{ "id": 5581358, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HOWARD WILEY et al., Defendants-Appellees", "name_abbreviation": "People v. Wiley", "decision_date": "1979-04-25", "docket_number": "No. 78-1189", "first_page": "641", "last_page": "645", "citations": [ { "type": "official", "cite": "71 Ill. App. 3d 641" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "424 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027140 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/424/0600-01" ] }, { "cite": "6 L. Ed. 165", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 1421261 ], "opinion_index": 0, "case_paths": [ "/us/22/0579-01" ] }, { "cite": "400 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047837 ], "weight": 9, "pin_cites": [ { "page": "480" }, { "page": "554" }, { "page": "485" }, { "page": "557" }, { "page": "484" }, { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/us/400/0470-01" ] }, { "cite": "432 U.S. 23", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176310 ], "weight": 3, "year": 1971, "opinion_index": 0, "case_paths": [ "/us/432/0023-01" ] }, { "cite": "56 L. Ed. 2d 168", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 1490215 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/436/0128-01" ] }, { "cite": "437 U.S. 82", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177769 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/437/0082-01" ] }, { "cite": "369 U.S. 141", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165831 ], "weight": 6, "pin_cites": [ { "page": "143" }, { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/us/369/0141-01" ] }, { "cite": "430 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12126181 ], "weight": 3, "pin_cites": [ { "page": "571" }, { "page": "651" }, { "page": "1354" } ], "opinion_index": 0, "case_paths": [ "/us/430/0564-01" ] }, { "cite": "235 N.E.2d 819", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. 2d 436", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857997 ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0436-01" ] }, { "cite": "367 N.E.2d 1329", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "67 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812762 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/67/0462-01" ] }, { "cite": "387 N.E.2d 325", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 527", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994098 ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0527-01" ] }, { "cite": "410 U.S. 458", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957586 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "464" }, { "page": "431" }, { "page": "1070" } ], "opinion_index": 0, "case_paths": [ "/us/410/0458-01" ] }, { "cite": "78 S. Ct. 1119", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "355 U.S. 184", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164126 ], "weight": 2, "pin_cites": [ { "page": "187-88" }, { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/us/355/0184-01" ] } ], "analysis": { "cardinality": 616, "char_count": 9785, "ocr_confidence": 0.901, "pagerank": { "raw": 7.516764497825288e-08, "percentile": 0.4469324273345666 }, "sha256": "296045cddca0baf021b253007d042d13b4953f94bd77598e4bf0cc2ffadd6681", "simhash": "1:b403b56878302ee3", "word_count": 1645 }, "last_updated": "2023-07-14T15:52:26.554099+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. HOWARD WILEY et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SIMON\ndelivered the opinion of the court:\n\u201c* \u00b0 * the State with all its resources and power should not be allowed to make repeated attempts to convict an individual \u201d \u201d \u00b0 thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.\u201d Green v. United States (1957), 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 204, 78 S. Ct. 1119.\nThe defendants, Howard Wiley, Cleotha Jackson, and Ray Powell, were charged with theft in violation of section 16 \u2014 1(a) (1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16 \u2014 1(a)(1)) and possession of a stolen vehicle in violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95M, par. 4 \u2014 103(a)). The State planned to call three witnesses to testify before the jury: the arresting officer \u2014 who was the only occurrence witness \u2014 the car\u2019s owner and an expert in automobile valuation. After eliciting the testimony of the police officer, the State sought an overnight recess in order to bring in its remaining two witnesses. The State\u2019s request was denied. The trial judge then, on his own unprompted motion, announced:\n\u201cLet the record show that we have recessed here for the jury at twenty minutes to four. The court advised the State yesterday to present other witnesses, if he had any more to present; therefore, the case is dismissed and the defendants are found acquitted. The case is out.\u201d\nOn the State\u2019s appeal from the trial judge\u2019s order, the defendants raise the controlling issue which we must confront \u2014 whether if this court were to order the defendants tried a second time, as the State contends we should, they would be subjected to double jeopardy in violation of their constitutional rights. In determining the validity of a double jeopardy issue, it is necessary to examine the facts and circumstances of each particular case, for under some circumstances, a second trial may not be barred. Illinois v. Somerville (1973), 410 U.S. 458, 464, 35 L. Ed. 2d 425, 431, 93 S. Ct. 1066, 1070; People ex rel. Mosley v. Carey (1978), 74 Ill. 2d 527, 387 N.E.2d 325.\nThe trial judge\u2019s action in this case can be interpreted in two ways. The defendants contend the order was in fact an acquittal based upon the trial judge\u2019s own interpretation of the merits of the case. They argue that the judge made his decision after realizing that the officer\u2019s testimony was insufficient to establish their guilt, and that neither of the two remaining witnesses could offer further incriminating evidence. This, the defendants assert, is tantamount to an acquittal notwithstanding any possible procedural irregularities.\nThe State, on the other hand, contends that the judge\u2019s action was not based upon the defendants\u2019 guilt or innocence, but instead it was a dismissal of the complaint attributable to judicial indiscretion. The State maintains that regardless of the judge\u2019s characterization of his order as an acquittal, in substance his order merely had the effect of dismissing the complaint, and this has been held an appealable order. (People v. Martin (1977), 67 Ill. 2d 462, 367 N.E.2d 1329; People v. Love (1968), 39 Ill. 2d 436, 235 N.E.2d 819.) Moreover, the State, citing section 115 \u2014 4(k) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 115 \u2014 4(k)), contends that since it had not yet rested its case, the judge\u2019s decision cannot be a directed verdict of acquittal. The State insists that the trial judge ordered the dismissal to penalize the State for its failure to comply with earlier court orders directing that the remaining witnesses be available to testify on the day the court dismissed the case.\nIrrespective, however, of whether the defendants\u2019 or the State\u2019s explanation of the trial judge\u2019s act is the accurate one, a second trial would subject the defendants to double jeopardy.\nIf the judge\u2019s order is accepted as an unequivocal acquittal of the defendants, there is no doubt that a retrial is prohibited. The Supreme Court stated in United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1354, that \u201c[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that \u2018[a] verdict of acquittal 999 could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.\u2019 [Citations.]\u201d\nA new trial is prohibited even if the acquittal was contrary to the evidence, for questions regarding the merits of an acquittal are not germane to a double jeopardy claim. In Fong Foo v. United States (1962), 369 U.S. 141, 7 L. Ed. 2d 629, 82 S. Ct. 671, the Supreme Court held that an acquittal ordered as a result of judicial error after jeopardy attached, was not reversible so as to justify a new trial. The court stated that \u201c[t]he Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation. Nevertheless, \u2018[t]he verdict of acquittal was final, and could not be reviewed 9 9 9 without putting [the petitioners] twice in jeopardy, and thereby violating the Constitution.\u2019 [Citation.]\u201d Fong Foo, 369 U.S. 141, 143, 7 L. Ed. 2d 629, 631, 82 S. Ct. 671.\nThe State\u2019s interpretation of the judge\u2019s decision as merely a dismissal of the complaint presents more complex problems than an outright acquittal. In such instances the double jeopardy clause does not always act as an absolute bar to a second trial. (See United States v. Scott (1978), 437 U.S. 82, 56 L. Ed. 2d 168, 98 S. Ct. 2187; Lee v. United States (1977), 432 U.S. 23, 53 L. Ed. 2d 80, 97 S. Ct. 2141.) There are no fixed rules governing when a retrial is precluded if the initial proceeding is aborted prior to verdict without the defendant\u2019s consent. As stated by the Supreme Court in United States v. Jorn (1971), 400 U.S. 470, 480, 27 L. Ed. 2d 543, 554, 91 S. Ct. 547, \u201c[T]his Court has, for the most part, explicitly declined the invitation of litigants to formulate rules based on categories of circumstances which will permit or preclude retrial.\u201d\nSecond trials have been allowed in instances where the trial judge\u2019s termination of the initial trial was based upon a manifest necessity, or where the ends of public justice would otherwise be defeated. At the same time, the Supreme Court has admonished that such discharges \u201cought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes * 0 (United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165.) The standard of manifest necessity first promulgated in 1824 in Perez, and thereafter applied by both State and Federal courts, and recently discussed by the Supreme Court in Jorn, \u201cstands as a command to trial judges not to foreclose the defendant\u2019s option [of having his trial completed by the initial tribunal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.\u201d (Jorn, 400 U.S. 470, 485, 27 L. Ed. 2d 543, 557, 91 S. Ct. 547.) Thus, if the termination of the instant proceeding was the result of judicial indiscretion, as the State contends in this court, Perez and Jorn mandate that the defendants not be subjected to reprosecution.\nIn support of a second trial, the State refers to the decisions in Lee v. United States and United States v. Scott, where the court allowed the retrial of two formerly dismissed defendants. In both of these cases, however, the termination of the initial proceeding was the consequence of the allowance by the trial judge of the defendants\u2019 own motions; and similarly in the recent Illinois Supreme Court opinion in People ex rel. Mosley v. Carey, a mistrial was declared only after the defendant expressly withdrew his earlier stated objection to a mistrial. This differs from the present case where the defendants presented no motion and in fact sat as silent observers while the trial judge, sua sponte, reached his decision. This difference is significant, for where the trial judge before the introduction of evidence has been completed, \u201cacting without the defendant\u2019s consent, aborts the proceeding, the defendant has been deprived of his Valued right to have his trial completed by a particular tribunal.\u2019 [Citation.]\u201d Jorn, 400 U.S. 470, 484, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547; see also United States v. Dinitz (1976), 424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075.\nThe defendants, as in Jorn, did nothing to initiate the dismissal of the case. It was the sole, unprompted act of the trial judge. The defendants\u2019 only role in their acquittal was their silence. To allow a second trial under these circumstances would force defendants, in similar situations, to object to their own acquittal in order to avoid retrial. Merely stating that proposition demonstrates how absurd and unrealistic such a rule would make the law appear.\nUnder the facts in this case, whether the trial judge\u2019s action is viewed as an acquittal or as a dismissal resulting from judicial indiscretion, the defendants cannot be retried. Accordingly, the appeal is dismissed.\nAppeal dismissed.\nMcGILLICUDDY and RIZZI, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SIMON" } ], "attorneys": [ "Bernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Iris E. Sholder and Ira H. Raphaelson, Assistant State\u2019s Attorneys, of counsel), for the People.", "James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellees." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HOWARD WILEY et al., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 78-1189\nOpinion filed April 25, 1979.\nBernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Iris E. Sholder and Ira H. Raphaelson, Assistant State\u2019s Attorneys, of counsel), for the People.\nJames J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellees." }, "file_name": "0641-01", "first_page_order": 663, "last_page_order": 667 }