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JUSTICE WELCH delivered the opinion of the court:

On December 5, 2001, defendant Steven R. Sanders was charged by an informationfiled in the circuit court of Marion County with the offenses of attempted first-degreemurder and residential burglary. His jury trial, held July 8 and 9, 2002, ended in a mistrialafter the presentation of much of the State's case, when three jurors were removed from thejury for various reasons. The last juror to be removed was removed over the objection ofthe defendant. This left only 11 jurors to decide the case. When the defendant indicated thathe would not waive his right to a jury of 12 and consent to a jury composed of 11 jurors, thetrial court declared a mistrial. The case was scheduled for a retrial.

On July 12, 2002, the defendant moved to dismiss the charges against him as barredby his constitutional and statutory rights not to be twice placed in jeopardy for the sameoffense. This motion was denied, and the defendant brings this interlocutory appealpursuant to Supreme Court Rule 604(f), which allows a defendant to appeal the denial of amotion to dismiss a criminal proceeding on grounds of former jeopardy (188 Ill. 2d R.604(f)). For reasons that follow, we affirm.

On July 8, 2002, voir dire was conducted and a jury of 12 jurors plus two alternateswas picked and sworn. Opening statements were heard and the State proceeded with thepresentation of its evidence. At a recess, a juror indicated that he had observed in thecourtroom a woman with whom he was acquainted and who he believed was the defendant'smother. He stated that he did not know her personally and had never spoken with her butthat he had at one time attended the same church that she did. The juror indicated that itmade no difference to him and that he could be fair to both sides. Both attorneys were giventhe opportunity to question the juror. The juror indicated that the fact that he and thedefendant's mother had attended the same church would not affect his verdict. Neitherattorney objected to the juror, and he remained on the jury. The presentation of the State'scase continued until court recessed at the end of the day.

The morning of the second day of trial, while the court and the attorneys wereinvolved in a jury-instruction conference, one of the jurors telephoned and asked to beexcused because his wife had been unexpectedly hospitalized the night before. Neither partyobjected and the juror was excused.

A few minutes later, the same juror who had indicated the day before that he hadrecognized the defendant's mother in the courtroom again asked to speak with the judge. This juror indicated that upon seeing a witness testify in court, he recognized her as hisgirlfriend's best friend. He had known her by a name different from that used in court andso had not realized during voir dire that he knew her. The juror stated that he knew thewitness quite well, he had last spoken with her six months previously but never about thecase or the defendant, and he had seen her 50 or 60 times in his lifetime. He felt that hisfamiliarity with the witness/victim would probably have a bearing on his decision in thecase. He would see the victim in the future and stated that it would not be fair for him toremain on the jury. He stated that it would be "quite hard" for him to be a fair and impartialjuror. After conferring with his client, the defendant's attorney indicated that hisposition was that the juror should not be removed. The particular witness, Melissa Brown,was the victim of the residential burglary. She had testified at the trial that she had returnedhome from work to find her house broken into and ransacked. She had not been presentwhen the crime occurred and could not identify the perpetrator. She simply testified to thefact that her home had been burglarized. According to the defendant, Melissa Brown wasnot an important witness because she testified only that her home had been burglarized butcould not identify the perpetrator. The defendant was not contesting the burglary, only theidentity of the burglar. Under these circumstances, the juror's tendency to favor the witness,Brown, did not damage the defendant. The defendant strongly opposed the juror beingremoved. The State took no position on the question.

The trial court then pointed out that this particular juror had twice before during thependency of the proceedings sought to be removed from the jury. The court also pointed outthat the juror was the only African American on the panel and that the defendant is alsoAfrican American. The trial court reserved ruling.

A third juror then brought to the trial court's attention that he had discussed the casewith his family the night before, in violation of his oath, and had learned that his wife andstepdaughters were good friends with the victim of the attempted murder, Will Williams. The juror's wife and stepdaughters had expressed strong feelings in favor of Williams andagainst the defendant. The juror expressed that he thought he could put these feelings asideand render a fair verdict based on the evidence. He also stated that if he were the defendant,he would not want a juror like himself on the jury. The defendant asked that the juror beremoved. The State objected. The trial court granted the defendant's request to remove thejuror.

The trial court then also removed the juror who knew Melissa Brown and who hadsaid he would find it "quite hard" to be a fair and impartial juror. At that point only 11jurors remained. Neither the State nor the defendant requested a mistrial. Nevertheless, thedefendant refused to consent to a trial by a jury of 11 jurors. A mistrial was declared andthe jury was discharged.

The defendant filed his motion to dismiss the charges on the ground of doublejeopardy on July 12, 2002. At the hearing thereon the defendant argued that the trial courthad erred in removing the African-American juror over the defendant's objection. Althoughthe juror had indicated that he could not be fair to the defendant, the defendant had objectedto his removal. If this juror had not been removed, a mistrial would not have been declared. The State opposed the motion to dismiss, arguing that the trial court had properly removedthe juror and that once that juror was removed, a mistrial was manifestly necessary.

After taking the matter under advisement, the trial court denied the motion onOctober 2, 2002. The defendant brings this interlocutory appeal.

The standard of appellate review for testing the trial court's exercise of its discretionin declaring a mistrial without the defendant's consent and after jeopardy has attached was first set forth in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824), and hasbeen consistently followed by the United States Supreme Court:

"[T]he law has invested Courts of justice with the authority to discharge a jury fromgiving any verdict, whenever, in their opinion, taking all the circumstances intoconsideration, there is a manifest necessity for the act[] or the ends of public justicewould otherwise be defeated." Perez, 22 U.S. (9 Wheat.) at 580, 6 L. Ed. 165.

See United States v. Jorn, 400 U.S. 470, 481, 27 L. Ed. 2d 543, 554, 91 S. Ct. 547, 555(1971); Illinois v. Somerville, 410 U.S. 458, 461, 35 L. Ed. 2d 425, 429, 93 S. Ct. 1066,1069 (1973).

Thus, when a trial court declares a mistrial without the defendant's consent, thereviewing court should allow the State to retry the defendant only if the facts demonstratethat a manifest necessity required declaring the mistrial or that a continuation of theproceeding without declaring a mistrial would have defeated the ends of public justice. SeePeople v. Street, 316 Ill. App. 3d 205, 211 (2000). A mistrial generally is appropriate if animpartial verdict could not be reached or if a conviction could be obtained but would haveto be reversed on appeal due to an obvious procedural error at the trial. People v. Johnson,113 Ill. App. 3d 367, 375 (1983).

The defendant argues that because there was no manifest necessity to discharge thelast juror, leaving a jury of only 11, the trial court unfairly deprived the defendant of hisright to complete his trial before a particular tribunal, a right which is included within theconstitutional right to be free from double jeopardy. See Street, 316 Ill. App. 3d at 211. Thedefendant argues that, consequently, the State may not try the defendant a second time andthat the trial court erred in denying his motion to dismiss the charges against him.

However, the defendant's right to have his trial completed by a particular jury is insome instances subordinate to the public's interest in fair trials designed to end in justjudgments. Wade v. Hunter, 336 U.S. 684, 689, 93 L. Ed. 974, 69 S. Ct. 834, 837 (1949). There can be no question that, upon the discharge of the last juror, leaving a jury of only 11,the declaration of a mistrial was manifestly necessary because the defendant would notconsent to a trial by a jury of 11 and the law prohibits such a trial without the defendant'sconsent. People v. Matthews, 304 Ill. App. 3d 415, 419 (1999). We also conclude that acontinuation of the trial without the discharge of the last juror, who had admitted that hewould find it "quite hard" to be a fair and impartial juror, would most certainly havedefeated the ends of public justice.

The defendant's argument that the juror's potential bias was irrelevant becauseBrown's testimony was not damaging to the defendant is misplaced because it focuses on thejuror's potential bias with respect to the substance of Brown's testimony, rather than herstatus as a victim of the alleged crime. Even if Brown's testimony did not directly implicatethe defendant, the juror may have been biased in favor of a conviction simply because hisfriend was a victim.

The discharge of a juror is a matter of discretion to be exercised by the circuit judge. Golden v. Kishwaukee Community Health Services Center, Inc., 269 Ill. App. 3d 37, 47(1994). The fact that the defendant had no problem keeping the juror does not mean that thecircuit judge should surrender his obligation to ensure a fair trial for both the State and thedefendant. We cannot conclude that the trial court abused its discretion in discharging ajuror who had admitted that he would find it "quite hard" to be a fair and impartial juror. Accordingly, there was a manifest necessity to discharge the last juror and declare a mistrial,even though both decisions were contrary to the defendant's wishes.

As the United States Supreme Court stated in Arizona v. Washington, 434 U.S. 497,516, 54 L. Ed. 2d 717, 734-35, 98 S. Ct. 824, 835-36 (1978), neither party has a right tohave his case decided by a jury that may be tainted by bias, and in those circumstances thepublic's interest in fair trials designed to end in just judgments must prevail over thedefendant's valued right to have his trial concluded before the first jury impaneled. We holdthat the court's declaration of a mistrial met the manifest-necessity requirement since thecourt could reasonably have concluded that the ends of public justice would be defeated byhaving allowed the trial to continue with an admittedly biased juror.

We note in closing that the defendant has not alleged, and the record does notindicate, any gross misconduct or overreaching by the judge or the prosecutor, nor does thedefendant allege that the judge was motived by bad faith in declaring a mistrial. See Peoplev. Johnson, 113 Ill. App. 3d 367, 375 (1983).

For the foregoing reasons, the judgment of the circuit court of Marion County ishereby affirmed.

Affirmed.

CHAPMAN, J., concurs.

JUSTICE KUEHN, specially concurring:

I agree that it was proper for the trial judge to declare a mistrial in this case. Underthe circumstance that he confronted, he had no choice in the matter. With only 11 jurorsseated, the trial could not be concluded in the absence of the defendant's consent. I alsoagree that the trial judge acted properly in excusing a juror named Mr. Buckner, despite thedefendant's opposition and the defendant's desire to have him, along with the other jurorsselected for this trial, decide his fate. While I join in the outcome reached by my colleagues,I disagree with how they arrive at their result. Accordingly, I specially concur.

I take a different view of what happened in this case.

The trial judge did not remove Buckner from the jury panel because of his commentthat it would be "quite hard" to be fair and impartial in light of his girlfriend's relationshipwith one of the crime victims. Nor did the trial judge remove Buckner in an effort to protectthe defendant against his own mistaken perception that Buckner would remain fair to himdespite his newly acquired knowledge of the crime victim's identity. This is the majority'sview of the reason for the removal-that it was based upon an effort to protect the defendantagainst himself, by striking a juror the defendant wanted to keep, because the juror haddemonstrated a potential bias to convict the defendant. If that were the only reason forstriking Buckner, and the judge did so under the circumstances presented here-where theremoval invalidated the jury and ended the trial, despite a defendant who insisted upon atrial to a verdict before the jury that he had selected, despite a defendant who maintainedfaith in the juror's ability to be fair-we should reverse, rather than affirm, the trial judge'sruling.

In truth, the trial judge was not concerned about Buckner's claim that it would be"quite hard" to remain impartial. He was concerned about a series of things that came tolight, after the trial had commenced, that suggested the possibility that Buckner was a ringerfor the defendant, a juror capable of poisoning the jury pool against the State. Events thatoccurred during the trial made it reasonable to infer that Buckner initially wanted to beselected for the jury in order to assist the defendant, that he harbored a concealed bias in thedefendant's favor, and that he got cold feet about his initial agenda after the evidence cameforth. When he was questioned on voir dire, Buckner did not tell anyone that he knew thedefendant's mother. Then, after most of the evidence was presented, he remembered anotherproblem that did not surface during voir dire. He asked for an audience with the judge toreveal that the State had a pending case against him. When his claim was checked out, itwas discovered that the case had been closed long before the trial began, and he was notexcused. The next day, he asked for another audience to reveal that his girlfriend was thebest friend of Melissa Brown, one of the crime victims who testified. During questioning,he had to think twice about who his girlfriend was, making it appear as if he was again lyingabout the true state of affairs, with a hope to avoid the jury deliberation process.

The trial judge removed Buckner from the jury panel because of his earlier effort toescape the jury by lying about a pending case, because of the fact that he had beenprosecuted before and did not say so during voir dire, because of his belated admission thathe knew the defendant's mother, and because of his prevarication about a girlfriend who wasthe best friend of Melissa Brown and his fabricated claim that his newly acquired knowledgeof who the victim was would make it harder on him to be fair. In assessing Buckner'srenewed effort to get off the jury, Judge Hitpas observed: "Apparently, he has had overnightto think about trying to get off again, and this was another method. He couldn't rememberhis girlfriend's name who happens to be friends with Melissa. I am not even sure any suchperson exists ***."

Mr. Pirtle was a juror who went home and discussed the case with certain familymembers who knew the attempted murder victim and, according to Pirtle, sided with himagainst the defendant, during their discussions. He was removed, at the defendant's urgingand over the State's objection. Immediately upon the removal of Pirtle, Judge Hitpasreturned to the issue of juror Buckner and stated, "I think he is just trying to get off [thejury]," implying that he did not believe that Buckner had a girlfriend who knew the victimor that his sworn duty to be fair and impartial became harder to fulfill because of it.

This is what the judge and counsel had to say after the removal of Pirtle and Bucknerfrom the panel:

"THE COURT: We are out of jurors. And I don't like it, but I think *** infairness to both sides, Pirtle is bad for you (addressing defense counsel). Buckneris bad for you (addressing the assistant State's Attorney). I think Buckner is a[-]lyingin the weeds.

THE STATE: I agree.

THE COURT: He is just lying in the weeds to be unfair, and my interest hereis not that anybody wins. My interest is that it's fair.

MR. VELTMAN [defense counsel]: I understand.

THE COURT: And I think we have got Buckner lying in the weeds to beunfair one way, and we have Mr. Pirtle[,] who may well try but would probably havea hard time being fair the other way. I am not crazy about this, but in light of this,I will have to declare a mistrial." (Emphasis added.)

Contrary to the assumption made in the majority's analysis, no one-not the State, notthe defendant, and especially not the trial judge-thought that Buckner harbored a potentialbias to convict. Just the opposite was true. That is why defense counsel worked so hard tokeep him on the jury, despite his efforts to get off. And that is why I respectfully departfrom the analysis that the majority opinion sets forth.

If what really happened was as the majority says, and Buckner was removed toprotect the defendant's interest in fairness, I would have to question the propriety of theaction. All jurors harbor the potential for some degree of bias. I do not think that judgesshould assume "it's for your own good" attitudes and knowingly destroy the right to a verdictby a jury of one's choosing because of some remote chance of bias against the defendant. This is particularly so where, as here, the claimed circumstance carried so little reason fora bias to convict and the defendant expressed such faith in the juror and such a desire tokeep him.

Since I believe that the reasons for the removal were other than those stated in themajority opinion, I agree with the outcome that the majority reaches. Accordingly, Ispecially concur.

Opinion Filed:  July 29, 2003

Justices: Honorable Thomas M. Welch, J.

Honorable Melissa A. Chapman, J.,

Concurs

Honorable Clyde L. Kuehn, J.,

Specially concurs

Attorneys Daniel M. Kirwan, Deputy Defender, Larry R. Wells, Assistant Defender, Office

for of the State Appellate Defender, Fifth Judicial District, 730 E. Illinois Highway 15,

Appellant P.O. Box 2430, Mt. Vernon, IL 62864-0047

Attorneys Hon. James Creason, State's Attorney, Marion County Courthouse, P.O. Box 157,

for Salem, IL 62881; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director,

Appellee Patrick D. Daly, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor,

730 E. Illinois Highway 15, P.O. Box 2249, Mt. Vernon, IL 62864