No. 2--01--1104	

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Du Page County.

		)

	Plaintiff-Appellee,	)

	)	

v.	)	No. 99--DT--4684            

	)

JOSEPH BAGLEY,	)	Honorable

	)	Jane Hird Mitton,

	Defendant-Appellant.	)	Judge, Presiding.

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	JUSTICE CALLUM delivered the opinion of the court:

	The State charged defendant, Joseph Bagley, with driving under

the influence of alcohol (625 ILCS 5/11--501(a)(1), (a)(2) (West

Supp. 1999)).  After the jury was sworn but before the first

witness was called, the State located a videotape of defendant's

arrest that was believed to be lost.  The trial court sua sponte declared a mistrial and scheduled a new trial.  Defendant appeals

from the denial of his motion to dismiss on double jeopardy

grounds.  We affirm.

	The State commenced the prosecution on November 22, 1999.  On

April 19, 2000, defendant sought a dismissal or alternatively some

other discovery sanction because the State failed to turn over a

videotape of defendant's arrest.  During the June 19, 2000, hearing

on defendant's motion, the State informed the court that it was

unable to locate the tape.  Judge Mehling barred the State from

presenting testimony about the events appearing on the video.  On December 14, 2000, Judge Mehling granted the State's motion to reconsider and ordered as a sanction that the jury would be

informed that the police department lost the videotape and that the

arresting officers' testimony "should be judged with caution and

suspicion."  On the same date, the cause was reassigned to Judge

Mitton.

	On July 11, 2001, a six-person jury was selected and sworn. 

Shortly thereafter, but before the first witness was called, the

State informed the trial court that it located the videotape. 

Outside the jury's presence, the assistant State's Attorney

explained that the arresting officer had the tape during the

hearing on the petition to rescind the summary suspension of

defendant's driving privileges.  After the hearing, the officer

locked the tape in his filing cabinet.  Prosecutors attempting to

locate the tape went to the police department evidence technician,

who reported that the tape was not in the evidence room.  The State

was unaware of the tape's location until the officer arrived in

court to testify during the trial.

	Defense counsel stated that "viewing the videotape at this

time sort of throws a total wrench in the works for me.  This sort

of situation would be deserving of a mistrial ***."  Accordingly,

defense counsel asked the court to exclude the tape, leave Judge

Mehling's ruling intact, and proceed with the trial.  The State

responded that it did not act in bad faith and asked the court to

admit the tape and proceed with the trial.  In response to the

court's inquiry, defense counsel stated that if the tape were

admitted, he would need additional time to prepare.

	The trial court stated:

				"There was no order ever barring the evidence.  All of

these rulings were based on the presumption that the tape was

not available.  Because this is a truth-seeking process, if

the evidence is available and otherwise admissible to impose

a sanction barring it because it was presumed to be lost I

think is overly harsh.

				*** So understanding that it is an unfair surprise at

this point, I will declare a mistrial.  *** I will reset this

matter for trial.

				*** [T]o go further and *** bar the video and then tell

the jury that it had been destroyed would be a lie."

	After dismissing the jury, the trial court asked defense

counsel if he wanted a trial date, and counsel responded that he

did.  The court set an October 9, 2001, trial date.

	On July 27, 2001, defendant moved to dismiss.  He argued that,

because the trial court improperly terminated the trial after the

jury was sworn, any further prosecution would violate double

jeopardy principles.  The trial court denied the motion, and

defendant timely appealed.  See 188 Ill. 2d R. 604(f).

	On appeal, defendant argues that there was no manifest

necessity for the mistrial and therefore that a second trial would

violate double jeopardy principles.  The fifth amendment to the

United States Constitution states in relevant part, "nor shall any

person be subject for the same offence to be twice put in jeopardy

of life or limb."  U.S. Const., amend. V.  The same principles are

embodied in the Illinois Constitution.  Ill. Const. 1970, art. I, §10.  These provisions are based on the notion that, with all of

its resources and power, the State should not be allowed multiple

attempts to convict a person of an alleged offense.  People v. Cooper, 194 Ill. 2d 419, 429 (2000).  The constitutional protection against double jeopardy attaches after the jury is selected and

sworn.  People v. Murray, 306 Ill. App. 3d 280, 283 (1999).

	The trial court declared a mistrial sua sponte.  Where a court acting without the defendant's consent declares a mistrial, the

court necessarily deprives the defendant of his valued right to

have a particular jury decide his fate.  People v. Street, 316 Ill. App. 3d 205, 211 (2000).  This does not necessarily preclude a

second trial, however.  When the court declares a mistrial without

the defendant's consent, the State should be allowed to retry the

defendant only if there was a manifest necessity for declaring the

mistrial.  Street, 316 Ill. App. 3d at 211.

	These principles have been codified.  "A prosecution is barred

if the defendant was formerly prosecuted for the same offense,

based upon the same facts, if such former prosecution *** [w]as

terminated improperly after the jury was impaneled and sworn ***." 

720 ILCS 5/3--4(a)(3) (West 2000).

	The State's first response is that defendant can be retried

because he impliedly consented to the mistrial.  We disagree.  A

defendant who requests or consents to a mistrial is presumed to

have deliberately elected to forego a determination of guilt or

innocence before the jury seated at that time.  People v. Tate, 317 Ill. App. 3d 272, 279 (2000).  Here, defense counsel never formally

requested a mistrial and instead asked the trial court to exclude the videotape and allow the trial to continue.  The cases the State

cites are distinguishable because the defendants in those cases did

not insist on continuing the trial.  In People v Roche, 258 Ill. App. 3d 194, 199-200 (1994), defense counsel objected to comments

the trial court made in front of the jury and moved for a mistrial. 

The trial court declared a mistrial the following day.  In People v. Camden, 115 Ill. 2d 369 (1987), defense counsel never expressed a position after a juror informed the court that he did not think

he could be impartial.  The reviewing court stressed that defense

counsel could have objected at this point but did not.  Camden, 115 Ill. 2d at 377-78.  When the trial court declared a mistrial sua sponte, defense counsel again failed to object and simply thanked the jury.  The reviewing court held that this course of conduct

amounted to acquiescence in the result.  Camden, 115 Ill. 2d at 378-79.

	Although defense counsel's statements that the situation was

deserving of a mistrial and that he would need additional time to

prepare if the tape were admitted were probably factors the court

considered before declaring the mistrial, defendant never advocated

or acquiesced in that result.  Also, it is not significant that

defense counsel did not object after the court declared a mistrial

but instead agreed to a new trial date.  Because defense counsel

forcefully argued his position before the court ruled, his failure

to object afterwards cannot be construed as acquiescence.  Thus, we

are unable to conclude that defendant impliedly consented to the

mistrial.

	The State responds alternatively that the mistrial was proper. 

The manifest necessity standard is a command to the trial court not to foreclose the defendant's right to have a particular tribunal

decide his fate until a scrupulous exercise of judicial discretion

leads to the conclusion that the ends of public justice would not

be served by continuing the proceedings.  Street, 316 Ill. App. 3d at 211.  The trial court must carefully consider all of the

circumstances and any reasonable alternatives to declaring a

mistrial.  People v. Pondexter, 214 Ill. App. 3d 79, 83 (1991).  Whether to declare a mistrial is a matter within the sound

discretion of the trial court, and double jeopardy concerns do not

arise unless that discretion is abused.  People v. Barfield, 288 Ill. App. 3d 578, 584 (1997).

	Here, the State failed to produce essential discovery material

until the start of the trial.  Defendant urged that the material be

excluded and that the trial continue.  If a party fails to comply

with a discovery rule or order, "the court may order such party to

permit the discovery of material and information not previously

disclosed, grant a continuance, exclude such evidence, or enter

such other order as it deems just under the circumstances."  134

Ill. 2d R. 415(g)(i); see also People v. Menssen, 263 Ill. App. 3d 946, 950 (1994) (although supreme court rules do not provide the

basis for discovery sanctions in misdemeanor cases, court has

inherent power to enforce its orders).

	The exclusion of evidence is not a favored discovery sanction

because it does not further the goal of truth seeking.  People v. Rubino, 305 Ill. App. 3d 85, 88 (1999).  The preferred sanction is a continuance if it would protect the defendant from surprise and

prejudice.  Rubino, 305 Ill. App. 3d at 88.  Excluding evidence is limited to the most extreme discovery violations.  People v. Damico, 309 Ill. App. 3d 203, 212 (1999).

	The trial court was faced with a difficult situation. 

Although the delayed production of the tape probably was due in

part to the State's negligence, there is nothing indicating that

the State acted in bad faith.  Accordingly, excluding the tape 

would have been a harsh sanction and would not have furthered the

truth-seeking process.

	On the other hand, a short continuance was not requested by

defense counsel and probably would not have protected defendant

from surprise or prejudice.  As defense counsel stated, the late

production of the tape "throws a total wrench in the works" for the

defense.  It is for this reason that Pondexter is distinguishable.  In Pondexter, the trial court sua sponte declared a mistrial when the defendant failed to disclose until the middle of the trial an

occurrence witness who would have corroborated the defendant's

self-defense theory.  The reviewing court held that there was no

manifest necessity to declare a mistrial.  It reasoned that the

State was aware of the defendant's intention to claim self-defense

and therefore probably would not have conducted its prosecution

differently had it known about the witness before the trial. 

Pondexter, 214 Ill. App. 3d at 86.  Here, as defense counsel had viewed the tape and stated that it "throws a total wrench in the

works" without requesting a continuance and at the same time

claiming that he would need additional time to prepare, it is apparent that a short continuance most likely was not a viable

alternative as the tape would significantly affect counsel's

strategy and his time to prepare for trial.

	Defendant's right to have his trial completed by a particular

tribunal must be balanced against the public's interest in fair

trials designed to end in just judgments.  Pondexter, 214 Ill. App. 3d at 83.  The trial court struck the proper balance between these

competing interests, and, accordingly, we cannot say that the court

abused its discretion.  Because the trial court did not abuse its

discretion in declaring a mistrial, double jeopardy principles do

not bar a retrial.

	The judgment of the circuit court of Du Page County is

affirmed.

	Affirmed.

	HUTCHINSON, P.J., and McLAREN, J., concur.