{ "id": 3833699, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER LANG, Defendant-Appellant", "name_abbreviation": "People v. Lang", "decision_date": "2004-03-09", "docket_number": "No. 2-02-0976", "first_page": "677", "last_page": "686", "citations": [ { "type": "official", "cite": "346 Ill. App. 3d 677" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "year": 1979, "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] }, { "cite": "291 Ill. App. 3d 145", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456208 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "150-51" }, { "page": "149-51" }, { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0145-01" ] }, { "cite": "297 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910185 ], "year": 1998, "pin_cites": [ { "page": "4", "parenthetical": "determining that evidence that State's Attorney and owners of a store that had been robbed had same last name was not enough in itself to warrant appointment of a special prosecutor" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0001-01" ] }, { "cite": "334 Ill. App. 3d 192", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521998 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "202-03" }, { "page": "200-01" }, { "page": "201" }, { "page": "201" }, { "page": "201", "parenthetical": "finding alleged impropriety was too remote, as it involved State's Attorney's office's relationship with police department" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0192-01" ] }, { "cite": "318 Ill. App. 3d 899", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279639 ], "weight": 10, "year": 2001, "pin_cites": [ { "page": "907" }, { "page": "907-08" }, { "page": "905-06" }, { "page": "908" }, { "page": "907" }, { "page": "907-08" }, { "page": "907-08" }, { "page": "907" }, { "page": "907", "parenthetical": "finding disqualification was not warranted, in part, because assistant prosecutor at issue had not participated in prosecution of defendant" }, { "page": "907-08", "parenthetical": "determining that disqualifying the entire prosecutor's office from all criminal cases in which its attorneys had previously been involved with as defense counsel could potentially harm prosecutor's office's ability to hire qualified attorneys" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0899-01" ] }, { "cite": "511 U.S. 127", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147675 ], "weight": 3, "year": 1994, "pin_cites": [ { "parenthetical": "Scalia, J., dissenting" }, { "parenthetical": "Scalia, J., dissenting" }, { "parenthetical": "Scalia, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/us/511/0127-01" ] }, { "cite": "108 Ariz. 521", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 632895 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "523" }, { "page": "1342" } ], "opinion_index": 0, "case_paths": [ "/ariz/108/0521-01" ] }, { "cite": "409 N.E.2d 1070", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "1073" } ], "opinion_index": 0 }, { "cite": "63 Ohio Misc. 1", "category": "reporters:state", "reporter": "Ohio Misc.", "case_ids": [ 6699224 ], "year": 1980, "pin_cites": [ { "page": "6-7" } ], "opinion_index": 0, "case_paths": [ "/ohio-misc/63/0001-01" ] }, { "cite": "288 Ill. App. 3d 1025", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596994 ], "weight": 9, "year": 1997, "pin_cites": [ { "page": "1030-31" }, { "page": "1034" }, { "page": "1033" }, { "page": "1033" }, { "page": "1033" }, { "page": "1033", "parenthetical": "requiring appointment of special prosecutor even though no demonstration of actual prejudice to defendant was shown" }, { "page": "1033-34" }, { "page": "1034" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/1025-01" ] }, { "cite": "69 Ill. 2d 394", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5456424 ], "year": 1977, "pin_cites": [ { "page": "400-01" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0394-01" ] }, { "cite": "156 Ill. App. 3d 564", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3505120 ], "year": 1987, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0564-01" ] }, { "cite": "258 Ill. App. 3d 497", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2880523 ], "year": 1994, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/258/0497-01" ] }, { "cite": "287 Ill. App. 3d 499", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520944 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "503-04" }, { "page": "504" }, { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0499-01" ] }, { "cite": "102 Ill. App. 3d 117", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3071674 ], "weight": 10, "year": 1981, "pin_cites": [ { "page": "120", "parenthetical": "refusal to appoint a special attorney for the State deprived the petitioner of a fair hearing" }, { "page": "12" }, { "page": "117-19" }, { "page": "121" }, { "page": "120" }, { "page": "120" }, { "page": "120" }, { "page": "120", "parenthetical": "same" }, { "page": "120", "parenthetical": "finding appearance of impropriety where key witness was from the State's Attorney's office" }, { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0117-01" ] }, { "cite": "301 Ill. App. 3d 466", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257216 ], "year": 1998, "pin_cites": [ { "page": "473-74" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0466-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "187", "parenthetical": "arguments not raised at trial or in a posttrial motion are waived for review" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "193 Ill. 2d 256", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963712 ], "year": 2000, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0256-01" ] } ], "analysis": { "cardinality": 853, "char_count": 23255, "ocr_confidence": 0.773, "pagerank": { "raw": 7.77369223392266e-08, "percentile": 0.4563785378993138 }, "sha256": "2b567cccdbfb3a14128096fd572d4982b5175cda4edb4e30e03521c4e41b62dd", "simhash": "1:f838745c295bf1b1", "word_count": 3754 }, "last_updated": "2023-07-14T19:44:33.584383+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. WALTER LANG, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GILLERAN JOHNSON\ndelivered the opinion of the court:\nFollowing a jury trial, the defendant, Walter Lang, was convicted of driving with a revoked license (625 ILCS 5/6 \u2014 303(a) (West 1998)) and was sentenced to 2x/2 years\u2019 imprisonment. On appeal, the defendant argues that the trial court erred in denying his motion to appoint a special prosecutor where the complainant and key eyewitness for the State was an assistant State\u2019s Attorney closely involved in the prosecution of the case. We reverse and remand for additional proceedings.\nThe record reveals that on September 7, 1999, the defendant was in court on a charge of driving with a revoked license. The defendant\u2019s driver\u2019s license had been previously revoked for driving under the influence of alcohol. The defendant also had a prior conviction of driving while his license was revoked. After the proceedings, Lake County Assistant State\u2019s Attorney Daniel Kleinhubert followed the defendant to a parking garage. Kleinhubert tried to avoid being seen by the defendant. At. one point, he hid behind some potted flowers. Later, he stood behind a shaded glass window near the staircase in the parking garage. Kleinhubert observed the defendant get into his vehicle and drive away from the courthouse. Kleinhubert then informed a police officer about the incident, and the officer secured a warrant to arrest the defendant. The defendant was subsequently charged with driving while his license was revoked.\nSometime thereafter, the defendant filed a motion to appoint a special prosecutor in his case. On June 22, 2000, the trial court heard arguments on the defendant\u2019s motion. Defense counsel argued that because Kleinhubert was a witness in the pending c\u00e1se, a special prosecutor should be appointed to avoid the appearance of impropriety and to preserve the integrity of the court. Defense counsel also argued that Kleinhubert had a conflict of interest, and the conflict extended to other prosecutors in the Lake County State\u2019s Attorney\u2019s office. Kleinhubert, arguing on behalf of the State, acknowledged that he could not represent the State during the defendant\u2019s trial. However, he argued that another attorney from the Lake County State\u2019s Attorney\u2019s office could prosecute the defendant at trial. The trial court agreed and denied the defendant\u2019s motion to appoint a special prosecutor. However, the trial court ruled that Kleinhubert could not participate in the prosecution of the defendant\u2019s case.\nFollowing the trial court\u2019s ruling, Kleinhubert appeared on behalf of the State at 23 court dates for status hearings or pretrial conferences. On July 15, 2002, the case ultimately proceeded to a jury trial and was prosecuted by Lake County Assistant State\u2019s Attorney Shannon Castellano. Kleinhubert was the sole witness at the trial to testify as to observing the defendant commit the instant offense. At the close of the trial, the jury convicted the defendant of driving while his license was revoked. The trial court subsequently sentenced the defendant to 21/% years\u2019 imprisonment. The defendant thereafter filed a timely notice of appeal.\nThe defendant\u2019s sole contention on appeal is that the trial court abused its discretion in not appointing a special prosecutor, independent of the Lake County State\u2019s Attorney\u2019s office, to prosecute him. The defendant argues that the integrity of the court was harmed where a lone prosecutor acted as a complainant, prosecuted the case for 19 months, and testified as the key eyewitness at trial.\nPrior to considering the merits of the defendant\u2019s contention, we first address the State\u2019s argument that the defendant has waived review of his contention. The State first argues that the defendant has waived review of his contention because he has not included in the record his written motion seeking to appoint a special prosecutor. The State argues that, in the absence of a complete record on appeal, it must be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis. See People v. Fair, 193 Ill. 2d 256, 264 (2000).\nWe do not believe that application of the waiver doctrine on this basis is proper in the instant case. Although the record on appeal does not include the defendant\u2019s motion seeking a special prosecutor, the record on appeal does include the record of proceedings from the hearing on the defendant\u2019s motion. From this record, we can ascertain the basis of the defendant\u2019s motion and the trial court\u2019s basis in denying it. As such, we decline to find that the defendant has waived this issue on this basis.\nThe State additionally argues that the defendant has waived review of the trial court\u2019s ruling due to the defendant\u2019s conduct in the proceedings below. Specifically, the State argues that the defendant waived review because (1) after the trial court\u2019s ruling, the defendant did not object to Kleinhubert\u2019s repeated appearances on the State\u2019s behalf; (2) the defendant\u2019s new counsel filed a new motion seeking the appointment of a special prosecutor, but his counsel never requested a hearing on that motion; and (3) the defendant failed to raise this issue in a posttrial motion. In response to these arguments, the defendant asks us to consider his contention nonetheless because his failure to properly preserve the issue was the result of ineffective assistance of trial counsel. The defendant also requests that we consider his contention under the plain error doctrine.\nWe agree with the State that the defendant has not properly preserved this issue for our review. See People v. Enoch, 122 Ill. 2d 176, 187 (1988) (arguments not raised at trial or in a posttrial motion are waived for review). Nonetheless, we elect to consider the defendant\u2019s contention under the plain error rule pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). The plain error rule may be invoked in a criminal case to review an error that has not been properly preserved if either the evidence was closely balanced or the error was of such magnitude that the defendant was denied a fair trial. People v. Hindson, 301 Ill. App. 3d 466, 473-74 (1998). Here, because we believe that the trial court\u2019s refusal to appoint a special prosecutor potentially affected the defendant\u2019s right to a fair trial, we will consider the merits of his contention under the plain error doctrine. See generally Sommer v. Goetze, 102 Ill. App. 3d 117, 120 (1981) (refusal to appoint a special attorney for the State deprived the petitioner of a fair hearing).\nArticle VI, section 19, of the Illinois Constitution provides for the election of a State\u2019s Attorney in each county. Ill. Const. 1970, art. VI, \u00a7 19. The powers and duties of a State\u2019s Attorney include commencing and prosecuting all actions, civil and criminal, in which the people of the State may be concerned. 55 ILCS 5/3 \u2014 9005(a)(1) (West 1998). However, when a State\u2019s Attorney is interested in any cause or proceeding, civil or criminal, which it is or may be his or her duty to prosecute, the court may appoint some other competent attorney to prosecute such cause or proceeding. 55 ILCS 5/3 \u2014 9008 (West 1998). The purpose of this provision is to prevent any influence upon the discharge of the duties of the State\u2019s Attorney by reason of personal interest. People v. Morley, 287 Ill. App. 3d 499, 503-04 (1997). The decision to appoint a special prosecutor rests within the sound discretion of the trial court. People v. Polonowski, 258 Ill. App. 3d 497, 503 (1994). A special prosecutor can be appointed at any stage of the case. Baxter v. Peterlin, 156 Ill. App. 3d 564, 566 (1987).\nIn Morley, this court explained that there are only two situations in which the Attorney General or the State\u2019s Attorney could be considered to be interested so as to authorize the appointment of a special Attorney General or State\u2019s Attorney. Morley, 287 Ill. App. 3d at 504. Those two situations are where the attorney is (1) interested as a private individual in the litigation or (2) is an actual party to the litigation. Morley, 287 Ill. App. 3d at 504, citing Environmental Protection Agency v. Pollution Control Board, 69 Ill. 2d 394, 400-01 (1977). Because neither of those situations applies in the instant case, the State argues that the trial court did not abuse its discretion in not appointing a special prosecutor in the case. The defendant responds, however, that the appointment of a special prosecutor is also required if a failure to do so would possibly undermine the integrity of the court. See Sommer, 102 Ill. App. 3d at 12; see also People v. Courtney, 288 Ill. App. 3d 1025 (1997).\nIn Sommer, a Tazewell County assistant State\u2019s Attorney filed a complaint against a Tazewell County sheriffs deputy, following an altercation between the attorney and the deputy. The Tazewell County sheriff filed misconduct charges against the deputy with the sheriffs merit commission. At the hearing before the merit commission, the sheriff was represented by the Tazewell County State\u2019s Attorney. The deputy objected to the State\u2019s Attorney\u2019s representation, arguing that a conflict of interest existed because an assistant State\u2019s Attorney was the complaining party and the key eyewitness to the alleged altercation. The merit commission denied the deputy\u2019s objection and ultimately dismissed him from his position with the sheriffs office. The deputy argued on appeal that he was denied a fair hearing because the merit commission should have appointed a disinterested attorney to prosecute the sheriffs case. Sommer, 102 Ill. App. 3d at 117-19. The reviewing court agreed and held that the deputy was entitled to a new hearing. Sommer, 102 Ill. App. 3d at 121. The reviewing court held that, where the \u201cassistant State\u2019s Attorney was the complainant and key eyewitness, *** it was an abuse of discretion to refuse appointment of a disinterested attorney to prosecute the charges brought against [the] [d]eputy.\u201d Sommer, 102 Ill. App. 3d at 120. The reviewing court explained that a lower court must appoint a disinterested attorney when necessary to promote the policy of a just, fair, and impartial hearing. Sommer, 102 Ill. App. 3d at 120.\nIn Courtney, the defendant\u2019s former trial counsel became head of the Kankakee County State\u2019s Attorney\u2019s office, the office that was prosecuting the defendant. The defendant requested the appointment of a special prosecutor in his case due to the appearance of a conflict of interest. The defendant\u2019s trial ultimately proceeded without the appointment of a special prosecutor, and the defendant was convicted. Courtney, 288 Ill. App. 3d at 1030-31. On appeal, the reviewing court reversed with directions that the defendant receive a new trial with a special prosecutor. Courtney, 288 Ill. App. 3d at 1034. The reviewing court explained that, where a conflict involves the head of the State\u2019s Attorney\u2019s office, a special prosecutor should be appointed because of the \u201c \u2018overriding requirement that the public must be able to maintain the right to believe in the total integrity of the Bar as a whole.\u2019 \u201d Courtney, 288 Ill. App. 3d at 1033, quoting State v. Cooper, 63 Ohio Misc. 1, 6-7, 409 N.E.2d 1070, 1073 (1980). The reviewing court also explained that \u201c \u2018[j]ustice and the law must rest upon the complete confidence of the thinking public and to do so they must avoid even the appearance of impropriety.\u2019 \u201d Courtney, 288 Ill. App. 3d at 1033, quoting Arizona v. Latigue, 108 Ariz. 521, 523, 502 P.2d 1340, 1342 (1972).\nWe agree with the defendant that, in addition to the situations set forward in Morley, the appointment of a special prosecutor may also be required if it is necessary to remove the appearance of impropriety in the prosecution of a defendant. See Courtney, 288 Ill. App. 3d at 1033; Sommer, 102 Ill. App. 3d at 120. We believe that the appointment of a special prosecutor in such a situation may be necessary in order to maintain the public\u2019s confidence in the impartiality and integrity of our criminal judicial system. Even in the absence of demonstrated prejudice to the defendant, a special prosecutor may be appointed if necessary to remove an appearance that the defendant is being unfairly prosecuted. See Courtney, 288 Ill. App. 3d at 1033 (requiring appointment of special prosecutor even though no demonstration of actual prejudice to defendant was shown); Sommer, 102 Ill. App. 3d at 120 (same); see also J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 161 n.3, 128 L. Ed. 2d 89, 98-99 n.3, 114 S. Ct. 1419, 1438 n.3 (1994) (Scalia, J., dissenting) (\u201cWise observers have long understood that the appearance of justice is as important as its reality\u201d).\nNonetheless, even if there is a concern about the appropriateness of the State\u2019s Attorney\u2019s office prosecuting a case against a particular defendant, that concern must be weighed against countervailing considerations. See People v. Shick, 318 Ill. App. 3d 899, 907 (2001). Such countervailing considerations include (1) the burden that would be placed on the prosecutor\u2019s office if the entire prosecutor\u2019s office had to be disqualified; (2) how remote the connection is between the State\u2019s Attorney\u2019s office and the alleged conflict of interest; and (3) to what extent the public is aware of the alleged conflict of interest. See McCall v. Devine, 334 Ill. App. 3d 192, 202-03 (2002); Shick, 318 Ill. App. 3d at 907-08.\nIn McCall, the petitioner filed a petition for the appointment of a special prosecutor to investigate and prosecute unknown Chicago police officers for the fatal shooting death of her son. The trial court granted the State\u2019s Attorney\u2019s motion to dismiss the petition, and the reviewing court affirmed. The reviewing court held that there need not be a per se disqualification of the State\u2019s Attorney\u2019s office every time it prosecutes a police officer. McCall, 334 Ill. App. 3d at 200-01. The reviewing court explained that, despite the close professional working relationship between the Chicago police and the Cook County State\u2019s Attorney\u2019s office, there was nothing to indicate that the State\u2019s Attorney\u2019s office would not zealously represent the State in the case of alleged police misconduct. McCall, 334 Ill. App. 3d at 201. To hold otherwise, the reviewing court explained, would require that a special prosecutor be appointed whenever anyone alleges wrongdoing on the part of the Chicago police department. McCall, 334 Ill. App. 3d at 201.\nIn Shick, an attorney filed a general appearance for the defendant shortly after the defendant was arrested. Three months later, that attorney began working for the State\u2019s Attorney\u2019s office, the office that was prosecuting the defendant. The defendant subsequently filed a petition for the appointment of a special prosecutor, based on the fact that his former attorney was now working for the State\u2019s Attorney\u2019s office. The trial court denied the defendant\u2019s petition, but ordered that the attorney at issue be disqualified from participating in the prosecution of the defendant. Shick, 318 Ill. App. 3d at 905-06. The reviewing court affirmed the trial court\u2019s decision. The reviewing court determined that, based on the circumstances of the case, the defendant\u2019s former attorney\u2019s conflict of interest was not imputed to the entire prosecutor\u2019s office. Shick, 318 Ill. App. 3d at 908. The reviewing court explained that disqualification of the entire office was not required where the assistant prosecutor at issue had not participated in the prosecution of his former client, had no managerial role with respept to those who did, and had sworn that he had not disclosed and would not disclose any confidential information. Shick, 318 Ill. App. 3d at 907. The reviewing court further explained that a per se rule of disqualification in cases such as this would have an adverse effect on the ability of prosecutors\u2019 offices to hire the best possible employees. Shick, 318 Ill. App. 3d at 907-08. The reviewing court found that such a rule might cause a State\u2019s Attorney not to hire a former member of the defense bar for fear that the addition of that attorney might seriously impede the functioning of that office. Shick, 318 Ill. App. 3d at 907-08.\nApplying all of these principles to the instant case, we believe that the State\u2019s prosecution of the defendant created an appearance of impropriety. The instant case involved a Lake County assistant State\u2019s Attorney who surreptitiously followed the defendant until he observed the defendant commit a crime. Charges were then filed against the defendant, based on the assistant State\u2019s Attorney\u2019s observations. At a jury trial, the assistant State\u2019s Attorney was questioned by another assistant State\u2019s Attorney about the defendant\u2019s alleged criminal conduct. This questioning led to the key testimony that was the basis for the defendant\u2019s conviction. We believe that these facts created an improper appearance that the State was too involved with the underlying case to be fair in its prosecution of the defendant. Although the assistant State\u2019s Attorney\u2019s pursuit of the defendant was not wrong in itself, his aggressive behavior toward the defendant created the appearance that the State\u2019s Attorney\u2019s office was obsessed with finding evidence against the defendant to obtain a conviction against him at all costs. Such an appearance was improper. See Shick, 318 Ill. App. 3d at 907 (noting that a prosecutor\u2019s obligation is not to obtain a conviction at all costs, but to see that justice is done). Accordingly, the facts herein suggest that a special prosecutor should have been appointed so as to not risk diminishing the public\u2019s esteem and confidence in the criminal justice system. See Courtney, 288 Ill. App. 3d at 1033-34.\nMoreover, we do not believe that there were any countervailing considerations in the instant case that outweighed the need to appoint a special prosecutor. The relationship between the State\u2019s Attorney\u2019s office and the alleged conflict of interest was not remote. It involved one of the assistant State\u2019s Attorneys himself. See Sommer, 102 Ill. App. 3d at 120 (finding appearance of impropriety where key witness was from the State\u2019s Attorney\u2019s office); cf. McCall, 334 Ill. App. 3d at 201 (finding alleged impropriety was too remote, as it involved State\u2019s Attorney\u2019s office\u2019s relationship with police department); People v. Arrington, 297 Ill. App. 3d 1, 4 (1998) (determining that evidence that State\u2019s Attorney and owners of a store that had been robbed had same last name was not enough in itself to warrant appointment of a special prosecutor). The conflict of interest could not be shielded from the jury, as the assistant State\u2019s Attorney at issue participated in the prosecution of the defendant by testifying as a witness for the State. Cf. Shick, 318 Ill. App. 3d at 907 (finding disqualification was not warranted, in part, because assistant prosecutor at issue had not participated in prosecution of defendant). Furthermore, by requiring special prosecutors to be appointed in cases such as this, the adverse consequences to the State\u2019s Attorney\u2019s office are minimal. Cf. Shick, 318 Ill. App. 3d at 907-08 (determining that disqualifying the entire prosecutor\u2019s office from all criminal cases in which its attorneys had previously been involved with as defense counsel could potentially harm prosecutor\u2019s office\u2019s ability to hire qualified attorneys). We believe that it is a rare case in which an assistant State\u2019s Attorney will surreptitiously follow a defendant and then become the key witness against him at trial. In those rare cases, we believe that the importance of maintaining the public\u2019s esteem for the State\u2019s Attorney\u2019s office and the integrity of the criminal justice system outweighs the resulting inconvenience to that State\u2019s Attorney\u2019s office.\nIn so ruling, we emphasize that our holding is based on the specific facts of this case. Indeed, in some circumstances, it may not be improper for an assistant\u2019s State\u2019s Attorney to testify as a witness in a case that his office is prosecuting. See People v. Tracy, 291 Ill. App. 3d 145, 150-51 (1997). In Tracy, the defendant\u2019s daughter was issued a citation for illegally passing a school bus. At the first court appearance on the citation, the defendant informed an assistant State\u2019s Attorney that she had been driving the vehicle that illegally passed the school bus. Charges were subsequently filed against the defendant. Upon learning that the assistant State\u2019s Attorney would be a witness against her, the defendant filed a motion seeking the appointment of a special prosecutor. The trial court denied the motion, and the reviewing court affirmed. Tracy, 291 Ill. App. 3d at 149-51. The reviewing court distinguished Sommer and explained that a special prosecutor was not needed because the assistant State\u2019s Attorney who testified was not the complaining witness against the defendant. Tracy, 291 Ill. App. 3d at 151.\nWe note that the instant case is distinguishable from Tracy. Here, unlike in Tracy, the assistant State\u2019s Attorney was the complaining witness against the defendant. More significantly, the assistant State\u2019s Attorney\u2019s conduct in the instant case was much different from that of the assistant State\u2019s Attorney in Tracy. In Tracy, the assistant State\u2019s Attorney received the incriminating information about the defendant from the defendant herself. He did not seek to find any incriminating evidence against the defendant. Conversely, in the case herein, as discussed above, the assistant State\u2019s Attorney, on his own initiative, surreptitiously followed the defendant until he observed the defendant commit a crime. Such conduct created an appearance of impropriety when the assistant State\u2019s Attorney later became his office\u2019s key witness in the prosecution against the defendant.\nAccordingly, based on the foregoing discussion, we believe that the prosecution of this case by the Lake County State\u2019s Attorney\u2019s office created an appearance of impropriety. We therefore hold that the trial court abused its discretion in not appointing a disinterested attorney, one from outside the Lake County State\u2019s Attorney\u2019s office, to prosecute the defendant. See Sommer, 102 Ill. App. 3d at 120; see also Courtney, 288 Ill. App. 3d at 1034. Accordingly, we reverse the defendant\u2019s conviction and remand for a new trial. In so ruling, we note that the evidence in this case was sufficient to prove the defendant guilty of the charged offense beyond a reasonable doubt. Therefore, the defendant will not be subjected to double jeopardy by a subsequent retrial. See People v. Taylor, 76 Ill. 2d 289, 309 (1979).\nFor the foregoing reasons, the judgment of the circuit court of Lake County is reversed and the cause is remanded with directions.\nReversed and remanded with directions.\nHUTCHINSON and BYRNE, JJ., concur.", "type": "majority", "author": "JUSTICE GILLERAN JOHNSON" } ], "attorneys": [ "G. Joseph Weller and Bruce Kirkham, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Martin P Moltz and Joan M. Kripke, both 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. WALTER LANG, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 02\u20140976\nOpinion filed March 9, 2004.\nG. Joseph Weller and Bruce Kirkham, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Martin P Moltz and Joan M. Kripke, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0677-01", "first_page_order": 695, "last_page_order": 704 }