The opinion of the court was delivered by: Justice Heiple
On April 23, 1997, defendant Tracy Nelson was tried before a jury in the circuit court of Vermilion County on two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2), (a)(4) (West 1996)) and two counts of home invasion (720 ILCS 5/12-11(a)(1), (a)(2) (West 1996)). Following a mistrial entered on motion of defendant, he was again tried on January 20, 1998, and was found guilty on all four counts. For the reasons that follow, we reverse defendant's convictions.
On October 12, 1996, a man entered the victim's home without authority, beat her and forced her to perform oral sex on him. The victim identified the defendant as her assailant, and on April 23, 1997, defendant was tried before a jury for aggravated criminal sexual assault and home invasion.
During the course of that trial, the prosecutor became aware of a person (Sherry Beck) who claimed to have overheard an inculpatory 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 the charge of home invasion was read, she stated "that wasn't true, he said the door was unlocked." Defendant's wife denied making the statement. Later that day, the State advised defense counsel that he intended to call Sherry Beck as a rebuttal witness to impeach defendant's wife.
The following day, defendant moved for a mistrial. During oral argument on the motion, defense counsel advised that she was unaware of this alleged statement until the State's cross-examination, and was unaware of Sherry Beck's identity until the State advised of its intention to call her as a rebuttal witness. The State conceded the timing of the disclosures, but argued that the question on cross-examination was made in the hope that lightning would strike and that the need for the rebuttal witness was unknown until defendant's wife denied making the statement. The trial court granted the mistrial, finding that the prejudice from this line of questioning outweighed its probative value. *fn1
On January 20, 1998, defendant was tried again, and was ultimately convicted on all four counts. After the appellate court affirmed defendant's convictions in an unpublished opinion, this court granted defendant's petition for leave to appeal.
In his appeal, defendant initially argues that the second trial was precluded by the double jeopardy clause. Alternatively, he argues that a series of alleged instances of prosecutorial misconduct requires reversal. We find that the second trial was not barred by the constitutional protections against double jeopardy. However, we further find that two of defendant's assertions of prosecutorial misconduct are well taken, and compel retrial.
We first address the issue of double jeopardy. Defendant did not raise this argument at his second trial, but the State has not argued waiver to this court. *fn2 Defendant argues that, when the State questioned defendant's wife concerning a statement which was in effect double hearsay, it did so knowing that such a statement was inadmissible. He also argues that the State's failure to disclose the existence of Sherry Beck until after defendant's wife testified, a full day after it learned of her existence, was an intentional discovery violation. Defendant argues that these improper acts were committed to induce him to move for a mistrial. In the alternative, defendant requests that the cause be remanded for an evidentiary hearing on the prosecutor's motives in this regard.
A motion for mistrial by a defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact. People ex rel. Roberts v. Orenic, 88 Ill. 2d 502, 509 (1981). For double jeopardy principles to bar a retrial, the prosecutor must actually intend 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 has rejected more generalized standards focusing on whether the prosecutor's conduct was in bad faith or was intended to harass a defendant. People v. Ramirez, 114 Ill. 2d 125, 130 (1986). See also Oregon v. Kennedy, 456 U.S. 667, 674, 72 L. Ed. 2d 416, 424, 102 S. Ct. 2083, 2088-89 (1982).
Here, the record does not support the assertion that the prosecutor actually intended to cause a mistrial. A prosecutor does not demonstrate this intent merely by offering evidence in error, even if done purposely. Ramirez, 114 Ill. 2d at 131. Moreover, the record demonstrates that the prosecutor believed the evidence was admissible; he actively fought the motion for a mistrial, and believing the original ruling to be merely a discovery sanction, sought to submit the same evidence at the second trial. We do not believe the strong showing required to invoke the protection against double jeopardy has been made. Nor do we believe an evidentiary hearing would be useful; the trial court listened to extended argument on the merits of the motion for mistrial, which shed significant light on the prosecutor's thought processes and motives. The second trial against defendant appropriately went forward without infringement on defendant's right against being twice placed in jeopardy.
Defendant next argues that a series of acts constituting prosecutorial misconduct was committed by the State, denying him a fair trial. The State initially responds that defendant's failure to raise these arguments at trial constitutes waiver. Defendant concedes his failure to adequately preserve the arguments, but urges this court to consider them because they amount to plain error.
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 the defendant was denied a fair trial. People v. Lucas, 151 Ill. 2d 461, 482 (1992). While plain error will be found in either instance, we find that both situations exist in the instant case. First, the evidence was closely balanced. The conviction rested primarily on the identification of defendant by the victim, which was supplemented by police testimony regarding the underlying investigation. The victim conceded that she was under the influence of a mild sedative at the time of the incident, which in the past has affected her by way of "disassociation" (the victim's term). She further described this disassociation as having the effect of making her lose time. One police officer testified that the victim related the time of the offense as between 6 and 6:15 p.m. Sunset on that day was at 6:18 p.m. No physical evidence linking defendant to the crime was introduced.
In his defense, defendant introduced alibi evidence from three witnesses stating that defendant was with them until after sunset. One witness was able to supplement her estimate of the timeline with an unrelated incident report she had prepared at a gas station with the local police at 6 p.m. After completing the incident report she returned to her home, which is where all of the alibi witnesses testified that defendant spent his day and early evening. Combined with the testimony that the crime occurred before 6:15 p.m., i.e., during daylight hours, defendant sought to establish that he could not have been the perpetrator.
We find this evidence very closely balanced. Three persons accounted for defendant's whereabouts through the day into the evening. The time of the incident was pinpointed to a 15-minute period shortly before sunset. Defendant's link to the crime was established through a single witness on mild sedation. While it is the jury's province to weigh these competing facts, it can hardly be said that reasonable juries could only draw from them a conclusion of guilt.
We also find that one of the alleged errors, concerning an improper argument to the jury, was so fundamental and of such magnitude that the defendant was denied a fair trial. The basis for this finding is more fully set forth infra. Given that both circumstances giving rise to plain error are present with the improper jury argument, and that one circumstance giving rise to plain error is present with all three arguments, we will address defendant's contentions on their merits.
Defendant's first contention of prosecutorial misconduct concerns "mug shot" evidence. During the course of the trial, the State elicited the ...