People ex rel. Mosley v. Carey

• Citation: 387 N.E.2d 325,74 Ill.2d 527,25 Ill.Dec. 669
• Decision Date: 26 January 1979
• Docket Number: No. 51225,51225
• Parties: , 25 Ill.Dec. 669 The PEOPLE ex rel. Leonard MOSLEY, Petitioner, v. Bernard CAREY, State's Attorney, Respondent.
• Court: Supreme Court of Illinois

Page 325

387 N.E.2d 325

74 Ill.2d 527, 25 Ill.Dec. 669

The PEOPLE ex rel. Leonard MOSLEY, Petitioner, v. Bernard CAREY, State's Attorney, Respondent.

No. 51225.

Supreme Court of Illinois.

Jan. 26, 1979.

Rehearing Denied March 30, 1979.

James J. Doherty, Public Defender, Chicago (John Thomas Moran, Asst. Public Defender, of counsel), for petitioner.

Bernard Carey, State's Atty., Chicago (Lee T. Hettinger and Mary Ellen Dienes, Asst. State's Attys., of counsel), for respondent.

UNDERWOOD, Justice:

We allowed the motion of relator, Leonard Mosley, for leave to file in this court an original Mandamus action pursuant to our Rule 381 (58 Ill.2d R. 381). Relator had been indicted for murder by a Cook County grand jury, and, after numerous continuances, the case was called for trial on June 5, 1978. Selection of the jury and administration of their oath was completed on June 6. Before any evidence was presented on June 7, however, a mistrial was declared, and the writ of Mandamus is now sought to bar the State's Attorney of Cook County from reprosecuting relator. It is further urged that this court establish a mode of appeal which would permit an interlocutory review of a trial judge's order denying dismissal of an indictment on double jeopardy grounds.

A detailed description of the context in which the mistrial was declared is necessary to an understanding of the issues. Following arguments and rulings on motions on the morning of June 7 and prior to opening statements, an assistant State's Attorney brought to the attention of the judge the fact that an article concerning the trial had appeared in that morning's Chicago Tribune. The article appeared under a headline indicating substantial delay had occurred between indictment and trial, and its text included information that two elderly prosecution witnesses had died prior to trial and related facts which could have provided a motive for the alleged crime. The assistant prosecutor moved to "voir dire" the jury to determine if any of the jurors had read the article and, if so, whether they would be biased. The defense, while objecting to the prosecutor's motion as premature, charged that the prosecution was responsible for the appearance of the newspaper article, and that this constituted fundamental unfairness and a violation of due process. In support of this allegation, defense counsel sought a court order compelling the appearance of the Tribune reporter who wrote the article. The following exchange then took place:

"THE COURT: If you make a motion, perhaps I could address myself, but now you are on a fishing trip and I don't know what you are driving at.

MR. MOORE (defense counsel): Our motion is for a mistrial. Our motion is as to prosecutorial misconduct and fundamental unfairness."

After the court indicated a desire to examine the jury to determine if the jurors had read the article and, if so, whether it had influenced them, defense counsel responded:

"Prior to that, we presently have a motion for a mistrial, your Honor, and ask that we present you with a written motion. I would, at this time, ask leave of court to file a motion to dismiss the indictment. * * * "

The judge then called in the jurors and, addressing them as a group, asked: "How many of you read the Tribune this morning?" Receiving no response, the court again instructed the jurors not to read anything concerning the case in the newspaper. Defendant objected to the method of examination arguing that the jurors should have been questioned individually and moved for a mistrial on that basis. Finally, arguing that the examination of the jurors served to highlight the article and would encourage them to seek it out, the defense made its final motion for a mistrial in the following words: "At this time, Judge, I besiege (Sic ) you, please grant a mistrial."

Later in the day, and during the hearing on the reporter's motion to quash the subpoena requiring his presence, the assistant prosecutor admitted talking to the Tribune reporter and telling him about the deaths of the two elderly witnesses. Although defendant suggests that conversation resulted from a telephone call by the assistant to the reporter, there is nothing in the record before us corroborating that assertion, and the trial court apparently found to the contrary.

The court thereafter, in chambers with counsel present, examined each juror individually concerning his knowledge of the article, and each denied having read or seen it. The court did not inform the jurors of the content of the article but simply inquired whether they had heard about or read an article in the Tribune "about this case" or "about People v. Mosley." Following argument on defendant's written motion to dismiss the indictment because of the alleged prosecutorial misconduct, the court ruled as follows:

"There has been no evidence adduced before this Court to prove that the prosecutor, with malice aforethought, or deliberately gave information for the purpose of influencing the jury. However, it is the opinion of this Court that the conduct of the State's Attorney was imprudent, to say the least. It is the duty of this Court to see that all defendants get a fair and impartial trial.

* * * No evidence has been taken in this matter and the Court feels, in light of these facts, that the Court itself highlighted the article to the jury in the hope of seeking out whether or not the jury was influenced by the article. The Court did highlight that article, but the fact that evidence had not been taken in this case and this case had not, in fact, started, the Court is going to declare a mistrial and will withdraw a juror."

Defense counsel then objected to the mistrial declaration urging the court to sequester the jury as an alternative means of insuring the defendant a fair trial, a suggestion to which the prosecutor stated he had no objection. The court then inquired:

"Gentlemen, are you prepared to make your opening arguments? You realize this jury is going to be sequestered for days?

MR. CANNON (Assistant State's Attorney): Yes, Judge.

MR. MOORE (Defense Counsel): Could we have five minutes before we go any further?"

Following a brief recess, defense counsel stated, "Judge, I believe that my objection was a bit premature and I will withdraw my objection to your Honor's declaration to a mistrial. * * * " A juror was thereafter excused, a mistrial declared and the case continued to the following day.

When the case was called the next day it became apparent that defendant intended to move for dismissal on double jeopardy grounds, and the case was again put over to the following day to permit preparation of the appropriate motions. On that day the following exchange took place with reference to the June 7 proceedings:

"THE COURT: * * * After a prolonged day of argument, the Court reconsidered its position and reversed its position to the previous motion for mistrial made by the defendant, and the mistrial was granted.

MR. MOORE (Defense Counsel): I object, your Honor. We never moved for mistrial on that point. Your Honor did that on your own motion.

THE COURT: * * * The Court did not do it sua sponte. * * * "

Defendant's plea in bar of further prosecution was denied. The trial judge was persuaded, however, to certify the double jeopardy question to the appellate court for interlocutory review despite the fact that our Rule 308 (58 Ill.2d R. 308) providing interlocutory appeals in civil cases under specified conditions is not one of the rules enumerated in Rule 612 (58 Ill.2d R. 612) as applicable in criminal cases. That court denied the petition for leave to appeal and these proceedings followed.

The starting point in any double jeopardy analysis, of course, is determining whether or not jeopardy had attached. Since the jury was selected and sworn, it is clear that jeopardy had attached at the time the mistrial was declared. (Crist v. Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24; People v. Watson (1946), 394 Ill. 177, 68 N.E.2d 265; O'Donnell v. People (1906), 224 Ill. 218, 79 N.E. 639.) A second trial may still be permissible, however (Downum v. United States (1963), 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100; United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165), and it is necessary to examine the facts and circumstances of each particular case to determine the validity of a double jeopardy claim. (Illinois v. Somerville (1973), 410 U.S. 458, 464, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425, 431.) Of particular importance in this regard is whether the mistrial may fairly be said to have been attributable to defendant, for where a mistrial is declared upon defendant's motion, a different analysis is applicable. The United States Supreme Court set out the standard in United States v. Jorn (1971), 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543, as follows:

"(W)here circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error." 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556.

We think it may be fairly said here that defendant sought or at least consented to the mistrial which the trial court ultimately declared, even though that mistrial occurred, at least in part, as a result of prosecutorial conduct which would have been better left undone. By so holding, however, we do not intend to condone the conduct of the assistant State's Attorney in furnishing information to the reporter or the subsequent publication of the article which could have prejudiced members of the jury who saw or read it. Were there in this record any support for the suggestion that the conversation with the reporter was initiated by the assistant prosecutor, our disapproval would take other forms. (People v. Butler (1974), 58 Ill.2d 45, 51-52, 317 N.E.2d...