People v. Cooper, 1-88-0132

• Decision Date: 01 March 1991
• Docket Number: No. 1-88-0132,1-88-0132
• Citation: 569 N.E.2d 144,210 Ill.App.3d 427
• Parties: , 155 Ill.Dec. 144 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eugene COOPER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 144

569 N.E.2d 144

210 Ill.App.3d 427, 155 Ill.Dec. 144

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eugene COOPER, Defendant-Appellant.

No. 1-88-0132.

Appellate Court of Illinois,

First District, Sixth Division.

March 1, 1991.

Randolph N. Stone, Public Defender of Cook County, Chicago (Hugh Stevens, Asst. Public Defender, of counsel), for defendant-appellant.

Jack O'Malley, Cook County State's Atty., Chicago (Renee Goldfarb and Marie Quinlivan Czech, Asst. State Attys., of counsel), for plaintiff-appellee.

Presiding Justice RAKOWSKI delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant was found guilty of murder and sentenced to a term of 35 years. The issues raised on appeal are: (1) whether the trial court's declaration of a mistrial violated the prohibition against double jeopardy; (2) whether compelling Aaron Cooper to testify violated defendant's right to due process; (3) whether testimony regarding Aaron Cooper's statements incriminating defendant violated the hearsay rule as well as defendant's right to confrontation, cross-examination and due process; (4) whether compelling Aaron Cooper to invoke his fifth amendment privilege before the jury had the effect of suggesting that defendant was guilty; (5) whether the trial court's refusal to let defense counsel ask Aaron Cooper certain questions violated defendant's right to cross-examination; (6) whether the prosecutor's redirect examination of Aaron Cooper regarding his taped conversation with defense counsel denied defendant a fair trial; (7) whether testimony about Annette Dorenzo's out-of-court statements violated the hearsay rule and defendant's right to confrontation, cross-examination and due process; (8) whether testimony and comments concerning other crimes by defendant denied him a fair trial; (9) whether the evidence of the grand jury subpoena, and arrest and search warrants should have been admitted; (10) whether the State's arguments were proper; and (11) whether the trial court erred in limiting defendant's opening statement, cross-examination and closing argument as to other persons who may have committed the crime.

The evidence at trial established that sometime after 10:00 p.m. on October 13, 1986, the victim, Rodney Williams, (also known as Pretty Boy) was found shot to death in an empty apartment located at 1376 West 79th Street in Chicago. When the police arrived at the scene of the crime they interviewed several people in the building including Annette Dorenzo. Dorenzo testified that defendant and the victim had been at her apartment earlier that evening, and that they both left at around 10:00 p.m. During the next few days, the police tried to locate defendant but they were unsuccessful.

During the early morning hours of October 26, 1986, the police responded to a report of domestic disturbance at 1262 West 72nd Place. Josephine Cooper, the defendant's mother, had asked the police to arrest her son, Aaron Cooper for disorderly conduct. According to Officer Getting's testimony, Aaron Cooper became angry and made the statement that the police should be locking up defendant instead of him. Aaron Cooper then told his mother that he was going to tell the police everything because they should be getting her "killer son". Cooper also asked Gettings and the other officers with him if they knew about the killing of Pretty Boy several weeks earlier. Aaron Cooper then told the police that his brother had committed the crime. On the way to the police station, Aaron Cooper stated several times that defendant had killed the victim, and at the station, he asked to speak with the detectives who were familiar with the Williams murder. On October 26 and 27, 1986, Cooper stated on four other occasions that defendant had shot the victim. The fourth instance was as part of his testimony before the grand jury.

Aaron Cooper's testimony before the grand jury, which was later admitted into evidence through the trial testimony of the grand jury court reporter, was that defendant had collaborated with the victim and two other people to sell narcotics. Defendant made a sale to a fifth party but sold them baking soda instead of narcotics. He then refused to share the money he received from the sale with his collaborators and also refused to give them the narcotics he had replaced. In retaliation, the purchaser, victim and several other people beat defendant with a baseball bat. After the beating, defendant told Aaron Cooper that he would kill all of the people involved. Several days later, defendant told Cooper to stay away from 79th Street because defendant had shot "Pretty Boy". Aaron Cooper had also testified that he saw his mother the next day, and that she had a gun protruding from her purse. He stated that, to the best of his knowledge, his mother kept handguns in a safe deposit box at the Chicago Bank of Commerce. Finally, Cooper acknowledged that he was testifying before the grand jury of his own free will.

Defendant was arrested on December 29, 1986. On May 19, 1987, Aaron Cooper contacted defendant's attorney and recanted his prior statements implicating defendant in the victim's murder. A tape recording of Cooper's conversation with defendant's attorney was made which was subsequently admitted into evidence and heard by the jury at the trial. In this conversation, Cooper stated that he had been drinking all day when he was arrested for disorderly conduct and had no recollection of making statements to the police implicating defendant in the victim's murder. He also stated that he made the same statements in his testimony before the grand jury because of threats that his sentence for an unrelated conviction would be extended.

The trial was scheduled to begin on November 16, 1987, and the jury had been selected. However, Aaron Cooper and his mother, Josephine Cooper had been subpoenaed by the State to testify and indicated at a pretrial proceeding that they intended to invoke their fifth amendment privilege against self-incrimination. At this point, the trial was postponed several days while the court heard the parties' pretrial motions and conducted a hearing to determine whether Josephine or Aaron Cooper could claim the fifth amendment privilege. On November 19, 1987, there were still pretrial matters remaining. The trial judge and the State commented that the jury had been waiting several days for the trial to begin and had sent a note to the judge. The State represented that the note contained the statement that the jurors did not think they could still be fair and impartial, although it appears from the record that the trial judge described the contents of the note as simply containing a request to confer with the judge. In either case, the court determined that the jury was too frustrated by the delay to remain impartial, and that neither party would be prejudiced by dismissing them and selecting a new jury. The jury was then dismissed. In a separate proceeding, the trial court determined that Aaron Cooper did not have a valid fifth amendment claim and that if he refused to answer the State's questions at the trial, he would be held in contempt of court. The trial court further determined that any invalid fifth amendment claim by Aaron Cooper would be considered testimony. Because Cooper would be available for cross-examination, the State could introduce his grand jury testimony and former statements to the police and Assistant State's Attorney as prior inconsistent statements pursuant to section 115-10.1 of the Code of Criminal Procedure (Ill.Rev.Stat.1987, ch. 38, par. 115-10.1). However, the trial court found that Josephine Cooper did have a valid fifth amendment claim, and she was not required to testify.

On December 1, 1987, a new jury was selected, and the trial commenced the next day.

Defendant first contends that the trial court violated the State and Federal prohibitions against double jeopardy where jeopardy had attached, and there was no manifest necessity for a mistrial. The State concedes that jeopardy did attach when the jurors were impaneled and sworn but argues that the prohibition against double jeopardy was not violated because there was a manifest necessity to dismiss the jury.

The trial court has the authority to dismiss the jury when, taking all of the circumstances into consideration, there is a manifest necessity to do so, or the ends of justice would otherwise be defeated. (Illinois v. Somerville (1973), 410 U.S. 458, 461, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425, quoting United States v. Perez (1824), 9 Wheat. 579, 6 L.Ed. 165; People v. Kettler (1983), 112 Ill.App.3d 1061, 1064-65, 68 Ill.Dec. 644, 446 N.E.2d 550.) The "manifest necessity" standard was first formulated by the Supreme Court in United States v. Perez (1824), 9 Wheat. 579, 6 L.Ed. 165. The relevant passage, which was quoted by the Supreme Court in United States v. Jorn (1971), 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543, states that:

"[T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all of the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all of the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes * * *. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests in this as in other cases, upon the responsibility of the Judges, under their oaths of office." (Jorn, 400 U.S. at 481, 91 S.Ct. at 555.)

The Jorn Court also discussed its holding in Gori...