Original petition for mandamus.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
This is an original mandamus action, which we permitted the petitioner, Gerald Roberts, to file in this court, pursuant to the prayer of his motion filed under our Rule 381. (73 Ill.2d R. 381.) Petitioner seeks to prevent his retrial following the declaration of mistrial in a criminal case in the circuit court of Will County. We deny the prayer of the petition for writ of mandamus.
The petitioner was charged, by information, with attempted murder, armed violence, aggravated battery, and possession of marijuana. Specifically, it was alleged that he attempted to kill an undercover narcotics agent. The petitioner, Roberts, testified that the agent came to the door of his apartment that night dressed in civilian clothes and that the agent resembled a person who had robbed Roberts six days before. Roberts said that he was armed because of this previous incident and when he went toward his door, he saw the agent draw his gun. Roberts then ducked to avoid being shot. As he did so, he slipped and his gun fired accidentally.
The defendant tendered two jury instructions on self-defense during the jury instructions conference. The prosecution objected to instructing the jury on self-defense because the defendant had testified that the shooting was accidental. The trial court agreed with the prosecution and refused to give the tendered instructions.
During their deliberations, the jury sent the following note to the judge:
"If self defense is a factor in a situation, can the charge of attempt murder be affected? And, if so, how?"
During a conference concerning this question, out of the presence of the jury, defendant's counsel again requested that the court instruct the jury on self-defense. The prosecution adhered to its original position that self-defense could not be a factor because the defendant testified that the shooting was accidental. The court again refused to give a self-defense instruction; however, in view of the jury's inquiry, the judge indicated that he thought that a self-defense instruction should have been given. There was a lengthy discussion between the defense counsel, the prosecutor, and the court concerning whether self-defense was an issue in the case. Although the court felt that a self-defense instruction should have been given, it refused to give such an instruction at that time, since counsel had not had an opportunity to argue that question to the jury. The court then posed two questions: "Could I give an instruction on self-defense? Would I have to go to a mistrial right now?" Defense counsel replied: "It is a good question." The prosecutor stated: "I think you would have to go to a mistrial, because we have all done our arguments." There followed another lengthy discussion on whether a self-defense instruction was required under the facts of the case. Finally, the bailiff informed the judge that the foreman of the jury told him that he wanted an answer to the question. The court then asked defense counsel if he wanted to make a motion for a mistrial. His response was that his first motion would be to give the jury the self-defense instruction. The judge said he could not do so at that time. The following exchange then took place:
"MR. HAAS [Defense Counsel]: Judge, I think the defendant's position, we would move to dismiss with prejudice and if that is not allowed, we would move for a mistrial.
THE COURT: I am not going to dismiss it with prejudice.
MR. LIVAS [Prosecutor]: Yes. I understood that the defendant made a motion for mistrial?
THE COURT: Yes. They made a motion before that, they wanted a mistrial with prejudice. I denied that motion.