NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except 

in the limited circumstances allowed under Rule 23(e)(1).

2024 IL App (3d) 230363-U

Order filed August 5, 2024

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2024 

THE PEOPLE OF THE STATE OF )

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

RICHARD S. GABRYS JR., ) 

 ) 

Defendant-Appellant. ) 

Appeal from the Circuit Court

of the 12th Judicial Circuit, 

Will County, Illinois, 

Appeal No. 3-23-0363 

Circuit No. 22-CM-113 

Honorable 

Sherri Hale, 

Judge, Presiding. 

____________________________________________________________________________

JUSTICE PETERSON delivered the judgment of the court. 

Justices Holdridge and Brennan concurred in the judgment.

____________________________________________________________________________

ORDER

¶ 1 Held: (1) Granting a motion to reopen the proofs did not create an issue of double 

jeopardy, and (2) the circuit court’s finding that the prosecutor did not intentionally 

precipitate a mistrial was not against the manifest weight of the evidence. 

¶ 2 Defendant, Richard S. Gabrys Jr., brings an interlocutory appeal from the Will County 

circuit court’s denial of a motion to dismiss on the grounds of double jeopardy. Defendant argues

(1) the court erred when it granted the State leave to reopen the proofs, and (2) the prosecutor 

intentionally precipitated a mistrial. We affirm.
2 

¶ 3 I. BACKGROUND

¶ 4 Defendant was charged with two counts of harassment by telephone (720 ILCS 5/26.5-

2(a)(2) (West 2020)) and two counts of harassment through electronic communication (id. § 26.5-

3(a)) based on two telephone calls he made to the Will County State’s Attorney’s Office. The case 

proceeded to a jury trial on March 28, 2023. The State was represented by a special prosecutor.

¶ 5 Prior to trial, the prosecutor filed a motion in limine seeking to introduce numerous phone 

calls made by defendant to the state’s attorney’s office, arguing the calls would allow the State to 

“demonstrate motive, intent, absence of mistake and to establish identity.” The court allowed the 

motion. 

¶ 6 During jury selection, the court indicated it would not permit “back striking,” the practice 

of utilizing peremptory challenges to strike jurors after the parties have accepted those jurors but 

before the entire venire has been sworn in. After both parties accepted the first panel of four jurors, 

the prosecutor asked whether he would have an opportunity to question the jurors further before 

exercising a peremptory challenge. The court reiterated that it would not permit the prosecutor to 

question the jurors that had been previously accepted, to which the prosecutor responded that he 

would have liked to ask additional questions to two jurors. The prosecutor apologized for the 

misunderstanding, and the court advised the prosecutor that he could strike jurors going forward.

¶ 7 At trial, defense counsel’s opening statement conceded defendant had made numerous calls 

to the state’s attorney’s office but argued defendant did not have the “intent to harass and offend 

anyone” when he made those calls. The State called Jim Long, Katherine Norkus, and Jacqueline 

Borunda, employees of the Will County State’s Attorney’s Office, who each testified that 

throughout 2021 they received numerous irate and unpleasant phone calls from a person 

identifying himself as defendant. Borunda testified that the calls began in April of 2021 and 
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continued throughout 2021, including July 16, August 17, August 23, and September 17, 2021. 

Norkus testified that defendant called “many times” in August, and she fielded “over fifty calls 

from him,” including calls on September 17 and October 15, 2021. Long stated he became aware 

of the harassing calls on July 7, 2021, and began recording them. The calls frequently devolved 

into screaming and obscene language, and Norkus and Borunda both felt afraid and disturbed. The 

prosecutor, through Borunda and Norkus, introduced recordings of two phone calls, dated 

September 17 and October 15, 2021, which were admitted and published without objection. 

¶ 8 The prosecutor also presented a stipulation to the jury, stating that, if called, a “duly 

qualified custodian of records for AT&T” would testify that in 2021, two phone numbers 

“belonged to the defendant” and those numbers were used to make “repeated calls to the Will 

County State’s Attorney’s Office.”

¶ 9 The State then rested. Defendant moved for a directed verdict, arguing the State had failed 

to identify defendant as the person who made the calls. The prosecutor stated that he “didn’t think 

that was an issue in this case” given the stipulation and defendant’s articulation of the issues in 

opening statements. However, “in an abundance of caution,” the prosecutor moved to reopen the 

proofs, and the court granted the motion. 

¶ 10 The prosecutor indicated he intended to call Officer Nicholas Giordano. Defendant 

objected to Giordano’s testimony on the grounds that (1) he was not disclosed to the jury as a 

potential witness, and (2) a report he generated was not tendered to the defense. The court allowed 

the prosecutor to call Giordano after polling the jury to determine if any of the jurors knew 

Giordano, which none did. Giordano testified that on March 1, 2022, he transported defendant to 

the county jail. A video of defendant in the back of Giordano’s squad car was admitted and 
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published to the jury. In the video, defendant’s face was visible, and he admitted to calling the 

state’s attorney’s office.

¶ 11 The State then rested. Defendant was admonished regarding his right to testify and waived 

this right in open court. Defendant then moved for a directed verdict, arguing the court had erred 

when it admonished defendant in open court and allowed the jury to hear defendant’s voice. That 

motion was also denied. Defendant proposed offering a jury instruction admonishing the jury it 

was not to consider defendant’s exchange with the court as evidence. The prosecutor opposed the 

motion, arguing it was unnecessary because defendant’s statement waiving his right to testify was 

not testimonial, and a nonstandard jury instruction would draw unnecessary attention to the 

statement. The court allowed defendant’s motion to include the limiting instruction.

¶ 12 During closing arguments, the prosecutor implored the jury to listen to defendant’s phone 

calls. Specifically, he asked the jury to focus on a call defendant made to the state’s attorney’s 

office on September 17, 2021. He then played an audio recording. After the audio recording 

concluded, the prosecutor apologized for accidentally playing a recording from September 27, 

2021, and then played the actual recording from September 17, 2021. When the second audio 

recording concluded, the court excused the jury, and defendant moved for a mistrial, arguing the 

September 27, 2021, call was never introduced into evidence. 

¶ 13 The prosecutor conceded the call placed on September 27, 2021, was not introduced in the 

State’s case-in-chief but argued that a mistrial was not necessary. He noted he had played the 

wrong clip by mistake but contended the call placed on September 27, 2021, did not prejudice 

defendant. The court granted the motion for a mistrial, and the prosecutor continued to argue 

against the necessity for a mistrial. He pointed out that, although he had not admitted the call into 

evidence, the clip he played had been declared admissible prior to trial and was referenced along 
5 

with other calls during the State’s case in chief. The prosecutor urged the court to admonish him 

on the record in lieu of declaring a mistrial, particularly in light of the “overwhelming proof of the 

defendant’s guilt[.]” Nonetheless, the court, “erring on the side of caution,” granted defendant’s 

motion for a mistrial.

¶ 14 Defendant moved to dismiss the case on the grounds of double jeopardy, claiming he had 

already twice been exposed to jeopardy because the court had reopened the proofs. He further 

contended the prosecutor intentionally goaded him into moving for a mistrial. After a hearing, the 

court denied the motion to dismiss, finding that reopening the proofs did not lead the court to “any 

such finding of goading,” and, further, the prosecutor “having wanted to strike maybe one juror 

out of 12” did not lead the court to believe the prosecutor desired a mistrial. Defendant appealed 

the court’s order. 

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant claims (1) the circuit court’s decision to reopen the proofs placed him 

in jeopardy a second time, and (2) the prosecutor intentionally provoked a mistrial. The right to be 

free from successive prosecutions for the same offense is protected by both the United States 

Constitution and the Illinois Constitution. U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10. 

Double jeopardy prevents (1) retrial for the same offense following an acquittal, (2) retrial for the 

same offense following a conviction, and (3) multiple punishments for the same offense. People 

v. Gaines, 2020 IL 125165, ¶ 22. An event terminating jeopardy, such as an acquittal, is necessary 

for a defendant to assert a double jeopardy claim. People v. Cordero, 2012 IL App (2d) 101113, 

¶¶ 9-11. In the absence of a terminating event, defendant’s claim must fail. Id. 

¶ 17 Here, defendant was never acquitted or convicted. Instead, the circuit court allowed the 

State to reopen proofs following a motion for a directed verdict, then later declared a mistrial. At 
6 

the time the court reopened the proofs, defendant’s jeopardy had not terminated since he was 

neither convicted nor acquitted. Thus, defendant’s claim that he was twice subjected to jeopardy 

when the court reopened the proofs must fail because his original jeopardy had not terminated. See

People v. Kotlarchik, 2022 IL App (2d) 200358, ¶ 13. 

¶ 18 Next, defendant contends the prosecutor intentionally goaded him into seeking a mistrial. 

Ordinarily, “when the defendant *** moves for a mistrial, the defendant is deemed to have 

deliberately chosen to forgo his valued right to have his guilt or innocence determined” before a 

particular jury, and defendant may be retried without triggering double jeopardy. People v. 

Longoria, 375 Ill. App. 3d 346, 350 (2007). However, a “ ‘narrow exception’ ” to this principle 

exists: retrial is barred when the prosecutor has engaged in conduct deliberately intended to cause 

a defendant to seek a mistrial. People v. Campos, 349 Ill. App. 3d 172, 176 (2004) (quoting Oregon 

v. Kennedy, 456 U.S. 667, 673 (1982)).

¶ 19 The parties do not agree on the standard of review we should employ in reviewing this 

claim. Defendant contends de novo review is appropriate because the court did not conduct an 

evidentiary hearing and therefore made no factual findings. The State maintains we should review 

the court’s decision for an abuse of discretion. The court was not required to conduct a separate

evidentiary hearing to determine the prosecutor’s intent, particularly when the same judge who 

conducted the trial heard the motion to dismiss. People ex rel. City of Chicago v. Hollins, 368 Ill. 

App. 3d 934, 945-46 (2006). Under such circumstances, the court can properly rely on its own 

review of the record and its observations of the prosecutor. Id. Because the circuit court is in a 

superior position to determine the prosecutor’s motives, we will not reverse its factual findings 

unless they are against the manifest weight of the evidence. Id. However, we review the court’s 

ultimate decision for an abuse of the court’s discretion. Campos, 349 Ill. App. 3d at 175. An abuse 
7 

of discretion occurs when the circuit court’s decision is arbitrary, unreasonable, or no reasonable 

person would agree with it. Id.

¶ 20 In reviewing a motion to dismiss for double jeopardy, our task is not to review the 

sufficiency of the evidence (Kotlarchik, 2022 IL App (2d) 200358, ¶ 8), but to determine whether 

the prosecutor intentionally provoked a mistrial. Campos, 349 Ill. App. 3d at 176. The primary 

factor in determining whether the State intended to provoke a mistrial is the intent of the 

prosecutor. People v. Weinke, 2021 IL App (1st) 180270, ¶ 25. Put another way, our inquiry is not 

what the prosecutor did but why. People v. Bennett, 2013 IL App (1st) 121168, ¶ 16. Actions taken 

by the prosecutor in pursuit of a conviction, even actions that could be described as misconduct, 

do not, by themselves demonstrate intent to provoke a mistrial. See United States v. Oseni, 996 

F.2d 186, 188 (7th Cir. 1993) (provided the prosecutor’s aim is to secure a conviction, misconduct, 

even intentional misconduct, does not bar retrial); Campos, 349 Ill. App. 3d at 177 (without more, 

mistakes are insufficient to indicate prosecutorial intent to provoke a mistrial).

¶ 21 Defendant asserts the prosecutor’s intent can be inferred from the prosecutor’s “numerous 

prejudicial mistakes and reversable errors.” Defendant points to the prosecutor (1) presenting 

insufficient evidence and being forced to reopen the proofs; (2) committing “reversable errors,” 

including calling an undisclosed witness (Giordano) and utilizing a report not previously tendered 

to the defense; (3) impaneling a juror he wished to strike; and (4) objecting to a limiting instruction 

on the issue of defendant’s right to silence. Defendant further points to the strength of his own 

case, claiming he was “assured of acquittal” and suggests the prosecutor forced a mistrial to avoid 

either failing to prove defendant guilty or having the case overturned on appeal. 

¶ 22 The evidence to which defendant points does not rise to the “strong showing” required to 

invoke the protection against double jeopardy. People v. Nelson, 193 Ill. 2d 216, 221 (2000). To 
8 

the contrary, our review of the record indicates the prosecutor actively fought the motion for a 

mistrial and afterward stringently urged the court to reconsider its ruling. At each stage of the trial, 

up to and including the point at which the court declared a mistrial, the prosecutor appeared to 

believe his case was strong. In arguing against declaring a mistrial, he described the evidence as 

“overwhelming.” Moreover, only “deliberate prosecutorial misconduct” in provoking a mistrial 

implicates double jeopardy. People v. Shannon, 2022 IL App (3d) 210121, ¶ 17. It is far from clear 

that the conduct resulting in a mistrial here was deliberately calculated to precipitate such a result. 

While the prosecutor admitted he had played the wrong recording, he stated he did so by mistake, 

which is insufficient to show intent to provoke a mistrial. See Campos, 349 Ill. App. 3d at 177. 

Accordingly, the circuit court found that the prosecutor presented rational explanations for his 

actions at trial and did not intend to provoke a mistrial. The court’s factual findings were not 

against the manifest weight of the evidence, and thus, the court did not abuse its discretion in 

denying the motion to dismiss.

¶ 23 In reaching this conclusion, we reject defendant’s contention that the circuit court’s 

decision to allow the prosecutor to reopen the proofs suggests the prosecutor intended to provoke 

a mistrial. If anything, securing a favorable ruling on that issue suggests the prosecutor intended 

to ensure a conviction. We similarly reject defendant’s assertion that the court’s allowing Giordano 

to testify carries the same implication. Seeking to reopen the proofs and to call Giordano to testify 

were actions taken in furtherance of securing a conviction and do not suggest an intent to goad 

defendant into seeking a mistrial. See Kennedy, 456 U.S. at 674 (“[e]very act on the part of a 

rational prosecutor during a trial is designed to ‘prejudice’ the defendant by placing before the 

judge or jury evidence leading to a finding of his guilt.”). 
9 

¶ 24 We further reject defendant’s contentions regarding the prosecutor’s conduct during jury 

selection and argument against a limiting instruction. First, the prosecutor stated he would have

preferred to question two jurors further before deciding whether to exercise a peremptory strike.

The desire to further question two jurors does not indicate the prosecutor wanted to strike those 

jurors. Even if he had wanted to strike a juror, the court found that the prosecutor “having wanted 

to strike maybe one juror out of 12” did not lead the court to believe that the prosecutor had goaded 

defendant into moving for a mistrial, and the court’s finding on this issue was not against the 

manifest weight of the evidence. Second, it is perfectly consistent with the State’s aim of securing 

a conviction to endorse a limiting instruction in some circumstances and not in others, and actions 

taken with the goal of obtaining a conviction do not suggest intent to provoke a mistrial. Id.

¶ 25 III. CONCLUSION

¶ 26 The judgment of the circuit court of Will County is affirmed. 

¶ 27 Affirmed.