Appeal from the Circuit Court of Marion County. No. 01-CF-391 Honorable Patrick J. Hitpas, Judge, presiding.
Justices: Honorable Thomas M. Welch, J. Honorable Melissa A. Chapman, J., Concurs
Honorable Clyde L. Kuehn, J., Specially concurs
The opinion of the court was delivered by: Justice Welch
On December 5, 2001, defendant Steven R. Sanders was charged by an information filed in the circuit court of Marion County with the offenses of attempted first-degree murder and residential burglary. His jury trial, held July 8 and 9, 2002, ended in a mistrial after the presentation of much of the State's case, when three jurors were removed from the jury for various reasons. The last juror to be removed was removed over the objection of the defendant. This left only 11 jurors to decide the case. When the defendant indicated that he would not waive his right to a jury of 12 and consent to a jury composed of 11 jurors, the trial court declared a mistrial. The case was scheduled for a retrial.
On July 12, 2002, the defendant moved to dismiss the charges against him as barred by his constitutional and statutory rights not to be twice placed in jeopardy for the same offense. This motion was denied, and the defendant brings this interlocutory appeal pursuant to Supreme Court Rule 604(f), which allows a defendant to appeal the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy (188 Ill. 2d R. 604(f)). For reasons that follow, we affirm.
On July 8, 2002, voir dire was conducted and a jury of 12 jurors plus two alternates was picked and sworn. Opening statements were heard and the State proceeded with the presentation of its evidence. At a recess, a juror indicated that he had observed in the courtroom a woman with whom he was acquainted and who he believed was the defendant's mother. He stated that he did not know her personally and had never spoken with her but that he had at one time attended the same church that she did. The juror indicated that it made no difference to him and that he could be fair to both sides. Both attorneys were given the opportunity to question the juror. The juror indicated that the fact that he and the defendant's mother had attended the same church would not affect his verdict. Neither attorney objected to the juror, and he remained on the jury. The presentation of the State's case continued until court recessed at the end of the day.
The morning of the second day of trial, while the court and the attorneys were involved in a jury-instruction conference, one of the jurors telephoned and asked to be excused because his wife had been unexpectedly hospitalized the night before. Neither party objected and the juror was excused.
A few minutes later, the same juror who had indicated the day before that he had recognized the defendant's mother in the courtroom again asked to speak with the judge. This juror indicated that upon seeing a witness testify in court, he recognized her as his girlfriend's best friend. He had known her by a name different from that used in court and so had not realized during voir dire that he knew her. The juror stated that he knew the witness quite well, he had last spoken with her six months previously but never about the case or the defendant, and he had seen her 50 or 60 times in his lifetime. He felt that his familiarity with the witness/victim would probably have a bearing on his decision in the case. He would see the victim in the future and stated that it would not be fair for him to remain on the jury. He stated that it would be "quite hard" for him to be a fair and impartial juror. After conferring with his client, the defendant's attorney indicated that his position was that the juror should not be removed. The particular witness, Melissa Brown, was the victim of the residential burglary. She had testified at the trial that she had returned home from work to find her house broken into and ransacked. She had not been present when the crime occurred and could not identify the perpetrator. She simply testified to the fact that her home had been burglarized. According to the defendant, Melissa Brown was not an important witness because she testified only that her home had been burglarized but could not identify the perpetrator. The defendant was not contesting the burglary, only the identity of the burglar. Under these circumstances, the juror's tendency to favor the witness, Brown, did not damage the defendant. The defendant strongly opposed the juror being removed. The State took no position on the question.
The trial court then pointed out that this particular juror had twice before during the pendency of the proceedings sought to be removed from the jury. The court also pointed out that the juror was the only African American on the panel and that the defendant is also African American. The trial court reserved ruling.
A third juror then brought to the trial court's attention that he had discussed the case with his family the night before, in violation of his oath, and had learned that his wife and stepdaughters were good friends with the victim of the attempted murder, Will Williams. The juror's wife and stepdaughters had expressed strong feelings in favor of Williams and against the defendant. The juror expressed that he thought he could put these feelings aside and render a fair verdict based on the evidence. He also stated that if he were the defendant, he would not want a juror like himself on the jury. The defendant asked that the juror be removed. The State objected. The trial court granted the defendant's request to remove the juror.
The trial court then also removed the juror who knew Melissa Brown and who had said he would find it "quite hard" to be a fair and impartial juror. At that point only 11 jurors remained. Neither the State nor the defendant requested a mistrial. Nevertheless, the defendant refused to consent to a trial by a jury of 11 jurors. A mistrial was declared and the jury was discharged.
The defendant filed his motion to dismiss the charges on the ground of double jeopardy on July 12, 2002. At the hearing thereon the defendant argued that the trial court had erred in removing the African-American juror over the defendant's objection. Although the juror had indicated that he could not be fair to the defendant, the defendant had objected to his removal. If this juror had not been removed, a mistrial would not have been declared. The State opposed the motion to dismiss, arguing that the trial court had properly removed the juror and that once that juror was removed, a mistrial was manifestly necessary.
After taking the matter under advisement, the trial court denied the motion on October 2, 2002. The defendant brings this interlocutory appeal.
The standard of appellate review for testing the trial court's exercise of its discretion in declaring a mistrial without the defendant's consent and after jeopardy has attached was first set forth in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824), ...