## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Cordero , 2012 IL App (2d) 101113

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. SERGI O CORDERO, Def endant- Appellant.

District & N o. Second District Docke t No. 2-10-1113

Filed Rehea ringdenied Fe bruar y 10, 2012 Marc h 26, 2012
Held (Note : Thi s syl lab us
con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e
c o n v e n i e n c e o

f t h e
rea der

. ) Where defe n d ant was g rante d a new trial following his conviction for ag g ravated criminal sexual assault and then the t ri al court denied his motion to dismiss , which argued that a retria l would s ub j ec t him to double jeopar dy beca

use the evidenc e at h i s first trial was leg ally insufficient, the appellate court h el d t hat double jeopar dy did not bar a
n ew trial, reg ardle ss of the sufficie ncy of the evidenc e at the first trial , since defenda

nt’s ori gi n al jeopar dy had never terminated where he was convicted, the t ri al court denied his reque st for a judgme nt of acquittal, and then g rante d h i m a new trial based on a finding of reve rsible err or arisingfrom the e x clusion of ce rtain evide nce.

Dec ision Under Review Appea l from the Circuit Court of J o Daviess County , No. 09-CF- 80, the Hon. Will iam A. Kelly , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Robert M. Stephenson, of Be cker Stephenson L L C, of Chicag o, for appellant.

Terr y M. Kurt, State’s Attorney , of Galena (L awr ence M. Ba uer and Sally A. Swiss, both o f S t ate’s Attorney s Appellate Prosecutor’ s Offic e, of counsel), f

or the People.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion. J ustices Hutchinson and Birke tt concur red in the judgme nt and opinion.

OP INION

¶ 1 After a bench t ri al , d ef en dant, Serg io Cordero, was convicted of ag g ravated cr iminal sexual assault (720 I L CS 5/12-14(a) (3) (West 2008))

. He m o v ed for either a judgme nt of acqu i t t al o r a new trial, based on various trial err ors. The trial court denied defe ndant an outrig ht acquittal but g rante d him a new trial. Def endant then moved to dismiss the charg e, arguing that a retria l would subject him to double jeopar dy beca use the evidenc e at his first trial had been leg ally insufficient. The trial court denied the motion. Def endant appea ls (see I ll. S. C t. R. 604(f) (e ff. July 1, 2006)). ¶ 2 We aff

irm. We hold that defe ndant’s orig inal jeopar dy has not terminated. There fore , a retria l will not subject him to double jeopar dy , reg ardle ss of whether the evidenc e at his first trial was leg ally

sufficie nt. ¶ 3 Def

endant’ s claim prese nts a question of law, which we of course revie w de novo . See People v. Bellmye r , 199 I ll. 2d 529, 537 (2002). The fede ral and state constitutional double jeopar dy clause s (U.S. Const., amend. V; I ll. Const. 1970, art. I , § 10) are essentially identical (People v. Ortiz , 196 I ll. 2d 236, 253 (2001)) , so we discuss them toge ther. They prohibit (1) a second prosec ution for the same offe nse afte r acquittal; (2) a second prosec ution for the same offe nse afte r conviction; and (3) multipl e punishments for the same offe nse. People v. Placek , 184 I ll. 2d 3 7 0 , 3 7 6 -7 7 (1998). Howeve r, the protec tion is trig g ere d only if there has been some event, such as an acquittal, that terminates the orig inal jeopar dy

. United States v. Richardson , 468 U.S. 317, 325-26 (1984); People v. Smith , 338 I ll. App. 3d 254, 255 (2003). Thus, defe ndant cannot preva il on his claim unless his orig inal jeopar dy has terminate d. It has not. ¶ 4 Def

endant was convicted. The trial court then denied his reque st for a j u d gm en t of acquittal, but, finding reve rsible error fr o m the ex clusion of certain evidence, gr anted him a new trial. Retrying de fenda nt could not subject hi m to double j eopar dy , beca use not hing has terminated his orig inal jeopar dy

. Thus, double jeopar dy does not bar a retria l, reg ardle ss of the suff

iciency (or insuff

iciency ) of the e vidence at the orig inal trial.

-2-¶ 5 In Richardson –which neither party cites–a fede ral-c ourt jury acquitted the defe ndant of

one of the three counts but could not rea ch a verdic t on the other two. The trial court decla red

a mistrial a

nd order ed a new trial on both counts. The defe ndant then moved to dismiss the charg es, based o n double jeopar dy

. The trial court denied the motion to dismiss , and the appellate court aff

irmed. Richardson , 468 U.S. at 318-19. The Supreme Court aff irmed the appellate court. ¶ 6 The Court reje cted the defe ndant’s premise that, if the evidenc e at his first trial had bee n leg ally insufficient, then double jeopar dy barr ed the g overnme nt from re ceiving a second opportunity to prove him guilty beyond a rea sonable doubt. Recounting lo n g-standing authority that double jeopar dy does not bar a retria l afte r the first trial has ended in a “hung jury ,” the Court explained that the decla ration of a mistrial was “not an event which terminate[d] j eopar dy .” Id. at 325. Thus, “[ r ] egardless of the sufficiency of the evide nce at [the defendant’s] first trial , he ha[d] no valid double jeopardy claim to preve nt his retria l.” (Emphasis added.) Id. at 326; cf. People v. Taylor , 76 I ll. 2d 289, 309 (1 9 79) (“ W hen an appellate court reve rses a criminal convic tion and rema nds the case for a new trial without deciding[t he] defenda

nt’s contention that the evidenc e *** was insufficient, *** the cour t risks subjectingthe def

endant to double jeopa

rdy .” (Empha sis added.)) ¶ 7 Richardson involved a retria l afte r a hung jury , not a fter a conviction that was re verse d for trial err or. L og ically , howeve r, there is no rea son why a defe ndant who was found guilty beyond a rea sonable doubt should enjoy g reater protec tio n than one whose jury could not

rea ch a verdic t either way

. And, indeed, the opinions of sever al fede ral courts of appea l (also not cited by either party here ) have held that Richardson allows a retria l i n t he former situation as well as in the latter. ¶ 8 I n Un i t ed States v. W ood, 958 F.2d 963 (10th Cir. 1992), t he defenda nt was c onvicted by a jury of one c ount of makingfalse statements to FB Iag ents. He move d for a judgme nt of acquittal, which the trial court denied, and a new trial (base d on trial err or), which the trial court g rante d. The defe ndant then moved to dismiss the charg e, arguin g t h at , b ecause the evidenc e at his trial had been leg ally insufficient, retry ing him would subject him to double j eo p ar dy

. (This, of course, i s the precise lega l theory on which defenda nt here relies.) The trial court de nied the motion to dism iss. ¶ 9 Affir

min g, t h e co u rt o f ap p ea l s re l ied on Richardson ’s holding that an event that terminates jeopar dy is a condition pr ece dent to a n asser tion of a double jeopardy claim. Id. at 969. The court noted that Richards o n h ad s aid littl e about “wha t events, other than an acqu i t t al, terminate jeopar dy .” Id. Howeve r, it reje cted the defe ndant’s argument that the guilty verdic t ag ainst him had t erminate d his orig inal jeopar dy

. The court explained that, beca use a jury ’s failure t o re ac h a verdict does not bar a retria l, neither does the gra nt of a

new trial afte r the jury has convicted the defe ndant. Id. at 970-71. Any harm to the defe ndant from being subjected t o re t rial was no greater than that suffe red by the defe ndant in Richardson

. There fore , as with the defe ndant in Richardson , the defe ndant’s orig inal jeopar dy had never terminated. Thus, a retri al would not subject him to double jeopar dy , “re g ardle ss of the suffic iency of the e vidence at the first trial.” Id. at 971. ¶ 10 In United States v. Porter , 807 F.2d 21, 24 n.2 (1st Cir. 1986), United States v. Mc Aleer ,

-3-138 F.3d 852, 856 (10th Cir. 1998), and United States v. Carpenter , 494 F.3d 13, 26 (1st Cir.

2007), the courts agree d with W ood that, wher e the trial court sets aside a conviction, based

on trial error, double jeopar dy does not bar retry ing the defe ndant–re g ardle ss of whether the evidenc e at the first trial was leg ally sufficie nt. Whatever the streng th of the evidenc e at the orig inal trial, the new trial cannot put the defe ndant into jeopar dy for a second time–for the simple rea son that he is still in jeopar dy for the first time. This rule is simply the application of the long- standing concept of “continuing jeopar dy .” See Kepner v. United States , 195 U.S. 100, 134 (1904) (Holmes, J ., dissenting, joined by Whit e and McKe nna, J J .); W ood, 958 F.2d at 967-68. ¶ 11 We endorse the holdings o f t h es e ca s es ; i n d ee d , we s ee them as compelled by Richardson . Fur

ther, a lthough our

state cour

ts do not appear

to have de alt with the pre cise issue here , two opinions (ag ain not cited by either pa rty ) for eshadowthe re sult here. ¶ 12 In Peo

p l e v. Hobbs , 301 I ll. App. 3d 581 (1998), the jury was twice unable to rea ch a verdic t. After the trial court decla red a mistrial for the second time, the defe ndant moved to dismiss , based on d o ub l e j eo pardy

. The trial court denied the motion. On appea l, the defe ndant argued that a retria l would violate double jeopar dy , beca use the evidenc e had been leg ally insufficient. Id. at 587. Relying on Richardson , the appellate court aff irmed. It noted specific ally that, under Richardson , the sufficie ncy of the evidenc e was not proper ly befor e it. Id. at 589. ¶ 13 In Smith , a mistrial was decla red afte r the defe ndant’s jury was unable to rea ch a verdic t. The defe ndant moved for a direc ted verdic t, which the trial court denied. The defe ndant then moved to dismiss the indictment, on double jeopar dy g ro u n d s

. T h e trial court denied the motion. On appeal, we aff irmed, reiterating the rule from Richardson and Hobbs t h at , i f a defe ndant’s orig inal jeopardy has not terminated, then double jeopar dy does not bar a retria l and, more over, the sufficie ncy of the e vidence may

not be ra ised on appea l. Smith , 338 I ll. App. 3d at 256. ¶ 14 For t h e fo re going rea sons, we hold that double jeopar dy does not bar the State from retry ing defe ndant, reg ardle ss of the sufficie ncy of the evidenc e at the first trial. There fore , we a ffirm the inter locutory order of the c ircuit court of

J o Daviess County

.
¶ 15 Affir

med.

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