Opposition Brief — Lovinger v. Illinois

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} upreme Court, U.S,

(y) FILED

No. 85-201 SEP 26 1985

JOSEPH F. SPANIOL, UR.

CLERK

In THe Be

Supreme Court of the Cinited States

Octoser Term, 1985

JEFFREY LOVINGER,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari To The

Appellate Court Of Illinois, Second Judicial District

RESPONDENT'S BRIEF IN OPPOSITION

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA J. STEWART

Solicitor General, State of Illinois

MARK L. ROTERT *

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Counsel for Respondent

Marcia L. Frrepi

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Of Counsel * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 32988—50—49-26-85)

9 We

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QUESTION PRESENTED FOR REVIEW

Whether petitioner has failed to present a substantial

federal question for review where, consistent with prece-

dent of this Court and that of other jurisdictions, the

lower court found him to have consented to the declara-

tion of a mistrial based upon the unique facts of this case?

li

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ...

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STATEMENT OF THE CASE ...............

REASONS FOR DENIAL OF THE WRIT:

PETITIONER HAS FAILED TO PRESENT A

SUBSTANTIAL FEDERAL QUESTION FOR

REVIEW WHERE, CONSISTENT WITH

PRECEDENT OF THIS COURT AND THAT

OF OTHER JURISDICTIONS, THE LOWER

COURT FOUND HIM TO HAVE CONSENTED

TO THE DECLARATION OF A MISTRIAL

BASED UPON THE UNIQUE FACTS OF THIS

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TABLE OF CASES

PAGES

Anderson v. United States, 481 A.2d 1299 (D.C.

CCCs Cech ness bk 06 coer th eeoeses 6

Curry v. Superior Court, 470 P.2d 345 (Cal. 1970) . 4

Kamen v. Gray, 220 P.2d 160 (Kan. 1950), cert.

denied, 340 U.S. 890 (1950) ...............

People v. Bowman, 194 N.W.2d 36 (Mich. 197) .

People v. Lawton, 487 N.Y.S.2d 278 (Sup. 1985). 5,6

People v. Montlake, 184 A.D. 578, 172 N.Y.S. 102

SE ee eee 6

Sedgewick v. Superior Court for the District of Col-

umbia, 584 F.2d 1044 (D.C. Cir. 1978), cert.

denied, 439 U.S. 1075 (1979) .............. 6

| Stete v. Wolak, 33 N.J. 399, 165 A.2d 174 (1960),

: cert. denied, 365 U.S. 822 (1961) ........... 6

| Torres v. State, 614 S.W.2d 436 (Tex. Crim. 1981). 4,6

| United States v. Dinitz, 424 U.S. 600 (1976) .. 3,4

United States v. Goldstein, 479 F.2d 1061 (2nd Cir.

ee ee pe bb eho es 6

United States v. Gordy, 526 F.2d 631 (5th Cir.

eee aa eek kcbanwiese ene

United States v. Jorn, 400 U.S. 470 (1971) .... 3,4

United States v. Phillips, 431 F.2d 949 (8rd Cir.

ee rd ask oa wie abe sede'es 6 5

United States v. Smith, 621 F.2d 350 (9th Cir.

ee ee he es ce cehs ebebe 044s 6 5

No. 85-201

In THE

Supreme Court of the United States

OctoBER Term, 1985

JEFFREY LOVINGER,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari To The

Appellate Court Of Illinois, Second Judicial District

RESPONDENT'S BRIEF IN OPPOSITION

JURISDICTION

The jurisdictional requisites are adequately set forth in

the petition. However, as treated more fully in the argu-

ment contained herein, respondent does not believe that

petitioner has shown any reason for this Court to exer-

cise its sound judicial discretion to grant the writ.

oo

STATEMENT OF THE CASE

Respondent accepts petitioner’s Statement of the Case

for purposes of this Brief in Opposition. Additional facts

necessary for an understanding of the issues raised by

the petition will be included in the argument portion of

this brief with appropriate record references.

REASONS FOR DENIAL OF THE WRIT

PETITIONER HAS FAILED TO PRESENT A SUBSTAN-

TIAL FEDERAL QUESTION FOR REVIEW WHERE,

CONSISTENT WITH PRECEDENT OF THIS COURT AND

THAT OF OTHER JURISDICTIONS, THE LOWER COURT

FOUND HIM TO HAVE CONSENTED TO THE DECLA-

RATION OF A MISTRIAL BASED UPON THE UNIQUE

FACTS OF THIS CASE.

Petitioner unfairly characterizes the lower court’s deci-

sion here to rest upon but two circumstances: that peti-

tioner did not interpose a contemporaneous objection to

the trial court’s declaration of a mistrial and that peti-

tioner had previously moved for a mistrial due to an in-

cident separate from those identified by the judge as the

cause for his ruling. Rather, the appellate court based its

finding of implied consent on the totality of the circum-

stances presented by the record. These circumstances in-

clude the facts that (1) petitioner’s case was prosecuted

as a bench trial; (2) petitioner’s motion for a mistrial was

predicated upon his belief, despite denial by the prosecu-

tion, that State’s witness Hutchings was being coached

during a recess concerning the chain of custody of various

atllinn

exhibits (R. 453, 456, 457); (8) the trial judge repeatedly

stated for the record that he deemed out-of-court conver-

sations between the prosecutor and his witnesses improper

and possible grounds for a mistrial (R. 454-56, 486, 550,

620); (4) the defense motion for a mistrial was denied be-

cause Hutchings’ conversation with the prosecutor was

not found to be prejudicial (R. 454, 456); (5) the testimony

of Bowden, which followed that of Hutchings, was inter-

rupted by a recess after which the defense complained

of a second prejudicial out-of-court conversation between

the prosecutor and his witness concerning the chain of

custody of the State’s exhibits (R. 622); (6) after hearing

conflicting accounts of the conversation between the prose-

cutor and Bowden (R. 622-27), the judge noted his belief

that ‘“‘a lot of’ error was beginning to creep into the

record and called a recess to review police reports and

the court reporter’s notes of what had transpired (R. 629);

(7) when the judge resumed the bench, he indicated that

he was declaring a mistrial in part because the prosecu-

tor and a witness had discussed a pending matter out of

court despite the judge’s admonitions and gave inconsis-

tent accounts of the conversation (R. 630-32); and (8) peti-

tioner did not raise an objection to the mistrial until over

a month later after the case had been reassigned to a new

judge. (C. 121-24) In light of these additional facts, the

appellate court’s holding is not at odds with any prece-

dent of this Court (see Petition at 30) and is consistent

with developing caselaw from other jurisdictions. Accord-

ingly, petitioner has failed to present a substantial federal

question for review by this Court.

In support of his proposition that failure to object to

the court’s declaration of a mistrial should not reflect a

defendant’s consent to the mistrial, petitioner cites United

States v. Dinitz, 424 U.S. 600 (1976), United States v.

atlas

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

P.2d 345 (Cal. 1970), and Torres v. State, 614 S.W.2d 436

(Tex. Crim. 1981). In Dinitz, this Court made it clear that

a defendant may be held to have consented to a mistrial

even though he has not personaily made a knowing and

voluntary waiver of the right not to be placed twice in

jeopardy and even though he has been presented with a

“Hobson’s choice” as a result of unintentional judicial or

prosecutorial error. 424 U.S. at 608, 609, n. 11. While peti-

tioner correctly notes that Dinitz found critical to the

issue of consent whether a defendant has retained “primary

control over the course to be followed in the event of such

error” (id. at 609), nothing in that case suggests that con-

trol over the proceedings is lost merely because the court

sua sponte orders a mistrial, which order could be easily

rescinded upon request by the defense. Similarly, this

Court in Jorn required a showing of manifest necessity

only where the trial court’s actions have actually deprived

or foreclosed a defendant of his option to complete his

trial before a particular tribunal. 400 U.S. at 484, 485.

Indeed, it was specifically pointed out in Jorn that the

defendant there had been given no opportunity to object

to the discharge of his jury and recommend viable alter-

natives to a mistrial. Jd. at 487.

Unlike Jorn, where the trial court’s discharge of the

jury irrevocably foreclosed the defendant from the bene-

fit of its verdict, petitioner in the present case had ample

opportunity to voice any objection to the mistrial before

the objection would have been futile. First, contrary to

petitioner’s assertion, the mistrial cannot be deemed to

have been announced “suddenly”; it was declared only

after the court made clear its view that any out-of-court

conversations between the prosecutor and his witnesses

would be grounds for a mistrial if found prejudicial, after

=

petitioner had moved for a mistrial alleging off-the-record

coaching of his witness by the prosecutor concerning the

chain of custody, after petitioner complained that during

a recess the prosecutor coached another witness concern-

ing the same subject matter, after a hearing was held on

the substance of that conversation wherein conflicting tes-

timony was given which clearly disturbed the judge, soon

after the court recessed proceedings to review what had

transpired, and immediately after the judge registered on

the record his dissatisfaction with the accounts of their

conversation given by the prosecutor and Bowden. Second,

even assuming the court’s ruling could not have been an-

ticipated by the defense and was made as the judge left

the bench, it was certainly not a fait accompli; the trial

court had in no way been put on notice that petitioner

might not be in agreement with its ruling and the defense

could have easily moved for reconsideration of the order

that day or the next. If successful, his conditional right

to have Judge Hoogasian sit as trier of fact would have

remained intact.

It is true that in Curry, the court suggested that mere

silence in the face of a mistrial order can never constitute

implied consent. But see United States v. Phillips, 431

F.2d 949 (8rd Cir. 1970). Even if this proposition were

accepted, however, the jurisdictions appear to be in agree-

ment that a defendant’s failure to affirmatively express

actual or potential disagreement with the court’s declara-

tion of a mistrial at a time when it could be effectively

rescinded is a highly relevant factor in resolving the issue.

See, e.g., United States v. Smith, 621 F.2d 350 (9th Cir.

1980) (implied consent found where prior to discharge of

jury, defense counsel did not object to swa sponte mis-

trial order and indicated his understanding that retrial

would occur); People v. Lawton, 487 N.Y.S.2d 278 (Sup.

wih

1985) (same); Anderson v. United States, 481 A.2d 1299

(D.C. App. 1984) (implied consent found where defense had

argued prejudice from improperly admitted testimony and

failed to object to the swa sponte declaration of a mis-

trial based upon the error); Sedgewick v. Superior Court

for the District of Columbia, 584 F.2d 1044 (D.C. Cir.

1978), cert. denied, 489 U.S. 1075 (1979) (where defendant

had moved for dismissal due to Brady violation, but the

court declared mistrial instead, defendant had duty to

make his position on the issue clear); People v. Montlake,

184 A.D. 578, 172 N.Y.S. 102 (1918) (where defense mo-

tion for mistrial based upon improper prosecutorial com-

ments denied but mistrial later ordered without objection

due to subsequent but similar error, implied consent);

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

denied, 365 U.S. 822 (1961) (implied consent where denial

of defense motion for mistrial reconsidered three days

later without objection); United States v. Goldstein, 479

F.2d 1061 (2nd Cir. 1973) (where defendant moved for a

mistrial on grounds of jury deadlock and mistrial declared

by court after two hours of further jury deliberation, de-

fense had duty to make change in position known to the

court); People v. Bowman, 194 N.W.2d 36 (Mich. 1970)

(defendant obliged to object when trial court reconsidered

denial of his motion for mistrial); Kamen v. Gray, 220 P.2d

160 (Kan. 1950), cert. denied, 340 U.S. 890 (1950) (same);

United States v. Gordy, 526 F.2d 631 (5th Cir. 1976) (dicta

that defendant’s failure to timely object to the sua sponte

declaration of a mistrial may vitiate his double jeopardy

claim). Compare Torres v. State, supra (no implied con-

sent found where co-counsel objected to mistrial and coun-

sel not given opportunity to consult with defendant despite

request).

~

Petitioner correctly notes that in some of the above

cases, the defendant had both moved for a mistrial and

the mistrial was ultimately ordered on the same grounds

pressed in support of the motion. He errs, however, in

suggesting these cases to be thereby distinguishable on

facts significant to the double jeopardy prohibition. When

a defendant moves for a mistrial, he formalizes his posi-

tion, though perhaps temporary, that irremediable error

has been injected into the trial and that proceedings

before the initial trier of fact should be aborted. Regard-

less of the error giving rise to a later swa sponte declara-

tion of mistrial, the ultimate issue facing a defendant re-

mains the same: does he still believe that a mistrial will

enure to his benefit or have intervening events altered

that evaluation? And while it is true that a later sua

sponte declaration of a mistrial on grounds unrelated to

those pressed by a defendant in his motion might be sub-

ject to abuse were the defendant held to have irrevocably

waived his right to proceed with the trial, no potential for

abuse is present when a defendant is given the oppor-

tunity to make his contrary position known to the court.

Finally, for the same reasons that the mistrial ruling

in the present case cannot be considered to have been

suddenly announced, the basis for petitioner’s motion for

a mistrial cannot be fairly characterized as unrelated to

the court’s decision to terminate the trial. Particularly

under these circumstance:, it does no violence to the

double jeopardy clause to require a defendant to notify

the court that he no longer considers a mistrial to be in

his best interests.

af

CONCLUSION

For the foregoing reasons, the People of the State of

Illinois respectfully request that this Court deny the Peti-

tion for a Writ of Certiorari.

Respectfully suomitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA J. STEWART

Solicitor General, State of Illinois

MARK L. ROTERT*

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Counsel for Respondent

Marcia L. FRIEDL

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Of Counsel * Counsel of Record