No. 3--02--0426

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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

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JUSTICE HOLDRIDGE delivered the Opinion of the court:

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The defendant, James E. LaFond, was charged with aggravatedbattery (720 ILCS 5/12--4(b)(6) (West 2000)) and resisting apeace officer (720 ILCS 5/31--1(a) (West 2000)). Following thefirst jury trial, the judge declared a mistrial, stating that thedefendant had not agreed to proceed with 11 jurors after 1 jurorwas hospitalized. At the conclusion of a second jury trial, thedefendant was found guilty of both offenses. He was sentenced tothree years' imprisonment for aggravated battery and 364 days inthe county jail for resisting a peace officer, to be servedconcurrently. On appeal, the defendant argues that (1) it waserror for the trial judge to, sua sponte, declare a mistrial andhold a second trial in violation of his double jeopardy rights;and (2) his trial counsel was ineffective by failing to preservean adequate record in order to protect his double jeopardyrights. We affirm.

BACKGROUND

At the conclusion of the first trial, the judge excused thealternate juror on Thursday, April 5, 2001, and allowed theremaining 12 jurors to go home for the evening. When the juryreturned the following Friday morning, April 6, 2001, the judgestated that one of the remaining 12 jurors had been hospitalizedthat morning. The judge said, "As there's now only 11 [jurors],I need to declare a mistrial." After the jury left the courtroomthe following exchange took place:

"THE COURT: All right. [Defense counsel], I justwant to make sure it's clear on the record. I had 11jurors, but I believe you and Mr. LaFond would notagree to 11 jurors; is that correct?

[DEFENSE COUNSEL]: That's correct, Judge.

THE COURT: Okay. And that's why the Courtdeclared a mistrial. There was no agreement as to 11jurors. The defense was objecting.

Show mistrial was declared as the case could notbe continued over to Monday as three or four of thejurors were unable to return on Monday."

The trial court's docket sheet entry for April 6, 2001,states: "Court is informed that one of the remaining 12 jurorshas been hospitalized earlier this morning. As there was noagreement ofthe [sic] parties to continue with less than 12jurors, court declares a mistrial." The defendant did not file awritten posttrial motion between the end of the first trial andthe beginning of the second trial.

The defendant was convicted of the offenses in the secondtrial. Following that trial, the defendant filed a motion for ajudgment notwithstanding the verdict, or alternatively, for a newtrial. In this motion, the defendant did not raise the issues henow raises on appeal. The defendant was sentenced and heappealed.

ANALYSIS

The defendant did not preserve the issues raised on appealin a written posttrial motion. The State contends, therefore,that these issues are waived. The defendant asks that theseissues be analyzed for plain error.

I. Waiver and Plain Error

Failure to include an issue in a posttrial motion results inwaiver of a defendant's issue on appeal. People v. Ramos, 339Ill. App. 3d 891, 791 N.E.2d 592 (2003). However, plain errorsaffecting substantial rights may be noticed by an appellate courtdespite the defendant's failure to raise the errors in aposttrial motion. 134 Ill. 2d R. 615(a). The plain errordoctrine allows an appellate court to review defects affectingsubstantial rights if the evidence is closely balanced or ifrequired by fundamental fairness rather than to find thedefendant's claims waived. People v. Donoho, 204 Ill. 2d 159,788 N.E.2d 707 (2003). Because the defendant in this case didnot raise his double jeopardy or ineffective assistance ofcounsel issues in a posttrial motion, we review these issues forplain error.

II. Mistrial and Double Jeopardy

The defendant submits that it was plain error for the trialjudge to, sua sponte, declare a mistrial and hold a second trialin violation of his double jeopardy rights.

Both the constitutions of the United States and the state ofIllinois prohibit subjecting a criminal defendant to jeopardytwice for the same offense. U.S. Const., amend. V; Ill. Const.1970, art. I,