July 3, 2001
No. 3-00-0419
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2001
| PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
Defendant-Appellant. | ) ) ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court for the 14th Judicial Circuit, Rock Island County, Illinois No. 99-CF-54 |
JUSTICE McDADE delivered the opinion of the court
David Bellmyer participated in a bench trial which commenced on February 29, 2000. The bench trial was continued to April 7, 2000, sua sponte, to allow the parties to produceadditional information requested by the court. Although the parties had presented the judge withthe supplemental information, he ruled at the continued trial that the stipulations were notsufficient for him to make a decision. The court offered the defendant the opportunity towithdraw his waiver of jury trial, but the defendant refused to do so.
On April 12, 2000, the defendant filed a motion to compel the verdict. The state raisedno objection to the defendant's motion, and agreed that all available evidence had been presentedto the court. Defendant's motion was denied on April 13, 2000. At that time, the defendant fileda motion to dismiss based on double jeopardy. The State objected to this motion, and it wasdenied. On May 8, 2000, defendant moved for reconsideration of his motion to dismiss, whichalso was denied. The defendant appeals from the denial of the motion to dismiss based ondouble jeopardy.
FACTS
The evidence presented at the stipulated bench trial showed that at all relevant times thedefendant was living with his parents, George and Waltrud Bellmyer, his daughter, and hisgirlfriend. Defendant's girlfriend would testify that the defendant had an argument with hisparents on January 23, 1999. The evidence would also show that the defendant had beencleaning the gun on that day.
Defendant's mother would testify that the defendant had an argument with his girlfriendearly in the day on January 24, 1999. Defendant's brother would testify that he had been at hisparents' home earlier in the day, and that the defendant was upset at that time. Defendant'smother, girlfriend, and daughter would testify that the defendant was angry because he hadmisplaced a gun, which he eventually found. The defendant had begun pointing the gun at hisparents and girlfriend, but not at his daughter. In fact, he had told his daughter to go to thebasement.
When defendant hit his father with the gun, his mother, girlfriend, and daughter fledthrough a window to the defendant's brother's house across the street. The daughter told thebrother that the defendant was beating up her grandfather. When the mother and girlfriendarrived at the brother's house, the police were called.
When the police arrived at the home of the parents, they tried unsuccessfully to talk thedefendant out of the house. They were eventually able to gain entry to the home, where theyfound the father shot in the entry way. He was dead. The defendant was sitting on a couch in hisbedroom with a Bersa .380 handgun beside him. An autopsy disclosed that the father had died asa result of three gunshot wounds to the head. It was also stipulated that the projectiles foundduring the autopsy came from the Bersa gun found next to the defendant when the police arrivedat the scene.
When the defendant was taken to the station, he was read his Miranda rights, and heinvoked his right to counsel. The defendant first appeared before the court on January 25, 1999. At that time, he was asked to sign a form which advised him that he had a right to an attorney,warned him of the possibility of trial in absentia, set bond, and informed him of the date of hispreliminary hearing. The defendant would not sign this form, indicating that he did notunderstand it. On January 26, 1999, the State filed, and the court granted, a motion for a fitnesshearing to determine if the defendant was fit to plead or stand trial.
The fitness hearing was conducted on March 5, 1999. At that time, Dr. Eric Ritterhofftestified that he had seen the defendant seven to eight times since his incarceration. He had atfirst found the defendant to be "in the throes of psychosis." However, Dr. Ritterhoff testifiedthat, on his last visit, the defendant was calm, his face was relaxed, he had put on some weight,he maintained direct eye contact, and he was not hearing voices. Dr. Ritterhoff concluded thatthe defendant was not fit to plead or to stand trial at that time, but that he would be fit within oneyear.
Dr. Ritterhoff submitted a second report to the court on June 7, 1999. At that time headvised that the defendant's mental state was improving, but he continued to be unfit to standtrial. On September 1, 1999, the defendant was found fit to stand trial.
On November 30, 1999, the defendant filed notice that he intended to raise an affirmativedefense of insanity. Defense counsel had the defendant examined by Dr. Chapman, who foundthat the defendant was insane at the time of the shooting. Given this report, the State sought asecond opinion from Dr. Witherspoon. Dr. Witherspoon also found that the defendant wasinsane at the time he shot his father. On January 6, 2000, the State and the defendant informedthe court that because both of their experts believed the defendant was insane at the time of theoffense, the parties would proceed by a stipulated bench trial based on these reports.
On February 29, 2000, following the presentation of evidence by stipulation, the courtheard closing arguments. The State argued that despite the reports submitted by Dr. Chapmanand Dr. Witherspoon, the court should find the defendant either guilty or guilty but mentally ill. It was the State's contention that the facts that the defendant had been cleaning his gun and hadargued with his parents and his girlfriend the night before the shooting showed that the incidentwas planned. The State further argued that telling his daughter to go to the basement and notpointing the gun at her demonstrated that the defendant knew his actions were wrong.
In its closing argument, the defense emphasized that the reports of both doctorsconcluded that the defendant was insane at the time of the crime; that both doctors found that thedefendant suffered from the same mental condition -- a "schizoaffective disorder, bi-polar type";and that both agreed that at the time of the crime, the defendant could not appreciate thecriminality of his conduct due to his mental health problems.
After hearing the closing arguments, the court noted that it did not have any problemswith the qualifications of Dr. Chapman, but did have some questions regarding the findings andqualifications of Dr. Witherspoon. The court also expressed concern about the lack of evidenceregarding how the defendant acted prior to and after the incident. The court then asked the Stateto submit additional information regarding the defendant's behavior from the time of the killinguntil the time of his arrest and the appointment of the public defender. The matter was continueduntil April 7, 2000.
At the hearing on April 7, 2000, the judge complained that, despite his receipt of theadditional information, the stipulations and evidence were still not sufficient for him to make adecision because they did not allow him to judge the credibility of the witnesses. Therefore, thejudge refused to enter a ruling, and offered the defendant the opportunity to withdraw his waiverof jury trial, which the defendant refused.
On April 12, 2000, the defendant filed a motion to compel the verdict, which was heardthe following day. The State had no objection to the motion, and agreed that the stipulationscontained all the available information and that nothing would be added by cross examining thewitnesses. Both parties agreed that they could not provide the court with any additionalevidence. The trial judge expressed his belief that much more could be brought out at trial, anddenied the motion to compel the verdict.
At the same hearing, the defendant filed a motion to dismiss the charges against himbased on a theory of double jeopardy. The State objected to this motion, and the trial courtdenied it. On May 8, 2000, the defendant filed a motion to reconsider the motion to dismiss,which was denied. The defendant appeals from the denial of the motion to dismiss.
ANALYSIS
Defendant raises only one issue on appeal: whether the trial court erred in denying hismotion to dismiss based on double jeopardy where the parties had completed a stipulated benchtrial and the court refused to enter a verdict. This is a case of first impression which involves theapplication of law to uncontested facts. We, therefore, review the decision of the trial court denovo. In Re D.G., 144 Ill. 2d 404, 581 N.E.2d 648, 649 (1991).
The double jeopardy clause of the Fifth Amendment protects the criminal defendant frommultiple prosecutions for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct.2072 (1969). The Illinois Constitution also prohibits placing a criminal defendant in jeopardytwice. Illinois Constitution 1970, Art. 1, Sec. 10. Finally, Illinois statutory law prohibits trying acriminal defendant for the same offense more than once. 720 ILCS 5/3-4 (West 1999).
The basic policy behind the double jeopardy clause is to ensure that the State, with all itspower and resources, is not allowed to make repeated attempts to convict an individual for thesame alleged offense. To determine whether a retrial would violate the defendant's right to befree from double jeopardy, the reviewing court must determine whether or not the defendant wasplaced in jeopardy during the first proceeding, and whether he can be retried. People v. Camden,115 Ill.2d 369, 504 N.E.2d 96, 99 (1987).
The defendant argues that in this case he was placed in jeopardy when the stipulatedbench trial began, and, therefore, any retrial would violate his right to be free from doublejeopardy. In support of this argument, the defense argues that the State carried its burden ofproving beyond a reasonable doubt that the defendant committed all elements of the offense. Then, the burden shifted to the defendant to prove, by clear and convincing evidence, that he wasinsane at the time he shot his father. In order to meet their respective burdens, the parties hadagreed to numerous stipulations, including statements made by eye witnesses to the incident,police officers who arrested the defendant, police officers who had arrested the defendant a fewdays prior to the incident on an unrelated charge, and jail personnel who interacted with thedefendant while he was in the county jail.
The stipulations also included the coroner's report, which showed the defendant's fatherhad died of multiple gunshot wounds to the body. Additionally, the parties had stipulated tonumerous reports regarding the defendant's mental health, including those of Dr. Chapman andDr. Witherspoon. Both of these reports concluded that the defendant was insane at the time ofthe offense. The court was also presented with doctors' reports regarding the defendant's mentalhealth while being treated in jail. In addition, as the trial court noted, there was no evidencepresented that the defendant was sane at the time of the offense.
The United States Supreme Court has consistently held that jeopardy attaches afterdefendant is put to trial before the trier of fact, whether the trier of fact be a jury or a judge. See,e.g. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055 (1975). In a non-jury trial, jeopardyattaches "after an accused has been indicted, arraigned, has pleaded, and the court has begun tohear the evidence." McCarthy v. Zerbst, 85 F.2d 640, 642 (10th Cir. 1936). In Wade v. Hunter,336 U.S. 684, 69 S. Ct. 834 (1949) the Supreme Court noted that a defendant may be subject tojeopardy in a bench trial even when the judge fails to enter a verdict.
In further support of his double jeopardy argument, the defendant has contended that thejudge essentially found that there was evidence showing that the defendant was insane at the timeof the offense, but was still demanding some evidence from the State that could support its claimof the defendant's culpability. The State reiterated the absence of any additional evidence.
Defendant argues that the court's request was inappropriate because a bench trial islimited to the record made during the trial, People v. Nelson, 58 Ill. 2d 61, 317 N.E.2d 31 (1974),and because a trial judge may not conduct his own investigation into the case. People v. Harris,57 Ill.2d 228, 314 N.E.2d 465 (1974). Ultimately, the defendant argued, by rejecting all thestipulations and ordering more evidence to be presented, the judge was essentially finding thatthe State had not proven its case, and should have entered a verdict of not guilty.
In response to these arguments, the State suggests that a stipulated bench trial is akin to aguilty plea. However, unlike a guilty plea, whereby the defendant waives all non-jurisdictionalerrors and defects, a stipulated bench trial allows the defendant to preserve his or her right toappeal pre-trial objections or issues. People v. Horton, 143 Ill. 2d 11, 570 N.E.2d 320 (1991). The State acknowledged that with a stipulated bench trial there is a remote, theoretical possibilitythat the defendant might be acquitted, but contended that the reality is that factual guilt is aforegone conclusion, and the defendant will be convicted by the trial judge. People v. Gonzalez,313 Ill. App. 3d 607, 730 N.E.2d 534 (2000). The State also submitted that a stipulated benchtrial is tantamount to a guilty plea, but giving the defendant an opportunity to present andpreserve a defense. Horton, 570 N.E.2d at 325.
The State then argues that the protections afforded by the double jeopardy clause of theUnited States Constitution are not implicated unless the defendant is put in jeopardy, and thepeople claim that this defendant was not. The State cites North Carolina v. Pearce, 395 U.S.711, 89 S. Ct. 2070 (1969) for the principle that the guarantee against double jeopardy affordsindividuals three distinct types of protections: (1) protection against a second prosecution for thesame offense after acquittal; (2) protection against a second prosecution for the same offenseafter conviction; and (3) protection against multiple punishments for the same offense. The Stateclaims that none of these guarantees is implicated by the facts in this case. For the reasons thatfollow, we reject the State's claim.
In Illinois, jeopardy attaches in a jury trial when the jury is empaneled and sworn. Peoplev. Daniels, 187 Ill. 2d 301, 718 N.E.2d 149, 156 (1999). In a bench trial, however, jeopardy doesnot attach until the first witness is sworn and trial judge begins to hear evidence. People v. Ortiz,151 Ill.2d 1, 600 N.E.2d 1153, 1156 (1992). Finally, jeopardy attaches to a guilty plea when theguilty plea is accepted by the trial judge. People v. McCutcheon, 68 Ill. 2d 101, 368 N.E.2d 886,888 (1977). The issue of when jeopardy attaches during a stipulated bench trial has not beenaddressed by the Illinois courts, and is, therefore, a matter of first impression for this court.
In this case, the defendant clearly raised the defense of insanity prior to agreeing to astipulated bench trial. Based on that fact, the defendant plainly was not waiving his right to abench trial on the issues, but he was agreeing that the trial could be expedited by stipulating tothe factual evidence that would be presented. Thus, the only issue for the court to decide wouldbe the defendant's level of culpability in light of his defense. On that basis, this stipulated benchtrial appears to be significantly more akin to a standard bench trial than to a guilty plea.
As previously indicated, jeopardy attaches in a bench trial when the first witness is swornand the trial judge begins to hear evidence. People v. Ortiz, 151 Ill. 2d 1, 175 Ill.Dec. 695(1992). Here the stipulations consisted of the testimony that would have been elicited from thewitnesses when sworn at trial. Since the trial judge did hear all of the stipulated evidence, theparties agreed that all available evidence was before the court, and the court heard closingarguments by counsel, it would appear that jeopardy did in fact attach in this case.
The State argues that even if jeopardy did attach when the stipulations were submitted tothe trial judge, the defendant's retrial after the court's rejection of those stipulations is not barredby double jeopardy. Analogizing this situation to that of a mistrial, the State contends that, eventhough double jeopardy is a constitutional benefit for defendants, the government is entitled tothe resolution of the case by a verdict. Since jeopardy does not attach when a mistrial isdeclared, People v. Fischer, 259 Ill. App. 3d 445, 632 N.E.2d 689 (5th Dist. 1994), theprohibition against placing defendant in double jeopardy will not preclude a second trial if thetrial judge declares a mistrial. The State asks this court to find the trial court's refusal to enter averdict on the stipulated evidence to be the functional equivalent of a "hung jury" resulting in amistrial.
This argument is interesting and certainly has merit in the case where there is a hung jury. However, a judge is one person and cannot, therefore, be "hung." Absent some misconduct bythe parties calling for a retrial, a judge in a bench trial is required to make a decision. In thiscase, both the defendant and the State agreed that there was no additional pertinent evidence thatcould be supplied to the court. Therefore, the court, by agreement of the parties, and particularlyby concession of the State, had all relevant evidence before it. Since no additional evidencesupporting culpability was available, the court should have rendered a decision. It's failure to doso cannot negate the attachment of jeopardy, and the State does not get another shot at thisdefendant.
CONCLUSION
Based on the foregoing discussion, the judge's ruling on the motion to dismiss based ondouble jeopardy was in error, and is reversed.
Reversed.
SLATER, J., concurring.
HOLDRIDGE, J., dissenting.
JUSTICE HOLDRIDGE, dissenting:
I respectfully dissent. I would find that the defendant's stipulated benchtrial was tantamount to a guilty plea and as the judge had not accepted thestipulations, jeopardy had not attached. I would therefore affirm the trialcourt's denial of the motion to dismiss and would remand the matter for furtherproceedings.
It is well settled that where a defendant in a stipulated bench trialstipulates only to the existence of evidence, the proceeding is not tantamountto a guilty plea. People v Horton, 143 Ill. 2d 11, 22 (1991). However,if the defendant stipulates not just to the existence of the evidence but to thesufficiency of that evidence to convict, the stipulation is the equivalent of aguilty plea. People v. Cunningham, 286 Ill. App. 3d 346 (1997). In thematter sub judice, the defendant, through counsel, unequivocallystipulated "not only to the facts, but to the sufficiency of the evidenceto convict" of the charge of murder. Thus, defendant's stipulations weretantamount to a guilty plea.
As the majority notes, jeopardy attaches to a guilty plea when the plea isaccepted by the trial judge. People v. McCutcheon, 68 Ill. 2d 101(1977). Since the defendant's stipulated bench trial was tantamount to a guiltyplea, and the trial court rejected the stipulations, I would find that jeopardydid not attach. Since jeopardy had not yet attached when the trial courtrejected the stipulations, the court properly denied defendant's motion todismiss.