APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
J. BOWMAN, Judge, presiding.
JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
The defendant, James Wright, appeals from a judgment finding him guilty of bribery (Ill. Rev. Stat. 1977, ch. 38, par. 33-1(d)) and official misconduct (Ill. Rev. Stat. 1977, ch. 38, par. 33-3(d)), and, for the offense of bribery, sentencing him to four years probation and imposing a $5,000 fine.
In February and March of 1979, the Secretary of State's Office conducted an investigation of the Lombard driver's license facility. As a part of the investigation a private investigator named DeArmas posed as an employer of illegal aliens, and contacted a man named Luis Rodriguez. DeArmas told Rodriguez that he had an illegal alien named Gonzales who needed a driver's license. Rodriguez agreed to aid DeArmas. Early on the morning of March 29, 1979, DeArmas and Investigator Aguilera from the Secretary of State's Office met with Rodriguez. Aguilera, who had obtained phony identification in the name of Gonzales and $128 in powdered money, was introduced to Rodriguez as Luis Gonzales, an illegal alien from Guatemala.
The group traveled to the Lombard facility. There Rodriguez introduced Aguilera to the defendant James Wright, a supervisor at the Lombard facility. After taking several tests, and attending several meetings and discussions with the defendant, Aguilera, still posing as an illegal alien, was given a driver's license. Before leaving the facility and pursuant to directions given by Rodriguez, Aguilera gave the defendant $50 in marked bills. The defendant slipped the $50 in his pocket. Shortly thereafter, he was arrested, the money was recovered, and the defendant was charged with bribery and official misconduct.
The first trial against the defendant resulted in a mistrial. Prior to the commencement of the second trial, defendant filed a motion to dismiss the charges pursuant to section 114-1(a)(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114-1(a)(2)) and section 3-4(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3-4(a)(3)). As a basis for the motion, the defendant contended that in the first trial, the prosecutor was guilty of overreaching by asking a witness a grossly inappropriate question, which provoked the mistrial.
Upon written motion of the defendant, section 114-1(a)(2) authorizes the dismissal of an indictment, information or complaint on the ground that the prosecution is barred by sections 3-3 through 3-8 of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 114-1(a)(2).) Section 3-4(a)(3) states as follows:
"(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(3) Was terminated improperly after the jury was impaneled and sworn * * *." Ill. Rev. Stat. 1979, ch. 38, par. 3-4(a)(3).
• 1, 2 Under these provisions, the defendant's motion should be granted only if the mistrial is improperly granted. Generally, if the defendant requests the mistrial and consents to the mistrial, he can hardly claim that the mistrial was improperly granted. (See People v. Cummings (1977), 47 Ill. App.3d 578, 581.) Here, the defendant made the motion for the mistrial and consented to the granting of the motion. Such a motion is deemed to be a deliberate election on the defendant's part to forgo his right to have his guilt or innocence determined before the first trier of fact. (United States v. Scott (1978), 437 U.S. 82, 93, 57 L.Ed.2d 65, 76, 98 S.Ct. 2187, 2189.) If the defendant's request for a mistrial is precipitated by prosecutorial error, retrial is permissible. (People v. Pendleton (1979), 75 Ill. App.3d 580, 593.) Because of the complexities and dynamics of the trial itself, some prosecutorial error will be inevitable; if, however, the mistrial is attributable to prosecutorial overreaching, retrial is forbidden. People v. Pendleton (1979), 75 Ill. App.3d 580, 593.
In Pendleton, prosecutorial overreaching is defined as misconduct "which is specifically designed to provoke a mistrial in order to secure a second — and perhaps more favorable — opportunity to convict the accused [citations]; or * * * which is motivated by bad faith or undertaken to harass or prejudice the accused [citations]." (75 Ill. App.3d 580, 593.) A mistrial which is necessitated by prosecutorial overreaching or impropriety designed to avoid an acquittal may well bar reprosecution. People v. Handley (1972), 51 Ill.2d 229, 235.
Here, the mistrial resulted from the testimony of a State's witness, Aguilera. Previously, the trial court had ruled that any testimony regarding a bribe accepted by a road test examiner would not be admissible. During his testimony, Investigator Aguilera, nonetheless, mentioned recovering money from another Secretary of State employee. The trial court, being fully aware of all the circumstances, determined that the mistrial was not the result of the prosecutor asking: "Then what, if anything did you do?" but, rather, the result of the answer: "Well, in the meantime I left the room and recontacted DeArmas, and told him that we have to go outside and recover the money from the * * * other employee of the Secretary of State." The court specifically noted that this witness had a tendency to volunteer answers and to go beyond the scope of the question. In the present case, the trial court correctly determined that the prosecutor was not guilty of overreaching and did not err in denying defendant's motion to dismiss the charges.
• 3 The defendant also contends that the State failed to prove him guilty of either bribery or official misconduct beyond a reasonable doubt. Under section 33-1(d) of the Criminal Code of 1961, a person commits bribery when:
"He receives, retains or agrees to accept any property or personal advantage which he is not authorized by law to accept knowing that such property or personal advantage was promised or tendered with intent to cause him to influence the performance of any act related to the employment or function of any public officer, * * *." (Ill. Rev. Stat. 1979, ch. 38, par. 33-1(d).)
Defendant asserts that proof of his acceptance of the money is insufficient to prove him guilty of bribery; the State must also prove that in exchange for the money, the defendant committed an illegal act. The language of the statute, however, does not require the performance of an illegal act. The statute requires only that the defendant received, retained or agreed to accept the money knowing that it was offered with the intent that it influence the ...