Appeal from Circuit Court of Macon County No. 03CF1221. Honorable Scott B. Diamond, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
In October 2003, the State charged defendant, Ronald A. Hill, with (1) armed robbery (720 ILCS 5/18-2(a) (West 2002)); (2) possession of a stolen firearm (720 ILCS 5/16-16(a) (West 2002)), (3) reckless discharge of a firearm (720 ILCS 5/24-1.5 (West 2002)), (4) aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(3)(A) (West 2002)), (5) resisting a peace officer (720 ILCS 5/31-1 (West 2002)), and (6) battery (720 ILCS 5/12-3(a)(1) (West 2002)). These charges arose out of the State's allegation that around 4 a.m. on October 18, 2003, defendant forced his way into a Decatur bar, displayed a gun, demanded money, fired a shot into the ceiling, and took money from a bar patron.
During the State's case in chief at defendant's January 2004 jury trial, the prosecutor moved for a mistrial after he learned that some of the State's witnesses had committed perjury. The trial court discussed the motion with both counsel, granted it, and declared a mistrial.
In February 2004, defendant filed a motion to dismiss the charges against him, arguing that his reprosecution was barred by double jeopardy. Following a hearing later that month, the trial court denied defendant's motion.
Defendant appeals, arguing that the trial court erred by denying his motion to dismiss the charges against him on double-jeopardy grounds because (1) he did not consent to the mistrial and (2) no manifest necessity existed for a mistrial. Because we disagree with defendant's first argument, we affirm.
At defendant's January 2004 jury trial, three State witnesses testified regarding who was present at the bar when the armed robbery occurred. A fourth State witness, John Moran, then testified that in addition to the six individuals the previous witnesses had identified, a man named "Matt" was present.
Before testimony began the next morning, the prosecutor informed the trial court and defense counsel that the first time he had heard that Matt was present during the incident was during Moran's testimony the previous day. The prosecutor explained that after Moran testified, the prosecutor had a discussion with all of the State's witnesses regarding Matt's identity. The witnesses conceded that Matt was present at the time of the incident but had left the bar prior to the arrival of the police. During the discussion, one of the witnesses said to Moran, "I thought we were going to leave [Matt] out of this." That witness also conceded that although he had testified that he used his cellular phone to call police, he had in fact used a cellular phone provided by Matt. Matt's name did not appear in any of the police reports. Based on that discussion, the prosecutor believed that he was obligated to inform the court that some of the State's witnesses had committed perjury. He thus moved for a mistrial.
Defense counsel responded as follows:
"First, I commend [the prosecutor] for his ethics and calling this to the [c]court['s] and my attention and second, Your Honor, that may well be the only course that's available. We certainly can't let the jury rely on perjured testimony, but I'd like about  minutes to see if Westlaw gives me any guidance. I've been practicing since 75, and I've never had a situation occur where either I or the State, in fact, knew that we've had perjured testimony."
The trial court then inquired of counsel whether the first three State witnesses could be recalled to explain why they had lied and thus "save the trial." The prosecutor stated that he would need time to locate Matt and conduct additional investigation. The court then made the following statement:
"The question is going to be after you make your motion for mistrial, if I grant it, there's no question the defendant is going to file a [m]otion to [d]ismiss on the grounds that the [State] caused the mistrial. Now, I think maybe the cases say it depends if it was willful or not willful, but I'm thinking about what's coming down the line."
The prosecutor responded, in pertinent part, that he anticipated defendant's filing of a motion to dismiss based on the State's having caused the mistrial. The conversation then turned to the question of what to tell the jury, and the court granted the State's motion for a mistrial. The trial court's January 22, 2004, docket entry states, in pertinent part, as follows: "Motion by the [State] for a mistrial, no objection by the [d]efendant, motion allowed."
In February 2004, defendant filed a motion to dismiss the charges against him, alleging that double-jeopardy principles barred his reprosecution. Specifically, defendant argued that the trial court had erred by granting the State's ...