{ "id": 2500782, "name": "The People of the State of Illinois, Plaintiff-Appellant, v. Ben Phillips, Defendant-Appellee", "name_abbreviation": "People v. Phillips", "decision_date": "1975-05-23", "docket_number": "No. 60678", "first_page": "529", "last_page": "535", "citations": [ { "type": "official", "cite": "29 Ill. App. 3d 529" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "395 U.S. 784", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771730 ], "weight": 3, "pin_cites": [ { "page": "794" } ], "opinion_index": 0, "case_paths": [ "/us/395/0784-01" ] }, { "cite": "372 U.S. 734", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765418 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/us/372/0734-01" ] }, { "cite": "410 U.S. 458", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957586 ], "weight": 6, "pin_cites": [ { "page": "469" }, { "page": "434" }, { "page": "471" }, { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/us/410/0458-01" ] }, { "cite": "367 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1785585 ], "weight": 3, "pin_cites": [ { "page": "368" }, { "page": "904" } ], "opinion_index": 0, "case_paths": [ "/us/367/0364-01" ] }, { "cite": "93 L.Ed. 974", "category": "reporters:federal", "reporter": "L. Ed.", "pin_cites": [ { "page": "978" } ], "opinion_index": 0 }, { "cite": "336 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3939222 ], "weight": 3, "pin_cites": [ { "page": "689" }, { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/us/336/0684-01" ] }, { "cite": "6 L.Ed. 165", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 1421261 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/22/0579-01" ] }, { "cite": "400 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047837 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/us/400/0470-01" ] } ], "analysis": { "cardinality": 773, "char_count": 14568, "ocr_confidence": 0.72, "pagerank": { "raw": 1.2856936366392723e-07, "percentile": 0.6186518982380826 }, "sha256": "788d3a5c6615ffad8db936d6ae62e1fc444d9e82b5f398f1d6c4f3d153692bde", "simhash": "1:36821fe32a05a897", "word_count": 2371 }, "last_updated": "2023-07-14T17:27:57.823802+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellant, v. Ben Phillips, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE SULLIVAN\ndelivered the opinion of the court:\nThe State appeals from an order sustaining defendant\u2019s motion to dismiss, contending a mistrial had been properly ordered and that it was error to bar a second trial.\nDefendant was charged with the offense of contributing to the sexual delinquency of a child. (Ill. Rev. Stat. 1973, ch. 38, par. 11\u20145(a)(3).) The complaint was signed by Charles Payne, father of the alleged victim, Leslie Payne. It appears that because of technical problems with the recording equipment, the official transcript of proceedings on January 31, 1974, is incomplete. We note from the record here, however, that after a motion to continue was denied a bench trial commenced and the witnesses were sworn, following which the court entered the rule of exclusion but allowed Charles Payne to remain in the courtroom. The State then called Leslie Payne as its first witness. She was sworn and, as she began her testimony, defense counsel asked for a competency hearing. The court then asked her several questions, from which it was determined that she was 15 years old and in second year high school. The transcript ends after these preliminary questions by the court, allegedly the result of a tape malfunction. It does appear, however, that later on January 31, 1974, over defendant\u2019s objection, the trial judge recused himself and declared a mistrial.\nThe case was next called for trial on April 4,1974, before another judge, at which time defendant moved for dismissal on the ground that he had previously been placed in jeopardy on the charge in question. It was then determined that the tape of the January 31 proceedings was, in fact, incomplete and the parties agreed to attempt a reconstruction of the record thereof. Thereafter, the State filed, apparently without objection, a bystander\u2019s record which consisted of a statement by the first trial judge as to the proceedings on January 31, 1974. The following pertinent portions of this statement concerned matters occurring in the morning of January 31, 1974, before the trial commenced:\n\u201cThat in the course of the hearing on the question of another continuance for the People, a number of persons who were gathered around the bench made various remarks to the bench, including the arresting officers. These people, especially the said Charles C. Payne, and arresting officers, expressed displeasure with the Court for insisting on a thorough hearing before deciding the question of another continuance.\n[O]n many occasions throughout said hearing, Charles Payne made a number of remarks which were inaudible to the court but which appeared to elicit approving smiles from those spectators around him.\nThat on one occasion the said Charles Payne, turning to the gentleman standing next to him before the bench, said \u2018Is he fixed?\u2019, making direct reference to and turning his head in the direction of the Court.\nThat on still another occasion during the hearing, the said Charles Payne, the complaining witness, did say, again alluding to the Court, \u2018He ought to disqualify himself\u2019, his facial expression reflecting utter disrespect and contempt.\nThat on many other occasions the said Charles Payne, the complaining witness, made other belittling and degrading remarks and jesticulations, i.e., while pointing his finger at the Court, said (in answer to a question put to him by the petitioner), \u2018Are you calling me a liar, Judge\u2019?\nThat your petitioner represents that these remarks, and more, were heard and understood by your petitioner and that he, in the interest of justice, chose to ignore same, denied the State\u2019s motion for another continuance and ordered the case held for trial.\u201d\nOther aspects of the statement were concerned with what had occurred in the afternoon, after the trial commenced and the witnesses had been sworn, as follows:\n\u201cThat the attorney for the defendant moved the Court to conduct a competency hearing as to the State\u2019s first witness, Leslie Payne, the daughter of the complaining witness.\nThat while the Court was conducting the competency hearing the aforesaid Charles Payne did again make insulting outcries, to wit: \u2018Why are you asking her those dumb questions, Judge? She\u2019s not on trial here. There is the guilty man\u2019, or words to that effect.\nUpon resumption of the competency hearing, Charles Pqyne did again interrupt the proceedings and made derogatory remarks concerning justice or lack of it in these courts and \u2018can\u2019t get a fair trial in this court\u2019.\nWhereupon the Court imposed upon the State\u2019s Attorney Stanley Wilcox to request that his witness remain silent and upon his failure to so act, the Court admonished the complaining witness to the effect that it would not tolerate any further interruptions by him.\nYour petitioner further represents that the presence of the aforesaid Charles Payne, together with some ten friends and relations of the complaining witness, sitting and standing in the chambers, appeared to the Court to encourage the said Charles Payne to play the gallery\u2019 thereby attempting to make a complete mockery of this Court.\nFinally, your petitioner, upon due deliberation, and considering the remarks made by the complaining witness Charles Payne in the a.m., together with the utterances and interruptions during the actual trial in the p.m., did in the interest of fair and impartial justice, recuse itself and declare a mistrial.\u201d\nJudge Breen, presiding at the second trial, having the benefit of the incomplete transcript, the bystander\u2019s record, and after having heard arguments, granted defendant\u2019s motion to dismiss, and the State appeals that ruling.\nOpinion\nThe Fifth Amendment to the Federal Constitution provides that \"* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *.\u201d Article 1, section 10 of the Illinois Constitution of 1970 states that \u201cNo person shall * \u201c * be twice put in jeopardy for the same offense.\u201d The Illinois Criminal Code implements this protection as follows:\n\u201cA prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:\n(3) Was terminated improperly * * * in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts \u00b0 Ill. Rev. Stat. 1973, ch. 38, par. 3\u20144(a).\nIn order to interpret these constitutional rights and their codification in our Criminal Code, we turn to the United States Supreme Court\u2019s decisions in similar cases. That court has recognized that the double jeopardy clause is designed to protect persons accused of crimes from being forced to go through a trial more than once. (United States v. Jorn, 400 U.S. 470, 27 L.Ed.2d 543, 91 S.Ct. 547.) However, a mistrial is not a bar to a second prosecution when manifest necessity or the interests of public justice require it. (United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165.) As the court stated in Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974, 978, if the double jeopardy clause barred a retrial in every case where a mistrial had to be declared, \"* * \u201d the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again.\u201d\nThus, we must determine whether the mistrial here was manifestly necessary or required in the interests of public justice. Initially, we note that the trial court is to exercise sound discretion in deciding whether a mistrial ought to be declared (Perez, supra), concerning which it was stated in Perez, at page 580: \u201c* * * the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; \u201d and in Gori v. United States, 367 U.S. 364, 368, 6 L.Ed.2d 901, 904, 81 S.Ct. 1523, that it can be used \u201c* * * for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision.\u201d\nIn Illinois v. Somerville, 410 U.S. 458, 469, 35 L.Ed.2d 425, 434, 93 S.Ct. 1066, the court said that Jorn, supra, involved a situation where \u201c* * * there was no manifest necessity\u2019 for the mistrial, as opposed to less drastic alternatives.\u201d Reading Somerville\u2019s interpretation of Jorn together with Downum v. United States, 372 U.S. 734, 10 L.Ed.2d 100, 83 S.Ct. 1033, it appears that if means short of aborting the trial will relieve the difficulty, a mistrial is not \"manifestly necessary.\u201d In Downum, the trial court declared a mistrial because a key government witness could not be located; in Jorn, the trial court aborted the- trial to allow the government\u2019s witnesses to consult their attorneys concerning possible self-incrimination by their testimony against the defendant. In both cases the Supreme Court, suggesting that a continuance rather than a mistrial could have resolved the problem, found that there was no \u201cmanifest\u201d (Jorn, at 487) or \u201cimperious\u201d (Downum, at 736) necessity to declare the mistrial and that therefore the double jeopardy clause barred reprosecution. In Somerville, by contrast, the indictment was fatally defective and could not be amended; further, the defect could not be waived by defendant\u2019s failure to object and, being jurisdictional, it could be attacked at any time by a writ of habeas corpus or a post-conviction petition. Thus, any guilty verdict would have been vulnerable to reversal. In these circumstances, the court held that:\n\u201c[Wjhere the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant\u2019s interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice.\u201d 410 U.S. 458, 471, 35 L.Ed.2d 425, 435.\nIt would seem that where the original trial is sufficiently flawed or defective that a conviction would probably be reversed on appeal, public justice requires that a mistrial be declared. On the other hand, if the problem could have been adequately corrected short of aborting the proceeding, such that a guilty verdict would be reasonably supportable on appeal, neither manifest necessity or the ends of public justice require a mistrial, and the granting thereof, being improper, bars further prosecution as violative of the double jeopardy clause.\nThe order declaring the mistrial in this case gave no clear reasons therefor. The bystander\u2019s record of the first trial judge, after recounting the remarks and conduct of Payne and other persons in court, as set forth above, states only the following as cause for the mistrial:\n\u201c20. Finally, your petitioner, upon due deliberation, and considering the remarks made by the complaining witness Charles Payne in the a.m., together with the utterances and interruptions during the actual trial in the p.m., did in the interest of fair and impartial justice, recuse itself and declare a mistrial.\u201d\nWe cannot say that this statement demonstrates the manifest or imperious necessity which the cases discussed above require to justify a mistrial. Whatever the effect of Payne\u2019s conduct on the proceedings, it seems clear that this case presents an analog to the situations in Jorn and Downum, supra, in that the irregularity which occurred here could have been corrected without aborting the trial. Payne could have been ex-eluded from the courtroom, held in contempt, or both. Indeed, as stated in 14A I.L.P. \u00a7 505 (1968):\n\u201cA trial judge has ample power to enforce order in the courtroom and it is his duty to do so * * * spectators should not be permitted to manifest their prejudice or partisanship * * * and, if such conduct is repeated after a warning by the court, necessary means should be resorted to to preserve order.\" (Footnotes omitted.)\nFurthermore, since the attacks on the judge began before the trial commenced, there was sufficient opportunity to control the behavior and restore a proper judicial atmosphere before the point in the trial at which jeopardy had attached. The entire problem before us, in short, could have been avoided, and both the State and defendant could have been given a fair and orderly trial if action had been taken before any witness was sworn.\nWe do not, of course, question that judge\u2019s good faith belief that he was required to recuse himself, but we think that the Standards of Judicial Conduct (Ill. Rev. Stat. 1973, ch. 110A, par. 61 et seq.) promulgated by the Illinois Supreme Court, indicate a different course of conduct. \u201cIt is the duty of a judge to hear and decide all matters regularly assigned to him except in those cases in which he has a conflict of interest.\u201d (Ill. Rev. Stat. 1973, ch. 110A, par. 61(c)(7).) Those standards make clear that the judge\u2019s duty in cases such as this one is to hear and decide, impartially and fairly, the case assigned to him, refusing to be influenced or biased, or even to give tire appearance of having been influenced or biased, rather than to recuse himself. Following that course would have preserved the defendant\u2019s \u201cvalued right to have his trial completed by a particular tribunal\u201d (Wade, 336 U.S. 684, 689) and would also have maximized efficient administration of criminal justice.\nFinally, from the record presented, we cannot say that Payne\u2019s remarks and conduct would have required a verdict of guilty to be reversed on appeal, thereby frustrating the ends of public justice. (See Somerville, supra.) Indeed, absent a specific statement of how Payne\u2019s behavior affected the fairness or impartiality of the trial, we have no way of knowing whether the judge recused himself and declared the mistrial simply to avoid further difficulties with Payne. For all of these reasons, we conclude that the mistrial was neither manifestly necessary nor in the interests of public justice, and double jeopardy therefore bars reprosecution. The order dismissing this cause is therefore affirmed.\nAffirmed.\nBARRETT, P. J., and DRUCKER, J., concur.\nThe Federal Constitution\u2019s prohibition against double jeopardy is binding on the States by virtue of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 23 L.Ed.2d 707, 89 S.Ct. 2056.", "type": "majority", "author": "Mr. JUSTICE SULLIVAN" } ], "attorneys": [ "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and John F. Brennan, Assistant State\u2019s Attorneys, of counsel), for appellant.", "Dominic P. Gentile, of Barrington and Chicago, for appellee." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellant, v. Ben Phillips, Defendant-Appellee.\n(No. 60678;\nFirst District (5th Division)\nMay 23, 1975.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and John F. Brennan, Assistant State\u2019s Attorneys, of counsel), for appellant.\nDominic P. Gentile, of Barrington and Chicago, for appellee." }, "file_name": "0529-01", "first_page_order": 553, "last_page_order": 559 }