APPEAL from the Circuit Court of Cook County; the Hon. R.
EUGENE PINCHAM, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Defendant Luis Ruiz was indicted for murder in having fired a rifle into a group of rival gang members, killing one of them. Pursuant to a hearing conducted under section 2-7 of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-7), an order was entered permitting Ruiz, a juvenile at the time of the offense, to be prosecuted as an adult. Meanwhile, an accomplice, Mark King, was allowed to plead guilty to involuntary manslaughter in juvenile court proceedings. It was uncontroverted that King supplied the rifle and Ruiz fired the fatal shot. At the close of all the evidence at his bench trial, Ruiz moved for a directed verdict, arguing that the State should be estopped from proceeding on a charge of murder or voluntary manslaughter against him when it had accepted a plea of guilty from King for involuntary manslaughter, the issue of requisite intent thus having been adversely decided to the State's position. The trial court entered an order estopping the prosecution from proceeding against Ruiz on the charge of murder and purportedly dismissing the indictment, from which the State appeals. For the reasons hereinafter stated, we reverse and remand.
The issues raised on appeal include whether: (a) the appeal is barred by the double jeopardy clause; (b) there is any legal doctrine which would preclude the State from prosecuting Ruiz as an adult for murder when an accomplice was permitted to plead guilty as a juvenile to involuntary manslaughter; and (c) the trial court exceeded its authority by entering an order estopping the prosecution from proceeding on a charge of murder.
On the evening of July 13, 1976, defendant, King, Conception ("Crazy Joe") Gonzalez and Alex Espinosa were involved in the gang-related shooting death of Thomas Griebell on the north side of Chicago. Gonzalez, Espinosa and Ruiz were members of a gang called the Spanish Gangsters. King was not; he was a member of the Insane Gangsters. King, testifying for the State at the Ruiz trial, stated that at 7 p.m. on the date of the shooting he was playing basketball in a schoolyard when he was approached by defendant. King told defendant that he had a disassembled .22-caliber rifle in his school bag, but that he had no bullets. After defendant said that he could get some, he departed, returned at 9:30 p.m., and told King he had the bullets and wanted to use the rifle to "hit" the Royals, a rival street gang. Gonzalez then drove defendant, King and Espinosa in his car to the vicinity of Fullerton and Southport Avenues. While traveling, Ruiz said that they were "going to do a hit on the Royals at Fullerton and Southport." When they arrived at an alley which was a short distance from a restaurant driveway where three Royals were standing, defendant, Espinosa and King crawled down the alley to a passageway across the street from the three Royals, who were then 40 or 50 feet away. King testified that the rifle was assembled first by Ruiz. Defendant pointed the rifle at the Royals and pulled the trigger, but the rifle didn't fire. The rifle was taken down twice more and reassembled first by King and then by Gonzalez. On the fourth attempt by defendant, who "begged" for "one more chance for a shot," the rifle did fire and defendant immediately exclaimed "Boya, I got one of the suckers in the head."
Defendant's signed, court reporter statement given to an assistant state's attorney on July 21, 1976, was admitted in evidence as part of the State's case-in-chief. This account of the facts is in agreement with King's testimony except that defendant claimed it was King's idea to "make a hit on the Royals" because they had shot a friend of defendant's; and defendant asserted he made only one attempt to fire the rifle, which fired at that time.
Chicago Police Officer Dennis Rizzo testified for the State. He responded to a call of a man shot at a restaurant at 1401 W. Fullerton on July 13, 1976, at about 10:30 p.m. He found the body of Thomas Griebell situated on the restaurant driveway and directly across the street from the center of the gangway from which defendant had fired the fatal shot. There were no obstructions between the center of the gangway and the location of Griebell's body, which, he observed, had sustained a bullet hole in the rear of the skull.
Defendant's testimony in court generally followed the version contained in his statement. Now, however, Ruiz claimed that King supplied both the rifle and bullets, and King had tried to fire the rifle before he did, but it did not fire. Defendant further testified that before he shot the gun he did not aim it at anyone, but just pointed it above the heads of the crowd. He had been bragging "[t]hat I was going to get me somebody * * * the Royals * * * because they had shot my partner in the nose and shot me once in the arm. * * * I was going to shoot one." He thereafter asserted that he did not intend to shoot anyone. On cross-examination defendant testified that he went to the scene with King because he wanted to shoot someone. When he asked Gonzalez to drive them to Fullerton and Southport, it was because he knew the Royals "hung out" there. Two or three of those gathered on the restaurant driveway were wearing their Royal sweaters. The boy who was shot was not wearing a sweater.
At the close of the prosecution's case-in-chief and again at the close of all the evidence, defendant moved for a directed verdict. Among the arguments made by the defense in support of the motions on September 29, 1978, was that "* * * the fundamental fairness doctrine and due process of law would preclude the State from going ahead any further [sic] in this lawsuit before Your Honor under the charge of murder or under the charge of voluntary manslaughter." No ruling was made upon the motions and the case was continued until November 16, 1978, without a finding of either guilt or innocence. On the latter date, defendant orally requested a ruling which would "preclude the state from going any further in this lawsuit," and submitted a document entitled, "Memorandum In Support Of Luis Ruiz's Position That The State Is Estopped From Proceeding On The Charge of Murder." Defendant again argued it was fundamentally unfair, a violation of due process and of equal protection to charge the principal with murder yet allow the accomplice to plead guilty to involuntary manslaughter. Central to this argument was the alleged inconsistent treatment accorded Ruiz when compared with King in regard to the element of intent. Defendant did not address the issue of factual guilt or innocence of King in his argument, except to suggest that the finding of involuntary manslaughter as to King, with the concomitant absence of intent on his part, collaterally estopped the State from proceeding on any charge against Ruiz which required intent as an element of the crime.
The State argued that no constitutional violations had been identified and that the accountability statute, section 5-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 5-3) contemplated conviction by accountability although the principal may not have been prosecuted or convicted, or was convicted of a different offense or degree of offense, so that the State should not be estopped from its prosecution of Ruiz under the law.
The trial judge reviewed the pretrial proceedings, including his ruling upon the admissibility of defendant's confession and the discussion of the possible acceptance of a guilty plea from defendant if given 5 to 15 years, which defendant had accepted and the State had refused. The judge then analyzed the evidence and indicated that he accepted defendant's constitutional arguments, saying:
"I'm going to enter an order estopping the prosecution from proceeding to prosecute Luis Ruiz on this murder charge in order that my decision might be reviewed by a court of review without prejudicing the State's position. * * * The effect of my ruling is to dismiss the murder charges and that will be the order that I will enter, and the state has the option, * * * to appeal the decision, without any jeopardy being imposed upon the state's position during the pendency of the appeal."
The half-sheet reflects only an estoppel, rather than a dismissal order. Defendant did not object to this relief nor did he attempt to clarify the nature of the relief which he had requested.
The State appeals from the estoppel and putative dismissal order. Defendant claims that this appeal is barred by the double jeopardy clause because he merely requested a directed verdict and the trial court instead entered a dismissal, thus rendering the dismissal sua sponte by the court. The State maintains that the trial court did not dismiss the indictment sua sponte, but rather entered the order at defendant's request and with his consent.
1, 2 That jeopardy has attached in this case is not in dispute, since the order in question was entered at the close of all the evidence. (Serfass v. United States (1975), 420 U.S. 377, 43 L.Ed.2d 265, 95 S.Ct. 1055.) In determining the validity of a double jeopardy claim, it is necessary to examine the particular facts and circumstances of each case, for under certain circumstances an appeal and a second trial may not be barred. (Illinois v. Somerville (1973), 410 U.S. 458, 464, 35 L.Ed.2d 425, 431, 93 S.Ct. 1066, 1070; People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 535, 387 N.E.2d 325.) Once jeopardy has attached and the trial court, "acting without defendant's consent, aborts the proceeding, the defendant has been deprived of his `valued right to have his trial completed by a particular tribunal.' [Citation.]" (United States v. Jorn (1971), 400 U.S. 470, 484, 27 L.Ed.2d 543, 556, 91 S.Ct. 547, 557), and the double jeopardy clause will bar retrial. A defendant, "* * * by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is ...