APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
542 N.E.2d 468, 186 Ill. App. 3d 316, 134 Ill. Dec. 289
Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes and the Hon. John R. Goshgarian, Judges, presiding. 1989.IL.1148
JUSTICE WOODWARD delivered the opinion of the court. UNVERZAGT, P.J., concurs. JUSTICE NASH, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD
After a jury trial before Judge John L. Hughes, defendant, Randy G. Mink, was convicted of unlawful delivery of a controlled substance and unlawful possession of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, pars. 1401(a)(2), 1402(a)(2)). Defendant filed a post-trial motion alleging, among other things, that the State had failed to establish venue. Judge Hughes granted defendant a new trial. The State filed a motion to reconsider the new trial order on the basis of venue. The State's motion was heard and granted by Judge Goshgarian. He entered judgment on the jury verdicts returned before Judge Hughes and sentenced defendant to concurrent sentences of six years on each charge. Defendant appeals Judge Goshgarian's order on the State's motion to reconsider, contending that Judge Hughes' ruling on the post-trial motion was actually an acquittal which could not be reviewed. Alternatively, defendant contends that he is entitled to a credit against his fine of $5 for each day he was in custody prior to his trial.
The facts surrounding the offenses charged here are not relevant to this appeal. It is sufficient to say that defendant was charged by indictment with possession and delivery of less than 10 grams of cocaine on February 6, 1986, and possession and delivery of more than 30 grams of cocaine on February 11, 1986. Defendant was tried on the February 11, 1986, charges only. The trial court ruled that the State would be barred from introducing evidence of the February 6 incident unless the defense of entrapment was raised; thereafter, evidence of the February 6 incident would be admissible to rebut entrapment by demonstrating preDisposition. Defendant raised the entrapment defense; the State thereupon offered evidence as to both the February 6 and February 11 incidents. The State established that the February 6 incident occurred at Piper Industries, located at 3801 Hawthorne, in Waukegan, Lake County. Testimony concerning the February 11 incident established only that it occurred at Piper Industries.
At the close of the State's case, defendant moved for a directed verdict contending, among other things, that the State had failed to establish venue in Lake County for the February 11 incident. The motion was denied. The jury returned guilty verdicts on both charges, namely, possession and delivery, and judgment was entered on the verdicts.
Defendant filed a post-trial motion again asserting, among other things, that venue was not proved beyond a reasonable doubt. Defendant asked for a new trial or, alternatively, for reversal of the guilty verdicts. Defendant contended that the evidence of the location of Piper Industries was presented with regard to the February 6 incident only, and, because evidence of that incident was admitted only to rebut the entrapment defense, the evidence could not be considered as substantive evidence to prove venue for the February 11 incident. Judge Hughes granted defendant's motion and set a new trial date.
The State filed a motion to reconsider Judge Hughes' order. The State contended that venue had been proved. Judge Goshgarian heard and granted the State's motion and entered judgment on the jury's verdicts. Defendant was sentenced to concurrent terms of six years' imprisonment on each count and ordered to pay a $3,600 street value fine.
On appeal, defendant contends that Judge Hughes granted defendant's post-trial motion because the State failed to prove venue, and such a finding, that the evidence was insufficient to convict, is in effect an acquittal. Defendant contends, therefore, that the State's motion to reconsider violated his constitutional guarantees against double jeopardy.
On appeal, defendant focuses on the State's motion to reconsider as a violation of prohibitions against double jeopardy. Attention would more properly be focused, however, on Judge Hughes' new trial order. If, in fact, Judge Hughes found that the State had failed to present evidence of venue sufficient to support defendant's conviction, then his order for a new trial violated defendant's double jeopardy guarantees.
The constitutional protection against double jeopardy safeguards a defendant from being forced to undergo a second trial where evidence introduced at the first trial was insufficient for conviction. U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10; People ex rel. Daley v. Crilly (1985), 108 Ill. 2d 301, 306, cert. denied (1986), 475 U.S. 1045, 89 L. Ed. 2d 571, 106 S. Ct. 1261.
Double jeopardy does not preclude retrial where the reason for reversal is a trial error, that is, a determination that defendant has been convicted through a judicial process which is defective in some fundamental respect, as distinguished from an evidentiary insufficiency. (See People v. Castiglione (1979), 75 Ill. App. 3d 469, 473.) Although retrial is permitted when the evidence produced at the first trial was sufficient to convict, the double jeopardy clause prevents retrial on the same charge where the evidence presented by the prosecutor at the first trial was insufficient to convict. (Crilly, 108 Ill. 2d at 306.) The reason for the reversal should control the decision whether or not there should be another trial. (People v. Brown (1968), 99 Ill. App. 2d 281, 302 (supplemental opinion upon denial of petition for rehearing).) Where reversal is based on insufficient evidence, a new trial would subject defendant to double jeopardy. (See Brown, 99 Ill. App. 2d at 302.) The prosecution is not afforded a second chance to supply evidence that it failed to produce at the first trial on the same charge. People v. Holloway (1982), 92 Ill. 2d 381, 386-87.
The proper application of the constitutional prohibition against double jeopardy requires that, when the issue is raised by defendant, the trial Judge must decide whether the evidence was sufficient for conviction. (Crilly, 108 Ill. 2d at 308.) Even if the trial Judge appraised the evidence incorrectly in deciding that it was insufficient for conviction, his order is not reviewable. Crilly, 108 Ill. 2d at 312.
The determinative question, therefore, is whether Judge Hughes found that the State failed to establish venue beyond a reasonable doubt. An averment in an indictment that a crime was committed in a particular county is a material element of the State's case and must be proved beyond a reasonable doubtlike all other elements. People v. White (1975), 26 Ill. App. 3d 659, 661.
At the hearing on defendant's post-trial motion, the following exchange took place:
"THE COURT: I'm torn between simply saying all right, try [the case] again and make sure that the evidence is correct, granting a new trial which is not going to jeopardize anybody except take additional time to do a case which has already been tried, and doing what I believe is correct which I think is that that evidence forms a part of the total evidence and you make your decision based on the total evidence.
MR. BOCHES [Defense attorney]: That being that the total evidence was properly received for that purpose. If it was received solely for a specific limited purpose, the Jury should be precluded from considering it for any other purpose.
THE COURT: Okay. I will rule on it. Let's not waste any more time on it. I think there is a good argument on both sides and I will grant your motion because I'm not quite sure. If you are in doubt I think that it would be wise to grant the motion and set it up for a new trial.
MR. GIBSON [Assistant State's Attorney]: Just so the record is clear, Judge, I assume this is based on 115 --.
MR. BOCHES: It is important we declare it. I think it is because there is a question as to the venue, the limited evidence, correct?
THE COURT: That's what it is based on. Certainly in my own mind, I think I should be able to take the totality of the evidence. On the other hand, your argument pertaining to the limited nature or purpose of that case, I rather imagine that whichever way it goes on appeal, it would be a split decision and if it is going to be a split decision on appeal then we might just as well go ahead and grant the new trial and be done with it and not waste time on it going up on appeal. . . .
MR. GIBSON: Chapter 38, 114--11(e), you are granting this motion ...