                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




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




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    SERGIO CORDERO, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-1113


Filed                      February 10, 2012
Rehearing denied           March 26, 2012
Held                       Where defendant was granted a new trial following his conviction for
(Note: This syllabus       aggravated criminal sexual assault and then the trial court denied his
constitutes no part of     motion to dismiss, which argued that a retrial would subject him to
the opinion of the court   double jeopardy because the evidence at his first trial was legally
but has been prepared      insufficient, the appellate court held that double jeopardy did not bar a
by the Reporter of         new trial, regardless of the sufficiency of the evidence at the first trial,
Decisions for the          since defendant’s original jeopardy had never terminated where he was
convenience of the         convicted, the trial court denied his request for a judgment of acquittal,
reader.)
                           and then granted him a new trial based on a finding of reversible error
                           arising from the exclusion of certain evidence.


Decision Under             Appeal from the Circuit Court of Jo Daviess County, No. 09-CF-80, the
Review                     Hon. William A. Kelly, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Robert M. Stephenson, of Becker Stephenson LLC, of Chicago, for
Appeal                     appellant.

                           Terry M. Kurt, State’s Attorney, of Galena (Lawrence M. 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 by White 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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