SUPREME COURT OF ILLINOIS
504 N.E.2d 96, 115 Ill. 2d 369, 105 Ill. Dec. 227 1987.IL.96
Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Crawford County, the Hon. Robert Keenan, Jr., Judge, presiding.
JUSTICE MORAN delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN
The defendant, Julia Camden, was charged by information with two counts of aggravated battery (Ill. Rev. Stat. 1981, ch. 38, pars. 12-4(a), 12-4(b)(1)), armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2) and attempted murder (Ill. Rev. Stat. 1981, ch. 38, pars. 8-4(a), 9-1(a)(1)) as a result of an incident that occurred in a tavern in Crawford County. The defendant's trial ended when the trial court, sua sponte, declared a mistrial. The case was set, by agreement, for retrial before another jury. Thereafter, the defendant filed a motion to bar further prosecution and enter a judgment of acquittal on the ground of double jeopardy. The motion Judge found that the defendant had consented to the mistrial and denied the motion. The defendant appealed pursuant to Rule 604(f) (94 Ill. 2d R. 604(f)). A majority of the appellate court reversed and remanded the cause with directions that the defendant be discharged (140 Ill. App. 3d 480, 488). We allowed the People's petition for leave to appeal under Rule 315 (87 Ill. 2d R. 315).
The issues presented for review are (1) whether the defendant implicitly consented to the declaration of the mistrial by her failure to object, and (2) whether there was a manifest necessity for the declaration of a mistrial. Because we find that the defendant consented to the mistrial, we do not reach the question of whether there was a manifest necessity for the mistrial.
On July 21, 1983, at approximately 9 p.m., Ivan L. York, Jr., was sitting with Kevin Pethel and Pethel's mother at a table in the Saloon, a tavern in Robinson, Illinois. Approximately one hour later, York and Pethel left for another tavern. The defendant approached Mrs. Pethel and asked if York had left with a woman who was sitting at another table. When Mrs. Pethel indicated that York did not leave with the other woman, the defendant walked away and sat at the bar.
York returned to the Saloon at approximately 11 p.m. He ordered a drink at the bar and resumed his seat at the table with Kevin and Mrs. Pethel. The defendant approached York, leaned over, and told him that she hoped he had "enjoyed himself." Defendant then shot York in the abdomen and hurried out of the tavern. The defendant was later arrested and found to be in possession of a .22-caliber Derringer pistol.
The defendant pleaded not guilty and raised the defense of insanity. She later entered a residential treatment program for alcoholism. Before trial, the defendant filed a statement of facts in which she admitted the factual allegations of the information but denied that she had the requisite mens rea.
On June 26, 1984, a jury with one alternate juror was impaneled and sworn. The State rested its case in chief the next day, and the defense began presenting its evidence that afternoon. The following day, June 28, while the jurors, along with their custodian, Sheriff Richard Hunnicutt, were having lunch, one of the jurors, Donald D. Hatton, told the sheriff that he had reservations concerning his ability to render an impartial verdict because of his own prior drinking problem. Before court reconvened, the sheriff reported this incident to the trial Judge, A. Hanby Jones. The Judge held a hearing in his chambers outside the presence of the remaining jurors. The defendant, her counsel and the State's Attorney were present.
The Judge first called the sheriff. Under examination by the court, he testified that he had been seated at a table with Hatton and the other jurors. Hatton, who was sitting to his right, told him: "I have something I have to tell you that I think you should report. I cannot give an impartial judgment because of my drinking." The sheriff further testified that the other jurors overheard "every word" of this conversation and engaged in a conversation about Hatton's comment. Neither the State's Attorney nor defense counsel examined the sheriff.
The Judge then called Hatton. He testified that he told the sheriff that he did not believe that he could render an impartial verdict because he previously had a drinking problem. Although he testified that he did not discuss the matter with the other members of the jury, Hatton believed that they overheard his conversation with the sheriff. Hatton further testified that the alternate juror said to him, "You're going to stick me yet, aren't you." When the Judge expressed concern as to whether the other jurors were influenced by Hatton's comments, Hatton testified that he "really, honestly couldn't say" whether his comment influenced the other jurors. The court's examination of Hatton concluded:
"Q. I see. Just exactly what were your words, if you recall?
A. Probably '[w]hat steps should someone take if they had a feeling that they could no longer render what they thought might be a true and honest opinion of this case' or something to that affect [ sic ] is as close to the words as I can remember. I can still try, and I know I would try to do it.
A. But it may place a bigger burden on the State than what could be ...