Petition for Writ of Certiorari — Lovinger v. Illinois

Supreme Court brief1985

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

JEFFREY LOVINGER, Petitioner

PEOPLE OF THE STATE OF ILLINOIS,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

MARY ROBINSON

Robinson & Skelnik

Attorneys at Law

51 Fountain Square Plaza

Suite 5

Elgin, Illinois 60120

(312) 742-5220

Robert B. Will, Jr.

Will & Briscoe

Pioneer Building - Suite 300

33 North County Street

Waukegan, Illinois 60085

Counsel for Petitioner

August 2, 1985

QUESTION PRESENTED FOR REVIEW

Whether the Illinois Appellate

Court's determination that a mistrial

declared sua sponte by the trial

judge can be treated on appeal asa

mistrial declared on motion of the

defendant because the defendant had, at

a prior point in the trial, made a

mistrial motion on different and

factually unrelated grounds, is contrary

to the fundamental principles of the

Fifth Amendment's prohibition against

double jeopardy in that it allows a

defendant to be subjected to a second

trial even though there was no manifest

necessity for a mistrial and even though

the defendant had no input on _ the

judge's decision to abort the first

trial?

PAGE 1

TABLE OF CONTENTS

Opinion Ce ew eh eee eae eee

ee SF ck keh ee Ree ee ee eee

Pee Oe BMCMOTECELER cc cecccecceceses

Constitutional Provisions Involved. 7

Statement of the Case....cccccccvees 9

Reasons for Granting the Writ...... -

I. Certiorari should issue _ to

review the novel holding of the Illinois

Appellate Court treating a mistrial

declared sua sponte by the trial

judge as one made on Petitioner's motion

because of a prior unsuccessful mistrial

motion made by Petitioner on different

grounds. By authorizing retrial despite

the fact that Petitioner was afforded

absolutely no input on the decision to

abort the original mistrial and despite

the fact that he entered an objection to

the mistrial after it was announced, the

Illinois Appellate Court's holding

defies the fundamental premise of the

double jeopardy clause guaranteeing to a

criminal defendant the right to proceed

to verdict before the original trier of

fact unless prosecutorial or judicial

error manifestly necessitates a

mistrial.

PAGE 2

COMC LUOLOGO sc cc 06 6060080468668 oes

Appendices

Opinion of the Illinois

Appellate Court.ccccccsecscess Aml

Opinion of the Illinois

Supreme Court Denying

Petition for Leave to Appeal.. B-l

PAGE 3

ee 2 Sa a __

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

JEFFREY LOVINGER,

Petitioner

PEOPLE OF THE STATE OF ILLINOIS,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

The petitioner, Jeffrey Lovinger,

prays that a writ of certiorari issue to

review the judgment and opinion of the

Illinois Appellate Court affirming the

denial of his motion to bar retrial

after his original bench trial was

aborted on motion of the court.

PAGE 4

i een, See Sale

ae eS er es ne a

OPINION BELOW

The opinion of the Illinois

Appellate Court was filed on January 17,

1985. People Vv. Lovinger, 130

T11.App.3d 105, 473 N.E.2d 980

(2nd Dist., 1985). A copy of the

opinion is attached hereto as Appendix

A. A Petition for Leave to Appeal to

the Illinois Supreme Court was denied on

June 4, 1985. A copy of the order

denying the Petition appears in Appendix

JURISDICTION

This petition is being filed within

sixty days of the June 4, 1985 order of

the Illinois Supreme Court denying the

Petition for Leave to Appeal the holding

of the Appellate Court.

The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. 1257. See

Harris V. Washington, 404 U.S. 55

(1971).

PAGE 5

CASES

Curry

Ve.

TABLE OF AUTHORITIES

Superior Court,

S70 F.

(Celif.,

345

Downum v. United States,

372 U.

Illinois

SB Ores 30,

v. Sommerville,

410 U.

Kamen

Vv.

S56 (1973) covccvovece 30

Gray,

42U Ff.

cert.

340 U.

160 (Kan., 1950)

denied,

SS Se 39

Oregon v. Kennedy,

456 U.

ee CaS ee eneeeean 30,47

People v. Bowman

194 N.W.2d 36 |

Nl aie gk 39,42

(Mich.

People v. Montlake,

ke 2 SS SS etl eee 38

People v. Phillips,

29 I1l1l.App.3d 529,

331 N.E.2d 163

i) Ses eee ree 50

Sedgwick v. Superior Court,

984 F.2d 1044

(D.C. Cir., 1978);

cert.

denied 139 U.S.

errr ree rT 39

DACR LG

State v. Wolak,

165 A.2d 174 (N.J. 1960)

cert. denied 365

UeS. S22 (1961) nc cccseccccescves

Torres v. State,

614 S.W.2d 436

es Sig) Pe) Se Perera es eee

United States v. Dinitz,

S25 Uses Ge LIPIO) aeevecsecess

United States v. Jorn,

BUM Gems SFO LESTE) seccossceses

United States v. Perez,

> weest 579, GL ~BG €CiSZ4) .--..

United States v. Sanders,

991 F.2d 1293 (9th Cir., 1979)..

CONSTITUTIONAL PROVISIONS

United States Constitution,

ee |S a a er

United States Constitution,

BMORERORE ALY ses avseceec beak

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution, Amendment V:

No person shall be held

answer for a capital,

otherwise infamous crime,

unless on a presentment

Jury,

indictment of a Grand

except in cases arising in the

land or naval _ (forces,

or in

the Militia, when in actual

PAGE 7

service in time of War or

public danger; nor_ shall any

person be subject for the same

offense to be twice put in

jeopardy of life or limb; nor

shall be compelled in any

criminal case to be a witness

against himself, nor be

deprived of life, liberty, or

property, without due process

of law; nor shall private

property be taken for public

use, without just

compensation,

Constitution, Amendment XIV,

All persons born or

naturalized in the United

States, and -subject to. the

jurisdiction thereof, are

Citizens of the United States

and of the State wherein they

reside. No State shall make

or enforce any law which shall

abridge the privileges or

immunities of Citizens of the

United States; nor_ shall any

State deprive any person of

life, liberty, or property,

without due process of _ law;

nor deny to any person within

its jurisdiction the equal

protection of the laws.

PAGE 8

Sec.

—e

STATEMENT OF THE CASE

Jeffrey Lovinger was charged in

three counts with the offense of

unlawful delivery of cocaine and

cannabis. (C. 7-8) At the bench trial

on those charges, three agents testified

about two transactions during which

Lovinger allegedly sold four packages of

white powder and one bag of a green

leafy substance to one of the agents.

(R. 14-60, 73-92, 182-189, 212-223)

Substantial evidence was adduced

concerning the processing of the various

packages and the chain of custody on the

exhibits from the time of the

transactions until the packages’ were

delivered to the crime lab for testing

and thereafter. During testimony on

those matters, one of the agents

acknowledged that pursuant to the

court's order directing that samples

PAGE 9

from the exhibits be delivered to an

independent chemist for testing, she had

removed a sample from only one of the

three packets comprising People's

Exhibit No. 2. (R. 60-62) The judge

then recessed the proceedings’ so that

the defense chemist could test samples

from all three packets. (R. 64)

When proceedings resumed _ several

months thereafter, the crime lab chemist

testified that he received one bag of

white powder (People's Exhibit No. 1)

from Officer Tom Hutchings’ on October

19, 1979, and three packets’ of white

powder (People's Exhibit No. 2) and one

package of a green leafy substance

(People's Exhibit No. 3) from Officer

Michael Bowden on October 17, 1985. His

tests on the exhibits led him _ to

conclude that the powder found in No. 1

contained cocaine, that the powder found

in each of the three packets in No. 2

PAGE 10

weighed, in total, 83.15 grams. and

contained cocaine, and that’ the green

leafy substance in No. 3 contained

cannabis. (R.234-282)

Hutchings, who was the Waukegan

police officer in charge of the evidence

room, testified next, describing in

detail the chronology of his dealings

with each of the exhibits, including the

dates on which they came into and left

his possession and the persons’~ who

brought them to him and took them away.

(CR. 401 et. seq.) At one point,

Hutchings testified that People's

Exhibit No. 1 was constantly in his

possession from September 14, 1982 until

November 18, 1982. (R. 401-225)

Subsequently, he testified that he

released the exhibit to an investigator

for the State's Attorney on November 4,

1982. (R. 439) The prosecutor’ then

asked several questions concerning

PAGE 11

a eT ee

Hutchings’ original assertions,

prompting the judge to interrupt and

observe that the prosecutor was being

repetitious. The prosecutor said he was

only trying to correct’ the witness'

testimony, but the judge suggested that

the prosecutor was actually developing

inconsistent testimony and creating two

conflicting chains of custody. The

judge also suggested that the prosecutor

was trying to impeach his own witness.

Pursuant to the prosecutor's

protestations that he was only trying to

Clarify, the court declared a recess so

that the prosecutor could "get [his] act

together." (R. 439-450)

After the recess, defense counsel

objected that the prosecutor’ had been

talking to the witness and passing

papers back and forth. Counsel alleged

his belief, without being able to know

the substance of the communications,

PAGE 12

that the witness’ testimony would be

tainted by the apparent attempt to coach

the witness through his difficulties.

(R. 451-453) The prosecutor informed

the judge that pursuant to the judge's

direction to get his act together, he

had talked with Hutchings, but first

told him he could not discuss his

testimony. He then asked to see

Hutchings’ records, told Hutchings to

review the records, and told him to

testify from his memory. He did not

tell Hutchings how to testify. (R. 453)

Judge Hoogasian found that’ the

prosecutor had acted improperly, but

that no harm had come of the

conversation since the witness had only

been referred to his records and since

he had been testifying from the records

throughout direct examination. The

judge directed that there be no further

conversation, and said that if there was

PAGE 13

CR.

motion for mistrial, it was denied.

454-456)

The following then occurred:

MR. WILL: Judge, let me

make a few motions.

THE COURT: And if there

is error, if there is any

error, is merely harmless at

this time. And your record is

preserved for anything you may

decide to do in the future.

MR. WILL: Judge, I'm

doing this behind you, but

give me a few quick rulings.

Number one, I move his

testimony be stricken in its

entirety, for the reasons that

I expressed earlier. This

conversation, Judge, took

place about 10 minutes, and

while they may have been going

over some paper’ we have been

using in open court, I still

believe there is a great

possibility he was pointing

out to him some mistakes and

things like that, that had to

be cleared up in a way that

could be done properly on the

stand without objection.

THE COURT: Well, I just

asked Mr. McCullom, and “Mr.

McCullom said that is not the

case. Am I coerect,. Mr.

McCullom?

MR. McCULLOM: seat... -is

correct, Judge. I was

PAGE 14

LL, OOOO eee —_—_a aaa ees _XPQvwX—“_—r—_

cena

pointing out what his records

reflect. I'm not telling him

to lie.

THE COURT: That motion

is denied for the reasons I

mentioned. What else?

MR. WILL: The second

motion is he be precluded from

testifying further in this

matter. I so move because of

the impropriety.

THE COURT: Denied.

MR. WILL: Then, Judge,

finally, I move for the

mistrial you suggested.

THE COURT: I denied that

and I didn't suggest one. I

merely went through the entire

explanation so the record

would be complete. (CR.

456-457)

On continued direct examination and

after looking at his records’ several

times, Hutchings testified that he had

released People's Exhibit No. 1 to an

assistant State's Attorney on November

a> 1982, and that the exhibit was

returned to him by the State's

Attorney's investigator on November 9,

PAGE 15

1982. (R. 460-465) The following day,

Hutchings again gave inconsistent

accounts of the travels of another

exhibit, prompting the judge to

interject:

Gentlemen, | tage EI tell you

something. The record speaks

for itself. You know, Friday,

prior to we leaving, I

Suggested to both of you, you

know, what this record is.

This record has’ got evidence

going out and never returning.

The record has got the

evidence, the same evidence

going out twice, never

returning the first time.

There is confusion. There is

-- and you know we got into

the question at that time and

you said you could impeach

your own witness, and I'm not

going to get into the

semantics and so forth. But

it's your. record. It's your

case. (R. 502)

As Hutchings' testimony on direct

proceeded, the court sustained defense

objections to the prosecutor's attempts

to reclarify, as well as to examination

that did not conform to the procedures

PAGE 16

for refreshing recollection. (R.

503-506)

On cross-examination, Hutchings

described the physical layout and

procedures of the evidence area.

Evidence was stored in boxes on moveable

shelves in a room to which only

Hutchings and the Deputy Chief of

Services had _ keys. That room was kept

locked whenever Hutchings was not

inside, before, during, or after his

8:00 A.M. to 4:00 P.M. shift. Next to

the booking room, there was a battery of

lockers used by officers to deposit

evidence when Hutchings was not on duty.

Each locker had two keys. One was kept

in Hutchings' office. The other

remained in the lock until an officer

deposited evidence in a particular

locker; he would then lock that locker,

remove the key and deposit it in a slot

in another locker. When Hutchings

PAGE 17

reported for duty, he would remove the

keys from that locker and then retrieve

articles left in the evidence lockers

which those keys opened. Hutchings then

took all of the evidence to his office

(the evidence room), logged it in, and

placed it in an appropriate box. (R.

538-541)

Pursuant to defense counsel's

request, the court recessed proceedings

so that the parties could retrieve and

examine the log book kept by Hutchings

during the relevant times. (R. 549-550)

The court instructed the attorneys not

to ask Hutchings any questions about the

log outside the courtroom. (R. 550) On

further cross-examination, Hutchings

testified that the log book indicated

that People's Exhibit No. 2 was received

in the evidence room on October 17,

1979, He asserted, however, that the

entry (which Hutchings himself had made)

PAGE 18

was erroneous; the exhibit was. not

actually received until October 26,

1979. Hutchings did not know why he

would have made the erroneous entry, but

opined that perhaps Officer Bowden had

told him he had taken the exhibit to the

crime lab on October 17th. (R. 563-567)

Officer Michael Bowden testified

that after the two transactions

described by the other agents, the

substances delivered by Lovinger’ were

turned over to Bowden. (R. 597-602,

606-613) He brought People's Exhibit

No. 1 to the Waukegan Police Department

at about 3:00 P.M. on October 15, 1979,

and deposited it in a locker. After

locking the locker, Bowden retained the

key. He then opened the locker the next

day, removed the exhibit and delivered

it to Hutchings. (R. 603-605) Bowder

placed People's Exhibits No. 2 and 3 in

an evidence locker on October 16, 1979,

PAGE 19

again retained the key, and then removed

the exhibits the following day and took

them to the crime lab. (R. 613-614)

Bowden gave testimony about his

handling of another exhibit that

prompted the prosecutor to attempt to

refresh Bowden's recollection from

records as to the date upon which he

actually delivered it to the crime lab.

(R. 615-619) A defense objection was

Sustained, and the court instructed the

prosecutor to stop trying to correct his

witness’ testimony. (R. 619) The judge

then recessed until the afternoon,

warning the witness not to talk to the

lawyers and warning the lawyers not to

talk to the witness. (R. 620)

When proceedings resumed, defense

counsel complained that during the

recess, the prosecutor had conferred

with the witness, Bowden. (z.. @2e).. cae

prosecutor told the judge that he only

PAGE 20

asked Bowden if he had some police

reports defense counsel had asked about.

CR. O22) Bowden was then brought into

the courtroom. When asked if the

State's Attorney had talked with him at

all during the recess, he twice

answered, oe.” and then said _ that

during the recess, he had told_ the

prosecutor, "I wasn't pleased with the

fact that I was getting my butt chewed

eet. . Bec that was it.” (R.° 623)

Defense counsel asked to have petitioner

sworn, and Lovinger then testified that

he overheard the prosecutor ask _ the

witness about reports and also something

about the key and the evidence locker.

(R. 623-627)

The prosecutor again insisted that

his only conversation with Bowden

involved the reports. There then

followed an exchange as to whether the

reports were discoverable. Judge

PAGE 21

Hoogasian directed the prosecutor to

find the reports and bring them to him

because, "I'm not going to have any case

with any hint of error, and we are

Starting to have a lot of error creep

into this record." (R. 629) The judge

also indicated he wanted to review the

court reporter's notes of what _ had

transpired. (R. 629)

When the judge took the bench

again, he announced that he was

declaring a mistrial in the following

soliloquy:

Gentlemen, at this time !

want to put something on the

record. I have not been

satisfied with the way this

case has been presented.

First, I call to the attention

of everybody in this courtroom

that because of the laxity of

the prior State's Attorney and

his administration, there was

nothing done to resolve this

cause of action before a jury

or bench trial because of the

fact that this matter had

occurred in 1979,

Secondly, I am _ concered

about the lack of discovery

PAGE 22

afforded the defense, pursuant

to court order of Judge Doran,

and even of this court.

Third, there was a

failure to fully comply with

the orders of the Court during

trial regarding discovery.

For example, I point to my

order of September 7th and the

fact that a witness in this

cause did remove portions from

Group Exhibit No. 2, for

identification, when I had

ordered all of the exhibits to

be taken to the defense

chemist for purpose of

analysis, pursuant to the

order of discovery.

Fourth, I am very” much

concerned about what occurred

early this afternoon in this

courtroom. And this can _ be

classified as either direct or

indirect contempt, and I'm not

going into that phase of it.

Because of the taiking about a

pending matter with a witness

who says he did not talk with

the Assistant State's

Attorney, and the Assistant

State's Attorney saying to me

that he did not talk with the

witness, except for request Dy

Bob Will, representing the

defendant, and then you

changing your conversation

after Lovinger under oath

indicated certain things. And

then you said something else

contrary, and it's all on the

record.

PAGE 23

At this point in the

trial, it is questionable, and

I doubt whether discovery has

been completed by the State to

the defense.

And further it has been

disclosed by the witness. on

the stand, when he said, "I

told him I was not pleased

with the fact I was getting my

butt chewed out, but that was

it.”

iP as the Court, am

wholly unaware of any -- I'm

sorry. I am only aware of a

reprimand by anyone except my

admonition to the witness, to

the defense and to the

Assistant State's Attorney,

not to discuss this case with

anyone. And prior to I

continuing this matter this

morning, I said, "I am going

to continue this case to 1:30.

You don't talk with them; they

don't talk with you about this

case. Again, I'm going to

advise, let's get everything

in order."

I feel error has _ crept

into this trial and it can

only be resolved by me

declaring a mistrial, which I

so order, and I recuse myself

from this case, and I order

you to appoint another judge.

Call the Clerk. And the only

other judge that will not take

this is Strouse, because he

has recused himself before.

And after it is assigned to

PAGE 24

another judge, I instruct you

to go to the other judge and

let him set it for trial.

Bond is continued. (R.

630-632)

The transcript indicates that proceeding

for that date terminated with the

court's comments. (R. 632)

After the case was reassigned to

another judge, the defense filed a

motion to bar further prosecution, and

at the first appearance before the new

judge, the defense stated its objection

to the mistrial declared by Judge

Hoogasian. cc. 121-124) Arguments on

the motion to bar_ retrial centered on

whether there was manifest necessity for

the mistrial, with the State contending

that the mistrial was necessary because

Judge Hoogasian apparently believed he

could no longer be impartial as a result

of what he saw as error occurring. (R.

637-654) During arguments on the motion,

defense counsel asserted that he _ had

PAGE 25

been unable to object to the declaration

of a mistrial because Judge Hoogasian

was walking out the door as he finished

his remarks. (R. 644)

Judge McQueen denied the defense

motion to bar new trial, finding that

there was manifest necessity for. the

declaration of a mistrial because Judge

Hoogasian believed that error had

occurred and _ because, "An error, of

course, would destroy ae fair trial."

(R. 670)

In an opinion filed January 17,

1985, the Appellate Court affirmed and

remanded the cause for further

proceedings. (Appendix A.) That court

declined to decide whether the mistrial

was manifestly necessary, determining

instead that the mistrial could be

characterized as one declared with the

defendant's consent since he had

previously moved for a mistrial when the

PAGE 26

prosecutor conferred with Officer

Hutchings during a recess in his

testimony and since the defendant did

not object, when the judge sua _ sponte

declared a mistrial after the prosecutor

conferred with Officer Bowden. As such,

the mistrial presented no bar to retrial

unless the defendant could show

prosecutorial overreaching and, according

to the Appellate Court, the defense

failed to make that showing. (Appendix

Ap. 12) The Iliinois Supreme Court

denied the defendant's Petition for

Leave to Appeal on June 4, 1985.

(Appendix B)

PAGE 27

A ett ee een eg GR

REASONS FOR GRANTING THE WRIT

Ry CERTIORARI SHOULD ISSUE TO

REVIEW THE NOVEL HOLDING OF

THE ILLINOIS APPELLATE COURT

TREATING A MISTRIAL DECLARED

SUA SPONTE BY THE TRIAL

JUDGE } ¥+®©AS ONE MADE CN

PETITIONER'S MOTION BECAUSE OF

A PRIOR UNSUCCESSFUL MISTRIAL

MOTION MADE BY PETITIONER ON

DIFFERENT GROUNDS. BY

AUTHORIZING RETRIAL DESPITE

THE FACT THAT PETITIONER WAS

AFFORDED ABSOLUTELY NO INPUT

ON THE DECISION TO ABORT THE

ORIGINAL MISTRIAL AND DESPITE

THE FACT THAT HE ENTERED AN

OBJECTION TO THE MISTRIAL

AFTER IT WAS ANNOUNCED, THE

ILLINOIS APPELLATE COURT'S

HOLDING DEFIES THE FUNDAMENTAL

PREMISE OF THE DOUBLE JEOPARDY

CLAUSE GUARANTEEING TO A

CRIMINAL DEFENDANT THE’ RIGHT

TO PROCEED TO VERDICT BEFORE

THE ORIGINAL TRIER OF FACT

UNLESS PROSECUTORIAL OR

JUDICIAL ERROR MANIFESTLY

NECESSITATES A MISTRIAL.

The Illinois Appeliate Court

determined in this case that a mistrial

declared _sua sponte by the trial judge

without any input from the defense would

nevertheless be designated a mistrial

PAGE 28

declared on motion of or with the

consent of the defendant so as to allow

retrial without a showing of manifest

necessity. That conclusion was_ based

upon two circumstances: the fact that

Petitioner did not interpose a

contemporaneous objection when the judge

suddenly announced the mistrial

(although he did object at the first

Opportunity presented thereafter), and

the fact that at an earlier point in the

trial, Petitioner had unsuccessfully

moved for a mistrial based upon an

incident separate from the incidents

which the trial judge identified as his

reasons for aborting the trial.

Certiorari should issue to review

that ruling because it is at odds with

the fundamental premise of the double

jeopardy clause guaranteeing to criminal

defendants the right to proceed to

verdict before the original trier of

PAGE 29

fact absent manifest necessity, and

because the holding, if sanctioned,

would require reconsideration and

reformulation of the rules’ repeatedly

enunciated by this Court for determining

the circumstances under which a mistrial

bars a subsequent prosecution. United

States v. Perez, 9 Wheat 579, 6 L.Ed

165 (1824); Downum v. United States,

372 U.S. 734 (1963); United States v.

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

Sommerville, 410 U.S. 458 (1973); Oregon

v. Kennedy, 456 U.S. 667 (1982).

The record of the trial proceedings

in this cause demonstrates that during a

recess in the testimony of one of the

State's witnesses, Officer Hutchings,

the prosecutor was observed to. be

conferring with the witness, and_ the

defendant brought that fact to the trial

judge's attention. The judge questioned

the prosecutor about his conversation

PAGE 30

aes

with Officer Hutchings. Pursuant to the

prosecutor's assurances that he had

merely directed the witness’ attention

to certain reports without attempting to

alter his account, the judge found that

no prejudice had _ resulted. The judge

added that if there was a motion for

mistrial, it was denied. Acknowledging

that he ws "doing this behind" the

judge, defense counsel asked for a "few,

quick rulings,” and moved "for. the

mistrial [the judge] suggested." (R.

456-457) The judge said he had denied

the motion, and the witness' testimony

resumed.

The following court day, during a

recess in the testimony of another State

witness, Officer Bowden, the prosecutor

was again observed to be conferring with

the witness, and the defendant again

brought the matter to the attention of

the judge. Upon questioning by the

PAGE 31

court, the prosecutor and Bowden gave

differing accounts of the subject matter

of their conversation, The judge then

recessed proceedings, stating that he

would review the Court reporter's notes

on those differing accounts. Upon

returning to the bench, without seeking

input from either side, the judge sua

sponte declared a mistrial based upon

several "“errors" that had crept into the

record, including the prosecutor's

conference with Bowden, purported

discovery problems, and the State's

delay in bringing the case to trial.

(R. 630-632) In the course of

announcing the mistrial, the judge also

announced that he was recusing himself,

and he directed the parties to secure

the assignment of a new judge. The

transcript indicates that the

proceedings on that date aseckuded when

the judge finished speaking; at a

PAGE 32

subsequent hearing, defense counsel

asserted that the judge was walking out

the door as_ he concluded his comments.

(R. 644 )

When the parties first appeared

before the newly assigned judge, defense

counsel stated his objection to the

mistrial, and during arguments’ on the

motion to bar retrial, he asserted

without any dispute from the State that

the suddenness with which the judge left

the bence upon announcing the mistrial

made it impossible for him to object at

the time. (R. 644)

The Iilinois Appellate Court found

it appropriate to conclude that

Petitioner had consented to the mistrial

declared by the court by his failure to

object while the judge announced the

mistrial and as a result of his

previously denied motion for mistrial

based upon the prosecutor's recess

PAGE 33

conversation with Officer Hutchings.

People _v. Lovinger, Appendix A, p. 12.

As a result, the Court found that

Petitioner could be retried without a

showing of manifest necessity.

This Court has _ never held or even

implied that the mere failure to object

to a mistrial declared sua_ sponte by

the court provides a basis for ascribing

the mistrial to the motion or consent of

the defendant. Inconsistent with any

such theory is this Court's observation

in United States v. Dinitz, 424 U.S. 600

(1976), that jeopardy issues are not

governed by traditional waiver concepts.

In jeopardy matters, the focus instead

is on whether the defendant has retained

primary control over the determination

of whether to proceed before the

Original tribunal in the face of error,

or to instead seek a second trial before

a new trier of fact. United States v.

PAGE 34

Dinitz; United States v. Jorn, 400 U.S.

470 (1971).

Courts of several other

jurisdictions have declined to hold that

failure to interpose a contemporaneous

objection can subject a defendant’ to

retrial absent a showing of manifest

necessity. See Curry v. Superior Court,

7G Feee@ S85 €€G14£., 1970); Torres v.

State, 614 Samweee S20 (iex. Crin.,

1981).

Even if the failure to object could

be deemed critical in some case, the

Circumstances of this case render such a

result untenable. The mistrial was

announced suddenly, after a recess

during which the court had ordered the

prosecutor to secure certain police

reports for Petizioner's counsel and

during which the judge had said he would

review the court reporter's notes on the

dispute over the conversation between

PASE 35

OO eee en

the prosecutor and his witness. Prior

to the recess, no one had even mentioned

mistrial as a possiblity. In announcing

immediately after the recess that he had

determined to declare a mistrial, the

judge did not profess any interest in

the opinions of the parties on _ the

propriety of that action. Instead, he

directed the parties to secure. the

assignment of a new judge and left the

bench as he completed his remarks.

Under those circumstances,

ascribing any unfavorable significance

to the Petitioner's failure to object is

entirely unjustified. In United States

v. Jorn, 400 U.S. 470 (1971) this Court

was confronted with similar

circumstances in that the judge, after

indicating his dissatisfaction with the

assertions that certain government

witnesses had properly been warned of

their privilege against

PAGE 36

self-incrimination, sua sponte declared

a mistrial without seeking input from

either party. This Court ascribed no

significance to the fact that the

defense had not managed to interpose an

objection, and instead observed:

--ethe trial judge acted so

abruptly in discharging the

jury that, had the prosecutor

been disposed to suggest a

continuance, or the defendant

to object to the discharge of

the jury, there would have

been no opportunity to do so.

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

487. This Court treated the judge's

abruptness and apparent disinterest in

input from the parties as indicative of

his failure to exercise a sound

discretion to assure that manifest

necessity for the mistrial existed. See

also United States v. Sanders, 591 F.2d

1293 (9th Circ., 1979).

The only apparent difference

between this case and Jorn is’ that

PAGE 37

Petitioner here had made an unsuccessful

motion for mistrial at an earlier point

in the trial. The Appellate Court

seizes upon that fact, and without

stopping to question whether that prior

motion had any impact whatsoever on the

judge's _sua sponte decision to abort

the trial, the Court uses it as cause to

analogize to several cases’ from other

State and Federal jurisdictions. People

v. Lovinger, Appendix A, pps. 10-11. In

each of those cases, mistrials were

ascribed to the motion or consent of the

defendant where the defendants at some

point moved to terminate the proceedings

because of prejudicial error, where

those motions were denied, but where the

court subsequently determined that the

errors which were the cause for the

prior motions necessitated mistrials.

See e.g. People v. Montlake, 172 N.Y.S.

102 (1918) - defendant moved for

PAGE 38

mistrial because of inflammatory

arguments by the prosecutor during

closing argument; the court denied the

motion when first made, but sua sponte

declared a mistrial wnen the same

comments were repeated; and State v.

Wolak, 165 A.2d 174 (N.J., 1960), cert.

denied 365 U.S. 822 (1961) - defendant

moved for a mistrial because of an

inflammatory demonstration orchestrated

by the prosecutor; the judge denied the

motion, but later said he had

reconsidered and without objection by

the defendant, said he would "grant the

motion made on behalf of the defendant

for a mistrial." 165 A. 24 174, 175.

Other theoretical problems are posed

by the Illinois Appellate Court's

disposition of this case. As that Court

acknowledged, and as this Court has

recently reaffirmed, when a mistrial is

ascribed to the request of the

defendant, retrial can be had unless the

defendant can show prosecutorial

overreaching by demonstrating that the

PAGE 46

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prosecutor goaded the defendant into

seeking the mistrial with the intent of

subverting the defendant's jeopardy

rights. Oregon v. Kennedy, 456 U.S. 667

(1982). When the mistrial is declared

on grounds different from those that

prompted the defendant's motion, several

questions unaddressed by the Illinois

Appellate Court are posed. Should the

court inquire whether the prosecutor

goaded the defendant into making the

motion or should the focus be instead on

the prosecutor's intent as to. the

incident that prompted the judge _ to

abort the trial? If the latter, musn‘t

the question be altered so that one

looks to whether the prosecutor was

goading the judge into action rather

than the defendant? After all, the

defend-"t has made no motion which the

prosecutor can be deemed to have

provoked even if his goal was to secure

PAGE 47

a mistrial and the chance to retry the

case before a more sympathetic tribunal.

The Appellate Court in this case

seemingly focused upon only the question

of whether tie prosecutor was trying to

goad the defendant into seeking a

mistrial when he conferred with Bowden

during the recess. People v. Lovinger,

Appendix, p. 12. Petitioner had argued

to that Court and would still maintain

that whatever the actual impropriety of

the conference with Bowden or the actual

prejudice threatened, it was highly

likely to provoke a mistrial. Judge

Hoogasian had so many times warned the

prosecutor ~ to talk to his witnesses

and warned that prohibited discussions

might result in mistrial, that the

prosecutor had to know that if he wanted

a mistrial, all he had to do to goad the

judge into it would be to talk to a

witness.

PAGE 48

Although the Appellate Court

declined to address the legal question

of whether there was manifest necessitv

for this mistrial, it did observe that

"it ais difficult to conceive how it

could be thought that [the prosecutor's

conversation with Bowman during’ the

recess] would prevent a fair trial and a

just verdict so that a mistrial would

have to be declared." People v.

Lovinger, Appendix, p. 12. Throughout

this case, the State has never proposed

a theory explaining why that conference

or the purported discovery problems or

the delay in bringing the case to trial

would have prevented a fair trial so as

to render the mistrial declared by the

court manifestly necessary. In point of

fact, whatever problems existed could

and should have been cured by ' means

short of aborting the proceedings.

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

PAGE 49

(1971); People -. Phillips, 29

I11.App.3d 529, 331 N.E.2d 163 (1st

Dist., 1974) Had the case been properly

addressed as one in which the mistrial

was declared on motion of the court and

not on motion of the defendant, it is

apparent that retrial should have been

barred.

The Appellate Court's

characterization of the mistrial in this

case as one declared with the

Defendant's consent is factually

inaccurate and legally unsound. This

Court should grant review to reclarify,

consistent with the Fifth Amendment and

this Court's decisions, that a mistrial

cannot be imputed to the defendant where

he has been given no opportunity to

influence the court's decision to abort

the trial. United States Constitution,

Amendments V & XIV; United States v.

Dinitz, 424 U.S. 600 (1976); Downum v.

PAGE 50

United States, 372 U.S. 734 (1963);

United States v. Jorn, 40u U.S. 470

(1971); Oregon v. Kennedy, 456 U.S.

667 (9182).

CONCLUSION

For the reasons stated, Petitioner,

Jeffrey Lovinger requests, that a writ

of certiorari issue to review the

judgment and opinion of the [Illinois

Appellate Court sanctioning Petitioner's

retrial.

Respectfully Submitted,

MARY ROBINSON

Robinson & Skelnik

Attorneys at Law

51 Fountain Square Plaza

Suite 5

Elgin, Illinois 60120

(312) 742-5220

Robert P. Will, Jr.

Will & Briscoe

Pioneer Blidg., Suite 300

33 N. County Street

Waukegan, IL 60085

PAGE 51

APPENDIX

130 Dl. App. 3d 105 People v. Lovinger 105

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

JEFFREY LOVINGER, Defendant-Appellant.

Second District No. 883—330

Order affirmed and cause remanded.

Opinion filed January 17, 1985.

CRIMES AND PUNISHMENT (§43)—sua sponte declaration of mistrial

by trial judge deemed pursuant to defendant's consent and thereby avoided

double jeopardy bar to retrial—drug offenses. Trial judge’s sua sponte decla-

ration of mistrial before abruptly leaving courtroom was deemed to be pursu-

ant to defendant’s consent and not intentionally provoked by prosecutor's

misconduct, thereby avoiding double jeopardy bar to retrial, where defend-

ant earlier in bench trial unsuccessfully moved for mistrial because of prose-

cutor’s communication with witness during recess, mistrial occurred after

defendant brought to judge’s attention second recess conversation with an-

other witness, and defendant neither requested leave to state objection to

mistrial nor moved for reconsideration of judge’s declaration after latter eft

courtroom.

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian,

Judge, presiding.

Robert P. Will, Jr., of Waukegan, and Mary Robinson, of Elgin, for appel-

lant. :

Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and

Marlene V. Newton, both of State’s Attorneys Appellate Service Commis-

sion, of counsel), for the People.

JUSTICE SCHNAKE delivered the opinion of the court:

This is an interlocutory appeal by the defendant, Jeffrey Lovinger,

under Supreme Court Rule 604(f) (94 Ill. 2d R. 604(f)), from an order

of the circuit court of Lake County, denying his motion to dismiss the

charges against him based on former jeopardy.

The defendant was originally charged by information with the fol-

lowing three illegal drug deliveries: (1) October 15, 1979, delivery of

less than 30 grams of a substance containing cocaine (Class 2 felony)

(Ill. Rev. Stat. 1979, ch. 56%2, par. 1401(b)); (2) October 16, 1979, de-

livery of 30 grams or more of a substance containing cocaine (Class X

felony) (Ill. Rev. Stat. 1979, ch. 5642, par. 1401(aX(2)); and (3) October

16, 1979, delivery of more than 2.5 but not more than 10 grams of a

substance containing cannabis (Class A misdemeanor) (Ill. Rev. Stat.

PAGE A-l

106 Peopler v. Lovinger 130 Il. App. 3d 105

1979, ch. 56/2, par. 705(b)). The case proceeded to a bench trial, and

the trial judge declared a mistrial on his own motion during the

State’s case in chief. The case was then assigned to another judge,

who denied the deferidant’s motion to dismiss based on former jeop-

ardy. A detailed statement of the proceedings at trial is essential to

an exploration of the issue of double jeopardy.

The defendant, Jeffrey Lovinger, was arrested on October 16,

1979, and was subsequently charged by information with delivering

cocaine to an undercover police officer named Paula Riccio on October

15, 1979, and delivering cocaine and cannabis to Riccio on the fol-

lowing day.

On September 7, 1982, prior to trial, an order was entered on the

defendant’s motion, requiring that “the evidence” in the case be

transported to a laboratory in Glen Ellyn, and that “a portion of said

evidence be analyzed [by the defendant’s expert] in the presence of a

chemist from the Northern Illinois Police Crime Laboratory.”’ As ex-

plained hereinafter, it became apparent at trial that this order was

not complied with.

The matter proceeded to a bench trial on November 3, 1982. On

that date the defendant filed his response to the court’s earlier order

for discovery, indicating his intention to raise the defense of entrap-

ment.

Paula Lemke, formerly Riccio, the undercover police officer

named in the information, testified for the State about the deliveries

on October 15 and 16, and about her part of the chain of custody re-

garding the alleged controlled substances. According to Lemke, the

delivery on October 15 was made in Lovinger’s car which was parked

in the parking lot of Goodman’s Restaurant in Highland Park. She

and Lovinger had just lunched together in the restaurant. They had

previously arranged to meet at Goodman’s in order to consummate

the drug transaction. The delivery on October 16 took place in Lovin-

ger’s apartment in Waukegan. Arrangements for this transaction

were made during the earlier delivery at Goodman’s and in subse-

quent telephone conversations. Immediately after the transaction on

October 16, Lovinger was arrested along with a codefendant not in- |

volved in this appeal, Stanley Blackowicz. The purported cocaine de-

livered on October 15 was contained in a plastic bag identified by

Lemke as part of People’s exhibit No. 1. The purported cocaine delivered

on October 16 was contained in three plastic bags which she identified as

People’s exhibits Nos. 2A, 2B and 2C. The alleged marijuana delivered on

October 16 was contained in a plastic bag which was part of People’s

exhibit No. 3.

PAGE A-2

130 Ill. App. 3d 105 People v. Lovinger 107

During cross-examination of Lemke, it became apparent that the

court’s order of September 7, 1982, regarding analysis of the evidence

by the defendant’s expert, had not been carried out. The expert would

not analyze the evidence in the presence of a chemist from the crime

lab, apparently because he wanted to dry the substances overnight to

determine their weight accurately. Subsequently, without any modifi-

cation of the prior court order regarding analysis of the evidence by

the defendant’s expert, samples from the exhibits were taken to the

defendant’s expert and tested. Lemke testified, however, concerning

the purported cocaine delivered on October 16, that the sample was

taken from only one of the three plastic bags. On motion of the

defendant the bench trial was continued so that the defendant’s ex-

pert could analyze the substance in the other two plastic bags.

The bench trial resumed on Monday, January 31, 1983, and contin-

ued all that week and the first two days of the next. Lemke’s cross-

examination included questions about two other deliveries of pur-

ported cocaine by Lovinger to her on October 5 and 10, 1979.

Presumably, these transactions were brought up by the defense with a

view toward the anticipated entrapment defense. The purported co-

caine delivered on October 5 and 10 was identified by Lemke as part

of People’s exhibit Nos. 4 and 5, respectively.

Other police officers testified about surveillance they conducted at

the scenes of the transactions, the arrest of Lovinger and Blackowicz

after the transaction on October 16, dvuing which Blackowicz was ob-

served trying to flush down the toilet une money Lemke paid for the

substances, and the chain of custody concerning the exhibits. The

State’s chemist testified about his analysis of the evidence, and his

findings supported the charges against the defendant. Most of the

eight days of trial were spent on chain of custody.

During the direct examination of Officer Hutchings, evidence offi-

cer for the Waukegan police department, a discrepancy developed re-

garding the chain of custody of People’s exhibit No. 1, the substance

allegedly delivered on October 15. The court called a recess so that

the prosecutor could ‘‘get [his] act together.”

Following the recess, defense counsel informed the court that dur-

ing the recess the prosecutor and the witness had been passing pa-

pers back and forth between them and had appeared to be discussing

the case. Defense counsel stated that the prosecutor did not have a

right to discuss the witness’ testimony with him during a recess taken

during said testimony. Defense counsel suggested that “the remaining

testimony by this witness will have been tainted by the discussion.”

The prosecutor told the court that he did not tell Hutchings how

PAGE A-=3

108 Peopler v. Lovinge 130 Til. App. 3d 105

to testify. In fact, he advised, he told Hutchings they could not discuss

his testimony. The prosecutor simply asked for Hutchings’ records, re-

viewed them, and asked Hutchings to review his records and to tes-

tify from memory.

The judge then stated that it was improper for the prosecutor to

talk with his witness during the recess, but that any error was harm-

less because Hutchings had been referring to his records throughout

his testimony. The judge concluded his remarks by saying, “[TJhere

will be no further conversation, and if there is a motion for mistrial,

that motion is denied.’”’ Defense counsel then moved to have Hutch-

ings’ testimony stricken, and to bar Hutchings from testifying further.

When these motions were denied, defense counsel moved for a mis-

trial, which motion was also denied, and Hutchings’ testimony contin-

ued. Prior to an overnight recess during his direct examination, the

court admonished Hutchings not to discuss his testimony with any

lawyers or anyone else because “we don’t want any mistrial to oc-

eur.”

Part of Hutchings’ cross-examination concerned the method by

which evidence was generally processed at the Waukegan police de-

partment. Hutchings testified as follows: There are evidence lockers

located outside the booking room. Each locker has two keys, one kept

in Hutchings’ office, and the other kept in the locks of the lockers.

When an officer seizes evidence, he places it in one of the lockers

which he then locks. The officer then places the key through a slot

into another locker which is kept locked. Hutchings keeps both keys

for that locker. When Hutchings gets to work in the morning, he

opens the locker with the keys, and then uses those keys to retrieve

the evidence out of the other lockers. He then takes the evidence to

his office. On redirect examination Hutchings stated, among other

things, that it is possible for an officer to keep the key once he has

placed evidence in a locker. Under those circumstances, Hutchings

does not take the evidence out of that locker and into his office.

The State’s next witness was Officer Bowden, who testified about

the surveillance he conducted on the transactions on October 15 and

16, and about his part of the chain of custody of the physical evi-

dence. During his direct examination he testified that he had handled

the substances delivered on October 5, 10, 15, and 16, and in each

case he received the evidence from Lemke and locked it in one of the

evidence lockers described by Hutchings. Bowden, however, kept the

key. He did not place it in the locker with the slot for keys described

by Hutchings. In each case Bowden subsequently retrieved the evi-

dence from the locker himself and gave it to the next person in the

PAGE A-4

130 Ill. App. 3d 105 People v. Lovinger 109

chain of custody. Regarding the purported cocaine delivered on Octo-

ber 10, Bowden testified that he received it from Lemke and locked it

in an evidence locker on October 10. On the following day he re-

trieved it and turned it over to Hutchings. (Hutchings had previously

testified that Bowden gave that evidence to him on October 10.) The

prosecutor then asked Bowden, “‘When did you turn it over to Officer

Hutchings?” and Bowden replied that he thought it was the following

day, but he would have to see his records to be sure. When the prose-

cutor asked him if there was anything that would refresh his recollec-

tion, defense counsel objected. The court told the prosecutor not to

correct the witness and called a recess, stating ‘You [presumably Offi-

cer Bowden] don’t talk with them [presumably the lawyers]. They

don’t talk with you about this case. Again, I’m going to advise, let’s

get everything in order.”

Following the recess, defense counsel stated to the judge, ‘[O]nce

again I am informed that [the prosecutor] has been talking to a wit-

ness.”” The judge asked the prosecutor if he had talked to Bowden,

and the prosecutor first replied, “‘Not about this case, no.’’ He subse-

quently told the judge that ‘{t]he only thing I said to him was, ‘Do

you have any police report on the 5th or 10th.’”’ During the recess,

defense counsel had asked the prosecutor for the police reports con-

cerning those dates. The prosecutor told the judge that he did not

talk to Bowden about his testimony.

When Bowden entered the courtroom, the judge asked him if the

prosecutor had talked with him during the recess. Bowden first told

the court that he had not, and then said, ‘‘I told him that I wasn’t

pleased with the fact I was getting my butt chewed out. But that was

it.”

The defendant then testified to a third version of the conversa-

tion. He said that during the recess he overheard the prosecutor ask

Bowden if he wrote any police reports concerning the 5th and 10th of

October. Bowden replied that he was not sure whether he did or not.

Lovinger subsequently heard something about the key to the evidence

locker. Defense counsel had stated earlier that Lovinger told him that

the prosecutor asked Bowden why he did not “follow the procedure

with respect to that key,” and that Bowden replied that he was ‘“‘not

supposed to use that key.”

The court then asked the prosecutor to let him see the police re-

ports from October 5 and 10, and the prosecutor replied that he did

not have them. The court then ordered him to get the reports and

called a recess.

Following the recess, the judge declared a mistrial on his own mo-

PAGE A-5

110 Peopler v. Lovinger 130 Il. App. 3d 105

tion, stating:

“Gentlemen, at this time I want to put something on the rec-

ord. I have not been satisfied with the way this case has been

presented. First, I call to the attention of everybody in this

courtroom that because of the laxity of the prior State’s Attor-

ney and his administration, there was nothing done to resolve

this cause of action before a jury or bench trial because of the

fact that this matter had occurred in 1979.

Secondly, I am concerned about the lack of discovery afforded

the defense, pursuant to court order of Judge Doran, and even

of this court.

Third, there was a failure to fully comply with the orders of

the Court during trial regarding discovery. For example, I point

out to my order of September 7th and the fact that a witness

in this cause did remove portions from Group Exhibit No. 2, for

identification, when I had ordered all of the exhibits to be

taken to the defense chemist for purpose of analysis, pursuant

to the order of discovery.

Fourth, I am very much concerned about what occurred early

this afternoon in this courtroom. And this can be classified as

either direct or indirect contempt, and I’m not going into that

phase of it. Because of the talking about a pending matter with

a witness who says he did not talk with the Assistant State’s

Attorney, and the Assistant State’s Attorney saying to me that

he did not talk with the witness, except for request by Bob

Will, representing the Defendant, and then you changing your

conversation after Lovinger under oath indicated certain

things. And then you said something else contrary, and it’s all

on the record.

At this point in the trial, it is questionable, and I doubt

whether discovery has been completed by the State to the de-

fense.

And further it has been disclosed by the witness on the

stand, when he said, ‘I told him I was not pleased with the fact

I was getting my butt chewed out, but that was it.’

I, as the Court, am wholly unaware of any—I’m sorry. I am

only aware of a reprimand by anyone except my admonition to

the witness, to the defense and to the Assistant State’s Attor-

ney, not to discuss this case with anyone. And prior to I contin-

uing this matter this morning, I said, ‘I am going to continue

this case to 1:30. You don’t talk with them; they don’t talk with

you about this case. Again, I’m going to advise, let’s get every-

PAGE A-6

130 tl. App. 3d 105 People v. Lovinger 111

thing in order.’

I feel error has crept into this trial and it can only be re-

solved by me declaring a mistrial, which I so order, and I re-

cuse myself from this case, and I order you to appoint another

judge. Call the Clerk. And the only other judge that will not

take this is Strouse, because he had recused himself before.

And after it is assigned to another judge, I instruct you to go

to the other judge and let him set it for trial. Bond is contin-

ued.”

This statement of the judge concluded the hearing on that date.

The defendant subsequently filed a motion to dismiss based on

former jeopardy. During argument on the motion defense counsel

stated that he had received the police reports relating to October 5

and 10 prior to the mistrial declaration. When the judge declared the

mistrial, as he made his final comments, he was “getting up and

walking out the door, and that’s the end of the proceedings, and

that’s how it terminated.

The judge to whom the matter was reassigned denied the defend-

ant’s motion to dismiss, found that there was a ‘‘manifest necessity”

for the mistrial declaration, explaining, ‘The overriding thing of the

trial judge, it appears to this court, is the fact of concern of error

creeping into the record. This i is repeated. An error, of course, would

destroy a fair trial.”’

In his motion to dismiss because of former jeopardy, the defend-

ant relied on the double jeopardy clause of the Federal Constitution,

article I, section 10 of the Illinois Constitution, and section 3—4(aX3)

of the Criminal Code of 1961.

The Federal constitutional provision provides, ‘“‘nor shall any per-

son be subject for the same offense to be twice put in jeopardy of life

or limb.” (U.S. Const., amend. V.) This provision is applicable to crim-

inal proceedings in State courts. Benton v. Maryland (1969), 395 U.S.

784, 23 L. Ed. 2d 707, 89 S. Ct. 2056.

Article I, section 10 of the Illinois Constitution provides, in perti-

nent part, ‘“‘No person shall *** be twice put in jeopardy for the same

offense.”’ Il]. Const. 1970, art. I, sec. 10.

Section 3—4(aX3) of the Criminal Code of 1961 provides, in perti-

nent part:

“A prosecution is barred if the defendant was formerly pros-

ecuted for the same offense, based upon the same facts, if such

former prosecution:

(3) Was terminated improperly ***, in a trial before a

PAGE A-/7

TT EE EE EE

112 Peopler v. Lovinger 130 Ill. App. 3d 105

court without a jury, after the first witness was sworn but

before findings were rendered by the trier of facts ***.”’ Ill.

Rev. Stat. 1983, ch. 38, par. 3—4(aX3).

On appeal the defendant bases his argument on the principles of

double jeopardy as set forth in case law without making any distinc-

tions between the provisions set forth above, presumably because

there are none of any legal significance for purposes of this case.

The constitutional protection against double jeopardy includes the

defendant’s ‘‘valued right to have his trial completed by a particular

tribunal ***.” (Wade v. Hunter (1949), 336 U.S. 684, 689, 93 L. Ed.

974, 978, 69 S. Ct. 834, 837.) This right, however, is not absolute and

“must in some instances be subordinated to the public’s interest in

fair trials designed to end unjust judgments.” (Wade v. Hunter (1949),

336 U.S. 684, 689, 93 L. Ed. 974, 978, 69 S. Ct. 834, 837.) The stand-

ard for determining whether a defendant may be retried following

declaration of a mistrial over his objection is whether there was a

“manifest necessity” for the mistrial declaration. (Arizona v. Wash-

ington (1978), 434 U.S. 497, 54 L. Ed. 2d 717, 98 S. Ct. 824.) This

standard “‘abjures the application of any mechanical formula by which

to judge the propriety of declaring a mistrial in the varying and often

unique situations arising during the course of a criminal trial.” (/ll1-

nois v. Somerville (1973), 410 U.S. 458, 462, 35 L. Ed. 2d 425, 429,

93 S. Ct. 1066, 1069.) As a general matter, however, a trial judge

properly exercises his discretion to declare a mistrial if an impartial

verdict cannot be reached, or if a verdict of conviction could be

reached but would have to be reversed on appeal due to an obvious

procedural error in the trial. (Jllinois v. Somerville (1973), 410 U.S.

458, 464, 35 L. Ed. 2d 425, 431, 93 S. Ct. 1066, 1070.) If the problem

giving rise to the mistrial declaration could have been adequately cor-

rected short of aborting the proceeding, however, the standard of

“manifest necessity’”’ has not been met, and retrial is barred. People

v. Phillips (1975), 29 Ill. App. 3d 529, 331 N.E.2d 163.

Where a defendant asks for or consents to the declaration of a

mistrial, different principles come into play. (Oregon v. Kennedy

(1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083; People ex rel.

Mosley v. Carey (1979), 74 Ill. 2d 527, 387 N.E.2d 325, cert. denied

(1979), 444 U.S. 940, 62 L. Ed. 2d 306, 100 S. Ct. 292.) Under such

circumstances, retrial is barred only if the conduct giving rise to the

mistrial declaration was intended to provoke a mistrial. Oregon v.

Kennedy (1982). 456 U.S. 667, 679, 72 L. Ed. 2d 416, 427, 102 S. Ct.

2083, 2091.

The defendant in the instant case argues that he did not consent

PAGE A-8

130 Ill. App. 3d 105 People v. Lovinger 113

to the mistrial and that there was no manifest necessity for the mis-

trial declaration, because the concerns cited by the trial judge when

he declared the mistrial either had been or could have been ade-

quately corrected with less drastic means.

The State, however, referring to the motion for mistrial made by

the defendant during Hutchings’ testimony (which motion was de-

nied), and the defendant’s failure to object when the judge declared

the mistrial, maintains that the defendant consented to the mistrial

declaration. The State also argues that the conduct of the prosecutor

which caused the mistrial declaration was not intended to provoke a

mistrial. Alternatively, the State contends that if the defendant did

not consent to a mistrial, it was justified under the manifest-necessity

standard.

In reply, the defendant maintains that silence in the face of a sua

sponte declaration of mistrial by the court does not constitute consent.

He maintains that he had no real opportunity to object because the

judge “‘physically left the bench as he uttered those orders.”’ Alterna-

tively, he maintains that, if he did consent, retrial should be barred

anyway because the prosecutor’s conduct, in speaking to the witness

Bowden during the recess, was intended to provoke a mistrial so that

the State would have another opportunity to try the case.

The parties have not cited, nor do we find, any Illinois cases on

the question of whether a defendant’s mere silence or failure to object

amounts to consent to a mistrial declared on the court’s motion, such

that retrial is not barred absent prosecutorial or judicial conduct in-

tended to provoke the mistrial. (See People v. Bean (1975), 26 Ill.

App. 3d 1090, 325 N.E.2d 679, aff'd on other grounds (1976), 64 Ill.

2d 123, 355 N.E.2d 17.) There appears to be a split of authority on

this question in other jurisdictions. (Annot., 63 A.L.R.2d 782 (1959).)

Failure to object would not amount to consent where there is no op-

portunity to interpose an objection. See United States v. Jorn (1971),

400 U.S. 470, 487, 27 L. Ed. 2d 543, 557-80, 91 S. Ct. 547, 558.

In this case, however, there was more than silence on the part of

the defendant. He had previously requested a mistrial when the prose-

cutor spoke to one of his witnesses, Officer Hutchings, about chain of

custody during a recess taken during Hutchings’ testimony. At that

time defense counsel maintained that ‘the remaining testimony by

this witness will have been tainted by the discussion.” Although that.

motion was denied, it was again defense counsel who, following a re-

cess taken during Officer Bowden’s testimony, brought to the court's

attention that ‘‘once again *** [the prosecutor] has been talking to a

witness [about chain of custody].” This discussion during the recess

PAGE A-9

ia i i

114 Peopler v. Lovinger 130 Dl. App. 3d 105

was one of the principal reasons for the court’s sua sponte declaration

of a mistrial. Under such circumstances, there are cases, not cited by

the parties, that suggest that failure to object does amount to con-

sent.

The case most similar to that before us is People v. Montlake

(1918), 184 App. Div. 578, 172 N.Y.S. 102.There the defendants were

charged with grand larceny in the first degree. A first trial ended in a

mistrial because the prosecutor referred to defense counsel as the at-

torney for the ‘‘pickpocket trust” and a pickpocket himself. On the

first occasion of such remarks, the defendants moved for a mistrial,

which motion was denied, and the defendants excepted. On the sec-

ond occasion they protested the remarks but did not move for a mis-

trial. On the third and final occasion, which was more flagrant than

the others, the court declared a mistrial on its own motion without ob-

jection by the defense. The reviewing court concluded that the mis-

trial was declared with the defendant’s consent, stating:

“T think that [the court’s] such action may well be regarded as

a somewhat belated granting of defendants’ said former motion

for that relief. Defendants’ exception to the denial of that mo-

tion still stood upon the record, and I think that defendants’

counsel should then in clear terms have withdrawn that motion

if he did not wish it granted. ” 184 App. Div. 578, 582, 172

N.Y.S. 102, 105.

More recently in State v. Wolak (1960), 33 N.J. 399, 165 A.2d 174,

cert. denied (1961), 365 U.S. 822, 5 L. Ed. 2d 701, 81 S. Ct. 710, the

defendant was charged with first degree murder. His first trial re-

sulted in a conviction which was reversed on appeal. During his retrial,

the prosecutor asked two witnesses to take the gun used in the killing,

and to point it at him as the defendant had allegedly pointed it at the

victim. The prosecutor then called the widow of the victim and di-

rected her to hold the gun, stand up like the defendant had, and point

it at anyone in the courtroom as if he were her husband to show the

aim. The witness pointed the gun at the defendant. The prosecutor

then asked her to whom she was pointing the gun, and she replied,

“‘Wolack [defendant] that --.” (833 N.J. 399, 400, 165 A.2d 174, 175.)

The defendant thereupon made a motion for mistrial, which was de

nied. The court instructed the jury to disregard the entire incident.

Three days later the court, outside the presence of the jury, in-

formed counsel that it had decided to reconsider the defendant’s mo-

tion for mistrial. Concluding that the demonstration by the victim’s ~

widow was prejudicial and would remain so regardless of his instruc-

tions to the jury, the judge ruled that he “must grant the motion

PAGE A-10

130 Ill. App. 3d 105 People v. Lovinger 115

made on behalf of the defendant for a mistrial.” (33 N.J. 399, 401,

165 A.2d 174, 175.) No objection was made by the defendant.

On appeal the defendant claimed that another retrial violated the

double jeopardy provision of the New Jersey Constitution. The re-

viewing court disagreed, concluding that the defendant waived his

right to go to verdict, stating:

“The right of the trial court to reconsider and redetermine mo-

tions made during trial cannot be disputed. As in the instant

case, the trial court did exactly that in [Montlake] ***.” 33 N.J.

399, 402, 165A.2d 174, 175.

Two similar cases are People v. Bowman (1971), 36 Mich. App.

502, 194 N.W.2d 36, and Kamen v. Gray (1950), 169 Kan. 664, 220

- P2d 160, cert. denied (1950), 340 U.S. 890, 95 L. Ed. 645, 71 S. Ct.

206. See also People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502,

431 N.E.2d 353 (defendant consented to mistrial where it was granted

on his motion, even though, after it was declared, defense counsel

stated he thought the mistrial should really be on the court’s motion

because the defense was not the cause of the mistrial); and Sedgwick

v. Superior Court for District of Columbia (D.C. Cir. 1978), 584 F.2d

1044, cert. denied (1979), 439 U.S. 1075, 59 L. Ed. 2d 42, 99 S. Ct.

849 (defendant held to have consented to mistrial declared on court’s

own motion without objection where the defendant moved to dismiss

the charge against him because of an alleged violation of his right to

pretrial discovery, arguing that his right to a fair trial was seriously

undermined by the discovery problem).

The court in Bowman included the following words of caution

about imputing a mistrial declared by the court to a prior motion by

the defendant for mistrial where such motion had been denied:

“We acknowledge the merit in the defendant’s fear that by

holding that a denial fof the prior motion] has no effect, any

motion made by.a defendant might be granted to his detriment

at some later stage of the proceedings when his fortunes have

changed. This, if allowed, would certainly dampen the efforts of

the defendant’s counsel to protect his client, making him fear-

ful that any motion for a mistrial, though denied, may return to

haunt him when the court decides to reverse its decision (per-

haps because a prosecutor’s case has not gone as well as it

might have), and force the defendant into a second trial on a

theory that the court was only finally doing what the defendant

asked him to do.” (86 Mich. App. 502, 509, 194 N.W.2d 36, 40.)

The court in Bowman went on to conclude that such a situation was

not presented in that case.

PAGE A-11l

116 Peopler v. Lovinger 130 Ill. App. 3d 105

In the instant case, while the question may be a close one, this

court holds that the defendant consented to the mistrial. The prior

motion for mistrial was made by the defendant because the prosecu-

tor talked to one of his witnesses, Officer Hutchings, about chain of

custody during a recess taken during Hutchings’ testimony. Defense

counsel stated at that time his feeling that “the remaining testimony

by this witness will have been tainted by the discussion.’”’ Moreover,

the mistrial was declared by the court when defense counsel again

brought to the court’s attention another such discussion about chain

of custody, this time between the prosecutor and Officer Bowden dur-

ing a recess taken during the latter’s testimony. Under these circum-

stances, and in light of the authorities cited above, it was incumbent

upon defense counsel to object to the court’s mistrial declaration, if,

in fact, the defendant wanted to go to judgment. While the defendant

argues that there was no real opportunity to do so, counsel could well

have asked for leave to state his objection during the course of the

mistrial declaration. Had he done so, the mistrial declaration could

have been rescinded, as was done in People v. Estrada (1980), 91 Ill.

App. 3d 228, 414 N.E.2d 512.

Additionally, because this was a bench trial, the defendant might

readily, at a later date, have filed a motion asking the court to recon-

sider its mistrial declaration. Had the motion been granted, the trial

could have been resumed.

It is apparent that counsel initially spoke to Bowden in an effort

to satisfy defendant’s request for police reports of the October 5 and

10 transactions. Although, if Lovinger’s testimony is to be believed,

the prosecutor exceeded the scope of what would clearly be a proper

inquiry by asking Bowden why he did not follow the procesure de-

scribed by Hutchings regarding the key to the evidence locker, it is

difficult to conceive how it could be thought that such a question, if

- improper, would prevent a fair trial and a just verdict so that a mis-

trial would have to be declared. The record does not suppor: a conclu-

sion that the prosecutor was trying to provoke a mistrial because his

case had been going badly. Compare People v. Pendleton (1979), 75 Ill.

App. 3d 580, 394 N.E.2d 496.

In view of the foregoing, we do not reach the issue of ‘‘manifest

necessity.” The order of the circuit court of Lake County is therefore

affirmed, and the cause is remanded for a new trial.

Affirmed and remanded.

HOPF and REINHARD, JJ., concur.

PAGE A-12

APPENDIX

61491

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217)782-2035

June 4, 1985

No. 61491 - People of the State of

Illinois, respondent,

v. Jeffrey Lovinger,

Petitioner. Leave to

Appeal, Appellate Court,

Second District.

The Supreme Court today DENIED the

petition for leave to appeal in te above

entitled cause.

Moran, J., took no part.

The mandate of this Court will issue

to the Appellate Court on June 25, 1985.

PAGE B-1l

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.