{ "id": 1026018, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL TATE, Defendant-Appellant", "name_abbreviation": "People v. Tate", "decision_date": "2000-11-09", "docket_number": "No. 5-99-0420", "first_page": "272", "last_page": "283", "citations": [ { "type": "official", "cite": "317 Ill. App. 3d 272" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "565 N.E.2d 975", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "978" } ], "opinion_index": 0 }, { "cite": "141 Ill. 2d 163", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238477 ], "year": 1990, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0163-01" ] }, { "cite": "512 N.E.2d 40", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "43" } ], "opinion_index": 0 }, { "cite": "159 Ill. App. 3d 56", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3612412 ], "year": 1987, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0056-01" ] }, { "cite": "456 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189962 ], "weight": 15, "year": 1982, "pin_cites": [ { "page": "676" }, { "page": "424-25" }, { "page": "2089" }, { "page": "675" }, { "page": "424" }, { "page": "2089" }, { "page": "679" }, { "page": "427" }, { "page": "2091" }, { "page": "675" }, { "page": "424" }, { "page": "2089" }, { "page": "676" }, { "page": "424-25" }, { "page": "2089" } ], "opinion_index": 0, "case_paths": [ "/us/456/0667-01" ] }, { "cite": "423 N.E.2d 934", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "935" } ], "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 946", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3111903 ], "year": 1981, "pin_cites": [ { "page": "947-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0946-01" ] }, { "cite": "610 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "40" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820340 ], "year": 1992, "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0414-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 6, "year": 1976, "pin_cites": [ { "page": "617" }, { "page": "97" }, { "page": "2244" } ], "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] } ], "analysis": { "cardinality": 1019, "char_count": 27326, "ocr_confidence": 0.718, "pagerank": { "raw": 9.356698607941946e-08, "percentile": 0.5141075792449675 }, "sha256": "6407bd016b7afba8b01fbba5557accd1df4a561c62217e22cdb35c3ef8adffe9", "simhash": "1:e222962005838ba0", "word_count": 4646 }, "last_updated": "2023-07-14T15:16:30.528913+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL TATE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KUEHN\ndelivered the opinion of the court:\nThe 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 postarrest 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.\nOn April 5, 1999, a St. Clair County jury was sworn, and the defendant\u2019s 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 \u201cunder what\u2019s called Miranda [sic].\u201d\nThe comment drew a prompt objection, followed by the defendant\u2019s request for a mistrial. The prosecutor responded to the request:\n\u201cJudge, there\u2019s no way I can tell this jury how the parents \u2014 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\u2019s fine. I just wanted to put it in context.\u201d\nThus, it appeared that the comment upon the defendant\u2019s postar-rest silence was not delivered in ignorance of the law\u2019s 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\u2019s foster parent appeared at the police station and subsequently engaged in conversation with the defendant. The prosecutor seemed to harbor a belief that Doyle\u2019s prohibition against comment on postarrest silence could find an exception where the rule\u2019s violation could help to provide context for other events.\nAlthough the trial judge was not convinced that the comment on Miranda needed to be made, he decided to deny the defendant\u2019s 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\u2019s 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\u2019s first day. The next morning, when the trial judge asked if the State was ready to proceed, the following colloquy occurred in chambers:\n\u201c[Assistant State\u2019s Attorney]: Judge, I wanted to bring to the Court\u2019s attention[ ]*** I\u2019ve done some research on *** the comments that I made in opening statement regarding the defendant\u2019s invoking his Miranda rights.\nIt appears, your Honor, *** that my statements were, in fact, prosecutorial error, *** and we would end up having to retry this case again [sic].\n^ ;j<\nI would ask the Court to reconsider [defense counsel\u2019s] 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.\nSo I would ask the Court to reconsider his motion for mistrial at this time.\n* * sfi\n[Defense counsel]: Your Honor, is the State making a motion to mistry this case?\n[Assistant State\u2019s Attorney]: No, your Honor, I\u2019m asking the Court to reconsider [defense counsel\u2019s] motion for mistrial.\n* * *\nI\u2019m 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.\nObviously, *** 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\u2019m 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\u2019m asking *** the Court to reconsider his motion for mistrial. I\u2019m not asking for one[;] I\u2019m asking the Court to reconsider his motion, or the Court sua sponte can ask for his own mistrial.\n* \u2756\n[Defense counsel]: This is coming back. I knew this \u2014 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\u2019t an appellate court justice in this state that will allow that to stand.\n[Assistant State\u2019s Attorney]: I agree, Judge. It\u2019s going to come back on reversal. I\u2019m asking the Court to reconsider [defense counsel\u2019s] motion for mistrial.\nTHE COURT: Anything else\u2014\n[Defense counsel]: Judge, *** to suggest that it was anything less than an intentional act, I mean, you know, was it an accident? I mean he knows what he is saying. He\u2019s responsible. He\u2019s tried a bunch of cases. I\u2019m not saying that you intended to put error in, but you intended to say what you said. Was it an accident?\n* *\n[Assistant State\u2019s Attorney]: Judge, it was an accident, I did not intend to say that, it slipped, it was an error, and the only reason it came out, Judge, is because I was trying to link up Mary Leflore talking to the defendant.\ni'fi ^\nThere was no reason in an opening statement for me to do this to my case. [T]he Court *** has heard the opening and heard evidence!;] it\u2019s a relatively strong case for the State ***. *** [T]here\u2019s no reason for me to do that in opening statement ***. *** [T]here was nothing that was detrimental to the People at that stage, and additionally!,] judge, there was no bad faith, and I\u2019ll take an oath, and I\u2019ll go on the record if the Court wants me to do that, and I will say that.\n[Defense counsel]: I\u2019m not asking you to do that ***.\n[Assistant State\u2019s Attorney]: I\u2019m telling the Court it was not intentional!;] it was not done in bad faith. I would ask the Court to make a finding that it was, in fact, prosecutorial error, as opposed to prosecutorial misconduct or overreaching, and, as I said, I will\u2014 [defense counsel] had every right to ask for a mistrial[;] the Court should have granted it[;] I should have conceded the motion for mistrial at that time. It was error on my part, and like I said, I want to be fair to the defendant and he\u2019s got every right *** to have a different jury.\nIf he wants a mistrial, again, I think the Court should grant the mistrial!,] and I would ask you to reconsider his motion for one.\n[Defense counsel]: The thing that the State seems to be overlooking in this regard is *** the procedure that\u2019s been employed ***. *** [D]uring the last 24 hours the State has had the benefit of eliciting the testimony of Mary Leflore and seeing how she would perform in the presence of the jury.\nI think we all agree that *** you could ask her if she had ten fingers and ten toes, she would have had to have counted them first.\n* * *\nMy point is this, your Honor, to have a witness go in the dumper on you and then say oh, well, we better start again, we opposed the motion for mistrial yesterday, our witness goes to shit on us, and, you know, we\u2019ll come in and concede error the next day. I would ask that the Court construe this as the State now making a motion to mistry the case.\nIt really doesn\u2019t matter procedurally, because this will be the subject of a motion to dismiss based on double jeopardy grounds, which I will be preparing if the Court grants the motion, which I think it has to do.\n* * *\nTHE COURT: *** We\u2019re all honorable men here, and *** the Court finds that there was not any prosecutorial misconduct or overreaching or any bad faith, and I don\u2019t think that the \u2014 I don\u2019t believe that defense counsel is suggesting that. That would be outrageous^] and I don\u2019t want it in my courtroom unless there is some solid evidence for that. But I don\u2019t believe that [defense counsel] is saying that to begin with.\n[Defense counsel]: No, that\u2019s not what I\u2019m saying, Judge ***. I\u2019m saying that the effect is the same.\nTHE COURT: *** I don\u2019t have any misgivings as to any strategy about having Mary Leflore, and what she had to say and all this stuff, or that there\u2019s any nexus between that and what occurred as far as this Mirandized statement is concerned. But again, I don\u2019t think the defense is suggesting that either.\nSo, we\u2019re all friends here[;] I will reconsider or sua sponte\u00ed;] I don\u2019t know that it makes a difference\u2014\n[Assistant State\u2019s Attorney]: I\u2019m assuming *** that [defense counsel] still wishes the mistrial. Obviously, it\u2019s his right to if he wants to withdraw that ***. I\u2019m not going to suggest that[;] that\u2019s up to him ***.\nTHE COURT: We\u2019ll beat a dead horse and nobody wants to do that. So I will grant the mistrial.\u201d\nThe trial ended. Thereafter, the defendant filed a motion to dismiss. It sought to bar further proceedings based upon the former-jeopardy clauses of the United States and Illinois Constitutions. U.S. Const., amend. V; Ill. Const. 1970, art. I, \u00a7 10. The trial judge denied the motion, and the defendant brought this interlocutory appeal.\nThe defendant was clearly placed in jeopardy for purposes of constitutional protection. His jury was sworn and a witness testified in the aborted trial on the charge of first-degree murder. The inquiry raised by this appeal is whether a retrial would place the defendant twice in jeopardy for the same offense, a circumstance prohibited by the former-jeopardy clauses of the United States and Illinois Constitutions. The defendant suggests that we should approach the inquiry in either of two divergent ways.\nFirst, the defendant argues that we can construe the State\u2019s motion as a motion for mistrial rather than a motion to reconsider the trial judge\u2019s earlier denial of the defendant\u2019s motion for mistrial. Viewed as a motion for mistrial by the State rather than by the defendant, we would look to the reasons behind the State\u2019s request in order to determine whether they support a finding of manifest necessity. In this regard, the defendant correctly points out that the error did not necessarily call for an automatic reversal. See People v. Patterson, 154 Ill. 2d 414, 466, 610 N.E.2d 16, 40 (1992). In addition, the defendant correctly argues that a prosecutor cannot commit an error of this magnitude and rely upon it to support the State\u2019s request to prematurely unseat a jury that the defendant desires. See People v. Reimnitz, 97 Ill. App. 3d 946, 947-48, 423 N.E.2d 934, 935 (1981). A prosecutor cannot create manifest necessity by committing mistakes that harm the defendant and subsequently use those mistakes as a basis for depriving the defendant of a preferred, albeit tainted, jury, provided that the defendant opposes the trial\u2019s untimely end.\nThus, the defendant maintains that the State\u2019s motion was unsupported by a manifest necessity requisite to the deprivation of a trial to a verdict before the jury of the defendant\u2019s choice. We are asked to shield the defendant from being placed in jeopardy again and to bar a retrial for the same offense prosecuted during the aborted trial.\nSecond, the defendant approaches the question from the perspective of a State motion to reconsider the defendant\u2019s earlier effort to end the trial. If we find that it was the defendant\u2019s motion for mistrial that the trial judge granted, the defendant contends that the motion constituted action he had to take because of the prosecutor\u2019s deliberate misdeed. The prosecutor\u2019s deliberate violation of the law\u2019s command left the defendant with no choice but to request a mistrial. The defendant maintains that the mistrial motion was the result of pros-ecutorial overreaching that provoked such action.\nThus, the defendant claims that even though he was the party who sought to end the trial prior to a verdict, his reaction to prosecu-torial misconduct should not lift the constitutional shield. We are asked to bar a retrial on this converse basis.\nInitially, we must examine whether the trial judge declared a mistrial at the behest of the defendant or the behest of the State. The trial judge\u2019s order creates confusion that allows the defendant to maintain several arguments based upon the belief that the trial judge construed the State\u2019s request as the State\u2019s motion for mistrial. The order contains a finding that there was manifest necessity to end the trial. However, at the same time, the order declares the mistrial based upon the defendant\u2019s motion. The existence of manifest necessity is requisite only where the State requests a mistrial that the defendant opposes. Where the defendant seeks a mistrial, there is no need for such a finding. We are left to resolve the question of whose motion for mistrial the trial judge thought he granted.\nSince the State was clearly promoting the trial\u2019s premature end, defense counsel asked the trial judge to recast the State\u2019s request to reconsider an earlier ruling on the defendant\u2019s motion for mistrial into a new motion for mistrial tendered by the State. However, the prosecutor made it abundantly clear that the State was not moving for a mistrial. The State was asking the trial judge to end the trial prematurely only if that was in fact what the defendant wanted the trial judge to do. To be sure, the State wanted the trial to end if the defendant persisted in that desire, based upon a mistaken belief that a reversal would be inevitable. But when the prosecutor indicated that his request was premised upon the assumption that defense counsel still wanted a mistrial, and the prosecutor pointed out that the defendant could withdraw his motion and proceed, defense counsel responded with silence. In fact, the only direction offered by defense counsel was to express his belief that the trial judge had no choice but to grant the State\u2019s motion to reconsider his earlier ruling.\nSince the only motion for mistrial that the trial judge had before him was a defense motion for mistrial, we need not address the arguments premised upon a view that the State had moved for the mistrial. Nevertheless, we note that those arguments assume a fact clearly not in existence \u2014 that the defendant opposed the trial\u2019s untimely end. Even if we could somehow recast the State\u2019s request into a motion for a mistrial tendered by the State, we would have no need to examine the arguments. During the entire discussion that preceded the trial judge\u2019s decision to end the trial, not one word was offered in opposition to a mistrial. There were only two pertinent comments directed at the State\u2019s request. The first was an unanswered invitation for the trial judge to construe the motion as the State\u2019s motion for mistrial. The second was the offer of an opinion that the trial judge had no choice but to grant the State\u2019s motion to reconsider. A defendant who consents to the State\u2019s motion for mistrial and who does not register his opposition to it cannot raise jeopardy\u2019s shield from a retrial unless there is evidence of prosecutorial overreaching. Oregon v. Kennedy, 456 U.S. 667, 676, 72 L. Ed. 2d 416, 424-25, 102 S. Ct. 2083, 2089 (1982).\nThus, we address the defendant\u2019s argument that his motion for mistrial was the product of prosecutorial overreaching.\nIn Oregon v. Kennedy, the Supreme Court repudiated any former-jeopardy test based solely upon prosecutorial overreaching unaccompanied by an intent on the part of the prosecutor to provoke the defendant into moving for a mistrial. Kennedy, 456 U.S. at 675, 72 L. Ed. 2d at 424, 102 S. Ct. at 2089. When a mistrial is declared upon a defendant\u2019s motion, a retrial is barred only if \u201cthe conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.\u201d Kennedy, 456 U.S. at 679, 72 L. Ed. 2d at 427, 102 S. Ct. at 2091. Thus, the question of whether the prosecutor\u2019s improper opening remark constituted prosecutorial overreaching turns upon whether he made the comment with the intent to provoke the defendant\u2019s motion for mistrial.\nA prosecutor\u2019s intent can be inferred from the objective facts and circumstances of the case. Kennedy, 456 U.S. at 675, 72 L. Ed. 2d at 424, 102 S. Ct. at 2089. It calls for a factual determination from the trial court that will not be overturned absent an abuse of discretion. People v. Franklin, 159 Ill. App. 3d 56, 61, 512 N.E.2d 40, 43 (1987). As a general rule, defendants who request or consent to a mistrial are presumed to have deliberately elected to forgo a determination of guilt or innocence before the jury seated at that time. Kennedy, 456 U.S. at 676, 72 L. Ed. 2d at 424-25, 102 S. Ct. at 2089.\nHere, the trial judge felt that the prosecutor acted without ill design. After declaring that \u201cwe are all honorable men,\u201d he found an absence of intentional misconduct, bad faith, or overreaching. Moreover, he elicited a concession from defense counsel that there was no assertion to the contrary. Defense counsel was not claiming that the prosecutor\u2019s improper remark was uttered in bad faith with the intent to provoke a mistrial. Rather, he was claiming that the remark might as well have been uttered in bad faith, for \u201cthe effect [was] the same.\u201d\nThis position was clarified when defense counsel addressed his motion to dismiss. In the argument on the motion, counsel pointed out that he was pleased with the course of the proceedings. At the time of the State\u2019s request to reconsider a mistrial, he wanted to proceed to a verdict. He wanted the opportunity to conclude the trial before a jury that he valued and a jury that had heard the testimony offered. This opportunity was lost by virtue of the State\u2019s turnabout on the question of a mistrial. He assigned a motive for the prosecutor\u2019s change of heart. The prosecutor had observed the weakness of a crucial witness and decided it best to take advantage of his own misdeed by seeking the trial\u2019s end. \"\nKey to the argument is the assumption that the defendant was no longer seeking a mistrial. Defense counsel commented: \u201c[W]ith a jury that we like, having just blistered their only witness, and she\u2019s coming back for some more fun, we were not the party looking to terminate the proceeding. The State was.\u201d (Emphasis added.) This comment overlooks the problem that defense counsel\u2019s motion for mistrial created. When the State asked the trial judge to revisit his ruling, it put the defendant\u2019s motion for mistrial back into play. The defendant could not rely upon the earlier ruling as an end to the matter. The trial judge\u2019s refusal to declare a mistrial when asked did not put the defendant\u2019s stated desire to rest.\nThe trial judge\u2019s denial of the defendant\u2019s motion did not foreclose his power to review the decision and change his mind. A trial judge can reconsider such a ruling at any time prior to the entry of final judgment. People v. Mink, 141 Ill. 2d 163, 171, 565 N.E.2d 975, 978 (1990). When the defendant moved for a mistrial, he obviously wanted the trial to end. He wanted a different jury untainted by the prosecutor\u2019s improper remark. However, if the trial\u2019s course proved favorable and he changed his mind about the jury\u2019s worth, he needed to step forward when the State invited the trial judge to reverse himself. If the defendant wanted the trial to go to a verdict before the selected jury, it was incumbent upon the defendant to say so. And he needed to make his desire known before, rather than after, the trial judge reconsidered his ruling.\nWhen the State asked the trial judge to reconsider, the defendant was presented with a Hobson\u2019s choice. Notwithstanding, it was a choice he had to make. Until the prosecutor awoke to the magnitude of the error created by his comment and asked the trial court to grant the defendant\u2019s motion, the defendant had preserved a viable issue for appeal that provided protection against an adverse verdict. Defense counsel no doubt wanted to maintain that advantage. He did not want to subject the error to a claim of waiver by withdrawing his motion. However, the State\u2019s turnabout and support for a mistrial forced the issue. The defendant could not allow the trial judge to reconsider a defense motion for mistrial \u2014 he could not advise the trial judge that he had no choice but to reverse himself by granting the earlier request \u2014 without being the party who sought the termination of the proceedings. Rather than ask the trial judge to view the State\u2019s request as something other than it was, he needed to withdraw his motion and remove the judge\u2019s power to act upon it.\nThe question of whether the trial judge abused his discretion by finding an absence of intent to provoke the mistrial is a question measured by examining the state of affairs at that point in time when the prosecutor injected the error into the trial. The timing of the improper remark is important. The prosecutor did not see his witness testify before he commented upon postarrest silence. Even if he subsequently observed a poor performance from a key witness and decided to take advantage of the defendant\u2019s request for that reason, the tactical use of the defendant\u2019s earlier motion did not, and could not, provoke the defendant into seeking, or persisting in, the trial\u2019s untimely end.\nThere is nothing in this record to suggest a motive to provoke a mistrial. The prosecutor\u2019s claim that he had no reason to sabotage the trial by commenting upon postarrest silence during opening statement finds no counter in any of the proceedings that led up to the improper remark. While the prosecutor may have developed a reason to cause the trial\u2019s end after he heard his witness testify, it cannot be assigned to his thinking during opening statement. Moreover, if the prosecutor truly wanted to avoid a trial to verdict because of the witness\u2019s performance, he did a curious thing. He invited the defendant to withdraw his motion if the defendant did not want to start the trial anew.\nWe note that the trial judge was never presented with a claim that the prosecutor\u2019s remark was uttered with the intent to goad the defendant into moving for a mistrial. It is only on appeal that the defendant offers a reason why the prosecutor would have wanted to provoke a mistrial by committing error during opening statement. On appeal, the defendant abandons the notion that the prosecutor commented upon postarrest silence in order to avoid the consequence of a witness\u2019s poor performance. Obviously, no witness had testified when he made the improper remark. Now, the defendant concludes that the comment upon postarrest silence was the prosecutor\u2019s way of goading a mistrial in order to escape his lack of preparation for the trial. This conclusion is reached by making two assertions that are unsupported by the record. First, the defendant contends that the State was without an expert witness to counter the defendant\u2019s intoxication defense. Second, he contends that the prosecutor was unfamiliar with the facts of his case, having erroneously stated the number of wounds that the victim sustained.\nThe record belies such a conclusion. The record reveals that the prosecutor was prepared for the trial. His opening statement displays familiarity with the facts of his case. His examination of Mary Leflore demonstrates familiarity with what she was expected to say and with what she had said previously.\nIn addition, the defendant\u2019s claims are misleading. While it is correct that the State commenced the trial unarmed with expert opinion to counter the defendant\u2019s expert, the State had an expert witness. In fact, when the defendant first tendered the intoxication defense, on the day the trial was originally scheduled to start, the trial was postponed for two months to enable the State to examine the defendant. Prior to the trial, the State raised the defendant\u2019s refusal to cooperate with its expert as the reason that an examination had not occurred. A motion to bar the intoxication defense because of the defendant\u2019s refusal to cooperate was pending when the trial began. A further postponement of the trial was not likely to arm the State with evidence gathered from an examination of the defendant.\nDuring opening statement, the prosecutor told the jury that he expected a pathologist to testify that the victim had three entry and three exit wounds as a result of being shot by the defendant. The only information in the record contradicting that statement is a statement from defense counsel that the victim actually sustained a different number of wounds. As the State correctly points out, the defendant and his counsel have no monopoly on the facts. We cannot presume that defense counsel\u2019s statement about the number of wounds is accurate while the prosecutor\u2019s statement about the number of wounds is inaccurate. In any event, even if the prosecutor misstated the contents of the pathologist\u2019s report, an isolated misstatement about the proofs does not show that the prosecutor was unprepared for the trial and intended to provoke the defendant into moving for a mistrial because of that fact.\nFinally, if the prosecutor\u2019s improper opening remark was designed as a cure for his state of unpreparedness for the trial, we would have expected a different reaction once the cure was obtained. If a mistrial was a way to obtain more time to properly prepare, the prosecutor would not have asked the trial judge to immediately impanel another jury. We note that after the mistrial was declared, the prosecutor wanted to proceed immediately to trial, without expert opinion to counter the intoxication defense and without more time to better grasp the facts of his case.\nWe cannot find an abuse of discretion in the trial judge\u2019s determination that the prosecutor acted without an intent to provoke a mistrial. The record clearly supports a finding that the prosecutor did not utter the improper remark in order to provoke a defense motion to abort the trial. Accordingly, the mistrial did not deprive the defendant of rights protected under the former-jeopardy clauses of our federal and state constitutions, and a retrial is not barred.\nWe remand for a trial. However, we would caution that the rule of law enunciated in Doyle finds no exception in a prosecutor\u2019s ability to link postarrest silence to other events. We trust that whoever prosecutes this case can fashion another way to inform the jury that a foster parent was summoned to the police station, without commenting upon the defendant\u2019s exercise of a constitutional right.\nAffirmed; cause remanded.\nGOLDENHERSH, EJ., and HOPKINS, J., concur.", "type": "majority", "author": "JUSTICE KUEHN" } ], "attorneys": [ "Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Robert Haida, State\u2019s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL TATE, Defendant-Appellant.\nFifth District\nNo. 5-99-0420\nOpinion filed November 9, 2000.\nDaniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nRobert Haida, State\u2019s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0272-01", "first_page_order": 292, "last_page_order": 303 }