Petition for Writ of Certiorari — Circuit Court of the 19th Judicial Circuit v. Lovinger
Supreme Court brief1988
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H8-L OF
No.
In THE
Supreme Court of the Gnited States
Octoser TERM, 1988
CIRCUIT COURT OF THE 19TH JUDICIAL
CIRCUIT, LAKE COUNTY, ILLINOIS,
Petitioner,
VS.
JEFFREY LOVINGER,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
NEIL F. HARTIGAN
Attorney General, State of Illinois
ROBERT J. RUIZ
Solicitor General, State of Illinois
TERENCE M. MADSEN
MARCIA L. FRIEDL *
Assistant Attorneys General
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 917-2127
Counsel for Petitioner
* Counsel of Record
Printed by Authority of the State of Illinois (P.O. 34148—55—7-15-88)
i
QUESTION PRESENTED
Whether the Double Jeopardy Clause bars prosecution
after a trial court’s swa sponte mistrial order, held on
review to be unsupported by manifest necessity, where
had the defendant timely objected to the order it could
have been rescinded?
il
TABLE OF CONTENTS
QUESTION PRESENTED ....ccecuscesescces
TABLE OF AUTHIORITIGCS 6.10400 cdnceesnes
OPINIONS BRI oon ceases ccs'eseeeen en ean
SURIBUNCTION 6 csceccdedudes taeenuenwaes
CONSTITUTIONAL PROVISION
EPOVOLVER? occcccccenednbecseeeseaaeee eae
STATEMENT OF THE CASE ...............
REASONS FOR GRANTING THE WRIT:
THE SEVENTH CIRCUIT’S DECISION MIS-
CONSTRUES DOUBLE JEOPARDY PRECE-
DENT OF THIS COURT, CONFLICTS IN
PRINCIPLE WITH PROCEDURAL DEFAULT
PRECEDENT OF THIS COURT, CANNOT BE
RECONCILED WITH CASELAW IN THE
ELEVENTH CIRCUIT, AND WILL UN-
NECESSARILY RESULT IN THE OUTRIGHT
RELEASE OF GUILTY DEFENDANTS ....
CONCLUBION | ...0.c2c4s00eerunaneneee ene
APPENDIX
Opinion of the United States Court of Appeals
for the Seventh Circuit, May 2, 1988 .....
Judgment Order of the United States Court
of Appeals for the Seventh Circuit, May 2,
NGOS ow wccdnncdnseeesase eee
Order of the United States District Court for
the Northern District of Illinois, Eastern Divi-
sion, February 2, WOST oc. scencecuawenece
—————
iil
Report and Recommendation of the Magistrate,
United States District Court for the Northern
District of Illinois, Eastern Division, December
Seca cceslasacdisesshsesssusesseee A-18
Opinion of the Appellate Court of Illinois, Sec-
ond Judicia! District, January 17, 1985 ..... A-43
TABLE OF AUTHORITIES
Cases PAGE
Estelle v. Williams, 425 U.S. 501 (1976) ...... i)
Green v. United States, 355 U.S. 184 (1957) .... 10
Greer v. Miller, U.S. , 107 S.Ct. 3102
re cea weesssecnss i )
Haas v. Pittsburgh Nat’l Bank, 627 F.2d 677 (8rd
ENED te ape IE eee a a ee 10
Johnson v. Zerbst, 304 U.S. 458 (1938) ....... 8
Jones v. Barnes, 463 U.S. 745 (1983) ......... )
People v. Bean, 26 Il. App. 3d 1059, 325 N.E.2d
Sea eebeine es 11
People v. Camden, 115 IIl.2d 369, 504 N.E.2d 96,
cert. denied, US. _., 107 S.Ct. 2464
ee in cies ca ceesetuateeese 11
People v. Escobar, Ill.App.3d _, 522 N.E.
Ce PD cca s ana stdaderaceose 11
People v. Estrada, 91 Ill.App.3d 228, 414 N.E.2d
re ab ockpas ates ss seseesex 11
People v. Lovinger, 130 Ill.App.3d 105, 473 N.E.
2d 980 (2d Dist.), cert. denied, 474 U.S. 919
LE CU ance dab 54d ey 6066.00 oe.0.000 2,6, 11
iv
Thomas v. Arn, _... U.S. ___, 106 S.Ct. 466
SE was itacsudiddd ikaceweseren epee. sak 11
United States v. DiFrancesco, 449 U.S. 117
SEE ob cidc ccs eeeGiddawlaskuuuaeee ee ewen 7
United States v. Dinitz, 424 U.S. 600 (1976) .. 8
United States v. Jorn, 400 U.S. 470 (1971) .... 8,10
United States v. Puleo, 817 F.2d 702 (11th Cir.),
cert. denied, ___ U.S. ___, 108 S.Ct. 491
SE hae cdaau aabeakeh ote ae cease iiss
United States v. Smith, 621 F.2d 350 (9th Cir.
1980), cert. denied, 449 U.S. 1087 (1981) ..... 10
United States ex rel. Clauser v. McCevers, 731 F.
gf if. Yo Re Penner 7
Wainwright v. Sykes, 433 U.S. 72 (1977) ...... 11
Constitutional Provision
ey 2 ne 2
In THE
Supreme Court of the United States
Ocroser Term, 1988
CIRCUIT COURT OF THE 19TH JUDICIAL
CIRCUIT, LAKE COUNTY, ILLINOIS,
Petitioner,
Vs.
JEFFREY LOVINGER,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
OPINIONS BELOW
The decision of the United States Court of Appeals for
the Seventh Circuit in Lovinger v. Circuit Court of the
19th Judicial Circuit, Lake County, Illinois, No. 87-1397
(7th Cir. 5/2/88), is not yet reported; a copy of the slip
opinion is appended to thir petition at A-1.
The Order of the district court, and Report and Recom-
mendation of the magistrate, are reported at Lovinger v.
nals
Circuit Court, 652 F.Supp. 1336 (N.D. Ill. 1987), and ap-
pended to this petition at A-15 and A-18 respectively.
The decision of the Appellate Court of Illinois, Second
Judicial District, is reported at People v. Lovinger, 130
Ill. App. 3d 105, 473 N.E.2d 980 (2nd Dist.), cert. denied,
474 U.S. 919 (1985), and appended to this petition at A-43.
JURISDICTION
Respondent filed a petition for writ of habeas corpus
under 28 U.S.C. §2254. After relief was granted by the
district court, petitioner sought review of that decision
by the United States Court of Appeals for the Seventh
Circuit pursuant to 28 U.S.C. §§1291 and 2253. On May
2, 1988, a panel of the seventh circuit issued and entered
an opinion affirming the Order of the district court. Within
ninety (90) days, petitioner lodged the instant petition in-
voking the jurisdiction of this Court under 28 U.S.C.
§1254(1).
CONSTITUTIONAL PROVISION INVOLVED
Fifth Amendment, United States Constitution:
No person .. . shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb.
==
STATEMENT OF THE CASE
Respondent was charged by the State of Illinois with
unlawful delivery of narcotics to an undercover police
agent and proceeded to a bench trial before the Circuit
Court of the Nineteenth Judicial Circuit, Lake County,
Illinois. When the testimony of the undercover officer and
the crime laboratory analyst concluded, the State pre-
sented that of evidence officer Thomas Hutchings to estab-
lish a chain of custody for the alleged cocaine and can-
nabis sold. (R. 402) An inconsistency developed as to when
Hutchings had taken custody of one of the People’s ex-
hibits, and the trial judge granted a short recess so that
the prosecutor could “get [his] act together.’’ (R. 448-50)
After the recess, defense counsel alleged that respon-
dent had been irreparably prejudiced by an apparent at-
tempt during the recess to coach Hutchings concerning
the chain of custody of various exhibits. (R. 451-53) The
prosecutor responded that while he had asked Hutchings
to review his records and testify from memory, the two
did not discuss the substance of the testimony. (R. 453)
The judge stated that the prosecutor had acted improperly
and ordered that there be no further conversations be-
tween the prosecutor and Hutchings, but determined that
no fatal error had occurred; if there was a motion for
mistrial, it was denied. (R. 454-56) Defense counsel then
unsuccessfully moved that Hutchings’ testimony be stricken
in its entirety, that he be precluded from testifying fur-
ther, and that a mistrial be declared. (R. 456-57) Prior
to the weekend recess, the judge again admonished Hutch-
ings that he not discuss the case “because you are under
oath and because we don’t want any mistrial to occur.”’
(R. 486) Near the conclusion of Hutchings’ direct testi-
enlien
mony, the judge observed that it continued to be confus-
ing. (R. 502)
Officer Michael Bowden was also called as a State’s wit-
ness to establish chain of custody. During his testimony,
he was unable to remember with certainty the specific
day he turned over one of the People’s exhibits to Hutch-
ings, and the case was continued until afternoon in order
that he could check relevant records. (R. 619-20) When
proceedings resumed, defense counsel stated that “Once
again I am informed that [the prosecutor] has been talk-
ing to a witness,”’ Officer Bowden. (R. 622) After hear-
ing from the prosecutor, Officer Bowden, and respondent,
the judge called a short recess, observing “I’m not go-
ing to have any case sith any hint of error, and we are
starting to have a let of error creep into this record.”
(R. 629)
When he returned t« the bench, the judge made the
following statement:
Is everybody in court? Let the record show that
the Defendant is present in open court and in his
own proper person, with Robert P. Will, his attor-
ney. That the People are represented by Steven
McCullom.
Gentlemen, at this time I want ut something on
the record. I have not been satisfred ed with the way
this case has been presented. First, I call to the at-
tention 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 concerned about the lack of discovery
afforded the defense, pursuant to court order of
Judge Doran, and even of this court.
ilies
Third, there was 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 iden-
tification, when I had ordered all of the exhibits to
be taken to the defense chemist for purpose of anal-
ysis, pursuant to the order of discovery.
Fourth, I am very much concerned about what oc-
curred early this afternoon in this courtroom. And
this can be classified as either direct or indirect con-
tempt, and I’m not going into that phase of it. Be-
cause 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 De-
fendant 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 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.”
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 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 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 continued.
(R. 630-32) No further proceedings before the judge were
recorded.
Over one month later, after the case was assigned to
a new judge, respondent unsuccessfully moved to dismiss
the prosecution on double jeopardy grounds. (R. 636, 670)
At that time, defense counsel stated that the first judge
had uttered the “last sentence or so” of his statement
as he was getting up and walking out the door. (R. 644)
On respondent’s interlocutory appeal to the Appellate
Court of Illinois, Second Judicial District, the court ob-
served that respondent had previously moved for a mis-
trial based upon the prosecutor’s mid-testimony conver-
sation with one of his witnesses concerning chain of cus-
tody, that the mistrial was declared in part because de-
fense counsel once again brought to the court’s attention
another discussion between the prosecutor and a witness
concerning chain of custody, and that any error in the
mistrial order could have been rectified that day or the
next. It held that under these circumstances, ‘‘it was in-
cumbent upon defense counsel to object to the court’s
mistrial declaration if, in fact, the defendant wanted to
go to judgment.” Accordingly, the court declined to rule
on respondent’s contention that termination of his trial
was not supported by manifest necessity. People v. Lov-
mger, 130 Ill. App. 3d 105, 116, 473 N.E.2d 980, 988 (2nd
Dist. 1985).
=
After this Court denied respondent’s petition for writ
of certiorari [Lovinger v. Illinois, 474 U.S. 919 (1985)],
he filed a petition for writ of habeas corpus in the United
States District Court for the Northern District of Illinois
pursuant to 28 U.S.C. §2254, again alleging that abortion
of his trial was not justified by manifest necessity. Re-
jecting petitioner’s position that the issue of manifest
necessity should not be reached due to respondent’s fail-
ure to sooner object to the mistrial order, the district
court concluded that no necessity existed and that fur-
ther prosecution of respondent was barred by the Double
Jeopardy Clause. Lovinger v. Circuit Court, 652 F.Supp.
1336 (N.D. Ill. 1987). Agreeing with the lower court’s
analysis, the seventh circuit affirmed. (A-14)
REASONS FOR GRANTING THE WRIT
THE SEVENTH CIRCUIT’S DECISION MISCONSTRUES
DOUBLE JEOPARDY PRECEDENT OF THIS COURT,
CONFLICTS IN PRINCIPLE WITH PROCEDURAL DE-
FAULT PRECEDENT OF THIS COURT, CANNOT BE RE-
CONCILED WITH CASELAW IN THE ELEVENTH CIR-
CUIT, AND WILL UNNECESSARILY RESULT IN THE
OUTRIGHT RELEASE OF GUILTY DEFENDANTS.
Relying on its own decision in United States ex rel.
Clauser v. McCevers, 731 F.2d 423 (7th Cir. 1984), which
in turn relied on this Court’s decision in United States
v. DiFrancesco, 449 U.S. 117, 130 (1980), the court below
held that absent manifest necessity for aborting the pro-
ceedings, a defendant’s consent to a mistrial must be af-
firmative and clearly evident from the record; even when
the defense has failed to interpose a contemporaneous ob-
=
jection to the mistrial, consent cannot be found where the
reviewing court determines ‘‘things were going defen-
dant’s way” at the moment the mistrial was declared.
(A-9, 10)! However, nowhere in DiFrancesco does this
Court address a defendant’s duty to object to a mistrial
declaration which he deems to be antagonistic to his in-
terests. Similarly, while United States v. Dinitz, 424 U.S.
600 (1976), 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 control over the pro-
ceedings is lost merely because the court sua sponte
orders a mistrial, which order could be easily rescinded
upon request by the defense. See also United States v.
Jorn, 400 U.S. 470, 484-85 (1971) (requiring a showing of
manifest necessity only where the trial court’s actions
have actually deprived or foreclosed a defendant of his op-
tion to complete his trial before a particular tribunal).
This Court has therefore not squarely decided when a
defendant’s failure to contemporaneously object to the
declaration of a mistrial waives any error or constitutes
implied consent to the action. Dinitz held, however, that
the right not to be placed twice in jeopardy after declara-
tion of a mistrial is not among those rights which must
be waived knowingly and voluntarily under Johnson v.
Zerbsi, 304 U.S. 458 (1938). 424 U.S. at 609, n. 11. And
this Court has further made clear that where non-funda-
1 This position is in conflict with that of the eleventh circuit in
United States 1. Puleo, 817 F.2d 702, 705 (11th Cir.), cert. denied,
—__.:;U'S. ___, 108 S.Ct. 491 (1987), which held that complaint
of an improperly declared mistrial must be made as soon as possi-
ble if it is to be preserved for appellate review. Although the
Puleo decision was brought to the court’s attention below, it was
not noted in the seventh circuit’s opinion.
om
mental rights are at issue, the adversary system places
an affirmative duty on defense counsel to invoke the right.
In Estelle v. Williams, 425 U.S. 501 (1976), for example,
this Court refused to find fault with the trial court in fail-
ing to affirmatively ascertain whether the defendant con-
sented to appearing before the jury while dressed in jail
garb:
To impose this requirement suggests that the trial
judge operates under the same burden here as he
would in the situation in Johnson v. Zerbst, 304 U.S.
458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), where the
issue concerned whether the accused willingly stood
trial without the benefit of counsel. Under our adver-
sary system, once a defendant has the assistance of
counsel the vast array of trial decisions, strategic and
tactical, which must be made before and during trial
rests with the accused and his attorney. Any other
approach would rewrite the duties of trial judges and
counsel in our legal system.
Id. at 513. See also id. at 508, n. 3 (a counseled defen-
dant must affirmatively invoke non-fundamental rights, af-
fording the trial judge an opportunity to remedy any er-
ror, or suffer waiver of his claim); Greer v. Miller,
U.S. ___, 107 S.Ct. 3102, 3109, n. 8 (1987) (defense coun-
sel bears primary responsibility for ensuring that error
is cured in the manner most advantageous to his client);
Jones v. Barnes, 463 U.S. 745 (1988) (suggesting counseled
defendant not bound by attorney’s failure to invoke his
rights only where fundamental decisions of whether client
should plead guilty, waive a jury, testify in his own behalf
or take an appeal have been made without client’s con-
currence).
Independent of trial error, a wide range of strategic ad-
vantages exists which a defendant could secure by fore-
going his right to proceed to verdict. And defense coun-
within
sel, not an appellate court engaged in post facto review,
is in the best position to determine whether “things
were going defendant’s way”’, particularly where the as-
sessment incorporates factors wholly unrelated to pro-
ceedings memorialized on the record. Because the danger
that a defendant will later complain of rulings in which
he has acquiesced is manifest, and because unrectified er-
ror forever prohibits society from vindicating its interests
in prosecuting the guilty, the need for a contemporaneous
objection requirement in the context of mistrial declara-
tions is extraordinary.
Citing to this Court’s decision in United States v. Jorn,
400 U.S. 470 (1971), the lower court noted that in any
event defense counsel here did not have a reasonable op-
portunity to object to the mistrial order because it ap-
peared the trial judge actually left the courtroom as he
finished his statement. In Jorn, the trial judge precipitous-
ly discharged a jury and an attempt to subsequently re-
constitute that jury would give rise to core sixth amend-
ment concerns. Compare Green v. United States, 355 U.S.
184, 191 (1957) (defendant’s jeopardy terminated when the
jury discharged), with United States v. Smith, 621 F.2d
350, 352, n. 2 (9th Cir. 1980), cert. denied, 449 U.S. 1087
(1981) (mistrial order may be reconsidered prior to actual
discharge of jury). In the context of the bench trial con-
ducted here, on the other hand, it may be presumed that
the judge’s capability as fact-finder would remain intact
so as to leave unaffected respondent’s right to proceed
to verdict with his original trier of fact despite the tem-
porary entry of a mistrial order.?
2 That the trial court also ordered the case reassigned is irrele-
vant; even in the federal courts a judge retains jurisdiction to act
on an order recusing himself when the case has not yet been re-
assigned to a specific judge. See, e.g., Haas ». Pittsburgh Nat’l
Bank, 627 F.2d 677 (8rd Cir. 1980).
=
The seventh circuit further noted that respondent had
no opportunity at all to object until he appeared before
the newly-assigned judge over one month later when the
mistrial was a fait accompli. In making this observation,
the court inexplicably relied on a conclusory representa-
tion made by respondent’s counsel at oral argument while
ignoring Illinois caselaw including the very decision ren-
dered by the state court here. Illinois trial judges hold
the general power to modify or vacate their orders any
time before final judgment. Specifically, as a matter of
Illinois law defense counsel could have sought reconsidera-
tion of the mistrial order that day or the next. See Peo-
ple v. Lovinger, 130 Ill. App. 3d 105, 116, 473 N.E.2d 980,
988 (2d Dist.), cert. denied, 474 U.S. 919 (1985). Cf. Peo-
ple v. Camden, 115 I1].2d 369, 504 N.E.2d 96, cert. denied,
___ U.S. ___, 107 S.Ct. 2464 (1987) (where jury has not
yet been discharged, mistrial order may be properly re-
scinded); People v. Escobar, ___ Ill. App. 3d __, 522
N.E.2d 191 (1st Dist. 1988) (same); People v. Estrada,
91 Ill. App. 3d 228, 414 N.E.2d 512 (8rd Dist. 1980) (same);
People v. Bean, 26 Ill. App. 3d 1059, 325 N.E.2d 679 (4th
Dist. 1975) (same).*
To require that a defendant at least once make his posi-
tion known to the court while potential error can still be
corrected imposes on the litigant no serious, much less
unconstitutional, burden. Cf. Thomas v. Arn, ___. U.S.
___, 106 S.Ct. 466, 475 (1985) (the right of appeal was
3 Equally confusing in light of the state appellate court’s express
refusal to consider the issue of manifest necessity due to respon-
dent’s failure to timely object (130 Ill. App. 3d at 116, 473 N.E.2d
at 988) is the seventh circuit’s finding that comity considerations
underlying this Court’s decision in Wainwright v. Sykes, 433 U.S.
72 (1977), are inapplicable here because the state court considered
and rejected respondent’s claim on its merits. (A-6, n. 2).
a
om
not denied by holding claims forfeited by failure to ob-
ject to magistrate’s report; “it was merely conditioned on
the filing of a piece of paper’’). At the same time, the
failure to impose a contemporaneous objection requirement
would encourage abuse of the judicial system and more
likely result in the outright release of guilty persons
because the defense has strong incentive to be “victim-
ized’’ by an unnecessary mistrial declaration. The lower
court’s resolution of this significant issue, upon which the
federal courts are in conflict, is deserving of review by
this Court.
CONCLUSION
For all the reasons discussed herein, a writ of certiorari
should issue to review the decision of the United States
Court of Appeals for the Seventh Circuit.
Respectfully submitted,
NEIL F. HARTIGAN
Attorney General, State of Illinois
ROBERT J. RUIZ
Solicitor General, State of Illinois
TERENCE M. MADSEN
MARCIA L. FRIEDL *
Assistant Attorneys General
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 917-2127
Counsel for Petitioner
* Counsel of Record
APPENDIX
A-1
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 87-1397
JEFFREY LOVINGER,
Petitioner-Appellee,
Vv.
CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT, LAKE
CouNTY, ILLINOIS,
Respondent-A ppellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 85 C 10169—Charles R. Norgle, Judge.
ARGUED DECEMBER 11, 1987—DeEcIDED May 2, 1988
Before FLAUM and EASTERBROOK, Circuit Judges, and
GRANT, Senior District Judge.*
FLAUM, Circuit Judge. Jeffrey Lovinger’s bench trial
on charges of unlawful delivery of cocaine and cannabis
ended in a mistrial on February 8, 1983. Lovinger was
unable to convince the Illinois courts that the double
jeopardy clause of the fifth amendment bars his reprosecu-
tion for these offenses. After exhausting his state court
* The Honorable Robert A. Grant, Senior District Judge of the
United States District Court for the Northern District of Indiana,
is sitting by designation.
A-2
remedies, Lovinger petitioned the district court for a writ
of habeas corpus. The district court granted the writ and
we affirm.
I
Lovinger’s trial in the Circuit Court for the Nineteenth
Judicial Circuit, Lake County, Illinois was hampered from
the start by the prosecutor’s inability to establish a clear
chain of custody over the evidence. The details of the trial
are fully set forth in Magistrate Bucklo’s thorough Report
and Recommendation, which is appended to the district
court’s opinion. Lovinger v. Circuit Court, 652 F. Supp.
1336, 1338 (N.D. Ill. 1987). The state’s first witness was
the undercover officer who had purchased packages of
white powder and a n leafy substance from Lovinger
in October of 1979. evidence was divided into several
exhibits. When it emerged during cross-examination that
defendant’s expert had not been permitted to test all of
the exhibits as required by the court’s discovery order,
the judge continued the trial to allow for such testing.
When trial resumed, the state called an analyst from the
Illinois police crime laboratory who testified that the
substances purchased by the undercover officer were in
fact cocaine and cannabis.
It was during the testimony of the next witness, an
evidence officer for the Waukegan Police Department,
that the state’s chain of custody problems . Officer
Thomas Hutchings testified that he gave Exhibit No. 1 to
an outside examiner on November 4, 1982 for testing.
The prosecutor questioned Hutchings about the incon-
sistency between this testimony and Hutchings’ earlier
testimony that he had not come into contact with this ex-
hibit between September 14 and November 18, 1982. The
trial judge told the prosecutor that he was impeaching
his own witness and granted a recess so that the prose-
cution could “get its act together.”’
When the trial resumed, Lovinger’s lawyer reported
that Hutchings and the prosecutor had been seen discuss-
JF
A-3
ing the case during the recess and examining and ex-
changing papers. The prosecutor denied coaching the wit-
ness. The judge ordered that there be no further conver-
sations, and told the defense that any error was harmless
so that if Lovinger intended to move for a mistrial, the
motion would be denied. Lovinger’s lawyer then moved
that the court declare a mistrial or alternatively that
Hutchings’ testimony be stricken and that he be precluded
from testifying further. The court denied these motions.
Hutchings resumed testifying, and again contradicted him-
self as to when he had turned over the exhibits for out-
side examination and when the examiner had returned
them to the evidence room. Another short recess was de-
clared, after which Hutchings’ recollection was consider-
ably clearer. Before recessing until the following Monday,
the court instructed Hutchings not to discuss the case or
his testimony with anyone.
Unfortunately for the state, Hutchings’ recollection was
less than lucid when he resumed the stand on Monday,
February 7, 1983. He could not remember, even when
aided by suggestive questioning, when he had given out
or returned certain of the exhibits. The judge felt com-
pelled to state:
This record has got evidence going out and never re-
turning. This record has got the evidence, the same
evidence going out twice, never returning for the first
time. There is confusion.
During cross-examination, Hutchings discussed police pro-
cedures for entering into a log book the dates for the re-
moval or return of evidence. Defense counsel requested
review of the log book; the court granted a half-hour
recess for this purpose. After the recess, Hutchings tes-
tified that one of the log book entries, which conflicted
with his testimony, was incorrect.
On February 8, Officer Bowden, the government’s next
chain of custody witness, also had trouble recalling when
he had returned one of the exhibits to the evidence locker.
The judge continued the case until the afternoon and in-
A-4
structed Bowden not to discuss his testimony. When the
trial resumed, defense counsel told the Judge that Lov-
inger had seen the prosecutor talking with Bowden during
the recess and had heard something about the evidence
locker. The prosecutor admitted having asked for certain
reports, but denied discussing any aspect of Bowden's tes-
timony. When asked if he had discussed his testimony
with the prosecutor, Bowden revealed that he had only
been expressing his displeasure “with the fact that I was
getting my butt chewed out.”’ The judge asked for the
reports and stated, “I’m not going to have any case with
any tint of error, and we are starting to have a lot of
error creep into this record.”
The judge took a short recess, and upon return verified
that all parties and counsel were present. He then pro-
ceeded with the following declaration:
Gentlemen, at this time I 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 at-
tention 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 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 iden-
tification, 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 oc-
curred early this afternoon in this courtroom. And
this can be classified as either direct or indirect con-
ie
A-5
tempt, and I’m not going into that phase of it. Be-
cause 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 de-
fendant, 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 |
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.”
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 Attorney, not to discuss
this case with anyone. And prior to I continuing this
matter this morning, | said, “I am going to continue
this case to 1:30. You don’t talk with them; they
don’t talk with vou 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 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
continued.
The judge left the courtroom as he was finishing his state-
ment.
A-6
The clerk of the court reassigned the case to Judge
McQueen. On February 18, 1983, at Lovinger’s first ap-
pearance before the new judge, he objected that the mis-
trial was not required by manifest necessity and moved
to dismiss on double jeopardy grounds. The case was con-
tinued until March 18, when Judge McQueen heard argu-
ments and denied the motion. The Appellate Court of IIli-
nois, Second District, affirmed the circuit court’s order!
and remanded the case for trial. The appellate court rea-
soned that Lovinger had consented to a mistrial by mov-
ing for one early in the trial and by failing to object when
the judge made his announcement. People v. Lovinger, 130
Ill. App. 3d 105, 473 N.E.2d 980, 85 Ill. Dec. 381 (1985).2
The Illinois Supreme Court denied leave to appeal, the
United States Supreme Court denied Lovinger’s petition
for certiorari, 474 U.S. 919 (1985), and on December 6,
1985 Lovinger filed a habeas petition in the district court.
Both parties moved for summary judgment. The matter
was referred to Magistrate Bucklo, who issued a report
on December 17, 1986 finding after careful analysis that
Lovinger did not consent to a mistrial and that no mani-
fest necessity for a mistrial existed. The district court
adopted the magistrate’s report and granted the writ of
‘ Under Illinois Revised Statutes, chapter 110, paragraph 604(f),
a defendant ‘‘may appeal to the Appellate Court the denial of a
motion to dismiss a criminal proceeding on grounds of former
jeopardy.”
? Nothing in the Illinois Appellate Court’s ruling that Lovinger
consented to mistrial indicates a deliberate, strategic bypass of a
state procedural opportunity. See Brownstein v. Director, Illinois
Dept. of Corrections, 760 F.2d 836 (7th Cir. 1985). Further, Lov-
inger’s failure to object during the mistrial declaration did not de-
prive the Illinois courts of the opportunity to consider the pro-
priety of mistrial and therefore to cure any error themselves. See
Wainright v. Sykes, 433 U.S. 72 (1977). Both Judge McQueen and
the Illinois Appellate Court considered Lovinger’s claim and re-
jected it on its merits. We agree with the district court that even
if this case implicated the concerns raised in Sykes, Lovinger has
shown the cause and prejudice necessary to obtain habeas review.
A-7
habeas corpus on February 12, 1987 barring reprosecu-
tion on the cocaine and cannabis charges.? The district
court’s judgment was stayed pending this appeal.
Il.
The double jeopardy clause of the fifth amendment,‘ ap-
plicable to the states through the fourteenth amendment,
Benton v. Maryland, 395 U.S. 784, 787 (1969), protects
at least two important interests. United States v. Rich,
589 F.2d 1025, 1028 (10th Cir. 1978). First, individuals
should be spared the emotional and financial hardship of
successive prosecutions at the powerful hand of the State.
Green v. United States, 355 U.S. 184, 187-88 (1957). Sec-
ond, defendants must be protected from the unfairness
of a mistrial declaration designed to give the government
a second chance to convict when the first is going badly.
Gori v. United States, 367 U.S. 364, 369 (1961). These con-
cerns, implicated by both bench and jury trials, United
States v. Jorn, 400 U.S. 470, 479 (1977) (plurality opinion),
must be balanced against “the public’s interest in fair
trials designed to end in just judgments.” Wade v.
Hunter, 336 U.S. 684, 689 (1949). Thus, the double jeop-
ardy clause does not bar all reprosecution. A defendant
who consents to the termination of a first trial may again
be put in jeopardy for the same offense, uniess the con-
duct of the prosecutor or judge was intended to provoke
the mistrial. Oregon v. Kennedy, 456 U.S. 667 (1982).
Even when a defendant does not consent, he may be re-
tried if there was “manifest necessity” that the first trial
be terminated. See United States v. Dinitz, 424 U.S. 600,
606-7 (1976); Clauser v. McCevers, 731 F.2d 4238, 426 (7th
Cir. 1984).
3 Apparently because of some confusion as to when the writ was
granted, the district court issued an order on June 30, 1987 grant-
ing the writ nunc pro tunc on February 138, 1987.
4 ‘(Nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb. . . .” U.S. Const. amend. V.
A-8
A.
The state alleges that Lovinger explicitly consented to
the mistrial by making a motion earlier in the proceedings.
The state further argues that Lovinger implicitly con-
sented to the mistrial by failing to object during the trial
judge’s declaration. We reject both arguments.
The defense moved for a mistrial during officer Hutch-
ings’ testimony. We hold that this motion did not consti-
tute explicit consent to a mistrial. First, the motion was
merely perfunctory. Defense counsel moved for a mistrial
only after the judge told him that any mistrial motion he
made would be denied; his resulting motion was denied
as promised. Second, the judge’s eventual mistrial declara-
tion was not based on allegedly improper conversations
between officer Hutchings and the prosecutor—the only
grounds for Lovinger’s only mistrial motion. When the
judge declared a mistrial later in the proceedings, he iden-
tified four reasons for his dissatisfaction with the trial:
1) the state’s delay in bringing the case to trial; 2) the
lack of discovery allowed the defense; 3) the state’s failure
to comply with the court’s discovery orders; and 4) the
prosecutor’s conversations with witness Bowden. The
judge did not mention Lovinger’s earlier objection and
mistrial motion which were made during Hutchings’ tes-
timony. In any case, in light of the state’s repeated foibles
and the trial judge’s resulting displeasure with the prose-
cution of the case, Lovinger’s assessment of his chances
of acquittal may well have changed in the interim between
the perfunctory mistrial motion and the eventual mistrial
declaration. See Russo v. Superior Court, 483 F.2d 7, 17
(3d Cir.), cert. denied, 414 U.S. 1023 (1973) (no consent
where defendant made a mistrial motion on grounds of
jury deadlock one day prior to court’s mistrial declara-
tion on grounds of jury exhaustion). ‘“‘We see no reason
to lock [defendant] into a motion once it is made.” Jd.
We also refuse to construe as a mistrial motion the fact
that Lovinger brought to the court’s attention the alleged-
ly improper conversation between Bowden and the prose-
A-9
cutor. The defense might on one hand be damaged by a
witness who testifies more convincingly as a result of im-
proper conversations with the prosecutor. However, by
pointing out the impropriety to the court at a bench trial,
the defense may effectively impeach that witness’ credibil-
ity. The defendant might well be pleased with this result
and, far from desiring a mistrial, might wish to proceed
to a verdict before the first tribunal. We cannot presume
that the defense deems itself hurt rather than helped by
such an occurrence, and on that basis convert an objec-
tion into a mistrial motion. Further, were we to construe
consent to mistrial so broadly, the state would routinely
gain a second chance to prosecute without meeting the
well-established “manifest necessity” standard.> Nearly
every objection or complaint by a defendant regarding the
fairness of the proceedings could be construed, under such
a far-reaching interpretation, as a motion for mistrial and
therefore a waiver of the protection of the double jeop-
ardy clause. We will not search for consent where it is
not affirmatively given and clearly evident on the record.
See Clauser, 731 F.2d at 426.
B.
Lovinger’s failure to object to the mistrial declaration
also cannot be considered implied consent because he had
no opportunity to object. It appears from the record that
the judge actually left the courtroom as he finished his
statement. He was gone before the defense had any rea-
sonable opportunity to consider the import of his state-
ment and act upon it. See Jorn, 400 U.S. at 487 (trial judge
acted so abruptly there was no opportunity to object);
Russo, 483 F.2d at 17. Cf. United States v. Buljabasic,
808 F.2d 1260, 1266 (7th Cir. 1987) (defendant had “ample
time to deliberate”); United States v. Smith, 621 F.2d 350,
352 (9th Cir. 1980), cert. denied, 449 U.S. 1087 (1981) (“De-
fense counsel did not object to the order of mistrial, de-
5 See part III infra.
A-10
spite adequate opportunity to do so.’’); United States v.
Goldstein, 479 F.2d 1061, 1066-67 (2d Cir.), cert. denied,
414 U.S. 873 (1973) (same). Defense counsel could not rea-
sonably have been expected to interrupt the judge in the
few moments between the surprise mistrial declaration
and the judge’s departure from the courtroom. The record
reflects, and counsel represented at oral argument, that
Lovinger objected to mistrial at his earliest opportunity—
February 18, 1983—when he was first brought before Judge
McQueen for retrial.
In any event, by the time of the mistrial declaration,
“things were going defendant’s way, making an inference
of assent from silence implausible.” Buljabasic, 808 F.2d
at 1266. The prosecutor had been unable to establish a
simple chain of custody, had failed to comply with dis-
covery orders, and had allegedly talked to witnesses dur-
ing recesses in their testimony. This is not a case where
the trial judge was forced to declare a mistrial swa sponte
“in the sole interest of the defendant.” Gori, 367 U.S.
at 369. As noted, in light of the srosecution’s performance
Lovinger would not likely have chosen to assent to the
mistrial declaration had he been given time to deliberate.
Not once during the course the prosecution’s lackluster
presentation did Lovinger’s counsel make an unsolicited
mistrial motion. And after taking time to consider the
desirability of a mistrial, Lovinger objected at his first
available opportunity. The trial judge should have per-
mitted the defense at least to express its view before
making the unexpected mistrial declaration. “The impor-
tant consideration, for purposes of the Double Jeopardy
Clause, is that the defendant retain primary control over
the course to be followed in the event of [judicial or prose-
cutoxal] error.”” United States v. Dinitz, 424 U.S. 600, 609
(1976). By failing to allow Lovinger to express his view
on the propriety of mistrial, the judge deprived Lovinger
of the opportunity to exercise any control over the fate
of the trial. Cf United States v. Phillips, 431 F.2d 949
(3rd Cir. 1970) (where defense did not object to dismissal
of jury, state of record was insufficient to hold that trial
judge erred).
A-11
III.
Because the trial judge thus aborted the proceedings
without Lovinger’s consent, the double jeopardy clause
prohibits the state from retrying Lovinger unless there
was “manifest necessity” for the mistrial. United States
v. DiFrancesco, 449 U.S. 117, 180 (1980); United States
v. Perez, 9 Wheat 579 (1824). Under this standard, the
trial judge may declare a mistrial only if a “scrupulous
exercise of judicial discretion leads to the conclusion that
the ends of public justice would not be served by a con-
tinuation of the proceedings.” United States v. Jorn, 400
U.S. 470, 485 (1971) (plurality opinion) (quoting Perez, 9
Wheat at 580). Whether this nebulous standard is met can
only be determined on a case by case basis. Illinois v.
Somerville, 410 U.S. 458, 463 (1973). The discretion of the
trial judge to determine the existence of manifest necessity
for mistrial is of course entitled to deference. Id. at 462.
The failure to exercise discretion, however, may be tanta-
mount to abuse. The record must reflect that the trial court
kept “in the forefront the defendant’s valued right ‘of being
able, once and for all, to conclude his confrontation with
society through the verdict of a tribunal he might believe
to be favorably disposed to his fate.’’’ United States v.
Starling, 571 F.2d 934, 938 (5th Cir. 1978) (quoting Jorn,
400 U.S. at 486).
Although the “manifest necessity” test has not been ap-
plied in a mechanical fashion, courts have considered
whether the trial judge consulted counsel before declar-
ing a mistrial, e.g., Arizona v. Washington, 434 U.S. 497,
514 n.34, 515-16 (1978); Grandberry v. Banner, 653 F.2d
1010, 1015 (5th Cir. 1981), and whether the record indi-
cates that the judge considered significant available alter-
natives, e.g., Somerville, 410 U.S. at 469-70; Jorn, 400
U.S. at 487. “A precipitate decision, reflected by a rapid
sequence of events culminating in a declaration of mistrial,
would tend to indicate insufficient concern for the defen-
dant’s constitutional protection.” Brady v. Samaha, 667
F.2d 224, 229 (ist Cir. 1981). See Grandberry, 653 F.2d
at 1015-16; Cherry v. Director, State Board of Corrections,
635 F.2d 414, 417-18 (5th Cir. 1981). “Thus, if a trial judge
A-12
acts irrationally or irresponsibly, . . . his action cannot
be condoned.” Arizona v. Washington, 434 U.S. at 514
(citations omitted).
The record indicates that the trial judge took the kind
of abrupt and precipitate action which is inconsistent with
the exercise of sound discretion under the “manifest
necessity” test. Other than one perfunctory motion four
days prior to the mistrial declaration, the possibility of
mistrial was never raised during the course of the pro-
ceedings. The judge showed some frustration with the
prosecution, but nothing in his remarks indicate any con-
templation of the necessity of declaring a mistrial or
cognizance of the double jeopardy consequences of such
a course. During Bowden’s testimony, the judge took a
short recess and then proceeded into a lengthy and unex-
pected summary of his displeasure with the course of the
trial. Neither defense nor prosecution were consulted, and
neither could have reasonably expected a sua sponte mis-
trial declaration. There is no evidence on the record that
the court gave careful thought to alternatives. Further,
it is doubtful that mistrial was an appropriate response
to the perceived error. See Lovinger, 652 F. Supp. at 1347-
48 (Report and Recommendation of Magistrate Bucklo).
Of the first two concerns mentioned by the judge, the
delay in prosecution would only be worsened by retrial,
and the discovery violations were remedied early enough
in the trial so as not to prejudice Lovinger. Any prejudice
resulting from the prosecution’s conversations with wit-
nesses could have been addressed by striking testimony
and/or barring future testimony by any tainted witnesses.
And in any event, it was premature to declare a mistrial
before making some attempt to resolve discrepancies in
the various accounts of the prosecutor’s conversation with
Bowden. See id. Whether or not options short of mistrial
were feasible and preferable (and it appears that they
were), the court did not consider them and thus did not
afford proper solicitude for Lovinger’s valued right to con-
tinue with the trial.
A-13
IV.
Lovinger did not consent to a mistrial, and there was
no manifest necessity for the mistrial declaration. The
decision of the district court granting Lovinger’s petition
for a writ of habeas corpus is therefore AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
A-14
JUDGMENT—ORAL ARGUMENT
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
May 2, 1988.
Before
Hon. JoEL M. Fiaum, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. Ropert A. GRANT, Senior District Judge*
JEFFREY LOVINGER,
Petitioner-Appellee,
No. 87-1397 Vs.
ATTORNEY GENERAL, STATE OF ILLINOIS,
Respondent-A ppellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 85 C 10169—Charles R. Norgle, Judge.
The cause was heard on the record from the United
States District Court for the Northern District of Illinois,
Eastern Division, and was argued by counsel.
On consideration whereof, IT IS ORDERED AND AD.
JUDGED by this Court that the judgment of said District
Court in this cause appealed from be, and the same is
hereby, AFFIRMED, in accordance with the opinion of
this Court filed this date.
* Hon. Robert A. Grant, Senior District Judge of the Northern
District of Indiana, sitting by designation.
A-15
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
ex rel. LOVINGER,
Plaintiff,
VS.
CIRCUIT COURT FOR THE 19TH JUDICIAL
CIRCUIT, LAKE COUNTY, ILLINOIS,
Defendant.
No. 85 C 10169
Judge Charles R. Norgle
ORDER
This matter is before the Court for ruling on Respondent,
Illinois Circuit Court for the 19th Judicial Circuit, Lake
County, Illinois’, objections to Magistrate Bucklo’s Report
and Recommendation. Pursuant to 28 U.S.C. § 636(bXaXB),
the Court referred the Petition for Writ of Habeas Corpus
to the Executive Committee for assignment to a magis-
trate for ruling in 60 days. The Executive Committee
gave its consent and this case was assigned to Magistrate
Bucklo on June 17, 1986.
On December 17, 1986 Magistrate Bucklo filed her
Report and Recommendation. The report recommended
this Court grant the Petition for Writ of Habeas Corpus.
On January 5, 1987 Respondent filed objections to Mag-
istrate Bucklo’s Report and Recommendation.
A-16
The record shows inter alia that after days of a dif.
ficult trial Judge Hoogasian sua sponte declared a mistrial.
He said: “I’m not going to have any case with a tint of
error, and we are starting to have a lot of error creep
into this record.” Following that statement, he heard no
further evidence or argument, took a recess, returned, and
sua sponte declared a mistrial, the basis for which he
stated in the record.
It is a rare case indeed in which a trial judge in a bench
trial cannot control by proper use of his discretion the
attorneys and the witnesses who appear before the court.
The record here does not show any intentional, contuma-
cious or substantial misconduct on the part of the attor-
neys or the witnesses. The slow pace of the trial and its
many problems would challenge the best of judges, but
none of whom would be without sufficient authority, in-
cluding the imposition of sanctions if called for, to see to
it that the trial moved fairly and expeditiously to a just
conclusion. The problems here perceived by the trial judge
could have been corrected short of aborting the trial sua
sponte. For fleeting moments during the course of pro-
tracted trials, a jurist may ruefully wish for the oppor-
tunity to start anew. Such is not the law nor ought it
be. Even the pursuit of the elusive and unattainable per-
fect trial is not enough. This trial should have been de-
cided on its merits.
In its Objection to the Report and Recommendation of
the Magistrate, Respondent asks, alternatively, for “an
evidentiary hearing wherein the Petitioner’s deliberate by-
pass may be litigated.” This court finds that a hearing
on issues raised by the Respondent and characterized as
procedural defaults, strategic by-pass of the right to pro-
ceed, calculated decision to acquiesce, deliberate by-pass,
and inexcusable neglect is neither required nor appropri-
ate in light of the clear record in this matter.
A-17
Petitioner complied with all state procedural require-
ments in asserting his double jeopardy claim in the state
court. The Magistrate discussed fully the issue of whether
Petitioner had consented to the mistrial declared by the
state trial judge as a question of federal constitutional law.
United States ex rel. Clauser v. McCevers, 731 F.2d 423
(7th Cir. 1984). Further, this court finds the requirements
Wainwright v. Sykes, 443 U.S. 71 (1977), that Petitioner
show cause and prejudice before a federal court can ad-
judicate his claim of a constitutional deprivation on the
merits, have been satisfied in this case.
After a de novo review, the Court finds Magistrate
Bucklo’s Report and Recommendation is supported by the
record and the cited authorities. Accordingly, the Court
adopts and incorporates Magistrate Bucklo’s Report and
Recommendation pursuant to 28 U.S.C. § 636(BX1XV) as
Appendix A of this Order and orders as follows:
The Petition of Jeffrey Lovinger for Writ of Habeas
Corpus is granted.
IT IS SO ORDERED.
ENTER:
/s/ Charles Ronald Norgle
Judge
U.S. District Court
DATED: 2-2-87
A-18
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In the matter of UNITED STATES OF
AMERICA ex rel. LOVINGER,
Plaintiff,
Vs.
ATTORNEY GENERAL, STATE OF ILLINOIS,
Defendant.
No. 85 C 10169
REPORT AND RECOMMENDATION
of Magistrate Elaine E. Bucklo
Jeffrey Lovinger (“Lovinger”), was tried in a bench trial
before the circuit court for the Nineteenth Judicial Cir-
cuit, Lake County, Illinois, on three counts of delivery
of cocaine and cannabis. That trial ended in a mistrial.
When the case was set for retrial, Lovinger moved to dis-
miss on double jeopardy grounds.' The court denied his
motion and Lovinger appealed. The Appellate Court af.-
firmed the denial of that motion. People v. Lovinger, 130
Ill.App.3d 105, 473 N.E.2d 980 (2nd Dist. 1985), and the
' The fact that Lovinger was tried in a bench trial. rather than
a jury trial, does not affect his rights under the double jeopardy
clause. United States v. Jenkins, 420 U.S. 358, 365 (1975) (over.
ruled on other grounds, United States v. Scott, 437 U.S. 82. 87
(1978); Gwinn v. Deane, 613 F.2d 1, 2 n. 3 (ist Cir. 1980)
A-19
Illinois Supreme Court and United States Supreme Court
denied certiorari, __._ U.S. ____, 106 S.Ct. 248. Having
exhausted his state court remedies, Lovinger petitioned
the federal district court for a writ of habeas corpus. For
the reasons stated below, Lovinger’s petition should be
granted.
Lovinger was arrested on October 16, 1979 after he al-
legedly sold substances purported to be cocaine and can-
nabis to an undercover police agent. A bench trial before
Judge Hoogasian began on November 3, 1982.
The State’s first witness was Paula Lemke, a police of-
ficer. She testified that on October 15, 1979 she purchased
from Lovinger a quantity of a white powder which he rep-
resented to be cocaine (People’s Exhibit No. 1), R-14-20,
and that on October 16, 1979, she purchased from .ov-
inger three packages of a white powder (People’s Exhibit
No. 2) and one package of a green leafy substance (Peo-
ple’s Exhibit No. 3) which he represented to be cocaine
and cannabis, respectively. R-31-46.
During cross-examination Lemke testified that Lov-
inger’s expert had been given a sample from only one of
the three bags in People’s Exhibit No. 2. Judge Hooga-
sian expressed concern that the State had not complied
with his discovery order that Lovinger’s expert be per-
mitted to test all three packages in People’s Exhibit No.
2, and continued the trial until this order was complied
with. R-60-4.
When the trial resumed, Lemke testified on cross-
examination that on October 5, 1979, she and another per-
son purchased a quantity of powder purported to be co-
caine from Jeffrey Lovinger (Defendant’s Exhibit No. 1,
Exhibit No. 4) R-74-82, and that she bought a further
quantity of a powder purported to be cocaine from Lov-
A-20
inger on October 10, 1979. (Defendant’s Exhibit No. 2,
Exhibit No. 5). R-86-9.
David Stroz, an analyst at the Northern Illinois Police
Crime Laboratory, testified that he received People’s Ex-
hibit No. 1 on October 19, 1979 from police officer Tom
Hutchings and People’s Exhibits Nos. 2 and 3 on October
17, 1979. He received People’s Exhibit No. 2 from police
officer Michael Bowden. R-239-41, 250-2, 277-8. He tested
the exhibits on October 19 and found that all the white
powders contained cocaine and that the green leafy sub-
stance contained cannabis. R-249, 260, 281-2. He removed
People’s Exhibits Nos. 4 and 5 from the evidence locker
on October 22, 1979, tested them, and determined that
they contained cocaine. R-286, 290, 293-300.
The State’s next witness was police officer Thomas
Hutchings. He testified that at all relevant times he was
an evidence officer for the Waukegan Police Department.
He testified that he first saw People’s Exhibit No. 1 on
October 16, 1969, when he received it from Officer Michael
Bowden, and that it remained in a locked evidence room
until October 19, 1979 when he delivered it to Stroz at
the Northern Illinois Police Crime Lab. R-402-4. It was
returned on October 26, 1979, R-405. He testified that he
next came inte contact with it on November 18, 1982
when it was requested by the prosecutor. R-406-7. He
later testified that Officer Lemke removed the entire ex-
hibit on September 8, 1982 and returned it the same day,
and that she took a sample from the exhibit on September
14, 1982. R-410-413. The exhibit remained in his custody
and control between then and November 18, 1982. R-418.
Hutchings testified that he first came into contact with
People’s Exhibit No. 2 on October 26, 1979, and that the
exhibit remained in the evidence room until September
A-21
8, 1982. R-426-8. On that date it was turned over to Of-
ficer Lemke, who returned it the same day. R-428-32. Of-
ficer Lemke took a sample from the exhibit on September
14, 1982. R-433. Hutchings testified that the exhibit re-
mained in the evidence room until November 4, 1982,
when it was turned over to Walter Williams for outside
examination. R-438. Hutchings testified that he next saw
Exhibit No. 2 on November 9, 1982 when Williams re-
turned it. Hutchings testified that on November 4, he
gave Williams four exhibits, including Exhibits Nos. 1 and
2, all of which were returned on November 9. R-441.
The prosecutor then attempted to elicit testimony re-
solving the inconsistency betweer this testimony and
Hutchings earlier testimony that he had not come into
contact with Exhibit 1 between September 14, 1982 and
November 18, 1982. R-442-6. The judge stated that the
prosecutor was developing two chains of evidence and im-
peaching h:. swn witness. R-448-9. The judge then granted
a recess so that the prosecutor could “get [his] act to-
gether.”
After the recess, defense counsel stated that Lovinger’s
sister had told him that the prosecutor and Hutchings had
been discussing the case and examining and exchanging
papers for about 10 minutes. He stated that he felt any
remaining testimony of Hutchings would be tainted and
that Hutchings would be testifying not to his own recollec-
tions but rather according to the directions of the pros-
ecutor. R-451-3.
The prosecutor stated that he had told Hutchings he
could not discuss the case with him, that he had then
asked for, received, and looked at Hutchings’ records, and
that he asked Hutchings to review his records and testify
from memory. R-453.
A-22
The judge stated that the prosecutor had acted improp-
erly, but that no fatal error had occurred, and that if the
defense counsel’s statement had been a motion for a mis-
trial, it would be denied. He ordered that there be no
further conversations between the prosecutor and Hutch-
ings. R-456. The defense counsel then moved that Hutch-
ings’ testimony be stricken in its entirety, that he be
precluded from testifying further, and that a mistrial be
declared. R-456-7. Judge Hoogasian denied these motions.
Id.
Hutchings then testified that he turned over Exhibits
Nos. 1 and 2 to the prosecutor on November 3, 1982, and
received them back from Walter Williams on November
9, 1982. R-461-5. Later, however, on cross-examination,
he testified that he could not remember when he turned
over Exhibits 1, 2, and 3 to the prosecutor. R-578. He
then testified, after refreshing his recollection, that he had
turned over Exhibits Nos. 1 and 2 to the prosecutor on
November 18, and that they were returned by the prose-
cutor on November 19. R-465-6, 467-8.
Hutchings testified that he first came into contact with
People’s Exhibit No. 3 on October 26, 1979, that he re-
ceived it from Muriel Samuels and that upon receiving
it he placed it in the evidence room. R-475-7. On Sep-
tember 14, 1982, Lemke took a sample from the exhibit
in Hutchings presence and resealed it. R-478. The exhibit
thereafter remained in the evidence room until he turned
it over to the prosecutor on November 3, 1982. R-480.
Initially, Hutchings could not recall when he received the
exhibit back from the prosecutor; R-480-481; after a short
recess Hutchings’ recollection was restored and he testi-
fied that the prosecutor returned it to him on November
4, 1982, R-482. He turned the exhibit over to the pros-
ecutor again on November 18, 1982, and received it back
the following day. R-482.
A-23
The court then recessed until 9:30 the following Mon-
day, after having instructed Hutchings
not to discuss this matter, this case, nor your
testimony, nor the evidence with any lawyers, wit-
nesses, strangers, police officers or any individual
because you are under oath and because we don’t
want any mistrial to occur.
R-486.
When court resumed, Hutchings testified that he receiv-
ed People’s Exhibit No. 4 on October 5, 1979, that he de-
livered it to Richard Haviland, an employee of the crime
lab, on October 12, 1979, and that he receive it back on
October 26, 1979, and that it remained in storage until
November 3, 1982 when it was given to the prosecutor.
R-495-8. He stated, however, that he could not recall when
he received it back. Upon further questioning, he stated
that he had no records indicating that it had been given
to the prosecutor on November 3, and that his first writ-
ten record showed that he gave the exhibit to Walter Wil-
liams, an employee of the State’s Attorney’s Office, on
November 4, 1982. R-498-501. The following colloquy oc-
curred:
Q. Did you give it to me on November 3, 1982?
A. With the records I have in front of me, I would
have to say no.
R-501.
Judge Hoogasian observed
The record speaks for itself .. . The record has got
evidence going out and never returning. This record
has got the evidence, the same evidence going out
twice, never returning the first time. There is
confusion.
R-502.
A-24
On cross-examination, Hutchings testified concerning the
layout and procedures for receiving and storing evidence.
When the evidence room was closed, officers bringing in
evidence would put it in one of a battery of lockers out-
side the booking room. Each locker had two keys; one
was in Hutchings’ office, and the second was in the locker.
After depositing evidence, the officer would remove the
key and deposit it in a special locker. Each morning
Hutchings would open that locker, collect the keys, open
the lockers and remove the evidence to the evidence room.
R-538-41.
During cross-examination, Hutchings testified that a log
book was kept which included the date of each time evi-
dence was delivered to or removed from the evidence
room. R-538. The defense counsel requested that he be
permitted to examine the log book. The prosecutor ob-
jected that the request was untimely. He admitted that
the log book had not been tendered on discovery, since
“it is not a statement of any witness in the case.” The
judge nevertheless granted a half hour recess for the pros-
ecutor and defense counsel to examine the log book. The
counsel were instructed not to question the witness.
R-550.
- On further cross-examination, Hutchings testified that
an entry in the log books in his handwriting indicated that
People’s Exhibit No. 2 was accepted in the evidence room
on October 17, 1979, but that this was an error; the ex-
hibit had been confiscated on that date, but was received
in the evidence room on October 26, 1979. R-563-7.
The next witness was Michael Bowden, a police officer.
He testified that he conducted surveillance of the October
15, 1979 and the October 16, 1979 transactions. R-598-601,
605-9. Bowden brought People’s Exhibit No. 1 back to
A-25
the police station at about 3:00 on October 15, put it in
an evidence locker, kept the key, opened the locker on
the morning of October 16, removed the exhibit, and gave
it to Hutchings, the evidence officer. R-603-5. He received
People’s Exhibits Nos. 2 and 3 on October 16, placed them
in an evidence lacker, retained the key, opened the locker
the following morning, took the exhibits to the Northern
Illinois Crime Laboratory, and gave them to David Stroz.
R-613-4.
Bowden also testified that he had received People’s Ex-
hibit No. 4 on October 5, 1979, that he put it in an evi-
dence locker, retained the key, opened the locker the fol-
lowing Monday, October 8, 1979, removed the exhibit and
gave it to Hutchings. R-615-6. He received People’s Ex-
hibit No. 5 on October 10, 1979, placed it in an evidence
locker, retained the key, removed the exhibit the follow-
ing day and gave it to Hutchings. R-618-9. The prosecutor
then asked when Bowden turned over Exhibit No. 5 to
Hutchings; Bowden stated that he believed it was the
following day, but that he would have to check his reports
or the crime lab sheet to be certain. The prosecutor
sought to refresh Bowden’s recollection, and the defense
counsel objected. Judge Hoogasian then continued the case
until that afternoon, and said “You don’t talk with them.
They don’t talk with you about this case.” R-619-20.
When proceedings resumed, defense counsel stated that
“Once again I am informed that [the prosecutor] has been
talking to a witness,’’ Officer Bowden. R-622. The pros-
ecutor stated that he asked Bowden for police reports
from October 5 and 10, 1979. R-622, 628. Bowden stated
that the prosecutor had not talked with him, but that he
had told the prosecutor “that I wasn’t pleased with the
fact that I was getting my butt chewed out.’’ R-623. Lov-
inger testified that he heard the prosecutor ask Bowden
A-26
about police reports for October 5 and 10 and that Bow-
den said he was not sure he wrote any and did not have
them with him, and that a little later he heard the pros-
ecutor and Bowden talking about the key to the evidence
locker. R-626-7. Judge Hoogasian asked the prosecutor for
the reports, and stated “I’m not going to have any case
with any tint of error, and we are starting to have a lot
of error creep into this record.” R-629. A short recess was
then taken.
When proceedings resumed, Judge Hoogasian made the
following statement:
Is everybody in court? Let the record show that
the Defendant is present in open court and in his
own proper person, with Robert P. Will, his attor-
ney. That the People are represented by Steven
McCullom.
Gentlemen, at this time I 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 at-
tention 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 concerned about the lack of discovery
afforded the defense, pursuant to court order of
Judge Doran, and even of this court.
Third, there was 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 iden-
tification, when I had ordered all of the exhibits to
be taken to the defense chemist for purpose of anal-
ysis, pursuant to the order of discovery.
A-27
Fourth, I am very much concerned about what oc-
curred early this afternoon in this courtroom. And
this can be classified as either direct or indirect con-
tempt, and I’m not going into that phase of it. Be-
cause 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 De-
fendant 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 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.”
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 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 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 continued.
A-28
R-630-2. As Judge Hoogasian finished the statement, he
left the courtroom. R-644.
I.
Lovinger argues that retrial is barred by the double
jeopardy clause of the fifth amendment, made applicable
to the states by the fourteenth amendment. Benton v.
Maryland, 395 U.S. 784, 787 (1969). The double jeopardy
clause protects a criminal defendant’s “valued right to
have his trial completed by a particular tribunal.” Wade
v. Hunter, 336 U.S. 684, 689 (1949). Society, however, has
an interest in trying a defendant in a fair trial ending
in a just judgment. Jd. These interests must be balanced.
Thus, when a defendant’s conviction is reversed on grounds
other than insufficient evidence, the double jeopardy
clause does not bar retrial. United States v. Scott, 437
U.S. 82, 90-1 (1978). Similarly, the double jeopardy clause
does not always bar retrial after a mistrial.
II. Consent
When a defendant consents to a mistrial, retrial is barred
only if the conduct of the State giving rise to the mistrial
was intended to provoke a mistrial. Oregon v. Kennedy,
456 U.S. 667, 679 (1982). The State argues that Lovinger
consented to the mistrial in the present case. A defen-
dant must “‘affirmativefly] consent” to the mistrial. United
States ex rel. Clauser v. McCevers, 731 F.2d 423, 426 (7th
Cir. 1984). Even where the defendant does not expressly
request or consent to the mistrial, however, consent may
sometimes be inferred. In determining whether there was
consent, the court must look at all relevant circumstances.
Thus, in United States v. Goldstein, 479 F.2d 1061 (2nd
Cir.), cert. denied, 414 U.S. 873 (1973), the defendants
A-29
were tried for tax law violations. The trial judge declared
a mistrial. The State sought to retry the defendants, but
the trial court dismissed on double jeopardy grounds. Id.
at 1062-4. On appeal, the court noted that the defendants
had moved for and been denied a mistrial on grounds of
jury deadlock two hours before the court declared a
mistrial on the same grounds, that their position had not
changed substantially in the interim, that they had done
nothing during that period to indicate that they no longer
sought a mistrial, and that they had an opportunity to
object to the declaration of a mistrial but did not.? The
court concluded that under the totality of the circum-
stances the defendants had consented to the mistrial. Jd.
at 1067-8.
In the present case, these factors weigh against finding
consent. Lovinger’s motion for a mistrial occurred after
he brought to the court’s attention a conversation between
the prosecutor and Officer Hutchings. Initiallv, he did not
make any motions. The judge steted inat the conversa-
tion was improper but hariniess, and that if Lovinger was
moving fer a mistrial, the motion was denied. Only then
did Lovinger move for that Hutchings’s testimony be
stricken, that he be prohibited from testifying further, and
for a mistrial. The judge denied all motions. R-451-7. Lov-
inger’s motion for a mistrial was perfunctory, and he knew
when he made it that it would be denied.
2 The Third Circuit has held that failure to object to a declara-
tion of a mistrial waives challenges to the mistrial; in effect, con-
sent is presumed. United States v. Phillips, 431 F.2d 949, 950-1
(3rd Cir. 1970). The Seventh Circuit has implicitly rejected this
view. See Clauser, supra, 731 F.2d at 426. The Second Circuit
considers failure to object as one factor among others probative
of consent. Goldstein, supra, 479 F.2d at 1067 n. 11.
A-30
Moreover, Lovinger sought the mistrial on grounds dif-
ferent from those for which Judge Hoogasian declared the
mistrial. Lovinger sought a mistrial because of an im-
proper conversation between the prosecutor and Officer
Hutchings. Judge Hoogasian declared the mistrial because
of undue delay in bringing the case to trial, the prosecu-
tion’s failure to grant full discovery and obey court discov-
ery orders, and the prosecutor’s improper conversation
with Officer Bowden. Judge Hoogasian made no reference
to the prosecutor’s earlier conversation with Hutchings.
Admittedly, the impropriety involved in both conversa-
tions was similar; but the mistrial was declared because
of a different conversation from the one for which Lov-
inger sought a mistrial.
Lovinger did not withdraw his motion for mistrial or
otherwise expressly indicate he no longer thought mistrial
was necessary. Cf. United States v. Kwang Fu Peng, 766
F.2d 82, 85 (2nd Dist. 1985); United States v. Mastrangelo,
662 F.2d 946, 950 (2nd Dist. 1981), cert. denied, 456 U.S.
973 (1982); United States v. Evers, 569 F.2d 876, 878 (5th
Cir. 1978) (express withdrawals of motions for mistrial).
However, his position did change between the time at
which he moved for mistrial and the time at which a mis-
trial was declared. At the time of Lovinger’s motion, Of-
ficer Hutchings was testifying concerning the chain of cus-
tody. At that point, he had testified both that People’s
Exhibit No. 1 had not left his custody between September
14, 1982 and November 18, 1982, R-418-9, and that he had
turned over People’s Exhibits Nos. 1 and 2 to Walter
Williams on November 4, 1982, who returned the exhibits
on November 9, 1982. R-440-1. The conversation which
led to Lovinger’s motion for mistrial was apparently in-
tended to held resolve this discrepancy. When he resumed
the stand, Hutchings offered a third version, that he had
A-31
turned over Exhibits 1 and 2 to the prosecutor on No-
vember 3, 1982 and that Walter Williams had returned
them on November 9, 1982. R-461-5. His testimony re-
garding the chain of custody of Exhibit No. 4 was con-
fused and contradictory, R-498-50, and his testimony con-
cerning the procedures for storing evidence when the evi-
dence officer was gone, R-538-41, was inconsistent with
Officer Bowden’s testimony of how he had stored evidence
in such cases. R-603-5, 613-4. The inconsistencies and con-
fusion in Hutchings’ testimony were not corrected by the
conversation, but continued, Lovinger’s need for a mistrial
because of the conversation was correspondingly reduced.
The mistrial was precipitated when Lovinger brought
to the court’s attention a conversation between the pros-
ecutor and Officer Bowden. His actions were similar to
those he took in response to the earlier conversation.
Given the similarity in the objectionable conduct (conver-
sations between the prosecutor and witnesses possibly
concerning contradictions in their testimony), it might be
argued that by bringing the second conversation to the
court’s attention, Lovinger was also implicitly renewing
the motion for a mistrial which he had made after the
earlier conversation.
When he brought the first conversation to the court’s
attention, however, Lovinger did not initially make any
motions. Although he stated that Hutchings’ testimony
would be tainted by the conversation, he would not neces-
sarily have wanted a mistrial. By bringing the matter to
the court’s attention and putting it on the record, he
might discredit Hutchings’ subsequent testimony. It was
only after Judge Hoogasian ruled that the conversation
was harmless and if Lovinger was moving for a mistrial,
the motion was denied, that Lovinger moved for a mis-
trial. Before he did so, however, he moved that Hutch-
A-32
ings’ testimony be stricken in its entirety, and that he
be precluded from testifying further; only after these mo-
tions were denied did Lovinger seek a mistrial. R-451-6.
In light of this rather ambiguous sequence of events, it
is difficult to conclude that in bringing the second con-
versation to the court’s attention Lovinger was renew-
ing his earlier motion for a mistrial.
The mistrial was declared in an abrupt manner. The
judge recited problems with the trial, then declared a
mistrial; he left the courtroom as he was declaring the
mistrial. R-644. Lovinger thus had little opportunity to
object to the mistrial, and his failure to do so should not
weigh heavily in favor of finding consent. See Gori v.
United States, 367 U.S. 364, 365 n. 6 (1961) (“In light of
our disposition, we need not reach the Government’s sug-
gestion that petitioner’s failure to object to the mistrial
adversely affects his claim. We note petitioner’s argument
that, because of the precipitous course of events, there
was no opportunity for such objection.”’); United States
v. Jorn, 400 U.S. 470, 487 (1971) (plurality opinion); Cf.
United States v. Smith, 621 F.2d 350, 351-2 (9th Cir. 1980)
cert. denied, 449 U.S. 1087 (1981) (finding consent where,
after the judge declared a mistrial but before he dismissed
the jury, the judge and attorneys held a discussion in
which retrial was anticipated and no objections were made
to the mistrial).
Finally, when the judge declared a mistrial, he made
no reference to Lovinger’s earlier motion for a mistrial
and did not state that it was declaring a mistrial at Lov-
inger’s request or with his consent. Cf. United States v.
Crouch, 566 F.2d 1311, 1315-6 (5th Cir. 1978) (trial judge’s
statement that he declared mistrial at defendant’s request
is unreviewable).
A-33
Under the totality of the circumstances in the present
case, Lovinger did not consent to the mistrial. He did
move for a mistrial, but his motion was made four days
before the mistrial was declared, and on different grounds.
In declaring the mistrial, Judge Hoogasian did not refer
to the earlier motion. Lovinger’s position may have im-
proved between the times of his motion for a mistrial and
the court’s declaration of a mistrial. He did not object
to the declaration of a mistrial, but had no real oppor-
tunity to do so.
Accordingly, it is necessary to determine whether the
mistrial was manifestly necessary.
lil. Manifest Necessity
A defendant may be retried after a mistrial to which
he did not consent if the mistrial was ‘manifestly neces-
sary.”’* Washington, supra, 434 U.S. at 505 (1978). There
are no rigid, mechanica! formulas for determining whether
a mistrial was manifestly necessary; the court must con-
sider the particular facts in the case before it. Jllinois
v. Somerville, 410 U.S. 458, 462 (1973). The trial court
must make the initial determination of manifest necessity,
and considerable deference is usually due its decision.
3 (Footnote 3, because of its length, is at end of text.)
4 The degree of deference accorded to the trial judge’s determina-
tion of manifest necessity depends at least in part on the degree
of familiarity of the trial ge with the factors relevant to the
determination. In cases of jury deadlock, or juror bias, greater
deference is justified by the trial judge’s greater familiarity with
the facts. Washington, supra, 434 U.S. at 510 n. 28, 513-4. How-
ever, the Court also stated that
the strictest scrutiny is appropriate when the basis for the
mistrial is the unavailability of critical prosecution evidence,
(Footnote continued on following page)
A-34
Clauser, supra, 731 F.2d at 426. Thus, the trial court need
not make an express finding of manifest necessity, nor
need it give the reasons for its decision. Washington,
supra, 484 U.S. at 526-7.
The trial judge must exercise his discretion soundly,
however Jorn, supra, 400 U.S. at 486-7; Washington,
supra, 434 U.S. at 514. Moreover, although the trial judge
need not state his reasons for declaring a mistrial, the
presence of obviously adequate alternative remedies less
harsh than mistrial miitates against a finding of manifest
necessity. See Jones v. Hogg, 732 F.2d 53, 56 n. 1 (6th
Cir. 1984); United States v. Sanders, 591 F.2d 12938, 1298
(9th Cir. 1979); United States v. Sartori, 730 F.2d 973,
974-7 (4th Cir. 1984); Cf. Abdi v. State of Georgia, 744
F.2d 1500, 1503 (11th Cir. 1984), cert. denied, 471 U.S.
1006 (1985) (manifest necessity for a mistrial can exist
where there were less drastic alternatives, so long as the
record shows that the trial court considered them before
declaring mistrial).
4 continued
or when there is reason to believe that the prosecutor is using
the superior resources of the State to harass or to achieve
a tactical advaiitage over the accused.
Id. at 508 (footnotes omitted). This language suggests that where
prosecutorial misconduct or conscious decisions, see Downum v.
United States, 372 U.S. 734, 737-8 (1963), cause the mistrial, the
trial judge’s determination of manifest necessity may be entitled
to less deference. Cf. Somerville, supra, 410 U.S. at 459-60 (prose-
cutorial error in framing indictment resulted in manifest necessity
for mistrial)’ Clauser, supra, 731 F.2d at 424-31 (police perjury
of which prosecution was unaware, resulting in defective indict-
ment, created manifest necessity for mistrial). In the present case,
the mistrial was declared because of misconduct by the prosecutor;
a lesser degree of deference may therefore be due the trial judge’s
(implicit) finding of manifest necessity for mistrial.
A-35
In the present case, the trial judge stated several rea-
sons for declaring a mistrial. These were the three-year
delay in bringing the case to trial, the lack of discovery
afforded the defendant, the failure of the prosecution to
comply with court discovery orders, and the prosecutor’s
conversation with Officer Bowden during a recess. Neither
these reasons nor any other reasons apparent in the rec-
ord created a manifest necessity for mistrial.
Delay
Lovinger was arrested on October 16, 1979, and charged
in January with delivering cocaine and cannabis. His trial
began in November 1982. Conceivably this delay could
have prejudiced Lovinger. Lovinger, however, apparent-
ly never objected to the delay. Even if there were prej-
udice, however, it is difficult to see how a mistrial
followed by further delay would cure that prejudice.
Discovery
The record reveals several instances arguably involv-
ing noncompliance or delay in obeying discovery charges.
Any prejudice, however, was minimal. Thus, Judge Hooga-
sian ordered that Lovinger’s expert be permitted to test
all three bags of powder in People’s Exhibit No. 2, but
the expert was given only a sample drawn from one bag.
R-60-1. When this fact was brought out, the court ordered
that the expert be permitted to test all three bags, and
the trial was continued until this was done. R-62-4. At
another point, cross-examination of Officer Hutchings re-
vealed that a log book was kept recording each time evi-
dence entered and left the evidence room; this log book
had not been specifically sought or requested in discovery.
Judge Hoogasian granted a half-hour recess so that de-
A-36
fense counsel could examine the log book and cross-exam-
ination then resumed. R-549-50. During the court’s hear-
ing on the prosecutor’s conversation with Officer Bowden,
it was revealed that Lovinger had not been given the
police reports for October 5 and 10 during discovery.
R-628-9.
Suppression by the State of exculpatory evidence mate-
rial to guilt or punishment violates a criminal defendant’s
due process rights. Brady v. Maryland, 373 U.S. 83, 87
(1963). Pretrial disclosure, however, is not required; the
defendant’s rights are violated only if “the disclosure came
so late as to prevent the defendant from receiving a fair
trial.” United States v. Sweeney, 688 F.2d 1131, 1141 (7th
Cir. 1982) (quoting United States v. McPartlin, 595 F.2d
1321, 1346 (7th Cir.), cert. denied, 444 U.S. 833 (1979).)
The discovery violations in the present case did not pre-
vent Lovinger from receiving a fair trial. All the material
was available for use in cross-examination of the prosecu-
tion’s witnesses. If Lovinger needed more time to prepare
for cross-examination a continuance could have been
granted. See United States v. Williams, 738 F.2d 172,
178-9 (7th Cir. 1984). In his declaration of a mistrial, Judge
Hoogasian pointed to no harm resulting from the prosecu-
tion’s failure to obey discovery orders promptly, and this
court can perceive none.
Conversations with Witnesses
A private conversation between a prosecutor and a
State witness while the witness is testifying is not im-
proper per se. See 23 CJS Criminal Law § 1025 (1961).
Thus, where the defense counsel raised unexpected mat-
ters in his opening statement, the court did not commit
error in permitting the prosecutor to speak privately with
A-37
the government’s first witness on the witness stand, al-
though admonishing him not to discuss testimony the wit-
ness has already given. United States v. Mandell, 525
F.2d 671, 679 (7th Cir. 1975), cert. denied, 423 U.S. 1049
(1976). Such conversations do, however, create a poten-
tial for the prosecutor to influence the witness’ testimony,
and should be strictly scrutinized. Where the conversa-
tions are not authorized by the court and engaged in for
some legitimate reason, but are in direct defiance of court
orders, the potential for prejudice to the defendant may
be significant.
The prosecutor had two conversations with State wit-
nesses. In the first conversation, during a recess after in-
consistencies had developed in Officer Hutchings’ testi-
mony, the prosecutor looked over Hutchings’ records and
asked Hutchings to review them. The court found that
although the conversation was improper, it would not taint
Hutchings’ testimony since he had been testifying from
his records anyway, and the court therefore would not
require that Hutchings’ testimony be stricken or a mistrial
declared. R-455-7. This finding is supported by the record;
nothing indicates that Hutchings’ testimony would have
been altered by the conversation.
The second conversation was precipitated when during
a recess the defense counsel asked the prosecutor for
police reports for October 5 and 10. The prosecutor asked
Officer Bowden, who had been testifying, for the reports;
Bowden may have criticized Judge Hoogasian. R-623, 626,
628.
It is unlikely that Lovinger would have been prejudiced
by this part of the conversation. Bowden had been testi-
fying about the events of October 5 and 10. But the pros-
ecutor did not review his testimony, or have him read
the police reports; he merely asked him for the reports.
A-38
It is difficult to see how this conversation could have in-
fluenced Bowden’s testimony. It was as harmless as the
earlier conversation, and would not justify a mistrial.
Bowden and the prosecutor, however, also may have dis-
cussed the procedures for using the key to the lockers
outside the evidence room. After the recess, Lovinger
testified that after hearing the earlier part of the con-
versation,
And I kind of strolled past. And when I strolled past
again, I wasn’t standing over there, standing listen-
ing. I heard something about the key to the evidence
locker and I heard that being said... .
I heard [the prosecutor] Bowden’s office about the
key and the evidence locker. I didn’t hear anything
more than that.
R-626-7.
Bowden testified that the conversation involved only the
prosecutor’s request for the police reports and Bowden’s
statement that he was displeased with the judge’s criti-
cisms of him. R- 623. The prosecutor denied that he had
any conversation with Bowden regarding the key or evi-
dence locker. R-628. Judge Hoogasian did not make any
express finding as to which version of the conversation
was correct.
If this part of the conversation occurred, it might have
resulted in significant prejudice to Lovinzer. Bowden’s
testimony about the procedures involving the keys to the
evidence lockers would be important in establishing the
chain of custody of the substances obtained from Lovinger,
and his testimony was inconsistent with Hutchings’ earlier
testimony about the procedures for using the lockers. The
prosecutor’s conversation with Bowden could have improp-
erly influenced Bowden’s future testimony and helped him
resolve this conflict.
Aine De aise Qtr at Zoi geo roa
A-39
If he thought the conversation might have influenced
Bowden’s testimony, however, Judge Hoogasian had sev-
eral options less severe than declaring a mistrial. He could
have stricken Bowden’s testimony in its entirety, or for-
bidden him to testify further, or allowed him to continue
to testify, and stricken his testimony if it diverged from
his earlier testimony so much that it would be reasonable
to infer that the later testimony had been influenced by
the conversation. Such actions would have preserved Lov-
inger’s ‘valued right to have his trial completed by a par-
ticular tribunal,” Wade, supra, 336 U.S. at 689, while
eliminating the potentially tainted testimony.
The presence of alternatives does not mean a mistrial
was not manifestly necessary. The trial judge is granted
considerable discretion in determining whether a mistrial
is necessary, and if reasonable judges could differ and the
record indicates that “the trial judge . . . carefully con-
sidered the alternatives and did not act in an abrupt, er-
ratic or precipitate manner,” his determination should be
upheld. Grandberry v. Bonner, 653 F.2d 1010, 1014 (5th
Cir. 1981) (en bane); see Abdi, supra, 744 F.2d at 1503.
In the present case, Judge Hoogasian declared the mi:-
trial abruptly and without considering alternatives. A
mistrial would have been a reasonable option only if he
credited Lovinger’s version of the conversation; but Lov-
inger’s version was vague, and he was within hearing
range of the conversation only momentarily, and both par-
ties to the conversation contradicted Lovinger’s testimony.
Any careful consideration of whether a mistrial was neces-
sary would have had to begin with an attempt to resolve
this conflicting testimony; but Judge Hoogasian made no
such attempt. After a short recess following the conclu-
sion of the mini-hearing on the conversation, he made a
short statement about the problems that had occurred in
the trial, declared a mistrial, and left the courtroom. He
A-40
made no reference to possible alternatives to mistrial or
to the potential double jeopardy proolems of mistrial. See
Grandberry, supra, 653 F.2d at 1015-16; United States v.
Starling, 571 F.2d 934, 939-41 (5th Cir. 1978). Under the
circumstances of this case, where Judge Hoogasian acted
abruptly and did not consider the alternatives to mistrial,
the incident giving rise to the mistrial may not have oc-
curred, and even if it did, there were adequate alternative
remedies, the mistrial was not manifestly necessary. See
United States v. Sartori, 730 F.2d 973, 975-7 (4th Cir.
1984).
For the reasons stated above, Lovinger’s petition for
writ of habeas corpus should be granted.
/s/ Elaine E. Bucklo
United States Magistrate
DATED: December 17, 1986
Written objection to any finding of fact, conclusion of law,
or the recommendation for disposition of this matter must
be filed with the Honorable Charles R. Norgle within ten
(10) days after service of this Report and Recommenda-
tion. See Fed.R.Civ.P. 72(b). Failure to object will con-
stitute a waiver of objections on appeal.
Copies have been mailed to:
MS. MARY ROBINSON MR. MARK ROTERT
Robinson & Skelnik Asst. Attorney General
51 Fountain Square 100 West Randolph Street
Plaza—#5 Chicago, IL 60601
Elgin, IL 60120
MR. ROBERT P. WILL
Will & Briscoe
33 N. County Street, Suite 30
Waukegan, Illinois 60085
Attorneys for Plaintiff Attorney for Defendant
wait a
et, Snes See ee ae
ARAN BA! ia M
A-4}
3 In Richardson v. United States, 468 U.S. 317, 326 (1984), the
Supreme Court held that a trial court’s declaration of a mistrial
following a hung jury does not terminate the defendant’s original
jeopardy, and consequently the double jeopardy clause does not
bar retrial. This holding, however, does not bar all double jeopardy
challenges to retrial following mistrial. The court’s holding Solleahed
the longstanding rule allowing retrial in such cases; it does not
necessarily apply when the mistrial was declared for other reasons:
The case law dealing with the application of the prohibition
against placing a defendant twice in jeopardy following a mis-
trial because of a hung jury has its own sources and logic.
It has been established for 160 years, since the opinion of Jus-
tice Story in United States v. Perex, 9 Wheat. 579 (1824), that
a failure of the jury to agree on a verdict was an instance
of ‘manifest necessity” which permitted a trial judge to ter-
minate the first trial and retry the defendant . . . Since that
time we have had occasion to examine the application of dou-
ble jeopardy principles to mistrials granted for reasons other
than the inability of the jury to agree .. . Nevertheless, we
have constantly adhered to the rule that a retrial following
a “hung jury” does not violate the Double Jeopardy Clause.
Id. at 323-4.
The Court has recognized that in some circumstances a mistrial
can bar reprosecution. Thus, in Justices of Boston Municipal Court
v. Lydon, 466 U.S. 294 (1984), the Court recognized that the dou-
ble jeopardy clause requires that the defendant’s original jeopardy
terminate. Jd. at 309, but also noted, citing United States v. Scott,
437 U.S. 82 (1978), that the clause prohibits retrial after mistrial
in some circumstances. Jd. at 307 n. 6. Scott stated that such re-
trials are not barred when the mistrial was manifestly necessary.
Id. at 92-3. See also Illinois v. Somerville, 410 U.S. 458, 461-3
(1973); Arizona v. Washington, 434 U.S. 497, 505-14 (1978); United
States v. Jorn, 400 U.S. 470, 479-87 (1971) (plurality opinion).
Richardson cannot be read as creating a per se rule that retrial
is not barred after mistrial; if there was no manifest necessity for
the mistrial, retrial is ordinarily still barred. See United States
v. Jarvis, 792 F.2d 767, 769 (9th Cir. 1986).
Even when the trial court declares a mistrial on grounds of jury
deadlock, double jeopardy challenges to retrial will not always be
foreclosed. The defendant cannot argue that a mistrial because of
a hung jury precludes retrial; he can, however, argue that the jury
was not deadlocked, and that the trial court abused its discretion
in finding that it was. In such a case, Richardson would not apply,
(Footnote continued on following page)
A-42
3 continued
because the mistrial was in fact not declared because of a hung
jury; consequently, in considering double jeopardy challenges to
retrials after mistrials declared for jury deadlock, courts will ex-
amine whether the trial judge abused his discretion in declaring
a mistrial. See Walker v. Weldon, 744 F.2d 775, 777-9 (11th Cir.
1984); Fay v. McCotter, 765 F.2d 475, 477-8 (5th Cir. 1985); Cf.
United States v. Brack, 747 F.2d 1142, 1146, 1148 (7th Cir. 1984),
cert. denied, 469 U.S. 1216 (1985) (defendant’s first trial ended in
hung jury; retrial therefore not barred, but defendant apparently
did not argue that the trial judge abused his discretion in declar-
ing mistrial).
A-43
130 Ill.App.3d 105
85 Ill.Deec. 381
The PEOPLE of the State of Illinois,
Plaintiff-Appellee,
Vv.
Jeffrey LOVINGER,
Defendant-Appellant.
No. 83-330.
Appellate Court of Illinois,
Second District.
Jan. 17, 1985.
Defendant filed motion to dismiss charges based on for-
mer jeopardy. The 19th Circuit Court, Lake County, Jack
Hoogasian, J., denied his motion, and he filed an inter-
locutory appeal. The Appellate Court, Schnake, J., held
that defendant consented to mistrial, and thus jeopardy
did not bar further prosecution.
Affirmed and remanded.
SCHNAKE, Justice:
This is an interlocutory appeal by the defendant, Jef-
frey Lovinger, under Supreme Court Rule 604(f) (94 IIl.2d
R. 604(f)), from an order of the circuit court of Lake Coun-
ty, denying his motion to dismiss the charges against him
based on former jeopardy.
The defendant was originally charged by information
with the following 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.
A-44
56 4%, par. 1401(b)); (2) October 16, 1979, delivery of 30
grams or more of a substance containing cocaine (Class
X felony) (Ill.Rev.Stat.1979, ch. 56 %, par. 1401(aX2)); 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.1979, ch. 56 %%, par.
70Kb)). 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 an-
other judge who denied the defendant’s motion to dismiss
based on former jeopardy. 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 Oc-
tober 16, 1979, and was subsequently charged by infor-
mation with delivering cocaine to an undercover police of-
ficer named Paula Riccio on October 15, 1979, and deliver-
ing cocaine and cannabis to Riccio on the following 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 ana-
lyzed [by the defendant’s expert] in the presence of a
chemist from the Northern Illinois Police Crime Labora-
tory.”’ As explained 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 inten-
tion to raise the defense of entrapment.
Paula Lemke, formerly Riccio, the undercover police of-
ficer named in the information, testified for the State
about the deliveries on October 15 and 16, and about her
A-45
part of the chain of custody regarding the alleged con-
trolled 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 Lovinger’s apart-
ment in Waukegan. Arrangements for this transaction
were made during the earlier delivery at Goodman’s and
in subsequent telephone conversations. Immediately after
the transaction on October 16, Lovinger was arrested
along with a codefendant not involved in this appeal,
Stanley Blackowicz. The purported cocaine delivered on
October 15 was contained in a plastic bag identified by
Lemke as part of People’s Exhibit 1.The purported co-
caine delivered on October 16 was contained in three
plastic bags which she identified as People’s Exhibits 2A,
2B and 2C. The alleged marijuana delivered on October
16 was contained in a plastic bag which was part of Peo-
ple’s Exhibit 3.
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,
apparenty because he wanted to dry the substances over-
night to determine their weight accurately. Subsequent-
ly, without any modification of the prior court order re-
garding analysis of the evidence by the defendant’s ex-
pert, samples from the exhibits were taken to the defen-
dant’s expert and tested. Lemke testified, however, con-
cerning the purported cocaine delivered on October 16,
that the sample was taken from only one of the three
A-46
plastic bags. On motion of the defendant the bench trial
was continued so that the defendant’s expert could analyze
the substance in the other two plastic bags.
The bench trial resumed on Monday, January 31, 1983,
and continued all that week, and the first two days of
the next. Lemke’s cross-examination included questions
about two other deliveries of purported cocaine by Lov-
inger 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 cocaine delivered on October 5 and 10 was iden-
tified by Lemke as part of People’s Exhibits 4 and 5,
respectively.
Other police officers testified about surveillance they
commenced at the scenes of the transactions, the arrest
of Lovinger and Blackowicz after the transaction on Oc-
tober 16, during which Blackowicz was observed trying
to flush down the toilet the money Lemke paid for the
substances, and the chain of custody concerning the ex-
hibits. 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 officer for the Waukegan Police Department, a
discrepancy developed regarding the chain of custody of
People’s Exhibit 1, the substance allegedly delivered on
October 15. The court called a recess so that the pros-
ecutor could “get [his] act together.”
Following the recess, defense counsel informed the court
that during the recess the prosecutor and the witness had
been passing papers back and forth between them and
had appeared to be discussing the case. Defense counsel
A-47
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 Hutch-
ings how to testify. In fact, he advised, he told Hutchings
they could not discuss his testimony. The prosecutor sim-
ply asked for Hutchings’ records, reviewed them, and
asked Hutchings to review his records and to testify from
memory.
The judge then stated that it was improper for the pros-
ecutor to talk with his witness during the recess, but that
any error was harmless because Hutchings had been refer-
ring to his records throughout his testimony. The judge
concluded his remarks by saying, “(TJhere will be no fur-
ther conversation, and if there is a motion for mistrial,
that mction is denied.’ Defense counsel then moved to
have Hutchings’ testimony stricken, and to bar Hutchings
from testifying further. When these motions were denied,
defense counsel moved for a mistrial, which motion was
also denied, and Hutchings’ testimony continued. 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 occur.”
Part of Hutchings’ cross-examination concerned the
method by which evidence was generally processed at the
Waukegan Police Department. Hutchings testified as fol-
lows: There are evidence lockers located outside the book-
ing room. Each locker has two keys, one kept in Hutch-
ings’ office, and the other kept in the locks of the lockers.
When an officer seizes evidence, he places it in one of
A-48
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 of-
ficer to keep the key once he has placed evidence in a
locker. Under those circumstances, Hutchings does not
take the evidence out of the locker and into his office.
The State’s next witness was Officer Bowden who testi-
fied about the surveillance he conducted of the transac-
tions on October 15 and 16, and about his part of the
chain of custody of the physical evidence. 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 evidence
from the locker himself and gave it to the next person
in the chain of custody. Regarding the purported cocaine
delivered on October 10, Bowden testified that he received
it from Lemke and locked it in an evidence locker on Oc-
tober 10. On the following day he retrieved 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 prosecutor asked
him if there was anything that would refresh his recollec-
ee
A-49
tion, defense counsel objected. The court told the prose-
cutor not to correct the witness and called a recess, stat-
ing “You [presumably Officer 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 “(OJnce again I am informed that [the prosecutor]
has been talking to a witness.” The judge asked the pro-
secutor if he had talked to Bowden, and the prosecutor
first replied, ‘“Not about this case, no.’’ He subsequently
told the judge that ‘(t]he only thing I said to him was,
‘Do you have any police report on the 5th or 10th.’ ”. Dur-
ing the recess defense counsel had asked the prosecutor
for the police reports concerning those dates. The prose-
cutor 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 re-
cess. 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
conversation. 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 evi-
dence locker. Defense counsel had stated earlier that Lov-
inger 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.”
A-50
The court then asked the prosecutor to let him see the
police reports from October 1 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 motion, stating:
“Gentlemen, at this time I 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 at-
tention 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 concerned about the lack of discovery
afforded the defense, pursuant to court order of
Judge Doran, and even of this court.
Third, there was 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 iden-
tification, when I had ordered all of the exhibits to
be taken to the defense chemist for purpose of anal-
ysis, pursuant to the order of discovery.
Fourth, I am very much concerned about what oc-
curred early this afternoon in this courtroom. And
this can be classified as either direct or indirect con-
tempt, and I’m not going into that phase of it. Be-
cause 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 De-
fendant 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.
Ee ee
a ee eS ee ee
A-51
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.’
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 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 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 continued.”
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 mo-
tion 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 walk-
ing out the door, and that’s the end of the proceedings,
and that’s how it terminated.”
A-52
The judge to whom the matter was reassigned denied
the defendant’s motion to dismiss, found that there was
a “manifest necessity” for the mistrial declaration, explain-
ing, ‘““The overriding thing of the trial judge, it appears
to this court, is the fact of concern of error creeping into
the record. This is repeated. An error, of course, would
destroy a fair trial.”
In his motion to dismiss because of former jeopardy,
the defendant 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 person 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 criminal proceedings in
state courts. Benton v. Maryland (1969), 394 U.S. 784,
89 S.Ct. 2056, 23 L.Ed.2d 707.
Article I, section 10 of the Illinois Constitution provides,
in pertinent part, “No person shall * * * be twice put
in jeopardy for the same offense.”’ I]].Const.1970, art. I.
sec. 10.
Section 3-4(aX3) of the Criminal Code provides, in per-
tinent part:
A prosecution is barred if the defendant was for-
merly prosecuted for the same offense, based upon
the same facts, if such former prosecution:
* * * * * *
(3) Was terminated improperly * * *, in a trial
before a court without a jury, after the first
witness was sworn but before findings were
rendered by the trier of facts * * *.
Ill.Rev.Stat.1988, ch. 38, par. 3-4(aX3).
A-53
On appeal the defendant bases his argument on the prin-
ciples of double jeopardy as set forth in case law without
making any distinctions 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 in-
cludes the defendant’s “valued right to have his trial com-
pleted by a particular tribunal * * *.” (Wade v. Hunter
(1949), 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974.)
This right, however, is not absolute and “must in some
instances be subordinated to the public’s interest in fair
trials designed to end in just judgments.” (Wade, 336 U.S.
684, 689, 69 S.Ct. 834, 837, 938 L.Ed. 974.) The standard
for determining whether a defendant may be retried fol-
lowing declaration of a mistrial over his objection is
whether there was a “‘inanifest necessity” for the mistrial
declaration. (Arizona v. Washington (1978), 434 U.S. 497,
98 S.Ct. 824, 54 L.Ed.2d 717.) 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 crim-
inal trial.” (Illinois v. Somerville (1973), 410 U.S. 456, 462,
93 S.Ct. 1066, 1069, 35 L.Ed.2d 425.) As a general mat-
ter, however, a trial judge properly exercises his discre-
tion 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 ob-
vious procedural error in the trial. (Somerville, 410 U.S.
458, 464, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425.) If the prob-
lem giving rise to the mistrial deciaration could have been
adequately corrected short of aborting the proceeding,
however, the standard of ‘manifest necessity” has not
been met, and retrial is barred. People v. Phillips (1974),
29 Ill.App.3d 529, 331 N.E.2d 163.
A-54
Where a defendant asks for or consents to the declara-
tion of a mistrial, different principles come into play.
(Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083,
72 L.Ed.2d 416; People ex rel. Mosley v. Carey (1979),
74 [ll.2d 527, 25 Ill.Dec. 669, 387 N.E.2d 325, cert. denied,
(1979), 444 U.S. 940, 100 S.Ct. 292, 62 L.Ed.2d 306.) Un-
der such circumstances, retrial is barred only if the con-
duct giving rise to the mistrial declaration was intended
to provoke a mistrial. Kennedy, 456 U.S. 667, 679, 102
S.Ct. 2083, 2091, 72 L.Ed.2d 416.
The defendant in the instant case argues that he did
not consent to the mistrial, and that there was no mani-
fest necessity for the mistrial declaration because the con-
cerns cited by the trial judge when he declared the mis-
trial either had been or could have been adequately cor-
rected with less drastic means.
The State, however, referring to the motion for mistrial
made by the defendant during Hutchings’ testimony (which
motion was denied), 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 swa 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.” Alternatively, he
maintains that, if he did consent, retrial shoud be barred
anyway because the prosecutor’s conduct, in speaking to
8 fel 0 Bw
ermal IP:
A-55
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 si-
lence 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 intended
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 opportunity to
interpose an objection. See United States v. Jorn (1971),
400 U.S. 470, 487, 91 S.Ct. 547, 558, 27 L.Ed.2d 543.
In this case, however, there was more than silence on
the part of the defendant. He had previously requested
a mistrial when the prosecutor spoke to one of his wit-
nesses, 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 recess taken during Officer Bow-
den’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 was one of the principal reasons for the court’s
sua sponte declaration of a mistrial. Under such cir-
cumstances, there are cases, not cited by the parties, that
suggest that failure to object does amount to consent.
The case most similar to that before us is People v.
Montlake (1918), 184 A.D. 578, 172 N.Y.S. 102. There the
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defendants were charged with grand larceny in the first
degree. A first trial ended in a mistrial because the pros-
ecutor referred to defense counsel as the attorney for the
“pickpocket trust’”’ and a pickpocket himself. On the first
occasion of such remarks, the defendants moved for a mis-
trial, which motion was denied, and the defendants ex-
cepted. On the second occasion they protested the re-
marks but did not move for a mistrial. On the third and
final occasion, which was more flagrant than the others,
the court declared a mistrial on its own motion without
objection by the defense. The reviewing court concluded
that the mistrial was declared with the defendants’ con-
sent, stating: |
“T think that [the court’s}] such action may well be re-
garded as a somewhat belated granting of defendants’
said former motion for that relief. Defendants’ excep-
tion to the denial of that motion 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.” 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, 81 S.Ct. 710,
5 L.Ed.2d 701, the defendant was charged with first de-
gree murder. His first trial resulted 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 directed 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, ““Wolak [defendant] that—.” (165
A.2d 174, 175.) The defendant thereupon made a motion
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for mistrial which was denied. The court instructed the
jury to disregard the entire incident.
Three days later the court, outside the presence of the
jury, informed counsel that it had decided to reconsider
the defendant’s motion for mistrial. Concluding that the
demonstration by the victim’s widow was prejudicial and
would remain so regardless of his instructions to the jury,
the judge ruled that he “must grant the motion made on
behalf of the defendant for a mistrial.” (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 reviewing court disagreed, concluding
that the defendant waived his right to go to verdict,
stating:
“The right of the trial court to reconsider and re-
determine motions made during trial cannot be dis-
puted. As in the instant case, the trial court did ex-
actly that in [Montlake] * * *.” 165 A.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 P.2d 160, cert. denied (1950), 340 U.S. 890,
71 S.Ct. 206, 95 L.Ed. 645. See also People ex rel. Roberts
v. Orenic (1981), 88 Ill.2d 502, 59 Ill.Dec. 68, 482 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), 489 U.S. 1075, 99 S.Ct. 849, 59 L.Ed.2d 42
(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
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alleged violation of his right to pretrial discovery, argu-
ing 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 [of 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, mak-
ing him fearful that any motion for a mistrial, though
denied, may return to haunt him when the court de-
cides to reverse its decision (perhaps because a prose-
cutor’s case has not gone as well as it might have),
and force the defendant into a second trial on a the-
ory that the court was only finally doing what the
defendant asked him to do.” (194 N.W.2d 36, 40.)
The court in Bowman went on to conclude that such a
Situation was not presented in that case.
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 prosecutor talked to one of his wit-
nesses, Officer Hutchings, about chain of custody during
a recess taken during Hutchings’ testimony. Defense coun-
Sel 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,
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this time between the prosecutor and Officer Bowden dur-
ing a recess taken during the latter’s testimony. Under
these circumstances, 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 defen-
dant wanted to go to judgment. While the defendant ar-
gues that there was no real opportunity to do so, counsel
could well have asked for leave to state his objection dur-
ing 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,
46 Ill.Dec. 628, 414 N.E.2d 512.
Additionally, because this was a bench trial, the defen-
dant might readily, at a later date, have filed a motion
asking the court to reconsider its mistrial declaration. Had
the motion been granted, the trial could have been re-
sumed.
It is apparent that counsel initially spoke to Bowden
in an effort to satisfy defendant’s request tor police re-
ports of the October 5 and 10 transactions. Although, if
Lovinger’s testimony is to be believed, the prosecutor ex-
ceeded the scope of what would clearly be a proper in-
quiry by asking Bowden why he did not follow the pro-
cedure described 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 mistrial would have
to be declared. The record does not support a conclusion
that the prosecutor was trying to provoke a mistrial be-
cause his case had been going badly. Compare People v.
Pendleton (1979), 75 Ill.App.3d 580, 31 Ill.Dec. 294, 394
N.E.2d 496.
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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 re-
manded for a new trial.
AFFIRMED and REMANDED.
HOPF and REINHARD, JJ., concur.
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.