Appeal from the Circuit Court of Ogle County. No. 95-CF-55 Honorable John B. Roe, Judge, Presiding.
Hutchinson and Galasso, JJ., concur.
The opinion of the court was delivered by: Presiding Justice Bowman
Following a jury trial, defendant, Willie Walker, was found guilty of two counts of criminal sexual assault (720 ILCS 5/12--13(a)(1) (West 1998)). He was sentenced to consecutive sentences of 30 years' imprisonment for the first count and 15 years' imprisonment for the second count. During the trial, defendant moved for a mistrial because one of the State's witnesses testified about defendant's prior sexual assaults. Before this testimony, the trial court stated that defendant's prior convictions, including convictions of sexual assault, could be presented only if defendant testified. The trial court denied defendant's motion for a mistrial, defendant appealed, and this court reversed and remanded for a new trial. See People v. Walker, No. 2--96--1063 (1997)(unpublished order under Supreme Court Rule 23). When the cause was remanded, defendant moved to dismiss the charges, claiming that the prosecutor's misconduct caused him to move for a mistrial. Thus, defendant argued that retrying him would amount to double jeopardy. The trial court denied defendant's motion. Defendant now appeals, arguing that his motion to dismiss the charges should have been granted. We affirm.
Prior to defendant's trial, the State presented a motion in limine, asking that it be allowed to present evidence of defendant's prior sexual assaults. The State wanted to present this evidence so that it could establish defendant's modus operandi for committing the current sexual assaults. Defendant filed a motion to bar the prosecution from presenting his prior convictions to the jury, which included convictions of sexual assaults. The trial court denied the State's motion and stated that evidence of defendant's prior sexual assaults could be presented to impeach defendant only if he testified.
At the trial, one of the State's witnesses, Detective Debra Dewey, testified about knowing defendant because of his prior sexual assaults. Detective Dewey testified as follows:
"MS. KAUFFMAN [Assistant State's Attorney]: And did you in fact speak with [the victim's] mother and [the victim's sister]? DETECTIVE DEWEY: Yes. I told [the victim], I said your sister's only 16, let me talk to your mother *** and I spoke to [her mother] on the telephone, explaining to her that I was familiar with [defendant], I've known him for many years throughout my career, and I was aware that there were some prior public records involving [defendant's] past sexual [sic] violent behavior[.] MR. CAMPBELL [defendant's attorney]: Objection move to strike. THE COURT: That objection will be sustained, the jury will disregard that answer. DETECTIVE DEWEY: I had encouraged the mother to bring [the victim] and her, her other daughter *** to the Ogle County courthouse and to speak directly with the probation department and the state's attorney's office and to look up the public records involving [defendant]. MR. CAMPBELL: Objection, move to strike. THE COURT: That answer will be stricken as well, jurors will disregard that answer."
Defendant moved for a mistrial. The trial court denied the motion, and the jury found defendant guilty of two counts of criminal sexual assault. Defendant appealed his conviction to this court, and this court concluded that defendant's motion for a mistrial should have been granted. See People v. Walker, No. 2--96--1063 (1997)(unpublished order under Supreme Court Rule 23). Defendant's cause was remanded for a new trial, and defendant moved to dismiss the charges because retrying him would amount to double jeopardy.
At the hearing on defendant's motion, Detective Dewey testified that she has been a police officer for around 13 years, and she has worked on around 150 sexual assault cases. During her career, she has testified in three jury trials and a couple hundred bench trials. Of this total number, 20 of the cases in which Detective Dewey testified were sexual assault or rape cases. She stated that she has known defendant for around 12 years, that she arrested defendant for a prior sexual assault, and that she believed defendant was guilty of these sexual assaults. Detective Dewey testified that Assistant State's Attorney Kathleen Kauffman spoke with her before she testified, and Assistant State's Attorney Kauffman told her not to testify about defendant's prior sexual assaults.
Assistant State's Attorney Kauffman testified that she told Detective Dewey that the State's motion in limine had been denied. Therefore, no evidence of defendant's prior sexual assaults could be presented to establish defendant's modus operandi in committing the present sexual assaults. Assistant State's Attorney Kauffman also told Detective Dewey that the trial court would allow evidence of defendant's prior convictions to be used only if defendant testified. Detective Dewey was told about the trial court's rulings right before she testified. On cross-examination, Assistant State's Attorney Kauffman stated that she did not intend to cause a mistrial when she asked Detective Dewey if the detective spoke with the victim's mother and sister, that she did not intend to elicit information about defendant's prior convictions, and that she thought the trial was going well before Detective Dewey testified about defendant's prior sexual assaults.
After hearing all of the evidence, the trial court denied defendant's motion to dismiss the charges. The trial court denied the motion because it found no evidence of prosecutorial misconduct. However, the trial court also made the following statement:
"Detective Dewey intentionally disregarded the [trial] court's rulings, proffered the barred testimony, and even after the [trial] court sustained an objection to Detective Dewey's first of two stricken statements, the detective again disregarded the [trial] court's ruling and proffered clearly barred testimony when there was no question pending. Based on the record, the conduct of the witness cannot be imputed to the State. The court finds no evidence of misconduct or overreaching, and [d]efendant's motion to bar retrial based on the basis of double jeopardy is denied."
This timely appeal followed.
The defense of double jeopardy combines questions of law and fact. People v. Scales, 18 Ill. 2d 283, 286 (1960). Unless the defendant presents his defense of double jeopardy to the trial court, there is no way for the reviewing court to determine whether the defendant's claim of double jeopardy involves questions of law or fact. Scales, 18 Ill. 2d at 286.
A question of law arises when neither the credibility of the witnesses nor the facts are at issue. People v. Oaks, 169 Ill. 2d 409, 447-48 (1996). In cases involving questions of law, the standard of review is de ...