People v. Largent , 337 Ill. App. 3d 835 ( 2003 )

JUSTICE APPLETON

delivered the opinion of the court:

The State charged defendant, Mark W Largent, with two counts of aggravated criminal sexual assault (720 ILCS 5/12 — 14(a)(2), (a)(3) (West 2000)), one count of aggravated criminal sexual abuse (720 ILCS 5/12 — 16(a)(2) (West 2000)), and one count of criminal sexual assault (720 ILCS 5/12 — 13(a)(1) (West 2000)). At the conclusion of the first tried, the trial court interrupted the 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 of double jeopardy. The trial court denied the motion. In the second trial, a new panel of jurors found defendant guilty of one count of aggravated criminal sexual assault, one count of aggravated criminal sexual abuse, and one count of criminal sexual assault. The trial court sentenced him to imprisonment for 160 months.

Defendant appeals, arguing (1) the trial court erred in denying his motion to dismiss the charges and (2) the prosecutor made improper comments during his closing argument. Because we agree with the first contention, we do not reach the second one. We reverse the trial court’s judgment.

I. BACKGROUND

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 an accident in her family. I don’t know how serious it was. I received a call from her husband!,] and she had to go to the hospital!.] [T]herefore, because of that!,] we had to break the panel!.] [B]ecause of that!,] the deliberations will have to cease.

I’m going to declare a mistrial on this case.

You are free to leave today.

I wish to thank you. I’m sure the attorneys wish to thank you also. These things happen. You’ve worked hard. You’ve been attentive),] and everyone appreciates it, but because of unforeseen circumstances [,] this is what has to happen.

You’re free to go),] [i]f you would go back 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 I note an objection for the record, your Honor)?] [I] object to the mistrial at this point. THE COURT: You may.

MR. MERLIE: Thank you, Your Honor.

THE COURT: Show for the record that this jury has been out for 13] hours and 15 minutes, more than enough time, in the [c]ourt’s opinion, to reach a decision. However, that is not the reason why [this court declared] the mistrial. The mistrial was the emergency necessary) — ]the emergency that was brought up by the accident to Mrs. Bergen’s relative),] necessitating her departure),] and because of that),] the matter had to mistrial.”

In a memorandum in support of his motion to dismiss the charges, defendant stated: “During [the jury’s] deliberations, the court advised counsel that a message was received indicating that [a juror’s] mother-in-law) ] sustained a fractured leg and was being taken to the local hospital.” Defendant argued that this circumstance was not serious enough to merit the declaration of a mistrial. In the hearing on the motion to dismiss, the State argued, “There is no double jeopardy here),] based on the hung jury.” After hearing those arguments, the trial court said:

“THE COURT: Well, I think the first thing is that the record should be corrected somewhat. 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)] continue deliberating until [5 p.m.,] at which time I would take action. So from that angle there was — it wasn’t sua sponte and off the top of my 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, this was a fairly [straightforward] case. The jurors were not confronted with any highly technical questions. Based upon the jurors’ comments),] there was an indication that there would never be a verdict),] even without the mistrial. The jury had plenty of time to deliberate. The jury would not reach deliberation [st'c][.] [I]t would be unfair and unjust, especially under the circumstances of [defendant’s failure to attend the trial], to allow it to go further. Therefore, I granted the mistrial based upon medical necessity and also based upon other considerations 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 own behalf, claiming the alleged victim had consented to the sexual acts. After 21fa hours of deliberation, the jury found him guilty of the three counts. The trial court imposed its sentence in a later hearing. In his posttrial motion, defendant failed to raise the issue of double jeopardy. This appeal followed.

II. ANALYSIS

A. Standard of Review

Citing People v. Deems, 81 Ill. 2d 384, 410 N.E.2d 8 (1980), defendant contends our standard of review should be de novo. The State cites People v. Street, 316 Ill. App. 3d 205, 211, 213, 735 N.E.2d 1052, 1057, 1058 (2000), in support of a deferential standard of review, arguing we should affirm the judgment unless the trial court abused its discretion. Deems is distinguishable. The trial court never declared a mistrial in that case. Although the supreme cotut discussed double jeopardy in Deems, it never held that all claims of double jeopardy required 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, 177 N.E.2d 230, 232 (1961), the supreme court said, “[W]e must consider whether the trial judge abused his discretion” in declaring a mistrial on the ground of manifest necessity. Likewise, in the present case, we will ask whether the trial court used sound discretion in deciding that manifest necessity required the declaration of a mistrial.

A trial court abuses its discretion when it makes a decision that is “clearly against logic.” Bodine Electric of Champaign v. City of Champaign, 305 Ill. App. 3d 431, 435, 711 N.E.2d 471, 474 (1999). The question is not whether we would have 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 view of all of the circumstances, the [trial] court exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted.” Bodine Electric, 305 Ill. App. 3d at 435, 711 N.E.2d at 474.

B. Failure To Raise Double Jeopardy in the Posttrial Motion

Normally, to preserve an argument for appeal from a jury trial, the defendant must make the argument in a posttrial motion. People v. Johnson, 250 Ill. App. 3d 887, 893, 620 N.E.2d 506, 511 (1993). Subjecting a defendant to double jeopardy would be a “[pjlain error[ ] *** affecting [a] substantial right[ ]” (134 Ill. 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 double jeopardy even though the defendant failed to assert that claim by a posttrial motion after his or her second trial. Valentine, 122 Ill. App. 3d at 784, 461 N.E.2d at 1389.

C. Double Jeopardy

1. Manifest Necessity

“No person shall *** be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, § 10. No person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V In a jury trial, a defendant is “put in jeopardy” when the jury is impaneled and sworn. Friason, 22 Ill. 2d at 565, 177 N.E.2d at 231; see 720 ILCS 5/3 — 4(a)(3) (West 2000).

Once the defendant has been “put in jeopardy,” the trial court may not declare a mistrial without the defendant’s consent unless there is a “manifest necessity” to do so “or the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165, 165 (1824). The circumstances must be “ ‘very extraordinary and striking’ ”; the necessity must be “imperious.” Downum v. United States, 372 U.S. 734, 736, 10 L. Ed. 2d 100, 102-03, 83 S. Ct. 1033, 1034 (1963), quoting United States v. Coolidge, 25 F. Cas. 622, 623 (C.C.D. Mass. 1815) (No. 14,858). The defendant has a right to “have a particular tribunal decide his fate” unless “a scrupulous exercise of judicial discretion leads to the conclusion that” continuing forward with the trial would defeat “the ends of public justice.” Street, 316 Ill. App. 3d at 211, 735 N.E.2d at 1057. “[T]he trial court must balance the defendant’s interest in having the 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 a mistrial ***.” Street, 316 Ill. App. 3d at 211, 735 N.E.2d at 1057, quoting 5 W LaFave, J. Israel & N. King, Criminal Procedure § 25.2(c), at 654 (2d ed. 1999).

In a case in which the trial court granted the prosecutor’s motion for a mistrial, the Supreme Court said that “the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate ‘manifest necessity’ for any mistrial declared over the objection of the defendant.” Arizona v. Washington, 434 U.S. 497, 505, 54 L. Ed. 2d 717, 728, 98 S. Ct. 824, 830 (1978). The prosecutor must shoulder the same burden, on appeal, if the trial court declared a mistrial sua sponte over the defendant’s objection. See, e.g., United States v. Sloan, 36 F.3d 386, 394-95 (4th Cir. 1994); Douglas v. United States, 488 A.2d 121, 126 (D.C. 1985); Rodriguez v. State, 719 So. 2d 1215, 1216-17 (Fla. App. 1998).

2. Sufficiency of the Record

The State argues that if only the record revealed what the trial judge and attorneys said to one another, during the jury’s deliberations, when the judge first notified the attorneys of the telephone call he had received from Bergen’s husband, we might find a sufficient basis to affirm the judgment. The conversation was off the record. The appellant has the burden of presenting a sufficiently complete record to support a claim of error. People v. Fair, 193 Ill. 2d 256, 264, 738 N.E.2d 500, 504 (2000).

The record need not be absolutely complete in the sense of recording every word spoken in the proceedings below; it need only be “sufficiently complete to provide for a full consideration of the facts and circumstances involved in [the] appeal.” Fiala v. Schulenberg, 256 Ill. App. 3d 922, 924, 628 N.E.2d 660, 662 (1993). Only if the record “does not show or purport to show all the evidence on which the decision of the trial court was based” will we presume that the omitted evidence would have supported the trial court’s decision. Brandel Realty Co. v. Olson, 159 Ill. App. 3d 230, 233, 512 N.E.2d 85, 87 (1987). For example, if the trial judge summarizes, for the record, an earlier, off-the-record event and neither party disputes the accuracy of the summary, we can deem the record sufficiently complete. People v. Watson, 103 Ill. App. 3d 992, 996, 431 N.E.2d 1350, 1354 (1982).

In denying defendant’s motion to dismiss the charges, the trial court summarized the unrecorded conversation it had with the attorneys during the jury’s deliberations. The trial court purported to explain, on the record, its factual basis for declaring a mistrial. It would be unreasonable to presume that the trial court omitted from its rationale any material fact. Further, in his motion to dismiss, defendant purported to state the factual basis for the declaration of a mistrial, and neither the State nor the trial court disputed the completeness or accuracy of defendant’s statement of the factual basis, other than to add that (1) the jury had spent 3 hours and 15 minutes deliberating, (2) “there was an indication,” from jurors’ comments, that they never would reach a verdict, and (3) defendant had not appeared. Thus, the record purports to show all of the facts on which the trial court based its declaration of a mistrial. We consider the record to be sufficiently complete to assess the merits of defendant’s claim of double jeopardy.

3. Sua Sponte Declaration of a Mistrial

In its remarks during the hearing on defendant’s motion to dismiss, the trial court disagreed with defendant that it had declared the mistrial sua sponte. The trial court said: “I indicated in *** [the] presence [of both attorneys] that I would let [the jury] continue deliberating until [5 p.m.,] at which time I would take action. *** [I indicated] something [was] going to be done *** at that point.” (Emphases added.) Defense counsel could have assumed that the unspecified “action” the trial court intended to take was to give the jury a Prim instruction. See People v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601 (1972); People v. Chapman, 194 Ill. 2d 186, 222, 743 N.E.2d 48, 70 (2000) (the purpose of a Prim instruction is to guide a jury having difficulty reaching a unanimous verdict). Neither the prosecutor nor the defense counsel moved for a mistrial. Defense counsel could not have acquiesced in a proposed declaration of a mistrial, because the trial court did not propose declaring a mistrial before actually declaring it. We conclude that the trial court declared the mistrial sua sponte.

4. The Mother-in-Law’s Broken Leg

Although it would have been distressing to learn that one’s mother-in-law had broken her leg and had been taken to the hospital, we do not think that fact, without more, was sufficient to overcome defendant’s “ ‘valued right to have his trial completed by a particular tribunal.’ ” Washington, 434 U.S. at 503, 54 L. Ed. 2d at 727, 98 S. Ct. at 829, quoting Wade v. Hunter, 336 U.S. 684, 689, 93 L. Ed. 974, 978, 69 S. Ct. 834, 837 (1949). Neither the prosecutor nor the trial court acted in bad faith. Nevertheless, “[t]he ‘particular tribunal’ principle is implicated whenever a mistrial is declared over the defendant’s objection and without regard to the presence or absence of governmental overreaching.” (Emphasis added.) Washington, 434 U.S. at 508 n.25, 54 L. Ed. 2d at 730 n.25, 98 S. Ct. at 832 n.25. Defendant faced the possibility of a long term of imprisonment and stigmatization for fife as a sexual predator. A leg fracture is a painful injury, but it is not normally a life-threatening injury. The mother-in-law was an adult, and because she was taken to the hospital, she evidently was receiving the medical care she needed. The presence of her daughter-in-law at her bedside might have been comforting, but it was not highly necessary. See Washington, 434 U.S. at 506, 54 L. Ed. 2d at 729, 98 S. Ct. at 831 (“we assume that there are degrees of necessity[,] and we require a ‘high degree’ before concluding that a mistrial is appropriate”). Apparently the trial court found no urgent necessity to let Bergen leave, because it kept her in the jury room a while longer after her husband called.

5. Length of Time Deliberating

If the trial court decides, in its sound discretion, that the jury is hopelessly deadlocked, it may discharge the jury and order a retrial without violating the double jeopardy clauses of the Illinois and United States Constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10). People v. Wolf, 178 Ill. App. 3d 1064, 1066, 534 N.E.2d 204, 205 (1989); Perez, 22 U.S. (9 Wheat.) at 580, 6 L. Ed. at 165. “In determining how long a jury should be permitted to deliberate before a mistdal is declared and the jury is discharged, no fixed time can be prescribed, and great latitude must be accorded to the trial court in the exercise of its informed discretion.” Wolf, 178 Ill. App. 3d at 1066, 534 N.E.2d at 205.

It is unclear, from the trial court’s statements on the record, that it did indeed consider the jury to be hopelessly deadlocked. When explaining to the jury why it was declaring a mistrial, the trial court did not say it considered the jury to be deadlocked. Instead, the trial court told the jury that the “accident in [Bergen’s] family” was the reason for its declaration of a mistrial. Immediately afterward, the trial court told counsel that the length of the deliberations was “not the reason” for the mistrial but, rather, “the accident to *** Bergen’s relative” was the reason. More than three weeks later, in the hearing on the motion to dismiss, the trial court stated that “other considerations,” besides “medical necessity,” had gone into its decision to declare a mistrial, namely, the possibility that the jury might never reach a verdict and the unfairness of requiring the jury, including Bergen, to deliberate longer when defendant had not even attended the trial.

The State has the heavy burden of justifying the trial court’s declaration of a mistrial. In this case, it cannot do so on the basis of a deadlocked jury because the trial court apparently disavowed that basis when it declared the mistrial. If, later, the trial court said it believed the jury was deadlocked, we are left with an ambiguity that falls short of a showing of manifest necessity.

III. CONCLUSION

For the foregoing reasons, we reverse the trial court’s judgment.

Reversed.

STEIGMANN, J., concurs.