People v. Shoevlin, 2019 IL App (3d) 170258 (January). Episode 583 (Duration 11:04)

Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case.

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In this trial for domestic battery the defendant is a women.

She is accused of choking, scratching, and hitting her husband in the face with her keys. They got into an argument on who was getting the kids over the weekend.

Closing Argument

During closing argument counsel for the defense stated that defendant

“had been scorned and he wanted to break [defendant’s] heart; he wanted to break her as a person and ruin her life. That’s why after January 21, 2016[,] he came to this courthouse and filed dissolution of marriage. He wants to take the house from her, he wants to take her kids from her, and he wants to ruin her life. He knows that if she gets a conviction in this case, her kids are going to be taken away.”

Counsel continued,

“That’s why he’s making all of this up and why the State can’t prove this case beyond a reasonable doubt. It didn’t happen.”

Judge Perturbed

For some reason this really annoyed the judge.

The Judge said he thought counsel’s statement prejudiced the jury. The court asked defense counsel:

“Why would you say that her kids are going to be taken away? Why would you say that? The jury now thinks that if she gets a conviction that as a function of law her kids will be taken away. I can’t think of anything more prejudicial.”

“Another thing that we tell [the jury] is that they cannot have sympathy for one side or the other in a jury trial. You can’t get up there and say look at this poor woman, look what’s going to happen to her if she gets convicted, which was the sum total of what it was that you said when you told the jurors remember, she gets convicted, she loses her children. You made an iron clad statement as if it was an ipso facto thing, conviction, loses the children. Now, I know what you meant, and that isn’t what you meant in a legal sense, but the jury couldn’t make that distinction. And another thing we tell them is don’t take the punishment into account, but you were telling them in advance take that into account. She gets convicted, she is losing her children.”

State Moves For A Mistrial

Immediately thereafter, the State moved for a mistrial.

Mistrial Granted

After recessing for five minutes, the court returned and announced:

“I’ve thought about this and there are only two other things I could do, potentially. First, I could give an instruction telling the jury to disregard that statement, but then they will think that [defense counsel] was correct when he made that statement. I could give an instruction telling the jury to completely disregard [defense counsel] because he doesn’t know what he’s talking about, but that would completely prejudice the jury against the defendant and if [she] were convicted in this case [defense counsel’s] ineffective assistance of counsel will be the first issue heard on appeal. I don’t think [defense counsel] intentionally said what he said or that he wanted to prejudice the jury. He was doing very well up until that statement. I’m granting the mistrial…the State’s entitled to a fair trial, okay? They couldn’t get up there and say whoa, whoa, whoa, wait a minute, she is not going to lose her kids, that’s not going to happen, don’t listen to that.”

Motion To Dismiss On Double Jeopardy

After the trial court set a date for a new trial, defendant filed a motion to dismiss alleging that a new trial would violate the double jeopardy clause of the fifth amendment. Defendant argues that the trial court erred in denying her motion to dismiss the subsequent criminal complaint on double jeopardy grounds because no manifest necessity existed to declare a mistrial.

Defendant Didn’t Object

While we agree that a defendant who consents to a mistrial, either explicitly or implicitly, generally may not assert that double jeopardy bars her subsequent retrial, that is not what happened here.

In this case, defendant never had an opportunity to object to the State’s request for a mistrial. Instead, as soon as the State requested the mistrial—immediately following the trial court’s “I can’t think of anything more prejudicial” remark—the court asked defense counsel, “what do you suggest I do to remedy this?” Defense counsel responded to the court’s question, essentially arguing against the request for a mistrial, by stating that the jury would understand he was referring to Edward’s state of mind rather than making a statement of law.

This argument shows defendant neither explicitly nor implicitly agreed to the mistrial.

The court then took a 5 minute recess, and when it came back without seeking further comment from either party declared the mistrial. Based on the speed in which the below proceedings occurred, we find that defendant did not have an opportunity to object to the State’s request for mistrial.

The Double Jeopardy Clause

The fifth amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. The Illinois Constitution likewise provides that “[n]o person shall be compelled in a criminal case to give evidence against himself nor be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, § 10; see also 720 ILCS 5/3-4(a)(3). 

The double jeopardy clause protects against

(1) a second prosecution for the same offense following acquittal, 
(2) a second prosecution for the same offense following conviction, and 
(3) multiple punishments for the same offense.

The constitutional protection against double jeopardy attaches once the jury is impaneled and sworn. This is so because a defendant is entitled to have his or her trial completed before a particular tribunal. A second trial increases the financial and emotional burden on the accused, prolongs the period in which he or she is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.

As such, the State is generally entitled to only one opportunity to prosecute a defendant.

How A Mistrial Effects Double Jeopardy

Where a trial court declares a mistrial without the defendant’s consent, it deprives the defendant of his “valued right” to have a particular tribunal decide her fate. Thus, when a trial court declares a mistrial without the defendant’s consent, a second trial is prohibited unless the State demonstrates a manifest necessity for the mistrial.

In determining whether manifest necessity exists for a mistrial, the trial court must balance the defendant’s interest in having the trial completed in a single proceeding, reserving the possibility of obtaining an acquittal before that particular tribunal, against the strength of the justification for declaring a mistrial rather than attempting to continue the trial to a verdict.

The circumstances must be very extraordinary and striking. The necessity for a mistrial must be imperious.

Mistrial Double Jeopardy Factors

A number of factors may be considered in determining whether a “manifest necessity” warranted a mistrial, including:

(1) whether the difficulty was the product of the actions of the prosecutor, defense counsel, or trial judge, or was events over which the participants lacked control
(2) whether the difficulty could have been intentionally created or manipulated by the prosecution to strengthen its case
(3) whether the difficulty, prejudice, or other legal complication might have been ‘cured’ by another alternative that would have preserved the trial’s fairness
(4) whether the trial judge actually considered the alternatives to a mistrial
(5) whether a subsequent conviction would be subject to reversal on appeal
(6) whether the trial judge acted in the heat of the trial confrontation
(7) whether the trial judge’s decision rested on an evaluation of the demeanor of the participants, the ‘atmosphere’ of the trial, or any other factors that similarly are not amenable to strict appellate review
(8) whether the trial judge granted the mistrial solely for the purpose of protecting the defendant against possible prejudice
9) whether the evidence the State presented, prior to the mistrial, suggested a weakness in its case (e.g., a witness failed to testify as anticipated)
(10) whether the jurors had heard enough of the case to formulate some tentative opinions
(11) whether the case had proceeded so far as to give the prosecution a substantial preview of the defense’s tactics and evidence and
(12) whether the composition of the jury was unusual.

It is of the utmost importance that a trial court carefully considers all reasonable alternatives prior to declaring a mistrial. Whether the trial judge gave counsel an opportunity to be heard regarding a mistrial is of major importance, as is the amount of time devoted to the mistrial decision. A hasty decision, reflected by a rapid sequence of events culminating in a declaration of a mistrial, tends to indicate insufficient concern for the defendant’s constitutional rights.

Defendant Was Not Driving This Bus

In this case the trial court sua sponte removed the jury from the room and questioned defense counsel regarding his closing argument—an argument to which the State did not object. While the State ultimately requested a mistrial, it did so only after the court announced that it could not “think of anything more prejudicial” than counsel’s statement.

The court proceeded to reject each remedy it thought of during its five minute recess and immediately declared a mistrial without seeking further input from defense counsel or the State. The trial court’s decision to grant the mistrial in this case after the jury heard all the evidence was clearly a hasty decision.

Sure The Statement Was Improper

We agree with the trial judge that defendant’s argument was improper.

However, based on the totality of the evidence presented in this case, the jury was well aware that the parties were divorcing, that the husband was seeking custody of the children, and that DCFS was involved in some manner. In fact, defense counsel’s theory of the case was that the husband fabricated the incident to give him an advantage in the dissolution and custody proceedings.


Thus, we find that defense counsel’s closing statement in this case did not justify the trial court’s declaration of a mistrial.

Because the State failed to demonstrate a manifest necessity for the mistrial, we reverse the trial court’s denial of defendant’s motion to dismiss the subsequent criminal complaint on double jeopardy grounds.

We reverse the judgment of the circuit court of Will County.

See Also