## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. SHANNON B ENNETT, D efe ndant-Appe llant.

District & N o. First District, Third Division Docke t No. 1-12-1168

Filed J uly 3, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In a murder trial, the denial of defe ndant’s motion to dismiss all charg es following the decla

ration of a mistrial was upheld, wher e the rec ord failed
to sustain his contention that the prosecu t o r’ s “dumb mistakes” wer e intended to provoke defe n d an t ’s succe ssful motion for a mistrial and

war rante d dismiss al on double jeopa rdy g rounds.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 09-CR-11 9 2 6 ; the Hon. Rosemary

Gra nt-Hig g ins, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l F. Clancy
, of L aw Offic es of Michae l F. Clancy
, L t d

. , an d Matthew McQ uaid, both of Chicag o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Peter Fische r and Marc i J acobs, A ssistant S tate’s Attorne y s, of counse l), for the People.

Panel J USTI CE HYMAN de livered the judgme nt of the cour t, with opinion. Presiding J ustice Neville and J u stice Pierce concur red in the judgme nt and opinion.

OP INION

¶ 1 During defe ndant Shannon Be nnett’s jury trial, his defe nse counsel succe ssfully moved for a mistrial ba sed on the prosec utor’s introduction of evidenc e of Be nnett’s drug dealing

. Be nnett was charg ed with 18 co u n t s o f fi rst degree murder in the 2008 shooting deaths of three people. Ha ving secur ed a mistrial, Be nnett’s counsel moved to dismiss the charg es altog ether based on double jeopar dy protec tions. Fo l lowing written submissi ons on the motion, the trial court ref used t o d i s m i s s the charg es stating, “While I find that the State made a dumb mistake, I do not believe that it was the St ate’ s intent to g oad the defe ndant into moving for a mistrial or that it was the State’s intent to seek a new trial in the hopes of
g etting a more favor able result.” Be nnett, in this interlocutory appea l, contends the trial court

err ed in deny

ing the motion to di smiss on doubl e jeopa rdy g rounds. We aff

irm.

¶ 2 Ba ckground ¶ 3 At trial, the State asser ted that Vanity Murff, L awr ence J ackson and Corey Washington

wer e shot on J une 29, 2008, in a disput e between the L akeside Gang ster Disciples and the Bla ck P Stone g ang s in reta liation for the earlier death of a fr i en d of defe ndant. The State contende d Be nnett committed the crime acc ompanied by Senica Ratliff and J ohn Wil liams, with Be nnett as the gunman, and that Ray mond Br own was friends with the victims but aided the offe nders by

letting them inside the vic tims’ buildi ng

. ¶ 4 J ere mi Br ooks testified t hat i n 2008 he was a Gangs t er Di s ci ple and knew most of the people involved in the crime, including Be nnett, whom Br ooks said was a Gang ster Disciple he knew “fr om around the neighborhood.” Br ooks said he also knew Br own from previously selling him cra ck coca ine. On the night of the shooting, Br ooks observe d Br own and Be nnett plan the crime. ¶ 5 The State’s next witness was Br own, who acknow ledg ed he had been charg ed in the case and agree d to plead guilty to conspirac y to commit first degree murder. The prosec utor asked Br own if, as part of his plea agree ment, he was place d in protec tive custody

. Def ense counsel

-2-objected and, in a sidebar discussion, counsel re qu ested a mistrial, asser ting the question implied Be nnett was a “dang erous person.” The prosec utor responde d the jury had the right
to know the circ umstances o f Br o wn’s plea agree ment. The court sustained Be nnett’s counsel’s objection, concluding the probative value of the fac t of protec tive cus t o dy wa s outweighed by its prejudicia l eff ect. The prosec utor withdrew the question. The court denied Be nnett’s m o t i on for a mistrial. Br own testified that he would likely rec eive a 12-year sentenc e in exchang e for

his plea. ¶ 6 The prosec utor then asked Br own how he knew Be nnett and if he knew Be nnett was in

a g ang in 2008. Br own responde d he knew Be nnett was a “GD” and had previously boug ht drug s from Be nnett. The defe nse objected when the prosec utor asked Br o wn h o w ma ny times he had purcha sed drug s from B ennett. The court noted that the State’s attempt to establish that Be nnett sold drug s did not prove B ennett wa s involved in a g ang

. ¶ 7 The defe nse made a second reque st for a mistrial, arguing the questioning was pre judicial
to Be nnett and the State had no t as k ed i n a motion in limine to introduce evidenc e of Be nnett’s other crimes. The prosec utor responde d that his motion to introduce g ang evidenc e encompa ssed the introduction of Be nnett’s drug activity

. The court sustained the defe nse’s objection to the evidenc e of Be nnett’s drug dealing

. The court denied the defe nse motion for a mistrial. ¶ 8 Def

ense counsel asked the court to rec onsider it s ru l i n g, as serting the State did not disclose in discovery

that it would elicit testimony from Brown about buying drug s befor e the murder. The court continued the case to the next day for further argument o n the defe nse’s motion for a

mistrial. ¶ 9 After

hearing a rgument the followingday , the court g rante d the defe nse’s reque st f or a mistrial afte r concluding the State’s quest i o n rega rding drug transac tions betwee n Br ooks and Be nnett was prejudicia l. The court went on to say : “Howe ver, 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 b o t h s ides discussed scheduling matters, and Be nnett’s counsel informed the court he planned to file a

motion to di smiss “based on double jeopa rdy .” ¶ 10 In the motion, defe nse counsel argued Be nnett’s retria l on the charg es was barr ed by the protec tion a g ainst double jeopar dy in the United States and I llinois Constitutions. Counsel
argued that by eliciting testimony from Brown reg arding protec tive custody and Benne tt’s drug dealing
, the prosec utor “intended to g ain an unfair advanta g e” over Be nnet t an d attempted “to forc e the defe nse t o reque st a mi strial to then avoid a possibl e guilty verdic t based on the taint of the misconduct.” Def ense counsel asser

ted the prosec utor intentionally
soug ht to cast Be nnett in a bad light and would eit h er obtain a guilty verdic t or a mistrial, which ar e both bene ficial outcome s for the State. ¶ 11 The State fil ed a wr i t t en re s p o n s e, asser ting the questioning of Brown about his protec tive custody status did not prejudice the defe nse and that the evidenc e of Be nnett’s drug sales to Br own did not qualify as “other crimes” evidenc e but was instead intertwined with the fac ts of the case ag ainst Be nnett. The State argued no evidenc e established that the
prosec utor eng ag ed in ac ts to lure the def ense into re questinga mistrial. ¶ 12 On April 2, 2012, the court denied Be nnett’s motion to dismiss the case ag ainst him on

-3-double jeopar dy g rounds. Noting the standard for double jeopar dy was the State’s intent to

“g et the defe ndant to reque st a mistrial,” the court stated the State did not act with that intent in attempting to elicit evidenc e of Br own’s protec t i v e cu s t ody or Be nnett’s other crimes, finding the rec ord established the State soug ht to lay a p ro per foundation for Br own’s knowledg e of B ennett’s g angaff iliation.

¶ 13 Analy sis ¶ 14 On appea l, Be nnett argues the rec ord establishes the prosec utor’s questioning of B rown

wa s i n t en d ed to forc e the defe nse i nto seeking a mi strial. Be nnett contends the prosec uto r acte d purposely in eliciting prejudicia l testimony under both l i nes of questioning and attempted to g oad the de fense into requestinga mistrial. ¶ 15 Bo t h t h e Un i t ed States and I llinois Constitutions protec t a criminal defe ndant from

succe ssive prosec utions for the same offense. U.S. Const ., amend. V; I ll. Const. 1970, art. I
, § 10. I llinois Supreme Court Rule 604(f) provides that a defe ndant may appea l to this court “the denial of a motion to dismiss a criminal proce eding on g rounds of former jeopar dy .” I ll. S. Ct. R. 604(f) ( eff

. J uly 1, 2006). Where the defe ndant, rathe r than the State, moves for a mistrial, “the defe ndant is d eeme d to have deliberately chosen to forg o his valued right to have his guilt or innocenc e deter mined befor e the first trier of fac t. People v. Nelson
, 193 I ll. 2d 216, 220-21 (2000) .” People v . Longoria , 375 I ll. App. 3d 346, 350 (2007). ¶ 16 For double jeopar dy principles to bar a retria l
, t he prosec utor must actua lly eng ag e in conduct intended to cause a defe ndant to seek a mistrial. Oregon v. Kennedy
, 456 U.S. 667, 676 (1982). I llinois courts follow the standard of intent set out in Kennedy

. See People v. Davis
, 112 I ll. 2d 78, 86 (1986); People v. Ramirez
, 114 I ll. 2d 125, 130 (1 9 86). A
prosec utor’s har assment, over rea ching , or bad f

aith does not suffice

. People e x rel. City of Chicago v. Hollins
, 368 I ll. App. 3d 934, 942 (2006) (quoting Kennedy
, 456 U.S. at 675-76). Double jeopar dy attache s only when “the pro s ec utor’s actua l intent was to ‘g oad’ the defe ndant into moving for a mistrial,” a rar e circ umstance. People ex rel. City of Chicago v. Hollins
, 368 I ll. App. 3d 934, 942 (2006). One court described t he inqui ry as not “WHAT the prosecutor did, but only WHY he [or she] did i t.” Giddons v. State , 878 A.2d 687, 706 (Md. Ct. Spec. App. 2005). ¶ 17 Be nnett does not set forth a standard of revie w to be applied in this case

. This court ha s applied an abuse of discretion standard in revie wing a trial court’s ruling on a mot i o n to dismiss charg es on double jeopar dy g rounds. People v. Griffith
, 404 I ll. App. 3d 1072, 1079 (2010); see also People v. Hill
, 353 I ll. App. 3d 961, 964 (2004); People v. Campos
, 349 I ll. App. 3 d 1 72, 174-75 (2004) (discussing and reje cting use of de novo standard)

. In these

case s, the trial court is charg ed with deter mining the intent of the prosec utor, which is a fac tual question. Campos
, 349 I ll. App. 3d at 175. The trial judg e is in a fa r better position than an appellate panel to discern and decide the intentions of the prosecutors. People v. Ortega
, 209 I ll. 2d 354, 363 (2004). “An abuse of discretion occur s only when the trial court’s decision is arbitra

ry , fanc iful, or unrea sonable to the degree that no rea sonable person would agree with it.” People v . Rivera , 2013 I L112467, ¶ 37. ¶ 18 Be n n et t co n t ends the prosec utor acte d intentionally in eliciting th e i n ad m i s s i b l e

-4-testimony and “intended to g ain an unfair a dvantag e” ove r the de fense . As the State points

out on appea l, though, that does not rise to the level of provoking the defe nse into reque sting

a mistrial. As the United States Supreme Court observe d in Kennedy
, 4 5 6 U.S

. at 674, “[e]very act on the pa

rt of a r ational prosec utor duringa trial is designed to ‘pr ejudice’ the defe ndant by

placingbefor e the judg e or jury evidenc e lea ding to a

findingof his guilt.” ¶ 19 Her e, the prosec utor did not demonstra t e an i n t ent to forc e the defe nse to reque st a mistrial. As the rec ord demonstrates, the trial court expressly reje cted the contention that the
prosec ution of

fer ed evidenc e of Be nnett’s other crimes to g oad the defe nse into r equesting

a mistrial. In concluding the State “did not eng ag e in prosec utorial overr eac hing,” the court noted the prosec utor had only prese nted the substantive testimony of two witnesses (B rooks and Br own) and it was unlikely that “the State would have wanted to start over wi t h a differ ent jury .” ¶ 20 As to the State’s questioningof B rown a bout protective c ustody , the cour t observed: “The State was g oing down a line of permissible questions normally done to provide the jury with a basis to assess the witness’ credibility

. Even though he asked o n e qu es tion
too many I do not fi n d t h at it was the State’s actua l intent to g oad the defe ndant into decla ringa mistrial.” ¶ 21 Reg arding the prosec utor’s introduction of other crimes evidenc e as to Br own, the cour t conclude d that even though the State failed to inform the defe nse it planned to introduce that evidenc e, the State did not intend to cause a mistrial. The trial court noted that althoug h the
prosec utor err ed in the method of eliciting testimony from Br own, the State’s case “appe are d to be g oing w ell” and no e vidence sug g ested the State’ s conduct wa s “aimed at g etting the defe ndant to object and r equest a mistrial.” ¶ 22 At the crux of the mistrial we re what Be nnett describes as a “lea ding que stion that was intentional and improper,” and an improper question that was a “tec hnical violation,” which he say s wer e not “ac cid en t al ” or “innoce nt” or “unintentional mistake[s] .” These char acte rizations perta in to what the prosec utor did without offe ring an explanation of why

. For instance, B ennett conte nds the prosec utor’s conduc t must have bee n intended since he

was an experience d assistant State ’ s Att o r n e y

. T h is c o urt has alre ady reje cted the “experienc e i n fo rm s i n t ent” argument. Hollins
, 368 I ll. App. 3d at 944. Be nnet also argues that the questions violated “funda mental [rules of] criminal evidenc e and proce dure” that “for m the basis for reve rsible error in many case s on appellate revie w.” Yet, he cites no case in support and ignor es the trial cour

t’s observation that “it is clear that the Sec ond District may allow such questions.” Nor does his asser tio n t h at his defe nse theory was so “unique” that on “subseque nt retria l, [he] loses the advantag e that he g ained dur ing ope ning statements and

cross-e x amination of Br ooks” car ry any weight. What this “unique” theory was he l ea v es unclea r. ¶ 23 In sum, nothing in th e re co rd demonstrates that the prosec utor intended to provoke a motion for a mistrial. “ Dumb mistakes,” as the trial court called the questions, oc cur in the midst of the harried atmosphere of a trial by able prosec utors and able defe nse counsel alike. Although the judge
, afte r thorough study
, decla red a mistrial, nothing i n the rec ord estab l i s h es any

thing approac hing the requisite int ent that Kennedy and it s prog eny require

-5-for double jeopar dy to result. As Kennedy rec og nized, “Prosec utorial conduct that might be

viewed as hara ssment or overr eac hing, even if sufficie nt to justify a mistrial on defe ndant’s motion, ther efor e, does not bar r etrial a bsent intent on the part of the prosec utor to subvert the protec tions aff

orded by the Double J eopar dy Clause.” Kennedy
, 456 U.S. at 675-76. That level of c onscious underminingof the c riminal trial proce ss is absent here

. ¶ 24 Given this rec ord, the trial court did not abuse its discretion in deter mining the prosec utor lacke d the intent to provoke the de fenda nt into seekinga mistrial. ¶ 25 Acc ording ly , the judg ment of the trial c ourt is affir med.

¶ 26 Affir

med.

-6-