Appeal from Circuit Court of Vermilion County No. 00CF247 Honorable Thomas J. Fahey, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
The State charged defendant, Mark W. Largent, with two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2), (a)(3) (West 2000)), one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(a)(2) (West 2000)), and one count of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2000)). At the conclusion of the first trial, the trial court interrupted the jury's deliberations and declared a mistrial, sua sponte, over defendant's objection. When the State sought to retry him, defendant filed a motion to dismiss the charges on the ground of double jeopardy. The trial court denied the motion. In the second trial, a new panel of jurors found defendant guilty of one count of aggravated criminal sexual assault, one count of aggravated criminal sexual abuse, and one count of criminal sexual assault. The trial court sentenced him to imprisonment for 160 months.
Defendant appeals, arguing (1) the trial court erred in denying his motion to dismiss the charges and (2) the prosecutor- 1 - made improper comments during his closing argument. Because we agree with the first contention, we do not reach the second one. We reverse the trial court's judgment.
In the first trial, defendant was tried in absentia. Three hours and fifteen minutes into the jury's deliberations, the trial court called the jury back into the courtroom and said:
"THE COURT: Show the jury has reassembled. It's 5:15 [p.m.]
Ladies and gentlemen of the jury[,] Mrs. Bergen, one of your members, had an accident in her family. I don't know how serious it was. I received a call from her husband[,] and she had to go to the hospital[.] [T]herefore, because of that[,] we had to break the panel[.] [B]ecause of that[,] the deliberations will have to cease.
I'm going to declare a mistrial on this case.
You are free to leave today.
I wish to thank you. I'm sure the attorneys wish to thank you also. These things happen. You've worked hard. You've been attentive[,] and everyone appreciates it, but because of unforeseen circumstances[,] this is what has to happen.
You're free to go[,] [i]f you would go back with Mr. Lacquet. Leave your buttons. You're free to go. Thank you.
WHEREUPON, THE JURY LEFT THE COURTROOM.
THE COURT: Okay. We will be adjourned.
MR. MERLIE [(Defense Counsel)]: May I note an objection for the record, your Honor[?] [I] object to the mistrial at this point.
MR. MERLIE: Thank you, Your Honor.
THE COURT: Show for the record that this jury has been out for  hours and 15 minutes, more than enough time, in the [c]court's opinion, to reach a decision. However, that is not the reason why [this court declared] the mistrial. The mistrial was the emergency necessary[--]the emergency that was brought up by the accident to Mrs. Bergen's relative[,] necessitating her departure[,] and because of that[,] the matter had to mistrial."
In a memorandum in support of his motion to dismiss the charges, defendant stated: "During [the jury's] deliberations, the court advised counsel that a message was received indicating that [a juror's] mother-in-law sustained a fractured leg and was being taken to the local hospital." Defendant argued that this circumstance was not serious enough to merit the declaration of a mistrial. In the hearing on the motion to dismiss, the State argued, "There is no double jeopardy here[,] based on the hung jury." After hearing those arguments, the trial court said:
"THE COURT: Well, I think the first thing is that the record should be corrected somewhat. When the [c]court first heard the--about the broken leg[,] Mr. Merlie and Mr. Donahue [(the prosecutor)] were both present. I indicated in [the] presence [of them both] that I would let them [(the jurors)] continue deliberating until [5 p.m.,] at which time I would take action. So from that angle there was-- it wasn't sua sponte and off the top of my head. It was something that in the presence of both attorneys[--]at least an indication of something going to be done was indicated at that point.
In the [c]court's opinion further, this was a fairly [straightforward] case. The jurors were not confronted with any highly technical questions. Based upon the jurors' comments[,] there was an indication that there would never be a verdict[,] even without the mistrial. The jury had plenty of time to deliberate. The jury would not reach deliberation [sic][.] [I]t would be unfair and unjust, especially under the circumstances of [defendant's failure to attend the trial], to allow it to go further. Therefore, I granted the mistrial based upon medical necessity and also based upon other considerations enumerated."
The record is silent as to what the "jurors' comments" were and when the jurors made them.
In the second trial, defendant testified on his own behalf, claiming the alleged victim had consented to the sexual acts. After 2 1/2 hours of deliberation, the jury found him guilty of the three counts. The trial court imposed its sentence in a later hearing. In his posttrial motion, ...