People v. Kimble

• Decision Date: 18 April 2019
• Docket Number: Docket No. 122830
• Citation: 434 Ill.Dec. 727,2019 IL 122830,137 N.E.3d 799
• Parties: The PEOPLE of the State of Illinois, Appellant, v. David KIMBLE, Appellee.
• Court: Illinois Supreme Court

2019 IL 122830

137 N.E.3d 799

434 Ill.Dec. 727

The PEOPLE of the State of Illinois, Appellant,

v.David KIMBLE, Appellee.

Docket No. 122830

Supreme Court of Illinois.

Opinion filed April 18, 2019

JUSTICE THEIS delivered the judgment of the court, with opinion.

¶ 1 In this appeal, we are asked to consider whether defendant David Kimble's motion to bar his reprosecution on double jeopardy grounds was properly denied where the trial judge had determined the jury was deadlocked and declared a mistrial. The appellate court held that double jeopardy principles barred a retrial because defendant did not consent or acquiesce to a mistrial and there was no manifest necessity for a mistrial. 2017 IL App (2d) 160087, ¶¶ 28, 56, 416 Ill.Dec. 960, 86 N.E.3d 1245. For the following reasons, we reverse the judgment of the appellate court.

¶ 2 BACKGROUND

¶ 3 In 2014, a McHenry County grand jury indicted defendant and charged him with four counts of aggravated criminal sexual abuse ( 720 ILCS 5/11-1.60(c)(1) (West 2012) ) against S.M., a nine-year-old girl. The indictment charged that defendant, who was then 45 years old, touched S.M.'s vagina through her clothing on four separate occasions between August and November 2013.

¶ 4 A jury trial commenced in November 2015. After opening statements by both parties, the State presented its evidence over a two-day period. On the first day of trial, the jury heard witness testimony, including the testimony of S.M., and viewed a videotaped interview with S.M. On the second day of trial, the jury heard a continuation of one witness's testimony, and viewed a videotaped interview with defendant. The State then rested its case. Defendant made a motion for a directed verdict, which the court denied, and then rested after entering a stipulation.

¶ 5 The evidence revealed that S.M. lived in Wonder Lake, Illinois, with her father, Jeff; her three siblings; her father's girlfriend, Jen; and Jen's two children. For a period of time, they lived next door to defendant, and then defendant moved a couple of streets away from them. Defendant would babysit the children, and sometimes they would spend the night at his home. He bought gifts for S.M., including clothing and a bike that stayed at defendant's house. Jeff worked for defendant for a period of time, and they had a good relationship.

¶ 6 Jen had a conversation one evening with her daughter, B.L., which prompted Jen to ask S.M. if anybody had ever touched her inappropriately. At first, S.M. did not answer. When Jen asked if defendant had ever touched her inappropriately, S.M. said yes. She told Jen that every time she asked defendant to stop, he would stop, but the next time, he would forget and touch her again. Jen spoke to Jeff about these conversations, and they agreed to call the principal of the elementary school. At that point, Jeff decided to end his employment with defendant.

¶ 7 The school principal, Anne Huff, testified that she had a conversation with both children. B.L. alluded to defendant "snuggling" with her. When Huff asked S.M. who babysat her, S.M. named defendant. Huff then asked S.M. if she felt safe with defendant. S.M. replied, "not when he touches me down there," pointing to her vagina. When asked how many times defendant touched her there, S.M. replied five times. When asked whether there were any other times she did not feel safe, S.M. said she did not like to wake defendant because he would get angry.

¶ 8 Detective Misty Marinier testified that she had been a detective with the Village of Algonquin for four years. She had specific training and experience in investigating child sexual abuse cases, including 40 hours of forensic interview training. She had previously conducted about 20 to 25 of these types of interviews. In December 2013, using the protocol she was taught in her training, Marinier conducted a 34-minute recorded video interview with S.M. at the Child Advocacy Center. The jury viewed the video recording.

¶ 9 In the interview, S.M. told Marinier that defendant touched her on her "privates" and pointed to the vagina on a diagram depicting the female anatomy. S.M. told her that the touching happened about two to five times in defendant's bedroom and that her clothes were "usually" on. The other children were at defendant's home during these incidents but were usually in the living room. S.M. did not indicate that she was held down or grabbed at any point or that defendant pulled down her pants. S.M. told Marinier that she was scared to talk about the touching, but nobody had told her not to talk about it. Based on her training and experience, Marinier stated that incremental disclosures are normal after children are interviewed because they are more comfortable knowing the information is already "out there" and that they are not going to get into trouble.

¶ 10 S.M., who was 11 years old at the time of trial, testified that defendant touched her on her vagina in his bedroom. She described an incident when she was getting some coloring materials that defendant bought her that were in defendant's bedroom. S.M. testified that defendant came in, pushed her onto his bed, took off her clothes, and rubbed her in her "bad spot" with his hands. S.M. testified that she told defendant to stop but he did not stop. She stated that the inappropriate touching happened about 10 times under similar circumstances. Defendant would close and lock the bedroom door. S.M. did not recall the first or last time something like that had happened. She told Jen about it, then her dad, then the principal at her school, and spoke with the detective at the Child Advocacy Center. S.M. stated that she was not really comfortable talking to the detective and was uncomfortable talking about it at trial.

¶ 11 Jen's daughter, B.L., who was nine years old at the time of trial, testified that she knew "David Kimble" as her uncle, and that she knew "Dave" as a man "who kind of like works." When asked if "Dave" knew anyone in her family, she responded, "[h]e knows [S.M.]—mostly knows everybody." B.L. did not see "Dave" in the court room. The last time she saw him was two years ago. She used to sleep over at his house, either in his bed or on the floor. When asked whether anything ever happened at her Uncle Dave's house that made her uncomfortable, she testified that he sometimes rubbed his hand on her upper thigh up and down when she was on the bed and he was on the floor on his knees. The way he touched her made her uncomfortable. The day after "Dave" did that, she told her mom.

¶ 12 After B.L.'s testimony, the trial court denied defense counsel's motion for a mistrial, in which counsel argued that B.L.'s testimony was inadmissible under the relevant evidentiary standard for evidence of propensity. A limiting instruction in that regard was provided to the jury.

¶ 13 Detective Michelle Asplund began her testimony at the end of the first day of trial and continued on the second day of trial. She testified that she had been employed as a detective since 2006 and had been investigating crimes against children since 2010. Asplund and her partner interviewed defendant on December 11, 2013. The interview was videotaped. Asplund used her interview and interrogation course training techniques during the questioning. A 3½-hour redacted version of the interview was played for the jury. Defendant repeatedly denied any inappropriate touching.

¶ 14 After the State rested, the trial court denied a second motion for a mistrial based on the detective interjecting that defendant had asked for a lawyer during the interview. The court had immediately sustained the objection and instructed the jury to disregard the detective's answer. The court also denied defendant's motion for a directed verdict.

¶ 15 Defendant rested after presenting the following stipulation. If called as a witness, Kelly Gallagher would testify that she is a victim witness coordinator with the McHenry County State's Attorney's office. On October 30, 2015, she was present for a conversation between Assistant State's Attorneys (ASAs) Eisenstein and Gibbons and S.M. in the State's Attorney's office. S.M. stated that she was touched approximately 10 times by defendant over the clothes. When asked if she was ever touched under the clothes, she said no. The ASAs asked S.M. whether defendant held her down, and she said yes. She was then asked if she had her clothes on or off when he would hold her down. She said both. The ASAs asked S.M. what defendant would do when he held her down. She said he would use one hand to hold her down and the other to touch her private part. When asked what defendant would do when he held her down without her clothes on, she said that he would touch her. When asked why she initially said she was touched over the clothes, she said she was embarrassed and did not want to talk about it. The stipulation reiterated that S.M. was embarrassed when interviewed earlier by Detective Marinier and did not want to talk about it.

¶ 16 On the third day of trial, closing arguments were made, and jury instructions were read. The jury began deliberating at 10:50 a.m. About 2½ hours later, at their request, the jury returned to the courtroom to rewatch the videotaped interview of S.M. The jury then continued its deliberations at 2:15 p.m.

¶ 17 About two hours later, at 4:25 p.m., the trial judge indicated on the record that she had received a note from the jury as follows: "After deliberating for five hours, and despite our best efforts, we are at an impasse." The note was signed by the foreperson. Counsel was present for both parties. The trial judge indicated that this was the second time that she had received information from the jury that they were at an impasse. She explained that the jury had also informed the bailiff that they were at an impasse shortly after viewing the video. The trial judge informed the parties that she had instructed the bailiff to tell the jurors to continue to deliberate.

¶ 18 The...