when the prosecutor asked Brown how many times
       he had purchased drugs from Bennett. The court noted that the State’s attempt to establish
       that Bennett sold drugs did not prove Bennett was involved in a gang.
¶7         The defense made a second request for a mistrial, arguing the questioning was prejudicial
       to Bennett and the State had not asked in a motion in limine to introduce evidence of
       Bennett’s other crimes. The prosecutor responded that his motion to introduce gang evidence
       encompassed the introduction of Bennett’s drug activity. The court sustained the defense’s
       objection to the evidence of Bennett’s drug dealing. The court denied the defense motion for
       a mistrial.
¶8         Defense counsel asked the court to reconsider its ruling, asserting the State did not
       disclose in discovery that it would elicit testimony from Brown about buying drugs before
       the murder. The court continued the case to the next day for further argument on the
       defense’s motion for a mistrial.
¶9         After hearing argument the following day, the court granted the defense’s request for a
       mistrial after concluding the State’s question regarding drug transactions between Brooks
       and Bennett was prejudicial. The court went on to say: “However, since I find that there was
       no intent by the State, we can pick another jury right now, if you like.” The court and counsel
       for both sides discussed scheduling matters, and Bennett’s counsel informed the court he
       planned to file a motion to dismiss “based on double jeopardy.”
¶ 10       In the motion, defense counsel argued Bennett’s retrial on the charges was barred by the
       protection against double jeopardy in the United States and Illinois Constitutions. Counsel
       argued that by eliciting testimony from Brown regarding protective custody and Bennett’s
       drug dealing, the prosecutor “intended to gain an unfair advantage” over Bennett and
       attempted “to force the defense to request a mistrial to then avoid a possible guilty verdict
       based on the taint of the misconduct.” Defense counsel asserted the prosecutor intentionally
       sought to cast Bennett in a bad light and would either obtain a guilty verdict or a mistrial,
       which are both beneficial outcomes for the State.
¶ 11       The State filed a written response, asserting the questioning of Brown about his
       protective custody status did not prejudice the defense and that the evidence of Bennett’s
       drug sales to Brown did not qualify as “other crimes” evidence but was instead intertwined
       with the facts of the case against Bennett. The State argued no evidence established that the
       prosecutor engaged in acts to lure the defense into requesting a mistrial.
¶ 12       On April 2, 2012, the court denied Bennett’s motion to dismiss the case against him on

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       double jeopardy grounds. Noting the standard for double jeopardy was the State’s intent to
       “get the defendant to request a mistrial,” the court stated the State did not act with that intent
       in attempting to elicit evidence of Brown’s protective custody or Bennett’s other crimes,
       finding the record established the State sought to lay a proper foundation for Brown’s
       knowledge of Bennett’s gang affiliation.

¶ 13                                            Analysis
¶ 14        On appeal, Bennett argues the record establishes the prosecutor’s questioning of Brown
       was intended to force the defense into seeking a mistrial. Bennett contends the prosecutor
       acted purposely in eliciting prejudicial testimony under both lines of questioning and
       attempted to goad the defense into requesting a mistrial.
¶ 15        Both the United States and Illinois Constitutions protect a criminal defendant from
       successive prosecutions for the same offense. U.S. Const., amend. V; Ill. Const. 1970, art.
       I, § 10. Illinois Supreme Court Rule 604(f) provides that a defendant may appeal to this court
       “the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy.” Ill.
       S. Ct. R. 604(f) (eff. July 1, 2006). Where the defendant, rather than the State, moves for a
       mistrial, “the defendant is deemed to have deliberately chosen to forgo his valued right to
       have his guilt or innocence determined before the first trier of fact. People v. Nelson, 193 Ill.
       2d 216, 220-21 (2000).” People v. Longoria, 375 Ill. App. 3d 346, 350 (2007).
¶ 16        For double jeopardy principles to bar a retrial, the prosecutor must actually engage in
       conduct intended to cause a defendant to seek a mistrial. Oregon v. Kennedy, 456 U.S. 667,
       676 (1982). Illinois courts follow the standard of intent set out in Kennedy. See People v.
       Davis, 112 Ill. 2d 78, 86 (1986); People v. Ramirez, 114 Ill. 2d 125, 130 (1986). A
       prosecutor’s harassment, overreaching, or bad faith does not suffice. People ex rel. City of
       Chicago v. Hollins, 368 Ill. App. 3d 934, 942 (2006) (quoting Kennedy, 456 U.S. at 675-76).
       Double jeopardy attaches only when “the prosecutor’s actual intent was to ‘goad’ the
       defendant into moving for a mistrial,” a rare circumstance. People ex rel. City of Chicago v.
       Hollins, 368 Ill. App. 3d 934, 942 (2006). One court described the inquiry as not “WHAT
       the prosecutor did, but only WHY he [or she] did it.” Giddons v. State, 878 A.2d 687, 706
       (Md. Ct. Spec. App. 2005).
¶ 17        Bennett does not set forth a standard of review to be applied in this case. This court has
       applied an abuse of discretion standard in reviewing a trial court’s ruling on a motion to
       dismiss charges on double jeopardy grounds. People v. Griffith, 404 Ill. App. 3d 1072, 1079
       (2010); see also People v. Hill, 353 Ill. App. 3d 961, 964 (2004); People v. Campos, 349 Ill.
       App. 3d 172, 174-75 (2004) (discussing and rejecting use of de novo standard). In these
       cases, the trial court is charged with determining the intent of the prosecutor, which is a
       factual question. Campos, 349 Ill. App. 3d at 175. The trial judge is in a far better position
       than an appellate panel to discern and decide the intentions of the prosecutors. People v.
       Ortega, 209 Ill. 2d 354, 363 (2004). “An abuse of discretion occurs only when the trial
       court’s decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable person
       would agree with it.” People v. Rivera, 2013 IL 112467, ¶ 37.
¶ 18        Bennett contends the prosecutor acted intentionally in eliciting the inadmissible

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       testimony and “intended to gain an unfair advantage” over the defense. As the State points
       out on appeal, though, that does not rise to the level of provoking the defense into requesting
       a mistrial. As the United States Supreme Court observed in Kennedy, 456 U.S. at 674,
       “[e]very act on the part of a rational prosecutor during a trial is designed to ‘prejudice’ the
       defendant by placing before the judge or jury evidence leading to a finding of his guilt.”
¶ 19       Here, the prosecutor did not demonstrate an intent to force the defense to request a
       mistrial. As the record demonstrates, the trial court expressly rejected the contention that the
       prosecution offered evidence of Bennett’s other crimes to goad the defense into requesting
       a mistrial. In concluding the State “did not engage in prosecutorial overreaching,” the court
       noted the prosecutor had only presented the substantive testimony of two witnesses (Brooks
       and Brown) and it was unlikely that “the State would have wanted to start over with a
       different jury.”
¶ 20       As to the State’s questioning of Brown about protective custody, the court observed:
           “The State was going down a line of permissible questions normally done to provide the
           jury with a basis to assess the witness’ credibility. Even though he asked one question
           too many I do not find that it was the State’s actual intent to goad the defendant into
           declaring a mistrial.”
¶ 21       Regarding the prosecutor’s introduction of other crimes evidence as to Brown, the court
       concluded that even though the State failed to inform the defense it planned to introduce that
       evidence, the State did not intend to cause a mistrial. The trial court noted that although the
       prosecutor erred in the method of eliciting testimony from Brown, the State’s case “appeared
       to be going well” and no evidence suggested the State’s conduct was “aimed at getting the
       defendant to object and request a mistrial.”
¶ 22       At the crux of the mistrial were what Bennett describes as a “leading question that was
       intentional and improper,” and an improper question that was a “technical violation,” which
       he says were not “accidental” or “innocent” or “unintentional mistake[s].” These
       characterizations pertain to what the prosecutor did without offering an explanation of why.
       For instance, Bennett contends the prosecutor’s conduct must have been intended since he
       was an experienced assistant State’s Attorney. This court has already rejected the “experience
       informs intent” argument. Hollins, 368 Ill. App. 3d at 944. Bennet also argues that the
       questions violated “fundamental [rules of] criminal evidence and procedure” that “form the
       basis for reversible error in many cases on appellate review.” Yet, he cites no case in support
       and ignores the trial court’s observation that “it is clear that the Second District may allow
       such questions.” Nor does his assertion that his defense theory was so “unique” that on
       “subsequent retrial, [he] loses the advantage that he gained during opening statements and
       cross-examination of Brooks” carry any weight. What this “unique” theory was he leaves
       unclear.
¶ 23       In sum, nothing in the record demonstrates that the prosecutor intended to provoke a
       motion for a mistrial. “Dumb mistakes,” as the trial court called the questions, occur in the
       midst of the harried atmosphere of a trial by able prosecutors and able defense counsel alike.
       Although the judge, after thorough study, declared a mistrial, nothing in the record
       establishes anything approaching the requisite intent that Kennedy and its progeny require


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       for double jeopardy to result. As Kennedy recognized, “Prosecutorial conduct that might be
       viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s
       motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert
       the protections afforded by the Double Jeopardy Clause.” Kennedy, 456 U.S. at 675-76. That
       level of conscious undermining of the criminal trial process is absent here.
¶ 24       Given this record, the trial court did not abuse its discretion in determining the prosecutor
       lacked the intent to provoke the defendant into seeking a mistrial.
¶ 25       Accordingly, the judgment of the trial court is affirmed.

¶ 26       Affirmed.




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