ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

SERGIO CORDERO, Defendant-Appellant.

 District & No. Second District

Docket No. 2-10-1113

Filed

Rehearing denied

February 10, 2012

March 26, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Where defendant was granted a new trial following his conviction for

aggravated criminal sexual assault and then the trial court denied his

motion to dismiss, which argued that a retrial would subject him to

double jeopardy because the evidence at his first trial was legally

insufficient, the appellate court held that double jeopardy did not bar a

new trial, regardless of the sufficiency of the evidence at the first trial,

since defendant’s original jeopardy had never terminated where he was

convicted, the trial court denied his request for a judgment of acquittal,

and then granted him a new trial based on a finding of reversible error

arising from the exclusion of certain evidence.

Decision Under 

Review

Appeal from the Circuit Court of Jo Daviess County, No. 09-CF-80, the

Hon. William A. Kelly, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Robert M. Stephenson, of Becker Stephenson LLC, of Chicago, for

appellant.

TerryM. Kurt, State’s Attorney, of Galena (LawrenceM. Bauer and Sally

A. Swiss, both of State’s Attorneys Appellate Prosecutor’s Office, of

counsel), for the People.

Panel JUSTICE McLAREN delivered the judgment of the court, with opinion.

Justices Hutchinson and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 After a bench trial, defendant, Sergio Cordero, was convicted of aggravated criminal

sexual assault (720 ILCS 5/12-14(a)(3) (West 2008)). He moved for either a judgment of

acquittal or a new trial, based on various trial errors. The trial court denied defendant an

outright acquittal but granted him a new trial. Defendant then moved to dismiss the charge,

arguing that a retrial would subject him to double jeopardy because the evidence at his first

trial had been legally insufficient. The trial court denied the motion. Defendant appeals (see

Ill. S. Ct. R. 604(f) (eff. July 1, 2006)).

¶ 2 We affirm. We hold that defendant’s original jeopardy has not terminated. Therefore, a

retrial will not subject him to double jeopardy, regardless of whether the evidence at his first

trial was legally sufficient.

¶ 3 Defendant’s claim presents a question of law, which we of course review de novo. See

People v. Bellmyer, 199 Ill. 2d 529, 537 (2002). The federal and state constitutional double

jeopardy clauses (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10) are essentially

identical (People v. Ortiz, 196 Ill. 2d 236, 253 (2001)), so we discuss them together. They

prohibit (1) a second prosecution for the same offense after acquittal; (2) a second

prosecution for the same offense after conviction; and (3) multiple punishments for the same

offense. People v. Placek, 184 Ill. 2d 370, 376-77 (1998). However, the protection is

triggered only if there has been some event, such as an acquittal, that terminates the original

jeopardy. United States v. Richardson, 468 U.S. 317, 325-26 (1984); People v. Smith, 338

Ill. App. 3d 254, 255 (2003). Thus, defendant cannot prevail on his claim unless his original

jeopardy has terminated. It has not.

¶ 4 Defendant was convicted. The trial court then denied his request for a judgment of

acquittal, but, finding reversible error from the exclusion of certain evidence, granted him

a new trial. Retrying defendant could not subject him to double jeopardy, because nothing

has terminated his original jeopardy. Thus, double jeopardy does not bar a retrial, regardless

of the sufficiency (or insufficiency) of the evidence at the original trial.

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¶ 5 In Richardson–which neither party cites–a federal-court jury acquitted the defendant of

one of the three counts but could not reach a verdict on the other two. The trial court declared

a mistrial and ordered a new trial on both counts. The defendant then moved to dismiss the

charges, based on double jeopardy. The trial court denied the motion to dismiss, and the

appellate court affirmed. Richardson, 468 U.S. at 318-19. The Supreme Court affirmed the

appellate court.

¶ 6 The Court rejected the defendant’s premise that, if the evidence at his first trial had been

legally insufficient, then double jeopardy barred the government from receiving a second

opportunity to prove him guilty beyond a reasonable doubt. Recounting long-standing

authority that double jeopardy does not bar a retrial after the first trial has ended in a “hung

jury,” the Court explained that the declaration of a mistrial was “not an event which

terminate[d] jeopardy.” Id. at 325. Thus, “[r]egardless of the sufficiency of the evidence at

[the defendant’s] first trial, he ha[d] no valid double jeopardy claim to prevent his retrial.”

(Emphasis added.) Id. at 326; cf. People v. Taylor, 76 Ill. 2d 289, 309 (1979) (“When an

appellate court reverses a criminal conviction and remands the case for a new trial without

deciding [the] defendant’s contention that the evidence *** was insufficient, *** the court

risks subjecting the defendant to double jeopardy.” (Emphasis added.))

¶ 7 Richardson involved a retrial after a hung jury, not after a conviction that was reversed

for trial error. Logically, however, there is no reason why a defendant who was found guilty

beyond a reasonable doubt should enjoy greater protection than one whose jury could not

reach a verdict either way. And, indeed, the opinions of several federal courts of appeal (also

not cited by either party here) have held that Richardson allows a retrial in the former

situation as well as in the latter.

¶ 8 In United States v. Wood, 958 F.2d 963 (10th Cir. 1992), the defendant was convicted

by a jury of one count of making false statements to FBI agents. He moved for a judgment

of acquittal, which the trial court denied, and a new trial (based on trial error), which the trial

court granted. The defendant then moved to dismiss the charge, arguing that, because the

evidence at his trial had been legally insufficient, retrying him would subject him to double

jeopardy. (This, of course, is the precise legal theory on which defendant here relies.) The

trial court denied the motion to dismiss.

¶ 9 Affirming, the court of appeals relied on Richardson’s holding that an event that

terminates jeopardy is a condition precedent to an assertion of a double jeopardy claim. Id.

at 969. The court noted that Richardson had said little about “what events, other than an

acquittal, terminate jeopardy.” Id. However, it rejected the defendant’s argument that the

guilty verdict against him had terminated his original jeopardy. The court explained that,

because a jury’s failure to reach a verdict does not bar a retrial, neither does the grant of a

new trial after the jury has convicted the defendant. Id. at 970-71. Any harm to the defendant

from being subjected to retrial was no greater than that suffered by the defendant in

Richardson. Therefore, as with the defendant in Richardson, the defendant’s original

jeopardy had never terminated. Thus, a retrial would not subject him to double jeopardy,

“regardless of the sufficiency of the evidence 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. McAleer,

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

2007), the courts agreed with Wood that, where the trial court sets aside a conviction, based

on trial error, double jeopardy does not bar retrying the defendant–regardless of whether the

evidence at the first trial was legally sufficient. Whatever the strength of the evidence at the

original trial, the new trial cannot put the defendant into jeopardy for a second time–for the

simple reason that he is still in jeopardy for the first time. This rule is simply the application

of the long-standing concept of “continuing jeopardy.” See Kepner v. United States, 195 U.S.

100, 134 (1904) (Holmes, J., dissenting, joined byWhite and McKenna, JJ.); Wood, 958 F.2d

at 967-68.

¶ 11 We endorse the holdings of these cases; indeed, we see them as compelled by

Richardson. Further, although our state courts do not appear to have dealt with the precise

issue here, two opinions (again not cited by either party) foreshadow the result here.

¶ 12 In People v. Hobbs, 301 Ill. App. 3d 581 (1998), the jury was twice unable to reach a

verdict. After the trial court declared a mistrial for the second time, the defendant moved to

dismiss, based on double jeopardy. The trial court denied the motion. On appeal, the

defendant argued that a retrial would violate double jeopardy, because the evidence had been

legally insufficient. Id. at 587. Relying on Richardson, the appellate court affirmed. It noted

specifically that, under Richardson, the sufficiency of the evidence was not properly before

it. Id. at 589.

¶ 13 In Smith, a mistrial was declared after the defendant’s jury was unable to reach a verdict.

The defendant moved for a directed verdict, which the trial court denied. The defendant then

moved to dismiss the indictment, on double jeopardy grounds. The trial court denied the

motion. On appeal, we affirmed, reiterating the rule from Richardson and Hobbs that, if a

defendant’s original jeopardy has not terminated, then double jeopardy does not bar a retrial

and, moreover, the sufficiency of the evidence may not be raised on appeal. Smith, 338 Ill.

App. 3d at 256.

¶ 14 For the foregoing reasons, we hold that double jeopardy does not bar the State from

retrying defendant, regardless of the sufficiency of the evidence at the first trial. Therefore,

we affirm the interlocutory order of the circuit court of Jo Daviess County.

¶ 15 Affirmed.

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