No. 2--03--0784

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

On November 18, 2002, the defendant, Richard Dahlberg, was charged with two counts ofdomestic battery (720 ILCS 5/12--3.2(a)(1), (a)(2) (West 2002)). During a jury trial, the trial courtgranted the State's motion for a mistrial and rescheduled the trial for the next day. Prior to thecommencement of the new trial, the defendant moved to dismiss the charges based on theconstitutional prohibition against double jeopardy. On July 9, 2003, the trial court denied the motion. The defendant appeals from this order. We reverse.

The defendant was charged with two misdemeanor counts of domestic battery, based on anincident in which he allegedly pushed his girlfriend, Stephanie Paull. A public defender was appointedto represent the defendant. On July 3, 2002, defense counsel filed a notice indicating that he intendedto raise a claim of self-defense. A jury trial commenced on July 7, 2003. Assistant Public DefendersJohn Casey and Brett Cummins appeared for the defendant. At the outset, the trial court heard oralmotions in limine from both parties. The case proceeded to jury selection. When Casey asked theprospective jurors whether any of them believed it would be acceptable "to call police falsely or touse the police department as a weapon against somebody," the State objected and asked for a sidebar. Following the sidebar, which was not transcribed, Casey asked the prospective jurors if they thoughtit would be possible that a person who called the police regarding a domestic battery may actuallyhave been the abuser, seeking to avoid prosecution by calling the police first. The State did notobject to that question. Jury selection concluded that day.

The trial proceeded on July 8, 2003. The State's first witness was the alleged victim,Stephanie Paull. The victim testified about her relationship with the defendant and provided herversion of the incident that led to the charges in this case. On cross-examination, Casey questionedthe victim about the incident and then asked her if she knew Keith Anderson, Bill Kubnick, and JamesNagle. The victim admitted knowing all three men. The State objected on the grounds of relevance. Before the trial court responded to the objection, Casey asked for "a little leeway." The trial courtallowed Casey to proceed "subject to [a] motion to strike." At that point, Casey asked the victim,"You filed domestic battery charges and asked for orders of protection against all these gentlemen?" Before the victim could respond, the State again objected. The trial court sustained the objection andremoved the jury from the courtroom.

After the jury exited, the following exchange occurred:

"MS. ALEX [Assistant State's Attorney]: Judge, at this time the State would beasking for a mistrial.

MR. CASEY: Your Honor, this goes to modus operandi. We're alleging that she'susing the--

THE COURT: This should have been the subject of a motion in limine, Mr. Casey. These things do not get mentioned unless they are criminal cases. Orders of protection arenot relevant to this. They should have been. I am declaring a mistrial at this time. I will goand speak to the jury right now.

And we will start over again tomorrow. And we will pick the jury in the morning, andyou'll find someone else to do your court calls because we have a doctor coming in tomorrowafternoon, and we're going to take him out of order, and we will finish the case. And if youaren't prepared, Mr. Padish [the Acting Public Defender] will hear about it."

Thereafter, the trial judge went to the jury room to dismiss the jurors. No further proceedings wereheld on July 8.

On July 9, 2003, the defendant filed a motion to dismiss the prosecution of his case on thegrounds of former jeopardy, alleging that the line of cross-examination was proper and that there wasno manifest necessity for a mistrial. When the trial court called the case on July 9, Cummins advisedthe court of the motion to dismiss. The trial court then stated:

"THE COURT: All right. *** [W]e're going to *** have a full argument on themotion. *** I don't believe double jeopardy has attached. That should have been the subjectof the motion in limine.

I did talk to the jurors. They said it was highly prejudicial and that was why, even ifit was relevant, the prejudicial value outweighed the probative, and the Court does have theright to not admit that evidence, and it was so highly prejudicial that it should have absolutelybeen the subject of a motion in limine."

The trial court further clarified that the mistrial was granted not because the evidence was irrelevant,but because it was highly prejudicial.

Casey argued that the proposed line of cross-examination was relevant and that the court didnot allow the defense to make an offer of proof as to what the evidence would show. He believedthe cross-examination was relevant to the defendant's claim of self-defense. Casey acknowledged thatthe evidence would be prejudicial but argued that it would be probative regarding modus operandi,bias, and credibility. The cross-examination would have shown that the victim had made false reportsin the past and had been the defendant in a matter where she abused a former boyfriend. Casey wasattempting to show that the victim has a propensity to file domestic battery reports as a way to getout of her relationships. Additionally, Casey argued that the victim's tendency to file false reportswould discount her credibility. Finally, Casey argued that even if the trial court found the cross-examination to be improper, there were less severe remedies than a mistrial. Casey argued that thetrial court could have sustained the State's objection and instructed the jury to disregard the question. Casey noted that he had not gone farther than asking the victim if she had filed charges against theother men.

The State argued that it was improper to impeach the victim with specific acts and that thedefense should have filed a motion in limine seeking permission to present the evidence or at leastmade an offer of proof outside the presence of the jury. The State also argued that the defendant hadacquiesced to the mistrial by not objecting to it. Casey replied that the defense had no opportunityto object or make an offer of proof before the mistrial was declared.

Following argument, the trial court denied the motion to dismiss. The trial court stated thatthe public defender's office had successfully presented motions in limine to admit similar evidence inprior cases. However, the trial court was extremely surprised by the line of questioning and believedit was manifestly prejudicial. Based on the looks on their faces, the trial court believed that theassistant State's Attorneys were also surprised. The trial court did not believe that a limitinginstruction would have cured the prejudice. After the trial court made its ruling, defense counselindicated that the defendant would file an interlocutory appeal. Thereafter, the defendant filed atimely notice of appeal.

On appeal, the defendant argues that because the mistrial was granted without the defendant'sconsent and in the absence of a manifest necessity, any further prosecution of the defendant wouldviolate the constitutional prohibition against double jeopardy. The fifth amendment to the UnitedStates Constitution states in relevant part, "nor shall any person be subject for the same offense tobe twice put in jeopardy of life or limb." U.S. Const., amend. V. The same principles are embodiedin the Illinois Constitution. See Ill. Const. 1970, art. I,