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12/01/87 the People of the State of v. James Russell

December 1, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JAMES RUSSELL, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

519 N.E.2d 6, 165 Ill. App. 3d 569, 116 Ill. Dec. 416 1987.IL.1762

Appeal from the Circuit Court of Jackson County; the Hon. Stephen L. Spomer, Judge, presiding.

APPELLATE Judges:

JUSTICE CALVO delivered the opinion of the court. WELCH and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO

Defendant, James Russell, was charged with aggravated kidnapping, and a jury trial on June 23 to 26, 1986, ended in a mistrial due to the jury's inability to reach a verdict. On November 6, 1986, an amended information was filed against defendant. Defendant filed a motion to dismiss the charges on the ground that a retrial would violate the constitutional prohibitions against double jeopardy. The circuit court denied defendant's motion and the defendant has perfected this appeal from that order pursuant to Supreme Court Rule 604(f) (107 Ill. 2d R. 604(f)). We affirm.

On appeal, defendant contends that the evidence at trial was insufficient to prove him guilty of aggravated kidnapping beyond a reasonable doubt and that a retrial would therefore violate the prohibition against double jeopardy contained in the Illinois Constitution (Ill. Const. 1970, art. I, § 10). The State responds that since the first trial did not result in a judgment of acquittal, and since defendant does not claim that the circuit court abused its discretion in discharging the jury without a verdict, there is no double jeopardy bar to a retrial. The State also asserts that, in any event, the evidence at the first trial was sufficient to convict the defendant.

In Richardson v. United States (1984), 468 U.S. 317, 82 L. Ed. 2d 242, 104 S. Ct. 3081, defendant was indicted and tried on three drug charges. At the close of the government's case and before the submission of the case to the jury, defendant moved for a judgment of acquittal based on the insufficiency of the evidence. The motions were denied. The jury acquitted defendant of one charge but was unable to reach a verdict on the remaining two counts. The district court declared a mistrial as to the two remaining counts and scheduled a retrial. Defendant then renewed his motion for acquittal and also asserted that a retrial would violate the double jeopardy clause of the fifth amendment. (U.S. Const., amend. V.) The motions were denied and defendant appealed. The court of appeals dismissed the appeal for lack of jurisdiction. Richardson, 468 U.S. at 318-19, 82 L. Ed. 2d at 246, 104 S. Ct. at 3082-83.

After rejecting the jurisdictional challenge to defendant's right to appeal, the Supreme Court addressed the merits and affirmed the district court. The Supreme Court held as follows:

"trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected. The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree. Regardless of the sufficiency of the evidence at petitioner's first trial, he has no valid double jeopardy claim to prevent his retrial." Richardson, 468 U.S. at 326, 82 L. Ed. 2d at 251, 104 S. Ct. at 3086.

See People v. Cole (1982), 91 Ill. 2d 172, 175, 435 N.E.2d 490, 491 ("[In] the absence of an abuse of discretion by the trial court when it discharges a jury because of its failure to reach a verdict, the constitutional prohibition against double jeopardy does not bar a new trial").

In People v. Taylor (1985), 137 Ill. App. 3d 148, 484 N.E.2d 384, defendant was retried for theft of firearms not from the person after his first trial ended in a hung jury. On appeal, defendant urged this court to review the evidence presented at his first trial. Relying on Richardson, this court stated:

"As defendant's original jeopardy never terminated, he had no valid double jeopardy claim '[regardless] of the sufficiency of the evidence at [his] first trial.'" Taylor, 137 Ill. App. 3d at 150, 484 N.E.2d at 384-85, quoting Richardson, 468 U.S. at 326, 82 L. Ed. 2d at 251, 104 S. Ct. at 3086.

Defendant relies on language in the case of People ex rel Daley v. Crilly (1985), 108 Ill. 2d 301, 483 N.E.2d 1236. In Crilly, defendant was charged with murder and conspiracy to commit murder. Defendant's motion for a directed verdict at the close of all the evidence was denied. A jury found defendant guilty of conspiracy but was unable to reach a verdict on the murder charge. The circuit court discharged the jury but later granted defendant's renewed motion for a directed verdict and entered a judgment of acquittal on the murder charge. The State appealed, claiming that the discharge of the jury ...


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