Appeal from the Circuit Court of Crawford County. No. 05-CF-113 Honorable David M. Correll, Judge, presiding.
The opinion of the court was delivered by: Justice Spomer
NOTICE Decision filed 09/28/07. The text of this decision may be changed or corrected prior to the filing of a Peti tion for Rehearing or th e disposition of the same.
On February 21, 1978, when asked to consider the deference a reviewing court should give to a trial judge's decision to declare a mistrial, the United States Supreme Court held, inter alia, "Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases." Arizona v. Washington, 434 U.S. 497, 513, 54 L.Ed. 2d 717, 733, 98 S.Ct. 824, 834 (1978).
The defendant in the present case, James A. Burtron, appeals an order of the circuit court of Crawford County denying his motion to dismiss the criminal charges against him on double jeopardy grounds, following the trial judge's sua sponte declaration of a mistrial during the defendant's trial on charges of aggravated criminal sexual assault (720 ILCS 5/12-14(c) (West 2004)). On appeal, the defendant questions the proper standard of review for a trial judge's sua sponte declaration of a mistrial, and he contends that because principles of double jeopardy prevent his retrial following the mistrial, the trial judge erred in denying his motion to dismiss the criminal charges against him. For the reasons that follow, we affirm.
For purposes of deciding the issues raised by the defendant on appeal, the circumstances underlying the criminal charges against the defendant are far less important than are the events that occurred at the trial. Accordingly, we shall touch only briefly on the alleged criminal acts. The defendant, who was born on October 2, 1936, was charged by information with one count of aggravated criminal sexual assault (720 ILCS 5/12-14(c) (West 2004)), and he was alleged to have "committed an act of sexual penetration by placing his finger in the vagina of C.B., a severely and profoundly retarded person at the time said act was committed." The alleged victim in the case, C.B., was 15 years old at the time of the alleged July 18, 2005, incident, and she suffered from a medical condition known as intractable epilepsy. As a result of severe seizures caused by her condition and brain damage resulting therefrom, on July 18, 2005, C.B. had a developmental age of approximately six years, three months. The defendant and C.B. lived on the same street in Robinson, several houses apart, and the sexual assault allegedly occurred when C.B. happened upon the defendant's house while searching the neighborhood for her lost cat.
The defendant's case came to trial on July 3, 2006. The defendant was represented at the trial by retained counsel, Roscoe D. Cunningham (hereinafter defense counsel). An examination of defense counsel's behavior at the trial is necessary to address the issues raised by the defendant on appeal. A complete review of the record on appeal provided to us by the defendant clearly shows that defense counsel engaged in a pattern of behavior which resulted in numerous sidebars and admonitions from the trial judge about defense counsel's conduct. Defense counsel was combative throughout the pretrial proceedings, as well as during the trial. From repeatedly asking irrelevant questions to becoming argumentative with a potential juror and many times with the trial judge, defense counsel's actions crossed the line from zealous representation to contemptuousness of the court and the rule of law, leading the trial judge to state, even before opening statements, on the record but outside the presence of the jury, the following to defense counsel:
"You were trying to use a motion that was to determine whether or not the child was called to testify, whether the child was sufficiently at risk in having to testify, as to allow for hearsay. You were trying to use that as a method for getting something into the record that was totally unrelated. Yes, it has been like hand-to-hand combat and mud wrestling. I do become out of sorts because you are continuously trying to push the envelope. You know what the rules are and everything is like it becomes a shock. I have dreaded this, but it's where we are."
Further illustration of defense counsel's testing of the limits of propriety can be seen in his cross-examination of two law enforcement officers. Some of the questions he asked were technically inappropriate, lacking a proper foundation, while others were completely irrelevant and, frankly, downright bizarre. This questioning further exacerbated the situation, leading the trial judge to admonish defense counsel for interrupting opposing counsel, and after numerous nonsensical objections from defense counsel, it led the trial judge to respond that whatever defense counsel's purported objection was, it was overruled. The record clearly demonstrates the tense and charged atmosphere that had been building throughout the trial. When the State's Attorney concluded his cross-examination of the defendant, the judge inquired of defense counsel whether he wished to engage in redirect examination. Defense counsel then stated, in the presence of the jury, the following:
"Well, Your Honor, this is such a[--]such a serious case, I'm going to make an unusual suggestion to the [c]court and I hope it's not--that it's permitted. The [d]efendant would be w illing to submit to a polygraph exam by the Illinois State Police."
Defense counsel had succeeded in pushing the envelope off the table. The State's Attorney began to say something, but he was interrupted by the judge, who ordered the attorneys into his chambers. Although no transcript exists for the proceedings in the judge's chambers, affidavits from the State's Attorney and defense counsel indicate the following: (1) the entire amount of time spent in chambers was less than two minutes, (2) the trial judge in chambers commented that he had never in his career had a defense attorney deliberately destroy a trial by doing something that he knew to be inappropriate, (3) defense counsel asked that the trial be allowed to continue, (4) the trial judge asked defense counsel how the problem that defense counsel had created could be fixed, (5) defense counsel did not offer any suggestions for correcting the problem he had caused, (6) the trial judge stated that any corrective instruction he could give would have to be so prejudicial to the defendant that the instruction would itself create a mistrial, and (7) the State's Attorney stated that he did not believe the State could ask for or prevent a mistrial from being declared. Following the discussion in chambers, the judge returned to the bench and made the following announcement to the jury:
"Ladies and gentleman, something just took place that I have never had take place before. It has created a mistrial. You are discharged from your duties at this time. Thank you very much for your attendance through this trial. You have my most sincere apology."
The jury was then excused, and the judge stated for the record that he would reserve a ruling on the "contempt element" of the case until the parties submitted legal authority on that issue.
Defense counsel subsequently paid $1,505.94 to the court as reimbursement for the jurors' fees, postage, meals, and bailiff expenses related to the trial. Defense counsel also stated, in a subsequent affidavit, "I did not make the statements I did concerning a polygraph with the ...