APPEAL from the Circuit Court of Lake County; the Hon.
TERRENCE J. BRADY, Judge, presiding.
MR. JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Wayne Tiess was charged with the offense of battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-3(a)(1)). A jury found the defendant guilty as charged, and he was sentenced to serve a term of nine months in the Lake County jail.
The record shows that on November 23, 1978, at about midnight, the defendant and the complaining witness were engaged in a game of pool at a tavern in Fox Lake. Beyond this point the facts are in dispute. The complaining witness' version is as follows. He left the game to go to the bathroom and upon his return the defendant shoved him. Upon leaving the tavern with friends he was hit in the chest with a pool stick by the defendant.
Later in the evening the witness was driving in the area when he noticed a car behind him flash its lights. He pulled over to the side of the road, and someone jumped out of the other vehicle, swung a club at him through the window and hit the vehicle several times. The witness sped away and was chased until stopped again in a driveway. This time the defendant and two other men approached the vehicle the witness had been driving.
The witness testified that he was hit across the bridge of his nose by the defendant with a tire iron. The two struggled to the ground and the witness was on top, but the other two men began beating him. The defendant picked up the tire iron and threatened to kill the witness. At this point the three assailants fled because someone was stealing their car, but returned and the witness and defendant exchanged blows again. During the fight the witness was struck across the hand with the tire iron. Much of this testimony was corroborated by another witness for the State who testified that it was the defendant who had come out of the car the first time and struck the driver with a blunt object.
The defendant's version of the facts is a mirror image of that given by the witness above, except that the witness was the provocator and the defendant was the victim. Defendant's brother testified that the complaining witness was following defendant, had flashed his lights and then began hitting the rear of defendant's car. He testified that he, not his brother, had hit the witness, and neither he nor his brother had hit the back of the witness' hand. Defendant's brother was the only witness for the defense at trial.
In January of 1979, the defendant was charged with battery and criminal damage to property. During the first trial in April of 1979, a juror walked outside the jury room during deliberation and asked the judge a question about the jury instructions. This discussion took place outside the presence of counsel or the court reporter.
Prior to the time that the defense learned of the juror's discussion with the judge, the defense had filed a motion for a mistrial on the basis that the jury had advised the court they were not able to reach a decision about the defendant. The court then advised the defendant of the discussion with the jury that he had outside of the presence of counsel. A mistrial was declared. Defendant was retried on the one charge of battery and found guilty by another jury on August 27, 1979. Post-trial motions were denied, a presentence report was prepared and defendant was sentenced on December 13, 1979.
Defendant's first contention is that he was subjected to double jeopardy. He cites People v. Pendleton (1979), 75 Ill. App.3d 580, 394 N.E.2d 496, for the rule that if a mistrial is attributable not to prosecutorial or judicial error, but rather to prosecutorial or judicial over-reaching, then a retrial is forbidden. The defendant contends that if he had known of the discussion between the juror and the judge, he would have moved for a discharge rather than for a mistrial. He also contends that even if we find the motion for a mistrial applicable, the court's discussion with the juror constituted judicial over-reaching so that a retrial would be prohibited under Pendleton.
We do not believe there is an instance of judicial over-reaching in the case before us. In Pendleton the court noted that over-reaching is typically defined as judicial misconduct designed to provoke a mistrial or that it is motivated by bad faith on the part of the judge or prosecutor. This is not what occurred in the case before us, and we see no evidence of judicial over-reaching.
The double jeopardy clause of the fifth amendment is applicable to the States through the fourteenth amendment. (Benton v. Maryland (1969), 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056.) Our United States Supreme Court in the case of United States v. Scott (1978), 437 U.S. 82, 93, 57 L.Ed.2d 65, 75-76, 98 S.Ct. 2187, 2195, stated the law to be as follows:
"Where, on the other hand, a defendant successfully seeks to avoid his trial prior to its conclusion by a motion for a mistrial, the Double Jeopardy Clause is not offended by a second prosecution. `[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 a prosecutorial or judicial error.' [Citation.] Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact."
• 1 We find no evidence to support defendant's claim of judicial over-reaching and find that defendant was not subjected to double jeopardy. People v. Clauser (1979), 73 Ill. App.3d 145, 391 N.E.2d 793.
• 2 Defendant's next contention is that the trial court committed reversible error in allowing evidence of crimes other than the crime he was charged with to be placed before the jury. Similarly, he urges there was a material variance between the proof and the charge. In the first trial there were two charges, battery and criminal damage to property. In the second trial there was some evidence of and comment upon the damage to the motor vehicle involved, but defendant was only charged with battery. However, the damage to the cars was a part of the narrative that led up to the arrest of the defendant and was a part of the res gestae of the State's case. A continuous narrative of the events that led up to the arrest of an ...