People v. Russell

519 N.E.2d 6, 165 Ill. App. 3d 569, 116 Ill. Dec. 416, 1987 Ill. App. LEXIS 3624
CourtAppellate Court of Illinois
DecidedDecember 1, 1987
DocketNo. 5-87-0131
StatusPublished
Cited by4 cases

This text of 519 N.E.2d 6 (People v. Russell) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Russell, 519 N.E.2d 6, 165 Ill. App. 3d 569, 116 Ill. Dec. 416, 1987 Ill. App. LEXIS 3624 (Ill. Ct. App. 1987).

Opinion

JUSTICE CALVO

delivered the opinion of the court:

Defendant, James Russell, was charged with aggravated kidnapping, and a jury trial on June 23 to 26, 1986, ended in a mistrial due to the jury’s inability to reach a verdict. On November 6, 1986, an amended information was filed against defendant. Defendant filed a motion to dismiss the charges on the ground that a retrial would violate the constitutional prohibitions against double jeopardy. The circuit court denied defendant’s motion and the defendant has perfected this appeal from that order pursuant to Supreme Court Rule 604(f) (107 Ill. 2d R. 604(f)). We affirm.

On appeal, defendant contends that the evidence at trial was insufficient to prove him guilty of aggravated kidnapping beyond a reasonable doubt and that a retrial would therefore violate the prohibition against double jeopardy contained in the Illinois Constitution (Ill. Const. 1970, art. I, §10). The State responds that since the first trial did not result in a judgment of acquittal, and since defendant does not claim that the circuit court abused its discretion in discharging the jury without a verdict, there is no double jeopardy bar to a retrial. The State also asserts that, in any event, the evidence at the first trial was sufficient to convict the defendant.

In Richardson v. United States (1984), 468 U.S. 317, 82 L. Ed. 2d 242, 104 S. Ct. 3081, defendant was indicted and tried on three drug charges. At the close of the government’s case and before the submission of the case to the jury, defendant moved for a judgment of acquittal based on the insufficiency of the evidence. The motions were denied. The jury acquitted defendant of one charge but was unable to reach a verdict on the remaining two counts. The district court declared a mistrial as to the two remaining counts and scheduled a retrial. Defendant then renewed his motion for acquittal and also asserted that a retrial would violate the double jeopardy clause of the fifth amendment. (U.S. Const., amend. V.) The motions were denied and defendant appealed. The court of appeals dismissed the appeal for lack of jurisdiction. Richardson, 468 U.S. at 318-19, 82 L. Ed. 2d at 246,104 S. Ct. at 3082-83.

After rejecting the jurisdictional challenge to defendant’s right to appeal, the Supreme Court addressed the merits and affirmed the district court. The Supreme Court held as follows:

“[A] trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected. The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree. Regardless of the sufficiency of the evidence at petitioner’s first trial, he has no valid double jeopardy claim to prevent his retrial.” Richardson, 468 U.S. at 326, 82 L. Ed. 2d at 251,104 S. Ct. at 3086.

See People v. Cole (1982), 91 Ill. 2d 172, 175, 435 N.E.2d 490, 491 (“[I]n the absence of an abuse of discretion by the trial court when it discharges a jury because of its failure to reach a verdict, the constitutional prohibition against double jeopardy does not bar a new trial”).

In People v. Taylor (1985), 137 Ill. App. 3d 148, 484 N.E.2d 384, defendant was retried for theft of firearms not from the person after his first trial ended in a hung jury. On appeal, defendant urged this court to review the evidence presented at his first trial. Relying on Richardson, this court stated:

“As defendant’s original jeopardy never terminated, he had no valid double jeopardy claim ‘[r]egardless of the sufficiency of the evidence at [his] first trial.’ ” Taylor, 137 Ill. App. 3d at 150, 484 N.E.2d at 384-85, quoting Richardson, 468 U.S. at 326, 82 L. Ed. 2d at 251, 104 S. Ct. at 3086.

Defendant relies on language in the case of People ex rel Daley v. Crilly (1985), 108 Ill. 2d 301, 483 N.E.2d 1236. In Crilly, defendant was charged with murder and conspiracy to commit murder. Defendant’s motion for a directed verdict at the close of all the evidence was denied. A jury found defendant guilty of conspiracy but was unable to reach a verdict on the murder charge. The circuit court discharged the jury but later granted defendant’s renewed motion for a directed verdict and entered a judgment of acquittal on the murder charge. The State appealed, claiming that the discharge of the jury constituted a mistrial and that the circuit court could not thereafter enter a judgment of acquittal. Crilly, 108 Ill. 2d at 304-05, 483 N.E.2d at 1237-38.

The supreme court held that there were two concepts which warranted rejection of the State's position. First, the court noted that courts have inherent power to correct their own rulings. (108 Ill. 2d at 305, 483 N.E.2d at 1238.) Second, the court held that the constitutional protection against double jeopardy prevented a retrial (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10). The court stated:

“In determining whether the defendant’s double jeopardy protection is being violated, the law is indifferent as to whether the first trial ends in a guilty verdict or in a deadlocked jury. If the evidence is insufficient as a matter of law to convict in the first trial, it would still be insufficient after the second trial, for Burks and Holloway preclude the State from offering new and additional evidence in the second round. The second trial would be a useless exercise which would serve only to harass the defendant by subjecting him to needless embarrassment, expense and anxiety. Thus, the proper application of the constitutional prohibition against double jeopardy requires that, when the issue is raised by the defendant, the trial judge must decide whether the evidence was sufficient for conviction, both where the jury returned a guilty verdict and where it was unable to agree on a verdict. If the judge incorrectly decides in either instance that the evidence was sufficient, he is subject to reversal.” (Crilly, 108 Ill. 2d at 308, 483 N.E.2d at 1239.)

The Crilly decision does not, however, mention the Richardson decision.

Since Crilly involved a judgment of acquittal entered by the cir-cult court, the last quoted sentence above is dieta. Crilly is therefore distinguishable from the case at bar and is not controlling. In the absence of a clear indication from the Illinois Supreme Court to the contrary, we will interpret the Illinois Constitution consistent with the United States Constitution. Therefore, pursuant to the decision in Richardson, double jeopardy does not prevent defendant’s retrial.

We note that retrial is not prohibited by the statutory protection against double jeopardy. Ill. Rev. Stat. 1985, ch. 38 par. 3—4(a).

We also note that section 115 — 4(k) of the Code of Criminal Procedure of 1963 provides:

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Cite This Page — Counsel Stack

Bluebook (online)
519 N.E.2d 6, 165 Ill. App. 3d 569, 116 Ill. Dec. 416, 1987 Ill. App. LEXIS 3624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-russell-illappct-1987.