{ "id": 3272073, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND PENDLETON et al., Defendants-Appellants", "name_abbreviation": "People v. Pendleton", "decision_date": "1979-08-09", "docket_number": "No. 77-623", "first_page": "580", "last_page": "598", "citations": [ { "type": "official", "cite": "75 Ill. App. 3d 580" } ], "court": { "name_abbreviation": "Ill. 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RAYMOND PENDLETON et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. JUSTICE LINN\ndelivered the opinion of the court:\nEach of the defendants, Raymond Pendleton, Lawrence Samuels, Darryl Turner, Clarence Spann and Charles Brownlovv, was indicted for the rape (Ill. Rev. Stat. 1975, ch. 38, par. 11\u20141) of the complainant. A bench trial was held in the circuit court of Cook County. Following the presentation of all the evidence, a mistrial was declared because of claimed prosecutorial misconduct. Subsequently, after a second bench trial, the defendants were found guilty of rape and each defendant sentenced to a term of imprisonment.\nThe defendants appeal, contending, inter alia, that the second prosecution placed them twice in jeopardy for the same offense in violation of the fifth amendment to the United States Constitution (U. S. Const., amend. V). While admitting that they failed to raise this double jeopardy claim below, either before or during the course of the second trial, the defendants contend that the issue is cognizable under our plain error rule (Ill. Rev. Stat. 1975, ch. 110A, par. 615(a)).\nWe agree and we reverse the convictions of the defendants.\nAt the first bench trial which was held in March 1975 before Judge Louis A. Wexler, Wanda Lloyd was called as a witness for the State. Wanda testified that on the night of May 28, 1974, she was at her home with the complainant. They were getting ready to go to a drive-in movie. At approximately 7:30 p.m., Wanda and the complainant were picked up by Thomas Bell and Lawrence Samuels. Thomas Bell\u2019s nickname is \u201cSlim Bone\u201d and he was Wanda\u2019s boyfriend. Lawrence Samuels\u2019 nickname is \u201cLefty\u201d and he was the complainant\u2019s date.\nWanda testified further that the two couples drove to the apartment of Samuels\u2019 \u201caunt,\u201d where Samuels apparently was expecting a phone call. Subsequent testimony disclosed that the apartment actually belonged to the mother of Raymond Pendleton. Samuels was a close friend of the Pendleton family and often referred to Pendleton\u2019s mother as his \u201caunt.\u201d\nWanda, Bell and the complainant waited outside in the car while Samuels entered the apartment alone. About 20 minutes had elapsed when Samuels returned to the car and informed them that his \u201caunt\u201d had not yet called. He invited them into the apartment to wait with him. Wanda, Bell and the complainant accepted the invitation.\nAs the two couples waited in the apartment, an unidentified man \u201cdressed in pink\u201d walked in, sat down and introduced himself. Neither Wanda nor the complainant had seen this man before. A short time later, Charles Brownlow, Clarence Spann, Darryl Turner, and Ronald Powells entered the apartment. After saying \u201chello\u201d to Brownlow, Wanda and the complainant, they walked into the kitchen where they sat around a table talking. Wanda and the complainant knew each of these men from the neighborhood.\nSpann, Turner and Powells exited the apartment shortly before 9 p.m. At approximately 9:05 p.m., Bell and Wanda left the apartment to get some cigarettes and \u201cdrinks.\u201d When Wanda and Bell returned at approximately 9:45 p.m., the lights in the apartment were off. Wanda knocked on the door and called out the complainant\u2019s name. A man \u201cin pink\u201d opened the apartment door about an inch and said the complainant was not there. The door was then closed. When Wanda knocked again, a voice from inside the apartment said the complainant had left. Wanda insisted that the complainant would not have left without her.\nWhen no further response was forthcoming from the apartment, Wanda and Bell walked away. Wanda asserted that she and Bell then sat in their car, which was parked near the apartment building, and argued for approximately 20-25 minutes about where the complainant might be. Bell eventually exited the car and told Wanda \u201che was going to carry the drinks to the people in the apartment.\u201d Wanda waited in the car for about 30-40 minutes. When Bell later returned, he and Wanda began arguing again about where the complainant might be. Wanda said she knew the complainant was in the apartment and that Bell should \u201cgo get her.\u201d Bell left the car but returned later, alone. After insisting that the complainant was in the apartment, Wanda again told Bell that he should \u201cget her out of there.\u201d Bell returned to the apartment yet a third time and returned a short time later with the complainant and Charles Brownlow.\nWanda noticed that the complainant had scratches on her face and arms, and \u201cher jaw was kind of pinkish.\u201d The complainant was crying and told Wanda she had been raped by Clarence Spann, Darryl Turner, Ronald Powells, Raymond Pendleton, and Charles Brownlow. Wanda then saw Spann, Turner, Powells and Pendleton leaving the apartment.\nBell informed Wanda and the complainant that his car was out of gas. Wanda asked Spann if he could give them a lift to the \u201cThree Comers\u201d liquor tavern. Spann agreed. The complainant, Wanda and Spann sat in the front seat of the car, while Brownlow, Turner and Powells sat in the rear seat. When they arrived at \u201cThree Comers,\u201d Wanda telephoned and talked to her mother. Wanda and the complainant then walked, with Brownlow, to Wanda\u2019s home. During this short walk, the complainant accused Brownlow of raping her. When they reached Wanda\u2019s home, Wanda told her mother that the complainant had been raped. Wanda\u2019s mother called the complainant\u2019s mother and informed her of the incident. Wanda then walked the complainant home and the complainant\u2019s mother then called the police.\nThe State called Delores Ryan, a policewoman with the City of Chicago, as its next witness. She testified that on the night of May 28,1974, she received a radio message to proceed to a certain location and conduct an investigation as to an alleged rape incident. She arrived at the complainant\u2019s house and talked to the complainant\u2019s mother. Ms. Ryan observed scratches on the complainant\u2019s face and arms and a bruise \u201capparently on her cheek.\u201d In contrast to the five names the complainant had furnished Wanda earlier, the complainant gave Ms. Ryan the nicknames of only three possible offenders: (1) \u201cLefty\u201d (Lawrence Samuels); (2) \u201cD.T.\u201d (Darryl Turner); and (3) \u201cCountry\u201d (Raymond Pendleton).\nOn the way to the hospital, the complainant pointed out to Ms. Ryan the apartment where the alleged rape occurred. The complainant was then transported to the hospital, and at that time the officers staked out the apartment where the alleged rape took place. Some time thereafter, Ms. Ryan received a call at the hospital informing her that some suspects had been taken into custody. Ms. Ryan and the complainant later proceeded to the 51st District police station where a lineup was conducted.\nThe State called the complainant as its next witness. The complainant substantially corroborated Wanda\u2019s earlier testimony about what transpired the night of May 28,1974. The complainant stated further that after Bell and Wanda left the apartment to get some cigarettes and \u201cdrinks,\u201d Samuels called the complainant into the kitchen. At this point, Spann, Turner, Powells and Pendleton re-entered the apartment. Samuels took the complainant into the bathroom and said, \u201cI want you to go out the window and come back, because these dudes are going to rip you off.\u201d After completing this statement, Samuels walked out of the bathroom.\nThe complainant followed Samuels and told him she wanted to leave. As she walked through the living room toward the door, she noticed Pendleton rolling a bed out of a nearby closet. The complainant tried to open the apartment door but it was locked. Samuels was \u201cfooling around\u201d with the lock when suddenly the lights went out. Somebody grabbed the complainant and threw her to the floor. She was crying and screaming. She asked Samuels to help her, \u201cbut he just backed away.\u201d When she screamed again, somebody hit her on the right cheek and told her to shut up. Somebody then pulled her pants down.\nThe complainant heard a male voice say: \u201cI\u2019m first.\u201d She identified the voice as belonging to Ronald Powells. After Powells had sexual intercourse with her, somebody picked her up off the floor and placed her on the bed. A second man then had intercourse with her. She did not know who that second man was. A number of other unidentified men \u201cthen took turns.\u201d\nAfter the lights went out, the complainant was unaware if anyone left the apartment. However, she did recall hearing \u201csome dude\u201d enter the apartment. She testified that somebody asked him if he wanted a turn and he replied that \u201che didn\u2019t want to go to jail for nothing like that.\u201d\nThe State then attempted to elicit testimony from the complainant which would identify those men who had sexual intercourse with her.\n\u201c[Prosecutor]: Do you know if anyone in that room did anything to you\u201d\n[Defense Counsel]: Judge, I object 9 9 9.\n[Prosecutor]: While you were on the bed with your pants down, what happened to you. Go into that instead\u2014\nThe Witness: Each one of them had sexual intercourse with me.\n[Prosecutor]: Q. Do you know in what order they had sexual intercourse with you?\nA. No.\nQ. Could you see\u2014\n[Defense Counsel]: She stated she doesn\u2019t know.\nThe Court: Let her answer.\nThe Witness: Well, after \u2014 I think after the second one had sexual intercourse, someone went in the washroom and turned the light on and the light was shining off the kitchen into the living room. [Prosecutor]: Q. Did you see anything then?\nA. Yes, I could see a little bit.\nQ. What could you see?\nA. I could see each one of them.\nQ. Each one of whom?\nA. The\ndudes.\nQ. What could you see each one of these dudes doing?\nA. Some was sitting on the couch, some were in the kitchen.\nQ. What was happening?\nA. They were talking to each other.\nQ. What else was happening, what were you doing?\nA. I was just laying on the bed and somebody was having sexual intercourse with me.\nQ. Do you know who that was?\nA. It was between Charly Brown [Charles Brownlow] and D.T. [Darryl Turner], I don\u2019t know.\n[Defense Counsel]: I object to that, ask it be stricken.\nThe Court: I will strike it if she doesn\u2019t know who it was.\ne e a\n[Prosecutor]: Q. Could you see anyone come over to the bed where you were?\n[Defense Counsel]: Your Honor\u2014\nThe Court: She may answer.\n[Prosecutor]: Q. After the light was turned on?\nThe Court: With the light in the bathroom giving you light to see the people there, could you see anyone getting on top of you at that time?\nThe Witness: Yes.\nThe Court: All right, go ahead.\n[Prosecutor]: Q. Who could you see then?\nA. I would have to say, if Charly Brown \u2014 it had to be D.T.\n[Defense Counsel]: Your Honor\u2014\nThe Court: Is it Charly Brown or D.T.?\nThe Witness: I was, well, really shocked.\nThe Court: You don\u2019t know?\nThe Witness: No.\u201d\nThe complainant went on to testify that after \u201cthey\u201d finished, she got up and dressed. Samuels then told her to take her pants off because it was his turn. The complainant was questioned further.\n\u201cQ. Then what happened?\nA. [Samuels] had sexual intercourse with me.\nft ft ft\n[Prosecutor]: Q. Was anyone else in the room at that time?\nA. Yes.\nQ. Who else was in the room?\nA. Some of them. I don\u2019t know exactly who was in the room.\nft ft ft\nQ. Now, what happened after Lefty [Lawrence Samuels] had sexual intercourse with you?\nA. Then we went all over again.\nQ. Just what happened right after Lefty had sexual intercourse with you, what is the next thing that happened?\nA. Then somebody else got on top of me.\nQ. Who got on top of you?\nA. I don\u2019t know.\nQ. Who was in the room at that time?\nA. I don\u2019t know exactly who all was in the room.\nQ. Could you hear anyone saying anything?\nA. They was mumbling and laughing.\nQ. Who was mumbling and laughing?\n[Defense Counsel]: Judge\u2014\nThe Court: She doesn\u2019t know, sustained.\nft ft ft\nQ. What happened then?\nA. Then they just kept getting on top.\nQ. Who got on top?\nA. I don\u2019t know.\u201d\nThe complainant testified that during this incident she heard Wanda and Bell come to the apartment door and then leave. Bell later returned and entered the apartment. As the complainant was dressing for the second time, she saw Brownlow, Turner, Samuels, Spann, Powells, Pendleton and a man she didn\u2019t know standing- around in the room. Bell and Brownlow walked the complainant out to the car. The complainant told Wanda she had been raped.\nOn cross-examination of the complainant, the following colloquy took place:\n\u201cQ. 9 * 9 [Y]ou have testified that at no time did you know who actually was having sexual intercourse with you, is that correct, Miss Dickerson?\nA. Well, I could hear them talking and I know who was in the room.\nQ. I know, but you didn\u2019t know who was actually having sexual intercourse?\nA. I don\u2019t know what order they was going in.\nQ. You didn\u2019t know who was having intercourse with you at one particular time?\nA. I knew that they was there.\nQ. Miss Dickerson, I know what you are saying, but each time did you know which one was having intercourse with you?\nA. No 9 9 9.\u201d\nA recess was declared and the cross-examination of the complainant was continued over the weekend to the following Monday.\nDefense counsel concluded complainant\u2019s cross-examination on Monday morning. On redirect examination by the State, the following testimony was then elicited from the complainant:\n\u201c[Prosecutor]: 9 9 9 [D]o [you] know who had intercourse with you?\nA. Yes.\n# \u00bb O\n[Prosecutor]: Who could that be?\ne <* o\nThe Witness: 9 9 9 Clarence Spann, 9 9 9 Charles Brownlow, 9 9 9 Richard Pendleton, 9 9 9 Laurence Samuels, 9 9 9 Darryl Turner, 9 9 9 Ronald Powells, 9 9 9 [and] the dude I don\u2019t know.\u201d\nOn re-cross-examination, the complainant admitted that during the weekend recess she had talked with the State\u2019s Attorney. She stated, however, that the State\u2019s Attorney did not tell her what to say. A conference was then held in the trial judge\u2019s chambers. Defense counsel argued that it was \u201cabsolutely wrong\u201d for the prosecutor to have talked with the complainant while she was still subject to cross-examination. He then moved to strike the complainant\u2019s redirect examination testimony.\nTwo Assistant State\u2019s Attorneys appeared at the Monday proceedings. One explained to the court that he had just met the complainant on that morning, having been assigned to substitute for a vacationing collegue who had participated in trying the case the past Friday. He introduced himself, told the complainant she would be subject to further cross-examination by the defense, and informed her that the State would probably ask her more questions on redirect examination. He then made the following representation to the court:\n\u201c\u00b0 \u00b0 \u00b0 I give you my word as an officer of this court that I did not prepare the witness, I didn\u2019t apprise her of her testimony, and I merely told her to tell the truth and she had nothing to fear.\u201d\nThereupon, the trial court denied defense counsel\u2019s motion to strike complainant\u2019s redirect testimony.\nThe State rested its case-in-chief. The defendant\u2019s motion for a directed finding of not guilty was denied. Several of the defendants then took the stand and testified in their own behalf. Following the close of all the evidence on the next day, Tuesday, defense counsel renewed his motion to strike the complainant\u2019s redirect examination testimony.\n[Defense Counsel]: Your Honor, if it please the Court, I would like to renew a motion \u00b0 \u201c *.\nThe Court: Okay, let\u2019s go in chambers.\n# # #\n[Defense Counsel]: \u201d \u00b0 * I\u2019m renewing the same motion I made yesterday \u00b0 *\nDefense counsel argued that the complainant had been improperly influenced in some way because in her testimony on Monday she was able to make identifications \u201cwhich she could not [make] [the preceding] Friday.\u201d The Assistant State\u2019s Attorney who had joined the prosecution team on Monday morning responded to this claim.\n\u201c[The Assistant State\u2019s Attorneys] on Friday evening, Your Honor, had an occasion to sit down in our office on the fifth floor of this building, and we discussed this case, and [my colleague], Your Honor, went over all of her notes with me. We had a lengthy conference on this case. I would estimate for about an hour, an hour and a half, and [she] indicated to me at that time that there was some difficulty, Your Honor, regarding identification. [We] went over the elements of rape, and we were convinced, Your Honor, that we had proven a prima facie case of rape but for a simple identification procedure. I, of course, asked [my colleague] at that time whether the victim in this case was still on the stand. She indicated that she was in the process of being cross-examined. [We] at that time between ourselves, Your Honor, had a conference relative to an in Court identification of the respective defendants in this case.\u201d\nHe then stated emphatically that neither of the prosecutors talked to the complainant Monday morning about the subject of identification.\nThe court then called the complainant to the stand and questioned her.\n\u201cThe Court: 0 0 0 [D]uring the weekend * * * did you have a conversation with either one of the State\u2019s Attorneys * * *?\nA. No.\nQ. \u00b0 \u00b0 \u00b0 After leaving [the stand] Friday \u00b0 \u00b0 e where did you go? * \u2022 \u2022\nA. \u00b0 \u00b0 \u00b0 I went back up to the State\u2019s Attorney\u2019s office.\nQ. \u00b0 \u00b0 \u00b0 Who went with you?\nA. [The witness identified the Assistant State\u2019s Attorney who had participated in the entire trial.]\n# # #\nQ. And who else?\n# # #\nA. The other Assistant State\u2019s Attorney. (Apparently referring to the vacationing prosecutor).\nft \u00ab \u00ab\nQ. Whose office did you go into * * \u00b0?\nA. [Identifying the office of the Assistant State\u2019s Attorney who had participated in the entire trial.]\nQ. * * * And did you have a conversation with the Assistant State\u2019s Attorneys at that time?\nA. They asked me some questions about \u2014 about the case.\nQ. Exactly what did they ask you?\nA. Like they was reviewing over it, Your Honor.\n\u00bb # <*\nQ. Reviewing over again?\nA. Yes, you know, asking me explain over again what happened.\n# # *\nQ. Did [they] tell you * \u201d # what you were going to \u00b0 \u00b0 \u00b0 [testify to on] Monday?\nA. No.\u201d\nThe court addressed the prosecutor who had participated in the entire trial and who had discussed the testimony with the complainant.\n\u201cThe Court: [W]hat do you want to tell the Court?\n[Prosecutor]: It happened this way. I asked her if she had been nervous. She said she had. I said, \u201cLet\u2019s review what you have said,\u201d and then I told her to come back Monday.\nThe Court: What was the purpose of reviewing what was said?\n[Prosecutor]: She was just very nervous. I was trying to calm her down. I was telling her that she did very well, but I asked her, are you nervous\u2014 I said, \u201cWere you nervous on the stand?\u201d And she said yes, she was.\nThe Court: But you reviewed the whole testimony that she gave. What\u2019s the purpose of that when a witness is on the stand?\n[Prosecutor]: We were fust talking about it just to calm her down.\nThe Court: I\u2019m going to declare a mistrial. Motion allowed, mistrial. Let the record reflect when we met here yesterday [the substitute prosecutor] informed the Court that all he said to the complaining witness was that he was going to be the attorney and\u2014\n[Prosecutor]: That\u2019s all I said.\nThe Court: But the record will indicate that there was a long conversation by [the other] Assistant State\u2019s Attorney * * * who was in the midst of a trial taking a witness downstairs and reviewing all of the evidence and because of that the Court is declaring a mistrial.\n[Defense Counsel]: That you, Your Honor.\u201d (Emphasis added.)\nSubsequently, a second bench trial was held before Judge Robert L. Massey. Each of the defendants was found guilty of the rape of the complainant and each was sentenced to a term of imprisonment. As will be noted later, at the second trial before the able and experienced jurist, the double jeopardy issue was not raised nor was any reference made to if.\nThe defendants appeal.\nOpinion\nI\nThe defendants contend that their initial prosecution ended in a mistrial due to \u201cprosecutorial overreaching,\u201d and that any reprosecution of them violates the double jeopardy clause of the United States Constitution.\nAs evidence was presented and received, there is no dispute that jeopardy had attached when the mistrial was declared at the defendants\u2019 first trial. (Serfass v. United States (1975), 420 U.S. 377, 388, 43 L. Ed. 2d 265, 274, 95 S. Ct. 1055, 1062.) However, to conclude that jeopardy attached prior to a mistrial declaration \u201cbegins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.\u201d (Illinois v. Somerville (1973), 410 U.S. 458, 467, 35 L. Ed. 2d 425, 433, 93 S. Ct. 1066, 1071.) We must now determine whether, under the facts of this particular case, the State\u2019s reprosecution of the defendants placed them \u201ctwice\u201d in jeopardy for the same offense.\nThe prohibition against double jeopardy, made applicable to the States through the fourteenth amendment (Benton v. Maryland (1969), 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056), is \u201cone of the oldest ideas found in western civilization\u201d (Bartkus v. Illinois (1959), 359 U.S. 121, 151, 3 L. Ed. 2d 684, 706, 79 S. Ct. 676, 696 (Black, J., dissenting)). Although the primary purpose of the double jeopardy clause is to preserve the integrity of final judgments (Crist v. Bretz (1978), 437 U.S. 28, 33, 57 L. Ed. 2d 24, 29-30, 98 S. Ct. 2156, 2159), it also protects a defendant\u2019s separate but related interest in avoiding multiple prosecutions where his initial trial is aborted before a final determination of guilt or innocence can be made (United States v. Scott (1978), 437 U.S. 82, 92, 57 L. Ed. 2d 65, 74-75, 98 S. Ct. 2187, 2194).\nIf the first trial is not completed, a second prosecution may be grossly unfair. \u201cIt increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing\u201d (Arizona v. Washington (1978), 434 U.S. 497, 503-04, 54 L. Ed. 2d 717, 727, 98 S. Ct. 824, 829), and enhances \u201cthe possibility that even though innocent he may be found guilty\u201d (Green v. United States (1957), 355 U.S. 184, 188, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223).\nThis does not mean, however, that every time a trial fails to end in a final judgment, the accused is entitled to go free. A defendant\u2019s valued right to have his fate determined by the original tribunal \u201cmust [sometimes] be subordinated to the public\u2019s interest in fair trials designed to end in just judgments.\u201d Wade v. Hunter (1949), 336 U.S. 684, 689, 93 L. Ed. 974, 978, 69 S. Ct. 834, 837.\nIf, after jeopardy has attached, a mistrial is declared at the prosecutor\u2019s request, or by the trial judge sua sponte, retrial ordinarily will not be barred if there was a \u201cmanifest necessity\u201d for the act. (Arizona v. Washington (1978), 434 U.S. 497, 54 L. Ed. 2d 717, 98 S. Ct. 824.) Manifest necessity is usually found where, due to circumstances beyond the control of the parties and the court, it becomes no longer possible to conduct the trial, or no longer possible to reach a fair result based upon the evidence. However, manifest necessity has also been found where an impartial verdict could not be reached because of prosecutorial or judicial error (see, e.g., Himmelfarb v. United States (9th Cir. 1949), 175 F.2d 924 (the district attorney, in the presence of the jury, referred to another criminal case pending against the defendant); United States v. Giles (W.D. Okla. 1937), 19 F. Supp. 1009 (prejudicial remarks by the trial judge)) and where an impartial verdict could have been reached but a procedural error by the prosecutor made reversal on appeal a certainty (Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066 (jurisdictional defect in the indictment that could not be cured by amendment or waiver)).\nIf the mistrial declaration is not requested by the prosecutor, or entered by the trial judge sua sponte, but, rather, is requested by the defendant and made with his consent, ordinarily there is no barrier to reprosecution. This is true \u201ceven if the defendant\u2019s motion [for a mistrial] is necessitated by prosecutorial or judicial error.\u201d (United States v. Jorn (1971), 400 U.S. 470, 485, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 557 (plurality opinion).) \u201cSuch a motion * * * is deemed to be a deliberate election on [the defendant\u2019s] part to forego his valued right to have his guilt or innocence determined before the first trier of fact.\u201d United States v. Scott (1978), 437 U.S. 82, 57 L. Ed. 2d 65, 76, 98 S. Ct. 2187, 2189.\nAs indicated, if the manifest necessity or the defendant\u2019s request for a mistrial is precipitated by prosecutorial or judicial error, retrial is permissible. Because of the complexities and dynamics of the trial itself; some prosecutorial or judicial error will inevitably occur in a significant number of cases. To preclude reprosecution whenever such error results in a mistrial would exact too high a price for the defendant\u2019s interest in finality and accord too little weight to society\u2019s vital interest in the enforcement of criminal laws. As Justice Harlan stated in United States v. Jorn (1971), 400 U.S. 470, 483-84, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 556:\n\u201cCertainly * * * the Double Jeopardy Clause does not guarantee a defendant that the Government will be prepared, in all circumstances, to vindicate the social interest in law enforcement through the vehicle of a single proceeding for a given offense. Thus, for example, reprosecution for the same offense is permitted where the defendant wins a reversal on appeal of a conviction. United States v. Ball, 163 U.S. 662 (1896); see Green v. United States, 355 U.S. 184, 189 (1957). The determination to allow reprosecution in these circumstances reflects the judgment that the defendant\u2019s double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decisionmaking resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error.\u201d See also United States v. Tateo (1964), 377 U.S. 463, 466, 12 L. Ed. 2d 448, 451, 84 S. Ct. 1587, 1589.\nHowever, if the manifest necessity or the defendant\u2019s request for a mistrial is attributable not to prosecutorial or judicial error, but, rather to prosecutorial or judicial overreaching, retrial is forbidden. United States v. Martin (8th Cir. 1977), 561 F.2d 135; United States v. Kessler (5th Cir. 1976), 530 F.2d 1246; United States v. Broderick (S.D. Fla. 1977), 425 F. Supp. 93.\nOverreaching is typically defined as prosecutorial or judicial misconduct: (1) which is specifically designed to provoke a mistrial in order to secure a second \u2014 and perhaps more favorable \u2014 opportunity to convict the accused (see United States v. Dinitz (1976), 424 U.S. 600, 611, 47 L. Ed. 2d 267, 276, 96 S. Ct. 1075, 1081; Drayton v. Hayes (2d Cir. 1979), 589 F.2d 117); or (2) which is motivated by bad faith or undertaken to harass or prejudice the accused (see Lee v. United States (1977), 432 U.S. 23, 32-34, 53 L. Ed. 2d 80, 89, 97 S. Ct. 2141, 2147; United States v. Martin (8th Cir. 1977), 561 F.2d 135).\nIn contrast to prosecutorial or judicial error, overreaching is not an inevitable part of the trial process and cannot be condoned. Rather, it signals a breakdown in the integrity of the judicial proceeding. When a trial is tainted by overreaching and ends in a mistrial, the defendant\u2019s interest in finality overrides society\u2019s interest in law enforcement, and reprosecution is barred regardless of whether the mistrial was granted at the defendant\u2019s request (see, e.g., United States v. Kessler (5th Cir. 1976), 530 F.2d 1246), or on the initiative of the prosecutor or the trial judge (see United States v. Wilson (6th Cir. 1976), 534 F.2d 76, 79 n. 5).\nConsequently, it is unnecessary for us to determine in this case if the mistrial was granted at the defendants\u2019 request or with their consent. (See generally Annot., 63 A.L.R.2d 782 (1959); People v. Bean (1975), 26 Ill. App. 3d 1090, 325 N.E.2d 679, affd on other grounds (1976), 64 Ill. 2d 123, 355 N.E.2d 17.) The only issue we need to resolve is whether the assistant state\u2019s attorney\u2019s conduct at the first trial, which precipitated the mistrial declaration, constituted overreaching and thus acts as a bar to the defendants\u2019 reprosecution.\nThe State and the defendants assume that the assistant state\u2019s attorney\u2019s conference with the complainant \u2014 during a recess in the first trial and while the complainant was still subject to cross-examination\u2014 was improper. However, the State and the defendants disagree whether this misconduct constitutes prosecutorial overreaching.\nIt is not improper for an attorney to refresh a witness\u2019 memory before he takes the stand. Reviewing testimony with a witness makes for better direct examination, facilitates the trial and lessens the possibility of irrelevant and perhaps prejudicial interpolations. (See 3 Wigmore, Evidence \u00a7788 (Chadbourn rev. 1970).) The attorney must be careful, however, to respect \u201cthe important ethical distinction between discussing testimony and seeking improperly to influence it.\u201d Geders v. United States (1976), 425 U.S. 80, 90 n. 3, 47 L. Ed. 2d 592, 600 n.3, 96 S. Ct. 1330, 1336 n. 3.\nAs a general rule, an attorney may also consult with a witness, regarding his testimony, even after the witness is placed on the stand, provided a legitimate need arises for such a discussion. (See 23 C.J.S. Criminal Law \u00a71025 (1961).) The attorney, for example, may require additional information made relevant by the days\u2019 testimony, or he may find it necessary to inquire along lines not fully explored earlier. However, since such discussions (after a witness has taken the stand and is still subject to examination) pose a tantalizing potential for misconduct, they are to be strictly scrutinized.\nThere is no question that when the weekend recess was declared at the defendants\u2019 first trial \u2014 while the complainant was on the stand and subject to further cross-examination \u2014 the prosecution\u2019s case was going badly. The assistant state\u2019s attorney was acutely aware that, based upon Friday\u2019s testimony, the State may have failed to prove a prima facie case against a number of the defendants because of the complainant\u2019s complete and often times disastrous inability to identify her alleged attackers. Immediately after the weekend recess was declared on Friday, the assistant state\u2019s attorney took the complainant into an office and proceeded to \u201creview and discuss\u201d with her the testimony she had previously given that day. When the trial reconvened on Monday, the complainant positively, conclusively and unhesitatingly identified the defendants as the men who had allegedly raped her.\nSince the complainant\u2019s positive identification testimony on Monday appeared to be a drastic change from her uncertain identification testimony the previous Friday, both defense counsel and the trial judge attempted to ascertain whether any of the State\u2019s Attorneys had met with the complainant, over the weekend recess, to discuss her testimony. While the assistant state\u2019s attorney was never specifically asked whether such a conference had taken place on Friday, we believe the tenor of the inquiries necessitated and should have prompted the assistant state\u2019s attorney\u2019s disclosure to the court of her Friday afternoon conference with the complainant.\nThe assistant state\u2019s attorney, however, stood mute. She allowed her co-counsel (who had just entered the case that weekend and was apparently unaware of the Friday afternoon conference) to make repeated representations to the court which, at the very least, implied that no one from the State\u2019s Attorney\u2019s office had met with the complainant over the weekend recess to discuss her testimony. It was not until the trial judge had placed the complainant on the stand and questioned her that the assistant state\u2019s attorney\u2019s lengthy conference with the complainant came to light.\nThere was no legitimate need for the assistant state\u2019s attorney to meet with the complainant and to intensively review and discuss the complainant\u2019s previous testimony. We reject the State\u2019s claim that such a conference was necessary to calm the complainant down. There were other less suspect ways available to reliev\u00e9 the complainant of her nervousness; ways which would not have posed such an inviting potential for prosecutorial manipulation.\nIt would be futile to attempt to evaluate whether the assistant state\u2019s attorney intended to or did in fact manipulate the complainant\u2019s testimony by means of this conference. (See Illinois v. Somerville (1973), 410 U.S. 458, 482-83 n. 1, 35 L. Ed. 2d 425, 442 n. 1, 93 S. Ct. 1066, 1079 n. 1 (Marshall, J., dissenting).) Nevertheless, it is imperative that testimonial communication represent, so far as possible, the sincere expression of the witness\u2019 own recollection and observation. Any and all forms of prosecutorial misconduct which realistically appear to deprive a witness\u2019 testimony of this fundamental quality must be forbidden.\nConsequently, we find that based upon the facts of this particular case, the assistant state\u2019s attorney\u2019s misconduct in holding the conference, coupled with her tacit attempt to conceal it and the possibility that prejudicial harm may have resulted therefrom, warrants a finding of overreaching. It would be offensive to the constitutional guaranty against successive, oppressive prosecutions, if the State, at a trial in which its case was going badly, could, by such misconduct, precipitate a mistrial and thereby gain another more favorable opportunity to convict the accused.\nFurthermore, the record on appeal compels the inference that the assistant state\u2019s attorney\u2019s misconduct was motivated by bad faith. It apparently resulted from a fear that (based upon the testimony elicited from the complainant on Friday) the trial judge was likely to acquit a number of the defendants. (See United States v. Jorn (1971), 400 U.S. 470, 485 n. 12, 27 L. Ed. 2d 543, 556 n.12, 91 S. Ct. 547, 557 n.12.) Although the attorney for the sovereign must prosecute with earnestness and vigor, (s)he must still be faithful to society\u2019s overriding interest that justice be done. (United States v. Agurs (1976), 427 U.S. 97, 110-11, 49 L. Ed. 2d 342, 354, 96 S. Ct. 2392, 2401.) As the United States Supreme Court stated in Berger v. United States (1935), 295 U.S. 78, 88, 79 L. Ed. 1314, 1321, 55 S. Ct. 629, 633:\n\u201cThe [government attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor\u2014 indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.\u201d See also ABA Standards, The Prosecution Function 51.1(c) (1971).\nWe find that the prosecutorial misconduct at the defendants\u2019 first trial, which precipitated the mistrial declaration, constituted overreaching and acts as a bar to the defendants\u2019 reprosecution.\nII\nThe State contends that by failing to raise the double-jeopardy issue below, either prior to or during the course of the second trial, the defendants have waived it for purposes of appeal. This is indeed the general rule. People v. Scales (1960), 18 Ill. 2d 283, 164 N.E.2d76; People v. Szudy (1978), 56 Ill. App. 3d 494, 371 N.E.2d 1222; United States v. Perez (2d Cir. 1977), 565 F.2d 1227; see generally Waiver of Double Jeopardy Right: The Impact of Jeffers v. United States, 14 Wake Forest L. Rev. 842 (1978).\nHowever, because of the seriousness of the double jeopardy issue in this case, and its intimate relationship to the integrity and fairness of our judicial proceedings, we have elected to consider it as plain error under Supreme Court Rule 615(a) (Ill. Rev. Stat. 1977, ch. 110A, 0par. 615(a)). (See People v. Godsey (1978), 74 Ill. 2d 64, 383 N.E.2d 988; cf. People v. Gallas (1966), 77 Ill. App. 2d 132, 221 N.E.2d 782.) In so doing, we instill life into the words of the Connecticut Supreme Court:\n\u201cIntegrity is the very breath of justice. Confidence in our law, our courts, and in the administration of justice is our supreme interest. No practice must be permitted which invites towards the administration of justice a doubt or distrust of its integrity.\u201d Erwin M. Jennings Co. v. DiGenova (1928), 107 Conn. 491, 499, 141 A. 866, 868.\nIII\nFinally, we feel compelled to point out that the decisional process in this case was extremely troublesome in view of the heinous nature of the alleged crime involved. Rape is one of the most brutal acts one human being can inflict upon another. \u201cIt is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim * * *. Short of homicide, it is the ultimate violation of self.\u2019 \u201d Coker v. Georgia (1977), 433 U.S. 584, 597-98, 53 L. Ed. 2d 982, 992-93, 97 S. Ct. 2861, 2868.\nNevertheless, no matter how reprehensible a particular offense may be, it remains our obligation to turn back the State\u2019s encroachment upon the constitutional rights of its citizens. The attainment of justice oftentimes compels a difficult accommodation among conflicting societal interests. And as the Supreme Court of the United States noted: \u201c[T]he right not to be placed in jeopardy more than once for the same offense is a vital safeguard in our society, one that was dearly won and one that should continue to be highly valued. If such great constitutional protections are given a narrow, grudging application they [will be] deprived of much of their significance.\u201d Green v. United States (1957), 355 U.S. 184, 198, 2 L. Ed. 2d 199, 210, 78 S. Ct. 221, 229.\nAccordingly, for the reasons stated, we conclude that the defendants\u2019 constitutional right not to be placed twice in jeopardy for the same offense has been violated. We, therefore, reverse the convictions of the defendants and direct that each of the indictments be dismissed.\nReversed.\nJOHNSON and ROMITI, JJ., concur.\nPendleton, Samuels, Turner and Brownlow are represented by the Public Defender\u2019s office. Spann, who is represented by a private firm, was allowed to adopt the Public Defender\u2019s brief for purposes of this appeal.\n\u201cNo person \u201c \u00b0 * shall \u00b0 * * be subject for the same offense to be twice put in jeopardy of life or limb.\u201d U.S. Const., amend V.\nFor example, manifest necessity has been found where the judge, defendant or a juror became ill during trial and could not proceed. United States v. Lynch (D.D.C. 1978), 467 F. Supp. 575; United States v. Stein (S.D.N.Y. 1956), 140 F. Supp. 761; United States v. Potash (2d Cir. 1941), 118 F.2d 54; Gardes v. United States (5th Cir. 1898), 87 F. 172. But see Dunkerley v. Hogan (2d Cir. 1978), 579 F.2d 141, cert, denied (1979),_U.S_, 59 L. Ed. 2d 56, 99 S. Ct. 872.\nManifest necessity has been found when it was discovered during the course of the trial that a juror was biased against one of the parties (Simmons v. United States (1891), 142 U.S. 148, 35 L. Ed. 968, 12 S. Ct. 171) or had served on the grand jury which indicted the defendant (Thompson v. United States (1894), 155 U.S. 271, 39 L. Ed 146, 15 S. Ct. 73). The classic basis for a mistrial is a deadlocked jury. United States v. Sanford (1976), 429 U.S. 14, 50 L. Ed. 2d 17, 97 S. Ct. 20; see Arizona v. Washington (1978), 434 U.S. 497, 509-510, 54 L. Ed. 2d 717, 730, 98 S. Ct. 824, 832.\nSee also United States v. Romano (5th Cir. 1973), 482 F.2d 1183, cert. denied, 414 U.S. 1129, 38 L. Ed. 2d 753, 94 S. Ct. 866 (improper opening remarks); United States v. Beasley (5th Cir. 1973), 479 F.2d 1124, cert. denied, 414 U.S. 924, 38 L. Ed. 2d 158, 94 S. Ct. 252 (improper questioning); White v. State (Alas. 1974), 523 P.2d 428 (same); City of Tucson v. Valencia (1973), 21 Ariz. App. 148, 517 P.2d 106 (prosecutor failed to instruct witness not to testify about another charge pending against the defendant); People ex rel. Mosley v. Carey (1979) , 74 Ill. 2d 527, 387 N.E.2d 325 (assistant prosecutor furnished information concerning the trial to a reporter who subsequently published an article which could have prejudiced the jury if they saw or read it).\nIn view of the prosecutorial or judicial error involved, the accused may choose to continue on with the original trial hoping to end the dispute then and there with an acquittal (United States v. Jorn (1971), 400 U.S. 470, 484, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 557), or he may move for a mistrial believing \u201cthat a continuation of the tainted proceeding would [simply] result in a conviction followed by a lengthy appeal, and, if a reversal is secured, by a second prosecution\u201d (United States v. Dinitz (1976), 424 U.S. 600, 608, 47 L. Ed. 2d 267, 274, 96 S. Ct. 1075, 1080). The important consideration is that the defendant retain primary control over the course to be followed. United States v. Dinitz (1976), 424 U.S. 600, 609, 47 L. Ed. 2d 267, 275, 96 S. Ct. 1075, 1080.\nWe note parenthetically, that it is unclear, at the present time, if the trial court has the authority to prohibit or limit an attorney\u2019s discussion of the case with his witness, when a recess is declared while the witness is on the stand and is still subject to examination. (Cf. People v. Noble (1969), 42 Ill. 2d 425, 248 N.E.2d 96, Geders v. United States (1976), 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592, and Thompson v. Atlantic Building Corp. (D.C. Cir. 1954), 107 A.2d 784 with Stocker Hinge Mfg. Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 377 N.E.2d 1125 and State v. Learner (1973), 112 R.I. 62, 308 A.2d 324 (and cases cited therein).) The above situation should be contrasted with that presented in People v. Lewis (1977), 53 Ill. App. 3d 89, 368 N.E.2d 619 (during the State\u2019s cross-examination of the accused, defense counsel requested a recess to consult with his client).\nIn Carsey v. United States (D. C. App. 1967), 392 F.2d 810, 813-814, Judge Leventhal described how subtle changes in the State\u2019s testimony, initially favorable to the defendant, may occur during the course of successive prosecutions:\n\u201c[T]he Government witnesses came to drop from their testimony impressions favorable to defendant. Thus a key prosecution witness, the last person to see appellant and the deceased together, who began by testifying that they had acted that evening like newlyweds on a honeymoon, without an unfriendly word spoken, ended up by saying for the first time in four trials that the words between them had been \u2018firm,\u2019 and possibly harsh and \u2018cross.\u2019\nWe also note that the police officer who readily acquiesced in the two \u2018hung jury\u2019 trials that appellant was \u2018hysterical,\u2019 later withheld that characterization. This shift, though less dramatic, was by no means inconsequential in view of the significance of appellant\u2019s condition at the time he made a statement inconsistent with what he later told another officer.\u201d", "type": "majority", "author": "Mr. JUSTICE LINN" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (David C. Daniels and James L. Rhodes, Assistant Public Defenders, of counsel), for appellants.", "Bernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Joseph P. Quirk, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND PENDLETON et al., Defendants-Appellants.\nFirst District (4th Division)\nNo. 77-623\nOpinion filed August 9, 1979.\nJames J. Doherty, Public Defender, of Chicago (David C. Daniels and James L. Rhodes, Assistant Public Defenders, of counsel), for appellants.\nBernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Joseph P. Quirk, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0580-01", "first_page_order": 602, "last_page_order": 620 }