People v. Edwards

422 N.E.2d 1117, 97 Ill. App. 3d 407, 52 Ill. Dec. 908, 1981 Ill. App. LEXIS 2818

• Court: Appellate Court of Illinois
• Decided: June 16, 1981
• Docket: 80-1101
• Status: Published

Opinions

Mr. PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

The State appeals from the trial court’s “acquittal” of defendant, Ellen Edwards, and seeks to invoke appellate jurisdiction to review that disposition under Supreme Court Rule 604(a)(1) (111. Rev. Stat. 1979, ch. 110A, par. 604(a)(1)), which permits the State to appeal orders of dismissal. The State alleges that the substantive effect of the trial court’s action was to improperly dismiss the charge against defendant rather than to acquit.

The information filed by the State on October 24,1979, in the instant case named three defendants, V. O. James, otherwise called James Mansfield, Ellen Edwards, the present defendant, and Reginald Fisher, charging all three with theft. The three were arraigned on October 29, 1979. From that time, the State proceeded against all three in one action, until the date on which the events of which the State complains occurred. When the cause came on for trial on March 19, 1980, the trial court granted a continuance to March 24, 1980, to two of the three defendants, V. O. James and Reginald Fisher, who were apparently experiencing some difficulty with respect to securing defense counsel.

The trial court then asked whether the State was ready for trial in the case of defendant Ellen Edwards. The prosecutor responded that: it was the State’s intention to try all three defendants together; the State was attempting to comply with the trial court’s desire to go to trial on the case of Ellen Edwards and was “* * * amenable to try her case separately from the other defendants though there * * * [were] really no grounds for severance”; the State had made attempts to get the arresting officers into court that day but both were on furlough and could not be reached by telephone; and because the officers could not be present, and the State had never before sought a motion for a continuance, it respectfully requested that the Ellen Edwards case be given the same date the co-defendants received, March 24, and it would at that time be ready to proceed one way or another with that case.

It was upon this background of two previous continuances sought by and granted to defendants and five “by agreement” continuances, in addition to the two continuances granted to the co-defendants that very morning, that the trial court stated:

“I don’t know what I can do to communicate with the State’s Attorneys in this court that when I say trial I mean trial. So the motion for continuance is denied.”

The trial court then inquired as to the State’s evidence. The State responded that it had none to put on by virtue of the absence of its key witnesses. The prosecutor stated:

“Mr. Romano: We are not prepared for we have no witnesses in court.

The Court: Do you wish your client to testify?

Mr. Morse [public defender representing Edwards]: Yes, I do, Judge.”

Thereafter, defendant Edwards, called on her own behalf, was sworn and testified as to her version of the circumstances and arrest. The court then inquired as to whether the State would cross-examine to which the prosecutor responded:

“Mr. Romano: Your Honor, the State respectfully states for the record we do not believe there’s a legitimate case or controversy before the Court and we have no questions.

“The Court: All right, argument? State [sic] wish to argue?

Mr. Romano: The State, for the record, states we are not party [sic] to this proceeding and we have no argument.”

The trial court thereafter found defendant Edwards not guilty and she was discharged.

The State contends, under the foregoing circumstances, that defendant was not “put to trial” so as to have exposed her to jeopardy, relying upon People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8, People v. Shields (1979), 76 Ill. 2d 543, 394 N.E.2d 1161, People v. Dellecarto (1978), 67 Ill. App. 3d 490, 384 N.E.2d 902, and People v. Shick (1968), 101 Ill. App. 2d 377, 243 N.E.2d 285. People v. Deems appears to provide the necessary guidelines for an appropriate disposition of this case. In Deems, defendant was indicted for knowingly receiving stolen property, and on the date set for trial the State moved to dismiss the charges, conceding that defendant was not guilty of that charge, but that an indictment would be sought against him for theft which the State would be ready to prosecute within a week. Notwithstanding the State’s admission that the defendant did not commit the offense with which he was charged, defendant demanded an immediate trial on the original charge and the trial court, likening the State’s motion to a request for continuance, decided that defendant was entitled to go to trial if he was prepared to do so. The trial court called the case for trial despite the State’s protestations. Defendant waived a jury trial. When the trial judge called for witnesses to be sworn, only defendant did so, but he did not testify. The State again indicated that it had no witnesses to call. The trial court then found defendant not guilty and entered its judgment acquitting him. A subsequent indictment for theft was dismissed on double jeopardy grounds, from which the State appealed seeking reversal of both the acquittal and reversal.

In upholding the reversal adjudged by the appellate court, the supreme court in Deems made the following observations, among others (81 Ill. 2d 384, 389-90):

“While the judge denominated his action an ‘acquittal,’ it bore none of those characteristics except the label. The proceedings were not an attempt by the State to convict defendant. * * *

The ‘trial’ held at the first proceeding was a sham, an artifice employed by the trial judge to achieve the result of a dismissal with prejudice for want of prosecution which [People v.] Thomas [(1975), 24 Ill. App. 3d 907,] had held he did not have the authority to order. * * *

The interests protected by the double jeopardy clause simply are not threatened in this case. The traditional rule is that jeopardy attaches in a bench trial when the first witness is sworn and the court begins to hear evidence. [Citations.] That rule is predicated upon the fact that the first toitness is normally an individual whose testimony is part of the State’s case — a prosecution witness whose appearance is a part of the incriminating presentation jeopardizing defendant. Here, the only person sworn was the defendant himself, and he did not testify. No evidence of any type was introduced, and it is clear that defendant was at no time during these proceedings in danger of being found guilty of any offense.” (Emphasis supplied.)

In the case at bar, the State refused to participate in the proceedings and declined to involve itself in any prosecutorial activities, as in People v. Deems. The trial court here was without authority to assume the mantle of prosecutor; that role is reserved to the State by Constitution (Ill. Const. 1970, art. II, §1) and by statute (Ill. Rev. Stat. 1979, ch. 14, par. 5). People v. Ruiz (1979), 78 Ill. App. 3d 326, 334, 396 N.E.2d 1314, cert. denied (1980), 81 Ill. 2d 597; People v. Rotramel (1972), 5 Ill. App. 3d 196, 282 N.E.2d 484.

Defendant in the instant case voluntarily took the stand and gave such exculpatory testimony under questioning by her lawyer as she felt she wished to give. The trial court asked no questions and the State maintained its posture of noninvolvement. When asked if he wished to cross-examine, the assistant state’s attorney responded, “Your Honor, 000 we do not believe there’s a legitimate case or controversy before the Court and we have no questions.” When the trial court asked whether the State wished to argue, the assistant state’s attorney responded “* * * we are not party to this proceeding and we have no argument.” No argument was presented by the defense. The trial court did not direct defendant to take the stand but simply asked, “Do you wish your client to testify?” Nor surprisingly, in light of the State’s having already asserted that it would not go forward with the prosecution, counsel for the defense responded, “Yes, I do, Judge.” Defendant’s “testimony” was entirely self-serving in view of the unremarkable absence in the facts she related of any suggestion of a vital element which would have had to have been proved under the charge of theft, namely, intent. (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1.) In fact, the absence of evidence of intent was the principal basis of the trial court’s “acquittal” in this instance, in which it stated, “Ellen Edwards is found not guilty, there’s no proof of intent among other things.” The patent distinction between the instant case and People v. Deems is that in Deems no testimony was elicited from defendant, whereas here defendant did take the stand and answer her lawyer’s questions. Under the circumstances presented here, however, as set forth above, it is difficult to see how either in law or common sense her election to testify in the absence of prosecution can have exposed her to jeopardy, single or double.

The origin and history of the double jeopardy clause was again recently reviewed by the United States Supreme Court in United States v. Scott (1978), 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187. There, the court noted the purpose underlying the prohibition against double jeopardy, citing and quoting from Green v. United States (1957), 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223, stating:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. . ..” ’[Citation.]

Upon fuller consideration, we are now of the view that this language from Green, while entirely appropriate in the circumstances of that opinion, is not a principle which can be expanded to include situations in which the defendant is responsible for the second prosecution.” (437 U.S. 82, 95-96, 57 L. Ed. 2d 65, 77, 98 S. Ct. 2187, 2196.)

The canvas presented in the case at bar not only fails to depict “* ° * the State with all its resources and power * * * [making] repeated attempts to convict an individual for an alleged offense ° ° but a defendant who, at the invitation of the trial court, knew that in the posture of the proceedings there was no chance for her to have been found guilty beyond a reasonable doubt. To apply the double jeopardy clause to such a portrait would be to exalt form over substance. This is not a case where a trial court evaluated the government’s evidence and determined that it was legally insufficient to sustain a conviction (see, e.g., United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 572, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1355), but one in which the government presented no evidence whatsoever upon which the trial court could have based any evaluation at all. In short, there simply was no trial. In our opinion, therefore, this situation is analogous to that in People v. Deems (1980), 81 Ill. 2d 384, 390-91, in which the State was authorized to pursue an appeal under Supreme Court Rule 604(a)(1) and section 114 — 1(a)(2) of the Code of Criminal Procedure of 1963. Ill. Rev. Stat. 1979, ch. 110A, par. 604(a)(1); Ill. Rev. Stat. 1979, ch. 38, par. 114-1(a)(2).

Neither City of Peoria v. Davis (1976), 39 Ill. App. 3d 557, 350 N.E.2d 531, nor People v. Hurlbert (1976), 41 Ill. App. 3d 300, 354 N.E.2d 652, support the trial court’s procedure in the instant case. The appeal was simply dismissed in Davis because the State sought to reverse an adverse ruling on a preliminary motion to quash a search warrant and suppress evidence secured thereunder after the trial court there purported to have rendered a decision on the merits. The issue as to the propriety of the denial of a continuance was never raised in Davis, nor does the opinion consider whether or not the State participated in the so-called trial that took place thereafter. Likewise, those issues were not raised in Hurlbert.

Recognizing that a trial court must be permitted to maintain discretionary power, in appropriate circumstances, to deny continuances if a recalcitrant defendant has been attempting to thwart the trial court’s efforts to “move its calendar” (People v. King (1977), 66 Ill. 2d 551, 557, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273), and a trial court should deny continuances sought by the State where a defendant’s right to á speedy trial will be improperly obstructed (People v. Richards (1980), 81 Ill. 2d 454, 459-61, 410 N.E.2d 833), neither of these circumstances was the situation obtaining here. Further, the State had announced its intention to try the three defendants together. No motion was made or ruled upon by the trial court for severance, and the other two defendants were granted five-day continuances to March 24, 1980, the same day sought by the State upon which to present its case against Edwards, as well as the other defendants. Upon these facts, it is difficult to discern any possible basis upon which the trial court could be deemed to have been exercising discretion to move its calendar.

Accordingly, the trial court’s “discharge” of defendant Edwards is vacated, and the cause remanded for trial on its merits.

Reversed and remanded.

PERLIN, J., concurs.