Appeal from the Circuit Court of Hamilton County; the Hon.
Robert M. Keenan, Jr., Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 9, 1985.
William Taylor, Jr. was found guilty of theft of firearms not from the person, a Class 4 felony, by a jury in the circuit court of Hamilton County. (Ill. Rev. Stat. 1983, ch. 38, par. 16-1(d)(1).) A jury trial conducted on August 25, 1983, resulted in a mistrial because the jury was unable to agree upon a verdict. A second jury trial was conducted on October 31 and November 1, 1983. Taylor was found guilty of theft and was sentenced to a term of 18 months' imprisonment.
Defendant presents two issues, both of which relate to the former jury trial which ended in a hung jury.
First, defendant contends that the State failed to prove him guilty beyond a reasonable doubt. Defendant cites the testimony of two juvenile offenders, D.J. and J.R., from whom he allegedly received stolen firearms in return for two bags of marijuana, and calls their testimony "uncorroborated, conflicting and at times incredible." Defendant, for this contention, seeks review only of the evidence produced at the trial which resulted in a mistrial because of a hung jury. No argument is made with regard to the sufficiency of the evidence in his second trial.
We have taken with this case the State's motion to strike the Argument I section of defendant's brief and those parts of the record submitted in support thereof. The State contends that this court lacks jurisdiction to review the evidence at defendant's first trial because it did not result in a final judgment. Defendant responds that the evidence presented at his first trial is reviewable, and because it is insufficient to establish guilt, he contends, his conviction in the second trial should be reversed. We deny the State's motion and will address defendant's argument.
• 1 Defendant relies on a series of Federal cases to support his contention that this court can review the evidence at the first trial. Defendant concedes that he is not raising an issue of former jeopardy. We therefore reject his contention that these Federal cases are supportive of his position as the issues raised in those cases clearly relate to principles of former jeopardy and are decided on that basis. A similar contention was rejected in People v. Schelsky (1985), 134 Ill. App.3d 1044.
In United States v. Richardson (D.C. Cir. 1983), 702 F.2d 1079, for example, the defendant appealed from orders denying his motion for judgment of acquittal and his motion to dismiss on the ground of former jeopardy. The Court of Appeals for the District of Columbia Circuit was reversed on review of its determination that it lacked jurisdiction to consider the merits of the double jeopardy claim. (Richardson v. United States (1984), 468 U.S. 317, 82 L.Ed.2d 242, 104 S.Ct. 3081.) Nonetheless, the Supreme Court, after a thorough analysis of double jeopardy principles, rejected the defendant's claim that a second trial following a hung jury on two of three counts would violate the double jeopardy clause of the fifth amendment. As defendant's original jeopardy never terminated, he had no valid double jeopardy claim "[r]egardless of the sufficiency of the evidence at [his] first trial." 468 U.S. 317, 325-26, 82 L.Ed.2d 242, 251, 104 S.Ct. 3081, 3086.
Similarly, United States v. Brack (7th Cir. 1984), 747 F.2d 1142, cert. denied (1985), 469 U.S. 1216, 84 L.Ed.2d 339, 105 S.Ct. 1193, United States v. Gulledge (11th Cir. 1984), 739 F.2d 582, United States v. Sneed (5th Cir. 1983), 705 F.2d 745, United States v. Cannon (7th Cir. 1983), 715 F.2d 1228, United States v. Rey (5th Cir. 1981), 631 F.2d 222, and United States v. Balano (10th Cir. 1979), 618 F.2d 624, all involve double jeopardy claims; therefore, the defendant's reliance on the holdings of these cases is not persuasive in support of his argument that his subsequent conviction should be reversed outright for the State's failure to present sufficient proof of guilt at the first trial where the jury could not reach an agreement. If, as held in Richardson v. United States (1984), 468 U.S. 317, 325-26, 82 L.Ed.2d 242, 251, 104 S.Ct. 3081, 3086, retrial after a hung jury does not subject a defendant to double jeopardy "[r]egardless of the sufficiency of the evidence at [his] first trial," then the sufficiency of the evidence at that trial is of no concern after there has been a conviction in a second trial.
Defendant has not cited any Illinois authority nor have we found any case which would authorize appellate review of the evidence at the first trial under these circumstances. This is especially true since defendant is not claiming double jeopardy and since defendant presented no motions for acquittal or directed verdict at either the close of the State's case or at the close of all the evidence. His first application to the court for any such relief came only in a post-trial motion following his second trial where he claimed, inter alia, that the verdict was contrary to law and not supported by any evidence. We have noted earlier that defendant has not challenged here the sufficiency of the evidence presented at his second trial.
For these reasons, we conclude that we should not review the evidence produced at the first trial. We would add, however, that we have reviewed the evidence at the first trial and would, if required to rule on this issue, conclude that the evidence offered at the first trial was not insufficient to warrant a determination that the defendant knowingly obtained control over stolen property knowing the property to have been stolen by another and intending to deprive the owner permanently of the use or benefit of the property. Ill. Rev. Stat. 1983, ch. 38, par. 16-1(d)(1).
According to the juvenile offenders' testimony, their crime spree on the morning of November 28, 1982, started when they stole a Lincoln Continental in Carmi at about 1 a.m. They drove the car to Enfield, where it became stuck in mud. They abandoned the car and stole a pick-up truck owned by J.A. Ag Supply. They found a .22-caliber revolver and a 12-gauge shotgun behind the seat. McLeansboro was their next destination, where they stole another pick-up and then drove both trucks to Broughton, where they went to defendant's housetrailer at about 4 a.m. D.J. testified they went there because defendant had told him that he would buy anything D.J. could steal. D.J. knew the defendant and previously had been employed by him. D.J. also testified that he had transacted similar illegal business with the defendant on four occasions past.
Both juvenile witnesses testified about what happened inside the trailer. Their testimony was in certain respects inconsistent, but not significantly so. D.J. testified that he and J.R. went out to get the guns after they got there. J.R. testified, "We had brought them in with us." D.J. testified that he did not hear defendant's television so it must not have been on. J.R. testified that the television was on, and he watched it. D.J. testified that he and J.R. smoked about one-fourth of a marijuana cigarette on the way to Evansville, Indiana, later that morning and that they arrived there about 6 a.m. D.J. testified that on the way to Evansville "we lit one up but we didn't smoke it," and that they arrived there about 10 or 11 a.m., but added, "I don't think it was quite that late."
The juvenile witnesses were consistent in their descriptions of the events leading up to their trip to Broughton, the alleged deal inside the trailer, and the activities later on into the daylight hours. Both testified that D.J. asked the defendant if he wanted to buy two guns and the defendant responded by asking them if they were "hot." D.J. testified that he told the defendant the guns were as "hot" as the truck he had just stolen. Both witnesses testified that the defendant asked to look at the guns and after inspecting them offered to trade "about two `lids' of marijuana" for them. The boys accepted the deal, whereupon, they testified, the defendant went to get the marijuana from a wooden box. He placed some in a small plastic bag, which J.R. got, and some in a brown paper bag, which D.J. got. The deal completed, the juveniles left and drove on to McLeansboro. There, one of the trucks ran out of gas, so they drove the other ...