Appeal from the Circuit Court of Cook County. Honorable Robert Cahill, Judge Presiding.
As Corrected July 14, 1994. Released for Publication July 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.
The opinion of the court was delivered by: Mcnulty
JUSTICE McNULTY delivered the opinion of the court:
Ralph Harbold was indicted for murder on April 4, 1981. After a jury trial defendant was convicted and sentenced to 75 years' imprisonment. The appellate court reversed the conviction and remanded the case for a new trial. Defendant was retried by jury, and was found guilty again. This time he was sentenced to 70 years' imprisonment. On appeal the appellate court reversed the conviction a second time, and remanded the cause for a third trial. Prior to the third trial, defendant moved to dismiss the indictment against him arguing that a third trial would violate his right to be free from multiple prosecutions and his right to due process as secured by the double jeopardy and due process clauses of the fifth and fourteenth amendments to the United States Constitution (U.S. Const. amends. V and XIV), article 1, sections 2, 8, 10 and 13 of the Illinois Constitution (Ill. Const. 1970, art I, §§ 2, 8, 10, and 13), and section 3-4(a) of the Illinois Criminal Code (720 ILCS 5/3-4(a) (West 1992)). In that motion defendant asserted that both of his trials were tainted by prosecutorial misconduct and in the second trial the prosecutor used a highly improper final argument intended to avoid an acquittal. In both trials the misconduct included arguing without basis in the evidence, that defendant killed the victim because of a romantic interest in his wife. The first time the appellate court reversed defendant's conviction it concluded based on that improper argument that the conviction was obtained through the use of incompetent evidence and "accompanying inflammatory argument." ( People v. Harbold (1984), 124 Ill. App. 3d 363, 377, 464 N.E.2d 734, 745, 79 Ill. Dec. 830.) Prior to defendant's second trial the issue of this "motive" theory arose again in a pretrial hearing. At that time the assistant State's attorney who conducted defendant's second trial and who had assisted in the first, was specifically instructed not to go into the motive theory on pain of contempt. Nonetheless, during his final closing argument in defendant's second trial, the assistant State's attorney argued as follows:
"[Assistant State's Attorney]: The defense counsel has asked you to think about why he might have done it. Well, maybe he admired Mrs. Paul from afar.
[Defense counsel]: I object, your Honor.
[Defense counsel]: Wild speculation having no relationship to any piece of evidence, Judge.
THE COURT: Mr. Echeles, sustained.
[Assistant State's Attorney]: The evidence shows that while Mr. Paul did not share Mrs. Paul's interest in aviation, this man did. This man had involvements with Mrs. Paul financially as well as through business: He purchased airplanes from Mrs. Paul, leased them back to Mrs. Paul. They shared the hobby of collecting classic T-bird cars. They both had their cars done by Mr. Wisniewski.
After the trial, go back to your parlors and your dens and you can talk about it at the local tavern and you can satisfy yourself and maybe think about why you think he did it; but the Judge is not going to instruct you that we have to prove one iota of evidence as to why. So let's keep on the track and not be distracted by the red herring."
In addition to the motion to dismiss defendant filed another motion, based on the same grounds, alternatively seeking that the State pay the costs of his defense, including attorney fees. The trial court denied both motions after an evidentiary hearing held on September 3, 1992. At that hearing the assistant who tried defendant's second trial testified that he felt "very good" about the possibility of a conviction, that he did not want a mistrial, and that he did not intend a mistrial. The trial court stated on the record at the hearing that it found no evidence that the prosecutor intended to provoke a mistrial when he made the improper argument and thus there was no bar to another trial. This interlocutory appeal challenges the propriety of the trial court's decision.
Defendant requests the decision of the lower court be reversed and an order dismissing the indictment be entered. Defendant makes one primary argument and two arguments in the alternative: (1) the trial court improperly denied defendant's motion to dismiss the indictment because defendant's retrial is barred by the double jeopardy doctrine (U.S. Const., amend V; Ill. Const. 1970, art. I, § 10; 720 ILCS 5/3-4 (West 1992)); (2) the trial court improperly denied defendant's motion to dismiss the indictment because retrial is barred by defendant's due process rights (U.S. Const. amends V and XIV; ...