{ "id": 2879847, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY C. ROCHE, Defendant-Appellant", "name_abbreviation": "People v. Roche", "decision_date": "1994-03-03", "docket_number": "No. 2-92-1414", "first_page": "194", "last_page": "200", "citations": [ { "type": "official", "cite": "258 Ill. App. 3d 194" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "808 F.2d 1260", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1369242 ], "pin_cites": [ { "page": "1265" } ], "opinion_index": 0, "case_paths": [ "/f2d/808/1260-01" ] }, { "cite": "74 Ill. 2d 527", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994098 ], "year": 1987, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0527-01" ] }, { "cite": "845 F.2d 739", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10546819 ], "pin_cites": [ { "page": "743-44" } ], "opinion_index": 0, "case_paths": [ "/f2d/845/0739-01" ] }, { "cite": "234 Ill. App. 3d 880", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5188852 ], "pin_cites": [ { "page": "897" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0880-01" ] }, { "cite": "437 U.S. 28", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177204 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "36" }, { "page": "32" }, { "page": "2161" } ], "opinion_index": 0, "case_paths": [ "/us/437/0028-01" ] }, { "cite": "115 Ill. 2d 369", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3179708 ], "pin_cites": [ { "page": "378-79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0369-01" ] }, { "cite": "437 U.S. 82", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177769 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "99" }, { "page": "79" }, { "page": "2198" } ], "opinion_index": 0, "case_paths": [ "/us/437/0082-01" ] }, { "cite": "155 Ill. 2d 549", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4809938 ], "year": 1978, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0549-01" ] }, { "cite": "194 Ill. 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App. 3d", "case_ids": [ 5297653 ], "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0079-01" ] }, { "cite": "151 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292149 ], "year": 1991, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0001-01" ] }, { "cite": "400 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047837 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "481" }, { "page": "554" }, { "page": "555" }, { "page": "485" }, { "page": "557" }, { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/us/400/0470-01" ] }, { "cite": "249 Ill. App. 3d 904", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5410240 ], "pin_cites": [ { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/0904-01" ] }, { "cite": "146 Ill. 2d 324", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597309 ], "year": 1993, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0324-01" ] }, { "cite": "424 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027140 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "606" }, { "page": "273" }, { "page": "1079" }, { "page": "606" }, { "page": "273" }, { "page": "1079" } ], "opinion_index": 0, "case_paths": [ "/us/424/0600-01" ] } ], "analysis": { "cardinality": 687, "char_count": 12532, "ocr_confidence": 0.777, "pagerank": { "raw": 8.03744537477404e-08, "percentile": 0.46578294719112967 }, "sha256": "649c60f2025ee1a8a649adacf79ada49dd348cff2664daec78cc672f640e1c51", "simhash": "1:1ea801c67611efdf", "word_count": 2145 }, "last_updated": "2023-07-14T22:48:59.357066+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. TIMOTHY C. ROCHE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PECCARELLI\ndelivered the opinion of the court:\nDefendant, Timothy Roche, was indicted on one count of reckless homicide (Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 3(a) (now 720 ILCS 5/9 \u2014 3(a) (West 1992))). After the State had presented the bulk of its evidence at trial, the trial court declared a mistrial. The State proceeded to reprosecute defendant for the same offense. Defendant now appeals the trial court\u2019s refusal to dismiss the indictment on double jeopardy grounds. Defendant claims that the mistrial was not the result of manifest necessity and that the trial court granted it without defendant\u2019s consent.\nOn July 22, 1990, eight-year-old Michael Grimm was killed after the van his father was driving collided with the car that defendant was driving. The State charged defendant with reckless homicide in connection with Michael\u2019s death. Defendant has provided only a portion of the trial record. What defendant has supplied reveals that the following relevant events took place at defendant\u2019s trial. Rose Alfonso, a medical technologist, testified for the State on September 16, 1992, concerning defendant\u2019s blood tests. The following exchange took place before the jury while defendant\u2019s attorney was cross-examining Alfonso concerning conversations that she had with the prosecutor prior to trial:\n\"MR. BEADERSTADT [Prosecutor]: Objection, your Honor. This goes to case preparation ***.\n* * *\nMR. WILSON [Defense attorney]: I would like to ask her if she had [spoken with the prosecutor],\nTHE COURT: Well, then ask her that. Don\u2019t ask \u2014 Don\u2019t ask her a lot of other questions.\nI\u2019ll permit that question.\nMR. WILSON: All right. Thank you Judge.\nBY MR. WILSON:\nQ. Did you have any conversation with anybody about the testimony that you would give before you came here today?\nA. Yes.\nQ. With whom?\nA. Mr. Beaderstadt.\nQ. When did you have that conversation?\nA. I started talking to him Monday night.\nQ. Where?\nA. He went to SmithKline Laboratories.\nQ. And what did you tell him, and what did he tell you?\nMR. BEADERSTADT: Objection, your Honor.\nTHE COURT: Sustained.\nJesus Christ. He has a right to talk to the witness before she testifies.\u201d\nThe prosecutor subsequently withdrew the objection, and defendant\u2019s attorney began to elicit the desired testimony. After defendant\u2019s attorney questioned Alfonso for a period of time about her conversation with the prosecutor, the prosecutor made another objection. The trial judge then sent the jury out, and the following exchange took place:\n\"MR. WILSON: Very quickly, your Honor, this is a violation of discovery. They didn\u2019t disclose that they went to this witness and obtained new information, that they talked to them by telephone and obtained new information.\nI also want to make on the record [szc] that loud and clear the judge said Jesus Christ, and he said it right in this courtroom. I heard it over the microphone, and that I so strong object [szc] to that that the jury hears your Honor\u2019s voice.\nTHE COURT: I didn\u2019t. When did I say Jesus Christ?\nMR. WILSON: You said it, Judge. You may not have known it, but you said it. And this \u2014 I\u2019ll imitate you. Jesus Christ. That\u2019s what you said. And I call a mistrial, because if a jury hears a judge say that, not only is it improper for a judge to use the name of Jesus Christ in a courtroom as a swear word\u2014\nTHE COURT: I don\u2019t believe I\u2014\nMR. WILSON: For a jury to hear that is an outrage. I heard it. It was clear. And I am not deaf, Judge. And I am not making this just to make an issue of it. It\u2019s an outrage.\nMR. BEADERSTADT: Your Honor, the only documents that we\u2014\nTHE COURT: Well, I\u2014\nMR. WILSON: I\u2019m sorry if you didn\u2019t realize it.\nTHE COURT: I now have another problem. Did you hear me say it?\nTHE CLERK: I haven\u2019t heard anything except back and forth. I have not.\nMR. WILSON: And I don\u2019t do it to cause you trouble, Judge, but you did say it. You said Jesus Christ, and it came over the microphone.\nMR. BEADERSTADT: I didn\u2019t hear it.\nTHE CLERK: I didn\u2019t hear it.\u201d\nRather than rule immediately on defendant\u2019s motion for a mistrial, the trial judge resumed his discussion of defendant\u2019s attorney\u2019s discovery objection. The trial judge then ordered the jury to be brought back in, and the parties finished questioning Ms. Alfonso. The prosecutor then stated that its last witness would be present in the morning. The trial judge excused the jury, the parties argued over the admission of certain evidence, and the trial court recessed for the day. Defendant states in his brief that he obtained an immediate transcript of the proceedings to confirm that the judge had said \"Jesus Christ,\u201d although no mention of this appears in the record.\nWhen court reconvened on the following morning, before the jury was brought in, defendant\u2019s attorney voiced some evidentiary objections. The trial court reserved ruling on those objections. After the jury was present, the trial court made the following statement:\n\"Before we begin, ladies and gentlemen, the Court is going to\u2014 has something it wishes to say. And I\u2019m sorry it comes at this point, but it does.\nThe Court has considered the last several days of the trial and what\u2019s been going on here. The Court has reached the conclusion that it has really never been in control of this trial. And having not been in control of the trial, the Court necessarily has had^ some problems, and this may or may not affect this trial and may affect the manner in which your decision is made. I cannot take that chance.\nSo, under the circumstances, a motion has been made for a mistrial.\n* * *\nThe Court now declares a mistrial. And with that I will tell the jury you don\u2019t have to talk to anybody about anything that\u2019s gone on here, whether it be here to counsel on either side or the press or anybody else. It\u2019s up to you. You may talk to them if you wish. You don\u2019t have to if you don\u2019t want to. I will also tell you that this decision on my part came after much consideration last evening and this morning. You are dismissed.\u201d\nThe trial judge then recused himself from any further proceedings in the case and reassigned it to another judge.\nDefendant subsequently moved to dismiss the indictment on the ground that a second prosecution would subject him to double jeopardy. The trial court denied defendant\u2019s motion. Defendant then took an interlocutory appeal to this court pursuant to Supreme Court Rule 604(f) (134 Ill. 2d R. 604(f)).\nDefendant argues on appeal that, although it is highly improper and constitutes a lack of judicial temperament for a judge to swear in court, the conduct of the trial judge in this case did not constitute manifest necessity for a mistrial. Defendant further argues that, although he moved for a mistrial on the second-to-last day of the trial, that motion was not pending when the trial court granted the mistrial. Therefore, according to defendant, he did not consent to the mistrial. He also claims that his attorney had no opportunity to object to the mistrial because his attorney was so surprised by the trial judge\u2019s actions and because the trial judge left the courtroom before defendant\u2019s attorney had the opportunity to object to a mistrial.\nThe fifth amendment provides, in part, that no person shall be \"subject for the same offence to be twice put in jeopardy of life or limb.\u201d (U.S. Const., amend. V.) The double jeopardy clause protects a defendant from \"multiple punishments or repeated prosecutions for the same offense.\u201d United States v. Dinitz (1976), 424 U.S. 600, 606, 47 L. Ed. 2d 267, 273, 96 S. Ct. 1075, 1079; see also People v. Stefan (1992), 146 Ill. 2d 324, 333; People v. Mauricio (1993), 249 Ill. App. 3d 904, 906.\nA second prosecution after a mistrial implicates not only a defendant\u2019s right to be free from double jeopardy but also his right to have his trial completed by a particular tribunal. (Dinitz, 424 U.S. at 606, 47 L. Ed. 2d at 273, 96 S. Ct. at 1079.) Therefore, where a trial court grants a mistrial sua sponte, a second prosecution is permissible only if \"manifest necessity\u201d existed for the mistrial. (United States v. Jorn (1971), 400 U.S. 470, 481, 27 L. Ed. 2d 543, 554, 91 S. Ct. 547, 555; People v. Oritz (1992), 151 Ill. 2d 1, 11.) Manifest necessity only exists when \" 'the ends of public justice would not be served by a continuation of the proceedings.\u2019 \u201d People v. Pondexter (1991), 214 Ill. App. 3d 79, 83, quoting Jorn, 400 U.S. at 485, 27 L. Ed. 2d at 557, 91 S. Ct. at 557.\nOn the other hand, a defendant\u2019s request for, or acquiescence in, a mistrial will generally remove any bar to reprosecution unless the conduct of the judge or prosecutor was calculated to provoke the defendant to move for a mistrial. (Oregon v. Kennedy (1982), 456 U.S. 667, 679, 72 L. Ed. 2d 416, 426-27, 102 S. Ct. 2083, 2091; People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 509; People v. Gustafson (1990), 194 Ill. App. 3d 910, 916.) \" '[T]he Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.\u2019 \u201d (People v. Mulcahey (1993), 155 Ill. 2d 549, 557, quoting United States v. Scott (1978), 437 U.S. 82, 99, 57 L. Ed. 2d 65, 79, 98 S. Ct. 2187, 2198.) Furthermore, a defendant\u2019s failure to object to the trial court\u2019s sua sponte grant of a mistrial generally constitutes acquiescence in the mistrial. People v. Camden (1987), 115 Ill. 2d 369, 378-79.\nThere is no dispute that jeopardy attached in this case after the jury was empaneled. (Crist v. Bretz (1978), 437 U.S. 28, 36, 57 L. Ed. 2d 24, 32, 98 S. Ct. 2156, 2161; People v. Wright (1992), 234 Ill. App. 3d 880, 897.) Nonetheless, we conclude that the mistrial was attributable to defendant because defendant had moved for a mistrial on the previous day. The record reflects that defendant strenuously argued for a mistrial late in the day on September 16 because the trial judge had exclaimed \"Jesus Christ\u201d in front of the jury. At that time, the judge denied having said \"Jesus Christ,\u201d and he made no attempt to rule on defendant\u2019s motion. Defendant\u2019s attorney neither pressed the trial court for a ruling nor withdrew his motion for a mistrial. The following morning, the trial judge ordered a mistrial. He claimed to have given the matter much thought over the previous evening. Although the judge did not specifically refer to the previous day\u2019s exclamation, he did refer to defendant\u2019s motion for a mistrial. He also referred to numerous problems that he felt had besieged the trial.\nIt is apparent from the trial judge\u2019s statements and from the timing of his declaration of the mistrial that the trial judge based his decision to declare a mistrial at least in part on defendant\u2019s earlier motion. We acknowledge that the trial court did not grant defendant\u2019s motion for a mistrial immediately. Rather, he considered the matter overnight and declared a mistrial the following morning. Very little happened in the trial between defendant\u2019s motion and the trial court\u2019s declaration of a mistrial. This is not a case where the defendant moved for a mistrial and the trial judge declared a mistrial several days later on different grounds. (See Lovinger v. Circuit Court of the 19th Judicial Circuit (7th Cir. 1988), 845 F.2d 739, 743-44.) Furthermore, there is no suggestion that either the prosecutor or the trial judge intended to cause a mistrial. \"Mere error by a trial court does not amount to 'judicial overreaching\u2019 so as to bar the reprosecution of a defendant who has requested a mistrial.\u201d (Roberts, 88 Ill. 2d at 511; see also People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 535.) Therefore, defendant\u2019s argument that he did not consent to the mistrial is unpersuasive. (See United States v. Buljubasic (7th Cir. 1987), 808 F.2d 1260, 1265.) Because we conclude that defendant requested the mistrial, we need not determine whether his failure to object to the mistrial constituted acquiescence in it. We also need not consider whether manifest necessity existed for the mistrial.\nThe judgment of the circuit court of McHenry County is affirmed.\nAffirmed.\nDOYLE and COLWELL, JJ., concur.", "type": "majority", "author": "JUSTICE PECCARELLI" } ], "attorneys": [ "Robert Steven Wilson, of Sycamore, for appellant.", "Gary W. Pack, State\u2019s Attorney, of Woodstock (William L. Browers, Robert J. Biderman, and Elliott Turpin, all 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. TIMOTHY C. ROCHE, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 92\u20141414\nOpinion filed March 3, 1994.\nRehearing denied April 15, 1994.\nRobert Steven Wilson, of Sycamore, for appellant.\nGary W. Pack, State\u2019s Attorney, of Woodstock (William L. Browers, Robert J. Biderman, and Elliott Turpin, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0194-01", "first_page_order": 214, "last_page_order": 220 }