Where jury selection began while waiting for the State’s witnesses to appear, but, when it was time to swear the jury, the State said that it would not participate and the jury was sworn, but the case was dismissed, jeopardy did not attach and the order was appealable—remand for setting of date for trial at which the proper written procedures for continuances should be followed.
Rehearing denied May 28, 2013
Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County, the Hon. Timothy Q. Sheldon, Judge, presiding.
Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, and Alan D. Goldberg, Deputy Defenders, and Darren E. Miller, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
Lisa Madigan, Attorney General, of Springfield, and John A. Barsanti, State’s Attorney, of Geneva (Michael A. Scodro, Solicitor General, and Michael M. Glick and Karl R. Triebel, Assistant Attorneys General, of Chicago, of counsel), for the People.
JUSTICE FREEMAN delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion. Justice Burke dissenting, with opinion.
¶ 1 This appeal presents the sole issue of whether the State may appeal from an order of the circuit court of Kane County denying its motion to continue trial and directing a verdict in favor of defendant, Esteban Martinez. The appellate court answered this question in the affirmative. For the reasons that follow, we affirm the judgment of the appellate court.
¶ 2 BACKGROUND
¶ 3 On August 9, 2006, defendant was indicted for committing aggravated battery (720 ILCS 5/12-4(a) (West 2010)) and mob action (720 ILCS 5/25-1(a)(1) (West 2010)) against Avery Binion and Demarco Scott. Defendant was arraigned on November 9, 2006.
¶ 4 The record reflects that between the time of arraignment in November 2006 and the date of defendant's trial in May 2010, a series of continuance motions was filed by both defendant and the State for various reasons. The instant appeal revolves around occurrences that took place on defendant's trial date of May 17, 2010. At 8:30 a.m., defendant's case was called for jury trial. At that time, the following colloquy occurred between the court, the prosecutor and defense counsel:
"THE COURT: This cause is set for jury trial this morning. It is 8:30, the time in which we are scheduled to start.
[The Prosecutor]: Yes, your Honor. At this time the State is not ready. We would be asking for a continuance even just for a few moments, or if we could have just a little bit longer to see if our witnesses are arriving. They are not here yet. I am hopeful that they will be here today.
THE COURT: Well, here's what I can do for you. I don't wish to wait all morning long for these people to stroll in, but I will allow us to get started, but I won't swear the panels until I have a whole jury. How is that?
[The Prosecutor]: Yes, your honor. If we could not swear them, and before swearing them if I could have a momentary recess.
THE COURT: What I'll do is we'll pick a panel, send them back, pick the next panel, send them back, pick the last panel, send them back, pick your alternate or alternates, send them back. I'll give you ten minutes, bring them out and swear them in or move to dismiss your case if you wish.
[The Prosecutor]: Thank you, your honor.
[Defense Counsel]: Judge, for the record, I am objecting, I'm asking for a continuance. My client is not present yet. I certainly would ask for a short period of time if my continuance is not granted for him to be present before selecting the jury due to the prejudice that will occur even if he arrives late. That's my request, Judge.
THE COURT: Motion denied. As soon as the jury is up, we're going to start."
¶ 5 After this exchange, the parties proceeded to select a jury. Upon conclusion of that process, the following exchange occurred:
"THE COURT: Counselors, I'm going to call all the cases that I had scheduled on my docket, which will give you a little extra time. Have your witnesses arrived?
[The Prosecutor]: No, your Honor, and the State does have a motion to continue that we would like to file with you.
THE COURT: Yes. Come on forward. All right. The People have filed a motion to continue.
[The Prosecutor]: Your Honor, it is now 10:06. We have not seen the victim in this case, Demarco Scott, or another victim, Avery Binion, both witnesses. We are unable to proceed without them, and we would be asking for a continuance.
THE COURT: Have you sent the police to knock on their door?
[The Prosecutor]: I believe we've been checking on that and unable to locate them as of now. They also have cases that are up before your Honor this morning.
THE COURT: Yes, they have. And I will call People versus Avery Binion, Jr., 10 CC 20 [and] People versus Demarco Scott, 10 CC 19. You have service on both these gentlemen?
[The Prosecutor]: Mr. Scott, I believe, was served some time ago. They both did appear last week in court, were given court orders to appear today.
THE COURT: Okay. Anything further you would like to say on your motion to continue?
[The Prosecutor]: No, your Honor.
THE COURT: Defense?
[Defense Counsel]: Judge, we certainly are objecting to any continuance[.]
THE COURT: I will make these findings: The case before the court began on July 7, 2006. In two months we will then be embarking upon half a decade of a pending Class 3 felony. Avery Binion, Jr., and Demarco S[cott] are well known in Elgin, both are convicted felons. One would believe that the Elgin Police Department would know their whereabouts. They were ordered to be in court today. The Court will issue body writs for both of these gentlemen.
In addition, the State's list of witnesses indicates twelve witnesses. Excluding Mr. Scott and Mr. Binion, that's ten witnesses. The Court would anticipate that it would take every bit of today and most of tomorrow to get through ten witnesses. By then the People may have had a chance to execute the arrest warrant body writs for these two gentlemen.
The Court will deny the motion for continuance. I will swear the jury in in 15, 20 minutes. Perhaps you might want to send the police out to find these two gentlemen."
¶ 6 The court then took a brief recess. When the proceedings resumed, the ...