People v. Kimble, 2017 IL App (2d) 160087 (September). Episode 398 (Duration 26:29)
Judge declares a mistrial too early and now the state cannot recharge defendant.
This was a jury trial for sex crimes against a child who was 11 at the time of trial testified and had some inconsistencies in her testimony.
The defendant denied any wrongdoing.
He was a neighbor and friend of the father.
At one point the foreman sent a note to the judge:
“Dear Judge Prather, after deliberating for 5 hours and despite our best efforts, we are at an impasse [sic].”
After receiving this communication, the judge convened defense counsel and the State. The record does not show whether defendant was present.
The judge disclosed the note, and she also disclosed that the jury had earlier indicated to her, through her bailiff, that it was at an “impasse.” She divulged that she had instructed the bailiff to tell the jury to continue deliberating. According to the judge, that ex parte communication occurred “shortly after” the jury rewatched the CAC interview with the child.
Now, the judge suggested that she inquire whether further deliberation would help.
She noted that she was willing to ask if the jurors would like to go home, sleep on it, and return the next morning. When the State wondered whether the judge’s questions would elicit multiple responses, the judge stated:
“I’ll inquire of the foreperson.”
Defense counsel agreed.
The jurors returned to the courtroom, and the judge asked the foreman how long the jury had been at an impasse. He replied,
“Pretty much a good part of the day. Four and a half hours or five hours.”
He indicated that “some numbers changed here and there, but we were stuck at a certain proportion” for the last three hours.
The judge asked if it would do any good to go home and “sleep on it” and continue deliberations the next day. The foreman stated:
“I asked that question, and it was indicated that it would not [do any good].”
The judge asked: “It would not?”
The foreman replied: “No, ma’am.”
The jury then returned to the jury room.
The State and defense counsel both asked the judge to give the Prim instruction and to bring the jury back for further deliberations the following morning.
The judge responded: “I am fearful, folks, if I do that, you’re going to have some extremely angry jurors. *** There has been [sic] some very loud voices back there for a period of time. I think it would be futile to do that. Therefore, I would decline.”
The prosecutor said: “Understood, Judge.”
Defense counsel did not respond.
The judge then excused the jurors and declared a mistrial.
Does Double Jeopardy Prevent A New Trial?
Defendant filed a motion to dismiss the charges on the ground that reprosecution was barred by double-jeopardy principles.
Defendant argued that, as he and the prosecution had both requested the court to give the Prim instruction and to order further deliberation, there was no “manifest necessity” to declare a mistrial.
The Fifth Amendment
The fifth amendment to the United States Constitution provides that no person shall
“be subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. Const., amend. V. Illinois Constitution. See Ill. Const. 1970, art. I, § 10.
(1) a second prosecution for the same offense following acquittal,
(2) a second prosecution for the same offense following conviction, and
(3) multiple punishments for the same offense.
One of the deeply ingrained idea behind the prohibition against double jeopardy is that the State, with all its resources and power, should not be permitted to subject a defendant to the embarrassment, expense, and ordeal of multiple prosecutions.
Indeed, the prohibition against trying a defendant twice for the same crime is the sine qua non of American due process standards. Because a second prosecution subjects a person to the ignominy alluded to above, the protection against double jeopardy embraces a defendant’s “valued right” to have his trial completed by a particular tribunal.
The protection against double jeopardy attaches after the jury is selected and sworn. See 720 ILCS 5/3-4(a)(3):
A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if that former prosecution: was terminated improperly after the jury was impaneled and sworn…
(1) A defendant who requests or consents to a mistrial is presumed to have deliberately elected to forgo a decision on his or her guilt or innocence before the jury seated at that time.
(2) However, where the court, acting without the defendant’s consent, declares a mistrial, the court necessarily deprives the defendant of his valued right to have a particular jury decide his fate.
This does not necessarily preclude a second trial, because a defendant’s right to have his trial completed by a particular jury must in some instances yield to the public’s interest in fair trials.
Retrial Possible Only If…
When the court declares a mistrial without the defendant’s consent, the State should be allowed to retry the defendant only if there was a manifest necessity for declaring the mistrial.
Accordingly, reprosecution of a defendant following the declaration of a mistrial is constitutionally permissible if
(1) the mistrial was attributable to the defendant by virtue of his motion or consent; or
(2) the mistrial was warranted by “manifest necessity”.
Essentially, in deciding if a manifest necessity exists, the trial court must balance the defendant’s interest in having the trial completed in a single proceeding, reserving the possibility of obtaining an acquittal before that “particular tribunal,” against the strength of the justification for declaring a mistrial.
Discussing the phrase “manifest necessity,” the Supreme Court held that it cannot be interpreted literally, but that a “manifest” necessity means a “high degree” of necessity.
On review, we may consider several factors, including whether :
(1) the difficulty was the product of the actions of the prosecutor, defense counsel, or trial judge, or was the product of events over which the participants lacked control;
(2) the difficulty could have been intentionally created or manipulated by the prosecution to strengthen its case;
(3) the difficulty could have been “cured” by an alternative that would have preserved the trial’s fairness;
(4) the trial judge actually considered the alternatives to a mistrial;
(5) a subsequent conviction would be subject to reversal on appeal;
(6) the trial judge acted in the heat of the trial confrontation;
(7) the trial judge’s decision rested on an evaluation of the demeanor of the participants, the “atmosphere” of the trial, or any other factors that similarly are not amenable to strict appellate review;
(8) the trial judge granted the mistrial solely for the purpose of protecting the defendant against possible prejudice;
(9) the evidence the State presented, prior to the mistrial, suggested a weakness in its case (e.g., a witness failed to testify as anticipated);
(10) the jurors had heard enough of the case to formulate some tentative opinions;
(11) the case had proceeded so far as to give the prosecution a substantial preview of the defense’s tactics and evidence; and
(12) the composition of the jury was unusual.
Factors relevant when you have a jury at an impasse or a deadlocked jury:
(1) the jury’s collective opinion that it cannot agree,
(2) the length of the deliberations,
(3) the length of the trial,
(4) the complexity of the issues,
(5) any proper communications that the judge has had with the jury, and
(6) the effects of possible exhaustion and the impact that coercion of further deliberations might have on the verdict.
Andrews, 364 Ill. App. 3d at 266-67.
Acquiesces To Mistrial?
Here, defense counsel did not stand mute.
Counsel joined in the State’s request for the Prim instruction, and he also suggested that the court order the jury to keep deliberating.
That conduct is inconsistent with a request for, or acquiescence to, a mistrial.
In our case, defense counsel’s position that he wanted the trial to continue could not have been clearer. Defense counsel stated three times that he was requesting the Prim instruction. When the State suggested that the court give the Prim instruction before discharging the jury, defense counsel stated:
“I would agree with the State, your Honor.”
The court responded: “Pardon?”
Defense counsel repeated: “I would agree with the State.”
The court inquired: “You agree with the State?”
Defense counsel replied: “I do.”
Defense counsel then suggested that the jury return the next day to deliberate.
Surely, three requests for the Prim instruction as well as asking that the jury return the next day qualify as “forceful argument” that the trial continue.
There was no need to make a pro forma objection when the court declared the mistrial.
Accordingly, we hold that defendant did not consent or acquiesce to the mistrial.
The Judge’s Action Caused Problems
Much of the case law applying the manifest-necessity doctrine involves the proper evaluation of alternatives to a mistrial.
A legal commentator has construed Jorn to mean that a trial judge abuses his or her discretion by ordering a mistrial without a “scrupulous” search for alternative means to deal with the difficulties. Thus, a mistrial is improper where the trial judge is responsible for the difficulty and alternatives are available.
In our case, the judge’s ex parte jury communication led to the precipitous declaration of a mistrial without considering available alternatives.
Jury deliberations are a critical stage of trial, involving substantial rights that trigger a defendant’s right to be present and participate in person and by counsel.
Communications between the judge and the jury after the jury has retired to deliberate, except when held in open court and in the defendant’s presence, deprive the defendant of his or her fundamental rights. This tipped the scales in the judge’s decision to sua sponte abort the trial rather than give the Prim instruction.
The judge disclosed the ex parte communication to emphasize that the 4:25 p.m. note from the jury was “the second time” the court “received information from the jury that they [sic] are at an impasse.”
Hence, the judge concluded that it would be “futile” to give the Prim instruction and allow further deliberations. Without the earlier ex parte communication, the court could not reasonably have believed that giving the Prim instruction would be futile.
Prejudice To Defendant
The foreman’s note said that the jury had been deliberating for five hours. However, we note that, in that time, it had also picked the foreman, eaten lunch, and rewatched the video of the CAC interview with S.M.
Furthermore, we determine that the judge’s ex parte communication prejudiced defendant. We look at whether the content of the communication created prejudice. The judge told the bailiff to instruct the jury to “continue to deliberate.”
Presumably, that is what the bailiff conveyed to the jury, though the bailiff’s precise words are not part of the record. That direction was given when the jury first indicated that it was at an impasse, “shortly after” it rewatched the video.
Purpose Of The Prim Instruction
The purpose of the Prim instruction is to guide a jury that is unable to reach a verdict.
Having the bailiff tell the jury to “continue to deliberate” left the jury with no guidance. Indeed, jurors voting in the minority conceivably could feel coerced if, when seeking guidance from the court, “they are met with stony silence and sent back to the jury room for further deliberation.” Prim, 53 Ill. 2d at 74.
The purpose of a defendant’s right to be present with counsel at any jury communication is so that counsel can “aid and advise the defendant as to what course of action he should take, including whether to object, concur, or attempt to influence how the court addresses the jury.” Here, the court’s ex parte communication foreclosed defendant’s option to request the Prim instruction earlier in the afternoon when the jury first considered itself at an impasse.
Then, because the jury declared itself still at an impasse approximately two hours later, the court declined to give the Prim instruction, which informs the jury that the verdict must be unanimous, the jury has a duty to deliberate, the jurors must impartially consider the evidence, and the jurors should not hesitate to reexamine their views and change their opinions if they believe them to be erroneous, provided that the change is not due solely to the other jurors’ opinions or the mere desire to reach a verdict. See People v. Prim, 53 Ill. 2d 62, 75-76 (1972) (approving the language of a draft instruction to be used by trial courts faced with juries in disagreement); Illinois Pattern Jury Instructions, Criminal, No. 26.07 (4th ed. 2000) (taken verbatim from the language approved in Prim).People v. Chapman, 194 Ill. 2d 186, 222 (2000).
Our supreme court explicitly directed that trial courts give this instruction when faced with juries in disagreement. Prim, 53 Ill. 2d at 76.
In People v. Cowan, 105 Ill. 2d 324, 328 (1985), the court held that whether and when to give the instruction is discretionary, based upon such factors as the length of the deliberations and the complexity of the issues. It is proper to give the Prim instruction if the court perceives that the jury is having difficulty reaching a verdict.
People v. Preston, 76 Ill. 2d 274, 284 (1979). The court is not required to delay giving the instruction until the foreman flatly states that the jury cannot reach a verdict. Preston, 76 Ill. 2d at 284.
The court may have the jury continue to deliberate even though it has reported that it is deadlocked and will be unable to reach a verdict. Cowan, 105 Ill. 2d at 328.
When faced with a deadlocked jury, a trial judge should not leave the jury “to grope in such circumstances without some guidance from the court.” Prim, 53 Ill. 2d at 74.
The instruction to “continue to deliberate” did not contain the five points inherent in the Prim instruction:
(1) to return a verdict, each juror must agree thereto,
(2) jurors have a duty to consult with one another and to deliberate with a view to reaching agreement,
(3) each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with fellow jurors,
(4) jurors should not hesitate to reexamine their own views and change their opinions if convinced they are erroneous, and
(5) no juror should surrender his or her honest conviction.
Whereas the Prim instruction encourages jurors to reexamine their opinions and to abjure them if the evidence warrants it, the direction to “continue to deliberate” conveys a different message:
“Keep doing the same thing you’re already doing.”
The judge’s ex parte communication thus might have contributed to the jury’s lack of progress and later did unduly influence her denial of the joint request for the Prim instruction.
Consequently, we hold that the court’s judicial indiscretion, rather than a manifest necessity, prompted the mistrial.
Under these circumstances, reprosecution is barred.
Also, there was no manifest necessity to declare a mistrial.
Here, the judge asked the foreperson if they were deadlocked. However, polling each juror with respect to his or her opinion on the issue of deadlock is the preferred procedure. The salient point, here, is that the actual deadlock was only three hours old. The jury’s own view of whether it can reach a verdict is only one factor in the court’s determination.
There is no requirement that a mistrial be declared because of the jurors’ inability to come to a unanimous verdict immediately. Here, the judge expressed her belief that “you’re going to have some extremely angry jurors” if deliberations were allowed to continue.
Experience shows that tempers flare in the emotional atmosphere of a criminal trial. In other words, angry voices do not necessarily signal a hopelessly deadlocked jury. Here, the trial involved four counts of aggravated criminal sexual abuse, and it lasted three days. The five hours that the jury deliberated included time-outs to pick the foreman and to eat lunch, as it retired to deliberate near the lunch hour. Then, the jury spent over a half hour rewatching the video of the CAC interview.
The issue that the jury had to resolve was S.M.’s credibility.
That issue was anything but straightforward. Because the jury did not deliberate for even a full workday, this factor weighs against a manifest necessity to declare a mistrial.
We are mindful that, while trial judges have “considerable leeway” in determining whether the jury is hopelessly deadlocked, the reviewing court has an obligation to satisfy itself that the trial judge exercised sound discretion.
If the record establishes that the trial judge failed to exercise sound discretion, the reason for deference disappears.
Accordingly, we hold that there was no manifest necessity for the court’s sua sponte declaration of the mistrial. It follows that the court abused its discretion in denying defendant’s motion to bar reprosecution, we grant defendant’s motion to bar reprosecution.