APPEAL from the Circuit Court of Montgomery County; the Hon.
PAUL M. HICKMAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, David Hill, appeals from a conviction for burglary for which he received a sentence of three to nine years. Defendant, along with Dennis Plozizka, was charged by indictment with the May 12, 1973, burglary of Niehaus Cycle Sales in Litchfield, Illinois. A third party involved in the alleged incident, Dale Woodland, was separately charged in juvenile proceedings.
The evidence showed that on the night of May 12, 1973, a Litchfield police officer arrived at the Niehaus Cycle Shop and from outside the shop saw the defendants within. The officer tapped on the front window of the shop and immediately thereafter defendant Hill was observed scooting into the darkness of a back room. Soon more officers arrived. Woodland was apprehended as he tried to escape through a rear window, and Hill and Plozizka were apprehended inside the shop. Entry had been gained into the building by the forcing of the rear window, and the police found that numerous items had been piled in the back of the shop near that window.
On September 26, 1973, the joint trial of Hill and Plozizka commenced. The jury was impaneled, and the State called as its first witness the officer who first arrived at the motorcycle shop on the night of May 12, 1973. During the course of his testimony the officer stated that upon taking the defendants into custody he had removed a pair of socks from the hands of both Hill and Plozizka. The officer also stated that Plozizka had made an oral statement to the effect that the three had intended to obtain parts for Woodland's motorcycle. After the officer had made these statements defendants made a motion for mistrial on the basis that defense counsel had not been made aware of either the socks or the oral statement pursuant to their discovery motion. The mistrial was granted.
Two days after the mistrial was granted both defendants filed a motion to dismiss based on a theory of double jeopardy. The motion was denied. Also at that time the causes against Hill and Plozizka were severed for separate trials.
On January 28, 1974, before a different trial judge, the second trial of defendant Hill was commenced. Prior to the trial, however, defense counsel made an oral motion to renew a written motion which had been filed before the first trial and which sought a ruling on the admissibility of defendant Hill's prior burglary conviction for impeachment of Hill. The trial judge refused to rule on the motion, stating that it should be made at the time the State sought to use the prior conviction. The case then proceeded to trial resulting in the conviction of Hill.
Defendant's first contention is that the second trial constituted double jeopardy in violation of the United States and Illinois Constitutions and section 3-4(a)(3) of the Criminal Code (Ill. Rev. Stat., ch. 38, § 3-4(a) (3)). When it became apparent at the first trial that the State's Attorney had not complied totally with defense counsel's request to inspect evidence in the State's possession, defense counsel moved for and was granted a mistrial. At the second trial, and again on this appeal, defendant asserted the termination of his first trial was improper and that, since jeopardy had attached a second trial was barred. The United State's Constitution, amendment V, provides "nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb * * *." The Illinois Constitution, 1970, article I, section 10, provides "no person shall be twice put in jeopardy for the same offense." Illinois also has a statutory enactment of the Double Jeopardy clause, as follows in part:
"(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(3) Was terminated improperly after the jury was impaneled and sworn * * *." (Ill. Rev. Stat., ch. 38, § 3-4(a)(3).)
The Committee Comments to section 3-4 (Ill. Ann. Stat., ch. 38, § 3-4 (Smith-Hurd, 1972)) state:
"The second situation is that of the `improper termination' of a prosecution after the trial has commenced (sec. 3-4(a) (3)). Certain `proper' terminations are generally recognized which do not result in a bar to subsequent prosecution: for example, a termination to which the defendant consents or to which he waives his right to object * * *."
• 1 The Committee Comments also refer to the Model Penal Code, section 1.09(4) (Tentative Draft No. 5, 1956), and comments following, for examples of proper and improper terminations. (Section 1.09(4) became section 1.08(4) of the Proposed Official Draft of the Model Penal Code, 1962, and the comments were retained as applicable.) At page 53 of the Tentative Draft No. 5 of the Model Penal Code the following is stated:
"Under the draft a termination is improper unless it falls within two broad conceptions:
(1) First, where the defendant consents to the termination or waives his right to object to it. A defendant who expressly consents to the termination or who moves for a mistrial ought not be allowed to claim later that the termination was improper." (Emphasis added.)
The emphasized portion of these comments accurately states what has been the generally recognized rule with regard to double jeopardy claims following a defendant's motion for a mistrial. See United States v. Tateo, 377 U.S. 463, 467, 12 L.Ed.2d 448, 451, 84 S.Ct. 1587, 1590. In the past several years, however, the United States Supreme Court and the Illinois Supreme Court have indicated in dicta that in some cases a subsequent prosecution of a defendant for the same offense may be barred (even though the first prosecution was terminated as a result of defendant's motion for a mistrial) if defendant's motion was necessitated by prosecutorial or judicial overreaching.
"Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error. 12 * * * 12. Conversely, where a defendant's mistrial motion is necessitated by judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution might well be barred. Cf. United States v. Tateo, supra, at 468 n. 3; n. 11, supra." (United States v. Jorn, 400 U.S. 470, 485, 27 L.Ed.2d 543, 556, 91 S.Ct. 547.)
• 2 It is thus evident from the language of Tateo and Jorn that the "prosecutorial or judicial overreaching" needed for a defendant to be able to advantageously claim double jeopardy after his own motion for a mistrial is granted is something more than mere procedural error. It is improper conduct on the part of the judge or the prosecutor which is specifically aimed at depriving the defendant of the opportunity of having a fair trial by an impartial jury.
• 3 In the instant case there is no evidence or suggestion of judicial or prosecutorial overreaching as that phrase is described above. There was, therefore, no double jeopardy violation when defendant was retried following the granting of his motion for a mistrial.
The second contention raised by the defendant on the appeal is that the trial court erred in refusing to make an advance ruling on whether evidence of defendant's prior convictions would be admissible for impeachment. On August 15, 1973, prior to defendant's first trial, defense counsel filed a written motion for an order excluding the use of defendant's prior burglary conviction. The motion set forth four grounds in support of the requested exclusion: (1) that the admission of the prior burglary conviction would be so prejudicial that defendant would not be able to receive a fair trial; (2) that the statute permitting such admission gives the trial court discretion to refuse admission; (3) that the statutory provision permitting such admission is unconstitutional; and (4) that the "conviction of a crime which does not in actuality relate to the testimonial worth of defendant will prejudice the defendant." On September 13, 1973, the trial court denied the motion.
At the outset of defendant's second trial, which was heard before a different judge, defense counsel made an oral request to renew the above-mentioned motion. The court refused to rule on the motion, making the following statement:
"Well, for the record then can show that you have made this motion but the Court believes that the proper time for renewal now is when and if any such attempt is made by the state to introduce such evidence. So for that reason at this time the motion will be overruled without prejudice to your right to renew it should it occur during the trial."
Immediately thereafter the roll of the prospective venireman was called and the impaneling of the jury was undertaken. Defendant did not testify during the trial, and, therefore, the State did not have occasion to attempt to impeach him.
In People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695, the Illinois Supreme Court held that whether impeachment of a defendant by proof of a prior conviction should be permitted is a matter resting within the sound judicial discretion of the trial court. Montgomery relied heavily upon Rule 609, approved by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. Rule 609, in turn was based on Luck v. United States (D.C. Cir. 1965), 121 U.S. App. D.C. 151, 348 F.2d 763, and Gordon v. United States (D.C. Cir. 1967), 127 U.S. App. D.C. 343, 383 F.2d 936. As pointed out by Judge, now Chief Justice, Burger in Gordon, the rationale for the Luck opinion was that, although prior convictions can be probative on the issue of the credibility of a witness, in some cases the potential prejudice caused by allowing the jury to be made aware of the prior convictions may be so great that the prior ...