Petition for Writ of Certiorari — Bannister v. Illinois

Supreme Court brief2010

Ask Donna

What actually matters in this document.

Text

Supreme Court of the

\a\ a lun 09-___ a

IN THE

FILED

JUIN 2.42010

OFFICE OF THE CLERK

nited States

JAMES BANNISTER,

Petitioner,

ILLINOIS,

Respondent.

On Petition for a Writ of Certiorari

to the [linois Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Abishi C. Cunningham, Jr.

Public Defender of

Cook County

Erica L. Reddick

Lester Finkle

Assistant Public Defenders

CooK COUNTY PUBLIC

DEFENDER

69 West Washington

15th Floor

Chicago, IL 60602

Amy Howe

-Kevin K. Russell

HOWE & RUSSELL, P.C.

7272 Wisconsin Avenue

Suite 300

Bethesda, MD 20814

Jeffrey L. Fisher

Counsel of Record

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@law.stanford.edu

Thomas C. Goldstein

AKIN, GUMP, STRAUSS,

HAUER & FELD LLP

1333 New Hampshire

Avenue, NW

Washington, DC 20036

RRO A NC RNASE EER SCENARIO

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 ~- WASHINGTON, D.C. 20002

QUESTION PRESENTED

Whether the prosecution’s’ presentation of

testimony at trial subject to a consistency provision in

a plea agreement — that is, a provision binding the

witness to testify consistently with prior statements

made to the police or prosecutors while not under

oath — contravenes the Due Process Clause.

TABLE OF CONTENTS

PREP A BODEN EF RRRGCSEGIN 0 BUD) ......0.sccrccvccensncnesssorescoasercssess i

ements OP AUTHORITIES .........00cccccccssssecsssesconseseces 111

PETITION FOR A WRIT OF CERTIORART.............. ]

I cvs acaknssnasceesranessnvesseetescranresuunesaiak 1

SE Ee rE RNS NEI ]

RELEVANT STATUTORY PROVISIONS ................. 1

meeeeeemeie | OF THE CASEL................ccccccsssssescesesess J

REASONS FOR GRANTING THE WRIT .................. 8

I. The Decision Below Widens An

Irreconcilable Conflict Among State

Sy UNE © RABUN v.ecsccesssesnsasctscccavasnenesanensn 9

II. The Question Presented Significantly

Impacts The Administration of Criminal

IEPA ene RN MERE IDI oc. 2 OR 6 16

III. The [Illinois Supreme Court’s Decision

Contravenes This Court’s Due Process

ES OOTP A SPELLS ERE 19

sca sania van aenineeavoneenennobiins ‘aieaaaeanan 27

APPENDIX A, Opinion of the Illinois Supreme

int a as sess nnnocsonnntiinnauicienvanenaaeohamase eels la

APPENDIX B, Opinion of the Appellate Court of

Taco cha sonia niin sbabeiintaonscnacuce eaten ert 32a

APPENDIX C, Docket Entry, Order of Illinois

Supreme Court Denying Rehearing ................. 67a

APPENDIX D, Plea Agreement of Michael

Lido rohan cceaaupeneundeamneelaeniacaaarrene 68a

APPENDIX E, Statement of Michael Johnson

SETI a's auiansaopiipaten dghcosmuninandacmameenaneoen 72a

11]

TABLE OF AUTHORITIES

Cases

Alcorta v. Texas, 355 U.S. 28 (1957) (per

RPEINIIE Ds otiacs sc ss ccracece dake senate issued 21, 26

Brady v. Maryland, 373 U.S. 83 (1963) .................. 23

California v. Green, 399 U.S. 149 (1970)... ee. 21

Estes v. Texas, 381 U.S. 532 (1965) ..............cccccceese 19

Foster v. Caltfornia, 394 U.S. 440 (1969).......0..0..... 23

Franklin v. State, 577 P.2d 860 (Nev. 1978) ....14, 15

Hall v. United States, 419 F.2d 582 (5th Cir.

RO isk cca escent dads ene 23

Hoffa v. United States, 385 U.S. 293 (1966)........... 16

Kyles v. Whitley, 514 U.S. 419 (1995) ....... ee. 23

Leslie v. State, 952 P.2d 966 (Nev. 1998) ......... 15, 26

Lilly v. Virginia, 527 U.S. 116 (1999) ................... 16

Manson v. Brathwaite, 432 U.S. 98 (1977)............. 23

Maryland v. Craig, 497 U.S. 836 (1990) .......0......... 21

Mattox v. United States, 156 U.S. 237 (1895) ........22

Mooney v. Holohan, 294 U.S. 103 (1935) (per

IND 5c, crv cans ssh counacasnesnsechcatckedsasieaianantcounven 21

Napue v. Iilinos, 360 U.S. 264 (1959) .........0..... 21, 26

People v. Allen, 729 P.2d 115 (Cal. 1986)............... 12

People v. Boyer, 133 P.3d 581 (Cal. 2006) .............. 13

People v. Garrison, 765 P.2d 419 (Cal. 1989) ...12, 13

People v. Jenkins, 997 P.2d 1044 (Cal. 2000)......... 13

People v. Jones, 600 N.W.2d 652 (Mich. Ct.

FR BE oikicctacaeibenwiusiiiaatea 7,10, 11,13

People v. Medina, 116 Cal. Rptr. 133 (Ct. App.

reece ere yeaa akan ae ieee eae 13

Perry v. Leeke, 488 U.S. 272 (1989).............:.:cccceee 19

Portuondo v. Agard, 529 U.S. 61 (2000) ................. 19

Sher1ff, Humboldt County v. Acuna,

Ae Week BUT AIH, RIED wadssnesscceversccissosccscconcsane 15

State v. Bolden, 979 S.W.2d 587

I a la avs passim

State v. Burchett, 399 N.W.2d 258 (Neb. 1986) ..... 14

State v. Clark, 743 P.2d 822 (Wash. Ct. App.

5 5 CORINNA Aa MA Ocak re NCR RRC nO En oe Pe ee 14

State v. DeWitt, 286 N.W.2d 379 (lowa 1979),

cert. denied, 449 U.S. 844 (1980)................0.008.. 14

State v. Dixon, 112 P.3d 883 (Kan. 2005)............... 13

State v. Fisher, 859 P.2d 179 (Ariz. 1993)........ 1 2

State v. Nerison, 387 N.W.2d 128 (Wis. Ct.

App. 1986)......... ai ec RE ee MER 10, 24

State v. Nertson, 401 N.W.2d 1 (Wis. 1987)..... 10, 18

State v. Rivera, 109 P.3d 83 (Ariz. 2005)................ 11

The Pizarro, 15 U.S. (2 Wheat.) 227 (1817)............ 21

United States v. Agurs, 427 U.S. 97 (1976)............ 19

United States v. Binker, 795 F.2d 1218 (5th

NNER Se RCE Mle PER EEN IY ROE 26

United States v. Brown, 720 F.2d 1059 (9th

2 RANE Dee AIS ee tee eine Ce 27

United States v. Ford, 99 U.S. 594, 600 (1878)...... 20

United States v. Gillfam, 23 C.M.A. 4 (1974)......... 12

United States v. Harlow, 444 F.3d 1255 (10th

+ 5S. EERE enone ein eel teen cree tion Oe 26

United States v. Stoltz, 14 C.M.A. 461

5 SRIRAM er eto sete SITE ce Se. Aon NO OR 11, 12

Washington v. Texas, 388 U.S. 14 (1967)............... 16

Young v. United States, 470 U.S. 1 (1985).............

Statutes and Rules

ae EG osc ucivaniencciacasnhuscucmnsmeeulandmeontene 1

Judiciary Act of 1789, § 30, 1 Stat. 73 (1789) 20

ee Es su vu cccuden ecsepeecaauasmariauaae Alaa 21

Other Authorities

Cay, John, The Statutes at Large, from Magna

Charta, to the Thirtieth Year of King

George the Second, Inclusive (1758)..................

Blackstone, William, Commentaries on the

E108 OF Eemtn CUTS) occ cicnsccccesccccesesnnsttevencanses

PETITION FOR A WRIT OF CERTIORARI

Petitioner James Bannister respectfully petitions

for a writ of certiorari to review the judgment of the

Illinois Supreine Court.

OPINIONS BELOW

The opinion of the Illinois Supreme Court, Pet.

App. la—3la, is reported at 923 N.E.2d 244 (Ill.

2009). The opinion of the Illinois Appellate Court,

Pet. App. 32a—66a, is reported at 880 N.E.2d 607 (III.

App. Ct. 2007). The relevant trial court proceedings

and order are unpublished.

JURISDICTION

The Illinois Supreme Court denied rehearing for

this case on January 25, 2010. Pet. App. 67a. Justice

Stevens subsequently extended the time to file this

petition to and including June 24, 2010. No. 09A951.

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a).

RELEVANT CONSTITUTIONAL PROVISION

The Fourteenth Amendment to the United States

Constitution provides, in relevant part: “No State

shall . . . deprive any person of life, liberty, or

property, without due process of law.”

STATEMENT OF THE CASE

In a typical plea agreement in which an

individual agrees to provide testimony in exchange

for prosecutorial leniency, the agreement requires the

individual to give truthful testimony at trial. This

case presents an important and recurring issue

concerning testimony offered pursuant to a different

type of plea agreement: one that not only requires

that the accomplice shall give truthful testimony, but

also requires that such testimony “shall be

consistent” with certain prior unsworn statements to

the police. Pet. App. 68a. A bare majority of the

Illinois Supreme Court held that the Due Process

Clause permits the prosecution to present such

testimony.

1. On an evening in 1989, in a housing project in

Chicago, several men shot at Dan Williams, killing

him and a bystander, Thomas Kaufman. Police

quickly surmised that the shooting was gang relatied

and concentrated .their investigation on suspected

members of a local street gang.

A few weeks after the shooting, Cook County

police officers interviewed Deanda Wilson, a twelve-

year-old member of a rival gang. According to

Wilson, the police began the interview by showing

him pictures of seven men, including petitioner,

whom they suspected of being involved in the

shooting. Wilson then told police that he had seen

those seven men shooting at the victims.

Another of the individuals depicted in the police

photographs was Michael Johnson. The _ police

arrested Johnson and showed him the same seven

photographs that they had showed to Wilson.

Johnson initially denied any involvement in the

incident or any knowledge of who was involved. Pet.

App. 7a. After twenty-four hours at the police

station, Johnson changed his story. He said that he

and the six other men in the photographs had all shot

and killed Williams and Kaufman. The police

recorded and transcribed Johnson’s statement, which

is reproduced at Pet. App. 72a—83a.

The State charged Johnson, petitioner, and the

five other individuals in the photographs with two

counts of first-degree murder. Because Johnson was

the only defendant to have implicated himself, the

trial court severed his trial from the others.

During Johnson’s_ pretrial proceedings, he

executed an affidavit saying that he had mistakenly

implicated one of the other codefendants, Eric Smith,

as one of the seven individuals involved in the

shootings. Later, Johnson testified under oath that

he had no recollection of confessing or implicating

others. Pet. App. 7a. Johnson was nevertheless

convicted of both counts and sentenced to life without

parole.

Johnson refused to testify at the trial of

petitioner and his five codefendants, thereby

precluding the State from introducing any of his

statements. The State introduced a variety of other

evidence implicating several of the defendants in the

shooting, but “the only direct evidence against

[petitioner] was the testimony of Deanda Wilson.”

Pet. App. 2a. Petitioner called four witnesses, each of

whom testified that he was at home at the time of the

shootings. The jury convicted all six defendants of

both counts, and the court sentenced each to life in

prison without parole.

2. Petitioner continued to maintain his innocence

on appeal and eventually filed a _ petition for

postconviction relief, based on the fact that Wilson

had recanted his trial testimony. Pet. App. 3a. The

trial judge responded that “this is a difficult situation

for me because it’s one of the few times in 20 years I

ever disagreed with a jury’s verdict on a particular

defendant. . . . ]HJad it been a bench trial I would

have found Mr. Bannister not guilty, given the

identification and his _ alibi.” Pet. App. 47a.

Nonetheless, he dismissed the petition without an

evidentiary hearing.

The Illinois Appellate Court reversed and

ordered the trial court to hold an evidentiary hearing.

At the conclusion of that hearing, the trial court

determined that Wilson’s testimony “was not

accurate and truthful” because he did not actually

witness the shooting. Pet. App. 3a; see also Pet. App.

37a-38a. Because the State had not offered any

other evidence at petitioner’s trial implicating him in

the murders, the court concluded that “the outcome of

{petitioner’s] trial likely would have been different

without Wilson’s perjured testimony” and vacated his

convictions. Pet. App. 3a.

3. The State elected to retry petitioner. To that

end, Cook County prosecutors approached Johnson,

who was then in the midst of serving his natural-life

sentence. He was housed in a super maximum

security prison under twenty-three-hour lockdown.

Six months later, the parties entered into a plea

agreement in which Johnson agreed to testify at

petitioner’s retrial. The agreement, in language

typical of plea bargains involving purported

accomplices, required Johnson to “testify truthfully in

all matters regarding the Ist Degree Murders of Dan

Williams and Thomas Kaufman.” Pet. App. 68a. The

agreement, however, further contained a consistency

provision, which required that:

Such truthful testimony shall be consistent

with Michael Johnson’s post-arrest

statements in December 28, and December

29, 1989, to Chicago Police officers and Cook

County Assistant State’s Attorneys and his

statements made to Cook County State’s

Attorney personnel during his _ pre-plea

agreement interviews on April 29 and May

24, 2004.

Pet. App. 68a. Put another way, this provision

prohibited Johnson from testifying in conformity with

the affidavit he signed during his prosecution. The

agreement also provided that the deal would be “null

and void” if, among other things, Johnson’s “post-

arrest statements and his pre-plea agreement

interviews, upon which this agreement was

predicated, ... are found to be false.” Pet. App. 70a.

In exchange for Johnson’s testimony, the State

agreed to vacate one of his murder convictions and to

recommend a significant reduction in his sentence for

the other. The State also agreed to recommend

transferring Johnson to a medium-security facility.

Pet. App. 69a—70a.

At petitioner’s second trial, the State put

Johnson on the stand, and he testified the way he

had promised to do in his agreement. Johnson’s

testimony was the only direct evidence that

petitioner was involved in the shooting. The State

presented three other eyewitnesses to the shooting,

but they all testified that they had seen only five

people shoot at the victims. None of them recalled

seeing petitioner that evening.’

1 The State presented one other witness who testified that

seven men — one of wnom was petitioner — had robbed him

In his defense, petitioner again presented four

alibi witnesses. As in 1991, each one testified that

petitioner was at his mother’s house when the

shootings occurred. Pet. App. 2a, 7a, 44a.

But to no avail. Sitting as finder of fact in a

bench trial, the same trial judge who oversaw

petitioner’s first trial convicted petitioner of both

counts of first-degree murder and sentenced him to

life in prison without parole. The State subsequently

made good on its promises to Johnson. Pet. App. 21a.

With good-time credits, he is scheduled to be released

from prison in ten years.

4. Petitioner appealed his conviction, arguing

that the State’s presentation of Johnson’s testimony

subject to the consistency provision in his plea

agreement violated his right to due process under the

Fourteenth Amendment. Pet. App. 48a. Petitioner

contended that the provision subverted the truth-

seeking function of trial because it interfered with

Johnson’s oath to testify truthfully.

The Illinois Appellate Court rejected’ the

argument and affirmed. Pet. App. 48a—52a. It did

not dispute that the Due Process Clause prohibits the

prosecution from presenting testimony that impedes

the truth-seeking function of trial. But it reasoned

that the consistency provision “did not violate

[petitioner’s] rights to due process and a fair trial”

shortly before the shootings. The State, however, never charged

petitioner with robbery. And when the prosecution asked the

witness to identify the seven men from photographs, the witness

wrongly identified a photograph of another one of the original

defendants as petitioner.

because the overall plea agreement “neither

compelled Johnson to disregard his oath of

truthfulness nor bound him to a particular script or

result.” Pet. App. 52a.

5. A bare majority of the Illinois Supreme Court

affirmed. Relying on State v. Bolden, 979 S.W.2d 587

(Tenn. 1998), and People v. Jones, 600 N.W.2d 652

(Mich. Ct. App. 1999), the majority held that

Johnson’s testimony pursuant to the consistency

provision did not violate due process because other

provisions of his plea agreement required Johnson

generally to tell the truth and provided that the

apreement was void “if any of the representations

contained in his prior statements were found to be

false.” Pet. App. 17a. In the majority’s view, these

provisions rendered the testimony acceptable because

they imposed an “overriding requirement... that the

accomplice . . . testify truthfully.” Pet. App. 17a.

Thus, the court concluded, the traditional safeguard

of cross-examination was _ sufficient to allow

petitioner to probe Johnson’s credibility. Pet. App.

17a—18a.?

The dissent disputed the majority’s suggestion

that the taint of a consistency provision can be erased

by a generalized truth-telling obligation in a plea

* The Illinois Supreme Court also held that petitioner lacked

standing to challenge the validity of Johnson’s plea agreement

itself. Pet. App. 8a—-10a. Petitioner does not renew that

argument here. Instead, he seeks review only of the Illinois

Supreme Court’s rejection of his argument that the admission of

“Johnson's testimony’ subject to the agreement “denied [him] a

fair trial.” Pet. App. 10a (emphasis added).

agreement. Agreeing with petitioner’s argument that

“the State has no crystal ball to know what the ‘truth’

is — it only knows what statements are consistent,”

Pet. App. 28a, the dissent maintained that a

provision requiring that a _witness’s_ in-court

testimony “sha// be consistent with certain of his

prior statements” violates due process, Pet. App. 30a.

This was especially true, the dissent contended, in

this case, in which “the witness[{] had a history of

inconsistent statements.” Pet. App. 30a.

6. The Illinois Supreme Court denied rehearing

without comment. Pet. App. 67a.

REASONS FOR GRANTING THE WRIT

The Illinois Supreme Court’s decision widens an

acknowledged division among state courts of last

resort and a federal court of appeals over whether the

prosecution’s presentation of testimony pursuant to a

consistency provision in a plea agreement violates

the Due Process Clause. This Court should resolve

this conflict. The criminal justice system relies

heavily upon the use of accomplice-turned-informant

testimony, and the use of consistency provisions to

contractually bind such witnesses to give particular

testimony at trial raises important questions about

the integrity of criminal trials.

Furthermore, the Illinois Supreme Court’s

decision holding that the Constitution allows

testimony pursuant to consistency provisions is

incorrect. The Due Process Clause prohibits the

prosecution from interfering with the truth-seeking

function of trial. When the prosecution presents

testimony subject to a consistency provision, the

prosecution requires the witness to recite a specific

version of events that it has predefined as the

“truth.” This interferes both with the witness’s

ability to discharge his oath - the centuries-old

mechanism for securing truthful testimony — and the

jury’s role as ultimate finder of fact.

1. The Decision Below Widens An Irreconcilable

Conflict Among State And Federal Courts.

Courts are intractably divided over whether the

prosecution violates the Due Process Clause when it

presents testimony at trial under a plea agreement

requiring that the witness’s testimony be consistent

with prior statements he made to law enforcement.

Courts take three different approaches to the issue:

four always allow such testimony; three never allow

such testimony; and one takes a_ fact-intensive

approach, but would not have allowed the testimony

at issue here.

1. The Illinois Supreme Court’s decision

allowing the prosecution to introduce accomplice

testimony pursuant to _ consistency provisions

comports with decisions of two other state supreme

courts and one intermediate appellate state court.

In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998),

the prosecution presented testimony from an

accomplice whose plea agreement required him to

testify “truthfully . .. and as he stated in his

statement to (law enforcement] on 3/21/94 at 6:05

p.m.” /d. at 589. The Tennessee Supreme Court held

that testimony pursuant to such a_ consistency

provision does not violate due process. Jd. at 593.

The court reasoned that such “testimony [i]s not

tainted” because a general truth-telling obligation

alongside a consistency provision makes “the

agreement hinge[] upon truthful testimony.” Jd. at

592. Thus, the jury may consider a consistency

provision in assessing a witness’s credibility, but

such a provision does not affect the permissibility of

the witness’s testimony. Jd. at 592-93.

The Wisconsin Supreme Court has similarly

held that an agreement requiring a _ purported

accomplice “to testify to the state’s version of the

‘truth, .. . fis} no different from any other...

negotiated plea agreement[] with accomplices in

exchange for their testimony.” State v. Nerison, 401

N.W.2d 1, 8 (Wis. 1987). Accordingly, in a case in

which the Wisconsin Court of Appeals had held that

the prosecution violated due process by presenting

testimony from a witness whose plea agreement

required him to testify “consistent with his testimony

at [an earlier] [fhJearing,” State v. Nerison, 387

N.W.2d 128, 133 (Wis. Ct. App. 1986), the Wisconsin

Supreme Court reinstated the defendant’s conviction.

The court concluded that the normal procedural

safeguards used to protect a defendant’s right to a

fair trial in a case involving a plea agreement — cross-

examination, disclosure of the agreement, and jury

instructions on accomplice credibility — are always

enough to guarantee due process. Nerison, 401

N.W.2d at 8.

Lastly, the Michigan Court of Appeals has held

that due process allows the prosecution to present

testimony subject both to a general truthfulness

provision and a consistency provision. Jeople v.

Jones, 600 N.W.2d 652, 656—57 (Mich. Ct. App. 1999).

The court reasoned that although such a consistency

provision provides “some incentive” for a witness “to

conform [his] trial testimony to [his] prior accounts,”

it does not “render[) the witnesses’ testimony so

tainted as to be inadmissible.” Jd. at 657.°

2. One federal court of appeals and two state

high courts have adopted precisely the opposite

position. The U.S. Court of Appeals for the Armed

Forces (formerly the U.S. Court of Military Appeals)

has held that due process prohibits the prosecution

from presenting an accomplice’s testimony subject to

a provision that requires the witness to testify

consistently with a pretrial statement to law

enforcement. United States v. Stoltz, 14 C.M.A. 461,

464 (1964). Declaring that a consistency provision

“obviously detract[s] from the quest for truth,” the

° The Illinois Supreme Court also suggested that its holding

is consistent with the Arizona Supreme Court’s decision in State

v. Rivera, 109 P.3d 83 (Ariz. 2005). But Avera did not involve

a consistency provision. Jd. at 87. Instead, the witness’s plea

agreement simply recited an avowal from the witness that her

prior statements were truthful. /d. at 84. The Arizona Supreme

Court made clear that such an avowal “is not the same as

requiring [a witness] to testify consistently with [a] specific

version of the facts.” Jd. at 86. What is more, the Arizona

Supreme Court expressly rejected the holdings of Tennessee and

Wisconsin supreme courts that a witness’s “obligation to testify

truthfully over[comes] any pressure” a consistency provision

imposes “to testify consistently with a prior statement.” Jd. at

87; see also State v. Fisher, 859 P.2d 179, 184 (Ariz. 1993)

(holding that consistency provisions are unenforceable because

they “undermine the reliability and fairness of the trial . . . and

taint the truth-seeking function of the courts by placing undue

pressure on [a] witness[] to stick with one version of the facts

regardless of [the truth]”).

court “utterly condemn|{s]” testimony pursuant to

such a provision “as a pollution of the stream of

justice.” Jd. at 464-65; see also United States v.

Gilliam, 23 C.M.A. 4, 8 (1974) (testimony subject to

agreement that “required [a witness] to testify in a

particular manner” improperly bound the witness

“without regard for the sanctity of his oath”). The

court allows accomplice testimony subject to a plea

agreement only when there is a “complete

understanding . . . that [the witness is] to testify on/y

truthfully” — a requirement that cannot be met when

a plea agreement contains a consistency provision.

Gilliam, 23 C.M.A. at 8 (emphasis added). In the

years following these holdings, there does not seem to

be any record of any federal prosecutor — inside or

outside of the military — presenting testimony subject

to a consistency provision.

The Supreme Court of California has reached

the same conclusion, reasoning that when the

prosecution provides a purported accomplice with a

benefit “subject to the condition that his testimony

substantially conform to an earlier statement given

to police,” then “the accomplice’s testimony is ‘tainted

beyond redemption’ and its admission denies the

defendant a fair trial.” People v. Allen, 729 P.2d 115,

130-31 (Cal. 1986) (quotation and citation omitted)

(citing People v. Medina, 116 Cal. Rptr. 133, 141 (Ct.

App. 1974)). In other words, when a bargain is

“expressly contingent on the witness sticking to a

particular version” of his story, People v. Garrison,

765 P.2d 419, 430 (Cal. 1989), “[t]he error involved in

the use of such tainted testimony is a denial of the

fundamental right to a fair trial in violation of federal

constitutional principles.” Jd. at 428 (alteration in

original) (quoting Medina, 116 Cal. Rptr. at 146).*

The Kansas Supreme Court likewise has held

that the prosecution may not present testimony

pursuant to a consistency provision. In State v.

Dixon, 112 P.3d 883 (Kan. 2005), a witness agreed in

a probation agreement to “testify ... in a consistent

and truthful manner as set forth in his [sworn]

inquisition.” /d. at 914. Noting the “split in author-

ity as to whether a consistency agreement affects a

defendant’s right to a fair trial,” the Kansas Supreme

Court specifically rejected the Michigan Court of

Appeals’ holding in Jones. /d. at 915-17. Instead, it

ruled that the prosecution may not require anything

more of accomplices in plea agreements than they

“testify[] completely and truthfully,” even when the

prior statements at issue were given under oath. /d.

at 917. Otherwise, the accomplice will feel too much

pressure to adhere to his prior statements. See id. at

915.

‘ The Illinois Supreme Court’s suggestion that the

California Supreme Court has since backed away from these

decisions, see Pet. App. 12a, is incorrect. While the California

Supreme Court has declined to extend the “Medina rule,” it has

never cut back on the rule itself. See People v. Boyer, 133 P.3d

581, 612-13 (Cal. 2006) (distinguishing plea agreements in

which witness represents that prior statements are truthful

from those that require consistency and _ reaffirming

impermissibility of testimony subject to the latter); People v.

Jenkins, 997 P.2d 1044, 1119-20 (Cal. 2000) (allowing

accomplice testimony while charges are pending against the

accomplice because pending charges are not the same as a

consistency provision).

Petitioner would also likely prevail in three

additional states whose courts have not directly

confronted the issue but nonetheless have strongly

suggested that the admission of testimony pursuant

to a consistency provision violates due process. See

State v. DeWitt, 286 N.W.2d 379, 384 (Iowa 1979)

(agreeing that plea agreement requiring conformity

with specific statements violates due process, but

concluding that the plea agreement at issue did not

so require), cert. denied, 449 U.S. 844 (1980); State v.

Burchett, 399 N.W.2d 258, 266 (Neb. 1986) (same,

reasoning that “it is only where the prosecution has

bargained for false or specific testimony... that an

accomplice’s testimony is so tainted as to require its

preclusion” (emphasis added) (citing DeWiytt, 286

N.W.2d at 384)); State v. Clark, 743 P.2d 822, 828

(Wash. Ct. App. 1987) (citing the California Court of

Appeal’s decision in Medina for the rule _ that

consistency provisions violate due process but finding

no such provision in the case before it).

3. The Nevada Supreme Court takes a context-

specific approach to testimony subject to consistency

provisions, under which petitioner would also prevail:

the prosecution may not present testimony subject to

consistency provisions, at least when _ credible

evidence does not corroborate the testimony. In

Franklin v. State, 577 P.2d 860 (Nev. 1978), the

Nevada Supreme Court held that “testimony becomes

‘tainted beyond redemption’ where the accomplice is

placed under compulsion to testify in a particular

fashion in order to receive the benefits of his plea

bargain.” Jd. at 862. Such testimony “violates the

defendant’s due process rights,” the court held,

because it “call[s] upon an alleged ‘accomplice’ to

disregard his or her oath,” thereby undercutting the

witness’s obligation to “render a full, fair, and

accurate account of the facts.” Jd. at 862 & n.3.°

The Supreme Court of Nevada later suggested

that the prosecution might be allowed to introduce

testimony subject to a consistency provision when

there is “[cjJredible evidence” corroborating the

testimony. Leslie v. State, 952 P.2d 966, 972-73

(Nev. 1998). Even under such a rule, however, the

Nevada Supreme Court still would have condemned

the testimony subject to the consistency provision in

this case because Johnson’s testimony was not

corroborated. To the contrary, Johnson provided the

only direct evidence implicating petitioner in the

shooting.

° Apart from concluding that presenting testimony subject to

an express consistency provision violates due process, the

Nevada Supreme Court also held in Franklin that the

prosecution could not present any testimony subject to a plea

agreement that would “reasonably cause the alleged accomplice

to believe he must testify in a particular fashion,” even if the

agreement was not “expressly conditioned on_ specific

testimony.” 577 P.2d at 862. The Nevada Supreme Court has

overruled the latter holding, making clear in Sheriff? Humboldt

County v. Acuna, 819 P.2d 197 (Nev. 1991), that the prosecution

may, consistent with due process, “bargain in good faith for

testimony represented [during plea negotiations] to be factually

accurate.” Jd. at 200 & n.4. But contrary to the Illinois

Supreme Court’s misleading reference to Acuna, see Pet. App.

16a, the Nevada Supreme Court reaffirmed in that case that the

prosecution may not present testimony “where the bargain

[itself] compels the witness to provide particularized testimony.”

819 P.2d at 201.

II. The Question Presented Significantly Impacts

The Administration Of Criminal Justice.

This Court should resolve the constitutionality

of presenting testimony subject to consistency

provisions now for at least two reasons.

1. The question presented implicates. the

reliability and public integrity of criminal trials.

There is no doubt that using accomplice testimony

procured through plea bargaining is a necessary and

accepted component of our criminal justice system.

See Hoffa v. United States, 385 U.S. 298, 311 (1966).

Accordingly, the prosecution may offer a benefit to an

accomplice in exchange for the accomplice’s

agreement to testify fully and truthfully at another’s

trial.

At the same time, this Court repeatedly has

stressed that a purported accomplice’s testimony that

shifts or spreads blame carries “presumptive

unreliability,” Lilly v. Virginia, 527 U.S. 116, 137

(1999), in part because accomplices have a great

“interest in lying in favor of the prosecution” in order

to secure more lenient treatment. Washington v.

Texas, 388 U.S. 14, 22-23 (1967). Accomplice

testimony pursuant to plea agreements that do not

simply require accomplices to testify truthfully, but

also that contractually require them to testify in a

specific way, exacerbates these concerns. Such

testimony also raises suspicions insofar as it suggests

that a general truth-telling requirement_will not

alone produce the testimony the prosecution desires.

2. Indeed, it appears that prosecutors reserve

consistency provisions for cases in which an

accomplice’s blame-spreading testimony is_ par-

ticularly suspect. Petitioner’s understanding is that

neither federal prosecutors nor prosecutors’ offices in

some states ever insert such provisions in plea

agreements; these offices simply require accomplices

to give truthful testimony at_ trial. Nor do

prosecutors’ offices in the remaining states insert

consistency provisions in the mine run of cases. But

that does not mean that the legality of presenting

testimony subject to such provisions is an

inconsequential matter. To the contrary, prosecutors

seem to reserve such provisions for cases in. which

accomplices have told prior inconsistent stories and

there is no direct corroboration for the story that the

prosecution wants the witness to recite:

e Here, the accomplice made several contra-

dictory statements — only some of which implicated

petitioner — before entering into his plea agreement.

Indeed, he testified twice under oath in ways that

conflicted with the unsworn statements to the police

that his plea agreement required him to repeat at

petitioner’s trial. See supra at 3. Had Johnson not

presented the most prosecution-friendly version of his

story at petitioner’s trial, the prosecution would have

been unable to convict petitioner, as he was the only

witness to directly implicate petitioner in the

shooting. Pet. App. 3a—7a.

e In Bolden, the Tennessee case on this issue,

the accomplice initially entered into a traditional plea

agreement to testify against the defendant. 979 S.W.

2d at 589. Once on the stand, however, he failed to

inculpate the defendant. /d. During a recess in the

trial, the prosecution negotiated a new plea bargain

in which the accomplice agreed, in exchange for a

further reduction in his sentence, to testify not only

truthfully but also “as he stated in his statement to

(law enforcement} on 3/21/94 at 6:05 p.m.” Jd. The

prosecution then recalled the witness to the stand,

where he testified as the prosecution wished. Jd.

e In Nerison, the Wisconsin case on this issue,

one individual involved in a theft repeatedly told law

enforcement, and later testified under oath, that the

defendant was not involved in the crime; another

repeatedly said that he did not know whether the

defendant was involved. 387 N.W.2d at 129-33.

After the two alleged accomplices were convicted,

however, they claimed for the first time, in exchange

for newly offered promises of leniency, that the

defendant Aad been involved. Jd. at 130. The

prosecution then charged the defendant and

introduced this testimony at his trial, subject to the

accomplices’ promises to testify consistently with

their new accusations and inconsistently with their

prior sworn testimony. Id. at 132-33. The

accomplices’ blame-spreading testimony constituted

“the only’ testimony _ specifically implicating

[defendant] in the ‘conspiracy.” Jd. at 130.

Until this Court resolves the conflict over the

constitutionality of presenting testimony subject to

consistency provisions, the due process rights of

criminal defendants will vary based on geographic

happenstance. And in those states that permit

consistency provisions, prosecutors will continue to

use them in precisely the kinds of cases in which it is

paramount that witnesses appreciate their obligation

to tell the whole truth and nothing but the truth.

III. The Illinois Supreme Court's Decision

Contravenes This OCourt’s Due _ Process

Jurisprudence.

The Due Process Clause guarantees a

fundamentally fair trial, and “the sine qua non of a

fair trial” is “[clourt proceedings [that] are held for

the solemn purpose of endeavoring to ascertain. the

truth.” Estes v. Texas, 381 U.S. 532, 540 (1965); see

also Portuondo v. Agard, 529 U.S. 61, 73 (2000) (The

“central function of the trial . . . is to discover the

truth.”). Accordingly, the Due Process Clause

imposes various bedrock requirements concerning

witness testimony that are necessary to prevent the

“corruption of the truth-seeking function of the trial

process.” United States v. Agurs, 427 U.S. 97, 104

(1976); see also Perry v. Leeke, 488 U.S. 272, 282

(1989) (due process rules that apply to witnesses are

“rules that serve the truth-seeking function of the

trial.”).

These truth-seeking requirements manifest

themselves in two overlapping’ strands’. of

jurisprudence that preclude the prosecution from

deviating from the ordinary practice of requiring

witnesses solely to testify truthfully and instead

introducing their testimony subject to consistency

provisions. First, the prosecution may not interfere

with a witness’s ability at trial to take an oath to tell

“the whole truth.” Second, the prosecution may not

act as an arbiter of truth, impeding or distorting the

jury’s ability to determine the truth for itself

according to all relevant and admissible evidence.

The prosecution’s presentation of testimony pursuant

to consistency provisions runs afoul of both of these

prohibitions.

1. In the common law tradition, “|t]he oath

administered to the witness is not only that what he

deposes shall be true, but that he shall depose the

whole truth: so that he is not to conceal any part. of

what he knows, whether interrogated particularly to

that point or not.” 3 William Blackstone, Com

.mentartes on the Laws of England 372 (1768)

(emphasis in original). This requirement dates back

at least to 1702, when an English act declared that

before giving any evidence all “witnesses . . . shall

first take an Oath to depose the Truth, the whole

Truth, and nothing but the Truth.” 3 John Cay, Zhe

Statutes at Large, from Magna Charta, to the

Thirtieth Year of King George the Second, Inclusive

405 (1758). Congress enshrined the whole truth oath

in the Judiciary Act of 1789, requiring that witnesses

“shall be carefully examined and cautioned, and

sworn or affirmed to testify the whole truth.” An Act

to Establish the Judicial Courts of the United States

§ 30, 1 Stat. 73, 89 (1789).°

A witness’s oath or affirmation is intended to

“awaken the witness’ conscience and [to] impress the

witness’ mind with the duty to [testify truthfully].”

* The requirement that witnesses tell the “whole truth” also

has deep roots in the particular context of accomplice testimony.

In the crown witness system - the historical analogue to plea

bargaining for accomplice testimony that existed at the founding

— an accomplice turned state witness had to “disclose[] the

whole truth” to “save himself from punishment and secure a

pardon .... [I}f he act[ed] in bad faith or failled] to testify fully

and fairly, he (could) still be prosecuted as if he had never been

admitted as a witness.” United States v. Ford (The Whiskey

Cases), 99 U.S. 594, 600 (1878)

Fed. R. Evid. 603; see also Maryland v. Craig, 497

U.S. 836, 845-46 (1990) (the oath “impressles the

witness] with the seriousness of the matter”) (quoting

California v. Green, 399 U.S. 149, 159 (1970)). It also

“guard(s] against the lie by the possibility of a

penalty for perjury.” Green, 399 U.S. at 158; see also

The Pizarro, 15 U.S. (2 Wheat.) 227, 240 (1817)

(Story, J.) (when witnesses “are bound to declare the

whole truth” they cannot “fraudulently suppress any

material facts”).

Given the longstanding centrality of the oath to

the truth-seeking process of tral, the Due Process

Clause prohibits the prosecution from presenting

testimony from a witness who is unwilling, or

compromised in his ability, to testify to the whole

truth. The prosecution, for example, may not know-

ingly present false testimony at trial. Mooney v

Holohan, 294 U.S. 103, 112 13 (1935) (per curiam).

Nor may it allow one of its witness’s testimony that it

knows to be false or incomplete to stand uncorrected.

See Napue v. Illinois, 360 U.S. 264, 269-70 (1959);

Alcorta v. Texas, 355 U.S. 28, 31 (1957) (per curiam).

Presenting accomplice testimony subject to a

consistency provision interferes with the sanctity and

function of the oath in much thc same _ way.

Consistency provisions require witnesses to adhere to

prior, unsworn statements on the stand. Pet. App.

68a. What is more, such provisions make it a breach

of contract for witnesses to pive testimony that

deviates from the prosecution’s theory of the case.

Presenting accomplice testimony subject to

consistency provisions, therefore, “taint|s] the truth-

seeking function of the courts by placing undue

pressure on witnesses to stick with one version of the

fact regardless of its truthfulness.” Fisher, 859 P.2d

at 184 (Ariz. 1993). It also effectively removes the

threat of perjury, for accomplices under consistency

provisions know that it is highly improbable that the

state will later charge that the story the prosecution

itself foreordained as the “truth” was actually a lie.

Presenting testimony subject to consistency

provisions also subverts the truth-seeking process in

a more subtle way. It is commonplace for a witness

to “modify his testimony in the light of a refreshed

recollection.” Mattox v. United States, 156 U.S. 237,

252 (1895) (Shiras, J. dissenting). Witnesses also

sometimes realize simply through rigorous cross-

examination that certain details in prior statements

were incorrect. A witness under an _ unfettered

obligation to tell the “whole truth” can clarify or

revise his testimony in such situations without fear

that the prosecution will rescind his plea bargain. A

witness subject to a consistency provision, however,

faces a powerful disincentive to clarify or revise

inadvertently incorrect prior statements — especially

if he believes that the details at issue might call into

question the prosecution’s theory of the case. The

Due Process Clause does not allow the prosecution to

interfere in this manner with the oath to tell the

whole truth.

2. The prosecution’s presentation of testimony

subject to a consistency provision contravenes due

process for another, related reason: It arrogates to

the prosecution the factfinder’s duty to determine the

ultimate truth of the prosecution’s charges.

Under the Anglo American system of trial by

jury, the prosecution and the defense present their

dueling versions of the truth, and the jury decides

whether the prosecution has proven the defendant’s

guilt beyond a reasonable doubt. The Due Process

Clause, in other words, “preserve[s] the criminal

trial, as distinct from the prosecutor’s private

deliberations, as the chosen forum for ascertaining

the truth about criminal accusations.” <Ayles v.

Whitley, 514 U.S. 419, 440 (1995). The prosecution

thus may not withhold materia] exculpatory evidence

from the jury’s purview. /d. at 432; see also Brady v.

Maryland, 373 U.S. 83 (1963). Nor may a prosecutor

“vouch” for a witness’s testimony, suggesting that she

has personal knowledge beyond the _ evidence

presented to the jury of what the truth is. Young v.

United States, 470 U.S. 1, 18-19 (1985); see also, e.g.,

Hall v. United States, 419 F.2d 582, 585-87 (5th Cir.

1969). Nor may the prosecutior introduce witness

identification testimony that it has unduly influenced

before putting the witness on the stand. Foster v.

California, 394 U.S. 440, 443 (1969); see also Manson

v. Brathwaite, 432 U.S. 98, 116 (1977). If the state

“fiJn effect, . . . repeatedly [says] to the witness, “This

is the man,” the witness’s testimony becomes tainted

beyond repair. Foster, 394 U.S. at 443.

Presenting accomplice testimony pursuant to a

consistency provision similarly gives primacy to the

prosecutor’s “private deliberations” over the jury’s

role as finder of fact. When the _ prosecution

contractually requires an accomplice’s trial testimony

to be consistent with particular prior statements, the

prosecution predetermines the veracity of its own

charges just as surely as when the prosecution

presents testimony from a witness whom it subjected

to an unduly suggestive line-up. In both situations,

the prosecution “define[s] the truth in its own terms,”

Nerison, 387 N.W.2d at 325, effectively telling the

witness, “this is what the truth is, and this is what

you should (or, in the case of a consistency provision

— must) tell the jury.” Such actions interfere with the

jury’s ability to hear untainted testimony and to

decide for itself whether the prosecution’s allegations

are true.

3. The Illinois Supreme Court did not dispute

that presenting testimony subject to a provision in a

plea agreement that subverts the truth-seeking

process of trial violates the Due Process Clause. It

held, however, that introducing testimony subject to

a consistency provision does not have this effect

because: (a) the presence of standard plea terms

render truthfulness “the overriding requirement” of

an agreement even when a consistency provision is

present; and (b) cross-examining a witness who is

subject to a consistency provision can address any

residual concerns regarding its influence on the

witness. Pet. App. 17a—18a. Neither of these argu-

ments has merit.

a. Neither a_ plea agreement’s’ general

requirement that the witness testify truthfully nor a

provision voiding the agreement if the witness’s prior

statements to law enforcement turn out to be false —

both standard provisions in plea agreements and

present in the agreement at issue here — prevents a

consistency provision from tainting the testimony of a

witness who is subject to it. As the dissent below

noted, “the State has no crystal ball to know what the

‘truth’ is — it only knows what statements are

consistent.” Pet. App. 28a. If an accomplice adheres

to the details of his prior, unsworn statement at the

expense of telling the whole truth, the accomplice will

retain the benefit of his bargain so long as the

prosecution does not independently discover that the

factual inaccuracies in the testimony. But if an

accomplice tells the truth but testifies inconsistent

with his prior unsworn statements, the accomplice

will obviously breach his plea agreement and lose the

benefit of his bargain. Under these circumstances,

an accomplice feels pressure to stick the prosecution’s

preferred version of events, regardless of its veracity,

in a way that exceeds the ordinary dynamics of

testifying pursuant to an ordinary plea bargain. A

consistency provision, in short, limits the truth-

fulness of witness testimony and the effect of the

witness’s oath — not the other way around.

In the end, the proof is in the pudding: If general

truthfulness requirements actually trumped _ the

influence of consistency provisions, then prosecutors

would never have reason to insert consistency

provisions into plea agreements. A standard plea

agreement would always suffice. Yet the State

insisted here that Johnson testify here subject to a

consistency provision, and prosecutors in other cases

sometimes likewise deviate from standard practice.

See supra at 17-18. The only reasonable inference

from this reality is that prosecutors themselves

believe that consistency provisions have some

influence on witnesses that goes above and beyond

customary truth-telling obligations.’

7’ At a minimum, presenting testimony subject to a

consistency provision violates the Due Process Clause in cases,

such as this one, in which there is no reliable, objective way to

determine the “truth” (because there is no physical or other

b. Nor does the fact that an accomplice who

testifies subject to a consistency provision is, like any

other witness, “subject to searching cross-

examination,” Pet. App. 17a—18a (quotation omitted),

cure the taint that such a provision creates either.

When prosecutorial tactics interfere with the truth-

seeking process, this Court has never suggested,

much less held, that a defendant’s opportunity for

cross-examination cures such prosecutorial mis-

conduct. See Napue, 360 U.S. at 269-70; A/corta, 355

US. at 31.

Furthermore, even if the sole constitutional

concern here were, as the Illinois Supreme Court

suggested, Pet. App. 18a, one of witness credibility,

cross-examination concerning the effect of a

consistency provision would not solve the due process

problem. Federal courts of appeals have held that

prosecutors violate the Due Process Clause when

they introduce into evidence a plea agreement with

even an ordinary truthfulness provision and suggest

to the jury — either by other language in the

agreement itself or by argumentation — that they

have “independently verified the truthfulness of the

{accomplice’s] testimony.” United States v. Harlow,

444 F.3d 1255, 1263 (10th Cir. 2006); see also United

States v. Binker, 795 F.2d 1218, 1222 n.2, 1227 (5th

direct evidence corroborating the witness’s story) and the State

picks its preferred version of testimony out of a witness’s own

numerous conflicting accounts. See Leslie, 952 P.2d at 972-73

(suggesting that presenting testimony subject to consistency

violates due process at least when no “credible evidence”

corroborates the witness’s prior statements).

Cir. 1986). Such action constitutes impermissible

vouching; it implies “that the prosecutor knows what

the truth is and is assuring its revelation.” United

States v. Brown, 720 F.2d 1059, 1073 (9th Cir. 1983)

(quoting United States v. Roberts, 618 F.2d 530, 536

(9th Cir. 1980)).

A consistency provision sends the same message

of independent prosecutorial knowledge of the truth;

it expresses the prosecution’s belief that the witness’s

testimony is truthful insofar as it tells a certain

story. Consequently, the prospect of cross-examin-

ation on the basis of such a provision presents, at

best, a Hobson’s choice: whatever gains a defendant

might make by attacking the accomplice’s credibility

come at the expense of revealing to the factfinder

that the prosecution seemingly “knows what the

truth is and is assuring its revelation.” Jd. Due

process does not allow the prosecution to put the

defendant in such a bind.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Abishi C. Cunningham, Jr.

Public Defender of

Cook County

Erica L. Reddick

Lester Finkle

Assistant Public Defenders

CooK COUNTY PUBLIC

DEFENDER

69 West Washington

15th Floor

Chicago, IL 60602

Amy Howe

Kevin K. Russell

HOWE & RUSSELL, P.C.

7272 Wisconsin Avenue

Suite 300

Bethesda, MD 20814

June 24, 2010

Jeffrey L. Fisher

Counsel of Record

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jifisher@law.stanford.edu

Thomas C. Goldstein

AKIN, GUMP, STRAUSS,

HAUER & FELD LLP

1333 New Hampshire

Avenue, NW

Washington, DC 20036

APPENDIX

APPENDIX A

SUPREME COURT OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellee,

JAMES BANNISTER,

Appellant.

No. 105887

Oct. 29, 2009

Chief Justice FITZGERALD delivered the judgment of

the court, with opinion.

OPINION

Defendant James Bannister was convicted of two

counts of first degree murder and sentenced to natural

life imprisonment for his role in a gang-related

shooting. His convictions and sentence were affirmed

on direct appeal. People v. Young, 263 Ill. App. 3d 627,

635 N.E.2d 473 (1994). The defendant then filed a

postconviction petition, alleging actual innocence

because the key witness for the State had recanted his

trial testimony. The trial court granted the defendant’s

petition, vacated his convictions, and ordered a new

trial. After a bench trial, the defendant was again

convicted of two counts of first degree murder and

sentenced to life imprisonment. On appeal, the

defendant asserted that, :nter alia, he was denied due

process and deprived of a fair trial because the State

had entered into a plea agreement containing a so-

called consistency provision with one of the

defendant’s accomplices. The appellate court affirmed

the defendant’s convictions and sentences. 378 Ill.

App. 3d 19, 880 N.E.2d 607.

For the reasons that follow, we also affirm.

BACKGROUND

On November 9, 1989, several men shot at Dan

Wilhams from around a building in the Stateway

Gardens housing complex in Chicago. Williams ran

away from the gunfire and toward a building on the

campus of the Illinois Institute of Technology (IIT).

Williams was shot and killed at the revolving door of

the building. Thomas Kaufman, a security guard

inside the building, was shot and killed by a stray

bullet. The defendant and several of his fellow gang

members, including Michael Johnson, were charged

with murder.

At trial, the only direct evidence against the

defendant was the testimony of Deanda Wilson, a 12-

year-old member of a rival gang. Wilson testified that

on the night of the shooting he saw the defendant and

six other men around a building in the Stateway

Gardens housing complex. According to Wilson,

Williams was near a play lot in front of the building

when someone called out to him. Following a verbal

exchange, the defendant and his fellow gang members

shot at Williams, and Williams stumbled toward the

IIT building. Wilson stated that the shooting

continued for about 15 seconds before the defendant

and his accomplices fled. The defendant presented an

alibi defense, calling four witnesses who testified that

he was at home at the time of the shooting. A jury

found the defendant guilty of two counts of first degree

murder, and he was sentenced to life imprisonment.

The defendant’s convictions and sentence were

affirmed on direct appeal. Young, 263 Ill. App. 3d 627,

635 N.E.2d 473.

In April 1993, the defendant filed a pro se

postconviction petition, and more than two years later

in July 1995, defense counsel filed a supplemental

petition, alleging actual innocence based on Wilson’s

recantation of his trial testimony implicating the

defendant. The trial court dismissed the defendant’s

petition without an evidentiary hearing, but the

appellate court reversed and remanded. The appellate

court held that the trial court should have conducted

an evidentiary hearing regarding Wilson’s recantation.

On remand, the circuit court conducted an evidentiary

hearing and found that, with respect to the defendant,

Wilson’s trial testimony was not accurate and truthful

and that there was no corroboration for his implication

of the defendant. The court concluded that the outcome

of the defendant’s trial likely would have been

different without Wilson’s perjured testimony. The

trial court granted the defendant’s request for

postconviction relief, vacated his convictions and

sentences, and ordered a new trial.

The defendant waived his right to a jury trial, and

the cause proceeded to a bench trial. The State’s key

witness was the defendant’s accomplice, and a

codefendant at his first trial, Michael Johnson.

Johnson, who had been tried separately, had also been

convicted of both murders and sentenced to natural

life imprisonment. Johnson agreed to testify against

the defendant pursuant to a plea agreement with the

State. The agreement stated:

“IT IS AGREED that Michael Johnson will

testify truthfully in all matters regarding the

lst degree murders of Dan Williams and

Thomas Kaufman, which occurred on November

9, 1989, at approximately 10:00 p.m. at or near

3517-19 S. Federal, Chicago, Cook County,

Illinois. Such truthful testimony shall be

consistent with Michael Johnson’s post-arrest

statements in [sic] December 28, and December

29, 1989, to Chicago Police officers and Cook

County Assistant State’s Attorneys and his

statements made to Cook County State’s

Attorney personnel during his _pre-plea

agreement interviews on April 29 and May 24,

2004.

It is agreed that Michael Johnson will testify

truthfully in the case of People v. James

Bannister * * *,

In exchange for Michael Johnson’s truthful

testimony in the above matters, it is agreed that

Michael Johnson shall withdraw all appeals and

post-conviction petitions in his case, * * * and

forever waive any and all future appeals, post-

conviction petitions or motions to vacate pleas.

It is further agreed that the parties will move to

vacate the existing sentence in Michael

Johnson’s case * * * and that the case will be

placed back on the Honorable James Schreier’s

trial call. It is agreed that Michael Johnson

shall plead guilty to the lst degree murder

counts involving Dan Williams, and the State

will nolle pros the lst degree murder counts

involving Thomas Kaufman. The State will

recommend that Judge Schreier resentence

Michael Johnson to 60 years in the Illinois

Department of Corrections (‘1.D.0.C.’). This

agreement is contingent on Judge Schreier’s

acceptance of its terms in their entirety.

It is further agreed that the State shall place

Michael Johnson in the Witness Program Living

Unit until his trial testimony in open court is

completed. After his testimony is completed,

Michael Johnson shall be remanded to the

I.D.0.C. The State shall recommend to I.D.0.C.

that Michael Johnson be segregated from * * *

co-defendants and that Michael Johnson be

housed in a medium-security prison, or, if that’s

not possible, in the Pontiac Correctional

Center.”

The agreement also contained a page _ of

limitations, which stated that the agreement was “null

and void” if Johnson failed “to truthfully testify under

oath in open court” against the defendant or his

representations “during his post-arrest statements and

his pre-plea agreement interviews, upon which this

agreement was predicated” were found false. Johnson,

his attorney, and two assistant State’s Attorneys

signed the agreement.

At trial, the State called Johnson as a witness and

asked him first about the agreement. Johnson stated

that his understanding was that in exchange for his

testimony and guilty plea, the State would “nolle” one

of the murder counts, recommend a sentence of 60

years, and request that he be transferred from Tamms

Correctional Center, Illinois’ “super-max” prison.

Johnson understood that his sentence remained within

the trial judge’s discretion and that his_ transfer

remained within the discretion of the Department of

Corrections.

Johnson then testified about the murders

According to Johnson, in 1989, he had been a member

of the Gangster Disciples’ street gang for

approximately 10 years. On the evening of November

9, 1989, he was walking through the Stateway

Gardens housing complex with James Young and

Michael Meyers when they met the defendant, Eric

Smith, Thomas Carter, and Kevin Young at ;

apartment building in the complex. All seven men

went upstairs to the apartment of Kevin Young’s niece

and talked for an hour about the recent sexual assault

of Young’s girlfriend. The men believed that Young’s

girlfriend had been assaulted by members of the Del

Vikings street gang, and they hatched a plan to shoot

Del Vikings in revenge.

The men then armed themselves, left the

apartment, and proceeded to another building in the

complex. There, they encountered a man known as

“Rick James,” who greeted the defendant by his

nickname. Kevin Young shot at “Rick James.” The

men returned to the apartment of Kevin Young’s niece,

where they talked and smoked for approximately an

hour. The men again left the apartment and proceeded

to another building in the complex. There, they

encountered Daniel Nicholson, whom they robbed. The

men went to the building where they began, and where

Johnson lived. Johnson testified that he went upstairs

to his apartment to get a ski mask for himself and

some “wave” caps for Kevin Young and Carter.

According to Johnson, the men walked to yet

another building in the complex. Standing near the

building, Johnson heard Smith say, “Come here,

mother* * *.” After hearing gunshots, he walked with

Meyers to the front of the building, where he saw

Williams running while the defendant, Smith, Carter,

Kevin Young, and James Young were firing their guns

at him. Johnson testified that he shot at Williams as

he crossed a play lot, jumped the fence, and ran

toward the IIT building. According to Johnson, when

the shooting eventually stopped, the seven men went

to an apartment in another building and waited until

the police left the area.

Johnson’s testimony was substantially consistent

with the statement that he gave to the police on

December 29, 1989, the day after his arrest. Johnson

acknowledged that he initially denied any involvement

in the shootings and that, prior to his trial, he had

moved to suppress his inculpatory'§ statement,

asserting that he had not been advised of his

constitutional rights by the police. Johnson stated that

the basis for this motion was untrue because he had

been advised of his rights before making his

statement. Defense counsel rigorously cross-examined

Johnson as to the specific terms of the plea agreement

and his motivation for entering into the agreement.

As he had in his first trial, the defendant again

presented an alibi defense and called several witnesses

who testified that he was at home on the night of the

shootings. The trial court found the defendant guilty

on both counts of first degree murder and sentenced

him to life imprisonment.

The defendant appealed, raising the issue of the

constitutional validity of the State’s plea agreement

with Johnson. The appellate court affirmed his

conviction and sentence, holding that the defendant

was not denied due process. 378 II]. App. 3d 19, 880

N.E.2d 607. We allowed the defendant’s petition for

leave to appeal. 210 Ill. 2d R. 315(a).

ANALYSIS

The central issue in this appeal is whether the

plea agreement between the State and Johnson

violated the defendant’s right to due process. Our

review is de novo. People v. Burns, 209 Tl. 2d 551, 560,

809 N.E.2d 107 (2004); People v. Lindsey, 199 Ill. 2d

460, 463, 771 N.E.2d 399 (2002).

Initially, the defendant argues that he has

standing to challenge the validity of this plea

agreement. The defendant asserts that, while plea

agreements are guided by contract law principles,

these principles must give way when an agreement

raises constitutional concerns. According to the

defendant, “When others conspire to illegally develop

evidence against a defendant, due process and

fundamental fairness require that a defendant must

have * * * standing to challenge that conduct.”

Absent due process concerns, the validity of a plea

agreement is generally governed by contract law.

People v. Henderson, 211 Ill. 2d 90, 103, 809 N.E.2d

1224 (2004); People v. Evans, 174 Ill. 2d 320, 326, 673

N.E.2d 244 (1996). Under contract law, there is a

strong presumption that the agreement benefits the

parties to it, and not a third party, and this

presumption may be overcome only by evidence

manifesting an affirmative intent by the parties to

benefit the third party. See Estate of Willis v.

Kiferbaum Construction Corp., 357 Ill. App. 3d 1002,

1007, 830 N.E.2d 636 (2005), citing Bates & Rogers

Construction Corp. v. Greeley & Hansen, 109 Ill. 2d

225, 486 N.E.2d 902 (1985). Here, the defendant was

not an intended beneficiary of the plea agreement

between the State and Johnson. Therefore, he lacks

standing to argue that the agreement was invalid.

The defendant compares the State’s actions here in

procuring Johnson’s testimony to efforts by the State

to secure involuntary confessions. According to the

defendant, however, his argument differs from that of

a defendant vicariously raising a fourth amendment

claim because he was the “direct target” of the State’s

conduct. The defendant, however, neither explains his

reasoning nor cites any authority in support of it. Any

defendant aggrieved by the introduction of evidence

produced by an illegal seizure against a third party

could make the same argument, but that argument

would fail. See People v. Kidd, 178 Ill. 2d 92, 135, 687

N.E.2d 945 (1997) (“A fourth amendment violation can

be urged successfully only by those whose rights have

actually been violated by the search itself, not by those

who have been aggrieved solely by the introduction of

damaging evidence”). The State negotiated with

Johnson to secure his testimony. Indeed, the State

often bargains for accomplice testimony. The fact that

that testimony would be used at the defendant’s tria!

is unremarkable. Further, the defendant’s argument

that the State lacked the authority to enter into a plea

agreement with Johnsen is unavailing. Under the

revestment doctrine, litigants may revest a trial court

with personal and subject matter jurisdiction, after the

30-day period following final judgment, if they actively

participate in proceedings that are inconsistent with

the merits of the prior judgment. See People v.

10a

Minniti, 373 Ill. App. 3d 55, 65, 867 N.E.2d 1237

(2007), citing People v. Kaeding, 98 Il. 2d 237, 240-41,

456 N.E.2d 11 (1983); People v. Henry, 329 Ill. App. 3d

397, 403, 769 N.E.2d 34 (2001).

The larger problem for the defendant is that even

if he had standing to contest the validity of the

agreement, its validity would not affect its

admissibility. That is, even if the trial court, in the

case against the defendant, had somehow found a

reason to reach the validity of Johnson’s plea

agreement—an agreement that was still executory and

had yet to be accepted by the trial court—and

invalidated it, the remedy would not have been to

suppress his testimony. The remedy would have been

to void the agreement. As the appellate court correctly

observed, a plea agreement between a witness and the

State that cannot be enforced has no effect on the

admissibility of that witness’ testimony at trial. 378

Ill. App. 3d at 35, 880 N.E.2d 607, citing People v.

Caban, 318 Ill. App. 3d 1082, 1087-89, 743 N.E.2d 600

(2001). If the agreement had been deemed invalid,

Johnson would have remained convicted of two

murders and remained incarcerated at Tamms, and

his testimony would have remained in the case against

the defendant.

However, even though the defendant lacks

standing to challenge the validity of the agreement, he

does not lack the ability to challenge Johnson’s

testimony. A defendant may always question a witness

on matters affecting his credibility and bias. The issue,

then, becomes whether the plea agreement itself so

undermined Johnson’s credibility that we must

conclude the defendant was denied a fair trial.

lla

We note that the defendant does not challenge the

sufficiency of the evidence against him. The defendant

argues simply that, as a matter of constitutional law, a

plea agreement by which the State secures an

accomplice’s testimony is invalid when it contains a so-

called consistency provision. According to the

defendant, plea agreements that place a witness under

a strong compulsion to testify in a particular fashion

should be condemned by this court. The defendant

insists, “The State cannot require [a] co-defendant to

tell the truth and then tell the co-defendant what is

the truth.” The defendant concedes that if the plea

agreement had simply required Johnson to testify

truthfully, he would have had the opportunity to do so.

But the State took away this opportunity when it told

him that the truth was his postarrest and court-

reported statements in 1989, and his statements to

prosecutors in 2004.

The defendant relies primarily upon People v.

Medina, 116 Cal. Rptr. 133 (Ct. App. 1974), and State

v. Fisher, 859 P.2d 179 (Ariz. 1993). In Medina, two

defendants were charged with murder. Three of their

accomplices testified against them pursuant to

agreements in which the accomplices received

immunity in exchange for testimony consistent with

prior recorded statements. The California Court of

Appeal held that “a defendant is denied a fair trial if

the prosecution’s case depends substantially upon

accomplice testimony and the accomplice witness is

placed, either by the prosecution or the court, under a

strong compulsion to testify in a particular fashion.”

Medina, 116 Cal. Rptr. at 145.

12a

However, the rule in Medina, which seems so

categorical to the defendant, was clarified in a

subsequent case. In People v. Jenkins, 997 P.2d 1044,

1119-20 (Cal. 2000), the California Supreme Court

rejected the contention that the testimony of an

accomplice pursuant to a plea agreement is inherently

unreliable. That court held that a plea agreement

requiring an accomplice testify fully and truthfully is

valid, “even if it is clear the prosecutor believes the

witness’s prior statement to the police is the truth, and

deviation from that statement in testimony may result

in the withdrawal of the plea offer.” Jenkins, 997 P.2d

at 1120. Such an agreement does not dictate the

accomplice’s testimony in a manner that would offend

due process. Jenkins, 997 P.2d at 1120.

In Fisher, the defendant was charged with first

degree murder. At trial, the defendant’s wife invoked

her fifth amendment rights and refused to testify, but

a letter memorializing an agreement between her and

the State was admitted into evidence. The letter,

signed by the defendant’s wife and her attorney, stated

that she agreed that her testimony at trial would not

“vary substantially” from prior statements she had

made to police. The defendant was convicted of first

degree murder and sentenced to death. He then filed a

motion for a new trial based on newly discovered

evidence—namely, his wife’s confession to the murder.

The trial court granted this motion, and the State

appealed. The Arizona Supreme Court affirmed,

holding that plea agreements with consistency

provisions, but without any overriding requirements of

truthfulness, “undermine the reliability and fairness of

the trial and plea bargaining process and taint the

truth-seeking function of the courts by placing undue

13a

‘pressure on witnesses to stick with one version of the

facts regardless of their truthfulness.” Frsher, 859 P.2d

at 184.

But in a subsequent case, the Arizona Supreme

Court explained:

“The critical issue is not whether the witness

will feel an obligation to testify to the same facts

earlier told the prosecutors or police, but rather

whether the prosecution has conditioned the

plea agreement upon such testimony, regardless

of the truth of the earlier statement. [Citation.|

All accomplice plea agreements put some

pressure on a cooperating witness. [Citation.]

But a consistency agreement has the strong

potential to procure untruthful testimony if the

agreement is not also conditioned upon the

requirement of truthful testimony. [Citation.] It

is this tainting of the ‘truth-seeking function of

the courts’ that makes consistency provisions

invalid. [Citation.]” State v. Rivera, 109 P.3d 83,

86 (Ariz. 2005).

The Avera court noted that safeguards, such as

full disclosure of the plea agreement to the finder of

fact and cross-examination, adequately protect a

defendant’s rights. Aivera, 109 P.3d at 87; see State v.

Nerison, 401 N.W.2d 1, 4 (Wis. 1987) (“Cross-

examination, not exclusion is the proper tool for

challenging the weight and credibility of accomplice

testimony”).

The appellate court here relied on State v. Bolden,

979 S.W.2d 587 (Tenn. 1998), and People v. Jones, 600

N.W.2d 652 (Mich. Ct. App. 1999). In Bolden, the

defendant and an accomplice were charged with first

l4a

degree murder. The accomplice entered a _ plea

agreement with the State, under which he agreed to

plead guilty and testify truthfully, and consistent with

an earlier statement to the police, against the

defendant in exchange for a reduced sentence. The

defendant was convicted and appealed.

The Supreme Court of Tennessee observed that

accomplice testimony is generally admissible even if it

results from a plea agreement. Bolden, 979 S.W.2d at

590. The court noted, though, that other courts have

required safeguards to be followed before admitting

such testimony; these safeguards include the full

disclosure of the terms of any plea agreement and the

opportunity for full cross-examination. Bolden, 979

S.W.2d at 590. The court further noted that other

courts have added the requirement that such

testimony may not be conditioned on the witness

following a script. The court stated that “it is only

where the prosecution has bargained for false or

specific testimony, or a_ specific result, that an

accomplice’s testimony is so tainted as to require...

preclusion.” Bolden, 979 S.W.2d at 591, quoting State

v. Burchett, 399 N.W.2d 258, 266 (Neb. 1986). The

court distinguished on their facts cases in which the

plea agreement required only that the witness testify

in a particular fashion or that the testimony produce a

specific result, without regard to the truthfulness of

the testimony. Bolden, 979 S.W.2d at 592 n.3. The

Bolden ccurt stated that because the plea agreement

specifically required the codefendant to _ testify

truthfully, that condition “necessarily engulfed” the

other terms in the agreement, which “hinged upon

truthful testimony.” Bolden, 979 S.W.2d at 592. The

court held that the codefendant’s testimony did not

15a

violate the defendant’s rights to due process and a fair

trial. Bolden, 979 S.W.2d at 593.

In Jones, the defendant was charged with first

degree murder. At trial, four accomplices testified

against the defendant pursuant to plea agreements.

These agreements required the accomplices to testify

truthfully about the defendant’s involvement in the

offense, and consistent with their original statements

to the police, in return for immunity. The defendant

was convicted, and on appeal argued that he was

denied due process because the plea agreement

required the accomplice to provide specific testimony.

The Michigan Court of Appeals initially stated

that “in most cases, a promise of immunity or other

favorable treatment is relevant only to the issue of the

credibility of the witness, and not to the admissibility

or the immunized testimony.” Jones, 600 N.W.2d at

656. The court acknowledged that several state courts

have held that the prosecution may not bargain with

an accomplice in exchange for testimony conforming to

a script, without regard for the truth. Jones, 600

N.W.2d at 656. Underlying this rule, asserted the

court, was the concern that a witness placed under a

strong compulsion to testify to a particular version of

events is “no longer a free agent whose credibility can

be evaluated” by the finder of fact. Jones, 600 N.W.2d

at 656. The court observed that although the immunity

agreements may provide some incentive for the

witnesses to conform their trial testimony to their

prior accounts of the incident, they did not violate the

defendant’s rights where the prosecution expressly

conditioned its grants of immunity on the promises

that the witnesses would provide truthful testimony.

16a

Jones, 600 N.W.2d at 657. The Jones court concluded

that when a prosecutor makes the decision to bargain

with a witness on the basis of representations made by

the witness during negotiations with the State, it is

reasonable for the prosecutor to rely on the witness’

assertion that such representations are truthful and to

expect that the witness’ trial testimony would be

essentially consistent with the original information

upon which the State’s promise of leniency was

induced. Jones, 600 N.W.2d at 657. We find Bolden

and Jones persuasive.

“There is no question that ‘[t]he disposition of

criminal charges by agreement between the prosecutor

and the accused, sometimes loosely called “plea

bargaining,” is an essential component of the

administration of justice.” Henderson, 211 Ill. 2d at

102, 809 N.E.2d 1124, quoting Santobello v. New York,

404 U.S. 257, 260 (1971). The State may bargain

directly with a defendant to dispose of a case, or it may

bargain with a defendant’s accomplice to secure

testimony against the defendant in an effort to dispose

of a case. Though accomplice testimony by its nature is

fraught with serious weaknesses, it is generally

admissible at trial, even where it was procured by an

offer of a lenient sentence and secured by a plea

agreement. See People v. Tenney, 205 Ill. 2d 411, 429,

793 N.E.2d 571 (2002). That is, “bargaining for specific

trial testimony, re, testimony that is essentially

consistent with the information represented to be

factually true during negotiations with the State, and

withholding the benefits of the bargain until after the

witness has testified, is not inconsistent with the

search for truth or due process.” Sheriff Humboldt

County v. Acuna, 819 P.2d 197, 200 (Nev. 1991); see

17a

also State v. Clark, 743 P.2d 822, 828 (Wash. Ct. App.

1987) (“[j]Just because an immunity agreement rests on

a premise that the requested testimony will be of some

benefit to the State, the agreement is not necessarily

rendered impermissibly coercive”). It is reasonable for

the State to condition its largesse toward an

accomplice on the accomplice testifying consistently

with what the State believes is the truth, as long as

the agreement’s overriding requirement is that the

accomplice also testify truthfully.

Here, the plea agreement repeatedly and explicitly

obligated Johnson to testify truthfully. The agreement

also provided that Johnson would testify in a manner

that was consistent with his prior statements to police

and to prosecutors, but if any of the representations

contained in his prior statements were found to be

false, the agreement would be rendered null and void.

Truthfulness was the overriding requirement of the

agreement. The agreement neither compelled Johnson

to disregard his witness’ oath, nor bound him to a

particular script or result. Accordingly, Johnson’s

testimony was not tainted by the plea agreement, and

the admission of his testimony did not violate the

defendant’s rights to due process and a fair trial.

Our legal system tests a witness’ credibility

through cross-examination and leaves the

determination of that credibility to the finder of fact.

See People v. Evans, 209 Ill. 2d 194, 213, 808 N.E.2d

939 (2004), quoting Hoffa v. United States, 385 U.S.

293, 311 (1966).

“In most instances, any potential for prejudice

to a defendant’s case will be avoided by allowing

the witness to testify subject to searching cross-

18a

examination intended to develop fully any

evidence of bias or motive on the part of the

witness, or improper conduct on the part of the

State. Every fact that might in some way

influence the truthfulness and credibility of the

witness’s testimony should be laid before the

(finder of fact]. [Citation.) This ensures no

unnecessary barriers will be imposed on the

State’s ability to bargain for truthful testimony,

and at the same time ensures the [finder of fact}

will be able to determine what weight, if any, in

light of all the evidence, to give the witness’s

testimony.” State v. McGonigle, 401 N.W.2d 39,

42 (Iowa 1987).

The State, on direct examination of Johnson, fully

disclosed the terms of the plea agreement with him,

and the defendant had an opportunity to cross-

examine Johnson about the agreement and the

benefits he would receive. The trial court heard the

details of Johnson’s plea agreement and found him to

be credible nonetheless. As the finder of fact, it was

the trial court’s responsibility to resolve alleged

inconsistencies and conflicts in the evidence, as well as

to weigh the testimony and determine the credibility of

the witnesses. See People v. Sutherland, 223 I\l. 2d

187, 242, 860 N.E.2d 178 (2006).

CONCLUSION

For the reasons that we have stated, we affirm the

judgment of the appellate court.

Affirmed.

Justices THOMAS, GARMAN and KARMEIER

concurred in the judgment and opinion.

19a

Justice FREEMAN dissented, with opinion, joined by

Justices KILBRIDE and BURKE.

Justice FREEMAN, dissenting:

This appeal presents significant constitutional

issues of first impression for Illinois courts, defining

the limits of the State’s power to secure testimony

against an accused by entering into a contingent plea

agreement with an already-convicted accomplice which

requires him to. testify “truthfully,” but also

“consistently” with certain prior statements. It is my

view that these serious matters require in-depth

analysis and careful consideration of the defendant’s

arguments that such plea agreements violate an

accused’s right to due process and a fair trial because

they unduly interfere with the truth-seeking process

and, therefore, should be prohibited in our courts.

Because my colleagues now place their stamp of

approval upon the State’s use of contingent plea

agreements containing consistency clauses without

addressing any of the arguments advanced _ by

defendant in the context of the unique facts of this

appeal, I cannot join the majority opinion.

Defendant was convicted in 1991 of two counts of

first degree murder and_ sentenced to life

imprisonment. During that trial, the State’s sole

witness against defendant was a 12-year-old rival

gang member, who testified that he saw defendant

shoot the victims. Subsequently, however, this witness

recanted his testimony, and, during postconviction

proceedings, defendant was granted a new trial. It is

this second trial, which took place in 2004, which is

the subject of this appeal. The State’s only direct

evidence against defendant in this new trial came

2U0a

through the testimony of Michael Johnson. Although

Johnson had been a codefendant during the 199]

prosecution, he was tried separately, and the State did

not present testimony from Johnson ayainst defendant

during those proceedings. Like defendant, Johnson

had been convicted by a jury of two counts of first

degree murder and_ sentenced to natural life

imprisonment with no possibility of parole. Johnson

was incarcerated at ‘'amms Correctional Center, a

“super” maximum-security facility, when the State

approached him in January 2004—13 years after the

jury convicted him of double murder—with the offer of

a plea bargain in exchange for his testimony against

defendant in defendant’s second trial. For six

months—from January to June 2004—the State

negotiated the terms of this plea agreement with

Johnson.

Ultimately, the parties struck a deal in which

Johnson would “testify truthfully” against defendant.

The agreement required that “[sluch — truthful

testimony sha// be consistent with” (emphasis added)

two of the several postarrest statements Johnson

made to law enforcement officials subsequent to his

arrest for the murders in 1989, as well as with

Johnson’s preplea agreement interviews with the

State, which occurred in April and May 2004. As part

of his plea, Johnson agreed to “withdraw all appeals

and post-conviction petitions in his case,” and “forever

waive any and all future appeals, post-conviction

petitions or motions to vacate pleas.” In exchange, the

State agreed to “move to vacate [Johnson’s] existing

sentence,” and promised that Johnson’s “case will be

placed back on the [circuit court’s] trial call.” The

agreement called for Johnson to then plead guilty to

2la

one count of first degree murder, and provided that the

State would “nol/e pros” the second first degree

murder count of which Johnson had previously been

convicted. Finally, the State agreed to recommend that

Johnson be resentenced to 60 years’ incarceration, and

that he be moved from the Tamms facility to a lower-

level medium-security facility to serve the remainder

of his sentence.

Johnson thereafter testified during defendant's

second trial. It was only after defendant was convicted

that the plea agreement between Johnson and the

State was executed. The circuit court's docket sheet

reflects that on July 27, 2004, Johnson’s “conviction of

2 counts of murder [was] vacated by agreement of the

parties.” Thus, as a result of Johnson’s cooperation

with the State and adherence to the provisions in the

plea agreement, his two jury convictions for first

degree murder entered 13 years earlier were erased,

he pled guilty to only one count of first degree murder,

was resentenced to 60 years’ imprisonment with credit

for time already served, and was transferred from

Tamms to a lower-security facility.

Defendant in this court questions the propriety of

the plea agreement between Johnson and the State,

asserting that his constitutional right to due process

and a fair trial were violated by the method employed

by the State in securing Johnson’s testimony, which

was then used against defendant to obtain a conviction

in his second trial. In addition, defendant also

advances the broader argument that this court should

generally prohibit the use of consistency clauses in

contingency plea agreements, as such clauses interfere

with due process and the search for the truth, placing

22a

a witness under a strong compulsion to testify to a

particular set of facts and virtually “scripting” the

witnesses’ testimony.

The majority holds that defendant lacks standing

to contest the validity of the plea agreement entered

into between the State and Johnson. Defendant argues

that he has met the requirements for standing in that

he has demonstrated an injury to a legally cognizable

interest, that the injury is traceable to the State’s

actions and that it is substantially likely to be

redressed. See Village of Chatham vy. County of

Sangamon, 216 Ill. 2d 402, 419-20, 837 N.E.2d 29

(2005). Specifically, defendant asserts that the State’s

use of Johnson’s testimony against him, procured

through a plea agreement containing a consistency

clause, violated his legally cognizable interest in due

process and a fair trial. The majority, however, never

squarely addresses defendant’s contention in the

context of the specific facts of this case. Instead, my

colleagues generally state that “la]bsent due process

concerns, the validity of a plea agreement is generally

governed by contract law.” 236 Ill. 2d at 9, 923 N.E.2d

at 249. They then note that under general contract

principles there is a strong presumption that the

agreement benefits the parties to it and not a third

party, and that this presumption may only be

overcome by showing that the parties to the agreement

had an affirmative intent to benefit the third party.

The majority then summarily states that under these

contract principles, defendant “lacks standing to argue

that the agreement was invalid.” 236 Ill. 2d at 10, 923

N.E.2d at 249.

23a

Although the majority notes the general rule that

contract provisions govern plea agreements “absent

due process concerns,” and strictly confines its

discussion of standing to an application of contract

principles, it is precisely the aforementioned “due

process concerns” which animate defendant’s

argument and which are not addressed by the

majority’s opinion. The arguments raised by defendant

implicate more than simple citation to general contract

principles. As defendant notes, this court has

previously observed in a related context that the

underlying “contract” right in plea bargains are

“constitutionally based and therefore reflect|] concerns

that differ fundamentally from and run wider than

those of commercial contract law,” and that, because of

this, “the application of contract law principles to plea

agreements may require tempering in some instances.”

People v. Evans, 174 Ill. 2d 320, 326-27, 673 N.E.2d

244 (1996). I am unconvinced by the majority’s terse

analysis that no considerations other than those of

contract law come into play under the specific facts

presented here.

In addition, the majority gives short shrift to

defendant’s argument questioning the authority of

both the State and the circuit court to erase a jury

conviction for double murder 13 years after its entry.

According to defendant, upholding the plea bargain

between Johnson and the State under the specific

circumstances presented in this case is tantamount to

holding that the State has the absolute authority to

overturn a jury verdict of guilty. Defendant explains

that this occurs through the offer of a plea bargain

wherein the State determines which of various

statements made by a witness are “true,” and then

24a

compels that witness to adhere to these statements

throughout his testimony under the requirements of

the consistency clause. In addition, defendant argues

that the circuit court lacked jurisdiction to vacate

Johnson’s two jury convictions, entered 13 years

earlier.

In its opinion, the majority briefly references

“defendant’s argument that the State lacked the

authority to enter into a plea agreement with

Johnson,” and immediately finds it “unavailing.” 236

Ill. 2d at 10, 923 N.E.2d at 249. The majority disposes

of defendant’s serious contentions in one sentence,

holding that “[uJnder the revestment doctrine,

litigants may revest a tmal court with personal and

subject matter jurisdiction, after the 30-day period

following final judgment, if they actively participate in

proceedings that are inconsistent with the merits of

the prior judgment.” 236 Ill. 2d at 10, 923 N.E.2d at

249.

In People v. Flowers, 208 Ill. 2d 291, 802 N.E.2d

1174 (2003), this court clearly stated that “[t]he

jurisdiction of trial courts to reconsider and modify

their judgments is not indefinite,” and held that a trial

court normally loses jurisdiction to vacate or modify its

judgment 30 days after entry of that judgment, unless

a timely postjudgment motion is filed. F/owers, 208 Il.

2d at 303, 802 N.E.2d 1174. We further held that

“(lack of subject matter jurisdiction is not subject to

waiver [citation] and cannot be cured through consent

of the parties [citation].” Flowers, 208 Ill. 2d at 303,

802 N.E.2d 1174. Although we were not called upon to

directly address the continued vitality of the

revestment doctrine in Flowers, the unequivocal

25a

language in that opinion has caused our appellate

court to question whether the revestment doctrine

remains valid. See People v. Price, 364 Ill. App. 3d 543,

546-47, 846 N.E.2d 1003 (2006) (although leaving open

the question of whether the revestment doctrine

survived Flowers, the court noted that Flowers was

“consistent with the maxim that a party may not.

waive an objection to subject matter jurisdiction”).

Although the major'ty in its opinion summarily

holds that the revestment doctrine bestowed upon the

parties and the circuit court the authority to wipe

away Johnson’s prior double murder convictions 13

years after their entry and allow him to plead guilty to

one count of murder and a reduced sentence, I note

that my colleagues cite to the appellate court decision

in People v. Minniti, 373 lll. App. 3d 55, 867 N.E.2d

1237 (2007), for direct support of this holding. The

Minniti decision itself discusses the uncertainty within

the appellate court regarding the continued vitality of

the revestment doctrine subsequent to our decision in

Flowers. Minniti, 373 Ul. App. 3d at 65-66, 867 N.E.2d

1237. Ultimately, after examining the history and

purposes of the revestment doctrine, Minniti concludes

that “the revestment doctrine remains intact” after

Flowers. Minniti, 373 lll. App. 3d at 66, 867 N.E.2d

1237.

It is curious that the majority relies upon the

appellate court’s decision in Minniti for direct support

of its application of the revestment doctrine in the

instant appeal. As stated, Minniti struggled to

interpret the impact of our decision in Flowers upon

the continued vitality of the revestment doctrine, and

concluded, based upon a review of our prior case law,

26a

that the doctrine of revestment could be reconciled

with Flowers. It is my position that it is the duty of

this court to reconcile its own decisions, and that we

should speak directly to the bench and bar as to the

reasoning for doing so, and not indirectly through

citation to an appellate court decision which attempts

to divine the intent of this court. The majority’s one-

sentence statement regarding the revestment doctrine,

and its citation to this appellate court decision in

support of its holding, does nothing to reconcile the

language in Filowers—which is contrary to the

revestment doctrine—and also does not answer the

fundamental question raised by defendant in the

matter before us as to the authority of the State and

the circuit court to nullify a jury verdict entered over a

decade ago. Finally, I note that even if there were no

question concerning the vitality of the revestment

doctrine, there remains ‘a question as to whether it

applies under the unique facts of this case. In

Minnittthe case cited by the majority in support of

its holding—the revestment doctrine was applied to

revest the circuit court with jurisdiction to hear a

postjudgment motion which was untimely by ezght

days. Minniti, 373 lll. App. 3d at 64, 867 N.E.2d 1237.

Here, the majority revests the circuit court with

jurisdiction J3 years after entry of Johnson’s

conviction. I question whether the purposes and

principles underlying the revestment doctrine may be

stretched that far.

After determining that defendant does not have

standing to challenge the plea agreement between the

State and Johnson, the majority further holds that

even if he did have standing, defendant’s arguments

would fail. Defendant contends that his mght to due

27a

process and a fair trial includes the right to be tried on

competent evidence. Although the majority

acknowledges that “accomplice testimony by its nature

is fraught with serious weaknesses” (236 Il. 2d at 16,

923 N.E.2d at 252-53), it dismisses defendant’s

assertion that the testimony offered by Johnson

against him is especially suspect because Johnson’s

plea agreement with the State required that his

testimony be consistent with certain of his prior

statements, statements which Johnson had, in fact,

previously contradicted under oath. Specifically, after

his arrest in 1989, Johnson had initially provided

statements to law enforcement officers in which he

denied any involvement in the crime. Subsequently,

however, Johnson provided an inculpatory statement

which also implicated defendant. Before his trial,

Johnson again changed his position and filed a motion

to suppress his inculpatory statement, and testified

under oath that he did not understand the concept of

Miranda rights, was not given Miranda rights, did not

provide the information that was contained in his

confession, and did not remember making the

confession.

Defendant underscores that pursuant to the terms

of the plea agreement between the State and Johnson,

Johnson’s testimony was required to be consistent only

with those statements wherein he _ implicated

defendant, despite the fact that Johnson himself

testified under oath at his suppression hearing that he

did not make those same statements. Defendant

further contends that, although the plea agreement

required that Johnson’s testimony be “truthful,” it is

difficult to ascertain under the facts presented what

exactly the “truth” is. According to defendant, the

28a

State has made the determination that the “truth”

equates with the contents of certain prior statements

made by Johnson. However, defendant contends, the

State thereby improperly places itself in the position of

the trier of fact in making that determination.

Defendant maintains that the State has no crystal ball

to know what the “truth” is—it only knows what

statements are consistent.

Defendant further argues that the effect of the

plea agreement was to place Johnson under an

extremely strong compulsion to testify against

defendant in a particular manner in an effort to please

the State. Defendant asserts that once he was granted

a new trial due to the recantation by the State’s key

witness at the first trial, the State was desperate to

obtain Johnson’s testimony, which was the only direct

evidence against defendant at the second trial. In

order to do so, defendant maintains that the State had

to offer Johnson an agreement he would find difficult

to refuse. In exchange, Johnson had to testify in such a

way that would ensure that defendant would be

convicted, or Johnson would himself return to facing

life in prison. According to defendant, when a witness

is presented with such a situation, the testimony of

that witness will, by necessity, conform to what is

dictated by the State. Defendant concludes that this

amounts to Johnson delivering “scripted” testimony

which is inconsistent with the search for the truth and

impugns the integrity of the justice system.

The majority fails to squarely address defendant’s

contentions. Rather, my colleagues examine case law

from other jurisdictions and draw support from those

decisions for its conclusion that the plea agreement

29a

between the State and Johnson did not violate

defendant’s rights because even though Johnson

agreed that his testimony would be consistent with

certain prior statements he had made, it also required

that the testimony be “truthful.” A closer examination

of the cases relied upon by the majority, however,

undermines support for its holding, as these decisions

upheld plea agreements containing consistency clauses

in situations factually distinguishable from the matter

at bar.

In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), a

codefendant was offered a plea agreement whereby in

exchange for his testimony against the defendant, he

would receive a_ reduced sentence. There, the

agreement provided:

“If {the codefendant witness] testifies truthfully

as to [defendant’s] involvement in the murder of

{the victim] and as he stated in his statement to

(law enforcement] on 3/21/94 at 6:05 p.m. and as

to threats made to him by [defendant] then [the

State] will offer a plea to 2d Degree Murder,

Range I, judicial sentencing.” Bolden, 979

S.W.2d at 589.

The court held that because the agreement “hinged

upon truthful testimony” (Bolden, 979 S.W.2d at 592),

it did not require that the witness testify in accordance

with a particular script.

Similarly, in People v. Jones, 600 N.W.2d 652

(Mich. Ct. App. 1999), witnesses against the defendant

were granted “use” immunity in exchange for their

testimony against him. There, the agreements

provided:

30a

“IN THE MATTER OF [Witness], that if

[Witness] provides a truthful statement to the

Detroit Police Department concerning his

knowledge of the killing of [the victim] and

testifies truthfully in all trials, proceedings and

hearings in connection with that killing the

Wayne County Prosecutor’s Office will not use

(Witness’] testimony to bring charges against

him.” Jones, 600 N.W.2d at 654.

The court upheld the agreement, noting that

although the immunity agreements provided “some

incentive” for the witnesses to conform their testimony

at trial to their prior accounts, it was “not persuaded

that the agreements rendered the witnesses’ testimony

so tainted as to be inadmissible.” Jones, 600 N.W.2d at

657.

In the instant appeal, Johnson had _ been

incarcerated for over a decade for double murder when

he was approached by the State with a plea agreement

encouraging him to testify against defendant; no

similar fact pattern exists in either Bo/den or Jones.

Further, in both Bolden and Jones, the terms of the

plea agreements differ in significant respect from that

in the matter at bar, as neither contained a provision

such as here which required that the witness must not

only testify “truthfully,” but also that his testimony

“shall be consistent with certain of his prior

statements. Further, there is no indication in either of

these cases that the witnesses had a history of

inconsistent statements under oath, as does Johnson.

Finally, it does not appear that the witnesses in those

cases received the extent of benefits offered to Johnson

in exchange for his’ testimony, including the

3la

nullification of a jury verdict and the erasing of a

conviction, reduction in sentence, and a transfer from

a super-maximum security facility to a lower-security

facility. Because the cases relied upon by the majority

are factually distinguishable, I do not find them

supportive of its holding that the plea agreement here

was unobjectionable and that such agreements should

be condoned in the future under I]linois law.

For the foregoing reasons, I cannot join the

majority's opinion.

Justices KILBRIDE and BURKE join in this

dissent.

32a

APPENDIX B

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT, SECOND DIVISION

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

Vv.

JAMES BANNISTER,

Detendant-Appellant.

No. 1-04-2894

Dec. 4, 2007

[OPINION]

Justice HOFFMAN delivered the opinion of the

COUrt:

Following a jury trial in 1991, the defendant,

James Bannister, was convicted of two counts of first

degree murder and_ sentenced to natural life

imprisonment. His convictions and sentence were

affirmed on direct review. People v. Young, 263 Ill.

App. 3d 627, 635 N.E.2d 473 (1994). He subsequently

sought relief under the Post-Conviction Hearing Act

(725 Ill. Comp. Stat. Ann. 5/122-1 et seg. (West 1992)),

asserting, inter alia, actual innocence premised on

newly discovered evidence of the recantation of trial

testimony against him. The defendant’s postconviction

petition initially was dismissed without an evidentiary

hearing on this question. On appeal, this court

reversed and remanded for an evidentiary hearing on

the recantation issue. See People v. Bannister, No. 1-

97-2876, 299 Ill. App. 3d 1119, 740 N.E.2d 95 (1998)

(unpublished order under Supreme Court Rule 23).

Following the evidentiary hearing, the trial court

yranted the defendant’s request for postconviction

relief, vacated his convictions, and ordered a new trial

The defendant was retried in a bench trial in 2004 and

again found guilty of two counts of first degree murder

and sentenced to natural life in prison.

On appeal, the defendant challenges his

convictions, asserting that (1) his retrial violated his

right to be free from double jeopardy, (2) he was denied

due process and deprived of a fair trial based upon the

plea agreement entered into between the prosecution

and co-defendant Michael Johnson, (3) by entering into

the plea agreement with Johnson, the State usurped

the Governor's exclusive right to pardon or commute

sentences, (4) the trial court erred in allowing the

State to prosecute him under an indictment that

allegedly had been obtained through the use of

perjured testimony, (5) the trial court erred in

permitting the State to call Deanda Wilson as a

witness where Wilson’s prior inconsistent testimony

had been found to be untruthful, (6) he was deprived of

due process and a fair trial by cumulative error, and

(7) the State failed to prove his guilt beyond a

reasonable doubt. For the following reasons, we affirm

the defendant’s conviction and sentence.

To resolve the issues raised on appeal, it is

necessary to consider the facts and procedural history

of the defendant’s prior prosecution. The defendant

was charged with the November 9, 1989, murders of

Dan Williams and Thomas Kaufman in gang-related

shootings near the Stateway Gardens housing

complex. Also charged with the murders were co-

defendants, James Young, Michael] Meyers, Kevin

Young, Thomas Carter, Eric Smith, and Michael

34a

Johnson. The defendants were tried jointly by a jury,

with the exception of Michael Johnson, who was

granted a severance and tried separately. The

evidence presented at the consolidated trials of the

defendant and other co-defendants is summarized a:

follows.

The shootings originated from the pround and

first-floor porches of the building at 3517-3519 South

Federal Street. The shooters chased Williams toward

an Illinois Institute of Technology (IIT) research

building across the street, where he stumbled to the

ground. Both Williams and Kaufman, a security guard

stationed inside the doors of the ITT building, were

killed by the gunfire. The State presented evidence in

support of its theory that Williams had been shot, in a

case of mistaken identity, to avenge the sexual assault

of co-defendant Kevin Young's girlfmend by member:

of a rival street gang, one of whom was also named

“Williams.”

At the joint tral of the six co-defendants, the only

direct evidence against the defendant was the

testimony of Deanda Wilson, who was then 1? years

old and a member of the Del Vikings street gang.

Wilson testified that, on the night of the shooting, he

was with Willie Sims on the first-floor porch of 3519

South Federal Street when he saw the defendant and

the six co-defendants, all of whom were dressed in

black, approach the building. The seven individuals

were all members of the Gangster Disciples street

gany, a rival of the Del Vikings pang.

According to Wilson, the defendant and = co

defendant Eric Smith arrived at the building first and

waited near a janitor’s closet under the building, at

35a

one point passing within 10 feet of him. Wilson and

Sims then went to the second-floor porch where Wilson

saw three co-defendants standing below him in front of

the building and two co-defendants standing on the

first-floor porch of a connected building. Williams was

near a play lot in front of the building when someone

called out to him. Following a verbal exchange, all

seven men, including the defendant, stepped out from

their positions and fired at Williams, who stumbled

toward the IIT building and fell between its doors.

Wilson was cross-examined regarding certain alleged

inconsistencies in his testimony, such as whether the

shooters were wecring masks over their faces and

whether he could actually see the defendant and

Smith from his vantage point.

Several other witnesses corroborated certain

aspects of Wilson’s testimony, including his version of

how Williams was chased and shot by several men

before he fell near the doors of the IIT building and

Wilson’s description of the shooters’ dark clothing and

the manner in which they left the scene. In addition,

Denise Brady and Ruth Wilson, Deanda’s mother,

corroborated Wilson’s identification of co-defendants

Kevin Young and Thomas Carter.

The defendant presented an alibi defense, calling

four witnesses who testified that he was at home at

the time of the shooting. At the conclusion of the trial,

the jury found the defendant guilty of two counts of

first degree murder, and he was sentenced to life

imprisonment. The defendant’s convictions and

sentence were affirmed on direct appeal. Young, 263

Ill. App. 3d at 627, 635 N.E.2d 473.

36a

In April 1993, the defendant filed a pro se petition

for postconviction relief in which he requested a new

trial, and a supplemental petition was filed by counsel

in July 1995. The supplemental petition raised several

issues, including actual innocence based on newly

discovered evidence of Wilson’s recantation of his trial

testimony implicating the defendant. The

postconviction petition was supported by the affidavit

of Wilson, who attested that he was 15 years old and a

member of the Gangster Disciples. In his affidavit,

Wilson recanted his trial testimony in which he

identified the defendant as one of the shooters he saw

on November 9, 1989. Wilson also gave a _ court-

reported statement in which he stated that he had

seen seven people involved in the shooting but could

positively identify only four. According to Wilson’s

statement, although he had identified seven shooters

at the co-defendants’ joint trial, he was not certain

about the identity of three of those people, including

the defendant. He did see two people standing under

the building, as he had testified at trial, but he was

unable to identify them because they were wearing

masks. Wilson further attested that when he went to

the police station, a detective showed him pictures of

seven men, and those were the people he said were

involved in the shooting. Wilson claimed that before he

testified at trial, he told both a detective and an

assistant state’s attorney that he was not certain

about the identity of all seven of the shooters.

The court initially dismissed the petition without

conducting an evidentiary hearing on the issue of

Wilson’s recantation. In so ruling, the court found that

the recantation was unreliable and untrustworthy.

The court particularly noted that, since trial, Wilson

ofa

had switched allegiance to the Gangster Disciples, the

street gang to which the defendant belonged. In

denying the defendant’s request for postconviction

relief based on ineffective assistance of counsel, the

trial judge remarked, “as I look back, I believe I would

have found [the defendant] not guilty in a bench trial *

* * [the] [jury thought otherwise * * * I don’t think

[defense counsel’s decision not to call two witnesses]

amounts to incompetence.”

In denying the defendant’s motion to reconsider

the dismissal of his postconviction petition, the trial

judge stated,

“I repeat this is a difficult situation for me

because it’s one of the few times in 20 years I

ever disagreed with a jury’s verdict on a

particular defendant * * * had it been a bench

trial[,] IT would have found [the defendant] not

guilty, given the identification and his alibi. But

it was for the jury to decide. They could have

reasonably found him guilty, * * * there is

nothing under the law * * * that would require

me to change the result brought about by the

jury.

On appeal from the dismissal of the defendant's

postconviction petition, this court reversed and

remanded, holding that the circuit court should have

conducted an evidentiary hearing on the question of

Wilson’s recantation of his trial testimony implicating

the defendant.

On remand, the circuit court conducted an

evidentiary hearing and found that, with respect to the

defendant and co-defendant Smith, Wilson’s trial

testimony was not accurate and truthful and that

38a

there was no corroboration for his implication of the

defendant and Smith in the shooting. The court

concluded that, as to the defendant and co-defendant

Smith, the outcome of the trial “would probably have

been different if not for Wilson’s perjured testimony.”

Accordingly, the court granted the defendant’s

postconviction petition requesting a new trial, vacated

his convictions and sentence, set bond, and remanded

the defendant to the custody of the Cook County

Sheriff pending retrial. The defendant subsequently

filed multiple discovery requests and demands for

trial. The defendant was retried by the court after

waiving his right to a jury.

In the second tmal, the State presented the

testimony of co-defendant Johnson, who had been tried

separately, convicted of both murders, and sentenced

to natural life imprisonment. Johnson acknowledged

that he had consented to testify against the defendant

as part of a plea agreement with the State. Under the

terms of the plea agreement, Johnson promised to

testify truthfully in exchange for the State’s promise to

move for vacatur of his two murder convictions and

sentence, accept a guilty plea on one count of murder,

nolle prosequi the other murder charge, and

recommend that the court impose a sentence of 60

years’ imprisonment on the single murder conviction.

The plea agreement also provided that Johnson

promised to testify in a manner that was consistent

with his prior statements to police and to prosecutors,

but the agreement would be rendered null and void if

any of the representations contained in Johnson’s prior

statements, upon which the agreement’ was

predicated, were found to be false. The agreement,

which was signed by Johnson, his attorney, and two

39a

assistant state’s attorneys, also provided that it was

subject to the approval of the trial court judge. In

addition, Johnson testified that he had asked to be

transferred from the super maximum security facility

in which he had been incarcerated and that the State

had promised to request a transfer to a different

penitentiary, but Johnson understood that decision

was completely within the discretion of the Illinois

Department of Corrections.

Johnson further testified that in 1989, he had been

a member of the Gangster Disciples street gang for

approximately 10 years. On the evening of November

9, 1989, he was walking through the Stateway

Gardens housing complex with James Young and

Michael Meyers when they met the defendant, Eric

Smith, Thomas Carter, and Kevin Young near the

building at 3651 South Federal Street. All seven men

went upstairs to apartment 309, which was the home

of Tiya Young, Kevin Young’s niece. There, they talked

for about an hour, discussing a plan to shoot members

of the Del Vikings street gang in revenge for the

previous sexual assault of A.W., who was Kevin

Young’s girlfriend.

After this discussion, the group left the apartment

and went to 3618 South Federal Street. At that time,

all seven men were armed with guns. Johnson testified

that he had a .25-caliber automatic, and the defendant

had a .357-caliber revolver. When the group arrived at

the second building, they encountered a man known as

“Rick James,” who greeted the defendant by his

nickname. Kevin Young shot at “Rick James,” and

then all seven men ran to the building at 3547-3549

South Federal Street, where they waited for about 20

40a

minutes before returning to Tiya Young’s apartment.

There, the group talked and smoked for 45 to 60

minutes.

After leaving Tiya Young’s apartment, the group

walked to 3617 South Federal Street and encountered

Daniel Nicholson, who was in a wheelchair. Johnson

stated he stood on the first-floor porch with Carter and

the defendant while Kevin Young, Smith, Meyers, and

James Young followed Nicholson into the hallway. All

seven men had their guns out while Kevin Young

robbed Nicholson of some gold chains and other items.

After robbing Nicholson, the group walked north to the

building at 3547-3549 South Federal Street. Johnson

testified that he then told the others that he was going

upstairs to his apartment to get a ski mask and some

“wave” caps, which are like scarves. After retrieving

the ski mask and caps, he rejoined the others, gave

caps to Kevin Young and Carter, and kept a ski mask

for himself.

Thereafter, the seven men walked together to the

building located at 3517-3519 South Federal Street.

According to Johnson, he and Meyers walked to the

side of the building near the back hallway. Smith,

Kevin Young, and Carter stood in the breezeway

behind an area referred to as the “mailbox.” The

defendant and James Young stood on the 3519 side of

the building. Johnson stated that, at that time, he was

wearing a ski mask, and Meyers was wearing a “wave”

cap. As he and Meyers walked through the back

hallway, they met Gregory Gordon, Willie Sims, and

two women who were standing near the elevators.

They also saw Denise Brady, Antoinette Barry, and

Joe Johnson, who were coming out of the stairway.

4la

Johnson testified that he then heard Smith say,

“come here, mother * * *.” After hearing gunshots, he

walked with Meyers to the front of the building to see

what was happening. Johnson stated that he saw

Williams running while the defendant, Smith, Carter,

Kevin Young, and James Young were firing their guns

at him. Kevin Young stood behind the “mailbox,” just

inside the breeze way, with Smith and Carter. The

defendant and James Young were on the ramp from

the 3519 side of the building. The defendant, James

Young, Kevin Young, Smith, and Carter stepped out

from underneath the building while shooting at

Williams. Johnson testified that he shot at Williams as

he ran to a play lot, jumped the fence, and ran toward

the IIT building.

According to Johnson, when the _ shooting

eventually stopped, he picked up a_ .25-caliber

automatic shell casing from his gun and put it in his

pocket. All seven of the shooters then went to an

apartment in the building at 3547 South Federal

Street and waited a few minutes until the police left

the area. Johnson stated that he then went with

Meyers, James Young, Kevin Young, Carter, and the

defendant to an apartment in another building, but

Smith drove away in a car. After about five minutes,

the remaining members of the group left the

apartment, and he went to the home of his aunt. About

a week later, he sold the gun that he had used in the

shooting.

Johnson’s testimony was substantially consistent

with the statement he gave the police on December 29,

1989, the day after his arrest. Johnson acknowledged

that he initially denied any involvement in the

42a

shootings and, prior to his 1991 trial, he had moved to

suppress his statement, asserting that he had not been

advised of his constitutional rights before being

questioned. At the retrial of the defendant, Johnson

testified that the basis for his motion to suppress had

been untrue because he had been advised of his rights

prior to giving the statement. The defendant cross-

examined Johnson as to the specific terms of the plea

agreement and his motivation for entering into the

agreement.

Daniel Nicholson testified that he had been

confined to a wheelchair since 1981 and, on November

9, 1989, he was visiting his sister who lived in

Stateway Gardens. Between 9 and 10 p.m., he left his

sister’s apartment and went to visit A.W. at 3617

South Federal Street. While waiting outside, he saw

Kevin Young, Carter, James Young, Smith, Meyers,

Johnson, and the defendant. All seven men pulled

guns, and Kevin Young and Meyers robbed him of

three gold chains, a watch, and two diamond rings.

Afterward, Smith told him to just roll down the ramp

and not look back. Nicholson stated that, as he was

leaving, he saw Williams and told him that he had just

been robbed and that Williams should go to the front

of the building. Despite his warning, Williams walked

to the back of the building. As he was going up the

ramp of his sister’s building, he heard someone say,

“[clatch that mother * * *” Looking backward, he saw

that Williams was running from several people who

were chasing him. He also heard several gunshots and

saw flashes of gunfire.

Gregory Gordon testified that in November of

1989, he lived in Stateway Gardens at 3517-3519

43a

South Federal Street. Between 9 and 10 p.m. on

November 9, 1989, he was with a person known as

“Big Will.” As the two men stood near the ground-floor

elevators on the 3517 side of the building, they saw

seven men, all of whom were dressed in dark clothing, »

walk into the hallway of the building. Some of the men

had bandanas or scarves over their faces. Gordon

stated that he recognized Meyers, Johnson, Carter,

Smith, and Kevin Young, all of whom were holding

guns in their hands. While he pressed the elevator

button, he heard someone say, “[c]lome here, mother * *

*” and several gunshots. When the elevator doors

opened, he got inside along with “Big Willi,” two girls,

and another guy. In the elevator, he heard another

volley of gunshots before he got off on the 10th floor.

According to Gordon, he then walked to the edge of the

porch and looked down, where he saw someone

crawling on the ground near the IIT building. He then

looked over the porch on the other side of the building

and saw seven men walking in a line toward the

building at 3547-3549 South Federal Street. Gordon

testified that he subsequently viewed police

photographs and identified Kevin Young, Smith,

Carter, Meyers, and Johnson as five of the seven men

he had seen on the night of the shootings. He also

identified photographs of the defendant and James

Young as people he recognized from the neighborhood,

but he was unable to state specifically that they were

members of that group.

Gordon acknowledged that on August 29, 1990, he

signed a statement exonerating Smith, but he

explained that he was coerced into doing so. Gordon

testified that he feared for his life and was forced to

give that statement by Demetrius Jackson, who had a

44a

gun and whom he believed was a member of the

Gangster Disciples.

The State also called Deanda Wilson, who was

then serving a sentence for murder in a Minnesota

prison. Wilson denied seeing the shootings of Williams

and Kaufman at all. Wilson stated that he was at a

completely different building and knew nothing of the

murders until he heard gunshots. Wilson testified that

he looked out of a window after the shooting was all

over, and he did not see any of the shooters. The

prosecution introduced Wilson’s prior inconsistent

statements made during his testimony at the

defendant’s first trial, Johnson’s trial, and during the

proceedings before the grand jury. Wilson admitted

that he had previously testified that the defendant was

present at the scene and shot at Williams, but stated

that those statements were untrue.

As in his first trial, the defendant again presented

an alibi defense and called several witnesses who

testified that he was at home on the night of the

shootings. Upon consideration of all of the evidence

presented, the court found the defendant guilty on

both counts of first degree murder. The defendant

subsequently filed post-trial motions for a new trial

and for acquittal and dismissal based on double-

jeopardy violations. The court denied these motions

and sentenced the defendant to natural life in prison.

The defendant has appealed his convictions and

sentence.

We initially address the defendant’s argument that

his retrial violated his constitutional guarantees

against double jeopardy. The State responds that the

defendant has forfeited this issue on review by failing

45a

to timely raise it in the trial court and by requesting

that the court grant him a new trial following

postconviction relief. ‘The State also asserts that, even

if this issue had been preserved for review, retrial of

the defendant was proper. We agree with the State on

both propositions.

The United States and Illinois constitutions

provide that no person shall be twice put in jeopardy

for the same offense. U.S. Const. amend. V; Ill. Const.

art. I, § 10. The constitutional guarantee against

double jeopardy forbids a second, or successive, trial

for the purpose of affording the prosecution another

opportunity to supply evidence it failed to muster in

the first proceeding. People v. Olivera, 164 Il. 2d 382,

393, 647 N.E.2d 926 (1995), citing Burks v. United

States, 437 U.S. 1, 11 (1978). Although the guarantee

against double jeopardy precludes the State from

retrying a defendant after a reviewing court has

determined that the evidence introduced at trial was

legally insufficient to convict, the double jeopardy

clause does not preclude retrial of a defendant whose

conviction has been set aside because of an error in the

proceedings leading to the conviction. Olivera, 164 III.

2d at 393, 647 N.E.2d 926, citing People v. Mink, 141

Ill. 2d 163, 173-74, 565 N.E.2d 975 (1990). In addition,

retrial is permitted even though evidence is

insufficient to sustain a verdict once erroneously

admitted evidence has been discounted, and, for

purposes of double jeopardy, all evidence submitted at

the original trial may be considered when determining

the sufficiency of the evidence. Olivera, 164 Ill. 2d at

393, 647 N.B.2d 926, citing Lockhart v. Nelson, 488

U.S. 33, 40 (1988); People v. Avery, 180 Ill. App. 3d

146, 157, 534 N.E.2d 1296 (1989).

46a

It is firmly established that the constitutional

right to not be twice put in jeopardy for the same

offense is a personal privilege which may be forfeited.

People v. Scales, 18 Ill. 2d 283, 285, 164 N.E.2d 76

(1960); People v. Dieterman, 243 Ill. App. 3d 838, 843,

613 N.E.2d 298 (1993). Where a new trial is granted

on the defendant’s request, that is, in itself, not a bar

to a second trial on the same or amended indictment.

People v. Placek, 184 Nl. 2d 370, 377, 704 N.E.2d 393

(1998). The defendant cannot, by his own conduct,

avoid the jeopardy on which he stands and then assert

it as a bar to subsequent jeopardy. Placek, 184 Ill. 2d

at 377, 704 N.E.2d 393. The right has been forfeited

where the accused seeks and obtains a new trial, or

where he does not raise the defense of former jeopardy

before judgment in the trial court. Sca/es, 18 Ill. 2d at

285-86, 164 N.E.2d 76.

In this case, the defendant specifically requested a

new trial in his postconviction petitions, and he did not

object to the trial court’s decision to set bond and hold

him for retrial following the grant of postconviction

relief. In fact, the record demonstrates that, after his

first convictions were vacated, the defendant

affirmatively demanded a new trial on more than one

occasion. The defendant did not raise his double-

jeopardy claim until he filed post-trial] motions after

the trial court had again entered judgments of

conviction om retrial. Thus, he has, by his own conduct,

forfeited the issue of double jeopardy on appeal. See

Scales, 18 Ill. 2d at 285-86, 164 N.E.2d 76.

The defendant seeks to avoid this result by relying

on certain remarks made by the circuit court during

the postconviction proceedings. He contends that these

4ila

comments constituted a finding by the court that the

prosecution had failed to present sufficient evidence at

the defendant’s first trial to support his conviction. We

find this contention is refuted by the record.

In particular, the defendant refers to the dismissal

of his postconviction petition where the court stated,

“as I look back, I believe I would have found [the

defendant] not guilty in a bench trial * * * [the] [jury

thought otherwise * * * I don’t think [defense counsel’s

decision not to call two witnesses] amounts to

incompetence.” Also, in denying the defendant’s

motion to reconsider the dismissal of his

postconviction petition, the trial judge stated,

“T repeat this is a difficult situation for me

because it’s one of the few times in 20 years |

ever disagreed with a jurys verdict on a

particular defendant * * * had it been a bench

trial[,] I would have found [the defendant] not

guilty, given the identification and his alibi. But

it was for the jury to decide. They could have

reasonably found him guilty, * * * there is

nothing under the law I feel that would require

me to change the result brought about by the

jury.”

The defendant misconstrues the court's

determination and relies on certain isolated remarks,

taken out of context, to support his argument that the

court found a lack of sufficient evidence to convict at

the first tmal. Yet, it is clear that the court’s

comments, considered in their entirety, reflect the

opposite conclusion. The trial judge specifically found

that, although he might have found the defendant. not

guilty, the jury thought otherwise, and_ the

48a

determination of the defendant’s guilt was for the jury

to decide. In addition, the court found that the jury

could have reasonably found the defendant guilty and

that there was nothing under the law that would

compel a different result. The trial court’s remarks

demonstrate that the court did not make a factual

determination that the prosecution had presented

insufficient evidence to support the defendant’s puilt

at the first trial.

Here, postconviction relief was yranted based on

Wilson’s recantation of his previous testimony and not

based on a lack of sufficient evidence to convict.

Therefore, retrial was proper, and all the evidence

submitted at the original trial may be considered when

determining the sufficiency of the evidence. See

Olivera, 164 Ill. 2d at 393, 647 N.I.2d 926, citing

Lockhart, 488 U.S. at 40; Avery, 180 Ill. App. 3d at

157, 534 N.E.2d 1296. Upon consideration of the

evidence adduced at the first trial, including the

testimony of Wilson, we agree with the trial court’s

determination that the prosecution had presented

sufficient evidence to support defendant’s convictions.

Accordingly, the defendant’s second prosecution did

not violate his right to be free from double jeopardy.

We next consider the defendant's contention that

he was deprived of due process and a fair trial based

upon the plea agreement entered into between the

prosecution and Johnson. In support of this argument,

the defendant relies upon the fact that the plea

agreement provided that Johnson would testify

consistently with his pnor statements to police and

prosecutors. Whether a defendant’s constitutional

rights are violated by a consistency provision in a

49a

witness’ plea agreement is an issue of first impression

in Illinois. However, other states have considered the

question and held that consistency provisions are

permissible where they are accompanied by terms that

require the witness’ testimony to be truthful. We find

the reasoning of these cases to be instructive here.

In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998),

the defendant and a co-defendant were charged with

first degree murder. Bolden, 979 S.W.2d at 589. The

co-defendant testified against the defendant pursuant

to a plea agreement requiring that he testify truthfully

as to the defendant’s involvement in the murder, in

accordance with a prior statement he had given to a

law enforcement officer. Bolden, 979 S.W.2d at 589.

The defendant appealed his conviction, arguing that

he had been denied his right to due process and a fair

trial because the co-defendant’s plea agreement

required him to testify to specific facts. Bolden, 979

S.W.2d at 590.

The Supreme Court of Tennessee held that

particular testimony of a witness as a condition of a

plea agreement is not a violation of due process so long

as the testimony is required to be truthful. Bo/den, 979

S.W.2d at 591-92, citing State v. Burchett, 399 N.W.2d

258, 266-67 (Neb. 1986); State v. Clark, 743 P.2d 822,

828-29 (Wash. Ct. App. 1987); Sheriff Humboldt

County v. Acuna, 819 P.2d 197, 200-01 (Nev. 1991).

The court observed that “it is only where the

prosecution has bargained for false or _ specific

testimony, or a specific result, that an accomplice’s

testimony is so tainted as to require . . . preclusion.”

Bolden, 979 S.W.2d at 591, quoting Burchett, 399

N.W.2d at 266-67. The court distinguished on their

50a

facts cases in which the plea agreement required only

that the witness testify in a particular fashion or that

the testimony produce a specific result, without regard

to the truthfulness of the testimony. Bolden, 979

S.W.2d at 592 n.3, citing People v. Medina, 116 Cal.

Rptr. 133, 141 (Ct. App. 1974); People v. Green, 228

P.2d 867, 868-72 (Cal. Ct. App. 1951).

The Bolden court noted that because the plea

agreement specifically required the co-defendant to

testify truthfully, that condition “necessarily engulfed”

the other terms in the agreement, which was “hinged

upon truthful testimony.” Bolden, 979 S.W.2d at 592.

The court held that the codefendant’s testimony did

not violate the defendant’s rights to due process and a

fair trial even though it had been induced by a plea

agreement that required truthfulness and consistency

with a prior statement. Bolden, 979 S.W.2d at 593.

The Court of Appeals of Michigan reached the

same result in People v. Jones, 600 N.W.2d 652 (Mich.

Ct. App. 1999), where it upheld immunity agreements

that provided that the witnesses had previously given

truthful statements to police concerning the murder

with which the defendant was charged and would

testify truthfully at trial. Jones, 600 N.W.2d at 656-57.

The court observed that although the immunity

agreements may provide some incentive for the

witnesses to conform their trial testimony to their

prior accounts of the incident, they did not violate the

defendant’s rights where the prosecution expressly

conditioned its grants of immunity on the promises

that the witnesses would provide truthful testimony.

Jones, 600 N.W.2d at 657. The Jones court concluded

that when a prosecutor makes the decision to bargain

5la

with a witness on the basis of representations made by

the witness during negotiations with the State, it is

reasonable for the prosecutor to rely on the witness’

assertion that such representations are truthful and to

expect that the witness’ trial testimony would be

essentially consistent with the original information

upon which the State’s promise of leniency was

induced. Jones, 600 N.W.2d at 657, citing Acuna, 819

P.2d at 199. In Arizona v. Rivera, 109 P.3d 83 (Ariz.

2005), two accomplices testified against the defendant

pursuant to separate plea agreements providing that

each accomplice avowed that the information she had

provided during a pretrial interview with prosecutors

was a complete, accurate, and truthful account of the

events surrounding the murder. Avera, 109 P.3d at

84. In addition, each plea agreement provided that the

accomplice understeod and acknowledged that the

State had entered into the plea agreement based on

that avowal, and that the accomplice promised that

she would testify truthfully at the defendant’s trial.

Rivera, 109 P.3d at 84. The Supreme Court of Arizona

concluded that the defendant’s rights were adequately

protected because the plea agreements did not compel

the accomplices to disregard their oaths of

truthfulness or bind them to a particular script or

result. Aivera, 109 P.3d at 86-87. In so holding, the

Rivera court found that State v. Fisher, 859 P.2d 179,

183 (Ariz. 1993) was factually distinguishable because

the plea agreement in that case required only that the

witness testify in a manner that was consistent with a

prior statement regardless of the truth of that

statement. Avera, 109 P.3d at 87, citing Frsher, 859

P.2d at 183.

52a

Here, the plea agreement repeatedly and explicitly

obligated Johnson to testify truthfully. The agreement

also provided that Johnson would testify in a manner

that was consistent with his prior statements to police

and to prosecutors, but if any of the representations

contained in his prior statements were found to be

false, the agreement would be rendered null and void.

Thus, truthfulness was the overriding requirement of

the agreement, and any falsehoods in Johnson’s prior

statements would nullify the accord. The agreement

neither compelled Johnson to disregard his oath of

truthfulness nor bound him to a particular script or

result. By its terms, the requirement of truthfulness

“necessarily engulfed” the other provisions in the

agreement, which was “hinged upon _ [Johnson’s]

truthful testimony.” See Bolden, 979 S.W.2d at 592.

Accordingly, we find that Johnson’s testimony was not

tainted by the plea agreement, snd the admission of

his testimony, induced by the plea agreement, did not

violate the defendant’s rights to due process and a fair

trial.

In addition, the defendant claims that he was

denied due process where the trial judge participated

in Johnson’s plea agreement and failed to recuse

himself from presiding over the defendant’s second

trial. We find that this contention is not supported by

the record. Contrary to the defendant’s assertion, the

trial judge did not sign and was not a party to

Johnson’s plea agreement. In addition, the court did

not approve Johnson’s plea agreement until more than

a month after the defendant’s second trial had

concluded and he had again been found guilty. In light

of these facts, we find that the defendant’s claim that

53a

the trial judge committed reversible error by failing to

recuse himself is unfounded.

We also reject the defendant’s assertion that the

State’s plea agreement with Johnson “usurped the sole

right to pardon or commute sentences allocated to the

Governor of Illinois.” Initially, we observe that the

defendant lacks standing to challenge the validity and

enforceability of Johnson’s plea agreement because he

was not a party to it.

It is established that fully negotiated plea

agreements, though part of the criminal justice

structure, are generally governed by contract law

principles. People v. Evans, 174 Ill. 2d 320, 332, 673

N.E.2d 244 (1996); People v. Malin, 359 Ill. App. 3d

257, 262, 833 N.E.2d 440 (2005). Under contract law,

there is a strong presumption against creating

contractual rights in third parties, and _ this

presumption can only be overcome by a showing that

the language and circumstances of the contract

manifest an affirmative intent by the parties to benefit

the third party. state of Willis v. Hrferbaum

Construction Corp., 357 Ill. App. 3d 1002, 1007, 830

N.E.2d 636 (2005), citing Bates & Rogers Construction

Corp. v. Greeley & Hansen, 109 Ill. 2d 225, 486 N.E.2d

902 (1985). Here, the defendant was not a beneficiary

of the plea agreement between Johnson and the State.

As a result, he has no standing to contest the validity

or enforcement of Johnson’s plea agreement.

Moreover, even if the defendant had standing to

assert this claim, it is clear that the plea agreement

entered into between Johnson and the State was

neither a pardon nor a commutation of sentence. A

pardon is an executive action that officially nullifies

o4a

punishment or other legal consequences of a crime.

Black’s Law Dictionary 1137 (7th ed. 1999). A

commutation of a sentence is the’ executive’s

substitution of a punishment that is less severe than

that originally imposed on a criminal defendant.

Black’s Law Dictionary 274 (7th ed. 1999). Neither of

these situations requires the convicted defendant to

undertake any promise or obligation in order to receive

the benefit. By contrast, the agreement between

Johnson and the State was a negotiated accord that

obligated both the prosecution and Johnson to take

certain actions in order to satisfy its terms.

The supreme court has recognized that “[t]here is

no question that ‘the disposition of criminal charges by

agreement between the prosecutor and the accused,

sometimes loosely called “plea bargaining,” is an

essential component of the administration of justice.”

People v. Henderson, 211 Ill. 2d 90, 102, 809 N.E.2d

1224 (2004), quoting Santobello v. New York, 404 U.S.

257, 260 (1971). In addition, the court has held that

“the plea-bargaining process, and the negotiated plea

agreements that result from that process, are ‘vital to

and highly desirable for our criminal justice system.”

Henderson, 211 Ill. 2d at 102-03, 809 N.E.2d 1224,

quoting People v. Evans, 174 Ill. 2d 320, 325, 673

N.E.2d 244 (1996).

In this case, the plea agreement required Johnson

to testify truthfully against the defendant, withdraw

all of his appeals and postconviction petitions, and

forever waive any and =all future’ appeals,

postconviction petitions or motions to vacate pleas.

The record demonstrates that Johnson had an

amended supplemental postconviction petition

55a

pending in January 2004, and he moved to voluntarily

dismiss his postconviction appeal in accordance with

the terms of the plea agreement. In exchange for

Johnson’s truthful testimony and his promise to forego

future appeals and postconviction petitions, the State

promised to move to vacate Johnson’s_ existing

sentence, accept his guilty plea on one count of first

degree murder, move to zolle prosequi the other

murder charge, and to recommend that Johnson

receive a sentence of 60 years in prison, which was the

maximum sentence for first degree murder. These

mutual obligations demonstrate that the plea

agreement between Johnson and the State cannot be

construed as a pardon or a commutation of sentence.

Our analysis is not altered by the fact that

Johnson had already been tried and convicted. Illinois

courts have consistently held that a defendant does

not have an absolute right to have a guilty plea

accepted by the circuit court, and the court may reject

a plea in the exercise of sound judicial discretion.

Henderson, 211 Ill. 2d at 103, 809 N.E.2d 1224, citing

Santobello, 404 U.S. at 262; People v. Peterson, 311 Ul.

App. 3d 38, 45, 725 N.E.2d 1 (1999). Before a trial

judge accepts any plea, the judge must first determine

if the plea has a factual basis, which protects those

accused of crime “by ensuring that they have not

pleaded guilty by mistake or under a misapprehension,

or been coerced or improperly advised to plead to

crimes they did not commit.” People ex rel. Daley v.

Sura, 112 Ill. 2d 26, 32, 490 N.E.2d 1288 (1986). Here,

the trial court found a factual basis for the guilty plea

after having presided over Johnson’s earlier trial and

having heard Johnson’s testimony at the defendant’s

retrial, which recounted his participation in the

56a

murder of Williams, and the court did not accept

Johnson’s guilty plea until more than a month after

the defendant was found guilty on retrial. Also, as

noted above, Johnson voluntarily dismissed a pending

appeal on a postconviction petition pursuant to the

plea agreement. Under these circumstances, we find

that the plea agreement was valid and enforceable.

In addition, even if the plea agreement were found

to be invalid, the only consequence would be that it

could not have been enforced by either the State or

Johnson. The defendant has cited no authority holding

that a determination that the plea agreement was

invalid would have required the suppression of

Johnson’s testimony. Rather, a finding that the

agreement was void would mean that neither Johnson

nor the State would have been obligated to fulfill their

respective commitments under the agreement, and

Johnson would still be legally convicted of two

murders. See People v. Caban, 318 Ill. App. 3d 1082,

1087-89, 743 N.E.2d 600 (2001) (holding that, where

the sentence stipulated in the plea agreement was not

authorized by statute, the entire agreement was void,

and the defendant’s plea was properly vacated). For all

of the reasons set forth above, we reject the

defendant’s assertion that Johnson’s plea agreement

was invalid.

The defendant next claims that it was improper to

retry him on the original indictment because that

indictment was based on perjured testimony by

Wilson. In response, the State contends that the

defendant has forfeited this issue on appeal. We agree.

To preserve an issue for review, a defendant must

both object at trial and raise the issue in a written

57a

post-trial motion. People v. Bush, 214 Ill. 2d 318, 332,

827 N.E.2d 455 (2005); People v. Enoch, 122 Ill. 2d

176, 186, 522 N.E.2d 1124 (1988). Here, the defendant

did not challenge the indictment prior to or during

trial, nor did he raise it in his post-trial motion.

Consequently, he has forfeited this claim on appeal.

See Bush, 214 Ill. 2d at 332, 827 N.E.2d 455; Enach,

122 Ill. 2d at 186, 522 N.E.2d 1124.

Moreover, even if this issue had been preserved for

review, the defendant has failed to present this court

with an adequate record to support his assertion that

the indictment against him was based solely on the

grand jury testimony of Wilson. It is established that

the appellant has the burden of providing a

sufficiently complete record on appeal so that the

reviewing court is fully informed regarding the issues

to be resolved. People v. Moore, 373 Ill. App. 3d 367,

376, 869 N.E.2d 177 (2007); People v. Raczkowski, 359

Ill. App. 3d 494, 496, 834 N.E.2d 596 (2005). Where

the issue on appeal relates to the conduct of a

proceeding, the issue is not subject to review absent a

report or record of the proceeding. Webster v.

Hartman, 195 Tl. 2d 426, 432, 749 N.E.2d 958 (2001);

Raczkowski, 59 lll. App. 3d at 496, 834 N.E.2d 596.

Because the record before us does not include the

entire report of proceedings before the grand jury, it is

impossible for this court to ascertain whether the

indictment against the defendant was _ based

exclusively on Wilson’s testimony.'! Accordingly, we

1 This court granted the defendant’s motion to supplement the

record on appeal to include the report of proceedings before the

grand jury. Although the briefs indicate that Wilson testified

before the grand jury, the supplemental record filed by the

defendant contains only the testimony of Detective Winstead and

58a

must presume that the trial court did not err in

permitting the retrial of the defendant on the original

indictment.

The defendant also argues that it was reversible

error for the State to call Deanda Wilson as a witness.

In particular, the defendant contends that he was

denied due process and a fair trial because the court

, permitted the State to call Wilson despite the

recantation of his testimony given at previous trials

and before the grand jury. The State again argues that

the defendant has forfeited this issue on appeal, and

we must agree.

As stated above, in order to preserve an issue for

review, a defendant must both object at trial and raise

the issue in a written post-trial motion. Bush, 214 Ill.

2d at 332, 827 N.E.2d 455; Enoch, 122 Ill. 2d at 186,

522 N.E.2d 1124. In this case, the defendant failed to

object at trial to the introduction of Wilson’s testimony

and, therefore, has forfeited this issue on review. See

Bush, 214 Ill. 2d at 332, 827 N.E.2d 455; Lnoch, 122

Ill. 2d at 186, 522 N.E.2d 1124.

Despite this forfeiture, the defendant urges us to

consider this issue under the plain-error rule, which

permits review where the trial evidence was closely

balanced or when the error is “so substantial that it

affected the fundamental fairness of the proceeding,

and remedying the error is necessary to preserve the

integrity of the judicial process.” People v. Hall, 194

Ill. 2d 305, 335, 743 N.E.2d 521 (2000); 134 Ill. 2d R.

615(a). The defendant asserts that plain error was

established because the question of whether Wilson’s

does not include the testimony of Wilson or any other witnesses.

59a

trial testimony was perjured had been finally decided

during the postconviction proceedings and had become

the law of the case. We disagree.

The law of the case doctrine bars reclitigation of an

issue already decided in the same case. See People v.

Tenner, 206 Ill. 2d 381, 395, 794 N.E.2d 238 (2002);

People v. Patterson, 154 Il. 2d 414, 468, 610 N.E.2d 16

(1992). The case before us is the defendant’s direct

appeal of his convictions following the second trial,

which is a separate and distinct proceeding from that

involving the defendant’s post-conviction petition. See

People v. Harris, 224 Ill. 2d 115, 127, 862 N.i.2d 960

(2007) (recognizing that a postconviction proceeding

collaterally attacking a conviction is a case separate

and apart from the case in which the conviction was

entered). Because the defendant’s direct appeal and

the postconviction proceedings are not the same case,

the doctrine of law of the case does not apply here. See

Tenner, 206 Ill. 2d at 395-96, 794 N.E.2d 238. In

addition, we observe that the defendant has not

argued that either collateral estoppel or res judicata

applied to the question of whether Wilson’s testimony

had been perjured, and we decline to address the issue

since it was not raised on appeal. See 210 Ill. 2d R.

341(h)\(7); People v. Colon, 225 Ill. 2d 125, 157, 866

N.E.2d 207 (2007).

Moreover, the merits of the defendant’s argument

have been rejected by People v. Craig, 334 Ill. App. 3d

426, 778 N.E.2d 192 (2002). As observed in Craig,

section 115-10.1 of the Code of Criminal Procedure

(725 Ill. Comp. Stat. Ann. 5/115-10.1 (West 2004))

specifically authorizes the admission of prior

inconsistent statements as substantive evidence and

60a

dictates that the court did not err in permitting the

State to call Wilson as a witness.

Section 115-10.1 provides, in relevant part, as

follows:

“In all criminal cases, evidence of a statement

made by a witness is not made inadmissible by

the hearsay rule if

(a) the statement is inconsistent with his

testimony at the hearing or trial, and

(b) the witness is subject to cross-examination

concerning the statement, and

(1) was made under oath at a trial, hearing, or

other proceeding, or

(2) narrates, describes, or explains an event or

condition of which the witness had pcrsonal

knowledge, and

(A) the statement is proved to have been written

or signed by the witness, or

(B) the witness acknowledged under oath the

making of the statement either in his testimony

at the hearing or trial in which the admission

into evidence of the prior statement is being

sought, or at a trial, hearing, or other

proceeding, or

accurately recorded by a_ tape recorder,

videotape recording, or any other similar

electronic means of sound recording.” 725 II.

Comp. Stat. Ann. 5/115-10.1 (West 2004); see

61a

also Craig, 334 Ill. App. 3d at 441, 778 N.f6.2d

192.

Under this provision, prior inconsistent statements

are admissible as substantive evidence as long as the

statutory requirements have been met. See People v.

Benford, 349 Ill. App. 3d 721, 730, 812 N.E.2d 714

(2004); People v. Kluppelberg, 257 Ill. App. 3d 516,

534, 628 N.E.2d 908 (1993).

In Craig, this court recognized that “a substantive

policy reason for section 115-10.1 of the Code was to

prevent a turncoat witness from backing away from a

former statement made under’ circumstances

indicating it was likely to be true by merely denying

the statement.” Craig, 334 Ll. App. 3a at 441-42, 778

N.E.2d 192, quoting People v. Fauber, 266 Ill. App. 3d

381, 390-91, 640 N.E.2d 689 (1994). The Craig court

held that the defendant’s due process rights were not

violated by the State’s introduction as substantive

evidence the prior inconsistent statements of two

witnesses who recanted their previous testimony at

trial. Craig, 334 Ill. App. 3d at 441-42, 778 N.E.2d 192.

In this case, each term set forth in section 115-10.1

was satisfied by Wilson’s testimony at the previous

trials and during the grand jury _ proceedings.

Consequently, the admission of Wilson’s prior

inconsistent statements as substantive evidence was

proper, and we find no violation of the defendant’s

right to due process by its admission. See Craig, 334

Ill. App. 3d at 441-42, 778 N.E.2d 192.

The defendant next contends that his convictions

must be reversed based on cumulative error. In

support of this contention, he relies upon the plea

agreement with Johnson, the admission of Wilson’s

62a

prior inconsistent statements as substantive evidence,

his retrial based on the original indictment, and the

fact that the State offered “incentives” for the

testimony of Nicholson and Gordon. We have

previously disposed of the first three assignments of

error. Regarding the final allegation, we_ initially

observe that the defendant has waived this issue on

review by failing to raise it at trial. See Bush, 214 Ill.

2d at 332, 827 N.E.2d 455; FHnoch, 122 Ill. 2d at 186,

522 N.E.2d 1124. In addition, we find that the

defendant was not denied due process where his

counsel was able to cross-examine both Nicholson and

Gordon regarding any inducements or benefits that

had been offered by the prosecution in exchange for

their testimony. Accordingly, we conclude that the

defendant was not deprived of the right to a fair trial

based on cumulative error. See People v. Cafley, 205

Ill. 2d 52, 117-18, 792 N.E.2d 1168 (2001); People v.

Hall, 194 Ill. 2d 305, 350-51, 743 N.E.2d 521 (2000).

Finally, we address the defendant’s argument. that

his convictions should be reversed because the State

failed to prove him guilty beyond a reasonable doubt.

In challenging the evidentiary basis for his

convictions, the defendant essentially disputes the

credibility of the witnesses who testified against him.

Specifically, he claims that his convictions should be

reversed where the testimony given by Johnson,

Nicholson, and Gordon was’ improbable’ and

unconvincing because each of these witnesses had

received substantial benefits from the State in

exchanpe for their testimony. We disagree.

When a defendant challenges the sufficiency of the

evidence, the appellate court must determine

63a

“whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979); People v. Cunningham, 212 Il.

2d 274, 278, 818 N.E.2d 304 (2004). In such a case, it

is not the role of the reviewing court to retry the

defendant. People v. Sutherland, 223 Ill. 2d 187, 242,

860 N.E.2d 178 (2006). A criminal conviction will not

be set aside on the grounds of insufficient evidence

unless the evidence is so unreasonable, improbable, or

unsatisfactory as to justify a reasonable doubt of the

defendant’s guilt. People v. Brown, 169 Il. 2d 132, 152,

661 N.E.2d 287 (1996). In reviewing the evidence we

will not substitute our judgment for that of the trier of

fact. Sutherland, 223 Ill. 2d at 242, 860 N.E.2d 178;

People v. Collins, 214 lll. 2d 206, 217, 824 N.E.2d 262

(2005). The determination of the weight to be given the

witnesses’ testimony, their credibility, resolution of

inconsistencies and conflicts in the evidence, and

reasonable inferences to be drawn from the testimony

are the responsibility of the trier of fact. Sutherland,

223 Ill. 2d at 242, 860 N.E.2d 178.

The testimony of a single witness, is sufficient to

convict if the testimony is positive and the witness is

credible. People v. Smith, 185 Ill. 2d 532, 541, 708

N.E.2d 365 (1999). Where the finding of the

defendant’s guilt depends on eyewitness testimony, a

reviewing court must decide whether a fact finder

could reasonably accept the testimony as true beyond

a reasonable doubt. Cunningham, 212 Ill. 2d at 279,

818 N.E.2d 304. Under this standard, the eyewitness

testimony may be found insufficient “only where the

record evidence compels the conclusion that no

64a

reasonable person could accept it beyond a reasonable

doubt.” Cunningham, 212 Ill. 2d at 280, 818 N.E.2d

304. Although “the testimony of an accomplice witness

has inherent weaknesses and should be accepted only

with caution and suspicion,” such testimony, “whether

corroborated or uncorroborated, is sufficient to sustain

a criminal conviction if it convinces the [trier of fact] of

the defendant’s guilt beyond a reasonable doubt.”

People v. Tenney, 205 Ill. 2d 411, 429, 793 N.E.2d 571

(2002), citing People v. Smith, 177 Ill. 2d 53, 74, 685

N.E.2d 880 (1997). Moreover, a conviction will not be

reversed simply because the defendant claims that a

witness was not credible. Smyth, 177 Hl. 2d at 74, 685

N.E.2d 880; People v. Byron, 164 Ill. 2d 279, 299, 647

N.E.2d 946 (1995).

In this case, the direct evidence against the

defendant consisted primarily of the testimony of

Johnson, who testified in detail regarding his own

involvement and that of the defendant in the murders

of Williams and Kaufman. Johnson explained the

motivation behind the murder of Williams, who was

believed to be a member of the Del Vikings street gang

that was responsible for the previous sexual assault of

Kevin Young’s girlfriend. He also described the series

of events that culminated in the two murders. He

explicitly related the manner in which the seven co-

defendants met on the evening of November 9, 1989,

armed themselves with various weapons, traveled

between several buildings in the housing complex, and

robbed Nicholson before encountering Williams.

Johnson testified that after Smith called out to

Williams, all seven members of the group shot at him

while he attempted to flee toward the IIT building.

65a

Both Williams and Kaufman were killed by these

shots.

Johnson’s testimony alone was sufficient to sustain

the defendant’s murder convictions. In addition,

several aspects of his testimony were corroborated by

the testimony of Nicholson and Gordon. In particular,

Nicholson testified that the defendant was armed with

a gun and was part of the group of men who robbed

him shortly before the shootings occurred. Gordon’s

testimony corroborated Johnson’s description of the

events that occurred immediately before the shootings.

As stated earlier, it was the right and obligation of

the trial judge to determine the weight and credibility

to be given the witnesses’ testimony, to resolve any

inconsistencies and conflicts in the evidence, and to

decide the reasonable inferences to be drawn from the

testimony. Sutherland, 223 lll. 2d at 242, 860 N.E.2d

178; Tenney, 205 Ill. 2d at 428, 793 N.E.2d 571. The

court was well aware of the terms of Johnson’s plea

agreement and, in accepting the plea, the court

specifically found that Johnson’s trial testimony was

truthful. In addition, the court was informed of the

benefits that both Nicholson and Gordon had received

in exchange for their testimony. Also, as the finder of

fact, the trial court was entitled to credit the testimony

of the prosecution witnesses and to disregard the

defendant’s alibi evidence. See People v. Jimerson, 127

Ill. 2d 12, 46, 535 N.E.2d 889 (1989). In reviewing all

of the evidence in accord with the standard set forth

above, we find that a rational trier of fact could have

found the defendant's guilt beyond a reasonable doubt.

Accordingly, we reject the defendant’s assertion that

66a

the State failed to prove him guilty beyond a

reasonable doubt.

For the foregoing reasons, we affirm the

defendant’s convictions and sentence.

Affirmed.

HALL and KARNEZIS, JJ., concur.

67a

APPENDIX C

SUPREME COURT OF ILLINOIS

Springfield, [linois, January 25, 2010

THE FOLLOWING CASES ON THE REHEARING

DOCKET WERE DISPOSED OF AS INDICATED:

No. 105887 — People State of Illinois, appellee, v.

James Bannister, appellant. Appeal,

Appellate Court, First District.

Petition for rehearing denied.

ee %& & &

68a

APPENDIX D

STATE OF ILLINOIS }

} SS.

COUNTY OF COOK ss}

IN THE CIRCUIT COURT OF

COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

PEOPLE OF THE STATE OF

ILLINOIS

NO. 90 CR-1823

}

VS.

MICHAEL JOHNSON

PLEA AGREEMENT

IT IS AGREED that Michael Johnson will testify

truthfully in all matters regarding the lst Degree

Murders of Dan Williams and Thomas Kaufman,

which occurred on November 9, 1989, at approximately

10:00 p.m. at or near 3517-19 S. Federal, Chicago,

Cook County, Illinois. Such truth

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.