{ "id": 4136039, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MATTHEW SALES, Defendant-Appellant", "name_abbreviation": "People v. Sales", "decision_date": "2005-06-10", "docket_number": "No. 2-04-0371", "first_page": "863", "last_page": "868", "citations": [ { "type": "official", "cite": "357 Ill. App. 3d 863" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "96 Ill. App. 3d 202", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12126983 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "204" }, { "page": "205" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0202-01" ] }, { "cite": "35 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5379840 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0062-01" ] }, { "cite": "161 Ill. App. 3d 197", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466080 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "198" }, { "page": "199-200" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0197-01" ] }, { "cite": "262 Ill. Dec. 657", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 2002, "pin_cites": [ { "page": "661" } ], "opinion_index": 0 }, { "cite": "766 N.E.2d 277", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "281" } ], "opinion_index": 0 }, { "cite": "328 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2183277 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "413" }, { "page": "416" }, { "page": "415" }, { "page": "415" }, { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/328/0411-01" ] }, { "cite": "456 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189962 ], "weight": 9, "year": 1982, "pin_cites": [ { "page": "673" }, { "page": "423" }, { "page": "2088" }, { "page": "676" }, { "page": "425" }, { "page": "2089" }, { "page": "679" }, { "page": "427" }, { "page": "2091" } ], "opinion_index": 0, "case_paths": [ "/us/456/0667-01" ] } ], "analysis": { "cardinality": 598, "char_count": 13428, "ocr_confidence": 0.751, "pagerank": { "raw": 4.833527253905162e-08, "percentile": 0.30380728760634307 }, "sha256": "cf605299400ff09ea2b62d88d1bb094768d4cb72e016ee220e11c8a4e49e94bd", "simhash": "1:fda8fc64764c25dc", "word_count": 2253 }, "last_updated": "2023-07-14T22:31:24.775353+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. MATTHEW SALES, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GROMETER\ndelivered the opinion of the court:\nI. BACKGROUND\nDefendant was charged with sexual exploitation of a child (720 ILCS 5/11 \u2014 9.1(a\u20145) (West 2002)). Prior to trial, the State and defendant presented motions in limine. One of defendant\u2019s motions in limine requested that the court prohibit the \u201cintroduction by any means, evidence of out-of-court conversations between [the alleged victim] and [witness], [the alleged victim\u2019s mother], or any other person regarding the facts of or details regarding the incident serving as the basis of the charge against the defendant.\u201d The trial court granted this motion.\nDuring the prosecution\u2019s opening statements, one of the assistant State\u2019s Attorneys mentioned the alleged victim\u2019s conversation with her mother, as well as a letter the alleged victim wrote to her mother. Defense counsel\u2019s objections to both of these remarks were sustained, and the court cautioned the State to \u201cbe careful.\u201d Defendant also moved for a mistrial because of the assistant State\u2019s Attorney\u2019s remarks, but the request was denied. Toward the end of the alleged victim\u2019s testimony, the assistant State\u2019s Attorney asked her why she did not tell her mother about the incident. Defense counsel\u2019s objection was sustained. Two questions later, the assistant State\u2019s Attorney asked the alleged victim whether she ever told her mother. Defense counsel\u2019s objection was sustained, and the trial judge reminded the assistant State\u2019s Attorney that \u201cwe have had a ruling on this before.\u201d Shortly thereafter, the assistant State\u2019s Attorney began a question with, \u201cWhen did you tell \u2014 ,\u201d but was cut off by defense counsel\u2019s objection, whereupon the assistant State\u2019s Attorney withdrew the question. After the close of this testimony, the jury was excused and defense counsel renewed his motion for a mistrial. Although the court denied the motion, it again strongly cautioned the assistant State\u2019s Attorney. The court noted specifically that \u201cany one of these overreaches on your part would not be grounds for a mistrial in the Court\u2019s opinion but the accumulative [sic] effect, there are places where you can\u2019t go. We have had a motion on this. *** You are jeopardizing your case. This would be prosecutorial misconduct. It is more than just a mistrial. It would be the end of the case. Jeopardy has, in fact, attached. *** Do not tread on this ground any further.\u201d Nevertheless, the court also opined that its \u201cinstructions to the jury have been cautionary enough.\u201d Notwithstanding the court\u2019s admonishments and warnings, the same assistant State\u2019s Attorney, during closing arguments, twice discussed whether the alleged victim told her mother about the incident. Both of defense counsel\u2019s objections to these remarks were sustained.\nAfter closing arguments, defense counsel again renewed his motion for a mistrial based upon the repeated violations of the motion in limine. The court stated that it was \u201cextremely distraught, upset, concerned about the violations.\u201d It also noted, however, that \u201cthe only good thing is that the jury was admonished, instructed to disregard those things immediately upon their occurrence.\u201d The court reserved ruling on the motion for a mistrial but denied it prior to the jury verdict. The jury rendered a verdict of guilty, whereupon defense counsel moved to vacate the conviction and either enter an order of acquittal or, in the alternative, order a new trial. The court found that repeated violations of the court\u2019s order in limine did occur and that the prosecutor\u2019s conduct was not intentional, but because it believed that defendant\u2019s right to a fair trial had been impaired, it ordered a new trial. The court noted that it did not \u201cthink there was any intent on the State\u2019s part to disregard the Court\u2019s order. I think that was done in the heat of combat. However, it was done. It was done repeatedly. *** [After proper objections,] [t]he Court admonished the jury.\u201d The court was not certain that it had confidence in the verdict and could not tell \u201cthat it was unaffected by what transpired in the courtroom.\u201d Instead of granting the motion for a mistrial, the court granted the motion for a new trial, primarily because it did not \u201cthink there was any intent on the prosecutions\u2019 [sic] part to ignore the order.\u201d\nDefendant then moved to dismiss the charges under the theory that retrial would violate his right against double jeopardy (see 720 ILCS 5/3 \u2014 3, 3 \u2014 4 (West 2002)). This motion was denied, at which time defendant filed a timely notice of appeal.\nBefore turning to the merits, we note our disapproval of the State\u2019s repeated violations, intentional or not, of the trial court\u2019s order granting defendant\u2019s motion in limine. The State argues, and the assistant State\u2019s Attorney stated in the record, that there was merely a misunderstanding as to the scope of the trial court\u2019s order. Accepting this statement as true, we nevertheless find it troubling that the assistant State\u2019s Attorney violated the order repeatedly after the clear and specific warnings the court gave following defense counsel\u2019s objections.\nII. ANALYSIS\nIt is well settled that the \u201c[d]ouble [j]eopardy [cjlause is no bar to retrial\u201d (Oregon v. Kennedy, 456 U.S. 667, 673, 72 L. Ed. 2d 416, 423, 102 S. Ct. 2083, 2088 (1982)), whether via mistrial or a new trial. However, an exception is made when a trial court grants a mistrial based upon conduct by a prosecutor that was intended to goad a defendant into asking for a mistrial. Oregon, 456 U.S. at 676, 72 L. Ed. 2d at 425, 102 S. Ct. at 2089. In such a case, the grant of a mistrial will bar the State from retrying a defendant. Oregon, 456 U.S. at 679, 72 L. Ed. 2d at 427, 102 S. Ct. at 2091.\nDefendant\u2019s argument is that he cannot be tried again because a new trial would violate his right against double jeopardy. Defendant argues that in this case, the trial court\u2019s grant of a new trial was the functional equivalent of a mistrial. He then goes on to argue that, since the grant of the new trial was based on intentional prosecutorial misconduct, double jeopardy bars retrial just as if a mistrial had been granted. We need not address the latter point if we conclude that granting a new trial is not the equivalent of granting a mistrial.\nTo support his argument, defendant relies on People v. Davis, 328 Ill. App. 3d 411 (2002). Davis addresses the issue of mandatory joinder of criminal charges pursuant to sections 3 \u2014 3(b) and 3 \u2014 4 of the Criminal Code of 1961 (Code) (720 ILCS 5/3 \u2014 3(b), 3 \u2014 4 (West 2002)). Section 3 \u2014 3(b) of the Code requires the State to simultaneously prosecute all charges stemming from one act. 720 ILCS 5/3 \u2014 3(b) (West 2002). Section 3 \u2014 4 of the Code bars the addition of a charge if the defendant had been prosecuted for the same offense, stemming from the same act, if that prosecution resulted in an acquittal or a conviction. 720 ILCS 5/3 \u2014 4(a)(1) (West 2002).\nIn Davis, the defendant\u2019s conviction was vacated and a new trial was ordered. Prior to the defendant\u2019s new trial, the State added new charges against him that stemmed from the same act for which he was originally prosecuted. The defendant was convicted of the new charges, and he appealed. Davis, 328 Ill. App. 3d at 413. The defendant contended that the subsequent charges should have been barred based on sections 3 \u2014 3(b) and 3 \u2014 4 of the Code because he had been previously tried and convicted for the incident from which the new charges stemmed. The State argued, in essence, that the fact that the conviction was vacated and a new trial was ordered was the same as if a mistrial had been ordered, in which case the additional charges could be brought against the defendant. Davis presents a unique problem, however, because the language appearing in the official reporter and the language appearing in the unofficial reporters is inconsistent on this point.\nIn both the regional reporter and the Illinois Decisions reporter, the language from Davis that defendant relies on states that \u201c[t]he fact that the trial court vacated the conviction and ordered a new trial does transform the proceeding into a mistrial.\u201d People v. Davis, 766 N.E.2d 277, 281, 262 Ill. Dec. 657, 661 (2002). The electronic versions of this opinion on Westlaw and Lexis-Nexis contain this exact same language. However, in the official reporter, that same sentence reads as follows: \u201c[t]he fact that the trial court vacated the conviction and ordered a new trial does not transform the proceeding into a mistrial.\u201d (Emphasis added.) Davis, 328 Ill. App. 3d at 416. It would appear that the version in the official reporter would control an issue such as this simply because it is the official reporter (see 705 ILCS 65/1 et seq. (West 2002)). Nevertheless, justice requires us to determine which version is correct. We do not believe that we are bound by the language printed in the official reporter if it contains a typographical error; however, a close reading of Davis supports the inclusion of the word \u201cnot\u201d and, therefore, the version of Davis published in the official reporter. We accordingly reject defendant\u2019s argument.\nThe Davis court discussed People v. Kennedy, 161 Ill. App. 3d 197 (1987). Kennedy also dealt with section 3 \u2014 4 of the Code. In Kennedy, the defendant was charged with multiple crimes. He was acquitted of one offense and convicted of the remainder. The verdict was subsequently overturned as being legally inconsistent. Kennedy, 161 Ill. App. 3d at 198. Prior to retrial, the State added new charges, which the defendant challenged. The State argued that the addition of new charges arising from the same act was appropriate. To support its argument, the State relied on People v. Miller, 35 Ill. 2d 62 (1966), in which \u201cadditional charges were filed against the defendant following a mistrial.\u201d Kennedy, 161 Ill. App. 3d at 199-200. The Miller court held that \u201cwhere the former prosecution resulted in a mistrial and not in a conviction or acquittal *** subsequent prosecution of the additional charges\u201d was proper. Miller, 35 Ill. 2d at 66. In essence, the State\u2019s argument in Kennedy was that the grant of a new trial due to a legally inconsistent verdict was, for purposes of the addition of charges, the same as a mistrial.\nIn response to the State\u2019s argument and reliance on Miller, the Kennedy court stated, in dicta, that it \u201cwould agree [with the State\u2019s contention] were it not for the fact that the jury here acquitted defendant of one count of murder.\u201d Kennedy, 161 Ill. App. 3d at 200. The Davis court responded to this statement by clearly holding that \u201c[t]his dicta commentary is in error.\u201d Davis, 328 Ill. App. 3d at 415. In the subsequent sentence, the Davis court held that \u201c[s]ection 3 \u2014 4 *** does not require a final judgment but only a former prosecution that resulted in a conviction or acquittal.\u201d Davis, 328 Ill. App. 3d at 415. Accordingly, the Davis court reversed the defendant\u2019s convictions on the subsequent charges.\nLogically, then, the Davis opinion makes sense only if the sentence at issue contains the word \u201cnot.\u201d It is clear from Davis and its predecessors that section 3 \u2014 4 of the Code bars the addition of charges when a new trial has been ordered after either an acquittal or a conviction, but, in accordance with Miller, does not bar the addition of new charges in the case of a mistrial. Although the Kennedy court, in dicta, stated that it agreed that a new trial could be the equivalent of a mistrial regarding the addition of charges, the Davis court specifically held that dicta to be incorrect, and in so doing also overturned the defendant\u2019s convictions on the additional charges. Hence, the Davis court disagreed with the State\u2019s contention that a new trial was the same as a mistrial for purposes of section 3 \u2014 4 of the Code. As a result, the sentence in question must read: \u201c[t]he fact that the trial court vacated the conviction and ordered a new trial does not transform the proceeding into a mistrial,\u201d as reproduced in the official reporter. Davis, 328 Ill. App. 3d at 416.\nMoreover, case law clearly contradicts defendant\u2019s contention that a mistrial and a new trial can be functionally equivalent. In fact, the court in People v. Hooker, 96 Ill. App. 3d 202, 204 (1981), expressly stated: \u201c[w]e reject the defendant\u2019s contention that mistrials and new trials are synonymous.\u201d The court added that mistrials and new trials \u201care different\u201d and \u201chave different functions.\u201d Hooker, 96 Ill. App. 3d at 205. Moreover, the standards for a mistrial are higher than those for a new trial. Hooker, 96 Ill. App. 3d at 205.\nIII. CONCLUSION\nFor these reasons, we reject defendant\u2019s contention that the trial court\u2019s grant of a new trial was the functional equivalent of a mistrial. As a result, double jeopardy is not at issue. Because defendant did not allege that the trial court erred in denying his motions for a mistrial, we will not review that issue. The judgment of the circuit court of Winnebago County is affirmed.\nAffirmed.\nHUTCHINSON and CALLUM, JJ., concur.", "type": "majority", "author": "JUSTICE GROMETER" } ], "attorneys": [ "Peter B. Nolte, of Sreenan & Cain, EC., of Rockford, for appellant.", "Paul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Mary Beth Burns, both 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. MATTHEW SALES, Defendant-Appellant.\nSecond District\nNo. 2-04-0371\nOpinion filed June 10, 2005.\nPeter B. Nolte, of Sreenan & Cain, EC., of Rockford, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Mary Beth Burns, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0863-01", "first_page_order": 879, "last_page_order": 884 }