from the Circuit Court of Winnebago County. No. 10-CF-543
Honorable Rosemary Collins, Judge, Presiding.
McLAREN JUSTICE delivered the judgment of the court, with
opinion. Justices Jorgensen and Spence concurred in the
judgment and 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
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
[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
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 ...