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2021 IL App (2d) 190476 

No. 2-19-0476 

Opinion filed March 30, 2021 

Modified Upon Denial of Rehearing May10, 2021 

IN THE 

APPELLATE COURT OF ILLINOIS 

SECOND DISTRICT 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court 

OF ILLINOIS, ) of Kane County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 18-CM-1955 

) 

PATRICIA LYNN KOSOBUCKI, ) Honorable 

) Alice C. Tracy, 

Defendant-Appellant. ) Judge, Presiding. 

JUSTICE ZENOFF delivered the judgment of the court, with opinion. 

Justices Jorgensen and Brennan concurred in the judgment and opinion. 

OPINION 

¶ 1 Defendant, Patricia Lynn Kosobucki, appeals the denial of her motion to dismiss this 

prosecution, on double-jeopardy grounds. We reverse. 

¶ 2 I. BACKGROUND 

¶ 3 Defendant was charged by amended complaint with two counts of domestic battery (720 

ILCS 5/12-3.2(a)(1), (2) (West 2018)) and one count of criminal damage to property (720 ILCS 

5/21-1(a)(1) (West 2018)), arising out of an altercation with her ex-husband, Alberto Montano. 

The State alleged that defendant struck Montano in the face with her hand and smashed his cell 

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¶ 4 Defendant filed a motion for pretrial discovery in which she requested the State to disclose, 

inter alia, any written statements made by the defendant and any information favorable to the 

defendant. It is undisputed that, prior to trial, the State did not turn over written statements that 

defendant and Montano gave to the police. 

¶ 5 On April 16, 2019, defendant’s jury trial commenced. 

¶ 6 A. Officer Rodriguez’s Absence and the Stipulation to His Testimony 

¶ 7 Aurora police officer Pedro Rodriguez was one of the officers who investigated Montano’s 

complaint of domestic battery on July 25, 2018. In the prosecutor’s opening statement, she 

informed the jury that Rodriguez would corroborate Montano’s version of the events. However, 

after opening statements, but before any witnesses testified, the State informed the court that 

Rodriguez was not available, because he had undergone surgery and was hospitalized. The State 

indicated its readiness to proceed without Rodriguez’s testimony. 

¶ 8 Defense counsel represented that he had Rodriguez under subpoena and could not proceed 

without him because only Rodriguez could testify to defendant’s demeanor the morning of the 

incident. According to defense counsel, Rodriguez would also testify that he did not see a hammer 

that defendant allegedly used to smash Montano’s cell phone. Defense counsel requested a 

continuance until Rodriguez could appear at trial. Counsel also asked for a recess for his 

investigator to locate another officer, who did not appear pursuant to defense counsel’s subpoena. 

The court denied both requests.1 

1 Later in the trial, the court granted defendant an overnight recess to obtain Rodriguez’s 

presence, but the defense found out that Rodriguez would not be available for two weeks because 

of his surgery. 

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¶ 9 Due to Rodriguez’s absence, defense counsel moved for a mistrial twice, once during the 

State’s case-in-chief and again after the court denied defendant’s motion for a directed verdict. 

The court denied both motions. The next day, (the second day of trial) during defendant’s case-inchief, the parties stipulated to Rodriguez’s testimony in front of the jury. 

¶ 10 B. The State’s Discovery Violation and the Mistrial 

¶ 11 The State presented its case-in-chief on the first day of trial. Montano testified that, 

although he and defendant were divorced, they were reconciling and living together off and on 

when this incident happened. Early in the morning of July 25, 2018, defendant woke Montano. 

She had discovered a compromising video of Montano and another woman on his phone. An 

argument ensued. According to Montano, while the parties were in the kitchen, defendant struck 

him in the face with her fist and smashed his phone with a hammer. Montano testified that 

defendant broke a window while she was swinging the hammer. On cross-examination, Montano 

testified that he made a written statement when he reported the incident to the police later that 

morning. 

¶ 12 Aurora police officer Clark Johnson testified next. Along with Rodriguez, Johnson 

responded to defendant’s home the morning of July 25, 2018. According to Johnson, defendant 

told him (Johnson) that she punched Montano in the face with her right hand. Johnson testified 

that he observed fresh blood and a scrape on her hand. Johnson testified that he did not include 

defendant’s statement to him in his report, because Rodriguez was the lead investigator, who was 

responsible for writing the report. 

¶ 13 On cross-examination, defense counsel asked Johnson whether defendant stated that she 

struck Montano in self-defense. The court sustained the State’s hearsay objection. At a sidebar 

conference, the court asked defense counsel if he had a police report indicating that defendant told 

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Johnson that she acted in self-defense. Defense counsel produced Rodriguez’s report, in which 

Rodriguez memorialized defendant’s statement that she punched Montano because he would not 

“get out of her face.” The court ruled that counsel could not cross-examine Johnson using 

Rodriguez’s report. Defense counsel then argued that he needed Rodriguez to testify. The court 

again ruled that Johnson’s testimony as to defendant’s allegedly exculpatory statement at the scene 

would be inadmissible hearsay. Counsel made the first motion for a mistrial, which the court 

denied. 

¶ 14 In front of the jury, defense counsel asked Johnson whether Montano made a written 

statement. Johnson did not think so, because he did not see one in the police report. 

¶ 15 Next, Officer Patricia Vega testified that Montano presented himself at the police station 

on the morning of July 25, 2018. According to Vega, Montano was bleeding from his nose and 

mouth, but he did not want to sign a complaint against defendant. On cross-examination, Vega 

testified that Montano did not tell her about a broken window. When defense counsel asked 

whether Montano made a written statement, Vega initially said that he did. Then, confusingly, she 

stated that Montano could have refused to fill one out, “but he signed it, or filled it out.” She added: 

“I don’t have the initial report.” Ultimately, she backtracked and testified that, “as far as I saw,” 

no written statement existed. At the conclusion of Vega’s testimony, the State rested. 

¶ 16 After the court denied defendant’s motion for a directed verdict, and the parties were unable 

to work out a stipulation concerning Rodriguez’s testimony, the defense again moved for a 

mistrial, arguing that it was unfair for the State to elicit that defendant admitted striking Montano 

without allowing defendant to introduce her statement to Rodriguez that she did so because 

Montano would not get out of her face. Defendant argued that Rodriguez was a necessary witness 

for the defense. 

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¶ 17 Following the court’s denial of the second motion for a mistrial, the defense started its 

case-in-chief. Matthew Corona, defendant’s 17-year-old son from another relationship, testified 

that he was in his bedroom with his girlfriend on the morning of July 25, 2018, when he heard 

“people yelling.” According to Matthew, he grabbed his younger brother, Noah, from where he 

was sleeping on the couch and put Noah in his (Matthew’s) room. Then, Matthew saw defendant 

and Montano arguing in the kitchen. Matthew testified that he stopped the argument from 

escalating by taking defendant to his room. Matthew testified that he did not hear glass breaking, 

nor did he see defendant strike Montano or break Montano’s phone. 

¶ 18 Defendant’s next witness was her 10-year-old son with Montano, Noah. On the morning 

of July 25, 2018, Noah was sleeping on the living room couch when he was awakened by “yelling 

and screaming.” His parents were arguing. He heard glass breaking, but he did not witness 

anything, as his brother pulled him into the bedroom to keep him away from the argument. On 

cross-examination, Noah reaffirmed that he heard what was going on but did not see anything. 

¶ 19 Next, out of the hearing of the jury, the parties discussed with the court a possible 

stipulation concerning Rodriguez’s testimony, but that issue did not get resolved. Instead, the court 

proceeded to the instructions conference. 

¶ 20 The next morning, April 17, 2019, the court and the parties finished the instructions 

conference. Then, the court ruled on a motion in limine that the State had filed that morning. In 

front of the jury, defendant recalled Johnson as a witness to lay the foundation for certain crimescene photos that defendant then introduced into evidence. 

¶ 21 Next, the parties informed the court that they had reached a stipulation concerning 

Rodriguez’s testimony, which defense counsel read to the jury. In pertinent part, the parties 

stipulated that Rodriguez would testify that he observed a broken kitchen window at defendant’s 

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residence the morning of her altercation with Montano; that he did not note in his report that he 

observed a hammer at the scene; and that defendant told Rodriguez: “[Montano] would not get out 

of her face so she did punch [Montano] in the face with her right hand.” 

¶ 22 Defendant, as the last witness for the defense, testified in her own behalf. She testified that 

at approximately 1:30 a.m. on July 25, 2018, she found explicit sexual images of multiple women 

on Montano’s phone. She woke Montano. According to defendant, they sat in the kitchen for a 

while, talking. 

¶ 23 The prosecutor then interrupted defendant’s testimony. At a sidebar conference outside the 

jury’s presence, the prosecutor said: “Our Officer Vega came up to us before the trial started and 

said that they have evidence of written statements by both the [d]efendant and the victim that were 

never turned over because of an indexing problem with records.” The prosecutor next said: “At 

this time we are going to agree to a mistrial.” The court said: “Okay. Thank you.” Defense counsel 

immediately interjected at the sidebar: “Judge, can I be heard on that?” The court stated: “Not at 

this time.” The prosecution did not produce the written statements, nor did the court ask for them. 

The prosecution did not divulge the contents of the written statements, nor did the court ask. 

¶ 24 Without further consulting the parties, the court told the jury that “there have been some 

issues with evidence on this case.” Next, the court told the jury: “I’m going to declare a mistrial at 

this time.” The court’s written order declaring the mistrial stated: “The People’s request for a 

mistrial is granted due to newly obtained evidence.” 

¶ 25 After discharging the jury, the court discussed setting a new trial date. Defense counsel 

requested a date when Rodriguez would be present. He then said: “I would like to preserve my 

objection, for the record, that I was not allowed to argue about the mistrial.” The court stated: 

“Well, argue it now. You have one minute. Argue.” Defense counsel stated that a mistrial was not 

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appropriate. “We were down to our last witness,” he said. “There were statements. I haven’t even 

had a chance to review them.” Counsel noted that the State’s “motion” for a mistrial was “granted 

without any argument.” 

¶ 26 C. Defendant’s Motion to Dismiss 

¶ 27 On May 7, 2019, defendant moved to dismiss the charges on double-jeopardy grounds. 

Defendant alleged that her pretrial motion for discovery included a request for written statements. 

She also alleged that the police report indicated that written statements were given. However, she 

alleged, when her counsel asked the State, on multiple occasions, to turn over the written 

statements, the prosecutors denied their existence. Defendant alleged that the prosecution never 

turned over the written statements, even after it argued their existence as the reason for the mistrial. 

Further, defendant alleged that the mistrial was granted without her consent and without a manifest 

necessity for doing so. 

¶ 28 In its response, the State alleged that the police never informed the prosecutors that 

defendant made a written statement. The State also alleged that the prosecutors made diligent 

pretrial efforts to obtain from the police department any written statements but were told that none 

existed. The State further alleged that the existence of the statements came to the prosecutors’ 

attention on the second day of trial and that the prosecution “promptly” sent both written 

statements to defense counsel after the mistrial was declared. The State purportedly attached the 

statements as an exhibit to their response, but the record contains no such exhibit. Only a copy of 

a proof of service stating that “written statements” were served on defense counsel by email at 

2:04 p.m. on the second day of trial was attached to the State’s response. 

¶ 29 Before ruling on defendant’s motion to dismiss, the court made the following findings. On 

the morning of the first day of trial, the court was informed that Rodriguez was not present in court. 

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Although defense counsel sent subpoenas to the police department the previous week, counsel 

never spoke to the officers about their availability. Defense counsel also could not provide proof 

that the subpoenas were served on the officers. At trial, after Montano testified that he executed a 

written statement, defense counsel did not pursue obtaining that statement. 

¶ 30 The court found that it declared the mistrial without defendant’s “specific” consent. The 

court stated, however, that it believed that there was “no way” that defendant would not consent 

after having asked “three times for a mistrial herself.”2 The court ruled that there was a manifest 

necessity for the mistrial and denied the motion to dismiss. In discussing the factors that led to this 

decision, the court noted: (1) it did not consider any alternatives to a mistrial, (2) it acted in the 

heat of trial confrontation, (3) it considered the possibility that defendant’s conviction would be 

reversed on appeal for ineffective assistance of counsel and because the written statements had not 

been tendered to the defense, (4) the mistrial was granted to protect defendant from prejudice, and 

(5) the decision to declare a mistrial rested on the fact that the trial was a “muddled mess” due to 

defense counsel’s lack of trial preparation. The court explained that the domestic battery courtroom 

was high volume, with multiple jury trials scheduled on any given day, and that the court expected 

defense counsel to be prepared when answering “ready.” 

¶ 31 Defendant filed a timely notice of interlocutory appeal pursuant to Illinois Supreme Court 

Rule 604(f) (eff. July 1, 2017) (allowing appeals from orders denying motions to dismiss on 

double-jeopardy grounds). 

¶ 32 II. ANALYSIS 

2 The record shows that defendant requested a mistrial twice, although defense counsel also 

alluded to a motion for a mistrial that may have occurred off the record. 

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¶ 33 Defendant contends that the court abused its discretion in denying her motion to dismiss. 

Defendant asserts that the court acted hastily in declaring the mistrial without considering 

alternatives and without allowing defendant to object. The State argues that defendant consented 

to the mistrial or, alternatively, that there was a manifest necessity to declare a mistrial. We review 

for an abuse of discretion the denial of a motion to dismiss on double jeopardy grounds. People v. 

Griffith, 404 Ill. App. 3d 1072, 1079 (2010). 

¶ 34 A. Double-Jeopardy Principles 

¶ 35 The fifth amendment to the United States Constitution provides that no person shall “be 

subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. 

The double-jeopardy clause applies to the states through the due process clause of the fourteenth 

amendment (U.S. Const., amend XIV). Benton v. Maryland, 395 U.S. 784, 787 (1969). The Illinois 

Constitution also prohibits placing persons in double jeopardy. Ill. Const. 1970, art. I, § 10 (“[n]o 

person shall *** be twice put in jeopardy for the same offense”). The Illinois double-jeopardy 

clause is construed in the same manner as the double-jeopardy clause of the fifth amendment to 

the United States Constitution. People v. Staple, 2016 IL App (4th) 160061, ¶ 13. In a jury trial, 

jeopardy attaches when the jury is empaneled and sworn. People v. Bellmyer, 199 Ill. 2d 529, 538 

(2002). 

¶ 36 The double-jeopardy protection embraces a defendant’s “valued right” to have his trial 

completed by a particular tribunal. Arizona v. Washington, 434 U.S. 497, 503 (1978). Thus, the 

prosecution is generally entitled to only one opportunity to try a defendant. Washington, 434 U.S. 

at 505. However, retrial is permitted where the defendant moved for, or consented to, the mistrial. 

People v. Dahlberg, 355 Ill. App. 3d 308, 312 (2005). The defendant who requests or consents to 

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a mistrial is presumed to have waived his or her valued right to have the trial completed by the 

jury that was originally seated. People v. Bagley, 338 Ill. App. 3d 978, 981 (2003). 

¶ 37 However, when a mistrial is declared without a defendant’s consent, retrial is permitted 

only if there was a “ ‘manifest necessity’ ” for declaring the mistrial. Washington, 434 U.S. at 505; 

People v. Street, 316 Ill. App. 3d 205, 211 (2000).3 In discussing the phrase “manifest necessity,” 

the United States Supreme Court held that it cannot be interpreted literally but that a “manifest” 

necessity means a “ ‘high degree’ ” of necessity. Washington, 434 U.S. at 505-06. The prosecution 

shoulders a heavy burden of justifying a mistrial to avoid the double-jeopardy bar. Washington, 

434 U.S. at 505. Whether a manifest necessity exists depends upon the particular facts, and a trial 

court’s decision to declare a mistrial is reviewed for an abuse of discretion. People v. Edwards, 

388 Ill. App. 3d 615, 625 (2009). 

¶ 38 B. Whether Defendant Consented to the Mistrial 

¶ 39 The trial court found that defendant did not specifically consent to the mistrial. Rather, it 

believed when it declared the mistrial that “there was no way the defendant would not consent 

after asking for a mistrial three [sic] times.” Nevertheless, the State argues that defendant did 

consent when she (1) moved twice for a mistrial and (2) did not object to the mistrial. 

¶ 40 1. Whether Rodriguez’s Absence Was Causally Related to the Declaration of the Mistrial 

¶ 41 Defendant’s motions for a mistrial were triggered by Rodriguez’s absence. The mistrial 

was declared due to newly discovered evidence. The State tries to link Rodriguez’s absence to the 

declaration of the mistrial by arguing that both related to “an underlying” issue of ineffective 

3 The “manifest necessity” doctrine was first articulated in United States v. Perez, 22 U.S. 

(9 Wheat.) 579 (1824). 

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assistance of defense counsel. Specifically, the State argues that defense counsel’s failure to 

subpoena Rodriguez caused Rodriguez’s absence. That error, the State argues, resulted in defense 

counsel’s inability to obtain a stipulation that adequately presented defendant’s claim of selfdefense. The State asserts that when it merely agreed to defendant’s earlier motions for a mistrial, 

it was protecting defendant’s right to the effective assistance of counsel. 

¶ 42 The State’s argument is contradicted by the record. First, the court’s written order declaring 

the mistrial stated that it was granted on the State’s motion due to newly discovered evidence. The 

“newly discovered evidence” was written statements in the possession of the police department, 

over which defense counsel had no control. 

¶ 43 Second, Rodriguez was absent because of illness. His absence surprised even the 

prosecutor, who promised the jury in her opening statement that Rodriguez would testify and 

corroborate Montano’s version of the events. Whether defense counsel had Rodriguez under 

subpoena or not, Rodriguez was not able to appear because he had surgery. 

¶ 44 The State makes the unfounded assumption that, had defense counsel known that 

Rodriguez was unavailable, the court would have granted defendant a continuance. That does not 

appear likely because the court ruled that Rodriguez’s testimony as to defendant’s exculpatory 

statement would be inadmissible hearsay. More important, a continuance until Rodriguez could be 

present would not have cured the State’s failure to turn over the written statements in pretrial 

discovery. Their existence became known only because defense counsel questioned Vega on crossexamination about whether Montano executed a written statement. 

¶ 45 Third, the stipulation to Rodriguez’s testimony reflected what Rodriguez wrote in his 

police report. Rodriguez noted in his report—and the stipulation so recited—that defendant said 

that she punched Montano because he would not get out of her face. The stipulation also included 

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that Rodriguez did not note a hammer at the scene. It is reasonable to assume that Rodriguez would 

testify consistently with his report. Thus, there was nothing deficient in counsel’s performance in 

obtaining that stipulation. 

¶ 46 The State misconceives the purpose and effect of the parties’ stipulation to Rodriguez’s 

testimony. A stipulation is a “conclusive agreement” with respect to an issue before the court. 

People v. Pablo, 2018 IL App (3d) 150892, ¶ 17. A stipulation, being conclusive as to all matters 

included within it, cannot be attacked, or contradicted, by the defendant. People v. Woods, 214 Ill. 

2d 455, 469 (2005). A stipulation to a witness’s testimony obviates the need for the defense to 

subpoena the witness. Pablo, 2018 IL App (3d) 150892, ¶ 26. Thus, the issue of Rodriguez’s 

absence was resolved by the stipulation. Whether defendant’s statement to Rodriguez supported 

her claim of self-defense was for the jury to decide. If, as the State argues, the stipulation was not 

helpful to defendant, the State does not explain how such unhelpfulness caused the prosecution’s 

nondisclosure of the written statements. 

¶ 47 Fourth, the prosecutor did not argue a basis, other than her untimely disclosure of the 

existence of the written statements, for the mistrial. The prosecutor said: 

“Our Officer Vega came up to us before the trial started and said that they have evidence 

of written statements by both the [d]efendant and the victim that were never turned over 

because of an indexing problem with records. At this time we are going to agree to a 

mistrial.” 

Nothing in those words hints that anything other than the missing statements spurred the mistrial. 

¶ 48 Finally, the State’s attempt to link defense counsel’s performance to the missing written 

statements is fanciful. The police department’s administrative snafu occurred long before, and 

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independently of, Rodriguez’s absence at trial. Furthermore, the State cannot lay the police 

department’s administrative mishaps at defense counsel’s doorstep. 

The State’s reliance on this court’s opinion in People v. Lovinger, 130 Ill. App. 3d 105 (1985), is 

misplaced. In Lovinger, the defendant moved for a mistrial after the prosecutor spoke with a police 

officer during a recess in the officer’s testimony. Lovinger, 130 Ill. App. 3d at 108. Anticipating a 

motion for a mistrial, the court stated that it would deny a mistrial, even before defense counsel 

made the motion. Lovinger, 130 Ill. App. 3d at 107-08. However, after the prosecutor spoke with 

another witness during a recess in that witness’s testimony, and defense counsel brought that 

infraction to the court’s attention, the court sua sponte declared a mistrial. Lovinger, 130 Ill. App. 

3d at 109-10. When declaring the mistrial, the court articulated additional reasons for its action. 

Lovinger, 130 Ill. App. 3d at 110-11. We affirmed the court’s denial of the defendant’s motion to 

bar retrial on double-jeopardy grounds, because the mistrial was declared, in part, on a ground that 

defendant had advanced. Lovinger, 130 Ill. App. 3d at 113-14. In Lovinger, unlike in the present 

case, there was a correlation between the reason the defendant moved for a mistrial and the reason 

the court declared the mistrial. 

¶ 49 The Seventh Circuit Court of Appeals disagreed with our analysis and affirmed the district 

court’s grant of habeas corpus in Lovinger v. Circuit Court of the 19th Judicial Circuit, 845 F.2d 

739 (7th Cir. 1988) (Lovinger II). The court of appeals held that the trial court’s articulation of 

alternative reasons for granting the mistrial attenuated any connection between the defendant’s 

motion for a mistrial and the declaration of the mistrial. Lovinger II, 845 F.2d at 743-44. Here, 

defendant urges us to follow Lovinger II. However, as noted, the underlying facts in that case are 

distinguishable because of the correlation—even if attenuated—between the reason the defendant 

moved for a mistrial and the reason it was declared. In our case, no such correlation exists. 

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¶ 50 Also in contrast to our case is People v. Roche, 258 Ill. App. 3d 194 (1994). In Roche, the 

trial court used the appellation “Jesus Christ” as a swearword, on the record and in front of the 

jury, while ruling adversely on an objection by defense counsel, implying that the objection was 

ridiculous. Roche, 258 Ill. App. 3d at 196. The defendant moved for a mistrial. Roche, 258 Ill. 

App. 3d at 196-97. The court did not rule on the motion. Roche, 258 Ill. App. 3d at 197. Instead, 

the court went on to other business. Roche, 258 Ill. App. 3d at 197. However, the next morning, as 

soon as the jury was brought in, the court declared a mistrial. Roche, 258 Ill. App. 3d at 197-98. 

The defendant appealed the court’s denial of his motion to dismiss on double-jeopardy grounds, 

arguing, inter alia, that his motion for a mistrial was not pending when the judge declared a 

mistrial. Roche, 258 Ill. App. 3d at 198. This court disagreed, saying that “[v]ery little happened” 

between the motion for a mistrial and its declaration, except that the trial court considered the 

matter overnight. Roche, 258 Ill. App. 3d at 199-200. 

¶ 51 In our case, much happened between when the court denied defendant’s motions for a 

mistrial and when it declared the mistrial: (1) the parties stipulated to Rodriguez’s testimony, 

(2) Vega informed the prosecutors that the written statements existed, (3) the court and the parties 

finished the instructions conference and disposed of the State’s motion in limine, (4) defendant 

presented almost her entire case-in-chief, and (5) and the prosecutor informed the court and 

defense counsel of the existence of the undisclosed written statements. Even if these events had 

not intervened, we would determine that there never was a nexus, because Rodriguez’s absence 

simply was not related to the State’s nondisclosure of the written statements. Accordingly, we hold 

that defendant’s prior motions for a mistrial did not constitute consent to the mistrial. 

¶ 52 2. Whether Defendant Failed to Object to the Declaration of the Mistrial 

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¶ 53 A defendant’s failure to object to the declaration of a mistrial, despite having the 

opportunity to do so, and his conduct after the mistrial is declared can evince acquiescence to the 

mistrial. People v. Camden, 115 Ill. 2d 369, 378-79 (1987). Here, defendant argues that she had 

no opportunity to object before the mistrial was declared, where defense counsel asked to be heard 

but was silenced by the court. The State argues that defense counsel could have persisted and 

would have been heard. The State further argues that it was reasonable for the court to assume that 

defendant would agree to the mistrial, based on her earlier motions. 

¶ 54 The record shows that, at a sidebar, upon the prosecutor’s representation that the State 

would “agree” to a mistrial, defense counsel straightaway interjected: “Judge, can I be heard on 

that?” The court told defense counsel: “Not at this time.” The court then declared the mistrial in 

front of the jury and sent the jury to the jury room. 

¶ 55 The judge immediately excused herself from the bench to speak with the discharged jurors. 

When the judge resumed the bench, she asked the State if it wanted another date to retry defendant. 

A colloquy ensued among the court, the prosecution, and defense counsel over a mutually 

agreeable date for the retrial. As soon as that date was established, defense counsel stated: “I would 

like to preserve my objection, for the record, that I was not allowed to argue about the mistrial.” 

The court stated: “Well, argue it now. You have one minute. Argue.” 

¶ 56 The issue is whether defendant had an adequate opportunity to object before the jury was 

discharged. See Dahlberg, 355 Ill. App. 3d at 313 (holding that the defendant did not consent to 

the mistrial where he did not have an adequate opportunity to object before the jury was 

discharged). A defendant’s failure to object to an expressly contemplated declaration of a mistrial 

manifests consent only when the defendant has been given a sufficient opportunity to object. State 

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v. Leon-Simaj, 913 N.W.2d 722, 730 (Neb. 2018); Ex Parte Montano, 451 S.W.3d 874, 878 (Texas 

Ct. App. 2014). 

¶ 57 In Camden, our supreme court held that the defendant’s conduct constituted acquiescence 

where defense counsel stood mute when a juror claimed that he could not render a fair verdict, the 

court stated that there would be another trial, and the case was set for another trial by agreement. 

Camden, 115 Ill. 2d at 377-79. This court reached the opposite conclusion in Dahlberg, where the 

trial court cut defense counsel off after the State moved for a mistrial and then immediately 

declared the mistrial. Dahlberg, 355 Ill. App. 3d at 313. In Bagley, 338 Ill. App. 3d at 981-82, we 

held that defense counsel’s conduct did not amount to acquiescence where counsel “forcefully” 

argued that the trial should continue before the court’s declaration of the mistrial. 

¶ 58 The present case is unusual because we do not have to infer what happened entirely from 

the report of proceedings. The court acknowledged that it declared the mistrial without “giving 

[defense counsel] even a chance to respond [to the State’s agreement to a mistrial].” The court 

elaborated: “And I never—it is correct that I never asked for [defense counsel’s] input at that time.” 

The State’s assertion that, had defense counsel persisted, the court would have entertained his 

argument is gainsaid by the record. Throughout the proceedings, the court displayed impatience 

with counsel, cutting off his arguments. 

¶ 59 We believe that the present case is analogous to Dahlberg. In Dahlberg, which was a 

prosecution for domestic battery, defense counsel cross-examined the victim about domestic 

battery complaints that she had filed against past suitors. Dahlberg, 355 Ill. App. 3d at 310. The 

State moved for a mistrial. Dahlberg, 355 Ill. App. 3d at 310. When defense counsel began to 

explain why he was entitled to pursue that subject, the court cut counsel off, admonishing that 

counsel should have raised the matter in limine. Dahlberg, 355 Ill. App. 3d at 310. Immediately, 

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the court declared a mistrial. Dahlberg, 355 Ill. App. 3d at 310. This court held that, under those 

circumstances, the defendant did not impliedly consent to the mistrial. Dahlberg, 355 Ill. App. 3d 

at 313. 

¶ 60 We also reject the State’s argument that it was reasonable for the court to assume that 

defendant would agree to the mistrial because she had previously moved for a mistrial on other 

grounds. In effect, the State asks us to hold that a defendant who moves unsuccessfully for a 

mistrial on one ground thereafter consents to the declaration of a mistrial on any other, unrelated 

ground. We decline to so hold, because trials are never static. A defendant may see his or her 

fortunes improve over the course of the trial. We are mindful that it is a defendant’s valued right 

to have his or her trial completed by a particular tribunal. People v. Kimble, 2019 IL 122830, ¶ 29. 

Consequently, the defendant must determine whether to consent to a particular motion for, or 

declaration of, a mistrial. To that end, we hold that the trial court must explicitly, and on the record, 

afford the defendant who so requests the adequate opportunity to object to the declaration of a 

mistrial, even where the defendant has previously moved for a mistrial on the same or other 

grounds. 

¶ 61 C. Whether There Was a Manifest Necessity for the Mistrial 

¶ 62 Having determined that defendant did not consent or acquiesce to the mistrial, we turn to 

whether there was a manifest necessity for the mistrial. Whether a manifest necessity warranted a 

mistrial depends upon the facts of each case. Street, 316 Ill. App. 3d at 211. To aid its 

determination, the reviewing court may consider the following nonexclusive factors: (1) whether 

the difficulty was the product of the actions of the prosecution, defense counsel, or trial judge or 

whether it was the product of events over which the participants had no control; (2) whether the 

difficulty could have intentionally been created or manipulated by the State to strengthen its case; 

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(3) whether the difficulty, prejudice, or other legal complication could have been cured by another 

alternative that would have preserved the trial’s fairness; (4) whether the trial judge actually 

considered other alternatives to a mistrial; (5) whether a subsequent conviction would likely be 

reversed on appeal; (6) whether the trial judge acted in the heat of trial confrontation; (7) whether 

the judge’s decision rested on an evaluation of the participants’ demeanor, the atmosphere of the 

trial, or any other factors not amenable to strict appellate review; (8) whether the judge granted the 

mistrial to protect the defendant from possible prejudice; (9) whether the State’s evidence, prior to 

the mistrial, evidenced a weakness in its case; (10) whether the jurors heard enough of the case to 

form tentative opinions; (11) whether the case had proceeded so far as to give the State a substantial 

preview of the defense’s tactics and evidence; and (12) whether the jury composition was unusual. 

Street, 316 Ill. App. 3d at 211-12. 

¶ 63 Here, under factors (1) through (3), the difficulty that caused the mistrial is at issue, 

although the record here leaves no doubt about what happened. Defendant made a pretrial motion 

for discovery, in which she asked that the State turn over any statements that she made, as well as 

evidence favorable to her. The prosecution continually denied that any written statements existed. 

During trial, two prosecution witnesses, Officers Johnson and Vega, testified, in response to 

defendant’s questions, that Montano did not make a written statement. On the second day of trial, 

after defendant had presented almost her entire case-in-chief, the prosecutor disclosed that Vega 

told her, before trial began that morning, that both defendant and Montano had executed written 

statements. The prosecutor stated that she agreed to a mistrial. The prosecutor did not produce the 

written statements to the court or to defendant, nor did the court inquire as to the contents of those 

statements. Defense counsel asked to be heard at that moment, and the court denied him the 

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opportunity. The court then declared a mistrial and discharged the jury. In its written order, the 

court noted that the mistrial was granted on the State’s motion, due to newly discovered evidence. 

¶ 64 Yet, the State argues that the mistrial was caused by defense counsel’s failure to render 

effective assistance in (1) failing to obtain necessary witnesses for trial, (2) failing to obtain the 

missing written statements, and (3) failing to obtain an adequate stipulation to Rodriguez’s 

testimony. As discussed, Rodriguez was absent due to illness. The court denied defendant’s motion 

for a continuance until Rodriguez could be present, ruling that Rodriguez’s testimony about 

defendant’s exculpatory statement would be inadmissible hearsay. Rodriguez’s absence, as well 

as the State’s hearsay objection, became moot when the parties stipulated to his testimony. The 

record shows that the stipulation matched what Rodriguez had recorded in his report. Although 

other officers, who defense counsel thought were under subpoena, failed to appear for trial, there 

is nothing indicating that those officers were critical to defendant’s case, as Rodriguez was the 

lead investigative officer and he wrote the report containing defendant’s exculpatory statement. 

¶ 65 The State faults defense counsel for not pursuing the missing written statements after 

Montano testified that he executed a written statement. However, defense counsel followed up by 

asking the State’s two police witnesses whether Montano gave a written statement. Johnson denied 

knowing of any such statement, and Vega, who took Montano’s complaint, testified that there was 

no such statement.4 Defense counsel is entitled to rely on the State’s response to his or her 

4 At the hearing on defendant’s motion to dismiss, defense counsel indicated that he was 

not so concerned about defendant’s written statement, as defendant contended that it was 

consistent with her self-defense position. Indeed, the morning that Vega disclosed to the 

prosecution the existence of the statements, the prosecution moved in limine to bar defendant from 

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discovery requests and assume that the State had accurately disclosed all the impeaching 

information within the knowledge of the State’s agents. People v. Olinger, 176 Ill. 2d 326, 362 

(1997). Consequently, we reject the argument that the mistrial was necessitated by defense 

counsel’s ineffectiveness. The question is whether the State’s discovery violation warranted the 

mistrial. 

¶ 66 Where the trial court grants a prosecutor’s motion for a mistrial, the prosecutor bears the 

heavy burden of justifying the mistrial. People v. Largent, 337 Ill. App. 3d 835, 841 (2003). For a 

“ ‘manifest necessity’ ” to exist (People v. Shoevlin, 2019 IL App (3d) 170258, ¶ 26 (quoting 

Street, 316 Ill. App. 3d at 211)), the circumstances must be “ ‘ “ ‘very extraordinary and 

striking’ ” ’ ” (Shoevlin, 2019 IL App (3d) 170258, ¶ 26 (quoting Largent, 337 Ill. App. 3d at 840, 

quoting Downum v. United States, 372 U.S. 734, 736 (1963), quoting United States v. Coolidge, 

25 F. Cas. 622, 623 (D. Mass. 1815) (No. 14,858))). In Downum, the Supreme Court of the United 

States opined that such circumstances must be an “imperious necessity.” Downum, 372 U.S. at 

736. Further, the doctrine of manifest necessity requires the trial court to scrupulously exercise 

judicial discretion to determine that the ends of public justice would not be served by continuing 

the proceedings. Street, 316 Ill. App. 3d at 211. 

¶ 67 In Street, the court held that the trial court abused its discretion in declaring a mistrial where 

it failed to consider any other alternative and failed to articulate any reason for rejecting 

using any prior consistent statements to bolster her testimony. The circumstances surrounding the 

bringing of that motion in limine indicate that the State knew of the written statements when it 

filed the motion, yet it did not disclose their existence until after defendant had nearly completed 

her case-in-chief. 

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alternatives. Street, 316 Ill. App. 3d at 213. “A trial judge must first consider all reasonable 

alternatives before granting a mistrial in a criminal case.” People v. Kuhfuss, 241 Ill. App. 3d 311, 

318 (1993). Indeed, the standard of manifest necessity is not met, and retrial is barred, if the 

problem giving rise to the declaration of a mistrial could have been corrected without aborting the 

proceeding. Kuhfuss, 241 Ill. App. 3d at 318. 

¶ 68 Here, the court acknowledged that it did not consider alternatives before declaring the 

mistrial, such as a recess for defendant to review the statements to determine the best course of 

action or recalling Montano so that defendant could cross-examine him about the statement. The 

State argues that, in ruling on defendant’s motion to dismiss, discussion of alternatives was 

speculative because defendant did not make the written statements part of the appellate record. 

The State suggests that this issue must be raised in a postconviction petition because it is de hors 

the record. The States cites People v. Wrencher, 2015 IL App (4th) 130522, ¶ 23, for the 

proposition that a party may not rely on matters outside the appellate record to sustain his or her 

position on appeal. 

¶ 69 The State’s argument misses the mark. First, the court had to consider alternatives before 

it declared the mistrial. If less drastic alternatives were available, they should have been employed. 

Harris v. Young, 607 F.2d 1081, 1085 (1979). Second, the prosecution failed to tender the written 

statements to the court and defendant when it disclosed their existence and prompted the mistrial. 

The court then foreclosed defendant’s valued right to have the jury she selected decide her fate 

without knowing whether the written statements even prejudiced her. 

¶ 70 A mistrial for a discovery violation is not an appropriate sanction where a recess or a 

continuance would protect the defendant from surprise or prejudice. People v. Pondexter, 214 Ill. 

App. 3d 79, 85 (1991). Here, defense counsel’s cross-examination brought out weaknesses in 

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Montano’s testimony. Montano went to his office for two hours instead of reporting the crime 

immediately. Montano testified that he did not argue with a “violent” defendant but “pretty much” 

“sat back” and watched while she played the compromising video on his phone, testimony that the 

jury could have found to be incredible. Montano was also combative with defense counsel, asking 

him which of two versions of events defense counsel would like. It is possible, had the court 

recessed to demand that the State disclose the contents of Montano’s written statement, that the 

court might have determined that the discovery violation did not prejudice defendant and no 

mistrial was necessary. 

¶ 71 Further, the State waited until defendant had almost completed her case-in-chief before 

bringing the discovery of the written statements to the court’s attention, even though the State 

knew about them before the trial started that morning and even though the prosecutor filed a motion 

in limine that morning to bar defendant from using a prior consistent statement. Delaying gave the 

State a significant advantage because Matthew and Noah were locked into their testimony that 

they did not see what happened. 

¶ 72 We also note the court’s acknowledgement that it acted in the heat of trial confrontation 

when it declared the mistrial without affording defendant the opportunity to be heard. The record 

shows that defense counsel perhaps seemed inexperienced, but he certainly was not incompetent. 

Defense counsel persevered in getting Rodriguez’s testimony before the jury, even though counsel 

struggled to obtain the stipulation, which he needed a supervisor to approve. Thus, the court’s 

conclusion that the trial was a “muddled mess” because of defense counsel’s ineptitude is not 

supported by the record. The record shows that the court was impatient with counsel for insisting 

that Rodriguez was a necessary witness, cutting off counsel’s arguments repeatedly. The 

conclusion is inescapable that the court declared the mistrial, at least in part, from frustration that 

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defense counsel was slowing down the proceedings. The amount of time the judge devotes to the 

mistrial decision is significant in determining whether there was a manifest necessity for the 

mistrial. Brady v. Samaha, 667 F.2d 224, 229 (1st Cir. 1981). Here, the court declared the mistrial 

almost simultaneously with the State’s suggestion that it do so. 

¶ 73 We understand the court’s concern for keeping to its schedule so that other litigants’ cases 

could be timely heard. However, “[a] precipitate decision, reflected by a rapid sequence of events 

culminating in a declaration of mistrial, would tend to indicate insufficient concern for the 

defendant’s constitutional protection.” Brady, 667 F.2d at 229. Consequently, we determine that 

the court failed to exercise “sound” and “conscientious” discretion in declaring the mistrial. See 

United States v. Jorn, 400 U.S. 470, 481 (1971) (it is the judge’s responsibility to exercise faithful, 

sound, and conscientious judgment when deciding whether to discharge a jury from giving a 

verdict.) Accordingly, we hold that the court abused its discretion in denying defendant’s motion 

to dismiss the charges. 

¶ 74 III. CONCLUSION 

¶ 75 For the reasons stated, we reverse the judgment of the circuit court of Kane County. 

¶ 76 Reversed. 

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2021 IL App (2d) 190476 

Cite as: 

Decision Under Review: 

Attorneys 

for 

Appellant: 

Attorneys 

for 

Appellee: 

No. 2-19-0476 

People v. Kosobucki, 2021 IL App (2d) 190476 

Appeal from the Circuit Court of Kane County, No. 18-CM-1955; 

the Hon. Alice C. Tracy, Judge, presiding. 

James E. Chadd, Thomas A. Lilien, and Anthony J. Santella, of 

State Appellate Defender’s Office, of Elgin, for appellant. 

Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick 

Delfino, Edward R. Psenicka, and Victoria E. Jozef, of State’s 

Attorneys Appellate Prosecutor’s Office, of counsel), for the 

People. 

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