People v. Loschen

2022 IL App (4th) 210695-U

• Court: Appellate Court of Illinois
• Decided: September 14, 2022
• Docket: 4-21-0695
• Status: Unpublished

Opinion

NOTICE This Order was filed under 2022 IL App (4th) 210695-U FILED Supreme Court Rule 23 and is September 14, 2022 NO. 4-21-0695 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Vermilion County JOSHUA LOSCHEN, ) No. 19CF642 Defendant-Appellant. ) ) Honorable ) Mark S. Goodwin, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Turner and Harris concurred in the judgment.

ORDER ¶1 Held: The trial court did not commit error when it declared a mistrial, or by denying defendant’s motion to dismiss based on double jeopardy after declaring the mistrial.

¶2 After an evidentiary hearing on defendant’s alleged contacts with jurors, the trial

court declared a mistrial. Defendant then filed a motion to dismiss on double jeopardy grounds.

The court denied his motion. In this appeal, defendant asserts the court erred by (1) declaring a

mistrial without considering alternatives there to and (2) denying his motion to dismiss. We affirm.

¶3 I. BACKGROUND

¶4 On November 22, 2019, in the circuit court of Vermilion County, a grand jury

indicted defendant for aggravated battery of a person 60 years of age or older (720 ILCS 5/12-3.05

(d)(1) (West 2018)). By the lunch recess on May 18, 2021, 12 jurors and 2 alternate jurors had been selected for defendant’s trial. With defendant present, the trial court admonished the jury not

to discuss the case with anyone and to report to one of the bailiffs if anyone were to speak to them.

¶5 At the conclusion of the noon recess, the trial court noted it had been advised several

witnesses reported observing defendant talking with jurors during the break, and that two jurors

reported defendant spoke to them during the recess. The court stated it was inclined to declare a

mistrial if defendant admitted the foregoing occurred, or if a hearing confirmed what had been

reported to the court. Defendant advised he wished to have a hearing because he denied having

inappropriate contact with the jurors.

¶6 The trial court first examined Ashley Castillo, who was the court clerk present for

the selection of the jury as well as the court’s admonishments prior to the lunch recess. Castillo

testified defendant attempted to leave the courtroom before the jurors finished departing, which

she believed he did for the purpose of talking to jurors. To prevent defendant from speaking to the

jurors, Castillo said his last name and put her hand out for him to stop. Defendant did so. After

leaving the courtroom, Castillo saw defendant speaking to one of the jurors in the stairwell but did

not hear what defendant said.

¶7 During the lunch recess, Castillo also saw defendant in his vehicle pull alongside

two jurors who were on a sidewalk and speak to them. The jurors did not stop walking, and Castillo

did not hear what defendant said to them. Neither of these two was the juror Castillo saw defendant

speak to on the stairs in the courthouse. Castillo did not believe defendant was following these

jurors.

¶8 Greg Woodward testified he was one of the bailiffs who was present for jury

selection, and took a report from two jurors about defendant’s contact with them while they were

at a restaurant over the lunch recess. These jurors advised Woodward defendant approached the

-2- table at which they were sitting and said, “Thank you for serving.” Defendant said nothing else,

but one of the jurors told Woodward the foregoing made him uncomfortable such that the two left

the establishment.

¶9 Adam Watson testified he was a deputy with the Vermilion County Sheriff’s Office,

next to whom defendant sat outside the courtroom near the end of the lunch recess. Watson

observed defendant wave to three of the jurors as they were returning from lunch. Watson believed

one of the jurors responded to defendant’s wave with a smile. Defendant did not attempt to speak

to any of these jurors, but told Watson, “Thank you for showing up today, and thank you for your

service.”

¶ 10 After hearing from the witnesses, the trial court acknowledged it directed the jurors

to have no contact with others about the matter but did not admonish defendant directly. The court

commented it had never observed a court so admonish a defendant because it’s an “accepted truth”

defendants cannot have conversation with jurors. The court noted observing, while admonishing

the jurors prior to lunch, defendant rise, and defendant’s counsel, in response, directing defendant

to wait. As well, the court saw defendant immediately and “impatiently” walk around and behind

his counsel. It was then the court noticed Castillo directing defendant to wait.

¶ 11 The trial court noted defendant’s apparent “eagerness” to join the jurors,

presumably “to share pleasantries with them.” The court found the totality of the circumstances

“disturbing” and inappropriate. The court believed defendant’s contacts were “willful” and

constituted “jury tampering.” For these reasons, the court declared a mistrial and directed the

parties to coordinate dates with the circuit clerk for a new trial.

¶ 12 Subsequently, defendant’s attorney sought leave to withdraw, which request the

court later granted. After new counsel entered his appearance for defendant, in August 2021,

-3- defendant filed a motion to dismiss, asserting his continued prosecution violated the constitutional

protections against double jeopardy. On November 10, 2021, after argument, the court denied the

motion to dismiss.

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 Defendant appeals from the trial court’s order denying his motion to dismiss on

double jeopardy grounds. He claims the court erred in declaring a mistrial based upon his contact

with certain jurors. He argues the court did not satisfy the “manifest-necessity” prerequisite or

consider alternatives before declaring a mistrial without his consent. Because, he claims, the court

should not have declared a mistrial under these circumstances, jeopardy attached with the

impaneling and swearing in of the jury and thus, the subsequent prosecution was barred.

¶ 16 A. Standard of Review

¶ 17 We review both a trial court’s determination of whether manifest necessity warrants

a mistrial and a court’s ruling on a motion to dismiss on double jeopardy grounds for an abuse of

discretion. People v. Edwards, 388 Ill. App. 3d 615, 624-25 (2009).

¶ 18 B. The Trial Court Did Not Abuse Its Discretion

¶ 19 1. Manifest Necessity

¶ 20 When a court declares a mistrial without the consent of the defendant, a retrial can

go forward if “manifest necessity” warranted the mistrial. People v. Street, 316 Ill. App. 3d 205,

211 (2000). When examining whether such necessity required a mistrial, the court should consider

the following factors:

“(1) whether the difficulty was the product of the actions of the prosecutor, defense

counsel, or trial judge, or was events over which the participants lacked control;

-4- (2) whether the difficulty could have been intentionally created or manipulated by

the prosecution to strengthen its case; (3) whether the difficulty, prejudice, or other

legal complication might have been ‘cured’ by another alternative that would have

preserved the trial’s fairness; (4) whether the trial judge actually considered the

alternatives to a mistrial; (5) whether a subsequent conviction would be subject to

reversal on appeal; (6) whether the trial judge acted in the heat of the trial

confrontation; (7) whether 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) whether the trial judge

granted the mistrial solely for the purpose of protecting the defendant against

possible prejudice; (9) whether 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) whether the jurors had heard enough of the case to formulate

some tentative opinions; (11) whether the case had proceeded so far as to give the

prosecution a substantial preview of the defense's tactics and evidence; and

(12) whether the composition of the jury was unusual.” Id. at 211-12.

¶ 21 Recognizing the often unique and varying circumstances presented by a criminal

trial, there is no “mechanical formula” a trial court must follow. (Internal quotation marks omitted.)

Edwards, 388 Ill. App. 3d at 624. Instead, our abuse-of-discretion review affords the trial court the

utmost deference or “ ‘highest degree of respect,’ ” as those courts are more familiar with the

relevant factors than we could be. Id. at 624-25 (quoting People v. Segoviano, 189 Ill. 2d 228, 241

(2000)). Indeed, the trial court is “best situated” to make a reasoned decision regarding a mistrial

and is afforded the flexibility to fashion a remedy in each unique matter when considering the

-5- question. People v. Barfield, 288 Ill. App. 3d 578, 584 (1997). In some matters, individual

instances of conduct may not require a mistrial, but the cumulation of such errors warrants such

action. Id.

¶ 22 Though the right to be free from double jeopardy is meant to protect defendants,

the State is also entitled to an unbiased jury such that defendants’ rights must sometimes be

subordinated to “the public’s interest in fair trials.” (Internal quotation marks omitted.) Illinois v.

Somerville, 410 U.S. 458, 470 (1973). If a trial court learns of facts suggesting one or more

members of the venire could be biased against the defendant or the State, its duty is to declare a

mistrial. Id.

¶ 23 Recognizing the foregoing, the trial court, court clerk, and defendant’s attorney

independently appear to have concluded, during the court’s admonitions to the jury prior to the

lunch recess, defendant sought to initiate contact with jurors at the commencement of the recess.

The latter two both attempted to prevent such contact, which the court witnessed. However, after

the court admonished the jury, admonishments which defendant presumably heard, and after being

stopped by the court clerk and his own attorney, defendant immediately thereafter approached and

spoke to one of the jurors. Within the next hour, defendant maneuvered his vehicle to the sidewalk

and spoke with two other jurors there. During this timeframe, defendant also located two other

jurors in a restaurant and thanked them for their service. Finally, at the conclusion of the recess,

defendant waved to three other members of the venire. In total, defendant initiated some manner

of communication with eight jurors.

¶ 24 From defendant’s actions, the trial court certainly could have concluded defendant

wanted to ingratiate himself with members of the jury. It is possible each individual contact was

insufficient in and of itself to warrant a mistrial. We also agree with the court defendant’s actions

-6- may have adversely affected the jurors’ perceptions of defendant himself. Nevertheless, the court’s

conclusion the cumulative contacts were willful and amounted to “tampering” justifiably

constituted the manifest necessity supporting declaration of a mistrial.

¶ 25 2. Alternatives to a Mistrial

¶ 26 Defendant argues the trial court abused its discretion in declaring a mistrial before

first considering alternatives. Defendant faults the court because (1) it did not interview or inquire

of any of the jurors directly whether they could be impartial given defendant’s contact, (2) the only

evidence of any impact on juror impartiality was Woodward’s testimony that one juror told him

he was uncomfortable, (3) the court could have seated alternate jurors, and (4) the court could have

offered a jury of less than 12 persons.

¶ 27 As for defendant’s suggestion the trial court could have inquired of the jurors

contacted by defendant to determine if they could still be impartial, such polling is not required.

People v. Black, 314 Ill. App. 3d 276, 279-80 (2000). In fact, polling for such purpose may inject

more bias and thus outweigh any prejudice from the underlying jury contact. Id. at 280.

¶ 28 As to the option of seating alternate jurors, or offering defendant a jury of less than

12, we agree with the State, the trial court could have been reasonably concerned the court’s sudden

removal of the contacted jurors would have had an adverse effect on the impartiality of such jury

eventually empaneled.

¶ 29 Thus, given the wide discretion afforded a trial court to achieve jury impartiality,

and given the close and unique perspective of the trial court, we find no abuse of discretion in

either the declaration of a mistrial based on defendant’s contact with members of the jury, or in

the subsequent denial of the motion to dismiss.

¶ 30 III. CONCLUSION

-7- ¶ 31 For the foregoing reasons, we affirm the trial court’s judgment.

¶ 32 Affirmed.

-8-