{ "id": 2588173, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DIRK PARKER et al., Defendants-Appellants", "name_abbreviation": "People v. Parker", "decision_date": "1990-08-27", "docket_number": "No. 1-88-1551", "first_page": "454", "last_page": "466", "citations": [ { "type": "official", "cite": "202 Ill. App. 3d 454" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "293 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927327 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0550-01" ] }, { "cite": "280 N.E.2d 697", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "51 Ill. 2d 17", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392168 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-2d/51/0017-01" ] }, { "cite": "254 N.E.2d 496", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "44 Ill. 2d 161", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2889949 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/44/0161-01" ] }, { "cite": "449 U.S. 117", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11715584 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/449/0117-01" ] }, { "cite": "97 S. 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Ct.", "year": 1980, "opinion_index": 0 }, { "cite": "432 U.S. 23", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176310 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/432/0023-01" ] }, { "cite": "372 U.S. 734", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765418 ], "weight": 3, "pin_cites": [ { "page": "736" }, { "page": "102" }, { "page": "1034" } ], "opinion_index": 0, "case_paths": [ "/us/372/0734-01" ] }, { "cite": "456 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189962 ], "weight": 9, "pin_cites": [ { "page": "672" }, { "page": "422" }, { "page": "2087" }, { "page": "679" }, { "page": "426-27" }, { "page": "2091" }, { "page": "679" }, { "page": "426-27" }, { "page": "2091" } ], "opinion_index": 0, "case_paths": [ "/us/456/0667-01" ] }, { "cite": "437 U.S. 82", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177769 ], "weight": 6, "pin_cites": [ { "page": "93" }, { "page": "76" }, { "page": "2195" }, { "page": "93" }, { "page": "75-76" }, { "page": "2195" } ], "opinion_index": 0, "case_paths": [ "/us/437/0082-01" ] }, { "cite": "431 N.E.2d 853", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11063825 ], "opinion_index": 0, "case_paths": [ "/ne2d/431/0853-01" ] }, { "cite": "88 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082713 ], "weight": 3, "pin_cites": [ { "page": "508" }, { "page": "510" }, { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0502-01" ] }, { "cite": "504 N.E.2d 96", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "115 Ill. 2d 369", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3179708 ], "year": 1981, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0369-01" ] }, { "cite": "100 S. 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Ed. 2d", "opinion_index": 0 }, { "cite": "444 U.S. 940", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11398048, 11397889, 11398117, 11398374, 11397991, 11398184, 11398319, 11398255, 11398098, 11398231, 11398138 ], "opinion_index": 0, "case_paths": [ "/us/444/0940-03", "/us/444/0940-01", "/us/444/0940-05", "/us/444/0940-11", "/us/444/0940-02", "/us/444/0940-07", "/us/444/0940-10", "/us/444/0940-09", "/us/444/0940-04", "/us/444/0940-08", "/us/444/0940-06" ] }, { "cite": "387 N.E.2d 325", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "74 Ill. 2d 527", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994098 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/74/0527-01" ] }, { "cite": "410 N.E.2d 8", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "81 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481175 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/81/0384-01" ] }, { "cite": "177 N.E.2d 230", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "22 Ill. 2d 563", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2789613 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/22/0563-01" ] }, { "cite": "473 N.E.2d 536", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "130 Ill. 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DIRK PARKER et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE MANNING\ndelivered the opinion of the court:\nThe defendants, Dirk Parker and Darryl Jackson, were charged by information with aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, pars. 12\u201414(a)(1), (a)(4)), aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, pars. 10\u20142(a)(3), (a)(5)), and armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A\u20142). The defendants were also charged with the lesser included offenses of criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12\u201413(a)), kidnapping (Ill. Rev. Stat. 1985, ch. 38, pars. 10\u20141(a)(3), (a)(2)), and aggravated unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10\u20143(a)).\nThe defendants filed a motion to dismiss the charge on the grounds of double jeopardy. The trial court granted the motion, and the State appeals from the order of dismissal pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)). The facts pertinent to this appeal are set forth below.\nThis matter was originally set for trial on November 18, 1987, before Judge Matthew J. Moran after numerous continuances. On that date, both sides answered ready; however, Judge Moran was presiding over another jury trial which was due to be completed the following day. The assistant State\u2019s Attorney requested that the case be set for November 30, 1987, which he added was the last day of the term. Judge Moran expressed a reluctance to set the case on the last day of the term and suggested that jury selection began on November 25, 1987, the day before the Thanksgiving recess. Defense counsel objected to beginning jury selection on that day, contending that the delay between the selection of the jury and the presentation of evidence would be detrimental and unfair to the defendants due to the holiday recess. The State then agreed with the judge, and, thereafter, an exchange of words took place between defense counsel and the court, as set forth below:\n\u201cMR. BLAIR [defense attorney]: We are ready for trial. We demand trial, jury trial.\nTHE COURT: What\u2019s the State\u2019s position?\nMR. RONKOWSKI [Assistant State\u2019s Attorney]: Last day of the term is the 30th.\nTHE COURT: Well, this jury is going out tomorrow morning, so they will be out by 1:00 o\u2019clock. Is the State saying we can hold it on call?\nMR. KONCZAL [Assistant State\u2019s Attorney]: The problem is if we picked a jury tomorrow we wouldn\u2019t be able to start testimony until Thursday. We would really suggest the 30th to the Court, the last date of the term.\nTHE COURT: I hate to set the last date of the term.\nMR. KONCZAL: I asked counsel to go by agreement to that date.\nTHE COURT: I checked with the jury commissioner, and he sees no problem with picking a jury on the 25th even though there will be no court on the 26th or 27th.\n* * *\nMR. BLAIR: The defendants here are on trial, and to pick a jury and to have them hanging over the weekend without any evidence coming to them I think would be fortuitous to say the least.\n* * *\nTHE COURT: All right. I disagree. The jury is not going to be sequestered. It\u2019s not going to hear any evidence on the date it\u2019s picked. All we\u2019re going to do is pick the jury and start the testimony on the next open court date.\nMR. BLAIR: Which would be the 30th.\nTHE COURT: Which would be Monday, the 30th.\nMR. BLAIR: Well, Judge, let\u2019s start at 6:00 o\u2019clock in the morning on the 30th.\nMR. KONCZAL: I\u2019ll go by agreement with him. I\u2019m not trying to put counsel in a bind. Whatever counsel wants is fine.\nTHE COURT: Your last date of the term is the 30th.\nMR. KONCZAL: Actually it may be the 29th. I would rather pick on the 25th as Your Honor has suggested.\nTHE COURT: They are ready to go on the 30th, but they just told me the term may run on the 28th or 29th. So I don\u2019t want to get myself in that situation.\nMR. BLAIR: The term doesn\u2019t run on the 28th or 29th. The term runs on the 30th. I spent the last 20 minutes counting the term. They spent time counting the term. At least that\u2019s the way it appears to me.\nTHE COURT: I think the Court is responsible too when matters are not properly brought to trial, and I like to see justice done in the courtroom and not individuals convicted or acquitted on technicalities, and I\u2019m not going to be a part of that. I\u2019ll set this for the 25th for picking of the jury. If you come in that day and for any good reason do not want to pick the jury until the 30th, I\u2019ll set it motion defendant to pick it on the 30th, but I\u2019m not going to take a chance on miscalculation.\nMR. BLAIR: Judge, I think that you are now abusing \u2014 by that procedure you\u2019re abusing the defense for the benefit of the prosecution, and you\u2019ve just told me\u2014\nTHE COURT: Sir-\nMR. BLAIR: You just told me that you do not intend to abuse either side.\nTHE COURT: That\u2019s true, sir.\nMR. BLAIR: You said you do not want them to lose the case on a technicality.\nTHE COURT: I don\u2019t want any case decided on a technicality.\nMR. BLAIR: Then you ask me to pick a jury\u2014\nTHE COURT: I resent your remarks, sir.\nMR. BLAIR: Judge, I can understand that. I can understand your resenting them. I resent what is about to happen to my clients. These poor fellows here are before you for justice. We are only asking for the same fairness that you give to the State.\nTHE COURT: Sir, I resent your remark that I give justice only to the state\u2019s attorneys or prosecutors, and I do not give justice to defendants that appear before me.\nMR. BLAIR: I didn\u2019t say that.\nTHE COURT: That\u2019s your implication, sir, and I resent that, and I don\u2019t care if you\u2019re going to be head of the top bar association of this state. You are a man well respected, and I\u2019ve respected you, sir, up until the last few minutes\u2014\nMR. BLAIR: You don\u2019t respect me anymore?\nTHE COURT: I do respect you, sir, but I do not respect the remark that you just made that I do not render justice to defendants, and I\u2019m not about to render justice to your clients. I resent that remark.\nMR. BLAIR: May we have the record read so that the Court can see that what it\u2019s saying is not what I said? May we have the record read? Would you please read back my remarks \u2014 [?]\nTHE COURT: Sir, I have a jury in the back and I intend to proceed with that case. Now if I\u2019ve offended you, I do so unintentionally, but you have offended me, sir. I\u2019m requesting to hold this case on trial on call everyday until we\u2019re ready if that suits your convenience. Otherwise I\u2019m going to set it for the 25th for picking a jury. I can pick a jury on this case tomorrow afternoon. If we\u2019re not free or if you\u2019re not free, we\u2019ll hold it on call day-to-day. I have other cases on the call everyday, but I\u2019ll set those aside if you feel that I\u2019m taking advantage of you or your clients.\nMR. BLAIR: Well, Judge, that procedure \u2014 I\u2019m not talking about the Court, and I think it\u2019s unfair to the defendants for the Court to take the remarks that I have made and become disturbed with the case because they are the ones on trial; I\u2019m not, Judge.\nTHE COURT: I\u2019m not disturbed with the defendants. I am disturbed with the remarks you made. I\u2019m not disturbed with the two defendants. I don\u2019t know them at all. I do know you, sir, and I respect you, and I am surprised you could make such a remark.\nMR. BLAIR: How can I respond if you never let me tell you what I\u2019m saying, Judge? I said to you that I believe it would be unfair to these defendants to have the case set for the 25th. I stand on that.\nI hope the fact that I have been or am an officer of the Chicago Bar doesn\u2019t work against my clients. I never mentioned it. Your Honor says that because of that I should understand this or thus. I certainly have no special feeling or feel that I have any special benefit that accrues to me. Indeed I\u2019m more humble under the circumstances than I would be otherwise, but I say to you, Your Honor, to set that case on the 25th, the jury would go out the night of the 25th \u2014 .\nTHE COURT: The jury would not go out the 25th. The jury would be excused.\nMR. BLAIR: They would go home.\nTHE COURT: That\u2019s right, and instructed to come back on the 30th. I can\u2019t see how the defendants or the State would be prejudiced by that procedure.\nMR. BLAIR: They will spend the weekend talking about aggravated sexual assault, Judge, and everybody will be giving them their opinions about what aggravated sexual assault is. That\u2019s the basis.\nTHE COURT: If you think the jury is going to disregard the admonitions of the Court, I would allow you to make appropriate motions on the 30th or make an inquiry of whether they discussed the case in violation of the Court\u2019s order, but I can\u2019t assume the jurors are going to violate the Court\u2019s instructions over the Thanksgiving holiday period, sir. If the parties cannot agree on a date, as I indicated I\u2019m concerned about the fourth term matters, and I will set it order of Court for picking of jury on the 25th.\nMR. BLAIR: May we have the record reflect that the defendants object?\nTHE COURT: The record will so show. Counsel\u2019s trial demands will also show.\nMR. BLAIR: Thank you, Judge.\nMR. RONKOWSKI: Is that motion State?\nTHE COURT: That will be order of court.\u201d\nThe judge persisted in setting November 25, 1987, as the date on which the jury would be selected.\nOn November 25, 1987, defense counsel arrived at the courtroom approximately one hour late and explained to the court that there were some preliminary matters to be addressed. Judge Moran stated that he would excuse the venire for lunch. Before excusing them for lunch, he administered the oath to them to truthfully answer questions put to them and explained that the jury selection would take place that afternoon. Defense counsel was present during this proceeding. He did not interpose an objection to that swearing of the jury-\nAfter the venire was excused for lunch, defendants presented a motion for substitution of judge based on prejudice which they contend surfaced during the colloquy which took place between defense counsel and Judge Moran on November 18, 1987. At that time the court had scheduled the trial date as November 25, 1987, over counsel\u2019s objection. The prosecution objected to the motion on the basis of lack of notice. Defense counsel then pointed out to the court that the motion was timely filed and should be heard by another judge. Judge Moran responded that he had called Judge Phillip Carey, the supervising judge who generally heard such motions, and neither he nor any other judge in the criminal division was in the building. He believed all of the judges had left for the day, it being the day before Thanksgiving. Judge Moran stated that he would rule on the motion when court reconvened at 1 p.m.\nUpon reconvening, Judge Moran commented that a notice of motion was not presented to the court or the State. He then proceeded to review the allegations contained in the motion, vehemently denied the allegations, stated that the motion was not supported by a transcript, and that he deemed it to be frivolous and dilatory. He concluded, therefore, that pursuant to case law he was authorized to rule on a frivolous and dilatory motion for substitution of judge without the need to assign it to a different judge for resolution. However, while the record reveals that Judge Moran made these observations about the merits of the pending motion, neither the half sheet nor the transcription reveals that he denied the motion or otherwise ruled on it. Rather, he advised counsel that the motion was deficient in form and substance and agreed to send it to another judge the following Monday if the deficiencies were corrected by then. While the record is not crystal clear on what deficiencies the judge alluded to, it appears that he made reference to the fact that the motion was unaccompanied by a transcript of the November 18 hearing as well as counsel\u2019s failure to serve a notice of motion upon the prosecution. The judge also agreed to defer swearing the jury or taking testimony until a ruling was made by another judge on the motion for substitution of judge.\nJudge Moran, however, proceeded with jury selection, and as each panel was selected, contrary to what he had agreed to do, administered the oath to them to try the issues. The record does not reflect that defense counsel objected to the swearing of the array. The judge then dismissed them for the weekend. Hence, at the time the jury was empaneled, there was pending before the court a motion for substitution of judge.\nNext, defense counsel served the State with a notice of motion for substitution of judge to be heard on November 30, 1987. On that date, the same motion and affidavit which had been previously filed were assigned to Judge Carey, who allowed defendant a one-day continuance to obtain the November 18, 1987, transcript. Judge Moran submitted his own counteraffidavit as well as a transcript of those proceedings occurring on November 25,1987.\nFinally, on December 1, 1987, Judge Carey heard arguments on the motion. After reviewing the motion, affidavits and the transcripts of the colloquy between Judge Moran and defense counsel, Judge Carey commented that the statement made by Judge Moran that \u201che didn\u2019t care if [defense counsel] was the president of the Chicago Bar Association\u201d was indicative of hostility. He then ruled that although the record did not indicate that Judge Moran \u201cwould not give a fair and impartial trial *** the best interest of justice would be served by assigning this case out to another judge for disposition.\u201d In any event, the motion for substitution was allowed and the case reassigned to Judge Romie J. Palmer. The prosecution and defendants ultimately agreed to an order declaring a mistrial and dismissing the jury empaneled by Judge Moran. The case was then continued to January 20, 1988, for the purpose of setting a new trial date.\nOn February 10, 1988, the defendants filed a motion to dismiss based on double jeopardy, and an amended motion, affidavit, and memorandum of law were filed on March 14, 1988. Defense counsel argued that Judge Moran\u2019s conduct constituted judicial overreaching which resulted in a mistrial after jeopardy had attached. After hearing argument on the motion, on April 18, 1988, Judge Palmer concluded that Judge Moran\u2019s actions of continuing with and concluding the jury selection process after defense counsel had filed a motion for substitution of judge constituted grounds for double jeopardy. He granted defendants\u2019 motion to dismiss. On appeal, we are called upon to determine whether the trial court properly concluded that defendants\u2019 trial was barred based on double jeopardy.\nThe double jeopardy clauses of the United States and Illinois Constitutions protect a criminal defendant from being put twice in jeopardy for the same offense. (U.S. Const, amend. V; Ill. Const. 1970, art. I, \u00a710; United States v. Dinitz (1976), 424 U.S. 600, 606, 47 L. Ed. 2d 267, 273, 96 S. Ct. 1075, 1079.) This protection has been codified as section 3\n\u201c(a) prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:\n* * *\n(3) [w]as terminated improperly after the jury was impaneled and sworn ***.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 3\u20144(a)(3).\nA defendant is placed in jeopardy when the defendant goes to trial whether the trier of fact is a jury or a judge. (United States v. Jorn (1971), 400 U.S. 470, 479, 27 L. Ed. 2d 543, 553, 91 S. Ct. 547, 554; People v. Williams (1984), 130 Ill. App. 3d 11, 14, 473 N.E.2d 536.) However, in a jury trial jeopardy attaches when the jury is sworn, and in a nonjury trial jeopardy attaches when the first witness is sworn. (See People v. Friason (1961), 22 Ill. 2d 563, 177 N.E.2d 230; People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8.) In the present case, a mistrial was declared after the jury was sworn by Judge Moran. Therefore, jeopardy had attached. In People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 387 N.E.2d 325, cert, denied (1979), 444 U.S. 940, 62 L. Ed. 2d 306, 100 S. Ct. 292, the court held that the determination of whether a second trial is permissible after jeopardy has attached must be made on a case-by-case basis depending on the particular factual matrix at issue.\nA different analysis is required in considering this issue where a mistrial has been declared on defendant\u2019s motion or with his consent as opposed to when it is granted over his objection. Defendants concede that they consented to the dismissal of the jury. It is their contention, however, that such consent was coerced by judicial overreaching and hence retrial is prohibited.\nThe court in Jorn (400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547) set forth the standard to be applied where a defendant requests a mistrial or consents to a mistrial. (People v. Camden (1987), 115 Ill. 2d 369, 377, 504 N.E.2d 96; People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 508, 431 N.E.2d 853.) The Jorn court held:\n\u201c[Wjhere circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant\u2019s motion is necessitated by prosecutorial or judicial error.\u201d Jorn, 400 U.S. at 485, 27 L. Ed. 2d at 556, 91 S. Ct. at 557.\nIn many instances mistrials are requested by defendants even though the perceived error which necessitated the request was committed by the judge. (United States v. Scott (1978), 437 U.S. 82, 93, 57 L. Ed. 2d 65, 76, 98 S. Ct. 2187, 2195.) However, when a motion for mistrial is presented under those circumstances the defendant is considered to have made an election to forgo his right to have his guilt or innocence determined before the first trier of fact. Scott, 437 U.S. at 93, 57 L. Ed. 2d at 75-76, 98 S. Ct. at 2195.\nIn light of the holding in United States v. Jorn, a retrial of a defendant is not precluded unless it can be shown that the circumstances which brought about the defendant\u2019s motion for a mistrial were attributable to prosecutorial or judicial overreaching or to bad-faith conduct and not simply because a judicial error occurred. (Orenic, 88 Ill. 2d at 510.) Therefore, the circumstances under which the defendant can base a double jeopardy claim to bar a second effort to try him are specifically limited to situations in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. (Oregon v. Kennedy (1981), 456 U.S. 667, 672, 72 L. Ed. 2d 416, 422, 102 S. Ct. 2083, 2087.) Once a defendant has succeeded in aborting the first trial either by agreement or on his own motion, he may only raise the bar of double jeopardy where the government conduct is intended to \u201cgoad\u201d the defendant into moving for a mistrial. Oregon, 456 U.S. at 679, 72 L. Ed. 2d at 426-27, 102 S. Ct. at 2091.\nIn the present case, the record reflects that Judge Moran was steadfast in his resolve to select the jury on the eve before Thanksgiving, November 25. He asserted that his concern was not to wait until the last day of the term. Once defense counsel began advocating his reasons for seeking either to try the case on a date certain before the 25th of November or on the Monday following the holiday, the judge\u2019s comments suggest that he was offended by counsel\u2019s plea to him to render justice to the defendants on the same plane as to the State. It was during such a colloquy that the court negatively referred to the defense counsel\u2019s position with the Chicago Bar Association. It was during this colloquy that defendants contend the court\u2019s hostility and prejudice came to their attention. Consequently, on the trial date of the 25th of November, defendants sought a substitution of judge pursuant to the statutory provision for cause. (See Ill. Rev. Stat. 1985, ch. 38, par. 114\u20145.) While the court rejected the motion as being \u201cfaulty in form and substance\u201d and defendants viewed this as a denial, such fact is not clear from the record. The court stated the following:\n\u201cThe court feels this motion is clearly frivolous and clearly dilatory ***. Again, the court reiterates that this motion is faulty in form and in substance. If counsel desires to represent this motion on Monday when the supervising judge will be in the building, the court will entertain the new and amended motion and assign it to Judge Carey for hearing before this jury is finally sworn and before testimony is heard. There is no way the court can assign this to a criminal court judge at this time of the afternoon, on November 25. At this time the court intends to proceed and select a jury in this case.\u201d\nThe U.S. Supreme Court articulated an exposition on what constitutes judicial or prosecutorial overreaching in Dinitz (424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075). The court stated:\n\u201cIt bars retrials where \u2018bad-faith conduct by judge or prosecution],\u2019 United States v. Jorn (1971), 400 U.S. 470, 485, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 557, threatens the \u2018[h]arrassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict\u2019 the defendant.\u201d (Dinitz, 424 U.S. at 611, 47 L. Ed. 2d at 276, 96 S. Ct. at 1081, quoting Downum v. United States (1963), 372 U.S. 734, 736, 10 L. Ed. 2d 100, 102, 83 S. Ct. 1033, 1034.)\nThe kind of error contemplated by this discussion is that which was \u201cintended to provoke\u201d the mistrial or \u201cmotivated by bad faith or undertaken to harass or prejudice\u201d the petitioner. Lee v. United States (1977), 432 U.S. 23, 53 L. Ed. 2d 80, 97 S. Ct. 2147; United States v. DiFrancesco (1980), 449 U.S. 117, 66 L. Ed. 2d 328,101 S. Ct. 426.\nEven if we were to conclude that the trial judge\u2019s conduct did constitute judicial overreaching, we do not consider this the kind of factual circumstance which bar reprosecution on double jeopardy grounds. Our supreme court, as previously noted, has held that the rule barring reprosecution of cases is rather limited. The overreaching must either be done for the purpose of provoking a mistrial in order to secure a second \u2014 and perhaps more favorable \u2014 opportunity to convict the accused or be motivated by bad faith or undertaken to harass or prejudice the accused. The record is devoid of any evidence that the court\u2019s intention was to provoke a mistrial. Additionally, the record suggests that the judge\u2019s actions were motivated by his sincere but mistaken belief that the term was about to expire and as a judicial officer it was his belief that the prevention of such an occurrence was his responsibility. It is well established that a motion for substitution of judge constitutes a delay attributable to the movant, and hence, tolls the 120-day provision of the \u201cspeedy trial\u201d statute. (People v. Lee (1969), 44 Ill. 2d 161, 254 N.E.2d 496; People v. Bombacino (1972), 51 Ill. 2d 17, 280 N.E.2d 697; People v. Zuniga (1973), 53 Ill. 2d 550, 293 N.E.2d 595.) In the case at bar the \u201cspeedy trial\u201d statute was tolled on November 25, when defendants filed their motion for substitution of judge.\nAdditionally, the court\u2019s pronouncement that the defendants\u2019 motion was faulty in form and substance, assuming it referred to the lack of notice and the transcript, was in error since the case was on the trial call, and hence, there was no necessity to provide a notice of motion. (See Cook County Circuit Court Rule 203.) Neither does the statutory provision for substitution of judge require that a motion be accompanied by a transcript. (Ill. Rev. Stat. 1987, ch. 38, par. 114\u2014 5(c).) The only requirement is that it be accompanied by an affidavit, which it was. The record when reviewed in totality reveals that the comments made by both defense counsel and the court oftentimes misstated and/or misconstrued what the other one said. The court\u2019s injudicious remark regarding counsel\u2019s position with the bar association was unfortunate. However, such a remark was not crucial to the issues in this case. The judge was obviously irritated because he felt his comments were being misstated. Consequently, after reviewing the record and circumstances of this case, we cannot conclude that the judge\u2019s conduct was \u201cintended to goad\u201d the defendants into moving for a mistrial. Oregon, 456 U.S. at 679, 72 L. Ed. 2d at 426-27, 102 S. Ct. at 2091.\nWhen Judge Moran failed to initially assign the motion to a different judge and continued with jury selection, he appeared to be genuinely concerned about setting a case on the last day of the term and wanting to expeditiously dispose of the matter. Further, defense counsel in conjunction with the prosecution stipulated to a mistrial. Even if Judge Moran committed an error, during the November 18, and November 25, 1987, proceedings, \u201c[m]ere error by a trial court does not amount to \u2018judicial overreaching\u2019 so as to bar the reprosecution of a defendant who has requested a mistrial.\u201d Orenic, 88 Ill. 2d at 511; Dinitz, 424 U.S. at 611, 47 L. Ed. 2d at 276, 96 S. Ct. at 1081.\nAccordingly, upon a thorough review of the facts in this case, we hold that Judge Moran\u2019s actions did not constitute judicial overreaching nor did the evidence reveal that his conduct was intended to abort the trial or provoke defense counsel into moving for a mistrial. Judge Palmer entered an order dismissing the jury impaneled by Judge Moran resulting in a mistrial based on a stipulated agreement between defense counsel and the prosecution.\nWe further conclude, therefore, that under the facts of this case, the double jeopardy clause does not bar the reprosecution of the defendants. As noted above, although there may have been judicial error as well as injudicious and improper remarks, the facts do not bear out that the trial court deliberately undermined the integrity of the first proceeding.\nAccordingly, for the foregoing reasons, the judgment of the circuit court of Cook County is reversed and this cause is remanded for trial.\nReversed and remanded.\nBUCKLEY, P.J., and O\u2019CONNOR, J., concur.\nThe half sheet reflects that on November 25, 1987, \u201cPP, both defts on bond motion for substitution of judge filed ms nolle prosse counts 13 thru 28 and 30 thru 33 ... twelve jurors and two alternates accepted and sworn to try the issue on 11-30-87.\u201d\nThe transcription reveals that not only was the jury selected, but it was sworn to try the issues.\ndefendants, however, state in their motion to dismiss that they construed his actions to be a denial of the motion.", "type": "majority", "author": "JUSTICE MANNING" } ], "attorneys": [ "Cecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund and Sara Dillery Hynes, Assistant State\u2019s Attorneys, of counsel), for the People.", "Blair, Russell & Cole, of Chicago (Chester L. Blair, of counsel), for appellees." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DIRK PARKER et al., Defendants-Appellants.\nFirst District (1st Division)\nNo. 1\u201488\u20141551\nOpinion filed August 27, 1990.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund and Sara Dillery Hynes, Assistant State\u2019s Attorneys, of counsel), for the People.\nBlair, Russell & Cole, of Chicago (Chester L. Blair, of counsel), for appellees." }, "file_name": "0454-01", "first_page_order": 476, "last_page_order": 488 }