                         NO. 4-08-0322              Filed 12/19/08

                      IN THE APPELLATE COURT

                              OF ILLINOIS

                            FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Champaign County
KENNETH W. HAWKS,                      )    No. 06CF1625
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Thomas J. Difanis,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE KNECHT delivered the opinion of the court:

          In October 2006, defendant, Kenneth W. Hawks, was

charged with driving under the influence (DUI) of alcohol (625

ILCS 5/11-501(c-1)(3) (West 2006)).    A jury trial was set for

January 2008.   After the trial court granted defendant's motion

for a mistrial and the original judge recused himself, defendant

filed a motion to dismiss on double-jeopardy grounds.    The second

judge denied defendant's motion to dismiss.    Defendant appeals,

arguing the second judge abused his discretion in denying defen-

dant's motion to dismiss.    We affirm.

                             I. BACKGROUND

          In July 2006, the State charged defendant with DUI.

Defendant elected to have a jury trial, which was set for January

2008 before Judge Chase Leonhard.    Before voir dire began,

defendant requested the trial court order the State to disclose

the criminal histories of the potential jurors.    Judge Leonhard
examined in camera the State's list of jurors, and to protect the

State's work product, he revealed only the criminal histories of

the potential jurors.   The following day, Champaign County First

Assistant State's Attorney Steve Ziegler, who was not directly

involved with the trial, approached Judge Leonhard while he was

on the bench and asked to speak to him in chambers.    At a hearing

the following morning, the judge apprised the parties of the

events in his chambers as follows:

               "[T]his morning at roughly 8:30 [a.m.],

          the First Assistant State's Attorney

          approached me and asked to speak with me in

          chambers.   And upon entering chambers, he

          said to me words to this effect, 'I under-

          stand you ordered Ms. Clark yesterday to

          produce one of our files in court.' *** So

          when I told Mr. Ziegler, the First Assistant,

          that I had simply ordered the production of a

          file and reviewed it in[]camera[,] he said,

          and I quote, 'well, I know what's in those

          files,' at which point I interjected that if

          he was endeavoring to comment to me about the

          merits of a ruling that I had made in a case

          that was pending, anyplace other than in

          court, then the conversation was inappropri-


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           ate and it wasn't going to continue.   And the

           conversation stopped there."

Defendant moved for a mistrial; over the State's objection, Judge

Leonhard granted the motion and recused himself.    In February

2008, defendant filed a motion to dismiss on double-jeopardy

grounds.   In April 2008, Judge Thomas Difanis denied defendant's

motion to dismiss and reassigned the case for further proceed-

ings.

           This appeal followed.

                           II. ANALYSIS

           On appeal, defendant contends the trial court abused

its discretion in denying his motion to dismiss on double-jeop-

ardy grounds.   Specifically, he argues the State intended to goad

defendant into requesting a mistrial when Ziegler engaged in ex

parte discussions with Judge Leonhard.    We disagree.

                       A. Standard of Review

           We review the trial court's denial of a motion to

dismiss on double-jeopardy grounds for an abuse of discretion.

People v. Campos, 349 Ill. App. 3d 172, 175, 812 N.E.2d 16, 19

(2004).

                        B. Double Jeopardy

           Both the United States and the Illinois Constitutions

protect a criminal defendant from successive prosecutions for the

same offense.   U.S. Const., amend. V; Ill. Const. 1970, art. I,


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§10.   "The defendant may appeal to the Appellate Court the denial

of a motion to dismiss a criminal proceeding on grounds of former

jeopardy."    210 Ill. 2d R. 604(f).    Double jeopardy will not bar

a retrial unless a prosecutor actually intended for his miscon-

duct to cause defendant to seek a mistrial.      People v. Nelson,

193 Ill. 2d 216, 221, 737 N.E.2d 632, 635 (2000).

           Retrial is forbidden where the necessity for a mistrial

stems from prosecutorial overreaching and not merely prosecuto-

rial error.    People v. Pendleton, 75 Ill. App. 3d 580, 593, 394

N.E.2d 496, 506 (1979).    "Overreaching" is defined as conduct

intended to prejudice the accused or result in a mistrial.

Pendleton, 75 Ill. App. 3d at 593, 394 N.E.2d at 506.     We can

infer the State's intent from objective facts and circumstances.

People v. Tate, 317 Ill. App. 3d 272, 279, 739 N.E.2d 617, 623

(2000).

           Defendant argues his motion to dismiss should have been

granted because Ziegler intended to goad defendant into moving

for a mistrial.    We disagree because the record does not support

the necessary showing of prosecutorial overreaching.     Judge

Leonhard, the only party to the conversation with Ziegler, could

not determine Ziegler's motivation for the ex parte communi-

cation.   Judge Leonhard told the jury, "I'm not necessarily

implying any misconduct or improper motivation on the part of

this Assistant State's Attorney.    I don't know what his motiva-


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tion was."   The State's objection to defendant's request for a

mistrial further belies defendant's claim the State wanted a

mistrial.

            For purposes of comparison, defendant cites Campos and

People v. Gustafson, 194 Ill. App. 3d 910, 551 N.E.2d 826 (1990),

as examples of misconduct found to be merely inadvertent mis-

takes.   While Ziegler's conduct may be more reprehensible than

eliciting improper testimony from a witness or referring to

inadmissible evidence, we do not find the surrounding circum-

stances establish prosecutorial overreaching.   Here, Ziegler may

be deemed to have violated the Illinois Rules of Professional

Conduct when he communicated ex parte with Judge Leonhard.     See

134 Ill. 2d R. 3.5(i).   However, we find unconvincing defendant's

argument a high-ranking prosecutor would risk ethics sanctions

and his reputation for the possibility of a mistrial on a two-

year-old DIU case.    Unlike Campos and Gustafson, the misconduct

in this case did not occur in the presence of the trier of fact,

making it less likely to affect the outcome of the trial.

Further, the State could not be sure defendant would move for a

mistrial as any resulting prejudice on the judge's part could

potentially favor defendant.

            We agree with Judge Difanis's assessment of Ziegler's

conduct.    "What we have here is totally inappropriate contact by

the State with the trial judge, literally in the middle of


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trial."   However, we also agree Ziegler's conduct did not amount

to overreaching.    Thus, we conclude the trial court did not abuse

its discretion in denying defendant's motion to dismiss on

grounds of former jeopardy.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            McCULLOUGH P.J., and TURNER, J., concur.




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