{ "id": 4279156, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SIEMON T. MOORE, Defendant-Appellee", "name_abbreviation": "People v. Moore", "decision_date": "2008-10-24", "docket_number": "No. 3\u201407\u20140567", "first_page": "1019", "last_page": "1026", "citations": [ { "type": "official", "cite": "385 Ill. App. 3d 1019" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "877 N.E.2d 87", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2007, "pin_cites": [ { "page": "91" }, { "page": "91" } ], "opinion_index": 0 }, { "cite": "376 Ill. App. 3d 856", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4272410 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "861-62" }, { "page": "862" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/376/0856-01" ] }, { "cite": "823 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "355 Ill. App. 3d 308", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599308 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "312" }, { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0308-01" ] }, { "cite": "376 N.E.2d 712", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "parenthetical": "finding that the trial court, having ruled to suppress the State's evidence, was at that point divested of the jurisdiction to direct an acquittal, even though it had failed to order termination of the trial as directed by statute" }, { "page": "720" }, { "page": "717" }, { "page": "720" } ], "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 49", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3354462 ], "weight": 4, "year": 1978, "pin_cites": [ { "parenthetical": "finding that the trial court, having ruled to suppress the State's evidence, was at that point divested of the jurisdiction to direct an acquittal, even though it had failed to order termination of the trial as directed by statute" }, { "page": "58-59" }, { "page": "54" }, { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0049-01" ] }, { "cite": "503 N.E.2d 584", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "587" }, { "page": "587" } ], "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 922", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3540815 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "926" }, { "page": "926" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0922-01" ] }, { "cite": "412 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1980, "pin_cites": [ { "page": "515-16" }, { "page": "515" }, { "page": "516" }, { "page": "516" }, { "page": "516" }, { "page": "516" }, { "page": "516-17" }, { "page": "516-17" } ], "opinion_index": 0 }, { "cite": "82 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474756 ], "weight": 8, "year": 1980, "pin_cites": [ { "page": "263" }, { "page": "262" }, { "page": "264" }, { "page": "264" }, { "page": "264" }, { "page": "265" }, { "page": "265" }, { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0250-01" ] }, { "cite": "565 N.E.2d 743", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "748-49", "parenthetical": "citing to several cases wherein rulings on defendant's midtrial motions were vacated because the motions could have been brought prior to trial" } ], "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 282", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2554228 ], "year": 1991, "pin_cites": [ { "page": "288-89", "parenthetical": "citing to several cases wherein rulings on defendant's midtrial motions were vacated because the motions could have been brought prior to trial" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0282-01" ] }, { "cite": "865 N.E.2d 974", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "223 Ill. 2d 664", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2007, "opinion_index": 0 }, { "cite": "858 N.E.2d 95", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "page": "99" } ], "opinion_index": 0 }, { "cite": "368 Ill. App. 3d 549", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4266518 ], "year": 2006, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/368/0549-01" ] } ], "analysis": { "cardinality": 642, "char_count": 15661, "ocr_confidence": 0.798, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14362806480223364 }, "sha256": "49ace874fa20547097a271168ea3718a49456ff6f09c177e0d312e73968a483f", "simhash": "1:23efd12e736edc20", "word_count": 2622 }, "last_updated": "2023-07-14T18:58:06.429737+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. SIEMON T. MOORE, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE O\u2019BRIEN\ndelivered the opinion of the court:\nDuring a jury trial, defendant Siemon Moore moved to suppress his videotaped statement to the police. The trial court granted Moore\u2019s motion to suppress and the State requested leave to file an interlocutory appeal of the trial court\u2019s suppression order. The trial court granted the State\u2019s motion and declared a mistrial based on a finding that manifest necessity required the discharge of the jury while the State took its interlocutory appeal. Following a review of the trial court\u2019s order granting Moore\u2019s motion to suppress, this court affirmed the trial court\u2019s ruling. Moore filed a motion with the trial court requesting his case be dismissed on grounds of double jeopardy. The trial court, finding that it had erroneously concluded in the prior proceeding that a manifest necessity required the declaration of a mistrial, granted Moore\u2019s motion to dismiss. The State follows with this appeal.\nFACTS\nDefendant Siemon Moore was charged with the offense of criminal sexual assault. 720 ILCS 5/12 \u2014 13(a)(1) (West 2004). A jury trial began on July 20, 2005. Near the end of the State\u2019s case-in-chief, it was disclosed that a videotaped statement of Moore that the State intended to introduce was missing its audio track. It is undisputed that the defense was in possession of the videotape, which never contained a sound track, from November of 2004, and that the State was aware of the missing sound from at least around the same time. When Moore made the videotaped statement he signed a Miranda waiver (hereafter Paragraph 5) that stated, in part, \u201c[a] videotape providing a video and audio record of this interview is being made to insure my rights and the accuracy of our conversation. I voluntarily consent to the recording.\u201d\nUpon discovering the missing audio, the State proposed to introduce the testimony of Detective Jay Etzel, the officer who conducted the interview in which Moore made the videotaped statement. Moore objected to the introduction of testimony from Etzel regarding what Moore said during the interview and filed a motion to suppress the testimony. The trial court held a hearing on the motion to suppress. Moore argued that the waiver of his Miranda rights was no longer valid in that he had waived his rights under the express expectation that his statement would be preserved by a video/audio record. For this reason, Moore alleged his statement to Etzel could not be considered voluntary. Moore also argued that if Etzel was allowed to testify, Moore would be forced to testify instead of relying on the videotaped statement to speak for him. The State objected that a ruling suppressing Etzel\u2019s testimony would \u201cknock *** the *** State\u2019s case out of the water.\u201d The State proposed that a jury instruction would cure any defect created by allowing Etzel to testify.\nThe trial court granted Moore\u2019s motion to suppress. In reaching its ruling, the trial court stated the missing audio was \u201ca technical difficulty *** no one\u2019s fault,\u201d and that the motion to suppress was timely made. The trial court also found that it was impossible to know whether Moore had given his statement based on Paragraph 5, a question that went to the voluntariness of the statement. The trial court found that the introduction of Etzel\u2019s testimony would force Moore to testify in contravention of his right to remain silent. The State then requested leave of the trial court to file an interlocutory appeal. The State also proposed it continue its case-in-chief before the jury; however, it was not willing to give up its right to an interlocutory appeal to do so. The State filed two motions for reconsideration of the suppression order, arguing, in part, that the defense could address the credibility and reliability of Etzel\u2019s testimony during final arguments. The State also asserted, in part, that Moore\u2019s motion was not timely made. The State asserted that the substantive effect of suppressing Etzel\u2019s statement would be \u201cto dismiss the charge or render it [unprovable].\u201d The trial court denied the State\u2019s motions for reconsideration. Moore maintained throughout the proceedings that the State could proceed without Etzel\u2019s testimony regarding Moore\u2019s statement to him, arguing that the statement did not incriminate Moore.\nAfter reading into the record a summary given by Etzel of the contents of his proposed testimony, the State renewed its motion for leave to file an interlocutory appeal, arguing that the suppression of Etzel\u2019s testimony impaired the State\u2019s case. The State moved for leave to file a certificate of impairment and moved for a mistrial, a move to which Moore objected. The trial court granted the State\u2019s motion to file a certificate of substantial impairment. The trial court also found that because the jury could not be held over for the estimated six to eight months it would take to obtain and complete an appellate review, it was manifestly necessary, over the objection of Mo\u00f3re, to declare a mistrial. The trial court stated the proceedings to date in no way determined the issue of whether Moore would be placed in double jeopardy by a retrial.\nThe State filed a certificate of impairment and proceeded with its interlocutory appeal. This court, ruling on the substantive merits of the suppression order, upheld the trial court\u2019s ruling granting Moore\u2019s motion to suppress. See People v. Moore, 368 Ill. App. 3d 549, 554, 858 N.E.2d 95, 99 (2006). The Illinois Supreme Court denied the State\u2019s leave to appeal this court\u2019s ruling. People v. Moore, 223 Ill. 2d 664, 865 N.E.2d 974 (2007). Moore filed a motion to dismiss in the trial court, arguing that the cause was barred by double jeopardy occasioned by the actions of the State in seeking the interlocutory appeal.\nAt the hearing on Moore\u2019s motion to dismiss, the trial court stated that in hindsight it did not believe there was a manifest necessity requiring the declaration of a mistrial. The trial court granted Moore\u2019s motion to dismiss and the State follows with this appeal.\nANALYSIS\nThe State\u2019s first argument on appeal is that the trial court erred in granting Moore\u2019s motion to dismiss on grounds of double jeopardy, in part, because Moore filed an untimely midtrial motion to suppress. In general, a motion made during midtrial is \u201cuntimely\u201d if the defendant was aware of the grounds for the motion and had the opportunity to bring the motion to the trial court\u2019s notice before the trial began. See People v. Goodwin, 207 Ill. App. 3d 282, 288-89, 565 N.E.2d 743, 748-49 (1991) (citing to several cases wherein rulings on defendant\u2019s midtrial motions were vacated because the motions could have been brought prior to trial). Section 114 \u2014 12(c) of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/114 \u2014 12(c) (West 2004)) authorizes, to a limited extent, the defendant\u2019s interruption of a trial by the filing of a motion to suppress. People v. Flatt, 82 Ill. 2d 250, 263, 412 N.E.2d 509, 515-16 (1980). The right to bring section 114 \u2014 12(c) motions, provided they are based on an allegation the evidence was illegally seized, represents a relaxation of the common law prohibition against filing a motion to suppress during trial. Flatt, 82 Ill. 2d at 262, 412 N.E.2d at 515.\nThe State\u2019s right to a review of midtrial motions to suppress rulings is governed by Supreme Court Rule 604. 210 Ill. 2d R. 604(a)(1). The State\u2019s right to a review of suppression rulings is broader than the defendant\u2019s right to bring the suppression motions. See Flatt, 82 Ill. 2d at 264, 412 N.E.2d at 516. In Flatt, the court stated that \u201csome review must be given the prosecution of orders entered granting motions to suppress not authorized under section 114 \u2014 12(c) which should have been made prior to trial.\u201d Flatt, 82 Ill. 2d at 264, 412 N.E.2d at 516. A review of these rulings is confined to a determination of whether the trial court had the authority to entertain the motion and does not encompass an appeal on the merits of the ruling. Flatt, 82 Ill. 2d at 264, 412 N.E.2d at 516. The appropriate remedy where the reviewing court determines the trial court entertained and allowed an unauthorized motion to suppress is to vacate the ruling and remand the cause for a continuation of the trial. Flatt, 82 Ill. 2d at 265, 412 N.E.2d at 516. \u201cThe defendant should not be permitted to benefit from the declaration of a mistrial which resulted from the [the defendant\u2019s] untimely motion to suppress.\u201d Flatt, 82 Ill. 2d at 265, 412 N.E.2d at 516-17. If there is no other reason to invoke the proscription against double jeopardy, the defendant may be tried anew. Flatt, 82 Ill. 2d at 265, 412 N.E.2d at 516-17.\nIn the instant case, the trial court did not err in ruling on Moore\u2019s motion to suppress. Not only did the State fail at trial to object to Moore\u2019s motion to suppress, it also failed to argue on interlocutory appeal that the trial court did not have the authority to entertain Moore\u2019s midtrial motion to suppress. The trial court found the motion was timely made; that it was \u201cno one\u2019s fault.\u201d Furthermore, this court reviewed the motion on its merits based on an allegation that the defendant\u2019s statement should be suppressed as involuntary, a midtrial interruption authorized under section 114 \u2014 11(g) of the Code. We did not vacate the trial court\u2019s ruling, we upheld it. Implicit in our ruling is a finding that Moore\u2019s motion was timely and the trial court rightfully entertained and ruled on it.\nAlthough we disagree with the State that Moore\u2019s motion to suppress was untimely, we do agree the trial court erred in finding that Moore could not be tried anew. Moore\u2019s motion was a timely motion pursuant to section 114 \u2014 11(g) of the Code. Section 114 \u2014 11(g) states, in pertinent part:\n\u201c[I]f the motion [to suppress] is made during trial, and the court determines that the motion is not untimely, and the court conducts a hearing on the merits and enters an order suppressing the confession, the court shall terminate the trial *** without further proceedings, unless the State files a written notice that there will be no interlocutory appeal from such order of suppression. *** Such termination of trial shall be proper and shall not bar subsequent prosecution of the identical charges and defendants^] \u201d 725 ILCS 5/114 \u2014 11(g) (West 2004).\nThe failure of a trial court to terminate the trial and allow the State to file an interlocutory appeal pursuant to section 114 \u2014 11(g) constitutes reversible error. People v. Smith, 151 Ill. App. 3d 922, 926, 503 N.E.2d 584, 587 (1987). In Smith, the court found the trial court erred in dismissing the charges against the defendant following the trial court\u2019s ruling in favor of the defendant on his motion to suppress. The Smith court stated that under the relevant section of the statute, the trial court was required to terminate the trial and allow the State an interlocutory appeal, not dismiss the charges. Smith, 151 Ill. App. 3d at 926, 503 N.E.2d at 587; see People v. Young, 60 Ill. App. 3d 49, 376 N.E.2d 712 (1978) (finding that the trial court, having ruled to suppress the State\u2019s evidence, was at that point divested of the jurisdiction to direct an acquittal, even though it had failed to order termination of the trial as directed by statute).\nBecause, as stated above, section 114 \u2014 11(g) governs the procedure in this case, it follows that the section\u2019s dictate with respect to the issue of double jeopardy must be respected. In Young, the court declared that under the circumstances defined in section 114 \u2014 12(c) of the Code, which contains language identical to that in section 114 \u2014 11(g), the ends of substantial justice are best met by the procedures directed in the statute. Young, 60 Ill. App. 3d at 58-59, 376 N.E.2d at 720. The Young court considered the \u201cstatutory mistrial\u201d mandated under section 114 \u2014 12(c) no different in effect than the commonly used declaration of a mistrial on legally sufficient grounds in any criminal prosecution. Young, 60 Ill. App. 3d at 54, 376 N.E.2d at 717.\nIn a criminal prosecution before a jury, the constitutional protection against double jeopardy attaches after the jury is sentenced and sworn. 720 ILCS 5/3 \u2014 4(a)(3) (West 2004); People v. Dahlberg, 355 Ill. App. 3d 308, 312, 823 N.E.2d 649, 653 (2005). A retrial is automatically barred when a trial ends with an acquittal or a conviction; however, when a criminal proceeding ends before a final resolution of the merits of the charges against the defendant, a second trial is not necessarily precluded. People v. Burtron, 376 Ill. App. 3d 856, 861-62, 877 N.E.2d 87, 91 (2007). At times, the accused\u2019s right to have the trial concluded by a particular tribunal is subordinate to the public\u2019s interest in affording the prosecutor one full and fair opportunity to present the State\u2019s evidence to an impartial jury. Burtron, 376 Ill. App. 3d at 862, 877 N.E.2d at 91. Furthermore, reprosecution of a defendant following the declaration of a mistrial is constitutionally permissible if the mistrial was attributable to the defendant by virtue of his motion or consent. Dahlberg, 355 Ill. App. 3d at 312, 323 N.E.2d at 653-54.\nThe Young court declared that the statutory directive of section 114 \u2014 12(c), requiring the court to terminate the trial to permit the State its interlocutory appeal following the defendant\u2019s motion, may be considered on the same basis as a common law mistrial. Young, 60 Ill. App. 3d at 58, 376 N.E.2d at 720. As noted, section 114 \u2014 11(g) contains language identical to that of section 114 \u2014 12(c). Under both sections, a subsequent prosecution of the identical charges and defendant is not barred following the trial court\u2019s direction of a mistrial declared for the purpose of allowing the State to pursue an interlocutory appeal following an adverse ruling on a motion to suppress. 725 ILCS 5/114 \u2014 11(g) (West 2004). Our ruling is governed by this statutory language.\nThe circumstances of the instant case mirror the essentials of section 114 \u2014 11(g). During the trial, Moore made a motion to suppress the testimony of Etzel on the grounds that his statement to the officer could not be considered voluntary. The trial court concluded the motion was timely and conducted a hearing on the merits, entering an order suppressing the testimony. The State moved to file an interlocutory appeal. There is no question Moore\u2019s motion to suppress was timely and proper. The State\u2019s right to an interlocutory appeal was also clear. The trial court properly declared a mistrial. From this point, however, the trial court\u2019s actions do not reflect the relevant statutory mandate. The trial court granted Moore\u2019s motion to dismiss on grounds of double jeopardy, whereas section 114 \u2014 11(g) specifically allows the State to retry the defendant under these circumstances. For this reason, the trial court\u2019s ruling on the motion to dismiss should be reversed and the cause remanded to the trial court for further proceedings to be conducted without the use of the previously suppressed evidence.\nFor the foregoing reasons, the judgment of the circuit court of Kankakee County is reversed and the cause remanded for further proceedings.\nReversed and remanded.\nMcDADE, EJ., and CARTER, J., concur.", "type": "majority", "author": "JUSTICE O\u2019BRIEN" } ], "attorneys": [ "John J. Boyd, State\u2019s Attorney, of Kankakee (Terry A. Mertel and Dawn D. Duffy (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Leonard E Sacks, of Sacks, Gubbins & Regas, of Kankakee, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SIEMON T. MOORE, Defendant-Appellee.\nThird District\nNo. 3\u201407\u20140567\nOpinion filed October 24, 2008.\nJohn J. Boyd, State\u2019s Attorney, of Kankakee (Terry A. Mertel and Dawn D. Duffy (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nLeonard E Sacks, of Sacks, Gubbins & Regas, of Kankakee, for appellee." }, "file_name": "1019-01", "first_page_order": 1035, "last_page_order": 1042 }