{ "id": 1096646, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS E. STREET, Defendant-Appellant", "name_abbreviation": "People v. Street", "decision_date": "2000-09-07", "docket_number": "No. 4-98-1035", "first_page": "205", "last_page": "213", "citations": [ { "type": "official", "cite": "316 Ill. App. 3d 205" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "400 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047837 ], "weight": 9, "year": 1971, "pin_cites": [ { "page": "484" }, { "page": "556" }, { "page": "557" }, { "page": "485" }, { "page": "557" }, { "page": "557" }, { "page": "487" }, { "page": "558" }, { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/us/400/0470-01" ] }, { "cite": "431 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "356" }, { "page": "356" }, { "page": "356" } ], "opinion_index": 0 }, { "cite": "88 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082713 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "507" }, { "page": "507-08" }, { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0502-01" ] }, { "cite": "434 U.S. 497", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185127 ], "weight": 6, "year": 1978, "pin_cites": [ { "page": "503" }, { "page": "726" }, { "page": "829" }, { "page": "503" }, { "page": "727" }, { "page": "829" } ], "opinion_index": 0, "case_paths": [ "/us/434/0497-01" ] } ], "analysis": { "cardinality": 854, "char_count": 17800, "ocr_confidence": 0.745, "pagerank": { "raw": 1.576615762448346e-07, "percentile": 0.6796353764254209 }, "sha256": "e7bb8cda095114d90e9f056e96e5c5fa88768e2ce035115ab5fcb6fb5648cec3", "simhash": "1:333cb5a0c943a892", "word_count": 2930 }, "last_updated": "2023-07-14T16:10:00.608787+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. THOMAS E. STREET, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MYERSCOUGH\ndelivered the opinion of the court:\nIn October 1998, the State charged defendant, Thomas E. Street, inter alia, with sexually assaulting (720 ILCS 5/12 \u2014 13(a)(1) (1998)) D.E, whom defendant had dated previously. At trial, defendant asserted consent as an affirmative defense. D.E testified for the State, admitting that she and defendant had previously engaged in consensual sex but maintaining that on the night in question she did not consent. On cross-examination, defendant asked the victim about the sexual relationship and, during his own case, offered witnesses who, in part, contradicted D.P.\u2019s answers regarding the relationship. At the close of all the evidence, the court requested oral argument on the applicability of Illinois\u2019 \u201crape shield\u201d statute, section 115 \u2014 7 of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/115 \u2014 7 (West 1998)). The court declared a mistrial over defendant\u2019s arguments that the statute did not apply. The court later denied defendant\u2019s motion to bar a retrial on double jeopardy grounds. Defendant appeals, arguing that (1) section 115 \u2014 7 of the Criminal Procedure Code did not prevent him from introducing evidence of the prior romantic relationship with D.E where D.E acknowledged that such a relationship had existed, and (2) the trial court erred in declaring a mistrial since no manifest necessity required it. We reverse.\nI. BACKGROUND\nDuring the evening of October 10, 1997, police arrested defendant for sexually assaulting a woman, D.E, with whom he had had a brief prior relationship. D.E alleged that defendant arrived at her apartment around midnight on October 10, 1997, and the two engaged in conversation for 30 to 60 minutes outside her front door. Afterward, both parties went into D.E\u2019s apartment. D.E had been entertaining another male guest who left without incident shortly after defendant came inside.\nAccording to D.E\u2019s testimony, she and defendant began having consensual sex near the stairs in D.E\u2019s apartment. The pair moved upstairs to D.E\u2019s bedroom, where defendant began to get \u201ca little rough.\u201d D.E said defendant penetrated her anally with his fingers and then with his penis despite her continual crying and repeated requests that he stop. D.E later went to the emergency room where she was treated for superficial abrasions and tears to her vagina and rectum.\nDefendant asserted consent as a defense, and the State did not deny that D.E and defendant had been romantically involved. During opening statements, the prosecutor remarked that \u201c[D.E] had known [defendant] for several months[ ] [and] had dated [him] for a while.\u201d\nDuring opening statements for the defense, counsel stated:\n\u201c[I]n this particular case there has never been a denial that there was sexual intercourse *** between Mr. Street and [D.E], In fact, these people had seen one another for several months before. This case comes down to a case of whether or not the consensual aspect of sex was present [on] October 10.\u201d\nDefense counsel went on to comment about what D.E had told her coworkers about defendant:\n\u201c[D.E] claims that she had not seen [defendant] for a couple of weeks. Well *** Sarah [Kozak] will tell you of a conversation that occurred in the break room at [work] two to three days before this allegation was *** made against [defendant.] [D.E] basically announces that she and Mr. Street[,] the night before[,] had *** sex and that it was of such a nature that they broke the bed, that she commented upon how large he was, and she commented like she had ridden a bull all night. *** Miss Kozak will tell.you that *** there had been a handful of other times *** when [D.E] had talked about dating [defendant], talking about they had sex frequently, talking about the fact that he was hung like a horse.\u201d\nDuring the State\u2019s case in chief, they called D.P. to testify. She admitted that she and defendant had dated for a short time and had engaged in consensual sex. The following dialogue occurred:\n\u201cA. Well, I don\u2019t know \u2014 we were together a couple of times, like twice, three times.\nQ. Did you go to the show, did you go out to eat?\nA. No, we didn\u2019t.\nQ. So what kind \u2014 -what was the nature of your relationship?\nA. I guess it was just sexual, I guess?\u201d\nThe prosecutor also questioned D.E regarding the nature of her sexual relationship with defendant:\n\u201cQ. Now, you said that you did have a relationship with [defendant] before you decided you were going to tell him it was over. This sexual relationship that you had with him before, had it ever *** involved anal sex?\nA. No. This is something I have never done before in my life.\nQ. Did you want it?\nA. No.\u201d\nOn cross-examination, D.E admitted that her relationship was a sexual one and that defendant was \u201cwell endowed,\u201d but she maintained that they had only engaged in consensual sex on two prior occasions. Furthermore, D.E denied telling her coworker Kozak any details of her relationship with defendant.\nDuring the defense\u2019s case, Kozak testified that two or three days before October 10, she and D.E were in the break room discussing D.E\u2019s relationship with defendant. In particular, defense counsel asked Kozak about particular statements D.E allegedly made:\n\u201cQ. Did she make the statement involving her and [defendant] that she felt like she had [ridden] a bull all night?\nA. Yes.\nQ. Did she make a statement commenting upon how well endowed and large Mr. Street was?\nA. Yes.\nQ. Did she make a statement that they had broken the bed having sex?\nA. Yes.\nQ. Did she ever make the statement on that occasion that he was hung like a horse?\nMS. BOLTON [(assistant State\u2019s Attorney)]: Objection.\nTHE COURT: Sustained.\nMS. BOLTON: Move to strike.\nTHE COURT: It\u2019s stricken.\nQ. Did she ever tell you that they had sex frequently?\nA. Yes.\nMS. BOLTON: Objection, your Honor.\nTHE COURT: Sustained.\nMS. BOLTON: Request that the jury be instructed to disregard.\nTHE COURT: Please disregard the question and the answer of the witness, ladies and gentlemen.\u201d\nSubseq\u00faently, a discussion ensued, out of the jury\u2019s presence, between defense counsel and the trial judge regarding the evidentiary avenues that defense counsel was pursuing. The court made the following comments:\n\u201cTHE COURT: *** I\u2019m not going to permit this to go any further. As a matter of fact, I\u2019m very close to a mistrial on my own motion. That, together with the previous answer of this and the prior witness.\nAs I understand it, the theory of the defense is there\u2019s been prior consensual sex here, but, other than what the victim has testified to. And I believe that [the rape shield law (725 ILCS 5/115 \u2014 7 (West 1998))] has been violated.\u201d\nThe next day, defendant testified that he and D.E dated for a couple months prior to October 10 and that they usually saw each other \u201conce a week, maybe more than that.\u201d Defendant further testified that he had been with D.E at her house only two or three days before October 10. Defendant further confirmed that D.E\u2019s description of their relationship as \u201csexual\u201d was accurate. Defendant testified that, on the night in question, D.E performed oral sex on him at the bottom of her stairs before the two went up to her bedroom. He acknowledged that he penetrated h\u00e9r anally with his penis but denied inserting his finger in her anus. Moreover, defendant stated that he did not force D.E to perform any of the sex acts involved and that at no time did she ask him to stop.\nAfter the defense rested, the court requested ad hoc oral argument from both counsel regarding the applicability of section 115 \u2014 7 of the Criminal Procedure Code to the current proceedings. The following ensued:\n\u201cMR. MATTINGLEY [(defense counsel)]: May it please the court. Your Honor, first, let me say that I think the whole reason of this section, at least in part, is that we have to look to the idea that the subject isn\u2019t to be broached unless *** the victim denies prior sexual activity.\nTHE COURT: Which she has done.\nMR. MATTINGLEY: She has admitted \u2014 in fact, the State elicited the testimony.\nTHE COURT: Mr. Mattingley, [s]he has admitted two prior ati pm i ti fore\nMR. MATTINGLEY: That\u2019s correct.\nTHE COURT: Your theory and your [implication] made by the testimony of the defendant is that is not true. There were numerous encounters. That\u2019s the inference you have before this trier of fact. That\u2019s the reason this statute comes into play. Because the court, in order to prohibit evidence exactly of the kind that you are suggesting, must find that there are certain facts that support that evidence. And there are none.\nMR. MATTINGLEY: Judge, that is not an inference that I am going to argue. I am confining myself, and I will tell the court right now, I am confining myself to the fact that she has acknowledged] that they had a relationship and that she has acknowledged that they had two prior sexual acts.\nTHE COURT: And the inference from your client\u2019s testimony is that there were not only two, there were many.\nMR. MATTINGLEY: He never testified that there was anything more than they saw each other frequently, maybe once a week. Is it correct the relationship was sexual?\n* * *\nTHE COURT: The inference before the trier of fact by this line of questioning *** is that there were numerous prior encounters of [a] sexual nature. You may not have asked the question specifically *** but your very good defense tactics, which you are very good at; I\u2019m not disputing that, you left the trier of fact with an inference that there were numerous prior sexual encounters.\u201d\nThe court further advised defense counsel that in its opinion \u201c[the] court must declare a mistrial in this case.\u201d At one point, the prosecutor interjected and proposed that a curative instruction might remedy any statutory violation, but she later moved for a mistrial, which the court immediately granted. The court denied defendant\u2019s motion ^to dismiss the reinstated prosecution on double jeopardy grounds. In so doing, the court noted that \u201cthere was no way to cure the error. The court could not *** adequately instruct the [jurors] that they were not to consider the evidence.\u201d This appeal followed.\nII. ANALYSIS\nA state may not put a defendant in jeopardy twice for the same offense. Arizona v. Washington, 434 U.S. 497, 503, 54 L. Ed. 2d 717, 726, 98 S. Ct. 824, 829 (1978). The constitutional protection against double jeopardy (U.S. Const., amend. V) attaches after the jury is selected and sworn. People ex rel. Roberts v. Orenic, 88 Ill. 2d 502, 507, 431 N.E.2d 353, 356 (1981). Since jeopardy attaches before the judgment becomes final, the constitutional protection embraces a defendant\u2019s right to complete his trial before a particular tribunal. Washington, 434 U.S. at 503, 54 L. Ed. 2d at 727, 98 S. Ct. at 829. Thus, where a court, acting without defendant\u2019s consent, declares a mistrial, the court necessarily deprives defendant of his \u201cvalued right\u201d to have a particular jury decide' his fate. United States v. Jorn, 400 U.S. 470, 484, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 557 (1971). However, by declaring a mistrial, a court does not necessarily preclude a second trial. Rather, reviewing courts should examine the facts of each case to determine the propriety of a double jeopardy claim. Orenic, 88 Ill. 2d at 507-08, 431 N.E.2d at 356. When a trial court declares a mistrial without the defendant\u2019s consent, the reviewing court should allow the State to retry a defendant only if the facts demonstrate that a manifest necessity required declaring the mistrial. Orenic, 88 Ill. 2d at 508, 431 N.E.2d at 356.\nDefendant urges us to conclude that no manifest necessity existed for the trial court\u2019s mistrial declaration because he did not violate Illinois\u2019 rape shield statute. However, we need not reach defendant\u2019s substantive argument, as our own analysis of the procedure surrounding the court\u2019s actions in this case indicates that the judge failed to exercise sound judicial discretion in determining whether manifest necessity warranted declaring a mistrial.\nThe doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant\u2019s right to have a particular tribunal decide his fate until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by continuing the proceedings. Jorn, 400 U.S. at 485, 27 L. Ed. 2d at 557, 91 S. Ct. at 557. Essentially, in determining whether manifest necessity exists, the trial court must balance the defendant\u2019s interest in having the trial completed in a single proceeding, reserving the possibility of obtaining an acquittal before that \u201cparticular tribunal,\u201d against the strength of the justification for declaring a mistrial rather than attempting to continue the trial to a verdict. 5 J. Israel, N. King & W LaFave, Criminal Procedure \u00a7 25.2(c), at 654 (2d ed. 1999).\nDeciding whether manifest necessity warranted a mistrial should be based on the facts of each individual case. In making its determination, a reviewing court may consider several factors, including (1) whether the difficulty was the product of the actions of the prosecutor, defense counsel, or trial judge, or was events over which the participants lacked control; (2) whether the difficulty could have been intentionally created or manipulated by the prosecution to strengthen its case; (3) whether the difficulty, prejudice, or other legal complication might have been \u201ccured\u201d by another alternative that would have preserved the trial\u2019s fairness; (4) whether the trial judge actually considered the alternatives to a mistrial; (5) whether a subsequent conviction would be subject to reversal on appeal; (6) whether the trial judge acted in the heat of the trial confrontation; (7) whether the trial judge\u2019s decision rested on an evaluation of the demeanor of the participants, the \u201catmosphere\u201d of the trial, or any other factors that similarly are not amenable to strict appellate review; (8) whether the trial judge granted the mistrial solely for the purpose of protecting the defendant against possible prejudice; (9) wheth\u00e9r the evidence the State presented, prior to the mistrial, suggested a weakness in its case (e.g., a witness failed to testify as anticipated); (10) whether the jurors had heard enough of the case to formulate some tentative opinions; (11) whether the case had proceeded so far as to give the prosecution a substantial preview of the defense\u2019s tactics and evidence; and (12) whether the composition of the jury was unusual. 5 J. Israel, N. King & W. LaFave, Criminal Procedure \u00a7 25.2(c), at 654-55 (2d ed. 1999).\nIn Jorn, the defendant was tried for willfully assisting in the preparation of fraudulent income tax returns. At the trial\u2019s inception, the prosecutor called as a witness a taxpayer whom the defendant allegedly had aided in preparing the returns. The trial judge warned the witness of his constitutional rights and the witness agreed to testify, stating that Internal Revenue Service (IRS) agents had so advised him when they initially questioned him. The judge refused to allow him to testify until he had consulted an attorney, indicating that he did not believe the witness had been warned. The prosecutor advised the judge that the witness, as well as the remaining witnesses, had been advised of his rights by the IRS agents. Declaring that the warnings were \u201cprobably inadequate,\u201d the judge, sua sponte, declared a mistrial so that the witnesses could consult with attorneys. In holding that double jeopardy considerations barred retrying the defendant, the Court noted that the trial judge had not exercised sound discretion in deciding whether manifest necessity existed for a mistrial. Specifically, the Court pointed out that the trial judge failed to consider another option, such as a continuance, before declaring the mistrial. Jorn, 400 U.S. at 487, 27 L. Ed. 2d at 558, 91 S. Ct. at 558.\nIn the present case, although the State moved for a mistrial, it was an afterthought to the trial court\u2019s already expressed intention to declare a mistrial. Thus, the court\u2019s declaration was tantamount to a sua sponte mistrial declaration over opposing argument from defense counsel. In addition, the court requested ad hoc arguments from counsel, giving neither party adequate time to prepare cogent remarks regarding the applicability of the rape shield statute. Furthermore, the State apparently did not want a mistrial since the prosecutor asked the court to administer a curative instruction and only later moved for a mistrial after it became apparent that the court was going to declare one on its own. The record fails to demonstrate that the trial judge considered the State\u2019s suggestion of a curative instruction, or any other alternative, prior to declaring the mistrial and fails to show that the judge articulated any reasons for rejecting that alternative. We conclude that the trial court failed to exercise sound discretion in determining whether manifest necessity required it to declare a mistrial and hold that retrying defendant under these circumstances for the same offense would violate the constitutional protection against double jeopardy (U.S. Const., amend. V).\nIII. CONCLUSION\nFor the reasons stated, we reverse.\nReversed.\nCOOK, EJ., and STEIGMANN, J., concur.", "type": "majority", "author": "JUSTICE MYERSCOUGH" } ], "attorneys": [ "Daniel D. Yuhas and Duane E. Schuster (argued), both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Lawrence R. Fichter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge (argued), 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. THOMAS E. STREET, Defendant-Appellant.\nFourth District\nNo. 4-98-1035\nArgued July 19, 2000.\n\u2014Opinion filed September 7, 2000.\nDaniel D. Yuhas and Duane E. Schuster (argued), both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nLawrence R. Fichter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0205-01", "first_page_order": 225, "last_page_order": 233 }