Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois No. 00-CF-409 Honorable Kathy S. Bradshaw Elliott, Judge, Presiding.
The opinion of the court was delivered by: Justice Holdridge
The defendant, James E. LaFond, was charged with aggravated battery (720 ILCS 5/12--4(b)(6) (West 2000)) and resisting a peace officer (720 ILCS 5/31--1(a) (West 2000)). Following the first jury trial, the judge declared a mistrial, stating that the defendant had not agreed to proceed with 11 jurors after 1 juror was hospitalized. At the conclusion of a second jury trial, the defendant was found guilty of both offenses. He was sentenced to three years' imprisonment for aggravated battery and 364 days in the county jail for resisting a peace officer, to be served concurrently. On appeal, the defendant argues that (1) it was error for the trial judge to, sua sponte, declare a mistrial and hold a second trial in violation of his double jeopardy rights; and (2) his trial counsel was ineffective by failing to preserve an adequate record in order to protect his double jeopardy rights. We affirm.
At the conclusion of the first trial, the judge excused the alternate juror on Thursday, April 5, 2001, and allowed the remaining 12 jurors to go home for the evening. When the jury returned the following Friday morning, April 6, 2001, the judge stated that one of the remaining 12 jurors had been hospitalized that morning. The judge said, "As there's now only 11 [jurors], I need to declare a mistrial." After the jury left the courtroom the following exchange took place:
"THE COURT: All right. [Defense counsel], I just want to make sure it's clear on the record. I had 11 jurors, but I believe you and Mr. LaFond would not agree to 11 jurors; is that correct?
[DEFENSE COUNSEL]: That's correct, Judge.
THE COURT: Okay. And that's why the Court declared a mistrial. There was no agreement as to 11 jurors. The defense was objecting.
Show mistrial was declared as the case could not be continued over to Monday as three or four of the jurors were unable to return on Monday."
The trial court's docket sheet entry for April 6, 2001, states: "Court is informed that one of the remaining 12 jurors has been hospitalized earlier this morning. As there was no agreement ofthe [sic] parties to continue with less than 12 jurors, court declares a mistrial." The defendant did not file a written posttrial motion between the end of the first trial and the beginning of the second trial.
The defendant was convicted of the offenses in the second trial. Following that trial, the defendant filed a motion for a judgment notwithstanding the verdict, or alternatively, for a new trial. In this motion, the defendant did not raise the issues he now raises on appeal. The defendant was sentenced and he appealed.
The defendant did not preserve the issues raised on appeal in a written posttrial motion. The State contends, therefore, that these issues are waived. The defendant asks ...