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7 September 2000

NO. 4-98-1035

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

In October 1998, the State charged defendant, Thomas E.Street, inter alia, with sexually assaulting (720 ILCS 5/12-13(a)(1) (1998)) D.P., whom defendant had dated previously. Attrial, defendant asserted consent as an affirmative defense. D.P. testified for the State, admitting that she and defendanthad previously engaged in consensual sex but maintaining that onthe night in question she did not consent. On cross-examination,defendant asked the victim about the sexual relationship and,during his own case, offered witnesses who, in part, contradictedD.P.'s answers regarding the relationship. At the close of allthe evidence, the court requested oral argument on the applicability of Illinois' "rape shield" statute, section 115-7 of theCode of Criminal Procedure of 1963 (Criminal Procedure Code) (725ILCS 5/115-7 (West 1998)). The court declared a mistrial overdefendant's arguments that the statute did not apply. The courtlater denied defendant's motion to bar a retrial on doublejeopardy grounds. Defendant appeals, arguing that (1) section115-7 of the Criminal Procedure Code did not prevent him fromintroducing evidence of the prior romantic relationship with D.P.where D.P. acknowledged that such a relationship had existed, and(2) the trial court erred in declaring a mistrial since nomanifest necessity required it. We reverse.

I. BACKGROUND

During the evening of October 10, 1997, police arresteddefendant for sexually assaulting a woman, D.P., with whom he hadhad a brief prior relationship. D.P. alleged that defendantarrived at her apartment around midnight on October 10, 1997, andthe two engaged in conversation for 30 to 60 minutes outside herfront door. Afterward, both parties went into D.P.'s apartment. D.P. had been entertaining another male guest who left withoutincident shortly after defendant came inside.

According to D.P.'s testimony, she and defendant beganhaving consensual sex near the stairs in D.P.'s apartment. Thepair moved upstairs to D.P.'s bedroom, where defendant began toget "a little rough." D.P. said defendant penetrated her anallywith his fingers and then with his penis despite her continualcrying and repeated requests that he stop. D.P. later went tothe emergency room where she was treated for superficial abrasions and tears to her vagina and rectum.

Defendant asserted consent as a defense, and the Statedid not deny that D.P. and defendant had been romanticallyinvolved. During opening statements, the prosecutor remarkedthat "[D.P.] had known [defendant] for several months[] [and] haddated [him] for a while."

During opening statements for the defense, counselstated:

"[I]n this particular case there has neverbeen a denial that there was sexual intercourse *** between Mr. Street and [D.P.]. Infact, these people had seen one another forseveral months before. This case comes downto a case of whether or not the consensualaspect of sex was present [on] October 10."

Defense counsel went on to comment about what D.P. had told hercoworkers about defendant:

"[D.P.] claims that she had not seen[defendant] for a couple of weeks. Well ***Sarah [Kozak] will tell you of a conversationthat occurred in the break room at [work] twoto three days before this allegation was ***made against [defendant.] [D.P.] basicallyannounces that she and Mr. Street[,] thenight before[,] had *** sex and that it wasof such a nature that they broke the bed,that she commented upon how large he was, andshe commented like she had ridden a bull allnight. *** Miss Kozak will tell you that ***there had been a handful of other times ***when [D.P.] had talked about dating [defendant], talking about they had sex frequently,talking about the fact that he was hung likea horse."

During the State's case in chief, they called D.P. totestify. She admitted that she and defendant had dated for ashort time and had engaged in consensual sex. The followingdialogue occurred:

"A. Well, I don't know--we were togethera couple of times, like twice, three times.

Q. Did you go to the show, did you goout to eat?

A. No, we didn't.

Q. So what kind--what was the nature ofyour relationship?

A. I guess it was just sexual, I guess?"

The prosecutor also questioned D.P. regarding the nature of hersexual relationship with defendant:

"Q. Now, you said that you did have arelationship with [defendant] before youdecided you were going to tell him it wasover. This sexual relationship that you hadwith him before, had it ever *** involvedanal sex?

A. No. This is something I have neverdone before in my life.

Q. Did you want it?

A. No."

On cross-examination, D.P. admitted that her relationship was a sexual one and that defendant was "well endowed," but she maintained that they had only engaged in consensual sex on two prioroccasions. Furthermore, D.P. denied telling her coworker Kozakany details of her relationship with defendant.

During the defense's case, Kozak testified that two orthree days before October 10, she and D.P. were in the break roomdiscussing D.P.'s relationship with defendant. In particular,defense counsel asked Kozak about particular statements D.P.allegedly made:

"Q. Did she make the statement involvingher and [defendant] that she felt like shehad [ridden] a bull all night?

A. Yes.

Q. Did she make a statement commentingupon how well endowed and large Mr. Streetwas?

A. Yes.

Q. Did she make a statement that theyhad broken the bed having sex?

A. Yes.

***

Q. Did she ever make the statement onthat occasion that he was hung like a horse?

MS. BOLTON [(assistant State's Attorney)]: Objection.

THE COURT: Sustained.

MS. BOLTON: Move to strike.

THE COURT: It's stricken.

Q. Did she ever tell you that they hadsex frequently?

A. Yes.

MS. BOLTON: Objection, your Honor.

THE COURT: Sustained.

MS. BOLTON: Request that the jury beinstructed to disregard.

THE COURT: Please disregard the questionand the answer of the witness, ladies andgentlemen."

Subsequently, a discussion ensued, out of the jury'spresence, between defense counsel and the trial judge regardingthe evidentiary avenues that defense counsel was pursuing. Thecourt made the following comments:

"THE COURT: *** I'm not going to permitthis to go any further. As a matter of fact,I'm very close to a mistrial on my own motion. That, together with the previous answer of this and the prior witness.

As I understand it, the theory of thedefense is there's been prior consensual sexhere, but, other than what the victim hastestified to. And I believe that [the rapeshield law (725 ILCS 5/115-7 (West 1998))]has been violated."

The next day, defendant testified that he and D.P.dated for a couple months prior to October 10 and that theyusually saw each other "once a week, maybe more than that." Defendant further testified that he had been with D.P. at herhouse only two or three days before October 10. Defendantfurther confirmed that D.P.'s description of their relationshipas "sexual" was accurate. Defendant testified that, on the nightin question, D.P. performed oral sex on him at the bottom of herstairs before the two went up to her bedroom. He acknowledgedthat he penetrated her anally with his penis but denied insertinghis finger in her anus. Moreover, defendant stated that he didnot force D.P. to perform any of the sex acts involved and thatat no time did she ask him to stop.

After the defense rested, the court requested ad hocoral argument from both counsel regarding the applicability ofsection 115-7 of the Criminal Procedure Code to the currentproceedings. The following ensued:

"MR. MATTINGLEY [(defense counsel)]: Mayit please the court. Your Honor, first, letme say that I think the whole reason of thissection, at least in part, is that we have tolook to the idea that the subject isn't to bebroached unless *** the victim denies priorsexual activity.

THE COURT: Which she has done.

MR. MATTINGLEY: She has admitted--infact, the State elicited the testimony.

THE COURT: Mr. Mattingley, [s]he hasadmitted two prior encounters.

MR. MATTINGLEY: That's correct.

THE COURT: Your theory and your [implication] made by the testimony of the defendant is that is not true. There were numerous encounters. That's the inference youhave before this trier of fact. That's thereason this statute comes into play. Becausethe court, in order to prohibit evidenceexactly of the kind that you are suggesting,must find that there are certain facts thatsupport that evidence. And there are none.

MR. MATTINGLEY: Judge, that is not aninference that I am going to argue. I amconfining myself, and I will tell the courtright now, I am confining myself to the factthat she has acknowledge[d] that they had arelationship and that she has acknowledgedthat they had two prior sexual acts.

THE COURT: And the inference from yourclient's testimony is that there were notonly two, there were many.

MR. MATTINGLEY: He never testified thatthere was anything more than they saw eachother frequently, maybe once a week. Is itcorrect the relationship was sexual?

* * *

THE COURT: The inference before thetrier of fact by this line of questioning ***is that there were numerous prior encountersof [a] sexual nature. You may not have askedthe question specifically *** but your verygood defense tactics, which you are very goodat; I'm not disputing that, you left thetrier of fact with an inference that therewere numerous prior sexual encounters."

The court further advised defense counsel that in itsopinion "[the] court must declare a mistrial in this case." Atone point, the prosecutor interjected and proposed that a curative instruction might remedy any statutory violation, but shelater moved for a mistrial, which the court immediately granted. The court denied defendant's motion to dismiss the reinstatedprosecution on double jeopardy grounds. In so doing, the courtnoted that "there was no way to cure the error. The court couldnot *** adequately instruct the [jurors] that they were not toconsider the evidence." This appeal followed.

II. ANALYSIS

A state may not put a defendant in jeopardy twice forthe same offense. Arizona v. Washington, 434 U.S. 497, 503, 54L. Ed. 2d 717, 726, 98 S. Ct. 824, 829 (1978). The constitutional protection against double jeopardy (U.S. Const., amend. V)attaches after the jury is selected and sworn. People ex rel.Roberts v. Orenic, 88 Ill. 2d 502, 507, 431 N.E.2d 353, 356(1981). Since jeopardy attaches before the judgment becomesfinal, the constitutional protection embraces a defendant's rightto complete his trial before a particular tribunal. Washington,434 U.S. at 503, 54 L. Ed. 2d at 727, 98 S. Ct. at 829. Thus,where a court, acting without defendant's consent, declares amistrial, the court necessarily deprives defendant of his "valuedright" to have a particular jury decide his fate. United Statesv. Jorn, 400 U.S. 470, 484, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547,557 (1971). However, by declaring a mistrial, a court does notnecessarily preclude a second trial. Rather, reviewing courtsshould examine the facts of each case to determine the proprietyof a double jeopardy claim. Orenic, 88 Ill. 2d at 507-08, 431N.E.2d at 356. When a trial court declares a mistrial withoutthe defendant's consent, the reviewing court should allow theState to retry a defendant only if the facts demonstrate that amanifest necessity required declaring the mistrial. Orenic, 88Ill. 2d at 508, 431 N.E.2d at 356.

Defendant urges us to conclude that no manifest necessity existed for the trial court's mistrial declaration becausehe did not violate Illinois' rape shield statute. However, weneed not reach defendant's substantive argument, as our ownanalysis of the procedure surrounding the court's actions in thiscase indicates that the judge failed to exercise sound judicialdiscretion in determining whether manifest necessity warranteddeclaring a mistrial.

The doctrine of manifest necessity stands as a commandto trial judges not to foreclose the defendant's right to have aparticular tribunal decide his fate until a scrupulous exerciseof judicial discretion leads to the conclusion that the ends ofpublic justice would not be served by continuing the proceedings. Jorn, 400 U.S. at 485, 27 L. Ed. 2d at 557, 91 S. Ct. at 557. Essentially, in determining whether manifest necessity exists,the trial court must balance the defendant's interest in havingthe trial completed in a single proceeding, reserving the possibility of obtaining an acquittal before that "particular tribunal," against the strength of the justification for declaring amistrial rather than attempting to continue the trial to averdict. 5 J. Israel, N. King & W. LaFave, Criminal Procedure