People ex rel. Roberts v. Orenic

Decision Date18 December 1981
Docket NumberNo. 55063,55063
Citation431 N.E.2d 353,59 Ill.Dec. 68,88 Ill.2d 502
Parties, 59 Ill.Dec. 68 The PEOPLE ex rel. Gerald ROBERTS, Petitioner, v. Michael ORENIC, Respondent.
CourtIllinois Supreme Court

Jeffrey H. Haas and Jonathan C. Moore, Chicago, for petitioner.

Tyrone C. Fahner, Atty. Gen., Chicago (Herbert Lee Caplan, Melbourne A. Noel, Jr., Michael B. Weinstein, and Carolyn B. Notkoff, Asst. Attys. Gen., Chicago, of counsel), for respondent.

RYAN, Justice:

This is an original mandamus action, which we permitted the petitioner, Gerald Roberts, to file in this court, pursuant to the prayer of his motion filed under our Rule 381. (73 Ill.2d R. 381.) Petitioner seeks to prevent his retrial following the declaration of mistrial in a criminal case in the circuit court of Will County. We deny the prayer of the petition for writ of mandamus.

The petitioner was charged, by information, with attempted murder, armed violence, aggravated battery, and possession of marijuana. Specifically, it was alleged that he attempted to kill an undercover narcotics agent. The petitioner, Roberts, testified that the agent came to the door of his apartment that night dressed in civilian clothes and that the agent resembled a person who had robbed Roberts six days before. Roberts said that he was armed because of this previous incident and when he went toward his door, he saw the agent draw his gun. Roberts then ducked to avoid being shot. As he did so, he slipped and his gun fired accidentally.

The defendant tendered two jury instructions on self-defense during the jury instructions conference. The prosecution objected to instructing the jury on self-defense because the defendant had testified that the shooting was accidental. The trial court agreed with the prosecution and refused to give the tendered instructions.

During their deliberations, the jury sent the following note to the judge:

"If self defense is a factor in a situation, can the charge of attempt murder be affected? And, if so, how?"

During a conference concerning this question, out of the presence of the jury, defendant's counsel again requested that the court instruct the jury on self-defense. The prosecution adhered to its original position that self-defense could not be a factor because the defendant testified that the shooting was accidental. The court again refused to give a self-defense instruction; however, in view of the jury's inquiry, the judge indicated that he thought that a self-defense instruction should have been given. There was a lengthy discussion between the defense counsel, the prosecutor, and the court concerning whether self-defense was an issue in the case. Although the court felt that a self-defense instruction should have been given, it refused to give such an instruction at that time, since counsel had not had an opportunity to argue that question to the jury. The court then posed two questions: "Could I give an instruction on self-defense? Would I have to go to a mistrial right now?" Defense counsel replied: "It is a good question." The prosecutor stated: "I think you would have to go to a mistrial, because we have all done our arguments." There followed another lengthy discussion on whether a self-defense instruction was required under the facts of the case. Finally, the bailiff informed the judge that the foreman of the jury told him that he wanted an answer to the question. The court then asked defense counsel if he wanted to make a motion for a mistrial. His response was that his first motion would be to give the jury the self-defense instruction. The judge said he could not do so at that time. The following exchange then took place:

"MR. HAAS (Defense Counsel): Judge, I think the defendant's position, we would move to dismiss with prejudice and if that is not allowed, we would move for a mistrial.

THE COURT: I am not going to dismiss it with prejudice.

MR. LIVAS (Prosecutor): Yes. I understood that the defendant made a motion for mistrial?

THE COURT: Yes. They made a motion before that, they wanted a mistrial with prejudice. I denied that motion.

MR. LIVAS: We agree.

THE COURT: Fine.

MR. HAAS: Our first motion, Judge, was to give the instructions.

THE COURT: Yes. I have come to the conclusion that there is no way * * * I could allow that, to put instructions in that have not been argued, that have not been, you know, explained or argued to the jury at the time the other instructions went in. I think that is improper.

* * * So, okay, I am going to instruct them.

MR. LIVAS: Mistrial?

THE COURT: Mistrial."

The court, apparently in dictating the minutes to the clerk, then stated:

"You can show on the minutes * * * that * * * the Court came to the conclusion that the self defense instruction probably should have been given. Show that the defense moved at that time that the instruction be given * * *. That was denied * * *.

Defendant at that time moved for a dismissal with prejudice. I denied that. At which time the defense moved for a mistrial. That was concurred in by the People and I am allowing that motion. Bring the jury in.

MR. HAAS: Judge, we think also the mistrial should really be on the Court's motion, since we don't think we were the cause of the mistrial."

The judge never responded to the defense counsel's last statement. The jury was brought in and the court declared a mistrial.

Thereafter, the petitioner moved for a substitution of judge and the case was referred to Judge Michael Orenic, respondent herein. The petitioner then moved to bar retrial alleging double jeopardy. Judge Orenic denied the motion and the petitioner filed the motion for leave to file a petition for an original action of mandamus in this court.

We will first consider whether an original petition for mandamus is the proper proceeding in which to decide whether a trial court properly denied defendant's double jeopardy claim. The second issue is whether the double jeopardy clauses of the fifth amendment to the United States Constitution and article I, section 10, of the Illinois Constitution bar reprosecution of the defendant under the facts of this case.

This court did not disapprove the present remedy for double jeopardy claims in People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 25 Ill.Dec. 669, 387 N.E.2d 325. In that case this court stated:

"A defendant in an Illinois criminal case who has a meritorious double jeopardy defense is not foreclosed from pretrial correction of a trial judge's erroneous denial of a motion to dismiss. A motion under our Rule 381 (58 Ill.2d R. 381) for leave to file an original petition for a writ of prohibition, mandamus, or perhaps even habeas corpus, as may be appropriate, accompanied by suggestions in support of the petition will receive the serious consideration of this court." (People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 540, 25 Ill.Dec. 669, 387 N.E.2d 325.)

The present case falls within the above rule and therefore this is a proper action in light of our decision in People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 25 Ill.Dec. 669, 387 N.E.2d 325.

In this case, since the mistrial was declared after the jury was selected and sworn, jeopardy had attached. This does not, however, necessarily preclude a second trial. The facts of each case must be examined to determine the credibility of a double jeopardy claim. (People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 22 Ill.Dec. 669, 387 N.E.2d 325.) Since the early case of United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165, it has been held that whether a defendant may be retried after a mistrial has been declared without the defendant's request depends on whether there was a manifest necessity for the mistrial. (See United States v. Dinitz (1976), 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267.) However, if the mistrial can be said to be attributable to the defendant by virtue of his motion or consent, different considerations apply. People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 22 Ill.Dec. 669, 387 N.E.2d 325.

The standard to be applied in the event the defendant requested a mistrial, or at least consented to one, was stated in United States v. Jorn (1971), 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543, and followed by this court in People ex rel. Mosley v. Carey. The Jorn court stated:

"(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." United States v. Jorn (1971), 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556.

It is clear that the defendant sought, or at least consented to, the mistrial that the trial court declared. Although there was mention of the possibility of the necessity of a mistrial by the court and by the prosecutor during the conference, there was no motion made to that effect until the court, in its colloquy quoted above, asked the defense counsel if he wanted to make a motion for a mistrial. Defense counsel then replied that his first request was to give the self-defense instruction. When the court said he could not do that, defense counsel, as noted above, stated:

"MR. HAAS (Defense Counsel): Judge, I think the defendant's position, we would move to dismiss with prejudice and if that is not allowed, we would move for a mistrial. " (Emphasis added.)

The judge then denied the motion to dismiss with prejudice and granted the motion for a mistrial. The defendant never objected to the declaration of a mistrial, other than to state:

"MR. HAAS: Judge, we think also the mistrial should really be on the Court's motion, since we don't think we were the cause of the mistrial."

This statement neither amounts to a reversal or withdrawal of the defendant's previous request for a mistrial, nor an objection to the entry of a mistrial.

It cannot be said that the...

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