APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
P. CAWLEY, Judge, presiding.
MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Police investigating a broken window in a closed gas station discovered the defendant, John E. Castiglione, hiding inside. He was charged with burglary and found guilty in a bench trial. Castiglione admitted that he broke the window and illegally entered the station, but denied that he had the requisite specific intent for burglary. (Ill. Rev. Stat. 1977, ch. 38, par. 19-1.) Rather, he testified that he broke the window because he was in a foul mood after drinking beer for several hours. He explained that he entered the station through the broken window to avoid being seen by police in a rapidly approaching squad car.
In finding Castiglione guilty, the trial judge stated that Castiglione had related two different versions of where the squad car was when he observed it, one with the police car approaching the station on Artesian Avenue and another with the car approaching on Western Avenue. Such a discrepancy was significant, as the judge observed, because from where Castiglione said he was standing, it would have been impossible for him to see the squad car on Artesian. From this, it could be inferred that Castiglione had not seen the police at all, and had entered the station with the intent to commit a burglary. The trial judge said that Castiglione's testimony was "beyond belief."
Castiglione subsequently filed a motion for a new trial, asserting that the trial judge's belief that there was an inconsistency in his testimony was not well founded. A review of the trial transcript revealed that Castiglione had indeed not stated that he saw a squad car on two streets. Upon realizing that he had misunderstood or misstated the evidence, the trial judge ordered a new trial, explaining his reasons as follows:
"THE COURT: Well, apparently I was mistaken in determining, or in assuming that I heard the defendant say that he saw the squad car on Artesian and the question in my mind is whether well, first, whether my decision was based on this fact; it is a matter that I considered.
And the, the next question is because I indicated that I considered it and I did as one of the factors in determining the credibility of witnesses and the difficulty I have under the circumstances is I can say to myself that I could decide because of the nature of the charge and what I considered to be rather an unreasonable explanation by the defendant for doing what he did; whether there would be sufficient evidence to find him guilty; whether I considered that, or not.
But the fact is, at the time I found him guilty I did consider it so, accordingly there is no question in my mind as to whether it was a factor, or not. I feel constrained to give Mr. Castiglione a new trial. Motion for a new trial granted."
At the same time, the trial judge transferred the case for reassignment and the case was sent to a new judge.
Before a new trial commenced, Castiglione presented a motion to the new judge seeking the dismissal of the indictment on the ground that reprosecution would subject him to double jeopardy in violation of the Federal and Illinois constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10; Ill. Rev. Stat. 1977, ch. 38, par. 3-4(a)(1)). In support of this motion, Castiglione relied on several decisions including Burks v. United States (1978), 437 U.S. 1, 57 L.Ed.2d 1, 98 S.Ct. 2141; People v. Woodall (1975), 61 Ill.2d 60, 329 N.E.2d 203; People v. Hammond (1974), 18 Ill. App.3d 693, 310 N.E.2d 485; and People v. Brown (1968), 99 Ill. App.2d 281, 241 N.E.2d 653, all of which held that a second prosecution was barred after an earlier determination that the evidence was insufficient to warrant a conviction.
The new judge allowed the motion and dismissed the indictment. He justified his dismissal order by stating that the only explanation for the order granting a new trial was the trial judge's belief that after the misunderstood evidence was removed from consideration, the remaining evidence was insufficient for conviction. The new judge's conclusion was based entirely on his interpretation of the trial judge's remarks set forth above. This court is in as good a position as the new judge to review and construe the remarks of the trial judge, and to decide what he meant. We find no support in any of the trial judge's remarks, either those explaining why he found Castiglione guilty or those explaining why he granted a new trial, or in his order, for the conclusion the new judge reached and the defendant contends it is incumbent on this court to accept.
Our understanding of what the trial judge meant is: In a case such as this which rests so heavily on an evaluation of the credibility of the witnesses, a judge should be free of preconceptions which might sway his judgment or lead him to attempt to reach a conclusion consistent with his previous decision. Acknowledging that in assessing Castiglione's credibility he had taken into account the evidence as he misunderstood it, the trial judge felt in the interest of fairness to the defendant that Castiglione's credibility should be appraised by a judge who had not previously evaluated it on the basis of a misunderstanding. For that reason, he felt "constrained" to have a new judge rehear the case and pass upon Castiglione's credibility.
Although the trial judge did not expressly state that the evidence was sufficient for conviction, he did point out in granting a new trial that he considered that defendant offered "rather an unreasonable explanation * * * for doing what he did." He also observed that the misunderstood evidence was only "one of the factors" he relied upon in determining the credibility of witnesses. The report of proceedings reveals another factor that the trial judge commented upon at the end of the trial in evaluating Castiglione's credibility. In explaining why he was finding the defendant guilty, the trial judge said:
"Now, the testimony of the officers, one of them said that there was ten minutes that lapsed before they drove through the gas station and another one said two minutes. I don't know if it's the same squadcar or not because he said first Artesian and then Western. In any event he would have had time in the two minutes to turn from the gas station before he saw the squadcar which meant in that event he'd have to turn around and jump through the window. The story is beyond belief and he'll be found guilty."
Thus, an additional reason for the trial judge's disbelief of Castiglione's explanation was that the evidence showed that Castiglione had a means of escaping the police other than by hiding in the gas station. This comment establishes that apart from the factor of the misunderstood evidence, the trial judge heard other evidence which led him to believe that Castiglione's explanation was unreasonable and his testimony was not truthful. Based on the statements of the trial judge set forth above, we conclude that he did find sufficient evidence to convict Castiglione, but ordered a new trial to ...