{ "id": 5260880, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VIRGIL L. BOAZ, Defendant-Appellant", "name_abbreviation": "People v. Boaz", "decision_date": "1991-12-26", "docket_number": "No. 5\u201490\u20140213", "first_page": "363", "last_page": "367", "citations": [ { "type": "official", "cite": "222 Ill. App. 3d 363" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "99 S. Ct. 122", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "58 L. Ed. 2d 133", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "439 U.S. 837", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11362918, 11363114, 11362795, 11362672, 11363473, 11363377, 11363025, 11363574, 11363193, 11363288, 11363673, 11363775 ], "opinion_index": 0, "case_paths": [ "/us/439/0837-03", "/us/439/0837-05", "/us/439/0837-02", "/us/439/0837-01", "/us/439/0837-09", "/us/439/0837-08", "/us/439/0837-04", "/us/439/0837-10", "/us/439/0837-06", "/us/439/0837-07", "/us/439/0837-11", "/us/439/0837-12" ] }, { "cite": "371 N.E.2d 1109", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 575", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3415094 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0575-01" ] }, { "cite": "398 N.E.2d 80", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 1061", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5603975 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/1061-01" ] }, { "cite": "105 S. Ct. 2677", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "86 L. Ed. 2d 695", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "471 U.S. 1136", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6402530, 6401987, 6402762, 6401707, 6401868, 6401613, 6402094, 6402639, 6402415, 6402194, 6402331, 6401790 ], "opinion_index": 0, "case_paths": [ "/us/471/1136-10", "/us/471/1136-05", "/us/471/1136-12", "/us/471/1136-02", "/us/471/1136-04", "/us/471/1136-01", "/us/471/1136-06", "/us/471/1136-11", "/us/471/1136-09", "/us/471/1136-07", "/us/471/1136-08", "/us/471/1136-03" ] }, { "cite": "467 N.E.2d 1112", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 1028", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3597536 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/1028-01" ] }, { "cite": "437 U.S. 28", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177204 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/us/437/0028-01" ] }, { "cite": "515 N.E.2d 337", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "162 Ill., App. 3d 468", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3508315 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/162/0468-01" ] }, { "cite": "372 U.S. 734", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765418 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/372/0734-01" ] }, { "cite": "437 U.S. 28", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177204 ], "weight": 3, "pin_cites": [ { "page": "35" }, { "page": "31" }, { "page": "2161" } ], "opinion_index": 1, "case_paths": [ "/us/437/0028-01" ] } ], "analysis": { "cardinality": 478, "char_count": 7960, "ocr_confidence": 0.764, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1570543301945403 }, "sha256": "defa8a61b9fb23022d47aaad76d0ddc7040d4312030c27973dfa7ba4f561b6b0", "simhash": "1:b2170498c8038e4e", "word_count": 1361 }, "last_updated": "2023-07-14T18:31:20.627609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VIRGIL L. BOAZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOWERTON\ndelivered the opinion of the court:\nDefendant was convicted of aggravated criminal sexual assault. (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 14(b)(1).) He appeals on two grounds: (1) that he was twice placed in jeopardy for the same offense; and (2) that he was deprived of a fair trial because the State and one of its witnesses violated an order in limine by referring to prior incidents between defendant and victim. We affirm.\nThe bill of indictment stated that on or about March 5, 1989, defendant knowingly committed an act of sexual penetration by placing his mouth on the penis of a 13-year-old boy. Before trial, defendant filed a bill of particulars (Ill. Rev. Stat. 1989, ch. 38, pars. 114\u2014 2(b), 111 \u2014 6), requesting the State to disclose the exact time and date of the offense charged. March 30, 1989, was the date the State gave, a date different from that of the indictment.\nFour months later, prospective jurors were assembled, voir dire was conducted, and the State\u2019s Attorney, defendant\u2019s counsel and the circuit judge recessed to chambers to select 12 jurors and one alternate. Before recessing, however, the judge told the prospective jurors that they were free to break for lunch. After lunch, the names of the persons selected were announced. Eleven jurors and one alternate were sworn. The twelfth juror, whose name had been announced, had not yet returned from lunch, and so had not yet been sworn. Before the twelfth juror returned, defendant moved to confine the State to prove the allegations as specified in the bill of particulars, namely that the offense occurred on March 30, 1989, not March 5, 1989. The State moved to amend, but defendant argued that the State could not amend because the trial had already begun. (See Ill. Rev. Stat. 1989, ch. 38, par. 114 \u2014 2.) The circuit court ruled that since only 11 jurors had been sworn, the twelfth having not yet returned from lunch, the trial had not yet begun, and the court granted the State leave to amend. Defendant moved for a mistrial. The circuit court granted it but ruled that jeopardy had not attached and that defendant was subject to retrial.\nJeopardy attaches in a jury trial once the jury is impaneled and sworn. (Crist v. Bretz (1978), 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156; Ill. Rev. Stat. 1989, ch. 38, par. 3 \u2014 4(a)(3).) Defendant claims that jeopardy attached because 12 jurors \u2014 11 jurors and an alternate \u2014 were sworn. We disagree. While it is true that 11 jurors and an alternate were sworn, and that the 11 and the alternate could have constituted a valid jury (see People v. Campbell (1984), 126 Ill. App. 3d 1028, 467 N.E.2d 1112, cert, denied (1985), 471 U.S. 1136, 86 L. Ed. 2d 695, 105 S. Ct. 2677), the jury in this case, in fact, had not been impaneled and sworn. The circuit judge, when informed that the twelfth juror was still at dinner, stated, \u201cWhen he comes back from dinner he will be on the jury.\u201d Jeopardy would not have attached until the twelfth juror had been sworn. (Crist v. Bretz (1978), 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156.) Therefore, the circuit court\u2019s ruling that defendant was subject to retrial was not error.\nDefendant alternatively seeks a new trial arguing that the State denied him a fair trial by violating the circuit court\u2019s order in limine, which barred the State from making \u201cany reference to or presenting any evidence concerning similar incidents.\u201d\nDuring opening argument the State\u2019s Attorney stated:\n\u201c[The victim] will tell you that on one occasion when he was over [at defendant\u2019s house], and he believes it to have been 1987, he was over there at defendant\u2019s house playing the video games and so forth and that was one of the occasions that he stayed all night with the defendant, he will tell you that when he stayed overnight with the defendant at times he slept most the time in the bedroom with the defendant Virgil Boaz. He \u2022will tell you that he was sleeping on defendant\u2019s bed, sometime in 1987, that he was awakened by the defendant, Virgil Boaz \u2014 .\u201d\nDefendant\u2019s counsel objected, requested a side bar, and argued that any comment about an incident in 1987 violated the order in limine. The State\u2019s Attorney argued that the in limine order only covered incidents with other victims and not incidents with this victim. The court sustained the objection, told the State\u2019s Attorney that the order in limine barred comment of other incidents with this victim, and instructed the jury to disregard the statements about incidents in 1987.\nLater, the State examined an investigator from the Department of Children and Family Services. The investigator testified that during his investigation, he showed the victim a calendar and asked him when was \u201cthe last time that anything had happened.\u201d Again defense counsel objected; the circuit court sustained it and instructed the witness not to \u201cuse any phraseology \u2018the last time\u2019 or \u2018last occurrence\u2019 or anything like that.\u201d\nDefendant claims that these violations of the order in limine deprived him of a fair trial and warrant a new trial. We disagree. While it is true that violations of an order in limine may be reversible error (Shehy v. Bober (1979), 78 Ill. App. 3d 1061, 398 N.E.2d 80), a new trial is not always warranted where such errors do not unduly affect the result. (Verdonek v. Freeding (1977), 56 Ill. App. 3d 575, 371 N.E.2d 1109, cert, denied (1978), 439 U.S. 837, 58 L. Ed. 2d 133, 99 S. Ct. 122.) Here, defense counsel\u2019s objection interrupted the State\u2019s Attorney\u2019s opening statement and prevented the jury from hearing anything about 1987. In addition, the circuit court instructed the jury to disregard any comment about 1987 and instructed the jury at the conclusion of the trial not to consider opening remarks as evidence. Moreover, any prejudice from the investigator\u2019s comments fades when compared with the overwhelming evidence against defendant.\nThe circuit court is affirmed.\nAffirmed.\nHARRISON, J., concurs.", "type": "majority", "author": "JUSTICE HOWERTON" }, { "text": "JUSTICE CHAPMAN,\nconcurring in part and dissenting in part:\nI agree with the majority\u2019s disposition as to the in limine issue; however, I believe the defendant was exposed to double jeopardy in violation of the constitution. Contrary to the position taken by the majority, the jury was impaneled and sworn. It has long been established that jeopardy attaches when the jury is impaneled and sworn. Crist v. Bretz (1978), 437 U.S. 28, 35, 57 L. Ed. 2d 24, 31, 98 S. Ct. 2156, 2161; Downum v. United States (1963), 372 U.S. 734, 10 L. Ed. 2d 100, 83 S. Ct. 1033.\nSection 115 \u2014 4(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 4) provides that the jury shall consist of 12 members. The record is clear that during jury-selection proceedings 12 jurors and one alternate were selected by name. When the person selected to be juror number 12 did not return from lunch, the juror\u2019s oath was simultaneously administered to the 11 \u201cregular\u201d jurors and the alternate. The record does not show that any distinction between the 11 and the alternate was made in administering the oath. Assuming prospective juror number 12 had not returned from lunch, or was otherwise not sworn in as a juror, the trial judge could have proceeded with the trial using the 12 jurors who had already taken the juror\u2019s oath. (See People v. Harvey (1987), 162 Ill., App. 3d 468, 515 N.E.2d 337.) Jeopardy attaches when the jury is impaneled and sworn. Jeopardy had attached.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE CHAPMAN," } ], "attorneys": [ "Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Don Sheafor, State\u2019s Attorney, of Vandalia (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, and M. Keith Smith, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VIRGIL L. BOAZ, Defendant-Appellant.\nFifth District\nNo. 5\u201490\u20140213\nOpinion filed December 26,1991.\nCHAPMAN, J., concurring in part and dissenting in part.\nDaniel M. Kirwan and Larry R. Wells, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nDon Sheafor, State\u2019s Attorney, of Vandalia (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, and M. Keith Smith, of counsel), for the People." }, "file_name": "0363-01", "first_page_order": 383, "last_page_order": 387 }