APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
C. BUCKLEY, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 20, 1977.
The defendant, Marlene Partee, was indicted for armed robbery, in violation of section 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 18-2). A jury trial was held in the circuit court of Cook County and a mistrial was declared on August 8, 1975. On May 24, 1976, defendant's motion to dismiss the indictment and to bar further prosecution of the defendant on the ground of double jeopardy was granted. The State appeals from the order dismissing the indictment pursuant to Supreme Court Rule 604(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(a)(1)).
The issues presented for review are (1) whether the circumstances before the trial court supported the termination of the defendant's trial by a mistrial, and (2) whether the trial court subsequently improperly dismissed the defendant's indictment and barred further prosecution on the indictment.
The defendant was indicted for the February 12, 1974, armed robbery of Bobbie Wandick. She was tried by a jury before the Honorable Earl E. Strayhorn from July 31 to August 8, 1975. On the sixth day of the trial, closing arguments were heard, the jury was instructed and then retired to decide the issue. The record indicates that while the jury deliberated four notes were received by Judge Strayhorn from the jury foreman. The first note stated, "We need the transcript of the defendant's testimony." In response, Judge Strayhorn sent a handwritten note advising the jurors as follows:
"You will have to use your collective memory as to what each witness said, especially the defendant who testified as recently as yesterday."
The court subsequently received a second note from the foreman which read, "We can't agree on a unanimous verdict." The third note read, "What happened to our first note? We are still deadlocked. No hope of unanimous verdict. Send word."
The jury returned to the courtroom and the court gave the jurors a Prim instruction (see People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601). Again, the jury retired for further deliberation. Finally, a fourth note was received by the court. This note stated:
"Still hopeless. It seems that there are those of us who don't want to discuss the case any further and there is nothing that can be done further. There is disagreement as to whether she left at the same time or not. It would be helpful to see her testimony."
The defense counsel commented that the jury had retired at 11:30 that morning, and that at 4:15 in the afternoon no verdict had been returned. He objected to the jury being held for additional deliberation, contending that under the circumstances locking up the jury would be coercive and force the jurors to return a guilty verdict. The objection was overruled. The jurors then returned to the courtroom and were informed by the court that because the court reporter and the defendant were not available at that time the defendant's testimony would not be read until the following morning. The jury was then ordered sequestered and the court adjourned.
On August 8, 1975, the court convened at 10:30 a.m., and the defendant was not present. The defendant had been ordered to be present in court at 9:30 a.m. The defendant's father testified that he had taken Marlene home the previous evening, and had told her that he would come for her the following morning and take her to court. He explained that when he arrived at defendant's home that morning, her mother informed him that Marlene was not at home and that she had not seen Marlene since the previous morning. The witness stated that he then went to the homes of defendant's brother and sisters looking for her. Eventually he gave up the search and came to court.
Defendant's counsel next requested that the court grant him time to search for the defendant. Judge Strayhorn refused and stated that he intended to issue a warrant. The jury was then returned to open court. They had failed to reach a verdict. Judge Strayhorn explained to the jurors that because the defendant was not present her testimony would not be read in open court, and the court had no alternative other than to direct that a mistrial be declared. The judge noted that neither defendant's counsel nor her family knew of her whereabouts. He then ordered defendant's bond forfeited, a warrant issued, and bond on the warrant set at $25,000. A mistrial was declared and the jury was dismissed. Defense counsel made no objection to the mistrial.
The case was recalled twice following the mistrial. On the second recall, defense counsel informed the court that defendant was present in the courtroom. She arrived at approximately 11:50 a.m. and was sworn in. She testified that she had awakened at 9:50 that morning, left her home at 10:30 a.m., and traveled to court by bus. The court then reinstated the cause, the defendant was taken into custody, and bail was set at $25,000. The court vacated the bond forfeiture warrant. A date for further proceedings was not set in order that defendant might submit a written motion for dismissal of the indictment.
An emergency petition for reduction of bond and other and further relief was submitted on defendant's behalf. The petition alleged that the mistrial was an abuse of discretion, deliberately prejudicial to defendant's rights, and that the mistrial raised serious quetions of double ...