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People Ex Rel. Daley v. Crilly





Motion for supervisory order.


The defendant, Vincent Sabella, was charged with murder and conspiracy to commit murder. A jury in the circuit court of Cook County found the defendant guilty of the conspiracy count but was unable to reach a decision on the murder charge. The trial judge thereupon discharged the jury; in doing so he did not use the word "mistrial." After discharging the jury, the trial judge entered judgment on the conspiracy charge.

Ten days later the defendant filed a motion for a new trial. He also renewed a motion for a directed verdict on the murder charge which the trial judge had denied before the case went to the jury. At the same time the State moved for a retrial of the murder charge and requested that sentencing on the conspiracy conviction be deferred until after the defendant had been retried for murder.

Subsequently, the trial judge granted the defendant's motion for a directed verdict of not guilty at the end of all the evidence on the murder charge and announced "judgment of acquittal" on that charge. Immediately thereafter he sentenced the defendant to a prison term on the conspiracy conviction. The State then petitioned this court, pursuant to our Rule 383 (94 Ill.2d R. 383), to exercise our supervisory authority over Illinois courts (Ill. Const. 1970, art. VI, sec. 16) and to vacate the circuit court order acquitting the defendant of murder.

The State maintains that the discharge of the jury after it failed to reach a verdict on the murder charge constituted a mistrial as to those counts even though the trial judge did not formally declare a mistrial; this, the State contends, "vitiated" or "nullified" the entire murder trial so that there was no longer any evidence before the court on which it could determine that an acquittal was required.

Two separate concepts which both apply in this case provide the answer to the State's position. The first is the inherent power of a court in a criminal case to correct its own rulings, even in the absence of a statute or rule granting it authority to acquit a defendant after a jury has found him guilty. (People v. Van Cleve (1982), 89 Ill.2d 298.) In Van Cleve this court sanctioned the entry of a judgment of acquittal by a trial judge following a guilty verdict returned by a jury even though the trial judge, as in this case, had previously denied a motion for a directed verdict at the close of the evidence.

The second concept is the constitutional protection against double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10). It safeguards a defendant against being forced to undergo a second trial where the evidence introduced at the first trial is insufficient for conviction. In Burks v. United States (1978), 437 U.S. 1, 57 L.Ed.2d 1, 98 S.Ct. 2141, the court held that when a defendant contends, even after a jury has found him guilty, that the evidence was not sufficient for conviction it is the responsibility of an appellate court to review the trial court's order denying acquittal. The court in Burks observed:

"The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." (437 U.S. 1, 11, 57 L.Ed.2d 1, 9, 98 S.Ct. 2141, 2147.)

(See also People v. Taylor (1979), 76 Ill.2d 289, 309 (appellate court, in reversing criminal conviction and remanding for a new trial without deciding whether evidence in the first trial was insufficient, risks subjecting the defendant to double jeopardy).) In People v. Holloway (1982), 92 Ill.2d 381, 386-87, this court elaborated on the rule set forth in Burks:

"Clearly, the double jeopardy clause prevents retrial on the same charge where a reversal of the defendant's conviction is based upon the insufficiency of the evidence. [Citations.]

The prosecutor is not afforded a second opportunity to supply evidence that he or she failed to produce at the first trial on the same charge. For as Justice O'Connor, writing for the majority in Tibbs v. Florida, has said: `This prohibition, lying at the core of the Clauses's protections, prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction. Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction through sheer governmental perseverance.' Tibbs v. Florida (1982), 457 U.S. 31, 41-42, 72 L.Ed.2d 652, 661, 102 S.Ct. 2211, 2218."

The State does not quarrel with Van Cleve, but argues it is not applicable here because this case involved a hung jury which resulted in a mistrial rather than a jury which returned a guilty verdict. Even if it is conceded that the trial concluded in a mistrial on the murder charge, the distinction the State draws is without merit.

First, the trial judge retained jurisdiction of the defendant and indictment — he had not yet sentenced the defendant on the conspiracy conviction at the time he acquitted the defendant of murder. So long as the case was pending before him, the trial judge had authority under Van Cleve to correct his interlocutory rulings. In fact he even had authority under People v. Heil (1978), 71 Ill.2d 458, to reconsider any order which had previously been executed (there the ...

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