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People v. Kimble

Court of Appeals of Illinois, Second District

September 25, 2017

DAVID D. KIMBLE, Defendant-Appellant.

         Appeal from the Circuit Court of McHenry County, No. 13-CF-1123; the Hon. Sharon L. Prather, Judge, presiding.

          Michael J. Pelletier, Thomas A. Lilien, and Josette M. Skelnik, of State Appellate Defender's Office, of Elgin, for appellant.

          Patrick D. Kenneally, State's Attorney, of Woodstock (Patrick Delfino, Lawrence M. Bauer, and Aline B. Dias, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices McLaren and Jorgensen concurred in the judgment and opinion.


          ZENOFF, JUSTICE.

         ¶ 1 On January 22, 2014, a McHenry County grand jury indicted defendant, David D. Kimble, on four counts of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1) (West 2012)) against nine-year-old S.M. The indictment charged that, on four separate occasions between August and November 2013, defendant touched S.M.'s vagina over her clothing. The jury trial consumed three days. After less than three hours' deliberation, the jury communicated to the court through the bailiff that it was at an "impasse." Without notifying the State and the defense, the judge directed the bailiff to instruct the jury to continue deliberating. After a total of five hours of deliberation, with significant interruptions, the jury foreman reported in open court that the jury was still at an impasse. The court denied the State's and defendant's request to give the Prim instruction for juries in disagreement, [1] remarking that it would be "futile" to do so, and sua sponte declared a mistrial. Defendant appeals the order denying his motion to dismiss the charges on the ground that reprosecution would be barred by double jeopardy pursuant to section 3-4(a)(3) of the Criminal Code of 2012 (720 ILCS 5/3-4(a)(3) (West 2014)). We reverse.

         ¶ 2 I. BACKGROUND

         ¶ 3 Trial commenced on November 2, 2015. The evidence showed the following. S.M. lived in Wonder Lake, Illinois, with her father, Jeff, her three siblings, Jeff's girlfriend, Jen, and Jen's two children. For a time, they lived next door to defendant. Defendant and Jeff worked and socialized together. All of the children frequented defendant's home, and defendant babysat them. Even after Jeff and his family moved some distance away, the children continued to visit defendant. Defendant gave S.M. presents, including clothing, money, and a bicycle.

         ¶ 4 On December 5, 2013, Jen asked S.M. whether defendant had ever touched her inappropriately. S.M. at first was silent but then said yes. On December 10, 2013, Detective Misty Marinier interviewed S.M. at the Children's Advocacy Center (CAC) in Woodstock, Illinois. The interview was videotaped. During the interview, S.M. told Marinier that defendant touched her "privates" with his hand, and she pointed to the genital area on a chart depicting the female anatomy. S.M. told Marinier that her clothes were "usually" on when defendant touched her. Marinier testified that, according to S.M., the touching happened between two and five times, in defendant's bedroom. S.M. did not tell Marinier that defendant held her down or that he pulled down her pants. According to Marinier, children sometimes disclose more after they have been formally interviewed.

         ¶ 5 S.M., 11 years old at the time of trial, testified that defendant pushed her onto his bed, removed her clothes, and rubbed her "bad spot" approximately 10 times. She did not remember when it happened, but she recalled that it was still daylight, and it always occurred in defendant's bedroom. S.M. testified that she did not tell Marinier that defendant removed her clothes. She testified that she was not comfortable talking to Marinier.

         ¶ 6 Anne Huff, the principal at S.M.'s school, testified that she interviewed Jen's daughter, Brooklyn, and then spoke to S.M. because Brooklyn told Huff that defendant had "snuggled" with her.

         ¶ 7 The parties stipulated that S.M. was interviewed by the State's Attorney's victim witness coordinator, Kelly Gallagher, on October 30, 2015. Assistant State's Attorneys Sharyl Eisenstein and John Gibbons were also present. S.M. told them that defendant had touched her over her clothes approximately 10 times. S.M. denied that defendant ever touched her under her clothes. S.M. stated that she was confused when she told the prosecutors the previous week that defendant touched her under her clothes. S.M. also stated on October 30, 2015, that defendant held her down and that her clothes were both "on" and "off." S.M. then said in that interview that, because she was embarrassed to talk about it, she told them that her clothes were on.

         ¶ 8 Brooklyn, age nine at the time of trial, testified that she knew "Dave, " but she did not see him in the courtroom. Brooklyn testified that "Dave" knelt beside her and rubbed his hand over her upper thigh when she was on his bed.

         ¶ 9 Detective Michelle Asplund testified that she interviewed defendant on December 11, 2013. During the three-hour interview, defendant repeatedly denied any wrongdoing. The State rested. The court denied defendant's motion for a directed verdict, and defendant rested without presenting evidence.

         ¶ 10 On November 5, 2015, the jury began deliberating at 10:50 a.m. The jurors asked to watch the tape of Marinier's CAC interview with S.M. again. The time of that request is not noted in the record. The video of the interview was replayed for the jury in the courtroom at 1:40 p.m. The jurors returned to the jury room at 2:15 p.m.

         ¶ 11 At 4:25 p.m., the foreman sent a note to the judge: "Dear Judge Prather, after deliberating for 5 hours and despite our best efforts, we are at an empasse [sic]." After receiving this communication, the judge convened defense counsel and the State. The record does not show whether defendant was present. The judge disclosed the note, and she also disclosed that the jury had earlier indicated to her, through her bailiff, that it was at an "impasse." She divulged that she had instructed the bailiff to tell the jury to continue deliberating. According to the judge, that ex parte communication occurred "shortly after" the jury rewatched Marinier's CAC interview with S.M. Now, the judge suggested that she inquire whether further deliberation would help. She noted that she was willing to ask if the jurors would like to go home, sleep on it, and return the next morning. When the State wondered whether the judge's questions would elicit multiple responses, the judge stated: "I'll inquire of the foreperson." Defense counsel agreed to that procedure. The judge then acquiesced to the State's request to follow up on the foreman's answers with arguments outside the jury's presence on how next to proceed.

         ¶ 12 The jurors returned to the courtroom, and the judge asked the foreman how long the jury had been at an impasse. He replied, "[p]retty much a good part of the day. Four and a half hours or five hours." He indicated that "some numbers changed here and there, but we were stuck at a certain proportion" for the last three hours. The judge asked if it would do any good to go home and "sleep on it" and continue deliberations the next day. The foreman stated: "I asked that question, and it was indicated that it would not [do any good]." The judge asked: "It would not?" The foreman replied: "No, ma'am." The jury then returned to the jury room.

         ¶ 13 The State and defense counsel both asked the judge to give the Prim instruction and to bring the jury back for further deliberations the following morning. The judge responded: "I am fearful, folks, if I do that, you're going to have some extremely angry jurors. *** There has been [sic] some very loud voices back there for a period of time. I think it would be futile to do that. Therefore, I would decline." The prosecutor said: "Understood, Judge." Defense counsel did not respond. The judge then excused the jurors and declared a mistrial. The State asked for another trial date. Defense counsel requested a status date.

         ¶ 14 On December 4, 2015, defendant filed a motion to dismiss the charges on the ground that reprosecution was barred by double-jeopardy principles. Defendant argued that, as he and the prosecution had both requested the court to give the Prim instruction and to order further deliberation, there was no "manifest necessity" to declare a mistrial. The court found that a manifest necessity existed and denied the motion. Defendant filed a timely appeal.

         ¶ 15 II. ANALYSIS

         ¶ 16 Defendant contends that the court abused its discretion in denying his motion to bar retrial where the trial judge's ex parte communication with the jury caused the conditions that led to the mistrial. The State argues that defendant consented or acquiesced to the mistrial or, alternatively, that there was a manifest necessity to declare the mistrial because the jury was hopelessly deadlocked. We review the denial of a ...

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