People v. Phillips

Decision Date23 May 1974
Docket NumberNo. 60678,60678
Citation29 Ill.App.3d 529,331 N.E.2d 163
PartiesPEOPLE of the State of Illinois, Plaintiff-Appellant, v. Ben PHILLIPS, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Bernard Carey, State's Atty., Chicago, for plaintiff-appellant; Laurence J. Bolon and John F. Brennan, Chicago, of counsel.

Dominic P. Gentile, Barrington and Chicago, for defendant-appellee.

SULLIVAN, Justice.

The State appeals from an order sustaining defendant's motion to dismiss, contending a mistrial had been properly ordered and that it was error to bar a second trial.

Defendant was charged with the offense of contributing to the sexual delinquency of a child. (Ill.Rev.Stat.1973, ch. 38, par. 11--5(a)(3).) The complaint was signed by Charles Payne, father of the alleged victim, Leslie Payne. It appears that because of technical problems with the recording equipment, the official transcript of proceedings on January 31, 1974 is incomplete. We note from the record here, however, that after a motion to continue was denied a bench trial commenced and the witnesses were sworn, following which the court entered the rule of exclusion but allowed Charles Payne to remain in the courtroom. The State then called Leslie Payne as its first witness. She was sworn and, as she began her testimony, defense counsel asked for a competency hearing. The court then asked her several question, from which it was determined that she was 15 years old and in second year high school. The transcript ends after these preliminary questions by the court, allegedly the result of a tape malfunction. It does appear, however, that later on January 31, 1974, over defendant's objection, the trial judge recused himself and declared a mistrial.

The case was next called for trial on April 4, 1974, before another judge, at which time defendant moved for dismissal on the ground that he had previously been placed on jeopardy on the charge in question. It was then determined that the tape of the January 31 proceedings was, in fact, incomplete and the parties agreed to attempt a reconstruction of the record thereof. Thereafter, the State filed, apparently without objection, a bystander's record which consisted of a statement by the first trial judge as to the proceedings on January 31, 1974. The following pertinent portions of this statement concerned matters occurring in the morning of January 31, 1974, before the trial commenced:

'That in the course of the hearing on the question of another continuance for the People, a number of persons who were gathered around the bench made various remarks to the bench, including the arresting officers. These people, especially the said Charles C. Payne, and arresting officers, expressed displeasure with the Court for insisting on a thorough hearing before deciding the question of another continuance.

'(O)n many occasions throughout said hearing, Charles Payne made a number of remarks which were inaudible to the court but which appeared to elicit approving smiles from those spectators around him.

'That on one occasion the said Charles Payne, turning to the gentleman standing next to him before the bench, said 'Is he fixed', making direct reference to and turning his head in the direction of the Court.

'That on still another occasion during the hearing, the said Charles Payne, the complaining witness, did say, again alluding to the Court, 'He ought to disqualify himself', his facial expression reflecting utter disrespect and contempt.

'That on many other occasions the said Charles Payne, the complaining witness, made other belittling and degrading remarks and jesticulations, i.e., while pointing his finger at the Court, said (in answer to a question put to him by the petitioner), 'Are you calling me a liar, Judge'?

'That your petitioner represents that these remarks, and more, were heard and understood by your petitioner and that he, in the interest of justice, chose to ignore same, denied the State's motion for another continuance and ordered the case held for trial.'

Other aspects of the statement were concerned with what had occurred in the afternoon, after the trial commenced and the witnesses had been sworn, as follows:

'That the attorney for the defendant moved the Court to conduct a competency hearing as to the State's first witness, Leslie Payne, the daughter of the complaining witness.

'That while the Court was conducting the competency hearing the aforesaid Charles Payne did again make insulting outcrys, to wit: 'Why are you asking her those dumb questions, Judge? She's not on trial here. There is the guilty man', or words to that effect.

'Upon resumption of the competency hearing, Charles Payne did again interrupt the proceedings and made derogatory remarks concerning justice or lack of it in these courts and 'can't get a fair trial in this court'.

'Whereupon the Court imposed upon the State's Attorney Stanley Wilcox to request that his witness remain silent and upon his failure to so act, the Court admonished the complaining witness to the effect that it would not tolerate any further interruptions by him.

'Your petitioner further represents that the presence of the aforesaid Charles Payne, together with some ten friends and relations of the complaining witness, sitting and standing in the chambers, appeared to the Court to encourage the said Charles Payne to 'play the gallery' thereby attempting to make a complete mockery of this Court.

'Finally, your petitioner, upon due deliberation, and considering the remarks made by the complaining witness Charles Payne in the a.m., together with the utterances and interruptions during the actual trial in the p.m., did in the interest of fair and impartial justice, recuse itself and declare a mistrial.'

Judge Breen, presiding at the second trial, having the benefit of the incomplete transcript, the bystander's record, and after having heard arguments, granted defendant's motion to dismiss, and the State appeals that ruling.

OPINION

The fifth amendment to the Federal constitution provides that '* * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *.' 1 Article 1, Section 10 of the Illinois constitution of 1970, S.H.A., states that 'No person shall * * * be twice put in jeopardy for the same offense.' The Illinois Criminal Code implements this protection as follows:

'A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:

(3) Was terminated improperly * * * in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts * * *.' (Ill.Rev.Stat.1973, ch. 38, par. 3--4(a).)

In order to interpret these constitutional rights and their codification in our Criminal Code, we turn to the United States Supreme Court's decisions in similar cases. That court has recognized that the Double Jeopardy Clause is designed to protect persons accused of crimes from being forced to go through a trial more than once. (United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543.) However, a mistrial is not a bar to a second prosecution when manifest necessity or the interests of public justice require it. (United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165.) As the court stated in Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, if the Double Jeopardy Clause barred a retrial in every case where a mistrial had to be declared, '* * * the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again.'

Thus, we must determine whether the mistrial here was manifestly necessary or required in the interests of public justice. Initially, we note that the trial court is to exercise sound discretion in deciding whether a mistrial ought to be declared (Perez, supra), concerning which it was stated in Perez, at page 580: '* * * the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes,' and in Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6...

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    ...of Raymond P., supra, 86 Cal.App.3d at 803, 150 Cal.Rptr. 537; Ostane v. Hickey, 385 So.2d 110 (Fla.App.1980); People v. Phillips, 29 Ill.App.3d 529, 331 N.E.2d 163 (1974); Jones v. Commonwealth, 379 Mass. 607, 400 N.E.2d 242, 248 (1980); Commonwealth v. Ferguson, supra, 446 Pa. at 29, 285 ......
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    ...470, 91 S.Ct. 547, 27 L.Ed.2d 543) to protect defendants from being forced to go through a trial more than once (People v. Phillips (1975), 29 Ill.App.3d 529, 331 N.E.2d 163). The first issue in any double jeopardy analysis is the determination of whether jeopardy had attached at the time t......
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