Appeal from the Circuit Court of Lake County. No. 97--CF--3159 Honorable John T. Phillips, Judge, Presiding.
Bowman, P.J., and Hutchinson, J., concur.
The opinion of the court was delivered by: Justice Thomas
Defendant, Dwayne Wilson, appeals the trial court's denial of his motion to dismiss based upon grounds of double jeopardy. The defendant had been charged, along with two co-defendants, with home invasion and with four counts of armed robbery. The defendant claims that the State's actions during his first trial forced him to request a mistrial and that the State's actions amounted to overreaching, which barred his retrial. The trial court denied defendant's motion, finding that the State had done nothing to provoke a mistrial. Defendant now timely appeals pursuant to Supreme Court Rule 604(f) (145 Ill. 2d R. 604(f)).
The charges against defendant arose from an incident occurring on November 22, 1997. On that date, three armed men entered the home of Stephanie Brown around 1 a.m. and robbed Jamaul Brown, Phillip Conver, and Lashun Price. Defendant and two co-defendants, Scott Johnson and Glen Johnson, were charged in connection with the incident. During the grand jury proceedings against the three men, Officer Lawrence Wade testified that he had investigated the November 22, 1997, home invasion. Wade had interviewed Stephanie Brown, who had identified defendant and his co-defendants as the three perpetrators. Wade's police report indicated that Stephanie told him that Glen and Scott Johnson had entered her home along with "Wayne Bang," a/k/a defendant, Dwayne Wilson. Officer Wade's report indicated that Stephanie had picked defendant's picture out of a photo lineup and that defendant's picture was in position No. five. Officer Wade later filed a supplemental police report, correcting his prior report, to show that defendant's picture was in position No. six and that Stephanie had picked No. six as defendant's picture.
Co-defendant Glen Johnson entered into a fully negotiated guilty plea on April 20, 1998, and was sentenced to 14 years' imprisonment. The record does not indicate whether Scott Johnson was tried or entered into a plea agreement. Defendant's claims of prosecutorial overreaching at his trial concerned the testimony of four witnesses, Phillip Conver, Jamaul Brown, Lashun Price, and co-defendant Glen Johnson. Specifically, defendant contends that the State wanted to induce co-defendant Glen Johnson to testify against defendant. Due to delays in transporting Johnson from the Department of Corrections to the Lake County jail, however, the State could not make a deal with Johnson prior to defendant's trial and needed more time to negotiate with Johnson. Defendant alleges that, because the State needed more time, it informed defendant immediately prior to trial that Conver, Brown, and Price could identify defendant as one of the perpetrators, even though the State knew that this was not true, in order to provoke defendant into requesting a mistrial.
The facts relevant to defendant's appeal are as follows. Prior to a May 21, 1997, status hearing in defendant's case, Assistant State's Attorney O'Keefe and defense counsel were in the hall outside the courtroom with Stephanie Wilson. Because of the confusion in Officer Wade's report regarding Stephanie's identification of defendant from the photo lineup, O'Keefe and defense counsel showed her the photo lineup again. Stephanie identified defendant's picture. Jamaul Brown was in the area when Stephanie was shown the photo lineup. After defense counsel had left the area, Jamaul looked at the lineup, pointed to defendant's picture, and said to O'Keefe, "[I]s that Dwayne Wilson?" O'Keefe answered yes.
At the end of the day on June 5, 1998, the State notified defense counsel that Phillip Conver had identified defendant from a photographic lineup that morning. In addition, on June 8 or 9, 1998, O'Keefe told defense counsel about his exchange with Jamaul Brown outside the courtroom on May 21, 1997, because he wanted to make defense counsel aware of the exchange. At a court appearance on June 8, 1998, defense counsel informed the trial court that the State had told him just three days earlier that Conver could identify defendant. The trial court said that it would consider giving defense counsel additional time to prepare his case. Defense counsel stated that he thought he could "go beyond that because I don't believe that the witness actually made that particular statement."
Assistant State's Attorney Morrison explained to the court that Conver had previously been tendered to defense counsel as a witness and that defense counsel had been given reports of a statement made by Conver referring to "Wayne" as one of the perpetrators. Morrison also indicated that the State had taken Conver's statement at such a late date and had obtained an identification from Conver in response to information that defense counsel had given the State. Specifically, defense counsel told the State that he had spoken with Conver and said that Conver denied that the third person in Stephanie Brown's home was defendant. Accordingly, the State showed Conver some photographs and advised defense counsel of Conver's identification as soon as it was obtained. Defense counsel again stated that he did not need more time to prepare for trial, and the trial date was set for June 10, 1998.
After the jury was picked but prior to the start of defendant's trial on June 10, 1998, defense counsel informed the trial court that two additional witnesses had been disclosed that morning as potential eyewitnesses, namely, Lashun Price and Jamaul Brown. Defense counsel then sought to renew a previously filed motion to quash and suppress identification as to Price and Brown on the ground that their identification was tainted.
In response to defense counsel's motion, Assistant State's Attorney O'Keefe stated that Lashun Price could be put aside because Price could not identify defendant. With regard to Jamaul Brown, O'Keefe explained that he had notified defense counsel of his conversation with Jamaul outside the courtroom at the May 21, 1997, status hearing. Assistant State's Attorney Morrison informed the court that the State would not seek an out-of-court identification from Jamaul but instead would ask Jamaul only to identify defendant in court. O'Keefe explained that Jamaul had not identified defendant because, at the time of the incident, Jamaul had not been shown a photo lineup and had not been asked to make an identification. The trial court ruled that Jamaul could not testify that day and that he should be made available for defense counsel to interview at the end of the day, and it set defendant's motion to quash for hearing the next afternoon. Defendant's trial then commenced.
As part of its case in chief, the State called Phillip Conver as a witness. Conver testified that he was 16 years old and that Stephanie Brown and Jamaul Brown were his cousins. Conver said that on November 22, 1997, he was at his cousins' house with Stephanie, Jamaul, Lashun Price, and Jamaul's four-year-old brother, Oris. Around 1 a.m., Conver heard a knock on the back door and went to answer it. Conver looked through the peephole and saw Glen Johnson, whom Conver had seen before. Conver unlocked the door, and Scott Johnson entered the room with a shotgun in his hand. Scott made everyone get on the ground. Conver did not see anyone else at that time, but he knew that Glen was with Scott because he had seen Glen at the door. Conver said that, after he was on the ground, someone else came into the apartment, but he could not see the person. He knew the person was a male because the person spoke to him, but Conver did not recognize the person's voice.
The State then asked for leave to treat Conver as a hostile witness, stating that his testimony was a complete surprise. Morrison explained that, in two different statements given to the State's investigators, Conver had identified defendant as the third person and had stated that he could see defendant. Assistant State's Attorney O'Keefe also stated that Conver's father was in court and was looking at Conver, exerting some form of pressure. The trial court denied the State's request.
Conver then testified that he remembered speaking with Dennis Pensala, an investigator from the State's Attorney's office, on March 5, 1998. Conver denied that in his interview with Pensala he had referred to the third perpetrator as a person named "Wayne Bang." Conver denied that he had ever met a person named Dwayne Wilson. Conver said that he had met the person referred to as Wayne but denied that Wayne was in the courtroom.
Conver testified that he again met with Pensala on June 5, 1998. Conver claimed that he was shown a photographic lineup and that Pensala or someone with him said "doesn't this person right here look like Wayne?" Conver said that he answered yes even though he had never seen the person. Conver denied that he had pointed to defendant's picture on his own. Conver denied telling Pensala that the person in the picture was known to him as Wayne Bang, denied telling Pensala that he had ...