People v. Barfield
| Decision Date | 02 June 1997 |
| Docket Number | No. 5-96-0250,5-96-0250 |
| Citation | 288 Ill.App.3d 578,680 N.E.2d 805,223 Ill.Dec. 855 |
| Parties | , 223 Ill.Dec. 855 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kumasi J. BARFIELD, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael Wepsiec, State's Attorney, Murphysboro, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, for Plaintiff-Appellee.
Defendant, Kumasi J. Barfield, appeals from the decision of the circuit court of Jackson County denying his motion to dismiss the charge against him of armed robbery. Defendant filed the motion to dismiss this charge, claiming that it was barred on the grounds of double jeopardy. Defendant claims that he was formerly tried before a jury on the same charge and that the trial court, Honorable David W. Watt Jr., presiding, improperly granted the State's motion for a mistrial over defendant's objection. On
[223 Ill.Dec. 857] appeal, we consider whether the trial court abused its discretion in granting the mistrial. We affirm.
We note initially that defendant has not provided this court with a complete transcript of the jury trial that ended in a mistrial. Defendant's request for the report of the proceedings asks the court reporters to prepare only the transcript of the hearing on defendant's motion to dismiss and the portion of the jury trial consisting of the last witness through the end of the trial. Additionally, it appears that defendant submitted the same incomplete record of the jury trial to the trial court, Honorable Kimberly J. Dahlen presiding, on defendant's motion to dismiss.
It is defendant's duty as the appellant to provide this court with a complete record from which we may review his claims of error. People v. Schuppert, 217 Ill.App.3d 715, 160 Ill.Dec. 503, 577 N.E.2d 828 (1991). Without an adequate record, the court of review is required to presume "every reasonable intendment against defendant," and "[a]ny factual questions concerning the adequacy of the evidence against defendant must therefore be resolved against the defendant." Schuppert, 217 Ill.App.3d at 717, 160 Ill.Dec. 503, 577 N.E.2d 828. On review, where the record is inadequate to resolve the factual disputes, the court addresses only the legal questions presented by the appeal. Schuppert, 217 Ill.App.3d at 717, 160 Ill.Dec. 503, 577 N.E.2d 828; see also Supreme Court Rule 608 (134 Ill.2d R. 608). In the case at bar, we will address the factual questions to the extent of our ability to do so with an incomplete record.
We summarize the evidence from the portion of the jury trial defendant has provided. On the second day of the jury trial on the charge of armed robbery, Carbondale Police Detective Donald T. Barrett testified that he investigated an armed robbery that occurred on February 10, 1995. Barrett interviewed defendant and two other suspects after the robbery. According to Barrett, defendant told him about where he was and whom he was with on the night of the robbery, and defendant's version of the events of that night was consistent with the versions given by the other two suspects. Barrett also testified that the robbery victim "identified Mr. Barfield from a show-up line-up as being the person that actually committed the robbery with the gun" but that the victim could not identify the other two persons who were involved.
During cross-examination of Barrett, Paul Christenson, defendant's attorney, began questioning Barrett and arguing to the court, in the presence of the jury, about a videotape of defendant and the two other suspects. The videotape was allegedly made in the Old Town Liquor store shortly after the robbery but could not be found at the time of trial. The court sustained all of the State's objections to the relevance of the videotape.
Christenson then asked Barrett what time the robbery occurred, to which Barrett responded that he checked with the Bank of Carbondale officials and that they "pulled the records from the ATM machine and it showed--." The State objected to the testimony regarding the ATM records on the grounds of hearsay, and the trial court sustained the objection. Defense counsel continued to ask questions of Barrett concerning the time of the robbery, to which Barrett continued to respond about the ATM records, and objections were made and sustained each time. Finally, Barrett responded that the robbery victim listed the time of the robbery between 8 and 8:15 p.m.
After this answer by Barrett, the following exchange occurred:
MR. HAMROCK [Assistant State's Attorney]: Objection, facts not in evidence.
THE COURT: Mr. Christenson, the bank records are hearsay. They are not admissible * * * and the jury is instructed MR. CHRISTENSON: Well, it was 8:19--
[223 Ill.Dec. 858] to disregard any reference to bank records.
Christenson then went back to questioning Barrett about the videotape, to which the court again sustained the State's objection. Christenson then began to argue with the court about the videotape, but the court instructed Christenson "to avoid any questions about the videotape." Christenson requested to make an offer of proof, which the court decided to allow after Christenson finished cross-examining Detective Barrett. Christenson continued to cross-examine Barrett, asking nine additional questions regarding the alleged videotape, to which four objections by the State were sustained by the court.
Defense counsel next attempted to question Detective Barrett about a property release form from the Jackson County sheriff's office. However, Barrett did not know anything about the property release form, and the court ruled that defendant failed to lay the proper foundation to have this exhibit admitted into evidence.
After Barrett finished his testimony, the State rested its case. Defense counsel did not ask the court to conduct an offer of proof in regards to the videotape. Defendant rested without presenting any evidence on his behalf.
After defendant rested his case, the State made a motion for mistrial. As grounds for the mistrial, the State argued that defense counsel improperly asked questions about the ATM records, the property release form, and the allegedly missing videotape. The State argued: "[Defense counsel] placed all of this before the jury in improper form and has attempted, in the People's view, through his questioning to present evidence to the trier of fact which is not in this record and cannot be considered by them, and I believe that he has tainted this jury."
The court took a recess and then asked the prosecuting attorney whether there was any way, short of mistrial, to resolve these problems. The State argued that no limiting instructions or other cautionary measures would be sufficient to cure the error, since defense counsel ignored the court's rulings by continuing to ask questions about these matters after the court sustained the State's objections. Christenson objected to a mistrial; he conceded that some of his references may have been "highly improper," but he argued that the errors did not demand a mistrial. The trial judge stated that an instruction to the jury to disregard the improper evidence would be insufficient, since defense counsel asked the same improper questions two or three times after the court sustained objections.
After hearing the parties argue their respective positions, the court ruled as follows:
After the mistrial, the State again charged defendant with the crime of armed robbery, based upon the same facts. Defendant filed a motion to dismiss the charge and filed a memorandum in support of the motion to dismiss. Defendant attached only a transcript for the portion of the jury trial from Detective Barrett's testimony through the end of the trial, including the motion to dismiss.
At the hearing on defendant's motion to...
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