People v. Cordero

• Decision Date: 10 February 2012
• Docket Number: No. 2–10–1113.,2–10–1113.
• Citation: 965 N.E.2d 1197
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Sergio CORDERO, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

965 N.E.2d 1197

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Sergio CORDERO, Defendant–Appellant.

No. 2–10–1113.

Appellate Court of Illinois, Second District.

Feb. 10, 2012.
Rehearing Denied March 26, 2012.

965 N.E.2d 1197

Robert M. Stephenson, Becker Stephenson LLC, Chicago, for Sergio Cordero.

Terry M. Kurt, Jo Daviess County State's Attorney, Galena (Lawrence M. Bauer, Deputy Director, Sally A. Swiss, State's Attorneys Appellate Prosecutor, of counsel), for the People.

Justice McLAREN delivered the judgment of the court, with opinion.

¶ 1 After a bench trial, defendant, Sergio Cordero, was convicted of aggravated criminal sexual assault ( 720 ILCS 5/12–14(a)(3) (West 2008)). He moved for either a judgment of acquittal or a new trial, based on various trial errors. The trial court denied defendant an outright acquittal but granted him a new trial. Defendant

965 N.E.2d 1198

then moved to dismiss the charge, arguing that a retrial would subject him to double jeopardy because the evidence at his first trial had been legally insufficient. The trial court denied the motion. Defendant appeals (see Ill. S.Ct. R. 604(f) (eff. July 1, 2006)).

¶ 2 We affirm. We hold that defendant's original jeopardy has not terminated. Therefore, a retrial will not subject him to double jeopardy, regardless of whether the evidence at his first trial was legally sufficient.

¶ 3 Defendant's claim presents a question of law, which we of course review de novo. See People v. Bellmyer, 199 Ill.2d 529, 537, 264 Ill.Dec. 687, 771 N.E.2d 391 (2002). The federal and state constitutional double jeopardy clauses ( U.S. Const., amend. V ; Ill. Const.1970, art. I, § 10 ) are essentially identical (People v. Ortiz, 196 Ill.2d 236, 253, 256 Ill.Dec. 530, 752 N.E.2d 410 (2001) ), so we discuss them together. They prohibit (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. People v. Placek, 184 Ill.2d 370, 376–77, 235 Ill.Dec. 44, 704 N.E.2d 393 (1998). However, the protection is triggered only if there has been some event, such as an acquittal, that terminates the original jeopardy. Richardson v. United States, 468 U.S. 317, 325–26, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) ; People v. Smith, 338 Ill.App.3d 254, 255, 273 Ill.Dec. 211, 788 N.E.2d 802 (2003). Thus, defendant cannot prevail on his claim unless his original jeopardy has terminated. It has not.

¶ 4 Defendant was convicted. The trial court then denied his request for a judgment of acquittal, but, finding reversible error from the exclusion of certain evidence, granted him a new trial. Retrying defendant could not subject him to double jeopardy, because nothing has terminated his original jeopardy. Thus, double jeopardy does not bar a retrial, regardless of the sufficiency (or insufficiency) of the evidence at the original trial.

¶ 5 In Richardson —which neither party cites—a federal-court jury acquitted the defendant of one of the three counts but could not reach a verdict on the other two. The trial court declared a mistrial and ordered a new trial on both counts. The defendant then moved to dismiss the charges, based on double jeopardy. The trial court denied the motion to dismiss, and the appellate court affirmed. Richardson, 468 U.S. at 318–19, 104 S.Ct. 3081. The Supreme Court affirmed the appellate court.

¶ 6 The Court rejected the defendant's premise that, if the evidence at his first trial had been legally insufficient, then double jeopardy barred the government from receiving a second opportunity to prove him guilty beyond a reasonable doubt. Recounting long-standing authority that double jeopardy does not bar a retrial after the first trial has ended in a "hung jury," the Court explained that the declaration of a mistrial was "not an event which terminate [d] jeopardy." Id. at 325, 104 S.Ct. 3081...