People v. Mabry

2023 IL App (3d) 200321-U

• Court: Appellate Court of Illinois
• Decided: October 19, 2023
• Docket: 3-20-0321
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 200321-U

Order filed October 19, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-20-0321 v. ) Circuit No. 08-CF-1050 ) LEVERSUS A. MABRY, ) Honorable ) Albert L. Purham Jr., Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court. Justices Albrecht and Davenport concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Double jeopardy barred retrial of defendant because there was no manifest necessity for a mistrial. ¶2 Defendant, Leversus A. Mabry, appeals his conviction of aggravated battery with a

firearm at the end of a fifth trial. Defendant argues that the mistrial declaration1 that ended his

fourth trial was error by the Peoria County Circuit Court because it violated his constitutional

protection against double jeopardy by: (1) declaring a mistrial over his objection and without

manifest necessity, based on his brief reference to prior proceedings during his opening

statement at that trial; (2) failing, in doing so, to consider any alternatives to mistrial or otherwise

engage in the exercise of its discretion; (3) denying his motion to dismiss, on double jeopardy

grounds, all charges pending against him, and (4) allowing him to be tried a fifth time and

convicted of charges barred by double jeopardy. We reverse.

¶3 I. BACKGROUND

¶4 In 2008, a grand jury indicted defendant for aggravated battery with a firearm (720 ILCS

5/12-4.2(a)(1) (West 2008)) and unlawful possession of a weapon by a felon (id. § 24-1.1(a)).

The aggravated battery charge alleged that defendant “knowingly and without legal justification

caused an injury to Jerome Ashford by means of the discharging of a firearm in that he shot ***

Ashford with a handgun.” The court appointed counsel. The matter proceeded to a jury trial.

¶5 At the conclusion of the trial, the jury failed to reach a unanimous verdict. The court

granted defendant’s motion for a mistrial. After a second trial, the jury again failed to reach a

unanimous verdict. The court gave a Prim instruction over defense counsel’s objection. The jury

then found defendant guilty. On appeal, we determined that the court erred in failing to grant a

mistrial based on prejudicial witness testimony. People v. Mabry, No. 3-10-0042 (2011)

1 This is not a final and appealable order, making this subsequent trial defendant’s first opportunity to

appeal the mistrial. Conover v Smith, 20 Ill. App. 3d 258, 269 (1974) (holding that “an order declaring a mistrial is

not a final and appealable order”).

2 (unpublished order under Illinois Supreme Court Rule 23). After a third jury trial, defendant was

found guilty of both charges. On appeal, we found that defendant received ineffective assistance

of counsel and remanded for a new trial. People v. Mabry, 2016 IL App (3d) 140039-U, ¶ 27.

¶6 At the fourth trial, defendant proceeded as a self-represented litigant. The court instructed

the jury that “[a]n opening statement is not evidence and should not be considered by you as

evidence.” During opening statements, defendant stated “what you will—this is the fourth

proceedings in this case, in this trial here. The fourth one, and you’re going to hear evidence

today that—.” The State objected and the following discussion occurred outside the presence of

the jury. The State requested a mistrial, arguing that defendant prejudiced the jury by indicating

that there had been previous trials. When asked by the court whether he would like to respond,

defendant argued:

“The jury is going to hear there was four proceedings anyway because of the

impeachment evidence. I did not say fourth trial. I only said fourth proceedings. I

said fourth proceedings. I feel like they’re going to hear it. This is the fourth trial.

It works either way. They can say, well, he kept having a trial, having

trial. It works both ways. It just don’t work your way against you. It works against

me too, and what I was fitting to get to was—I didn’t do anything wrong. I object

to that, [Y]our Honor.”

The following is the balance of the discussion in its entirety:

“THE COURT: All right. Well, I’m going to grant the State’s request for a

mistrial. So that the record is clear—

THE DEFENDANT: Your Honor.

3 THE COURT: Don’t interrupt me, [defendant]. I let you make your

argument, so don’t interrupt me.

THE DEFENDANT: I asked you was it fine to make the argument. I

asked you was it fine to say fourth proceedings.

THE COURT: No, you didn’t.

THE DEFENDANT: I asked you. Because I was going to say trials, but I

wasn’t sure if that was the proper word to use because in the last proceedings the

judge told us not to use trial. They said they didn’t want to use trials because it

was going to prejudice me.

THE COURT: [Defendant], it prejudices both of you.

THE DEFENDANT: Okay. Well, I’m fine with the prejudice. I can deal

with it on appeal.

THE COURT: Well, but the State is not. So I’m going to grant the request

for a mistrial, and we’re going to have to start over again.”

The court also instructed defendant to seek leave to file any further motions.

¶7 Thereafter defendant attempted to foreclose, on double jeopardy grounds, a fifth trial. He

filed a “motion for leave to file motion to dismiss for former effects of prosecution,” wherein he

argued “the court erred in granting the State’s motion for a mistrial over the defendant’s

objection.” Additionally, defendant filed a “motion to dismiss for former effects of prosecution.”

Defendant alleged that he conversed with the court and State prior to trial about the use of the

word “trial.” Defendant further alleged that the State requested the term “proceedings” be used.

Defendant argued that the court erred in granting the State’s motion for a mistrial because his use

4 of “fourth proceedings” did not rise to the level of manifest necessity. Additionally, defendant

argued that double jeopardy prohibited a fifth trial. The court denied the motion.

¶8 Prior to the fifth trial, the State dismissed the charge of unlawful possession of a weapon

by a felon. When that trial began, defendant again proceeded as a self-represented litigant.

During his cross-examination of Ashford, defendant mistakenly referenced the “second trial

proceedings.” The following conversation then took place outside the presence of the jury:

“THE COURT: You said the second trial proceeding, which you—

THE DEFENDANT: Oh.

THE COURT:—you were not supposed to do. And it appears to the Court

that you’re so bent up on cross-examining with the transcript of the prior

proceeding, that you keep talking about other proceedings, that you’re going to

cause a mistrial. I’m about ready to call a mistrial, which you don’t want to

happen.

THE DEFENDANT: No, No. I wasn’t even aware I said it, so I apologize

to the Court. And I’m sure probably between me and Mr. Ashford arguing over

trying to get to this little simple point, the jury’s probably got that misconstrued

up in all the argument. So they may not even have heard it, [Y]our Honor.

THE COURT: Well, they heard it because I did.

THE DEFENDANT: Oh, I’m sorry. I didn’t even know I said it.”

The trial proceeded and the jury found defendant guilty of aggravated battery with a firearm.

¶9 Defendant filed a motion for new trial in which he argued the court had erred in granting

the State’s motion for a mistrial in his fourth trial and denying his subsequent motion to dismiss

5 the charges against him on double jeopardy grounds. The court denied the motion and sentenced

defendant to 36 years’ imprisonment. Defendant appeals.

¶ 10 II. ANALYSIS

¶ 11 Defendant argues that the court erred in denying his motion to dismiss the pending

charges on double jeopardy grounds where it declared a mistrial based on his brief reference to

prior proceedings in his opening statement and failed to consider alternatives.

¶ 12 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.

The Illinois Constitution also prohibits placing persons in double jeopardy. Ill. Const. 1970, art.

I, § 10 (“No person shall *** be twice put in jeopardy for the same offense.”). Jeopardy attaches

when the jury is empaneled and sworn (People v. Bellmyer, 199 Ill. 2d 529, 538 (2002)), because

defendants are entitled to have their trials completed by the particular tribunal selected (Arizona

v. Washington, 434 U.S. 497, 503 (1978)). “A second trial ‘increases the financial and emotional

burden on the accused, prolongs the period in which he *** is stigmatized by an unresolved

accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be

convicted.’ ” People v. Shoevlin, 2019 IL App (3d) 170258, ¶ 25 (quoting Washington, 434 U.S.

at 503-04). “As such, the State is generally entitled to only one opportunity to prosecute a

defendant.” Id.

¶ 13 The constitutional right at issue belongs to the defendant and his request for a mistrial

constitutes a waiver of the right. When, however, the circuit court declares a mistrial without

defendant’s request, double jeopardy bars the retrial of defendant unless there was a manifest

necessity for the mistrial. People v. Pondexter, 214 Ill. App. 3d 79, 83 (1991). “The manifest

necessity standard is a command to the trial court not to foreclose the defendant’s right to have a

6 particular tribunal decide his fate until a scrupulous exercise of judicial discretion leads to the

conclusion that the ends of public justice would not be served by continuing the proceedings.”

People v. Dahlberg, 355 Ill. App. 3d 308, 314 (2005); see also People v. Segoviano, 189 Ill. 2d

228, 241 (2000). “The question concerning whether manifest necessity warranted a mistrial is

determined by the facts of each case.” Dahlberg, 355 Ill. App. 3d at 315. “Whether to declare a

mistrial is a matter within the sound discretion of the trial court, and double jeopardy concerns

do not arise unless that discretion is abused.” Id.

¶ 14 In determining whether manifest necessity warranted a mistrial, a reviewing court may

consider a wide variety of factors, including:

“(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; (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

7 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.”

People v. Street, 316 Ill. App. 3d 205, 211-12 (2000).

¶ 15 It is our obligation on review to ensure that the circuit court exercised “ ‘sound

discretion’ ” in declaring a mistrial. Washington, 434 U.S. at 514. It is of the utmost importance

that a circuit court carefully considers all reasonable alternatives prior to declaring a mistrial.

People v. Bagley, 338 Ill. App. 3d 978, 982 (2003); Brady v. Samaha, 667 F.2d 224, 229 (1st Cir.

1981). “Whether the trial judge gave counsel an opportunity to be heard regarding a mistrial is of

major importance, as is ‘the amount of time devoted to the mistrial decision.’ ” Dahlberg, 355

Ill. App. 3d at 315 (quoting Brady, 667 F.2d at 229). “A hasty decision, reflected by a rapid

sequence of events culminating in a declaration of a mistrial, tends to indicate insufficient

concern for the defendant’s constitutional rights.” Id.

¶ 16 In the instant case the State sought a mistrial in defendant’s fourth trial based on his

allegedly improper reference to the prior “proceedings” during his opening statement. The

challenged language, which formed the sole basis for the declaration of mistrial, was: “what you

will—this is the fourth proceedings in this case, in this trial here. The fourth one, and you’re

going to hear evidence today that--.” It is not clear to us what that statement says or means. It

certainly does not compel, or even strongly support, a conclusion that this is defendant’s fourth

trial; at most it indicates that there have been four prior proceedings of some sort “in this case, in

this trial.” The very ambiguity of the defendant’s words provides a significant opportunity for the

court to fashion a corrective explanation for the jury and allow the trial to proceed. But the court

8 neither considered nor attempted such an option. The State asked for a mistrial, the defendant

raised multiple objections, and the court simply granted the request.

¶ 17 The fact that the offending statement was made during defendant’s opening statement to

the jury presented another opportunity for the court to take corrective action and avoid declaring

the mistrial. Generally, a court’s instructions at the start of trial and at its conclusion, that

opening statements are not evidence are sufficient to cure improper remarks during opening

statements. People v. Risper, 2015 IL App (1st) 130993, ¶ 29; see People v. Peeples, 155 Ill. 2d

422, 482 (1993) (prosecutor’s reference to defendant as a “ ‘human predator’ ” in opening

statements was error but was cured by the circuit court twice instructing jurors that opening

statements were not evidence); see also People v. Kliner, 185 Ill. 2d 81, 127 (1998) (prosecutor

erred in opening statements by telling the jury that defendant purchased certain firearms when

the State did not introduce such evidence and “should have known” he would be barred from

doing so, but the error was not prejudicial where the court twice instructed the jury that opening

statements were not evidence). Here, despite knowing these instructions would be given to the

jury and giving no consideration apparent in the record to options for giving them and

admonishing the jury and the pro se defendant, the court granted the State’s request for a

mistrial. See People v. Arroyo, 339 Ill. App. 3d 137, 150-52 (2003) (prosecutor’s improper

remarks during opening statements were not prejudicial because the court sustained an objection,

admonished the jury, and admonished the prosecutor). Moreover, as previously noted,

defendant’s remarks were not substantially prejudicial such that they would warrant a reversal on

appeal. People v. Williams, 192 Ill. 2d 548, 573 (2000); see Arroyo, 339 Ill. App. 3d at 150-52;

Peeples, 155 Ill. 2d at 482; Kliner, 185 Ill. 2d at 127-28. The record shows that the court hastily

granted the State’s motion after hearing only brief arguments from the parties, and without any

9 consideration for defendant’s constitutional rights or of alternative methods to cure any error.

See Shoevlin, 2019 IL App (3d) 170258, ¶ 29 (court hastily granted mistrial after allowing only

brief argument, recessing for five minutes, and rejecting alternative remedies).

¶ 18 We find no evidence in the record that the trial court undertook any exercise of discretion

before declaring the mistrial, even though it had multiple options available for its consideration.

One, in addition to those previously mentioned, was the crafting of a statement to be included

with its general description of the case for the jury that would advise them that this was not

defendant’s first trial on these charges, but that that fact had no relevance to their duties during

this trial.

¶ 19 For all of the foregoing reasons, we find there was no manifest necessity for the mistrial

declared in defendant’s fourth trial, the denial of defendant’s motion to dismiss the charges

pending against him following his fourth trial was error; defendant’s fifth trial violated his

constitutional protection against double jeopardy and his conviction is vacated. Further, double

jeopardy principles bar retrial of defendant on both charges. See Pondexter, 214 Ill. App. 3d at

83; Bellmyer, 199 Ill. 2d at 538.

¶ 20 III. CONCLUSION

¶ 21 The judgment of the circuit court of Peoria County is reversed, defendant’s conviction is

vacated.

¶ 22 Reversed and vacated.