The opinion of the court was delivered by: Justice Bilandic
Agenda 12-September 1998.
Defendant, James Placek, was the focus of an undercover police investigation that targeted auto theft crimes. Approximately two years after the investigation began, the police shifted the focus of the undercover investigation from stolen auto parts to illegal drug transactions. An undercover police officer informed defendant that the officer's "boss" needed a cocaine supplier. Six weeks later, defendant sold cocaine to the undercover officer.
Defendant was charged by indictment in the circuit court of Cook County with one count of theft (Ill. Rev. Stat. 1989, ch. 38, par. 16-1(a)(5)). Defendant was also charged by indictment in the circuit court of Cook County with one count of delivery of a controlled substance and one count of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)). Over the State's objection, the circuit court granted defendant's motion to consolidate the two cases. The jury returned verdicts of guilty against defendant on all three counts, and the circuit court entered judgment on these verdicts. Defendant filed a motion for a new trial, arguing, inter alia, that the provision of the theft statute under which he was prosecuted had been found unconstitutional, approximately one year prior to his trial, in People v. Zaremba, 158 Ill. 2d 36 (1994) (declaring section 16-1(a)(5) of the theft statute unconstitutional because it failed to require a culpable mental state). The circuit court granted defendant's motion for a new trial and dismissed the theft charge.
Following a second jury trial on the two drug charges, defendant was convicted of delivery of a controlled substance and possession of a controlled substance with intent to deliver. The circuit court noted that the two drug charges merge and then sentenced defendant to 16 years' imprisonment in the Illinois Department of Corrections on the charge of delivery of a controlled substance. The appellate court, with one Justice Dissenting, affirmed defendant's conviction and sentence. 292 Ill. App. 3d 521. We allowed defendant's petition for leave to appeal. 166 Ill. 2d R. 315. We now hold that the State's improper introduction of other-crimes evidence at defendant's second trial constitutes reversible error. We therefore reverse and remand for a new trial.
Defendant argues that reversal of his conviction is warranted because: (1) the circuit court erred in denying the defense motion to dismiss the drug charges on double jeopardy grounds; (2) the prosecution failed to prove defendant guilty beyond a reasonable doubt because the evidence showed that the police entrapped defendant into committing the offense of delivery of a controlled substance; (3) defendant's right to a fair trial was prejudiced by the admission of other-crimes evidence; (4) the prosecution improperly introduced evidence that defendant was associated with two convicted drug traffickers; and (5) the prosecution improperly elicited evidence of alleged racial slurs made by defendant.
Defendant first contends that reversal is required because his second prosecution for delivery of a controlled substance and possession of a controlled substance with intent to deliver violated constitutional guarantees against double jeopardy. Before his second trial, defendant filed a motion to dismiss the drug charges. Defendant argued that, because the prosecution knew or should have known that the theft statute was unconstitutional, a subsequent prosecution would violate double jeopardy. The circuit court denied the motion. Defendant now contends that the State was grossly negligent in prosecuting him for theft when it knew or should have known that the applicable statutory provision had been declared unconstitutional one year prior to defendant's initial trial. Therefore, defendant argues, his second prosecution for delivery of a controlled substance and possession of a controlled substance with intent to deliver violated double jeopardy. We disagree.
Both the United States and Illinois Constitutions provide that no person shall be twice put in jeopardy for the same offense. U.S. Const., amend. V; Ill. Const. 1970, art. I, §10. The double jeopardy clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. In re P.S., 175 Ill. 2d 79, 84 (1997). Nevertheless, "[i]f a new trial is granted on the defendant's application, this is, in itself, no bar to a second trial on the same or amended indictment. [Citation.] The defendant cannot, by his own act, avoid the jeopardy on which he stands and then assert it as a bar to subsequent jeopardy." People v. Woodward, 394 Ill. 433, 435 (1946).
In the instant case, although defendant was required to stand trial twice for the drug charges, the second trial did not violate double jeopardy principles. It was not, as defendant argues, the State's gross negligence that caused defendant to suffer the burden of a second trial. To the contrary, the circuit court, pursuant to defendant's request, granted defendant a new trial on the drug charges. Moreover, defendant faced retrial on the drug charges, not on the unconstitutional theft charge.
Defendant further argues that the State's conduct in prosecuting him under an unconstitutional statute constitutes "overreaching." In support, defendant relies upon People v. Pendleton, 75 Ill. App. 3d 580 (1979). In Pendleton, the trial Judge called a weekend recess while the complainant was on the witness stand and still subject to further cross- examination. During the recess, the prosecutor conferred with the complainant regarding her testimony and, when the complainant testified after the recess, she was better able to identify the men who raped her. The trial Judge declared a mistrial, and, on retrial, the defendants were convicted. Pendleton, 75 Ill. App. 3d at 585-90. The appellate court reversed the defendants' convictions. The court held that the retrial of the defendants violated double jeopardy principles because the prosecutor's misconduct, which prompted the mistrial declaration, constituted "overreaching." Since the mistrial was the result of prosecutorial overreaching, the defendants' interest in finality overrode society's interest in law enforcement. Pendleton, 75 Ill. App. 3d at 594-97.
Defendant's reliance on Pendleton is misplaced. The circuit court here did not declare a mistrial. Rather, as noted, the circuit court, pursuant to defendant's request, granted defendant a new trial on the drug charges. Even if defendant's first trial had resulted in a mistrial because of the unconstitutional theft charge, double jeopardy still would not have barred defendant's second trial. Double jeopardy does not bar reprosecution when a mistrial is attributable merely to prosecutorial or judicial error. See People v. Mink, 141 Ill. 2d 163, 173 (1990) (noting that double jeopardy does not bar retrial of a defendant whose conviction is set aside because of trial error, as opposed to evidentiary insufficiency). Double jeopardy bars retrial only in situations where the prosecution intended to "goad" the defendant into requesting a mistrial. People v. Brisbon, 129 Ill. 2d 200, 220 (1989), citing Oregon v. Kennedy, 456 U.S. 667, 676, 72 L. Ed. 2d 416, 425, 102 S. Ct. 2083, 2089 (1982).
Here, the record reveals no evidence that the prosecution intended to "goad" defendant into requesting a mistrial or any other relief. The circuit court specifically found that what had occurred in the courtroom was not the State's fault, and that the State did not know before trial that the theft statute had been declared unconstitutional. The record reveals that the circuit court, the State, and the defense were all unaware during defendant's initial trial that the theft statute under which defendant was charged was unconstitutional. We further note that it was defendant who moved, over the State's objection, to consolidate the theft charge with the drug charges. Had defendant not done so, he would have had a separate trial on the drug charges, and a retrial ...