{
  "id": 2432802,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS E. WOLF, Defendant-Appellant",
  "name_abbreviation": "People v. Wolf",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS E. WOLF, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE STOUDER\ndelivered the opinion of the court:\nThe trial court declared a mistrial after finding that the jury was deadlocked. On retrial, a second jury convicted the defendant, Thomas E. Wolf, of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 \u2014 3). The trial court then sentenced him to five years in prison. The defendant appeals.\nOn appeal, the defendant first contends that his retrial was barred by the double jeopardy clauses of the United States and Illinois Constitutions. (U.S. Const., amend. V; Ill. Const. 1970, art. I, \u00a710.) Specifically, he argues that the trial court abused its discretion by declaring a mistrial after less than two hours of deliberations and without giving a Prim instruction to the deadlocked jury. People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.\nWhen in the trial court\u2019s opinion a jury is hopelessly deadlocked, it may properly discharge the jury. (People v. Howard (1984), 121 Ill. App. 3d 938, 460 N.E.2d 432.) In determining how long a jury should be permitted to deliberate before a mistrial is declared and the jury is discharged, no fixed time can be prescribed, and great latitude must be accorded to the trial court in the exercise of its informed discretion. (People v. Preston (1979), 76 Ill. 2d 274, 391 N.E.2d 359.) In the absence of an abuse of discretion by the trial court when it discharges a jury because of its failure to reach a verdict, reprosecution is not barred. People v. Bean (1976), 64 Ill. 2d 123, 355 N.E.2d 17.\nThe instant record shows that the defendant\u2019s original trial was declared a mistrial when the jurors agreed, under questioning from the court, that they could not reach a verdict. While the jurors had deliberated just under two hours, the foreman stated that the jury was not likely to reach a verdict and the individual jurors agreed that there was no possibility of their reaching a verdict. Under the circumstances, we find no abuse of discretion in the trial court\u2019s declaration of a mistrial. Additionally, the mere failure to give a Prim instruction to a deadlocked jury is not reversible error. (People v. Palmer (1984), 125 Ill. App. 3d 703, 466 N.E.2d 640.) Accordingly, the defendant was not placed in double jeopardy by the subsequent retrial.\nThe defendant\u2019s second argument on appeal is that the prosecutor\u2019s gross misconduct requires this court to reverse the defendant\u2019s conviction.\nThe incident in question arose out of the defendant\u2019s impeachment of a key State witness, who claimed that the defendant had admitted committing the charged crime and had stated that he gained access to the victim\u2019s residence by throwing a brick or rock through a window. Peoria police officers Dennis Galloway and Walter Jatkowski both testified for the defense that they had not found any rock or brick used to gain entry. In his closing arguments, defense counsel noted that the State had failed to produce a brick or rock from the crime scene. During his rebuttal argument, the prosecutor placed a brick on his counsel table. However, before the prosecutor made any comment concerning the brick, defense counsel objected and asked for a hearing outside the presence of the jury. After the jury was removed, defense counsel moved for a mistrial because the brick had not been introduced into evidence. The State explained that the brick was to be used as demonstrative evidence. The court denied defense counsel\u2019s motion and ordered the brick removed. After recalling the jury, the court admonished the jury that the brick had been removed, that it had nothing to do with the case, that it was not evidence, and that it was to be totally disregarded.\nInitially, the State replies that the prosecutor\u2019s conduct was not improper, because the brick could have been used as demonstrative evidence. We note that at trial the prosecutor never requested that the brick be admitted into evidence, nor did he object when the judge ordered the brick removed from sight. We therefore find the State\u2019s argument unpersuasive. Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 408 N.E.2d 1112.\nSecond, the State argues that the error was cured by the judge's immediately sustaining the defense counsel\u2019s objection and admonishing the jury to disregard the brick. Generally, a timely objection, followed by the court\u2019s sustaining the objection and instructing the jury to disregard the improper evidence, will cure the error. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) In some instances, however, the prejudicial effect of inadmissible evidence cannot be cured by the court\u2019s sustaining the objection and giving a cautionary instruction. People v. Gregory (1961), 22 Ill. 2d 601,177 N.E.2d 120.\nIn the instant case, the prosecutor displayed the brick after defense counsel noted in his closing argument that the two police officers involved in the case had testified that they never found any brick or rock which was used to gain entry. The prosecutor\u2019s displaying the brick was highly prejudicial given its connection to the defendant\u2019s impeachment of a key State witness and the fact that it occurred just prior to the jury\u2019s deliberation. Under the circumstances of this case, we find that the prejudicial effect of the prosecutor\u2019s conduct was not cured by the trial court\u2019s instructions to the jury. We further find that the error was not harmless beyond a reasonable doubt. People v. Suane (1987), 164 Ill. App. 3d 997, 518 N.E.2d 458.\nFor the foregoing reasons, we reverse the judgment of the circuit court of Peoria County and remand this cause for a new trial.\nReversed and remanded.\nWOMBACHER and HEIPLE, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE STOUDER"
      }
    ],
    "attorneys": [
      "Frank W. Ralph, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "John A. Barra, State\u2019s Attorney, of Peoria (Gary F. Gnidovec, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS E. WOLF, Defendant-Appellant.\nThird District\nNo. 3-87-0384\nOpinion filed February 3, 1989.\nFrank W. Ralph, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nJohn A. Barra, State\u2019s Attorney, of Peoria (Gary F. Gnidovec, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "1064-01",
  "first_page_order": 1086,
  "last_page_order": 1090
}