APPEAL from the Circuit Court of Cook County; the Hon. JOHN M.
BREEN, JR., Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
The State appeals from an order sustaining defendant's motion to dismiss, contending a mistrial had been properly ordered and that it was error to bar a second trial.
Defendant was charged with the offense of contributing to the sexual delinquency of a child. (Ill. Rev. Stat. 1973, ch. 38, par. 11-5(a)(3).) The complaint was signed by Charles Payne, father of the alleged victim, Leslie Payne. It appears that because of technical problems with the recording equipment, the official transcript of proceedings on January 31, 1974, is incomplete. We note from the record here, however, that after a motion to continue was denied a bench trial commenced and the witnesses were sworn, following which the court entered the rule of exclusion but allowed Charles Payne to remain in the courtroom. The State then called Leslie Payne as its first witness. She was sworn and, as she began her testimony, defense counsel asked for a competency hearing. The court then asked her several questions, from which it was determined that she was 15 years old and in second year high school. The transcript ends after these preliminary questions by the court, allegedly the result of a tape malfunction. It does appear, however, that later on January 31, 1974, over defendant's objection, the trial judge recused himself and declared a mistrial.
The case was next called for trial on April 4, 1974, before another judge, at which time defendant moved for dismissal on the ground that he had previously been placed in jeopardy on the charge in question. It was then determined that the tape of the January 31 proceedings was, in fact, incomplete and the parties agreed to attempt a reconstruction of the record thereof. Thereafter, the State filed, apparently without objection, a bystander's record which consisted of a statement by the first trial judge as to the proceedings on January 31, 1974. The following pertinent portions of this statement concerned matters occurring in the morning of January 31, 1974, before the trial commenced:
"That in the course of the hearing on the question of another continuance for the People, a number of persons who were gathered around the bench made various remarks to the bench, including the arresting officers. These people, especially the said Charles C. Payne, and arresting officers, expressed displeasure with the Court for insisting on a thorough hearing before deciding the question of another continuance.
[O]n many occasions throughout said hearing, Charles Payne made a number of remarks which were inaudible to the court but which appeared to elicit approving smiles from those spectators around him.
That on one occasion the said Charles Payne, turning to the gentleman standing next to him before the bench, said `Is he fixed?', making direct reference to and turning his head in the direction of the Court.
That on still another occasion during the hearing, the said Charles Payne, the complaining witness, did say, again alluding to the Court, `He ought to disqualify himself', his facial expression reflecting utter disrespect and contempt.
That on many other occasions the said Charles Payne, the complaining witness, made other belittling and degrading remarks and jesticulations, i.e., while pointing his finger at the Court, said (in answer to a question put to him by the petitioner), `Are you calling me a liar, Judge'?
That your petitioner represents that these remarks, and more, were heard and understood by your petitioner and that he, in the interest of justice, chose to ignore same, denied the State's motion for another continuance and ordered the case held for trial."
Other aspects of the statement were concerned with what had occurred in the afternoon, after the trial commenced and the witnesses had been sworn, as follows:
"That the attorney for the defendant moved the Court to conduct a competency hearing as to the State's first witness, Leslie Payne, the daughter of the complaining witness.
That while the Court was conducting the competency hearing the aforesaid Charles Payne did again make insulting outcries, to wit: `Why are you asking her those dumb questions, Judge? She's not on trial here. There is the guilty man', or words to that effect.
Upon resumption of the competency hearing, Charles Payne did again interrupt the proceedings and made derogatory remarks concerning justice or lack of it in these courts ...