No. 2--03--0032

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Following a mistrial on charges of criminal sexual assault (720 ILCS 5/12--13(a)(1) (West 1996)),criminal sexual abuse (720 ILCS 5/12--15(a)(1) (West 1996)), and battery (720 ILCS 5/12--3(a)(2) (West1996)), defendant, Marco A. Campos, filed a "Motion to Discharge and Acquit Defendant on Plea ofDouble Jeopardy." The trial court denied defendant's motion, and defendant filed a timely notice of appealpursuant to Supreme Court Rule 604(f) (188 Ill. 2d R. 604(f)) . On appeal, defendant argues that the Stateshould be barred from retrying him because the prosecutor intentionally provoked a mistrial. We affirm.

Defendant was charged with committing five assaults against four different women. Four of thefive assaults allegedly occurred at defendant's place of employment, the Chateau Village Center, which isa nursing home in Willowbrook. The fifth incident was alleged to have taken place in an apartment inDarien. Defendant's trial commenced on August 26, 2002. We dispense with a summary of the testimonyat trial, as it is not necessary for resolution of the issue before us. We will refer to relevant evidence as ouranalysis warrants.

Defendant's claim of error is based on the prosecutor's examination of Willowbrook policecommander Mark Shelton. Shelton testified that, on May 11, 1998, he went to the Chateau Village Centerto speak with facility administrator Nancy Hartmann as part of his investigation of several complaintsagainst defendant. Shelton testified that he also spoke to defendant on that date. Defense counsel thenrequested a sidebar and informed the court that defendant had asked to speak to a lawyer during hisconversation with Shelton. Defense counsel stated, "If that comes out, it will vitiate the jury and cause amistrial." The following colloquy then occurred:

"MR. KNIGHT [Assistant State's Attorney]: I'm certainly not going to ask him that.

MR. CONNIFF [Defense counsel]: Then where are we going with this?

THE COURT: I don't think you want to try the case again. So make sure, you know--

MR. KNIGHT: I know, I understand the law, judge."

Assistant State's Attorney Knight then asked Shelton what he asked defendant regarding theincidents under investigation and what, if anything, defendant said in response. Defendant objected andthe court overruled the objection. Assistant State's Attorney Knight then asked Shelton to relate what hetold defendant and what defendant said to him about the incidents. Shelton testified as follows:

"A. I told him that some ladies had come forward to the police department about someincidents involving improper contact involving him.

Q. What did he say?

A. He said he had done nothing to anyone. And at that time, he said he needed to speakwith an attorney."

Defense counsel then objected and moved for a mistrial. Assistant State's Attorney Knight advisedthe court that, when he went over Shelton's testimony with him, Shelton indicated that he was going totestify that defendant said he did not do anything to anybody. Assistant State's Attorney Knight furthersaid that he told Shelton, "[T]hat's all we're going to talk about." The court then declared a mistrial.

Subsequently, defendant moved for an acquittal or a discharge of the complaints against him ondouble jeopardy grounds. The State responded with affidavits that mirrored Assistant State's AttorneyKnight's earlier statement to the court that he had intended to limit Shelton to testifying that defendant saidhe did not do anything to anyone. However, Assistant State's Attorney Knight admitted that he did notspecifically instruct Shelton not to mention defendant's request for an attorney. The court denieddefendant's motion, finding that there was no reason why the State would have wanted a mistrial and thatthe prosecutor did not act in bad faith in failing to tell Shelton not to mention defendant's request for anattorney. Defendant's appeal ensued.

The parties disagree regarding which standard of review should apply to our review of the meritsof the court's denial of defendant's motion. Defendant argues for a de novo standard of review becauseof the need for uniformity and because neither the credibility of the witnesses nor the facts are at issue. TheState contends that we should reverse the trial court's decision only if an abuse of discretion occurredbecause the ruling was based on a factual determination, namely, whether the prosecutor goaded defendantinto moving for a mistrial. We agree with the State.

There is case law that states, generally, that review is de novo when a constitutional right is at stake. People v. Leeper, 317 Ill. App. 3d 475, 480 (2000). However, this is not always the case. Recently, whenreviewing a trial court's decision to disqualify a defendant's chosen counsel on conflict of interest grounds,our supreme court declined to review de novo the trial court's ultimate "assessment" of the facts. Peoplev. Ortega, 209 Ill. 2d 354 (2004). Instead, because trial courts need to have discretion when decidingwhether to allow a defendant to waive counsel's actual or potential conflict of interest, the court held thatit was required to give deference not only to the trial court's factual findings, but also to the weight the trialcourt gave to the facts. Ortega, 209 Ill. 2d at 358-60. Consequently, the court considered whether the trialcourt abused its discretion in disqualifying defendant's counsel. Ortega, 209 Ill. 2d at 359.

Similarly, when a defendant has filed a motion to dismiss on double jeopardy grounds, arguing thatthe prosecutor goaded him into moving for a mistrial, reviewing courts have declined to reverse the trialcourt's ruling on the motion absent an abuse of discretion. This court has held that the proper standard ofreview in a case such as the one before us is "whether the trial court abused its discretion in denyingdefendant's motion to dismiss based upon its finding that the State did not intend to provoke a mistrial." People v. Wilson, 309 Ill. App. 3d 235, 242 (1999).

Citing People v. Walker, 308 Ill. App. 3d 435 (1999), defendant contends that the authority fromthis court is inconsistent as to which standard of review is proper. We disagree. In Walker, the issue waswhether statements made by a police detective should be imputed to the State in order to establishprosecutorial overreaching. We held that this was a question of law, subject to de novo review. Walker,308 Ill. App. 3d at 438. Unlike in Walker, the issue in this case is the intent of the prosecutor himself, whichis a factual question that the trial court is in the best position to determine. See Ortega, 209 Ill. 2d at 363 ("[T]he trial court is in a better position than a reviewing court to judge the motives and intentions of theprosecutors"). Consequently, Walker is distinguishable.

Defendant also contends that de novo review is appropriate because neither the credibility ofwitnesses nor specific facts are at issue. This argument is not persuasive, because the question ofprosecutorial intent involves assessing the credibility of the prosecutor's representations to the trial court,an assessment that the trial court is in the best position to make. The outcome of defendant's motion todischarge rested solely on the trial court's finding with respect to intent. Accordingly, we will not overturnthe court's factual findings unless they are against the manifest weight of the evidence, and we will notreverse the trial court's decision on the merits of the motion to discharge absent an abuse of discretion. Anabuse of discretion occurs when the trial court's decision is "fanciful, arbitrary, or unreasonable to the degreethat no reasonable person would agree with it." Ortega, 209 Ill. 2d at 359.

Defendant further contends that we should not defer to the trial court's discretion because the courtapplied an incorrect standard when deciding his motion and did not address the prosecutor's intent. Whether the trial court applied the proper legal standard is a question of law, which is subject to de novoreview. Walker, 308 Ill. App. 3d at 438. Accordingly, we review de novo whether the trial court properlyapplied the law. However, we give deference to the court's factual findings and to its ultimate decisionbased on those findings. For the following reasons, we conclude that the court did use the wrong standard,but the denial of defendant's motion was appropriate nonetheless.

The double jeopardy clauses of the United States Constitution and the Illinois Constitution (U.S.Const., amend. V; Ill. Const. 1970, art. I,