Appeal from the Circuit Court of Du Page County. No. 99--DT--4684 Honorable Jane Hird Mitton, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
The State charged defendant, Joseph Bagley, with driving under the influence of alcohol (625 ILCS 5/11--501(a)(1), (a)(2) (West Supp. 1999)). After the jury was sworn but before the first witness was called, the State located a videotape of defendant's arrest that was believed to be lost. The trial court sua sponte declared a mistrial and scheduled a new trial. Defendant appeals from the denial of his motion to dismiss on double jeopardy grounds. We affirm.
The State commenced the prosecution on November 22, 1999. On April 19, 2000, defendant sought a dismissal or alternatively some other discovery sanction because the State failed to turn over a videotape of defendant's arrest. During the June 19, 2000, hearing on defendant's motion, the State informed the court that it was unable to locate the tape. Judge Mehling barred the State from presenting testimony about the events appearing on the video. On December 14, 2000, Judge Mehling granted the State's motion to reconsider and ordered as a sanction that the jury would be informed that the police department lost the videotape and that the arresting officers' testimony "should be judged with caution and suspicion." On the same date, the cause was reassigned to Judge Mitton.
On July 11, 2001, a six-person jury was selected and sworn. Shortly thereafter, but before the first witness was called, the State informed the trial court that it located the videotape. Outside the jury's presence, the assistant State's Attorney explained that the arresting officer had the tape during the hearing on the petition to rescind the summary suspension of defendant's driving privileges. After the hearing, the officer locked the tape in his filing cabinet. Prosecutors attempting to locate the tape went to the police department evidence technician, who reported that the tape was not in the evidence room. The State was unaware of the tape's location until the officer arrived in court to testify during the trial.
Defense counsel stated that "viewing the videotape at this time sort of throws a total wrench in the works for me. This sort of situation would be deserving of a mistrial ***." Accordingly, defense counsel asked the court to exclude the tape, leave Judge Mehling's ruling intact, and proceed with the trial. The State responded that it did not act in bad faith and asked the court to admit the tape and proceed with the trial. In response to the court's inquiry, defense counsel stated that if the tape were admitted, he would need additional time to prepare.
"There was no order ever barring the evidence. All of these rulings were based on the presumption that the tape was not available. Because this is a truth-seeking process, if the evidence is available and otherwise admissible to impose a sanction barring it because it was presumed to be lost I think is overly harsh.
*** So understanding that it is an unfair surprise at this point, I will declare a mistrial. *** I will reset this matter for trial.
*** [T]o go further and *** bar the video and then tell the jury that it had been destroyed would be a lie."
After dismissing the jury, the trial court asked defense counsel if he wanted a trial date, and counsel responded that he did. The court set an October 9, 2001, trial date.
On July 27, 2001, defendant moved to dismiss. He argued that, because the trial court improperly terminated the trial after the jury was sworn, any further prosecution would violate double jeopardy principles. The trial court denied the motion, and defendant timely appealed. See 188 Ill. 2d R. 604(f).
On appeal, defendant argues that there was no manifest necessity for the mistrial and therefore that a second trial would violate double jeopardy principles. The fifth amendment to the United States Constitution states in relevant part, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const., amend. V. The same principles are embodied in the Illinois Constitution. Ill. Const. 1970, art. I, §10. These provisions are based on the notion that, with all of its resources and power, the State should not be allowed multiple attempts to convict a person of an alleged offense. People v. Cooper, 194 Ill. 2d 419, 429 (2000). The constitutional protection against double jeopardy attaches after the jury is selected and sworn. People v. Murray, 306 Ill. App. 3d 280, 283 (1999).
The trial court declared a mistrial sua sponte. Where a court acting without the defendant's consent declares a mistrial, the court necessarily deprives the defendant of his valued right to have a particular jury decide his fate. People v. Street, 316 Ill. App. 3d 205, 211 (2000). This does not necessarily preclude a second trial, however. When the court declares a mistrial without the defendant's consent, the State should be allowed to retry ...