Find Legal Information

JUSTICE APPLETON delivered the opinion of the court:

The State charged defendant, Mark W. Largent, with twocounts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2), (a)(3) (West 2000)), one count of aggravated criminalsexual abuse (720 ILCS 5/12-16(a)(2) (West 2000)), and one countof criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2000)). At the conclusion of the first trial, the trial court interruptedthe jury's deliberations and declared a mistrial, sua sponte,over defendant's objection. When the State sought to retry him,defendant filed a motion to dismiss the charges on the ground ofdouble jeopardy. The trial court denied the motion. In thesecond trial, a new panel of jurors found defendant guilty of onecount of aggravated criminal sexual assault, one count of aggravated criminal sexual abuse, and one count of criminal sexualassault. The trial court sentenced him to imprisonment for 160months.

Defendant appeals, arguing (1) the trial court erred indenying his motion to dismiss the charges and (2) the prosecutormade improper comments during his closing argument. Because weagree with the first contention, we do not reach the second one. We reverse the trial court's judgment.

In the first trial, defendant was tried in absentia. Three hours and fifteen minutes into the jury's deliberations,the trial court called the jury back into the courtroom and said:

"THE COURT: Show the jury has reassembled. It's 5:15 [p.m.]

Ladies and gentlemen[] of the jury[,]Mrs. Bergen, one of your members, had anaccident in her family. I don't know howserious it was. I received a call from herhusband[,] and she had to go to the hospital[.] [T]herefore, because of that[,] wehad to break the panel[.] [B]ecause ofthat[,] the deliberations will have to cease.

I'm going to declare a mistrial on thiscase.

You are free to leave today.

I wish to thank you. I'm sure the attorneys wish to thank you also. These thingshappen. You've worked hard. You've beenattentive[,] and everyone appreciates it, butbecause of unforeseen circumstances[,] thisis what has to happen.

You're free to go[,] [i]f you would goback with Mr. Lacquet. Leave your buttons. You're free to go. Thank you.

WHEREUPON, THE JURY LEFT THE COURTROOM.

THE COURT: Okay. We will be adjourned.

MR. MERLIE [(Defense Counsel)]: May Inote an objection for the record, yourHonor[?] [I] object to the mistrial at thispoint.

THE COURT: You may.

MR. MERLIE: Thank you, Your Honor.

THE COURT: Show for the record thatthis jury has been out for [3] hours and 15minutes, more than enough time, in the[c]ourt's opinion, to reach a decision. However, that is not the reason why [thiscourt declared] the mistrial. The mistrialwas the emergency necessary[--]the emergencythat was brought up by the accident to Mrs.Bergen's relative[,] necessitating her departure[,] and because of that[,] the matter hadto mistrial."

In a memorandum in support of his motion to dismiss thecharges, defendant stated: "During [the jury's] deliberations,the court advised counsel that a message was received indicatingthat [a juror's] mother-in-law[] sustained a fractured leg andwas being taken to the local hospital." Defendant argued thatthis circumstance was not serious enough to merit the declarationof a mistrial. In the hearing on the motion to dismiss, theState argued, "There is no double jeopardy here[,] based on thehung jury." After hearing those arguments, the trial court said:

"THE COURT: Well, I think the firstthing is that the record should be correctedsomewhat. When the [c]ourt first heard the--about the broken leg[,] Mr. Merlie and Mr.Donahue [(the prosecutor)] were both present. I indicated in [the] presence [of them both]that I would let them [(the jurors)] continuedeliberating until [5 p.m.,] at which time Iwould take action. So from that angle therewas--it wasn't sua sponte and off the top ofmy head. It was something that in the presence of both attorneys[--]at least an indication of something going to be done was indicated at that point.

In the [c]ourt's opinion further, thiswas a fairly [straightforward] case. Thejurors were not confronted with any highlytechnical questions. Based upon the jurors'comments[,] there was an indication thatthere would never be a verdict[,] even without the mistrial. The jury had plenty oftime to deliberate. The jury would not reachdeliberation [sic][.] [I]t would be unfairand unjust, especially under thecircumstances of [defendant's failure toattend the trial], to allow it to go further. Therefore, I granted the mistrial based uponmedical necessity and also based upon otherconsiderations enumerated."

The record is silent as to what the "jurors' comments"were and when the jurors made them.

In the second trial, defendant testified on his ownbehalf, claiming the alleged victim had consented to the sexualacts. After 2 1/2 hours of deliberation, the jury found himguilty of the three counts. The trial court imposed its sentencein a later hearing. In his posttrial motion, defendant failed toraise the issue of double jeopardy. This appeal followed.

Citing People v. Deems, 81 Ill. 2d 384, 410 N.E.2d 8(1980), defendant contends our standard of review should be denovo. The State cites People v. Street, 316 Ill. App. 3d 205,211, 213, 735 N.E.2d 1052, 1057, 1058 (2000), in support of adeferential standard of review, arguing we should affirm thejudgment unless the trial court abused its discretion. Deems isdistinguishable. The trial court never declared a mistrial inthat case. Although the supreme court discussed double jeopardyin Deems, it never held that all claims of double jeopardyrequired a de novo standard of review.

In Street, 316 Ill. App. 3d at 211, 735 N.E.2d at 1057,we held "that the judge failed to exercise sound judicial discretion in determining whether manifest necessity warranted declaring a mistrial." In People v. Friason, 22 Ill. 2d 563, 566, 177N.E.2d 230, 232 (1961), the supreme court said, "[W]e mustconsider whether the trial judge abused his discretion" indeclaring a mistrial on the ground of manifest necessity. Likewise, in the present case, we will ask whether the trialcourt used sound discretion in deciding that manifest necessityrequired the declaration of a mistrial.

A trial court abuses its discretion when it makes adecision that is "clearly against logic." Bodine Electric ofChampaign v. City of Champaign, 305 Ill. App. 3d 431, 435, 711N.E.2d 471, 474 (1999). The question is not whether we wouldhave made the same decision if we were the trial court; rather,the question is whether the trial court made an arbitrary decision, without using "conscientious judgment, or whether, in viewof all of the circumstances, the [trial] court exceeded thebounds of reason and ignored recognized principles of law so thatsubstantial prejudice resulted." Bodine Electric, 305 Ill. App.3d at 435, 711 N.E.2d at 474.

Normally, to preserve an argument for appeal from ajury trial, the defendant must make the argument in a posttrialmotion. People v. Johnson, 250 Ill. App. 3d 887, 893, 620 N.E.2d506, 511 (1993). Subjecting a defendant to double jeopardy wouldbe a "[p]lain error[] *** affecting [a] substantial right[]" (134Ill. 2d R. 615(a)). People v. Valentine, 122 Ill. App. 3d 782,784, 461 N.E.2d 1388, 1389 (1984). Therefore, under Rule 615(a)(134 Ill. 2d R. 615(a)), we may consider a claim of doublejeopardy even though the defendant failed to assert that claim bya posttrial motion after his or her second trial. Valentine, 122Ill. App. 3d at 784, 461 N.E.2d at 1389.

"No person shall *** be twice put in jeopardy for thesame offense." Ill. Const. 1970, art. I,