Appeal from the Circuit Court of St. Clair County. No. 96-CF-1240 Honorable Jan V. Fiss, Judge, presiding.
The opinion of the court was delivered by: Justice Kuehn
The rule of law handed down in Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), has been with us since 1976. Despite unrelenting change in criminal procedure over the past 25 years, its prohibition against comment on post-arrest silence has endured. Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244. Hence, its teaching spans a course of time that encompasses the entire work history for most prosecutors, even those with long and notable careers like the prosecutor in charge of this case.
On April 5, 1999, a St. Clair County jury was sworn, and the defendant's trial on the charge of first-degree murder began. The prosecutor rose to his feet and addressed the jury with opening remarks. Among them was a comment about what happened when the defendant was taken to the police station. He told the jury that the defendant was taken to the police department, where he exercised his right to remain silent "under what's called Miranda [sic] ***."
The comment drew a prompt objection, followed by the defendant's request for a mistrial. The prosecutor responded to the request:
"Judge, there's no way I can tell this jury how the parents-how the foster mother got [to the police station] and why DCFS [the Department of Children and Family Services] was called. He obviously called and asked for DCFS to come and asked for his foster mom. *** If you want to strike [the reference to Miranda], that's fine. I just wanted to put it in context."
Thus, it appeared that the comment upon the defendant's post-arrest silence was not delivered in ignorance of the law's ban on such a comment. Nor did it appear to be an innocent slip of the tongue. The prosecutor seemed to acknowledge a conscious decision to inform the jury that the defendant had exercised the right to remain silent because he felt that it would provide the jury with a better understanding of how and why the defendant's foster parent appeared at the police station and subsequently engaged in conversation with the defendant. The prosecutor seemed to harbor a belief that Doyle's prohibition against comment on post-arrest silence could find an exception where the rule's violation could help to provide context for other events.
Although the trial judge was not convinced that the comment on Miranda needed to be made, he decided to deny the defendant's motion for a mistrial. Thereafter, he promptly admonished the jury to disregard the comment. The trial continued. The State called Mary Leflore to the witness stand. She was the defendant's foster parent. She was a key witness for the prosecution, as she was present during the shooting that led to this murder charge. Her direct and cross-examination completed the trial's first day. The next morning, when the trial judge asked if the State was ready to proceed, the following colloquy occurred in chambers:
"[Assistant State's Attorney]: Judge, I wanted to bring to the Court's attention[-]*** I've done some research on *** the comments that I made in opening statement regarding the defendant's invoking his Miranda rights.
It appears, your Honor, *** that my statements were, in fact, prosecutorial error, *** and we would end up having to retry this case again [sic].
I would ask the Court to reconsider [defense counsel's] motion for mistrial at this time based upon *** prosecutorial error on my part[.] *** [T]he appellate court would reverse that and we would be back here again having to retry this case.
So I would ask the Court to reconsider his motion for mistrial at this time.
[Defense counsel]: Your Honor, is the State making a motion to mistry this case?
[Assistant State's Attorney]: No, your Honor, I'm asking the Court to reconsider [defense counsel's] motion for mistrial.
I'm saying, Judge, that it was an error on my part, it was not misconduct by any stretch of the imagination[;] I did not intentionally do that[;] I had no reason to sabotage my case or sabotage this case to try to get a mistrial.
Obviously, *** I was trying to get the link, the reason why Mary Leflore talked to the defendant. It was error on my part to do so. I'm coming to this Court as an officer of the Court and telling the Court that it was prosecutorial error, it is going to get reversed on appeal, and [defense counsel] moved for a mistrial, and the Court denied that motion, and I'm asking *** the Court to reconsider his motion for mistrial. I'm not asking for one[;] I'm asking the Court to reconsider his motion, or the Court sua sponte can ask for his own mistrial.
[Defense counsel]: This is coming back. I knew this-I knew this was going to happen this morning[.] [L]ast night when I was at the ball game, I sat there with my old man[,] and he said there isn't an appellate court justice in this state that will allow that to stand.
[Assistant State's Attorney]: I agree, Judge. It's going to come back on reversal. I'm asking the Court to reconsider ...