People v. Brown

2017 IL App (2d) 160971

92 N.E.3d 968

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Marissa L. BROWN, Defendant–Appellant.

No. 2–16–0971

Appellate Court of Illinois, Second District.

Opinion filed December 18, 2017

Craig M. Sandberg, of Muslin & Sandberg, of Chicago, for appellant.

Joseph P. Bruscato, State's Attorney, of Rockford (Patrick Delfino, Lawrence M. Bauer, and Marshall M. Stevens, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 This is the third appeal by defendant, Marissa L. Brown. In her first appeal, we vacated her convictions of three counts of felony disorderly conduct ( 720 ILCS 5/26–1(a)(4) (West 2010)) (making a false report to public employees) because the Winnebago County circuit court had improperly allowed the State to remove a juror with a peremptory challenge after the trial had started. We further granted her request for a new trial. In her second appeal, we affirmed the trial court's denial of defendant's motion to dismiss the remaining counts on double-jeopardy grounds. In this third appeal, we again review the trial court's denial of a motion to dismiss the remaining counts on double-jeopardy grounds: defendant asserted that the prosecutor intentionally sought to goad her to move for a mistrial. That is, she asserts that retrial is barred due to intentional prosecutorial overreaching. The State argues that multiple grounds for affirmance exist. We agree, and we thus affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant originally had a jury trial on four counts of felony disorderly conduct. Each count alleged that, on January 5, 2010, defendant, who had no reasonable basis to believe that an offense had occurred, had told a public employee or peace officer that she had been the victim of an aggravated assault. (Defendant had reported that someone had come into the restroom of Rockford's Roosevelt Alternative High School while she was there and had threatened her with a handgun.) Each of the counts was based on an allegation that a different person had heard defendant's report: Roosevelt principal Angela Hite Carter, Rockford schools employee Ellen Van Horn, law-enforcement officer Patrice Turner, and law-enforcement officer Courtney Tillmon–Listhrop.

¶ 4 The parties disagreed whether the jury should hear about possible links between defendant's case and the fatal shooting by Rockford police officers of a man, Mark Barmore, whom they were pursuing. Defendant witnessed the shooting, which occurred in the church of which her parents were the pastors. The State sought to exclude evidence relating to the shooting as irrelevant, while defendant argued that excluding everything related to it would deprive the jury of necessary context. The court ruled for the State and barred both parties from putting on any evidence that mentioned or alluded to the shooting or that mentioned "the name of any family member not previously disclosed to the People in the defense's trial witness list."

¶ 5 Jury selection for the trial was superficially unremarkable. The witnesses, whose names the court read at voir dire , had no evident connection to the Barmore case, and none of the selected jurors disclosed significant ties to any of the witnesses or to defendant. Neither the court nor either party mentioned the names of defendant's parents to the potential jurors, and none of the questions asked of the potential jurors related to the Barmore case. However, unbeknownst to the court or the parties, one juror selected, Carl Posley, was Barmore's cousin.

¶ 6 Carter, the principal of defendant's school, was the State's first witness. She testified that defendant's parents had come to her office and had reported an incident. Based on what she heard, she called two other school employees into the office. With defendant's parents and one employee, Van Horn, present, Carter telephoned defendant, identifying herself and mentioning the presence of defendant's parents but not that of Van Horn. Carter initially had difficulty talking to defendant, who was evidently upset. Eventually, defendant told Carter that someone had come into a school restroom while she was in it, waved a gun at her, and told her to "shut the f-u-c-k up." In addressing Carter, the State referred to defendant's parents as "the Browns." On cross-examination, defense counsel educed evidence that Carter knew defendant's parents and was aware that they were pastors of a local church. The colloquy suggests that defense counsel had asked Carter to identify defendant's mother in the courtroom audience and that the State had not objected to this.

¶ 7 The court called a recess when the State's second witness finished testifying. On reconvening, the court told the parties that a juror had told the bailiff that he had a connection to the Barmore case:

"THE COURT: We do have another issue, though. We have a juror who indicated that after [defense counsel] pointed out who the parents were and their position in the community, then he did recognize, uh, the parents of [defendant] as the pastors of a church, uh, that his cousin, uh, was shot at and killed."

The prosecutor responded that she "would think that we have an issue for cause at this point." The court agreed that that might be so and had Posley brought into the courtroom so that it could question him. Posley told the court that he had never had any contact with defendant or her parents but was aware of their tie to the shooting. However, he did not think that his connection to Barmore would affect his impartiality. The State suggested to Posley that he was upset; Posley responded that the incident had been traumatic, but he continued to assert his ability to be impartial.

¶ 8 The court allowed Posley to leave the courtroom, and the court and the parties considered the proper response:

"[THE STATE]: Judge, given the * * * Motions in Limine * * * there is no way that, um, this juror would not have information about that incident. * * * [W]e're asking that he be excused and an alternate be seated.

[DEFENSE COUNSEL]: Well, we do not agree with that, Your Honor. * * * [H]ad this come up in voir dire and he had said exactly what he had said here—that he could put it out of his mind, that he could be fair, that he would judge this same way had it not happened—I do not believe Your Honor would strike him for cause, having been asked those. * * * And we would object to removing him.

THE COURT: Well, you are right. I don't know that I would have struck him for cause, um, but I think that there is a chance that the State would have used a peremptory. * * * [T]hat's why the Court [granted] the motion * * * that there would be no referral to the Barmore case. * * *

Um—(pauses)—so, State, you are asking me to let you exercise a peremptory challenge at this time?

[THE STATE]: Yes, Your Honor.

* * * And we would absolutely have used a peremptory had this information come forward, * * * and we are asking to do that at this point.

THE COURT: * * *

This information was brought out * * * as a result of * * * [the] defense attorney's behavior, uh who had these people identified in court, * * * made a—fairly large deal of the fact that they were pastors in a local church, and, uh—and, in fact, had a witness identify them in court. So it is certainly an issue that I think should have been brought to the Court's attention ahead of time * * *. * * *

Over defense objection I'm gonna allow the State to use a peremptory."

The court seated an alternate juror, and the trial resumed with testimony from another of the State's witnesses.

¶ 9 The State's evidence tended to show that defendant made allegedly false reports twice. She made the first when Carter called her; Van Horn was a witness to at least some of that conversation. Defendant made the second report in-person to Turner and Tillmon–Listhrop, the law-enforcement officers. The school and the police investigated defendant's reports and concluded that they were false, largely because security recordings from a camera near the bathroom failed to show anyone resembling the assailant whom defendant had described. After the State rested, defendant testified. She described being threatened in the bathroom by a person with a gun.

¶ 10 The jury found defendant guilty on three of the four counts but acquitted her on the count alleging a false report to Van Horn. Defendant moved for a new trial, arguing, inter alia , that the court "erred in allowing the State to dismiss[ ] Mr. Posley[ ] as a juror[ ] because he was the cousin of Mark Baremore [sic ]." She further argued that the court erred in allowing the State to use a peremptory challenge after the jury was sworn and the trial had started. The court denied defendant's motion, and she appealed.

¶ 11 On appeal, defendant "pray[ed for] an Order * * * reversing her conviction[s] * * * and ordering a new trial." We held that Posley's removal was structural error, thus mandating "automatic reversal." People v. Brown , 2013 IL App (2d) 111228, ¶ 30, 371 Ill.Dec. 147, 989 N.E.2d 737. In reaching our conclusion, we rejected the State's argument that the error was harmless because the trial court had the discretion to remove Posley for cause and because nothing suggested that the alternate who replaced Posley was biased; we concluded, among other things, that "the court [had] suggested that it was leaning against removal for cause." Brown , 2013 IL App (2d) 111228, ¶ 31, 371 Ill.Dec. 147, 989 N.E.2d 737. We vacated defendant's convictions and granted defendant's request for a new trial on those counts. Brown , 2013 IL App (2d) 111228, ¶ 30, 371 Ill.Dec. 147, 989 N.E.2d 737.

¶ 12 On remand, defendant, who had retained new counsel, moved to dismiss the remaining counts as barred under, inter alia , double-jeopardy principles. The court denied the motion, and defendant filed an appeal under Illinois Supreme Court Rule 604(f) (eff. Feb. 6, 2013) (permitting...