People v. Edwards

• Decision Date: 16 June 1981
• Docket Number: No. 80-1101,80-1101
• Citation: 52 Ill.Dec. 908,97 Ill.App.3d 407,422 N.E.2d 1117
• Parties: , 52 Ill.Dec. 908 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Ellen EDWARDS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1117

422 N.E.2d 1117

97 Ill.App.3d 407, 52 Ill.Dec. 908

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Ellen EDWARDS, Defendant-Appellee.

No. 80-1101.

Appellate Court of Illinois, First District, Second Division.

June 16, 1981.

Bernard Carey, State's Atty., County of Cook, Chicago (Marcia B. Orr and Iris E. Sholder, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellant.

James J. Doherty, Public Defender, Chicago (James H. Reddy, Asst. Public Defender, Chicago, of counsel), for defendant-appellee.

HARTMAN, Presiding Justice.

The State appeals from the trial court's "acquittal" of defendant, Ellen Edwards, and seeks to invoke appellate jurisdiction to review that disposition under Supreme Court Rule 604(a)(1) (Ill.Rev.Stat.1979, ch. 110A, par. 604(a) (1)), which permits the State to appeal orders of dismissal. The State alleges that the substantive effect of the trial court's action was to improperly dismiss the charge against defendant rather than to acquit.

The information filed by the State on October 24, 1979 in the instant case named three defendants, V.O. James, otherwise called James Mansfield, Ellen Edwards, the present defendant, and Reginald Fisher, charging all three with theft. The three were arraigned on October 29, 1979. From that time, the State proceeded against all three in one action, until the date on which the events of which the State complains occurred. When the cause came on for trial on March 19, 1980, the trial court granted a continuance to March 24, 1980 to two of the three defendants, V.O. James and Reginald Fisher, who were apparently experiencing some difficulty with respect to securing defense counsel.

The trial court then asked whether the State was ready for trial in the case of defendant Ellen Edwards. The prosecutor responded that: it was the State's intention to try all three defendants together; the State was attempting to comply with the trial court's desire to go to trial on the case of Ellen Edwards and was " * * * amenable to try her case separately from the other defendants though there * * * (were) really no grounds for severance"; the State had made attempts to get the arresting officers into court that day but both were on furlough and could not be reached by telephone; and because the officers could not be present, and the State had never before sought a motion for a continuance, it respectfully requested that the Ellen Edwards case be given the same date the co-defendants received, March 24, and it would at that time be ready to proceed one way or another with that case.

It was upon this background of two previous continuances sought by and granted to defendants and five "by agreement" continuances, in addition to the two continuances granted to the co-defendants that very morning, that the trial court stated:

"I don't know what I can do to communicate with the State's Attorneys in this court that when I say trial I mean trial. So the motion for continuance is denied."

The trial court then inquired as to the State's evidence. The State responded that it had none to put on by virtue of the absence of its key witnesses. The prosecutor stated:

"Mr. Romano: We are not prepared for we have no witnesses in court.

"The Court: Do you wish your client to testify?

"Mr. Morse (Public Defender representing Edwards): Yes, I do, Judge."

Thereafter, defendant Edwards, called on her own behalf, was sworn and testified as to her version of the circumstances and arrest. The court then inquired as to whether the State would cross-examine to which the prosecutor responded:

"Mr. Romano: Your Honor, the State respectfully states for the record we do not believe there's a legitimate case or controversy before the Court and we have no questions.

"The Court: All right, argument? State (sic.) wish to argue?

"Mr. Romano: The State, for the record, states we are not party (sic.) to this proceeding and we have no argument."

The trial court thereafter found defendant Edwards not guilty and she was discharged.

The State contends, under the foregoing circumstances, that defendant was not "put to trial" so as to have exposed her to jeopardy, relying upon People v. Deems (1980), 81 Ill.2d 384, 43 Ill.Dec. 8, 410 N.E.2d 8; People v. Shields (1979), 76 Ill.2d 543, 31 Ill.Dec. 784, 394 N.E.2d 1161; People v. Dellecarto (1978), 67 Ill.App.3d 490, 24 Ill.Dec. 35, 384 N.E.2d 902; and People v. Shick (1968), 101 Ill.App.2d 377, 243 N.E.2d 285. People v. Deems, supra, appears to provide the necessary guidelines for an appropriate disposition of this case. In Deems, defendant was indicted for knowingly receiving stolen property and on the date set for trial the State moved to dismiss the charges, conceding that defendant was not guilty of that charge, but that an indictment would be sought against him for theft which the State would be ready to prosecute within a week. Notwithstanding the State's admission that the defendant did not commit the offense with which he was charged, defendant demanded an immediate trial on the original charge and the trial court, likening the State's motion to a request for continuance, decided that defendant was entitled to go to trial if he was prepared to do so. The trial court called the case for trial despite the State's protestations. Defendant waived a jury trial. When the trial judge called for witnesses to be sworn, only defendant did so, but he did not testify. The State again indicated that it had no witnesses to call. The trial court then found defendant not guilty and entered its judgment acquitting him. A subsequent indictment for theft was dismissed on double jeopardy grounds from which the State appealed seeking reversal of both the acquittal and reversal.

In upholding the reversal adjudged by the appellate court, the supreme court in Deems made the following observations, among others (81 Ill.2d at 389-90, 43 Ill.Dec. 8, 410 N.E.2d 8):

"While the judge denominated his action an 'acquittal,' it bore none of those characteristics except the label. The proceedings were not an attempt by the State to convict defendant. * * *

"The 'trial' held at the first proceeding was a sham, an artifice employed by the trial judge to achieve the result of a dismissal with prejudice for want of prosecution which (People v.) Thomas ((1975), 24 Ill.App.3d 907, 322 N.E.2d 97) had held he did not have the authority to order. * * *

"The interests protected by the double jeopardy clause simply are not threatened in this case. The traditional rule is that jeopardy attaches in a bench trial when the first witness is sworn and the court begins to hear evidence. (Citing cases.) That rule is predicated upon the fact that the first witness is normally an individual whose testimony is part of the State's case a prosecution witness whose appearance is a part of the incriminating presentation jeopardizing defendant. Here, the only person sworn was the defendant himself, and he did not testify. No evidence of any type was introduced, and it is clear that defendant was at no time during these proceedings in danger of being found guilty of any offense." (Emphasis supplied.)

In the case at bar, the State refused to participate in the proceedings and declined to involve itself in any prosecutorial activities, as in People v. Deems. The trial court here was without authority to assume the mantle of prosecutor; that role is reserved to the State by Constitution (Ill. Const. 1970, Art. II, sec. 1) and by statute (Ill.Rev.Stat.1979, ch. 14, par. 5). People v. Ruiz (1979), 78 Ill.App.3d 326, 334, 33 Ill.Dec. 590, 396 N.E.2d 1314, cert. denied (1980), 81 Ill.2d 597; People v. Rotramel (1972), 5 Ill.App.3d 196, 282 N.E.2d 484.

Defendant in the instant case voluntarily took the stand and gave such exculpatory testimony under questioning by her lawyer as she felt she wished to give. The trial court asked no questions and the State maintained its posture of non-involvement. When asked if he wished to cross-examine, the assistant state's attorney responded, "Your Honor, * * * we do not believe there's a legitimate case or controversy before the Court and we have no questions." When the trial court asked whether the State wished to argue, the assistant state's attorney responded " * * * we are not party to this proceeding and we have no argument." No argument was presented by the defense. The trial court did not direct defendant to take the stand but simply asked "Do you wish your client to testify?" Not surprisingly, in light of the State's having already asserted that it would not go forward with the prosecution, counsel for the defense responded, "Yes, I do, Judge." Defendant's "testimony" was entirely self-serving in view of the unremarkable absence in the facts she related of any suggestion of a vital element which would have had to have been proved under the charge of theft, namely, intent. (Ill.Rev.Stat.1979, ch. 38, par. 16-1.) In fact, the absence of evidence of intent was the principal basis of the trial court's "acquittal" in this instance, in which it stated, "Ellen Edwards is found not guilty, there's no proof of intent among other things." The patent distinction between the instant case and People v. Deems, supra, is that in Deems no testimony was elicited from defendant, whereas here defendant did take the stand and answer her lawyer's questions. Under the circumstances presented here, however, as set forth above, it is difficult to see how either in law or common sense her election to testify in the absence of prosecution can have exposed her to jeopardy, single or double.

The origin and history of the double jeopardy clause was again recently reviewed by the United States Supreme Court in United States v. Scott (1978), 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65. There the court noted the purpose underlying the prohibition against double jeopardy, citing and quoting from Green v. United States (1957), 355 U.S. 184, 187-88, 78 S.Ct....