NO. 4-08-0322 Filed 12/19/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
KENNETH W. HAWKS, ) No. 06CF1625
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In October 2006, defendant, Kenneth W. Hawks, was
charged with driving under the influence (DUI) of alcohol (625
ILCS 5/11-501(c-1)(3) (West 2006)). A jury trial was set for
January 2008. After the trial court granted defendant's motion
for a mistrial and the original judge recused himself, defendant
filed a motion to dismiss on double-jeopardy grounds. The second
judge denied defendant's motion to dismiss. Defendant appeals,
arguing the second judge abused his discretion in denying defen-
dant's motion to dismiss. We affirm.
I. BACKGROUND
In July 2006, the State charged defendant with DUI.
Defendant elected to have a jury trial, which was set for January
2008 before Judge Chase Leonhard. Before voir dire began,
defendant requested the trial court order the State to disclose
the criminal histories of the potential jurors. Judge Leonhard
examined in camera the State's list of jurors, and to protect the
State's work product, he revealed only the criminal histories of
the potential jurors. The following day, Champaign County First
Assistant State's Attorney Steve Ziegler, who was not directly
involved with the trial, approached Judge Leonhard while he was
on the bench and asked to speak to him in chambers. At a hearing
the following morning, the judge apprised the parties of the
events in his chambers as follows:
"[T]his morning at roughly 8:30 [a.m.],
the First Assistant State's Attorney
approached me and asked to speak with me in
chambers. And upon entering chambers, he
said to me words to this effect, 'I under-
stand you ordered Ms. Clark yesterday to
produce one of our files in court.' *** So
when I told Mr. Ziegler, the First Assistant,
that I had simply ordered the production of a
file and reviewed it in[]camera[,] he said,
and I quote, 'well, I know what's in those
files,' at which point I interjected that if
he was endeavoring to comment to me about the
merits of a ruling that I had made in a case
that was pending, anyplace other than in
court, then the conversation was inappropri-
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ate and it wasn't going to continue. And the
conversation stopped there."
Defendant moved for a mistrial; over the State's objection, Judge
Leonhard granted the motion and recused himself. In February
2008, defendant filed a motion to dismiss on double-jeopardy
grounds. In April 2008, Judge Thomas Difanis denied defendant's
motion to dismiss and reassigned the case for further proceed-
ings.
This appeal followed.
II. ANALYSIS
On appeal, defendant contends the trial court abused
its discretion in denying his motion to dismiss on double-jeop-
ardy grounds. Specifically, he argues the State intended to goad
defendant into requesting a mistrial when Ziegler engaged in ex
parte discussions with Judge Leonhard. We disagree.
A. Standard of Review
We review the trial court's denial of a motion to
dismiss on double-jeopardy grounds for an abuse of discretion.
People v. Campos, 349 Ill. App. 3d 172, 175, 812 N.E.2d 16, 19
(2004).
B. Double Jeopardy
Both the United States and the Illinois Constitutions
protect a criminal defendant from successive prosecutions for the
same offense. U.S. Const., amend. V; Ill. Const. 1970, art. I,
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§10. "The defendant may appeal to the Appellate Court the denial
of a motion to dismiss a criminal proceeding on grounds of former
jeopardy." 210 Ill. 2d R. 604(f). Double jeopardy will not bar
a retrial unless a prosecutor actually intended for his miscon-
duct to cause defendant to seek a mistrial. People v. Nelson,
193 Ill. 2d 216, 221, 737 N.E.2d 632, 635 (2000).
Retrial is forbidden where the necessity for a mistrial
stems from prosecutorial overreaching and not merely prosecuto-
rial error. People v. Pendleton, 75 Ill. App. 3d 580, 593, 394
N.E.2d 496, 506 (1979). "Overreaching" is defined as conduct
intended to prejudice the accused or result in a mistrial.
Pendleton, 75 Ill. App. 3d at 593, 394 N.E.2d at 506. We can
infer the State's intent from objective facts and circumstances.
People v. Tate, 317 Ill. App. 3d 272, 279, 739 N.E.2d 617, 623
(2000).
Defendant argues his motion to dismiss should have been
granted because Ziegler intended to goad defendant into moving
for a mistrial. We disagree because the record does not support
the necessary showing of prosecutorial overreaching. Judge
Leonhard, the only party to the conversation with Ziegler, could
not determine Ziegler's motivation for the ex parte communi-
cation. Judge Leonhard told the jury, "I'm not necessarily
implying any misconduct or improper motivation on the part of
this Assistant State's Attorney. I don't know what his motiva-
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tion was." The State's objection to defendant's request for a
mistrial further belies defendant's claim the State wanted a
mistrial.
For purposes of comparison, defendant cites Campos and
People v. Gustafson, 194 Ill. App. 3d 910, 551 N.E.2d 826 (1990),
as examples of misconduct found to be merely inadvertent mis-
takes. While Ziegler's conduct may be more reprehensible than
eliciting improper testimony from a witness or referring to
inadmissible evidence, we do not find the surrounding circum-
stances establish prosecutorial overreaching. Here, Ziegler may
be deemed to have violated the Illinois Rules of Professional
Conduct when he communicated ex parte with Judge Leonhard. See
134 Ill. 2d R. 3.5(i). However, we find unconvincing defendant's
argument a high-ranking prosecutor would risk ethics sanctions
and his reputation for the possibility of a mistrial on a two-
year-old DIU case. Unlike Campos and Gustafson, the misconduct
in this case did not occur in the presence of the trier of fact,
making it less likely to affect the outcome of the trial.
Further, the State could not be sure defendant would move for a
mistrial as any resulting prejudice on the judge's part could
potentially favor defendant.
We agree with Judge Difanis's assessment of Ziegler's
conduct. "What we have here is totally inappropriate contact by
the State with the trial judge, literally in the middle of
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trial." However, we also agree Ziegler's conduct did not amount
to overreaching. Thus, we conclude the trial court did not abuse
its discretion in denying defendant's motion to dismiss on
grounds of former jeopardy.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
McCULLOUGH P.J., and TURNER, J., concur.
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