People v. Bean

• Decision Date: 17 July 1985
• Docket Number: No. 5-83-0776,5-83-0776
• Citation: 135 Ill.App.3d 336,481 N.E.2d 888,90 Ill.Dec. 88
• Parties: , 90 Ill.Dec. 88 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Darryl L. BEAN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 888

481 N.E.2d 888

135 Ill.App.3d 336, 90 Ill.Dec. 88

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Darryl L. BEAN, Defendant-Appellee.

No. 5-83-0776.

Appellate Court of Illinois Fifth District.

July 17, 1985.

John Baricevic, State's Atty., Belleville, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Karen L. Stallman, Staff Atty., State's Attys. Appellate Service Com'n, Mount Vernon, for plaintiff-appellant.

Randy E. Blue, Deputy Defender, Dan W. Evers, Asst. Defender, Office of the State Appellate Defender, Fifth Judicial Dist., Mount Vernon, for defendant-appellee.

JONES, Presiding Justice:

The State raises two issues on appeal: (1) whether the trial court erred in dismissing Count II of the indictment for want of prosecution, and (2) whether the trial court erred in granting defendant's motion in limine to exclude any evidence of the residential burglary charged in Count II from the evidence presented during defendant's trial for residential burglary under Count I.

Count I charged defendant with the residential burglary of the home of Michelle Knight on March 31, 1983, and Count II charged defendant with the April 1, 1983, residential burglary of the home of Martha Hawkins. On defendant's motion the two counts were severed for trial.

The case was called for trial on Count II on September 19, 1983, and the jury was impaneled and sworn. On September 20, the parties made opening statements, but at 2 p.m., the court took a recess to await the arrival of the State's witnesses. The witnesses still had not arrived by 4 p.m and the State requested a recess until 9 a.m. the following morning. The court then suggested that since the State was not ready to proceed, a motion was in order. The defendant moved to dismiss Count II for want of prosecution, whereupon the court denied the State's motion for a continuance and granted the defendant's motion to dismiss. On November 2, 1983, the court denied the State's motion to reconsider and also granted the defendant's motion in limine to exclude any evidence of the offense charged in Count II from the evidence presented in defendant's trial on Count I.

The State has filed two notices of appeal, each on November 14, 1983. In the first, the State asserts that it appeals an order dated September 20, 1983, that denied the State's motion for continuance and granted the defendant's motion to dismiss Count II for lack of prosecution. That notice of appeal also recites that the State appeals the denial of the State's motion to reconsider that was entered on November 2, 1983. The second notice of appeal recites that an interlocutory appeal is taken from the November 2, 1983, order granting the defendant's motion in limine. For the reasons that follow, neither notice of appeal served to confer jurisdiction upon this court, and, therefore, we must dismiss the appeal for lack of jurisdiction.

The State's right to appeal is governed by Supreme Court Rule 604 (87 Ill.2d R. 604) and is limited by the Illinois constitutional protection against double jeopardy. The State here appeals the dismissal of Count II and the grant of defendant's motion in limine pursuant to paragraph (1) of subparagraph (a) of Supreme Court Rule 604, which describes the limited types of orders from which the State may appeal. Under that Rule the State may appeal, inter alia, from an order suppressing evidence or "from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963 * * *." (87 Ill.2d R. 604.) Section 114-1 (Ill.Rev.Stat.1983, ch. 38, par. 114-1) lists a variety of grounds on which a charge may be dismissed, but only by way of a pretrial motion.

The dismissal here was not at the pretrial stage. In fact, the jury had already been impaneled and sworn, opening arguments had been made, and trial had, in fact, begun so that the dismissal here certainly did not fall within the list of pretrial dismissals enumerated in section 114-1. Since trial had already begun, the phrase, "dismissal for want of prosecution," used by the court to justify its action, was a misnomer. The State did not fail to prosecute the case but, rather, failed to present sufficient evidence to convict the defendant.

The State's right to appeal is not limited, however, to those orders specifically listed in section 114-1. It has been held that any order that has the effect of dismissing the charges against the defendant is also appealable by the State. (People v. Dellecarto (1978), 67 Ill.App.3d 490, 24 Ill.Dec. 35, 384 N.E.2d 902, leave to appeal denied; People v. Love (1968), 39 Ill.2d 436, 235 N.E.2d 819.) Since we are not bound by the trial court's characterization of its action (see United States v. Scott (1978), 437 U.S. 82, 98 S.Ct. 2187, 2196, 57 L.Ed.2d 65; Downum v. United States (1963), 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100), we must determine the true nature of the court's order so as to determine its appealability.

In so doing, it is important to recognize that, in limiting State appeals to those orders that have the effect of dismissing the charges against the defendant, Supreme Court Rule 604 must be read in conjunction with the Illinois Constitutional provision aimed at protecting defendants from being subjected to double jeopardy. Section 6 of Article 6 of the Illinois Constitution of 1970 prohibits the State from appealing judgments of acquittal on the merits in criminal cases since a state appeal from a judgment of acquittal would be, in effect, a second trial of the defendant inasmuch as defendant would be subjected once again to a possible conviction. It is for that reason that double jeopardy attaches when the jury is impaneled and sworn (People ex rel. Roberts v. Orenic (1981), 88 Ill.2d 502, 59 Ill.Dec. 68, 431 N.E.2d 353; People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 25 Ill.Dec. 669, 387 N.E.2d 325, cert. denied 444 U.S. 940, 100 S.Ct. 292, 62 L.Ed.2d 306), or, in the case of a bench trial, when the first piece of evidence is heard (People v. Deems (1980), 81 Ill.2d 384, 43 Ill.Dec. 8, 410 N.E.2d 8, cert. denied 450 U.S. 925, 101 S.Ct. 1378, 67 L.Ed.2d 355), and not at the time of judgment.

The appealability of the order in the instant case thus turns on whether it is more like a dismissal of the charge or an acquittal of the defendant. More specifically, we must decide whether the swearing and impaneling of the jury prior to the entry of the order terminating the trial compels the conclusion that the order is more akin to an acquittal than it is to a dismissal of the charges. We find that it is more akin to an acquittal.

Although dismissal under section 114-1 may be obtained on a wide variety of grounds, cases allowing midtrial dismissal on grounds not listed in that section may be distinguished from the case at bar in that the courts in those cases declared that the trial was a "sham" or that the case was, in some way, improperly brought to trial. In People v. Dellecarto, the appellate court held that the trial court's midtrial dismissal of the action "for want of prosecution" was appealable because the case had been brought to trial improperly. (See also People v. Rudi (1984), 103 Ill.2d 216, 82 Ill.Dec. 936, 469 N.E.2d 580, cert. denied 469 U.S. 1228, 105 S.Ct. 1227, 84 L.Ed.2d 365; sham trial; People v. Deems (1980), 81 Ill.2d 384, 43 Ill.Dec. 8, 410 N.E.2d 8, cert. denied 450 U.S. 925, 101 S.Ct. 1378, 67 L.Ed.2d 355; sham trial.) The trial judge in Dellecarto had been made aware of the State's difficulty in obtaining witnesses prior to the time he called the case for trial. Following the court's dismissal for want of prosecution, the court then entered an order of acquittal. The appellate court refused to accept that characterization and held that the State could properly appeal since the case had been improperly called to trial. The court held that under those circumstances, the trial court's "dismissal for want of prosecution" was clearly a "judgment the substantive effect of which resulted in the dismissal of the indictment" as provided in Supreme Court Rule 604. (67 Ill.App.3d 490, 495, 24 Ill.Dec. 35, 39, 384 N.E.2d 902, 906.) Therefore, even if the grounds for the dismissal need not be specified in section 114-1, the dismissal must have been at the pretrial stage, or the court must somehow be able to classify it as being at the pretrial stage.

In applying these principles to the case at bar, we must begin with the fact that, in contrast with the Dellecarto case, this case was properly brought to trial. The State itself was not aware of its problems with witnesses until after the jury had been impaneled and sworn and opening...