Record and brief — Reimnitz v. Illinois

UONed

¥

| Oftice - Supreme C

ee Court, U.S,

FILED

JAN 29 i999

8j-

1 4 3 3 ALEXANDER |. STEVAS

CLERK

IN THE SUPREME COURT OF THE UNITED STATE

OCTOBER TERM, 1981

LARRY REIMNITZ,

Petitioner,

STATE OF ILLINOIS,

ee eee ee ee ee ee eee

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE CCURT OF ILLINOIS

Arthur J. C'Dornell

55 East Monroe Street

Suite 4005

Chicago, Illinois 60603

(312) 263-5747

Attorney for Petitioner

QUESTION PRESENTED

When the prosecution in a criminal

case obtains a guilty verdict by lulling

the trial judge into permittinc irrele-

vant and highly prejudicial evidence to

be introduced on an unfulfilled promise

that relevancy would later be shown, and

the accused then serves two years in the

penitentiary before the prosecution's

overreaching is corrected on appeel, may

the prosecution, consistent with the

Double Jeopardy clause of the Fifth

Amemdment and the Due Process Clause of

the Fourteenth Amendment, retry the

accused?

TABLE OF CONTENTS

GueStieons PLeSORCEG. ccccccccccccccccece &

Opinions Below. .ccccccccccccscccccccces 2

JULISAGICCION. ccccccccccccccccccccsccccce 2

Constitutional ProvisSionsS......eeeeee04 3

SCAateMeNnt..ccccccccccccccccscccccccccce 4

ACMUMMORE ce ccccccccccccccccccocescsccesece

CONCLUSION. ccccccccccccccccccccsccccce 1§

Appendix:

Cpinion of the Illinois ........App. 1

Appellate Court on direct appeal,

People v. Reinmetz, 72 I11.App.2d

761, 391 N.E.2d 380 (1979)

Opinion of Trial Court on ......App. 9

remand, granting motion to dismiss

Cpinion of the Illinois ........App. 19

Appellate Court reversing order of

dismissal, People v. Reinmetz,

97 I11.App.3d 946, 423 N.E.2d

934 (1981)

Order, Illinois Supreme Court...App. 27

November 30, 1981, denying

discretionary review

TABLE OF AUTHORITIES

Burks v. United States, 10, 11

437 U.S. 1

People v. Reimnetz, 2

72 I11.App.3d 761, 391 N.E.2d 380

People v. Reimnetz, 2

97 I11.App.3d 946, 423 N.E.2d 934

Potenza v. Kasler, 437 N.Y.S.2d 189 14

Robinson v. State of Alabama, 14

282 So.2d 284

State of Wisconsin v. Copening, 14

303 N.w.2d 821

United States v. Dinitz, eg

424 U.S. 600

United States v. Green, 14

536 F.2d 925

United States v. Jorn, 8

400 U.S. 470

United States v. Kessler, 14

530 F.2d 1246

United States v. Nelson, 14

582 F.2d 1246

United States v. Roberts, 11

640 F.2d 225

United States v. Scott, 437 U.S. 82 10

United States v. Weaver, 14

565 F.2d 129

Wainwright v. Sykes, 433 U.S. 72 12, 13

28 U.S.C. 1257 2

OPINICNS BELOW

The opinion of the Illinois Appellate

Court reversing petitioner's conviction

on direct appeal is reported at 72 Ill.

App.3d 761, 391 N.E.2d 380 (1979), and is

reproduced in the appendix at App. 1 - 8.

The opinion of the Circuit Court of

Cook County granting petitioner's motion

to dismiss is unreported, and appears at

App. 9 - 18.

The opinion of the Illinois Appellate

Court reversing the order of dismissal is

reported at 97 I11.App.3d 946, 423 N.E.2d

934 (1981), and appears at App. 19 - 26.

JURISDICTION

The jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3): Dis-

cretionary review was denied by the

Supreme Court of Illinois on November 30,

1981 (App. 27), and this petition for

writ of certiorari is timely filed there-

after.

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Double Jeo-

pardy Clause of the Fifth Amendment to

the Constitution of the United States

which provides as follows:

- «+ «+ mor shall any person be

subject for the same offense to

be twice put in jeopardy of life

Or limb...

This case also involves the Due Pro-

cess Clause of the Fourteenth Amendment

which provides as follows:

- « nor shall any State deprive

any person of life, liberty, or

property, without due process of

law...

STATEMENT

In 1977, petitioner was tried for the

murder of his wife. 1)

Over the objec-

tions of defense counsel, and repeated

requests for a mistrial, the prosecution

was permitted to introduce evidence that

long after the death of his wife, peti-

tioner had engaged in a homosexual sex

{1] The body of petitioner's wife was

discovered by petitioner and a family

friend, David Spangler, on January 16,

1975 in the rear seat of the family car.

Petitioner was questioned about the off-

ense, and gave a seventy five page excul-

patory scatement. No evidence linking

petitioner to the offense was secured,

and petitioner was released.

In late August of 1975 petitioner

was again aguestioned about the offense.

During this interrogation, petitioner

admitted that earlier that month he had

engaged in 2 homosexual sex act with

Spangler. Interrogation lasted for 12

hours, and succeeded in eliciting from

petitioner a confession that he had

killed his wife. Petitioner's contention

that the confession was involuntary has

never been rebutted by the prosecution.

(App. 7.)

act. [2]

Testimony about the homosexual inci-

dent had been permitted by the trial

judge on the prosecutor's promise that

relevance would be shown. Although rele-

vancy of this testimony was never shown,

the trial judge refused to grant a mis-

trial and the jury found petitioner

guilty of murder. Petitioner's bail was

revoked, and he served two years in the

penitentiary before his conviction was

reversed,

In reversing petitioner's conviction,

the Illinois Appellate Court held that

[2] The prosecution brought this infor-

mation to the attention of the jury in

two ways. First, testimony of the homo-

sexual sex act was elicited during the

direct examination of the two police of-

ficers who had received the confession.

(App. 3.) Second, after the prosecution

had been permitted to cross-examine

petitioner about the details of the homo-

sexual episode, the prosecution was per-

mitted to call Spangler in rebuttal to

testify that the sex act had involved

Oral genital contact. (App. 6.)

aSea

the jury should not have been exposed to

this prejudicial testimony. (App. 4.)

The reviewing court recognized that the

prosecution's use of testimony about the

homosexual sex act had served two impro-

per purposes: first, it had caused the

jury to view petitioner as an evil per-

son. (App. 5.) Second, it had unduly

influenced the jury to discount petition-

er's credibiilty when he testified in his

own behalf, denied the voluntariness of

his confession, and denied any involve-

ment in his wife's death. (App. 6.)

On remand, the trial court found that

the prosecution's use of testimony about

the homosexual incident constituted “pro-

secutorial overreaching."(App. 17) On

this finding, the trial court concluded

that it would be fundamentally unfair and

contrary to the Doukle Jeopardy protec-

tions of the state and federal constitu-

tions to allow a retrial. (App. 18.)

~~

Accordingly, the indictment was dismiss-

ed. (Id.)

On the state's appeal, the Illinois

Appellate Court concluded that the trial

court's finding of prosecutorial over-

reaching was insufficient to bar a re-

trial. In the view of the Appellate

Court, a retrial would be constitution-

ally prohibited only upon proof that the

prosecutor's use of testimony about the

homosexual sex act was "deliberate mis-

conduct . . . calculated to deprive

defendant of a fair trial." (App. 23.)!7!

[3] Petitioner's request for discretion-

ary review in the Illinois Supreme Court

was denied without opinion. (App. 27.)

ete

ARGUMENT

In United States v. Dinitz, 424 U.S.

600 (1976), the Court held that when a

criminal defendant's successful request

for mistrial is precipitated by "“prosecu-

torial or judicial overreaching," a sub-

sequent trial on the same charges is

barred by the Double Jeopady Clause of

the Fifth Amendment. Id. at 607 (quoting

from United States v. Jorn, 400 U.S. 470,

485 (1971)). This case raises substan-

tial questions concerning the scope of

the Dinitz rule.

Petitioner was tried for the murder

of his wife. The prosecution's case was

not strong, but it became much stronger

when, over petitioner's timely objections,

the prosecutor was permitted to introduce

testimony that long after the death of

his wife petitioner had been involved in

a homosexual incident.

Testimony about the homosexual inci-

dent was grossly unfair and buttressed

the prosecution's weak case in two impro-

per ways. First, testimony about the

homosexual incident caused the jury to

view petitioner as an evil person. (App.

5.) Second, it unduly influenced the

jury to discount petitioner's credibility

when he testified in his own bFehalf, dis-

puted the voluntariness of his confess-

ion, and denied any invoivement in his

wife's death. (App. 6.)

The trial judge had allowed the jury

to hear testimony about the homosexual

incident on the prosecutor's representa-

tions that additional evidence would be

introduced and relevance would be shown.

When relevance was not shown, the trial

judge should have granted petitioner's

motion for a mistrial. The trial judge

however, erroneously refused to grant a

mistrial, and the jury found petitioner

guilty.

-9-

The Illinois Appellate Court reversed

petitioner's conviction without dissent.

The state appellate court characterized

the relevancy of the testimony about the

homosexual incident as “extremely tenu-

ous," (App. 7) and held that admission of

testimony about the homosexual act had

deprived petitioner of his “right to be

tried svlely for the murder of his wife."

(App. 6.)

The guestion presented therefore is

whether under the circumstances of this

case, the Double Jeopardy clause of the

Fifth Amendment or the Due Process Clause

of tre Fourteenth Amendment prohibits the

State from trying again to obtain a con-

viction. 4] The state trial court, on

[4] Although in Burks v. United States,

437 U.S. 1 (1978) and United States v.

Scott, 437 U.S. 82 (1978) the Court

stated in general terms that reversal

for trial error does not bar retrial,

"[t]here is some room for doubt whether

these statements were meant to apply to

(footnote continued)

-10-

remand, concluded that it would be funda-

mentally unfair to retry petitioner, and

dismissed the indictment. (App. 18.) On

the state's appeal, the Illinois Appel-

late Court reversed, finding that the

prosecutor's overreaching at the first

trial had been insufficient to bar a re-

trial. (App. 23-24.)

When, as here, the prosecution has

succeeded in obtaining a tainted convic-

tion by unfairly prejudicing a jury with

testimony about a homosexual incident of

negligible relevance, permitting the pro-

secution a chance to try again transforms

(footnote 4 continued)

the situation of bad faith prosecutorial

overreaching." United States v. Roberts,

640 F.2d 225, 2230 (9th Cir. 1981)

(Norris, J., dissenting).

This case would be in the same pos-

ture if, because of the prosecutor's

overreaching, the trial judge had granted

a mistrial. That the prosecutor's over-

reaching was corrected by a2 reviewing

court, rather than by the trial court,

should, as in Burks v. Unitd States, 437

U.S. at 11, “make no difference."

ollie

the first trial from the "main event"

into a “tryout on the road." This is

improper. As the Court emphasized in

Wainwright v. Sykes, 433 U.S. 72 (1977),

[T)he trial of a criminal case in

state court [should be viewed] as

a decisive and portentous event."

A defendant has been accused of a

serious crime, and this is the

time and place set for him to be

tried by a jury of his peers and

found either guilty or not guilty

by that jury. To the greatest ex-

tent possible all issues which

bear on this charge should be

determined in this proceeding:

the accused is in the court-room,

the jury is in the box, the judge

is on the bench, and the witnes-

ses, having been subpoenaed and

duly sworn, await their turn to

testify. Society's resources have

been concentrated at that time and

place in order to decide, within

the limits of human fallibility,

the question of guilt or innocence

of one of its citizens. Any

procedural rule which encourages

the resv’t that those proceedings

be as frie of error as possible is

thoroughly desirable. . . Id. at

90.

Permitting a retrial after prosecu-

torial overreaching has deprived an

accused of a fair trial grants a license

@l2e

to the prosecution to introduce irrele-

vant but prejudicial evidence in the hope

of obtaining a conviction which will be

upheld on appeal because the error is

deemed harmless. Just as the contempo-

raneous objection rule of Wainwright v.

Sykes insures that the first trial will

be the “main event," so too prohibiting a

retrial after prosecutorial overreaching

has denied an accused a fair trial will

insure that the prosecutor will make that

first trial as free of error as possible.

Courts which have considered claims

of an accused that a retrial should not

be permitted because of prosecutorial

overreaching have reached conflicting

results. As did the Illinois Appellate

Court in this case, some courts have held

that that prosecutorial overeaching will

bar a retrial only when the misconduct is

oj 3<

intended to provoke a mistrial. !>! The

Courts of Appeals for the Fifth and

Eighth Circuits have concluded that the

prosecutorial overreaching referred to in

Dinitz is not limited to specific

attempts to provoke a mistrial, but may

also encompass other forms of serious

government misconduct intended in a more

generalized way to prejudice the

defendant. !®!

Certiorari should be granted to

resolve this important question.

[5] See, e.g., United States v. Green,

536 F.2d 925 (4th Cir. 1978); United

States v. Nelson, 582 F.2d 1246 (10th

Cir. 1978); State of Wisconsin Vv.

Copening, 303 N.W.2d 821 (1981); Robinson

v. State of Alabama, 282 So.

(1981); Potenza v. Kasler, 437 N.Y.S.2d

189 (1981).

[6] United States v. Weaver, 565 F.2d

129 (8th Cir. 1977); United States v.

Kessler, 530 F.2d 1246 (5th Cir. .976).

ol4-

CONCLUSION

It is therefore respectfully

submitted that the petition for writ of

certiorari be granted.

January, 1982

Arthur J. C'Donnell

55 East Monroe Street

Suite 4005

Chicago, Illinois 60603

(312) 263-5747

Attorney for Petitioner

~}§-

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

PEOPLE OF THE STATE OF

ILLINOIS,

Appellee,

NO. 78-724

vs.

LARRY REIMNITZ,

mee eee ee eet ee ee

Appellant.

Opinion filed May 30, 1978

Mr. PRESIDING JUSTICE SIMON delivered the

opinion of the court:

On January 16, 1975, Larry Reimnitz

found the strangled body of his wife,

Linda, in their car inside the open ga-

rage of their home. Eight months later,

after a daylong, intensive interrogation

by the police, he confessed to murdering

her. Although at trial he recanted this

confession, a jury convicted Reimnitz of

the murder.

On appeal, Reimnitz maintains thet

the use of his confession at trial was

reversible error. He claims that the

circumstances surrounding his confession

rendered it “per se involuntary," and

that its use at trial violated his con-

stitutional protections. Reimnitz al-

leges that he was induced to visit the

police station by false pretenses, and in

that way he was deprived of the benefits

of his attorney's presence; that prior to

being interrogated, he was not given Mi-

randa warnings; and thet his confession

was obtained by police promises of le-

niency and beneficial treatment.

Reimnitz also claims that he was de-

nied a fair trial by the admission of

evidence that he engaged in a homosexual

act 7-1/2 months after the murder. The

act took place with a close friend of

Reimnitz while they were on vacation to-

gether and the friend was sleeping and

unconsenting. The friend had been visit-

ing Reimnitz in his home at the time

Linda's body was found. The State was

-App. 2-

allowed to elicit testimony regarding

this incident from three witnesses (two

police officers and the friend) despite

repeated objections by Reimnitz's coun-

sel. Besides objecting on the basis of

its prejudicial nature, Reimnitz's

counsel argued that such testimony was

irrelevant because of the length of time

between the murder and this incident.

Although the trial judge recognized the

prejudicial character of the testimony,

he allowed its admission on the stated

assumption that its relevancy would sub-

sequently be established.

Arguing in support of the admissibi-

lity of the evidence, the State maintains

that such testimony revealed Peimnitz's

motive for killing his wife -- his homo-

sexual preference. Under the facts of

this case, we believe that the probative

value of a single act which occurred 7

months after the murder introduced to

establish a homosexual preference at the

time of the murder, let alone a motive

for the murder, is far outweighed by its

inflammatory effect upon the jury. There-

fore, this evidence should not have been

admitted.

Otherwise acceptable evidence should

be excluded if it tends to unduly preju-

dice the jury. As stated in McCormick,

Evidence §185, at 438-9 (2d ed., 1972):

"Relevant evidence, then, is

evidence that in some degree

advances the inguiry, and thus

has probative value, and is

prima facie admissible. But

relevance is not always enough.

There may remain the question,

is its value worth what it

costs? There are several coun-

terbalancing factors which may

move the court to exclude rele-

vant evidence if they outweigh

its probative value. In order

of their importance, they are

these. First, the danger that

the facts offered may unduly

arouse the jury's emotions of

prejudice, hostility or sym-

pathy. Second, the probability

that the proof and the answering

evidence that it provokes may

create a side issue that will

unduly distract the jury from

the main issues."

-App. 4-

We believe that evidence of Reim-

nitz's homosexual acts was objectionable

for both of the reasons advanced in

McCormick.

Illinois courts have often reiterated

the principle that evidence of other

crimes which tends to inflame a jury

should not be admitted. In People v.

Oliver (1977), 50 Ill. App.?d 665, 674,

365 N.E.2d 618, this Court acknowledged

that although "“[e]vidence of another

crime is admissible if it fairly tends .

- - to prove... motive, .. . when the

nature of the other crime is such ag to

highly inflame prejudice against defen-

dant in the minds of the jury, it should

be excluded." Courts must be hesitant to

admit evidence which might “overpersuade

the jurors and cause them to convict the

defendant as an ‘evil person' worthy of

punishment rather than because he is

guilty of the crime charged.” People v.

Butler (1978), 63 Ill. App.3d 132, 139,

379 N.E.2d 703.

There is an additional reason for

rejecting the evidence in question in

this case. The nature of Reimnitz's

defense, which involved recantation of

his confession, depended upon his credi-

bility. Proof that he engaged in a homo-

sexual act for which he was never charg-

ed, may not only have inflamed the jury

to view Reimnitz as an evil person, but

may also have impermissibly influenced

the jury to discount his credibility.

This likelihood is enhanced by the fact

that Reimnitz and his friend contradicted

each other in their testimony regarding

what had actually occurred in the homo-

sexual encounter.

Reimnitz had the right to be tried

solely for the murder of his wife. We

believe the admission of testimony prov-

ing his homosexual act prevented this.

-App. 6-

tvidence of this nature was more likely

to prejudice the jury against Reimnitz

than to establish his guilt. Any sugges-

tion that the incident in August 1975

proved a motive for the murder which

occurred in January of that year is ex-

tremely tenuous.

Because reference to Reimnitz's homo-

sexual act should not have been admitted,

we reverse his conviction and remand this

cause for a new trial. In so doing, we

refrain from passing upon whether Reim-

nitz's confession was voluntary and

therefore properly admitted at this

trial. Further proceedings in this case

may bring forth additional evidence bear-

ing on this issue. For example, the

State did not respond to Reimnitz's tes-

timony that the deputy sheriffs who

received his confession made implied pro-

mises of benefits and leniency to induce

him to confess. We therefore believe

that consideration of the admissibility

of the confession would be premature at

this time. The propriety of admitting

the confession should be left open to be

considered with such additional evidence

as the prosecutor and the defendant may

present on remand.

Reversed and remanded for a new

trial.

McGILLICUDDY and RIZZI, JJ., concur.

-App. 8-

IN THE CIRCUIT COURT OF COCK COUNTY

CRIMINAL DIVISION

PEOPLE OF THE STATE OF

ILLINOIS,

)

)

)

Plaintiff, )

vs. NO. 75-6384

LARRY REIMNITZ,

Defendant.

Extract of Proceedings, March 3, 1980,

before the Honorable William Cousins, Jr.

* * * [21] THE COURT: The court has con-

sidered the motions, which is for a dis-

missal of the indictment on grounds of

former jeopardy, and the court has read

the authorities cited in the motion. The

court has read the opinion written by

Justice Simon in reversing and remanding

this case, and the court has now consi-

dered the arguments of counsel.

The matter of double jeopardy that

arises by virtue of the 5th amendment and

the 14th amendment of the United States

Constitution, this State also has provi-

Sions for dismissal of indictments or

EE @@w@w065oc5o”

informations where double jeopardy is

involved. The law is not so difficult to

come by as is the application of the law

to the facts.

First, the provision in the consti-

tution is that no person will be twice

placed in jeopardy as to his life or limb

for the same charge relates to jeopardy,

and a person being jeopardized twice does

not relate to being punished twice, and

this notion arises, the courts say, out

of an Anglo American condition, but the

court will [22] say that that notion

arises out of a sense of fundamental

fairness in a Democracy. The law as in

the Ball case has always been the law and

is now the law. That case relates to

what is usually and customarily a case --

where a case is reversed and remanded

because of errors during the trial, or in

that case there was something wrong with

the indictment or information at the out-

set.

-App. 10-

The courts have stated in the cases

cited the general proposition that gen-

erally a person may be retried where the

case is reversed and remanded because of

errors committed during the course of a

trial. There are some particular situa-

tions which the courts have dealt with

and commented on whether or not the de-

fendant has made a2 motion for mistrial or

the State has made a motion for mistrial

or the court has, on its own motion, ter-

minated the proceedings, and generally

where a defendant makes a motion for mis-

trial and it is granted, then a new trial

does not contravene the double jeopardy

provisions. However, whether or not a

defendant makes a motion for a new trial

or the State makes the motion for a new

trial is not controlling, it depends on

the facts and circumstances of the parti-

cular case. The courts have considered

the matter of double [23]jeopardy where

-App. ll-

the prosecutorial conduct during the

course of the trial has been considered

to have resulted in the adducing of tes-

timony which prejudiced the defendant's

rights, and the defendant, in the motion

has set forth a number of cases which

have recited that double jeopardy can be

invoked by a new trial and to bring about

the dismissal of a charge where there had

been prosecutorial overreaching. A num-

ber of cases cited have that, and those

cases do not include the Jorn case and

the Tateo case, which discuss the matter

of double jeopardy at length. But it is

recited in some cases that double jeopar-

dy may bar reprosecution where the prose-

cutors have overreached.

And then the defendant has cited

other case, inclucing Carsey v. United

States, where the court found that double

jeopardy applied where the court granted

the State's motion for mistrial after the

-App. 12-

defense counsel had mentioned that there

had been a previous mistrial.

The case of United States v. Kessler,

which has been emphasized by the defense

and has been referred to by the State in

argument, the defense emphasized this

case in its motion, and there the court,

in a case which involves some explosives

and the use of testimony, hearsay [24]of

some persons who were supposedly co-

conspirators, the court found that that

evidence deprived the defendant of a fair

trial and that the State shouldn't have a

second opportunity to have the defendant

found guilty, and the petitioner here now

has also cited the case of the United

States v. Martin, which the State has

referred to, a lawyer was on trial in a

tax case and there had been some discus-

sion of a motion in limine made to bar

the use of the Grand Jury transcript and

other testimony relating to the source of

the loans, and where the State had indi-

cated it would not use such, but then

proceeded to read from the transcript.

The court here indicated in its opinion

and finding that double jeopardy did ap-

ply, that there was intentional miscon-

duct.

And then there is the case of United

States v. Broderick, where the prosecutor

was admonished about the use of certain

testimony, but the prosecutor then pro-

ceeded to use that testimony, and the

prosecutor, when the issue was raised

relative to the use of the testimony,

indicated that the prosecutor had looked

up the law and it was the prosecutor's

view that what had been adduced quali-

fied, even though it was hearsay, as

qualified hearsay. Now, the trial court,

when that [25]was brought up, didn't say

no too the prosecutor's theory; it would

therefore appear that this was not done

-App. 14-

with a malicious motive because of mis-

apprehension of what the law was, but the

determination as to whether there is dou-

ble jeopardy turns upon whether or not

what has been done is grossly negligent,

is such that it would -- if it had not

been done, would the defendant have had

any different posture during the course

of the trial.

Another way of putting it is because

it was done it rather foreclosed the de-

fendant's prospects for having a fair

trial.

In the case at bar, in this case, the

defendant was tried, and during the

course of the trial, the manner of the

criminal act, which was brought out dur-

ing the course of the trial, was brought

to the attention of the court by way of a

motion in limine, and then when the State

Started to adduce the evidence, the

State, when the matter was raised again,

-App. 15-

indicated that it would be linked up.

The matter related to a homosexual act

between the defenddant and a person by

the name of Spangler.

The court, having had the matter

brought to its attention before, and

having indicated that the evidence did

not appear to be admissible without some-

thing more, and then later having had the

evidence admitted, [26]was left without a

way to remedy the situation, and in the

Opinion of the Appellate Court, the

Appellate Court has found or decided that

that evidence was improper evidence.

It would appear that the State was

proceeding on the theory that this act

some seven eonths after this incident

established motive and was admissible,

but the State was in error and the nature

of the testimony was such that the Appel-

late Court has written that a jury would

be calculated to be prejudiced.

This Court does not generally find

questions to be close, as when the court

has considered them and reached a deci-

sion, any closeness that may have existed

has been resolved. In this case, though,

the Court will say that it was a close

question. However, having considered the

cases, having considered the arguments of

counsel and having considered the reasons

for the double jeopardy clause, in par-

ticular the interpretations of the court

that the double jeopardy clause is appli-

cable where there is prosecutorial over-

reaching, and having read the disserta-

tions in the various cases relative to

this, and in particular in the case of

United States v. Martin, and having con-

sidered the opinion in the Kessler case,

it is the decision of this Court that

there [27]was prosecutorial overreaching

in this case, and that is indicated in

the Jorn and Tateo cases, and that is

also indicated in the State of Illinois

cases, People v. Hanley and People v.

Hill, and that it would be fundamentally

unfair and a deprivation of the defen-

dant's constitutional rights that he not

be placed in jeopardy twice for the same

crime; and accordingly, without address-

ing itself to the matter of the confes-

sion which this Court considers to be

unnecessary at this time, the court finds

the motion based on double jeopardy to be

well founded, and the charge will be dis-

missed.

x ke

-App. 18-

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

PEOPLE OF THE STATE OF

ILLINOIS,

Appellant,

vs. No. 80-856

LARRY REIMNITZ,

eee ee eee eee ee ee

Appellee.

Opinion filed June 17, 1981

MR. JUSTICE McNAMARA delivered the opin-

ion to the Court:

Defendant, Larry R. Reimnitz, was

charged with murder of his wife. In a

trial presided over by Judge Robert J.

Collins a jury convicted defendant of

that charge and the court sentenced him

to a term of 50 to 100 years. On appeal

this Court reversed the conviction and

remanded the cause of a new trial on the

grounds that improper evidence prejudical

to defendant had been received. (People

v. Reimnitz, (1979), 72 Ill. App.3d 761,

391 N.E.2d 380.) On remand Judge William

Cousins, Jr., granted defendant's motion

to dismiss the indictment on the grounds

that retrial of defendant pursuant to

this Court's mandate would violate his

right against double jeopardy. The State

appeals from the order dismissing the in-

dictment.

The facts regarding the crime and

conviction are set forth in the earlier

opinion of this Court.

"On January 16, 1975, Larry

Reimnitz found the strangled body

of his wife, Linda, in their car

inside the open garage of their

home. Eight months later, after

a day-long, intensive interroga-

tion by the police, he confessed

to murdering her. Although at

trial he recanted this confes-

sion, a jury convicted Reimnitz

of the murder."

At trial, over defendant's objec-

tions, evidence was presented that, 7-1/2

months after the murder, defendant had

engaged in a homosexual act with an un-

consenting, close friend. The State

-App. 20-

maintained that the evidence of defen-

dant's homosexual preference disclosed

his motive for killing his wife. This

Court held that the probative value of

the testimony concerning the homosexual

act was far outweighed by its inflamma-

tory effect upon the jury. On remand

Judge Cousins held that the introduction

of the foregoing evidence found to be

improper by this Court constituted "pro-

secutorial overreaching" and therefore

prevented a second trial.

When a conviction is set aside for

grounds other than sufficiency of the

evidence, remand and a new trial are

proper and are not a violation of the

concept of double jeopardy. (Price v.

Georgia, (1970), 398 U.S. 323.) This is

so even where the matter upon which the

reversal of conviction is based involves

violation of defendant's constitutional

rights. (Eubank v. Louisiana, (1958),

-App. 21-

356 U.S. 548.) Where, however, a mis-

trial has been declared due to deliberate

misconduct of the prosecutor calculated

to deprive defendant of his right to a

fair trial, the case cannot be tried a

second time. (United States v. Dinitz,

(1976), 242 U.S. 600; People v. Hill,

(1975), 34 I1l. App.3d 193, 339 N.E.2d

405.) Retrial has been held improper in

such cases because to hold otherwise

would allow a prosecutor by improper con-

duct to abort or terminate a trial so as

to have another chance to secure a con-

viction against the defendant. (United

States v. Jorn, (1971), 400 U.S. 470;

People v. Pendleton, (1979), 75 Ill.

App.3d 580, 394 N.E.2d 496.) When a

mistrial is made necessary due to judi-

cial or prosecutorial overreaching, a

retrial is manifestly unjust and violates

the double jeopardy principle. United

States v. Dinitz; United States v.

-App. 22-

Martin, (8th Cir. 1977), 561 F.2d 135;

United States v. Kessler, (5th Cir.

1976), 530 F.2d 1246.

Defendant here maintains that the

absence of a declaration of a mistrial is

unimportant. He urges that the signifi-

cant factor in applying the double jeo-

pardy concept is the prosecutorial over-

reaching involved in securing the ori-

ginal conviction. We find it unnecessary

to reach tne issue whether the declara-

tion of a mistrial is essential to the

application of the double jeopardy prin-

ciple so as to prevent retrial. We sim-

ply find that there is no showing of de-

liberate misconduct on the part of the

prosecutor calculated to deprive defen-

dant of a fair trial. The State offered

testimony that defendant engaged in a

homosexual act. The State's purpose in

adducing such evidence was to offer a

motive for the murder of his wife. This

Court found that the probative value of

such testimony was far outweighed by its

inflammatory effect on the jury, and that

its introduction into evidence consti-

tuted reversible error. In so holding,

this Court did not even suggest that the

prosecutor had engaged in calculated mis-

conduct. What had occurred was that

evidence was incorrectly received into

evidence. Upon remand, retrial was com-

pletely proper.

We find no merit in defendant's addi-

tional argument, not reached by Judge

Cousins, that a statement contained in

this Court's earlier opinion regarding

defendant's confession is a separate and

distinct double jeopardy ground for not

permitting retrial. In its opinion, this

Court stated at p. 764:

"Because reference to Reimnitz's

homosexual act should not have

been admitted, we reverse his

conviction and remand this cause

for a new trial. In do doing, we

refrain from passing upon whether

“App. 24-

Reimnitz's confession was volun-

tary and therefore properly ad-

mitted at his trial. Further

proceedings in this case may

bring forth additional evidence

bearing on this issue. For ex-

ample, the State did not respond

to Reimnitz's testimony that the

deputy sheriffs who received his

confession made implied promises

of benefits and leniency to in-

duce him to confess. We there-

fore believe that consideration

of the admissibility of the con-

fession would be premature at

this time. The propriety of ad-

mitting the confession should be

left open to be considered with

such additional evidence as the

prosecutor and the defendant may

present on remand."

Despite this Court's refusal to con-

sider whether defendant's confession was

voluntary and thus properly received in

evidence, defendant maintains that the

foregoing dicta amounts to a finding that

the confession was improperly admitted.

We think not, and we also believe that

this Court's unwillingness to consider

the voluntariness of the confession has

no effect upon the State's right to retry

defendant following reversal and remand.

-App. 25-

Along with the interest of a defendant in

receiving a fair trial is the correspon-

ding interest of the People in securing

the convictions of those guilty of crimi-

nal offenses. United States v. Tateo,

(1964), 377 U.S. 463.

For the foregoing reasons, the judg-

ment of the Circuit Court of Cook County

dismissing the indictment is reversed and

the cause is remanded for further pro-

ceedings.

Reversed and remanded.

RIZZI, P.J., and WHITE, J., concur.

-App. 26-

2437

November 30, 1981

” O'Donnell & Murphy

Attorneys at Law

SS E. Monroe St., S# 4005

Chicago, IL 60603

No. 55437 = People State of Illinois, respondent, vs. Larry Reim-

nitz, petitioner. Leave to appeal, Appellate Court,

First District.

You are hereby notified that tne Supreme Court today

Genied the petition for leave to appeal in the above en-

titled cause. Mr. Justice Simon took no part.

Very truly yours, .

Cel (,, Weeds

Clerk of the Supreme Court

-App. 27-

- uomisoddg

Office - Supreme Court, U.S

FILED

YAR: = & 1992

No. 81-1433

Jn the Supreme Court of the G

OCTOBER TERM, 1981

Larry REIMNITZ,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition for Writ of Certiorari to the Appellate

Court for the First Judicial District, Illinois.

BRIEF FOR RESPONDENT

IN OPPOSITION

Tyrone C. FAHNER

Attorney General

State of Illinois

MIcHAEL B. WEINSTEIN

Jack DONATELLI

Assistant Attorney General

Assistant Attorney General

188 West Randolph Street 188 West Randolph Street

Suite 2200 Suite 2200

Chicago, Illinois 60601 Chicago, Illinois 60601

(312) 793-2570 (312) 793-2570

Of Counsel. Attorneys for the Respondent.

Printed by the Authority of the State of Illinois — 3-4-82

QUESTION PRESENTED

Whether the petitioner’s claim that the double jeopardy

clause bars retrial after a conviction is reversed because of a

trial error is worthy of review by this court.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........

Be

SE 6b kkc cscs cveseccdcusouswen

PEEEEEDEEEE coco esescvessescncceeeeseen ,

STATEMENT OF THECASE ..................

REASON FOR DENYING THE WRIT

THE PETITIONER'S CLAIM THAT THE

DOUBLE JEOPARDY CLAUSE BARS RETRIAL

AFTER A CONVICTION IS REVERSED

BECAUSE OF A TRIAL ERROR IS NOT

WORTHY OF REVIEW BY THIS COURT

SPEED covevesccetsskoncesesaceesetb es

TABLE OF CASES

CASES

Burks v. United States, 437 U.S. 14(1978)......

Lloyd A. Fry Roofing Co. v. Wood,

Re PTTTTTTTETT ETT

People v. Reimnitz, 72 Ill. App. 3d 761, 391

N.E.2d $80 (Ist Dist. 1979).............00.

People v. Reimnitz, 97 Ill. App. 3d 946,

423 N.E. 2d 934 (Ist Dist. 1981)............

United States v. Dinitz, 424 U.S. 600 (1967) ....

United States v. Tateo, 377 U.S. 463 (1964).....

United States v. Kessler, 530 F.2d 1246

(5th Cir. 1976)(distinguished) .............

United States v. Weaver, 565 F.2d 129

(8th Cir. 1977)(distinguished) .............

No. 81-1433

In the Supreme Court of the United States

OCTOBER TERM, 1981

Larry REIMNITZ,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS, ~

Respondent.

On Petition for Writ of Certiorari to the Appellate

Court for the First Judicial District, Illinois.

BRIEF FOR RESPONDENT

IN OPPOSITION

The respondent asks this court to deny the petition for Writ

of Certiorari to review the judgment of the Appellate Court of

Illinois insofar as the petitioner's issue does not raise a ques-

tion of constitutional proportion that is worthy of review.

OPINIONS BELOW

The relevant opinions below have been included in the

petitioner's appendix to this petition and are therefore not

contained in this Brief in Opposition.

The opinions include:

People v. Retmnitz, 72 Ill. App. 3d 761, 391 N.E.2d 380

(1st Dist. 1979), where the petitioner's conviction was reversed

on direct appeal and the cause remanded for a new trial;

The relevant transcribed portions of the hearing on the

petitioner’s motion to dismiss the indictment, granted on

grounds of double jeopardy;

People v. Reimnitz, 97 Ill. App. 3d 946, 423 N.E.2d 934

(1st Dist. 1981) where the dismissal was reversed and the cause

remanded for further proceedings.

The denial of the petition for leave to appeal to the Illinois

Supreme Court.

JURISDICTION

This court’s jurisdiction is invoked under 28 U.S.C.

1257(3).

STATEMENT OF THE CASE

The defendant was convicted in the Circuit Court, Cook

County, Illinois, of the murder of his wife. On January ‘6,

1975, he found the strangled body of his wife, Linda, in their

car inside the open garage of their home. Eight months later,

after a day-long, intensive interrogation by the police, he con-

fessed to murdering her. Although at trial he recanted this

confession, a jury convicted him of the murder.

On May 30, 1979, the Illinois Appellate Court, First

District, held that the trial court erred in admitting evidence

that the defendant had engaged in a homosexual act seven

and one-half months after the murder. The probative value

of such evidence to establish homosexual preference as the

defendant's motive for the murder was far outweighed by its

inflammatory effect upon the jury. It reversed and remanded

for a new trial.

On remand, the Circuit Court, Cook County, Illinois,

granted the defendant's motion to dismiss the indictment on

grounds that retrial of the defendant would violate the defen-

dant’s double jeopardy rights.

The State appealed and, for reasons set forth in the argu-

ment of this brief, the appellate court reversed and re-

manded, June 17, 1981.

The Illinois Supreme Court denied leave to appeal,

November 30, 1981.

REASON FOR DENYING THE WRIT

THE PETITIONER’S CLAIM THAT THE DOU-

BLE JEOPARDY CLAUSE BARS RETRIAL

AFTER A CONVICTION IS REVERSED BE-

CAUSE OF A TRIAL ERROR IS NOT WORTHY

OF REVIEW BY THIS COURT.

The petitioner is asking this court to hold that he cannot be

retried after his murder conviction was reversed because of a

trial error. He bases his claim on the double jeopardy clause.

This claim is not deserving of this court's time. The law is

already well-settled that the double jeopardy clause does not

preclude the government from retrying a defendant whose

conviction is set aside because of an error in the proceedings.

Burks v. United States, 437 U.S. 14, 98 S. Ct. 2141, 2149, 57

L.E.d. 2d 1 (1978); United States v. Tateo, 377 U.S. 463, 465,

84S. Ct. 1587, 1589, 12 L.E.d. 2d 448 (1964).

The error in this case is only a trial error. It occurred when

the trial court admitted evidence that had an inflammatory

effect on the jury far outweighing its probative value. The

evidence consisted of testimony that the petitioner had en-

gaged in a homosexual act with an unconsenting close friend

7% months after the murder.

The petitioner, however, seeks to invoke a possible excep-

tion that a retrial violates the double jeopardy principle when

made necessary by prosecutorial overreaching. United States

v. Dinitz, 424 U.S. 600, 96 S. Ct. 1075, 47 L.Ed.2d 267

(1967). And yet the Illinois Appellate Court specifically found

that “there is no showing on the part of the prosecutor

calculated to deprive defendant of a fair trial.” People v.

Reimnitz, 97 Ill. App. 3d 946, 423 N.E.2d 934, 936 (1st Dist.

1981). The State’s purpose in adducing such evidence was to

offer a motive for the murder of his wife. But because of its

outweighing inflammatory effect on the jury it was incorrectly

received into evidence. Retrial on that basis was completely

proper. Retmnitz, 423 N.E.2d at 936.

The petitioner's claim would require this court to reject the

state court's finding of fact and substitute its own judgment as

to the facts. But unless the petitioner shows that the findings

are not supported in fact, the findings of the state court will

not be disturbed. Lloyd A. Fry Roofing Co. v. Wood, 344

U.S. 157, 160 (1952). Since the petitioner has made no such

showing, this court must accept the state court finding and re-

ject the petitioner's claim.

In closing, the respondent makes two final points. First,

this court in Dinitz sought to protect a defendant from retrial

where a mistrial had been provoked by the government's bad

faith conduct. The respondent points out that in this case

there was no declaration of mistrial. Rather, the conviction

was reversed on appeal. This factor makes the Dznitz rule in-

applicable. However, even if the Dinitz rule were applicable,

relief must be denied for the reasons stated above.

Second, the petitioner has referred to United States v.

Weaver, 565 F.2d 129 (8th Cir. 1977) and United States v.

Kessler, 530 F.2d 1246 (5th Cir. 1976). He claims that in these

cases the circuit courts have concluded that the prosecutorial

overreaching referred to in Dénitz is not limited to specific at-

tempts to provoke a mistrial, but may encompass other forms

of government misconduct intended in a more generalized

way to prejudice ihe defendant. However, the petitioner has

misread these cases. They do not purport to expand Dznitz.

As far as the applicable law is concerned, the circuit courts

are in agreement with each other and with this court. The

petitioner's claim presents nothing exceptional or unsettled.

It does not deserve the attention of this court.

CONCLUSION

For these reasons, the People of The State of Illinois ask this

court to deny the petition for writ of certiorari.

Respectfully submitted,

TYRONE C. FAHNER

Attorney General

State of Illinois

MICHAEL B. WEINSTEIN

Assistant Attorney General

188 West Randolph Street

Suite 2200

Chicago, Illinois 60601

(312) 793-2570

Attorneys for the Respondent.

JACK DONATELLI

Assistant Attorney General

188 West Randolph Street

Suite 2200

Chicago, Illinois 60601

(312) 793-2570

Of Counsel.