People v. Griffith

• Decision Date: 30 September 2010
• Docket Number: No. 1-09-1001.,1-09-1001.
• Citation: 344 Ill.Dec. 417,936 N.E.2d 1174,404 Ill.App.3d 1072
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Evan GRIFFITH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

936 N.E.2d 1174

404 Ill.App.3d 1072

344 Ill.Dec. 417

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Evan GRIFFITH, Defendant-Appellant.

No. 1-09-1001.

Appellate Court of Illinois,

First District, Sixth Division.

Sept. 30, 2010.

Anita Alvarez, State's Attorney, County of Cook, Chicago, IL (Alan J. Spellberg, Susan R. Schierl Sullivan, Marci Jacobs, Assistant State's Attorneys, of counsel), for Plaintiff-Appellee.

Jeffrey D. Colman, Justin A. Houppert, Jenner & Block LLP, Chicago, IL, for Defendant-Appellant.

Presiding Justice GARCIA delivered the opinion of the court:

[344 Ill.Dec. 419, 404 Ill.App.3d 1073]

Defendant Evan Griffith was convicted of felony murder in a jury trial in 1999, during which, according to the published opinion of this court, prosecutor Laura Morask engaged in numerous instances of prosecutorial misconduct, which "called into question the State's commitment to fair and just enforcement of the law." People v. Griffith, 334 Ill.App.3d 98, 119, 267 Ill.Dec. 656, 777 N.E.2d 459 (2002). Nevertheless, " the overwhelming evidence in support of the felony murder charge * * * constrained [this court] to affirm Griffith's conviction and sentence." Griffith, 334 Ill.App.3d at 121, 267 Ill.Dec. 656, 777 N.E.2d 459. In 2008, a federal district court, quoting at length from the scathing review by this court of the prosecutor's trial conduct, granted the defendant's petition for a writ of habeas corpus and ordered a new trial. The district court found prosecutor Laura Morask's "misconduct 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " United States ex rel. Griffith v. Hulick, 587 F.Supp.2d 899, 911, 912-13 (N.D.Ill.2008) (mem.op.), quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144, 157 (1986). The State did not appeal the grant of the defendant's petition, but instead obtained a new indictment against the defendant. Before the circuit court of Cook County, the defendant filed a motion to dismiss the new indictment on double jeopardy and due process grounds, which Judge John J. Fleming denied. Before this court, in his interlocutory appeal, the defendant concedes "the current case law in Illinois would not apply the Double Jeopardy bar to his case" because both the Supreme Courtof the United States and the Illinois Supreme Court require the intent behind the prosecutor's misconduct be to goad the defendant into seeking a mistrial to trigger the double jeopardy bar to a retrial. He urges that we read the double jeopardy clause of the Illinois Constitution much as the supreme courts of Oregon, Arizona, New Mexico, Pennsylvania, and Hawai'i, have read their respective constitutional double jeopardy provisions to provide expanded protection to bar a retrial when " intentional and systematic" prosecutorial misconduct deprives a defendant of fundamental fairness at trial. The State responds that only our supreme court can change current law and that under existing Illinois law, Illinois courts have repeatedly found unavailing similar claims based on prosecutorial misconduct for failure to demonstrate the prosecution intended to cause a mistrial. We agree with the State. The defendant's retrial is not barred under current Illinois law, by which we are bound. We do not consider

[344 Ill.Dec. 420, 936 N.E.2d 1177]

the defendant's separate due process claim because it is not subject to review on interlocutory appeal. We affirm.

BACKGROUND

This case has now been recounted in multiple court decisions during its more than decade-long history: Griffith, 587 F.Supp.2d 899; People v. Griffith, No. 1-03-0713, 355 Ill.App.3d 1183, 319 Ill.Dec. 307, 885 N.E.2d 578 (March 22, 2005) (unpublished order under Supreme Court Rule 23); Griffith, 334 Ill.App.3d 98, 267 Ill.Dec. 656, 777 N.E.2d 459; People v. Griffith, No. 1-96-0112, 287 Ill.App.3d 1111, 237 Ill.Dec. 938, 710 N.E.2d 568 (April 24, 1997) (unpublished order under Supreme Court Rule 23). We relate only the procedural history and the facts necessary to address the issue before us. As the defendant asserts, many of the facts are beyond dispute under the doctrine of collateral estoppel, citing People v. Tenner, 206 Ill.2d 381, 396-97, 276 Ill.Dec. 343, 794 N.E.2d 238 (2002).

On May 11, 1985, 16-year-old Evan Griffith stabbed and killed 46-year-old Leroi Shanks, a former neighbor who had permitted the homeless Griffith to stay with him in exchange for sexual favors. In 1986, Griffith pleaded guilty to murdering Shanks and received a 35-year sentence.

The defendant filed a postconviction petition, contending he pleaded guilty and accepted the 35-year sentence because he was told that he was otherwise eligible for the death penalty. He later learned, however, that he was not death-penalty eligible because he was a minor at the time of the offense. His conviction, arising from an involuntary plea of guilty, was vacated, and a new trial ordered. Griffith, No. 1-96-0112.

Prosecutorial Misconduct

In 1999, the defendant proceeded to a jury trial on the 1985murder of Shanks. The defendant claimed self-defense. During his testimony, he suggested that his actions were motivated by fear that Shanks would kill him, hurt him, or sexually abuse him, when Shanks, returning home, found the defendant had broken into a safe Shanks kept in his home. The State and the defendant presented various experts regarding the defendant's mental state at the time of the killing.

Lead prosecutor Laura Morask sought the trial court's permission to examine the defendant and his expert witness regarding a 1990 incident that occurred while the defendant was incarcerated for Shanks' murder. In that incident, the defendant was tried and convicted before a jury of killing a fellow inmate and was sentenced to death.¹ Prosecutor Morask told the court it was necessary to inquire into the 1990 incident to negate the defense theory that the defendant was influenced by post-traumatic stress disorder (PTSD) when he killed Shanks. Griffith, 334 Ill.App.3d at 117, 267 Ill.Dec. 656, 777 N.E.2d 459. She claimed the State's expert had examined the 1990 records and found them relevant to rebut the PTSD defense. The trial court expressed concern that evidence of the 1990 incident would unduly prejudice the defendant, but nonetheless allowed the prosecutor to raise the 1990 incident based on her representation that she would " 'sanitize' " the evidence and avoid calling the 1990 incident a "murder." Griffith, 334 Ill.App.3d at 117, 267 Ill.Dec. 656, 777 N.E.2d 459. She stated, " 'We don't have to go into that the victim died, what his sentence was, or any of that. * * * We don't have to put in the fact that he was in prison when the stabbing occurred.' "

[344 Ill.Dec. 421, 936 N.E.2d 1178]

Griffith, 334 Ill.App.3d at 117, 267 Ill.Dec. 656, 777 N.E.2d 459.

The State's expert had in fact never seen records of the 1990 incident and knew nothing about them. Griffith, 334 Ill.App.3d at 117, 267 Ill.Dec. 656, 777 N.E.2d 459. On cross-examination of the defendant's expert, the prosecutor broke her promise not to reference the 1990 "murder." Griffith, 334 Ill.App.3d at 117, 267 Ill.Dec. 656, 777 N.E.2d 459. In the ensuing sidebar, she moved to strike her remark and then referenced "the 1990 murder" during closing argument. Griffith, 334 Ill.App.3d at 118, 267 Ill.Dec. 656, 777 N.E.2d 459. The prosecutor also intimated on cross-examination of the defendant that the 1990 incident took place in a prison. Griffith, 334 Ill.App.3d at 117, 267 Ill.Dec. 656, 777 N.E.2d 459.

The trial court had prohibited the prosecution from informing the jury that the 1990 incident had resulted in a conviction, but the prosecutor noted on cross-examination of the defendant's expert that the expert had been hired after the 1990 incident " 'to lessen [someone's] sentence.' " Griffith, 334 Ill.App.3d at 118, 267 Ill.Dec. 656, 777 N.E.2d 459. According tothe trial court's instructions, the jury was not to know the defendant had been sentenced to death for the 1990 murder, but upon cross-examination of another defense expert, the prosecutor indicated the expert had previously been retained in another case by the "Capital Resource Center," and stated the Center " 'deals with trying to get a prisoner not to get the death penalty.' " Griffith, 334 Ill.App.3d at 118, 267 Ill.Dec. 656, 777 N.E.2d 459.

During her rebuttal argument, the prosecutor likened the defendant to " 'walking barbecue tongs.' " Griffith, 334 Ill.App.3d at 119, 267 Ill.Dec. 656, 777 N.E.2d 459. Regarding the 1990 killing, she argued the defendant just " 'stuck his arm out and [the victim] just happened to fall onto the knife.' " Griffith, 334 Ill.App.3d at 119, 267 Ill.Dec. 656, 777 N.E.2d 459. With that skill, the defendant could be " 'worth a lot of money. You would put him near your barbeque and hot dogs and hamburgers just fly on and get poked by him.' " Griffith, 334 Ill.App.3d at 119, 267 Ill.Dec. 656, 777 N.E.2d 459. She compared the defendant to " 'a grenade in a baby carriage' " that " 'explodes in your face' " ( Griffith, 587 F.Supp.2d at 906), and called him a " 'deranged Energizer bunny' " ( Griffith, 587 F.Supp.2d at 912). She said that accepting the argument by defense counsel would give the defendant a " 'license to kill' " and individuals like defense counsel were " 'the reason Shakespeare said let's kill all the lawyers.' " Griffith, 334 Ill.App.3d at 119, 267 Ill.Dec. 656, 777 N.E.2d 459. She called the defendant's witnesses " 'a joke,' " " 'ridiculous,' " and " 'pathetic.' " Griffith, 587 F.Supp.2d at 906.

The defendant moved for a mistrial several times during the trial, with the trial court denying each motion. Griffith, 587 F.Supp.2d at 904. The jury found the defendant guilty of felony murder and armed robbery. He was sentenced to life in prison without the possibility of parole.

The Appeals

The defendant appealed his conviction, arguing, among other claims, that he was denied...