Lovinger v. Circuit Court of the 19th Judicial Circuit, Lake County, Ill.

• Decision Date: 02 May 1988
• Docket Number: No. 87-1397,87-1397
• Parties: Jeffrey LOVINGER, Petitioner-Appellee, v. CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT, LAKE COUNTY, ILLINOIS, Respondent- Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 739

845 F.2d 739

Jeffrey LOVINGER, Petitioner-Appellee, v. CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT, LAKE COUNTY ILLINOIS, Respondent- Appellant.

No. 87-1397.

United States Court of Appeals Seventh Circuit.

Argued Dec. 11, 1987.

Decided May 2, 1988.

Marcia L. Friedl, Office of Ill. Atty. Gen., Chicago, Ill., for respondent-appellant.

Mary Robinson, Robinson & Skelnik, Elgin, Ill., for petitioner-appellee.

Before FLAUM and EASTERBROOK, Circuit Judges, and GRANT, Senior District Judge. ^*

FLAUM, Circuit Judge.

Jeffrey Lovinger's bench trial on charges of unlawful delivery of cocaine and cannabis ended in a mistrial on February 8, 1983. Lovinger was unable to convince the Illinois courts that the double jeopardy clause of the fifth amendment bars his reprosecution for these offenses. After exhausting his state court remedies, Lovinger petitioned the district court for a writ of habeas corpus. The district court granted the writ and we affirm.

I.

Lovinger's trial in the Circuit Court for the Nineteenth Judicial Circuit, Lake County, Illinois was hampered from the start by the prosecutor's inability to establish a clear chain of custody over the evidence. The details of the trial are fully set forth in Magistrate Bucklo's thorough Report and Recommendation, which is appended to the district court's opinion. Lovinger v. Circuit Court, 652 F.Supp. 1336, 1338 (N.D.Ill.1987). The state's first witness was the undercover officer who had purchased packages of white powder and a green leafy substance from Lovinger in October of 1979. The evidence was divided into several exhibits. When it emerged during cross-examination that defendant's expert had not been permitted to test all of the exhibits as required by the court's discovery order, the judge continued the trial to allow for such testing. When trial resumed, the state called an analyst from the Illinois police crime laboratory who testified that the substances purchased by the undercover officer were in fact cocaine and cannabis.

It was during the testimony of the next witness, an evidence officer for the Waukegan Police Department, that the state's chain of custody problems began. Officer Thomas Hutchings testified that he gave Exhibit No. 1 to an outside examiner on November 4, 1982 for testing. The prosecutor questioned Hutchings about the inconsistency between this testimony and Hutchings' earlier testimony that he had not come into contact with this exhibit between September 14 and November 18, 1982. The trial judge told the prosecutor that he was impeaching his own witness and granted a recess so that the prosecution could "get its act together."

When the trial resumed, Lovinger's lawyer reported that Hutchings and the prosecutor had been seen discussing the case during the recess and examining and exchanging papers. The prosecutor denied coaching the witness. The judge ordered that there be no further conversations, and told the defense that any error was harmless so that if Lovinger intended to move for a mistrial, the motion would be denied. Lovinger's lawyer then moved that the court declare a mistrial or alternatively that Hutchings' testimony be stricken and that he be precluded from testifying further. The court denied these motions. Hutchings resumed testifying, and again contradicted himself as to when he had turned over the exhibits for outside examination and when the examiner had returned them to the evidence room. Another short recess was declared, after which Hutchings' recollection was considerably clearer. Before recessing until the following Monday, the court instructed Hutchings not to discuss the case or his testimony with anyone.

Unfortunately for the state, Hutchings' recollection was less than lucid when he resumed the stand on Monday, February 7, 1983. He could not remember, even when aided by suggestive questioning, when he had given out or returned certain of the exhibits. The judge felt compelled to state:

This record has got evidence going out and never returning. This record has got the evidence, the same evidence going out twice, never returning for the first time. There is confusion.

During cross-examination, Hutchings discussed police procedures for entering into a log book the dates for the removal or return of evidence. Defense counsel requested review of the log book; the court granted a half-hour recess for this purpose. After the recess, Hutchings testified that one of the log book entries, which conflicted with his testimony, was incorrect.

On February 8, Officer Bowden, the government's next chain of custody witness, also had trouble recalling when he had returned one of the exhibits to the evidence locker. The judge continued the case until the afternoon and instructed Bowden not to discuss his testimony. When the trial resumed, defense counsel told the Judge that Lovinger had seen the prosecutor talking with Bowden during the recess and had heard something about the evidence locker. The prosecutor admitted having asked for certain reports, but denied discussing any aspect of Bowden's testimony. When asked if he had discussed his testimony with the prosecutor, Bowden revealed that he had only been expressing his displeasure "with the fact that I was getting my butt chewed out." The judge asked for the reports and stated, "I'm not going to have any case with any tint of error, and we are starting to have a lot of error creep into this record."

The judge took a short recess, and upon return verified that all parties and counsel were present. He then proceeded with the following declaration:

Gentlemen, at this time I want to put something on the record. I have not been satisfied with the way this case has been presented. First, I call to the attention of everybody in this courtroom that because of the laxity of the prior State's Attorney and his administration, there was nothing done to resolve this cause of action before a jury or bench trial because of the fact that this matter had occurred in 1979.

Secondly, I am concerned about the lack of discovery afforded the defense, pursuant to court order of Judge Doran, and even of this court.

Third, there was a failure to fully comply with the orders of the Court during trial regarding discovery. For example, I point out to my order of September 7th and the fact that a witness in this cause did remove portions from Group Exhibit No. 2, for identification, when I had ordered all of the exhibits to be taken to the defense chemist for purpose of analysis, pursuant to the order of discovery.

Fourth, I am very much concerned about what occurred early this afternoon in this courtroom. And this can be classified as either direct or indirect contempt, and I'm not going into that phase of it. Because of the talking about a pending matter with a witness who says he did not talk with the Assistant State's Attorney, and the Assistant State's Attorney saying to me that he did not talk with the witness, except for request by Bob Will, representing the defendant, and then you changing your conversation after Lovinger under oath indicated certain things. And then you said something else contrary, and it's all on the record.

At this point in the trial, it is questionable, and I doubt whether discovery has been completed by the state to the defense.

And further it has been disclosed by the witness on the stand, when he said, "I told him I was not pleased with the fact I was getting my butt chewed out, but that was it."

I, as the Court, am wholly unaware of any--I'm sorry. I am only aware of a reprimand by anyone except my admonition to the witness, to the defense and to the Assistant State's Attorney, not to discuss this case with anyone. And prior to I continuing this matter this morning, I said, "I am going to continue this case to 1:30. You don't talk with them; they don't talk with you about this case. Again I'm going to advise, let's get everything in order."

I feel error has crept into this trial and it can only be resolved by me declaring a mistrial, which I so order, and I recuse myself from this case, and I order you to appoint another judge. Call the Clerk. And the only other judge that will not take this is Strouse, because he had recused himself before. And after it is assigned to another judge, I instruct you to go to the other judge and let him set it for trial. Bond is continued.

The judge left the courtroom as he was finishing his statement.

The clerk of the court reassigned the case to Judge McQueen. On February 18, 1983, at Lovinger's first appearance before the new judge, he objected that the mistrial was not required by manifest necessity and moved to dismiss on double jeopardy grounds. The case was continued until March 18, when Judge McQueen heard arguments and denied the motion. The Appellate Court of Illinois, Second District, affirmed the circuit court's order ¹ and remanded the case for trial. The appellate court reasoned that Lovinger had consented to a mistrial by moving for one early in the trial and by failing to object when the judge made his announcement. People v. Lovinger, 130 Ill.App.3d 105, 85 Ill.Dec. 381, 473 N.E.2d 980 (1985). ²

The Illinois Supreme Court denied leave to appeal, the United States Supreme Court denied Lovinger's petition for certiorari, 474 U.S. 919, 106 S.Ct. 248, 88 L.Ed.2d 256 (1985), and on December 6, 1985 Lovinger filed a habeas petition in the district court. Both parties moved for summary judgment. The matter was referred to Magistrate Bucklo, who issued a report on December 17, 1986 finding after careful analysis that Lovinger did not consent to a mistrial and that no manifest necessity for a mistrial existed. The district court adopted the magistrate's report and granted the writ of habeas corpus on February 12, 1987 barring reprosecution on the cocaine and cannabis charges. ³ The district court's judgment was stayed pending this appeal.

II.

The double jeopardy clause of the fifth amendment, ⁴...