People v. Brown

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Appellate Court Date: 2018.02.26

10:15:26 -06'00'

People v. Brown, 2017 IL App (2d) 160971

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption MARISSA BROWN, Defendant-Appellant.

District & No. Second District

Docket No. 2-16-0971

Filed December 18, 2017

Decision Under Appeal from the Circuit Court of Winnebago County, No. 10-CF-543;

Review the Hon. Rosemary Collins, Judge, presiding.

Judgment Affirmed and remanded.

Counsel on Craig M. Sandberg, of Muslin & Sandberg, of Chicago, for appellant.

Appeal

Joseph P. Bruscato, State’s Attorney, of Rockford (Patrick Delfino,

Lawrence M. Bauer, and Marshall M. Stevens, of State’s Attorneys

Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE McLAREN delivered the judgment of the court, with

opinion.

Justices Jorgensen and Spence concurred in the judgment and opinion.

OPINION

¶1 This is the third appeal by defendant, Marissa L. Brown. In her first appeal, we vacated her

convictions of three counts of felony disorderly conduct (720 ILCS 5/26-1(a)(4) (West 2010))

(making a false report to public employees) because the Winnebago County circuit court had

improperly allowed the State to remove a juror with a peremptory challenge after the trial had

started. We further granted her request for a new trial. In her second appeal, we affirmed the

trial court’s denial of defendant’s motion to dismiss the remaining counts on double-jeopardy

grounds. In this third appeal, we again review the trial court’s denial of a motion to dismiss the

remaining counts on double-jeopardy grounds: defendant asserted that the prosecutor

intentionally sought to goad her to move for a mistrial. That is, she asserts that retrial is barred

due to intentional prosecutorial overreaching. The State argues that multiple grounds for

affirmance exist. We agree, and we thus affirm.

¶2 I. BACKGROUND

¶3 Defendant originally had a jury trial on four counts of felony disorderly conduct. Each

count alleged that, on January 5, 2010, defendant, who had no reasonable basis to believe that

an offense had occurred, had told a public employee or peace officer that she had been the

victim of an aggravated assault. (Defendant had reported that someone had come into the

restroom of Rockford’s Roosevelt Alternative High School while she was there and had

threatened her with a handgun.) Each of the counts was based on an allegation that a different

person had heard defendant’s report: Roosevelt principal Angela Hite Carter, Rockford

schools employee Ellen Van Horn, law-enforcement officer Patrice Turner, and

law-enforcement officer Courtney Tillmon-Listhrop.

¶4 The parties disagreed whether the jury should hear about possible links between

defendant’s case and the fatal shooting by Rockford police officers of a man, Mark Barmore,

whom they were pursuing. Defendant witnessed the shooting, which occurred in the church of

which her parents were the pastors. The State sought to exclude evidence relating to the

shooting as irrelevant, while defendant argued that excluding everything related to it would

deprive the jury of necessary context. The court ruled for the State and barred both parties from

putting on any evidence that mentioned or alluded to the shooting or that mentioned “the name

of any family member not previously disclosed to the People in the defense’s trial witness list.”

¶5 Jury selection for the trial was superficially unremarkable. The witnesses, whose names the

court read at voir dire, had no evident connection to the Barmore case, and none of the selected

jurors disclosed significant ties to any of the witnesses or to defendant. Neither the court nor

either party mentioned the names of defendant’s parents to the potential jurors, and none of the

questions asked of the potential jurors related to the Barmore case. However, unbeknownst to

the court or the parties, one juror selected, Carl Posley, was Barmore’s cousin.

¶6 Carter, the principal of defendant’s school, was the State’s first witness. She testified that

defendant’s parents had come to her office and had reported an incident. Based on what she

heard, she called two other school employees into the office. With defendant’s parents and one

employee, Van Horn, present, Carter telephoned defendant, identifying herself and mentioning

the presence of defendant’s parents but not that of Van Horn. Carter initially had difficulty

talking to defendant, who was evidently upset. Eventually, defendant told Carter that someone

had come into a school restroom while she was in it, waved a gun at her, and told her to “shut

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the f-u-c-k up.” In addressing Carter, the State referred to defendant’s parents as “the Browns.”

On cross-examination, defense counsel educed evidence that Carter knew defendant’s parents

and was aware that they were pastors of a local church. The colloquy suggests that defense

counsel had asked Carter to identify defendant’s mother in the courtroom audience and that the

State had not objected to this.

¶7 The court called a recess when the State’s second witness finished testifying. On

reconvening, the court told the parties that a juror had told the bailiff that he had a connection

to the Barmore case:

“THE COURT: We do have another issue, though. We have a juror who indicated

that after [defense counsel] pointed out who the parents were and their position in the

community, then he did recognize, uh, the parents of [defendant] as the pastors of a

church, uh, that his cousin, uh, was shot at and killed.”

The prosecutor responded that she “would think that we have an issue for cause at this point.”

The court agreed that that might be so and had Posley brought into the courtroom so that it

could question him. Posley told the court that he had never had any contact with defendant or

her parents but was aware of their tie to the shooting. However, he did not think that his

connection to Barmore would affect his impartiality. The State suggested to Posley that he was

upset; Posley responded that the incident had been traumatic, but he continued to assert his

ability to be impartial.

¶8 The court allowed Posley to leave the courtroom, and the court and the parties considered

the proper response:

“[THE STATE]: Judge, given the *** Motions in Limine *** there is no way that,

um, this juror would not have information about that incident. *** [W]e’re asking that

he be excused and an alternate be seated.

[DEFENSE COUNSEL]: Well, we do not agree with that, Your Honor. *** [H]ad

this come up in voir dire and he had said exactly what he had said here—that he could

put it out of his mind, that he could be fair, that he would judge this same way had it not

happened—I do not believe Your Honor would strike him for cause, having been asked

those. *** And we would object to removing him.

THE COURT: Well, you are right. I don’t know that I would have struck him for

cause, um, but I think that there is a chance that the State would have used a

peremptory. *** [T]hat’s why the Court [granted] the motion *** that there would be

no referral to the Barmore case. ***

Um—(pauses)—so, State, you are asking me to let you exercise a peremptory

challenge at this time?

[THE STATE]: Yes, Your Honor.

*** And we would absolutely have used a peremptory had this information come

forward, *** and we are asking to do that at this point.

THE COURT: ***

This information was brought out *** as a result of *** [the] defense attorney’s

behavior, uh who had these people identified in court, *** made a—fairly large deal of

the fact that they were pastors in a local church, and, uh—and, in fact, had a witness

identify them in court. So it is certainly an issue that I think should have been brought

to the Court’s attention ahead of time ***. ***

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Over defense objection I’m gonna allow the State to use a peremptory.”

The court seated an alternate juror, and the trial resumed with testimony from another of the

State’s witnesses.

¶9 The State’s evidence tended to show that defendant made allegedly false reports twice. She

made the first when Carter called her; Van Horn was a witness to at least some of that

conversation. Defendant made the second report in-person to Turner and Tillmon-Listhrop, the

law-enforcement officers. The school and the police investigated defendant’s reports and

concluded that they were false, largely because security recordings from a camera near the

bathroom failed to show anyone resembling the assailant whom defendant had described. After

the State rested, defendant testified. She described being threatened in the bathroom by a

person with a gun.

¶ 10 The jury found defendant guilty on three of the four counts but acquitted her on the count

alleging a false report to Van Horn. Defendant moved for a new trial, arguing, inter alia, that

the court “erred in allowing the State to dismiss[ ] Mr. Posley[ ] as a juror[ ] because he was the

cousin of Mark Baremore [sic].” She further argued that the court erred in allowing the State to

use a peremptory challenge after the jury was sworn and the trial had started. The court denied

defendant’s motion, and she appealed.

¶ 11 On appeal, defendant “pray[ed for] an Order *** reversing her conviction[s] *** and

ordering a new trial.” We held that Posley’s removal was structural error, thus mandating

“automatic reversal.” People v. Brown, 2013 IL App (2d) 111228, ¶ 30. In reaching our

conclusion, we rejected the State’s argument that the error was harmless because the trial court

had the discretion to remove Posley for cause and because nothing suggested that the alternate

who replaced Posley was biased; we concluded, among other things, that “the court [had]

suggested that it was leaning against removal for cause.” Brown, 2013 IL App (2d) 111228,

¶ 31. We vacated defendant’s convictions and granted defendant’s request for a new trial on

those counts. Brown, 2013 IL App (2d) 111228, ¶ 30.

¶ 12 On remand, defendant, who had retained new counsel, moved to dismiss the remaining

counts as barred under, inter alia, double-jeopardy principles. The court denied the motion,

and defendant filed an appeal under Illinois Supreme Court Rule 604(f) (eff. Feb. 6, 2013)

(permitting interlocutory appeal after a denial of a motion to dismiss based on former

jeopardy). In the second appeal, defendant asked to reverse the denial based largely on one-act,

one-crime principles. We affirmed the denial and again remanded the matter to the trial court.

People v. Brown, 2015 IL App (2d) 140809-U.

¶ 13 On the second remand, defendant once more moved for the dismissal of the remaining

three counts, again contending that double-jeopardy principles barred her retrial. This time, she

argued that the “prosecutor took the unprecedented step of successfully recalibrating the jury

composition from the agreed[-]upon panel” and that this was “specifically designed to provoke

a mistrial in order to secure a second and perhaps more favorable opportunity to convict the

defendant and/or to reconstitute the jury composition in order to secure a more favorable jury

composition in order to convict the defendant.” She further claimed that the court had denied

the State’s motion to remove Posley for cause and that it was only after that ruling that the

prosecutor decided to try to use the remaining peremptory challenge. She suggested that the

prosecutor’s action was so clearly impermissible that it was explicable only if the prosecutor

intended to goad her into moving for a mistrial.

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¶ 14 The State responded that double-jeopardy principles do not bar a defendant’s retrial when a

reviewing court has held that a conviction is unsustainable due to trial error. It argued that

nothing in the circumstances of Posley’s excusal suggested that the prosecutor was trying to

push defendant to seek a mistrial. Finally, it noted that she was the one who, in her first appeal,

had asked for retrial.

¶ 15 In reply, defendant asserted that the State’s decision to concede the impropriety of Posley’s

excusal was evidence that the prosecutor knew when she excused Posley that her actions were

wrong. She contended that the prosecutor displayed animus toward her, which she suggested

was a result of her links to the Barmore case. She argued that this animus was evinced by the

prosecutor’s vindictive overcharging in this case and by her persistence in seeking to remove

Posley after the court denied her motion to remove him for cause. The State filed a surreply

that, inter alia, objected to the “inflammatory language” of the reply.

¶ 16 The court denied defendant’s motion on two bases: (1) that this court had “remanded the

case specifically for a new trial, and that’s what will happen” and (2) that the “allegations made

in the defense motion to dismiss [were] unsupported by any evidence and [were] not [a] basis

for the Court to *** dismiss [the] charge[s].” Defendant again filed an appeal under Illinois

Supreme Court Rule 604(f) (eff. Feb. 6, 2013).

¶ 17 II. ANALYSIS

¶ 18 On appeal, defendant argues that the prosecutor’s conduct was intended to goad her into

moving for a mistrial—that is, she raises a claim of “intentional prosecutorial overreaching,”

although she does not use that phrase:

“The prosecutor’s intentional conduct, after this trial court denied the motion to

remove Juror Posley for cause, in seeking to use (and then using) an impermissible

peremptory challenge denied the defendant a fair trial and violated her due process and

double jeopardy rights.

The State intentionally committed error to try and [sic] force a mistrial in order to

secure a better trial venire. The State, in the instant cause, was acting in bad faith.”

She contends that it is immaterial that defense counsel did not seek a mistrial:

“[Defendant] has found no case law to indicate that, after the prosecutor engages in

conduct that was ‘intended to provoke the defendant into moving for a mistrial’, the

defendant had to have moved for a mistrial immediately. Clearly, thus, what matters is

whether *** the prosecutor’s conduct was intended to elicit a mistrial, i.e., by going

against 100 years of Illinois law.”

She asserts that the “nearly ‘unprecedented’ actions of the prosecutor” deprived her of a fair

trial, and she suggests that the prosecutor wanted to harass or inconvenience her because the

prosecutor was biased against her due to links both had to the Barmore matter. She asks that we

order that her “motion to dismiss *** be granted” and remand the matter “for proceedings

before a different judge.”

¶ 19 The State responds that defendant’s claim is both procedurally barred and without merit.

Procedurally, it argues that defendant was “estopped” several times over to raise the matter on

the second remand. First, citing People v. Marchbanks, 125 Ill. App. 3d 796 (1984), it asserts

that, because defendant never moved for a mistrial, she cannot now properly ask to have retrial

barred based on prosecutorial overreaching. Second, it asserts that, because defendant failed to

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raise the claim of overreaching in earlier proceedings, and particularly in her original appeal,

that claim is now barred by “collateral estoppel and res judicata.” On the merits, it asserts that

defendant did not show, and indeed could not show, that prosecutorial overreaching occurred.

It argues that the prosecutor had nothing to gain by seeking to end the trial after only one 1

witness had testified and that, in any event, the court, not the prosecutor, had the idea of

allowing the late use of the peremptory challenge.

¶ 20 In reply, defendant rejects as “incoherent” the State’s argument that res judicata or

collateral estoppel bars her claim. She argues that a trial with structural error is the equivalent

of a mistrial, so that Marchbanks is inapplicable in a case in which structural error occurred.

Further, defendant complains, “the State, for the first time in any briefing, has alleged that it

was the trial court’s actions (with the, apparent, implicit synergy of the State) that caused the

necessity of the mistrial by, effectively, impermissibly placing its proverbial thumb on the

scales of justice when the trial court proposed that a tainted juror could be substituted out via

an unused peremptory challenge.” (Emphasis in original and internal quotation marks

omitted.) She adds that, to the extent that the court initiated the excusal, we should hold that

judicial overreaching requires us to bar retrial.

¶ 21 We affirm. Each of the State’s three arguments is potentially dispositive; we address two of

them. First, we cannot let the procedural bar to defendant’s claim go unaddressed: this is

defendant’s third appeal, and defendant does not acknowledge any procedural limits on her

ability to raise new claims. We acknowledge that we cannot apply either of the preclusion

doctrines—res judicata and collateral estoppel—that the State says bar defendant’s claim, but

we hold instead that defendant’s claim is barred by the law-of-the-case doctrine. However, we

also address the merits of defendant’s claim for two reasons. The first is fairness: defendant did

not have a full chance to address the applicability of the law-of-the-case doctrine. The second

is to insist that arguments remain grounded in record facts. We hold that the record is devoid of

support for defendant’s claim. We need not address the applicability of Marchbanks, as both of

our holdings are dispositive.

¶ 22 The State asks us to hold that defendant’s claim is barred by “collateral estoppel and

res judicata.” We agree that a bar exists. However, because the claim arose in a remanded case,

not a case with a final judgment, the applicable preclusion doctrine is law-of-the-case, not

res judicata or collateral estoppel. Moreover, when the trial court commented that it was

denying defendant’s motion because this court had “remanded the case specifically for a new

trial, and that’s what will happen,” it too was applying the law-of-the-case doctrine. However,

identity of the applicable doctrine aside, the result is as the State suggests: defendant could not

raise her claim on the second remand.

¶ 23 Res judicata is inapplicable here; it applies only in cases in which there has been a relevant

final judgment, which has not occurred in this case. See Kasny v. Coonen & Roth, Ltd., 395 Ill.

App. 3d 870, 873 (2009) (the existence of “a final judgment on the merits rendered by a court

of competent jurisdiction” is one element of res judicata). There has been no final judgment on

defendant’s convictions. When the existence of preclusion by res judicata is at issue, a

judgment is a “final judgment” only if it terminates the litigation on the merits such that, absent

1

The State is incorrect on this minor point. Both Carter and a second witness had testified before

Posley was excused. However, that second witness’s testimony was unremarkable; we cannot see how

anything in it could have caused the prosecutor to want a mistrial.

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an intervention by a higher court, the only thing left to do is to execute the judgment. People v.

Anderson, 2015 IL App (2d) 140444, ¶ 26. An appellate court order that remands a matter for

further proceedings is thus not a final judgment as to that matter, so it lacks res judicata effect.

Anderson, 2015 IL App (2d) 140444, ¶ 26. Of course, defendant’s acquittal is final, but the

original proceeding did not present an opportunity to litigate double-jeopardy issues. It thus

has no res judicata effect here. Cf. Kasny, 395 Ill. App. 3d at 873 (res judicata bars issues that

could have been raised in the original proceeding). Collateral estoppel is inapplicable here for

the same reason that res judicata is: it requires a “final judgment on the merits in the prior

adjudication.” Nowak v. St. Rita High School, 197 Ill. 2d 381, 390 (2001).

¶ 24 Although res judicata and collateral estoppel are inapplicable here, the State has merely

invoked the wrong preclusion principles, as the law-of-the-case doctrine applies. “The

law-of-the-case doctrine, like the other preclusion doctrines of res judicata and collateral

estoppel, prevents a defendant from ‘ “taking two bites out of the same appellate apple.” ’ ”

Anderson, 2015 IL App (2d) 140444, ¶ 27 (quoting People v. Tenner, 206 Ill. 2d 381, 395

(2002), quoting People v. Partee, 125 Ill. 2d 24, 37 (1988)).

“The rule is that no question which was raised or could have been raised in a prior

appeal on the merits can be urged on subsequent appeal and those not raised are

considered waived. [Citations.] The rule obtains when a question sought to be raised

the second time around is of a constitutional nature. [Citation.] In such a case it is

presumed that appellant has no objections to urge against the record except those which

have been presented and he will not be permitted to assign such errors on a second

appeal. [Citation.] *** [A] party will not be permitted to have his cause heard part at

one time and the residue at another.” (Emphases added.) Kazubowski v. Kazubowski,

45 Ill. 2d 405, 413-14 (1970).

In brief, “the failure of a party to challenge a legal decision when it has the opportunity to do so

renders that decision the law of the case for future stages of the same litigation, and the party is

deemed to have waived the right to challenge that decision at a later time.” Reich v. Gendreau,

308 Ill. App. 3d 825, 829 (1999). Whether the law-of-the-case doctrine should bar a claim is an

issue of law; our review is thus de novo. In re Christopher K., 217 Ill. 2d 348, 363-64 (2005).

¶ 25 Here, nothing prevented defendant from raising her intentional-overreaching claim earlier.

It was thus barred under the law-of-the-case doctrine. To be sure, defendant implies that she

did not fully understand the extent of the prosecutor’s animus when she first appealed, so that

she did not recognize then that she had the claim. We are necessarily skeptical of the idea that

trial counsel was the target of an attempt to goad him to seek a mistrial, but that it took different

counsel to recognize that the attempt had occurred. Beyond that, defendant fails completely to

explain why she did not raise her claim on the first remand.

¶ 26 In any event, we agree with the trial court that the claim fails on its merits. We look to

Oregon v. Kennedy, 456 U.S. 667, 671-72 (1982), for the relevant law:

“The Double Jeopardy Clause of the Fifth Amendment protects a criminal

defendant from repeated prosecutions for the same offense. [Citation.] As a part of this

protection against multiple prosecutions, the Double Jeopardy Clause affords a

criminal defendant a ‘valued right to have his trial completed by a particular tribunal.’

[Citation.] The Double Jeopardy Clause, however, does not offer a guarantee to the

defendant that the State will vindicate its societal interest in the enforcement of the

criminal laws in one proceeding.” Kennedy, 456 U.S. at 671-72.

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Typically, the clause does not protect a defendant from retrial when he or she has moved for a

mistrial. Indeed, it does not protect a defendant from retrial when, despite his or her objection,

a mistrial has been declared because the jury cannot reach a verdict or in other instances of

“manifest necessity.” Kennedy, 456 U.S. at 672-73. The Kennedy Court recognized a single

exception to that rule, holding that the clause bars retrial when the prosecutor overreached with

the intention of provoking the defendant to move for a mistrial. This exception is narrow:

“Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient

to justify a mistrial on defendant’s motion, *** does not bar retrial absent intent on the part of

the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Kennedy,

456 U.S. at 675-76.

¶ 27 Defendant has failed entirely to support her claim that the prosecutor attempted to provoke

her to seek a mistrial. The argument at the heart of defendant’s claim is that, upon the court’s

denial of her motion to remove Posley for cause, the prosecutor proposed the midtrial use of a

peremptory challenge with the specific purpose of provoking defendant to seek a mistrial. The

record belies each assertion of fact within that argument. First, the record shows that the

procedural facts are not as defendant describes them. Second, the consequences of the error

allow us to infer with near certainty that the error was not deliberate and that no one could have

intended it to goad defendant into moving for a mistrial.

¶ 28 First, as we noted in defendant’s original appeal, the court never denied a State motion to

remove Posley for cause; indeed, the State never made such a motion. The court’s only

comment on how it might decide such a motion came in response to a hypothetical put forward

by defense counsel, who argued that the court would have denied a State motion to dismiss

Posley for cause had his link to Barmore come out at voir dire. The court responded that it did

not “know that [it] would have struck him for cause.” Only then did the court suggest that the

State might still use a peremptory challenge; it asked, “Um—(pauses)—so, State, you are

asking me to let you exercise a peremptory challenge at this time?” Although that question

might have been spurred by the prosecutor’s assurance that, had Posley’s link to Barmore

come out at voir dire, it would have exercised a peremptory challenge to remove him, the

court’s question is the record’s first suggestion of an in-trial use of a peremptory challenge. To

be sure, the prosecutor immediately adopted the idea, but the idea clearly came from the court.

¶ 29 In response to the State’s citing these facts, defendant asks us to consider the possibility of

intentional judicial overreaching. See Marchbanks, 125 Ill. App. 3d at 798 (suggesting that

judicial overreaching to induce a defendant to seek a mistrial should be treated in the same way

that similar prosecutorial overreaching is). However, that modification to defendant’s

argument does not get around her second factual problem: that she has no evidence that anyone

was trying to goad her to move for a mistrial.

¶ 30 The nature and circumstances of the error effectively preclude the possibility that either the

prosecutor or the judge deliberately caused it with the intention of goading defendant into

seeking a mistrial. Defendant points to the seriousness and rarity of the error as indications that

the error was deliberate, but she cannot explain how either the seriousness or the rarity might

indicate the intent to drive defendant to ask for a mistrial. Indeed, the nature of the error created

circumstances in which defendant had every reason to want the jury to reach a verdict. If a trial

contains a structural error, any resulting convictions are per se reversible. People v. Thompson,

238 Ill. 2d 598, 613 (2010) (structural error is second-prong plain error, and when it is present,

a defendant need neither have preserved the error nor show prejudice to get a reversal).

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Acquittals, however, cannot be reversed on appeal, which is why a trial with structural error

cannot be equated to a mistrial. See, e.g., Bravo-Fernandez v. United States, 580 U.S.___, ___,

137 S. Ct. 352, 358 (2016) (the government cannot seek review of an acquittal, even if it is the

result of patent error). Thus, the burden of the trial aside, the presence of structural error

created a no-lose situation for defendant and a no-win situation for the State. Even if we

assume that the prosecutor or the judge was driven by animus, it defies plausibility to think that

either would deliberately create such a situation.2

¶ 31 Moreover, getting the court to declare a mistrial would not have reversed any prejudice that

defendant suffered due to Posley’s removal. Although defense counsel wanted to retain

Posley, that was evidently because he believed that Posley was favorable to defendant and not

because anything suggested that the alternate was more unfavorable than a typical juror would

be. Getting the court to declare a mistrial would not have brought back Posley.

¶ 32 As defendant’s claim is both barred under the law-of-the-case doctrine and without merit,

we affirm the trial court’s denial of defendant’s motion to dismiss, and we remand the matter

for a new trial. We acknowledge that defendant has requested that we order that the case be

assigned to a judge not involved in the case’s earlier stages. Because that request rests entirely

on the idea that the error was the deliberate result of animus and because our analysis makes

clear why we do not credit the notion that the error was deliberate, we also deny that request.

¶ 33 III. CONCLUSION

¶ 34 For the reasons stated, we affirm the denial of defendant’s motion to dismiss based on

double jeopardy, and we remand the matter for retrial. As part of our judgment, we grant the

State’s request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a)

(West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).

¶ 35 Affirmed and remanded.

2

Defendant’s argument is more logical if it is read to suggest that the prosecutor or the court was

seeking to harass defendant by forcing her to undergo a second trial. If that is what she is arguing, she

cannot get past the holding in Kennedy, which specifically limited the intentional-overreaching rule to

cases in which there was conduct intended to goad the defendant to seek a mistrial. In any event, for the

reasons we have set out, a prosecutor or court with such a scheme of harassment in mind would not

want to introduce structural error.

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