finding no error in testimony that defendant asked for an attorney where the testimony was inadvertently elicited, the jury was instructed to disregard it, and the prosecution did not comment upon defendant’s request for counsel during closing arguments
How later courts described this case
- finding no error in testimony that defendant asked for an attorney where the testimony was inadvertently elicited, the jury was instructed to disregard it, and the prosecution did not comment upon defendant’s request for counsel during closing arguments
- concluding no Doyle violation occurred when the State cross-examined the defendant about omissions in his post-Miranda statement to police where the defendant did not invoke the right to remain silent but omitted significant details to which he testified at trial
- concluding that no Doyle violation occurred where defendant’s post -Miranda statement to police was “markedly different,” including the omission of significant details, from his testimony at trial
- noting that Illinois recognizes exception to constitutional rule of Doyle v. Ohio , 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), prohibiting impeachment by means of post-arrest silence, where defendant has made prior inconsistent statements at time of arrest
Written by the judges who cited it.
The opinion
JUSTICE HEIPLE, concurring in part and dissenting in part:
In its essentials, the facts of this case are fairly straightforward. Defendant, Todd L. Frieberg, and a friend named Maloney drove a rented car to Florida from Bloomington, Illinois, supposedly to obtain money for a Bloomington nightclub that was experiencing financial difficulties. Maloney was the manager of the nightclub and defendant was an employee. Maloney told defendant that he was going to get a kilo of cocaine and take it back to Bloomington to sell it. After arriving back in Bloomington with the cocaine, they proceeded to defendant’s apartment and Maloney contacted a prospective buyer. Unfortunately for defendant and Maloney, the buyer was an undercover agent. Defendant was arrested and charged with possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1402(a)(2)); possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1401); and controlled substance trafficking (Ill. Rev. Stat. 1987, ch. 56½, par. 1401.1(a)).
Curiously, the jury convicted the defendant of possession of a controlled substance and also of controlled substance trafficking but acquitted him on the charge of possession with intent to deliver a controlled substance. Judgment was entered on the verdicts and the defendant was duly sentenced. He was fined $50,000 and sentenced to concurrent terms of 30 years’ imprisonment for the trafficking offense and 15 years’ imprisonment for the possession offense. The appellate court affirmed and the majority of this court likewise affirms. While I would affirm the conviction for possession of a controlled substance, I would reverse the conviction for controlled substance trafficking and remand the cause to the trial court for resentencing.
In relevant part, the controlled substance trafficking ■statute provides that any person who knowingly brings into Illinois a controlled substance with intent to deliver is guilty of controlled substance trafficking. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401.1(a).) The jury convicted defendant of that charge.
Also, in relevant part, the possession with intent to deliver a controlled substance statute provides that a person who knowingly possesses a controlled substance with intent to deliver is guilty of the offense of possession with intent to deliver a controlled substance. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401.) The jury acquitted the defendant of that charge.
Suffice it to say that the above two verdicts are flatly inconsistent. It is neither factually nor legally possible for the defendant in this case to be guilty of the one offense and not guilty of the other. If, as the jury found, he was not guilty of possession with intent to deliver a controlled substance, then he could not possibly be guilty of controlled substance trafficking. The significance of these inconsistent verdicts is that the conviction for trafficking must be reversed. That is so because both the fifth amendment, to our Federal Constitution (U.S. Const., amend. V) and section 10 of article I of our State Constitution (Ill. Const. 1970, art. I, §10) provide that a person shall not be twice put in jeopardy for the same offense.
The majority opinion devotes some seven, pages to a logomachic discussion of the meaning and comparison of such words and concepts as mental state, purpose, for the purpose of, intent, intent to deliver, knowledge, knowingly, and even the word “or.” It includes a discussion of legislative intent and history and compares statutes in other jurisdictions. Finally, it concludes that the verdicts are not inconsistent. The majority discussion reminds me of a eulogy once delivered in respect of a deceased professor of linguistics. The speaker remarked, “He was a learned professor. He could take a very simple matter and, in just a few moments time, make it completely incomprehensible.” So far as I am concerned, a plain reading of the relevant statutes and their application to the facts of this case convinces me that the verdicts are inconsistent.
Accordingly, I respectfully dissent from that portion of the majority opinion which affirms the conviction of controlled substance trafficking. I would affirm the conviction for possession of a controlled substance and I would remand the cause to the trial court for resentencing.
JUSTICE BILANDIC joins in this partial concurrence and partial dissent.