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                              Appellate Court                           Date: 2017.12.05
                                                                        16:31:26 -06'00'




                  People v. Kimble, 2017 IL App (2d) 160087



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           DAVID D. KIMBLE, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-16-0087



Filed             September 25, 2017



Decision Under    Appeal from the Circuit Court of McHenry County, No. 13-CF-1123;
Review            the Hon. Sharon L. Prather, Judge, presiding.



Judgment          Reversed.


Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Josette M. Skelnik, of
Appeal            State Appellate Defender’s Office, of Elgin, for appellant.

                  Patrick D. Kenneally, State’s Attorney, of Woodstock (Patrick
                  Delfino, Lawrence M. Bauer, and Aline B. Dias, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                  Justices McLaren and Jorgensen concurred in the judgment and
                  opinion.
                                                 OPINION

¶1       On January 22, 2014, a McHenry County grand jury indicted defendant, David D. Kimble,
     on four counts of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1) (West 2012))
     against nine-year-old S.M. The indictment charged that, on four separate occasions between
     August and November 2013, defendant touched S.M.’s vagina over her clothing. The jury trial
     consumed three days. After less than three hours’ deliberation, the jury communicated to the
     court through the bailiff that it was at an “impasse.” Without notifying the State and the
     defense, the judge directed the bailiff to instruct the jury to continue deliberating. After a total
     of five hours of deliberation, with significant interruptions, the jury foreman reported in open
     court that the jury was still at an impasse. The court denied the State’s and defendant’s request
     to give the Prim instruction for juries in disagreement,1 remarking that it would be “futile” to
     do so, and sua sponte declared a mistrial. Defendant appeals the order denying his motion to
     dismiss the charges on the ground that reprosecution would be barred by double jeopardy
     pursuant to section 3-4(a)(3) of the Criminal Code of 2012 (720 ILCS 5/3-4(a)(3) (West
     2014)). We reverse.

¶2                                       I. BACKGROUND
¶3        Trial commenced on November 2, 2015. The evidence showed the following. S.M. lived in
     Wonder Lake, Illinois, with her father, Jeff, her three siblings, Jeff’s girlfriend, Jen, and Jen’s
     two children. For a time, they lived next door to defendant. Defendant and Jeff worked and
     socialized together. All of the children frequented defendant’s home, and defendant babysat
     them. Even after Jeff and his family moved some distance away, the children continued to visit
     defendant. Defendant gave S.M. presents, including clothing, money, and a bicycle.
¶4        On December 5, 2013, Jen asked S.M. whether defendant had ever touched her
     inappropriately. S.M. at first was silent but then said yes. On December 10, 2013, Detective
     Misty Marinier interviewed S.M. at the Children’s Advocacy Center (CAC) in Woodstock,
     Illinois. The interview was videotaped. During the interview, S.M. told Marinier that
     defendant touched her “privates” with his hand, and she pointed to the genital area on a chart
     depicting the female anatomy. S.M. told Marinier that her clothes were “usually” on when
     defendant touched her. Marinier testified that, according to S.M., the touching happened
     between two and five times, in defendant’s bedroom. S.M. did not tell Marinier that defendant
     held her down or that he pulled down her pants. According to Marinier, children sometimes
     disclose more after they have been formally interviewed.
¶5        S.M., 11 years old at the time of trial, testified that defendant pushed her onto his bed,
     removed her clothes, and rubbed her “bad spot” approximately 10 times. She did not remember

         1
          See People v. Prim, 53 Ill. 2d 62, 75-76 (1972) (approving the language of a draft instruction to
     be used by trial courts faced with juries in disagreement); Illinois Pattern Jury Instructions, Criminal,
     No. 26.07 (4th ed. 2000) (taken verbatim from the language approved in Prim). The Prim instruction
     informs the jury that the verdict must be unanimous, the jury has a duty to deliberate, the jurors must
     impartially consider the evidence, and the jurors should not hesitate to reexamine their views and
     change their opinions if they believe them to be erroneous, provided that the change is not due solely
     to the other jurors’ opinions or the mere desire to reach a verdict. People v. Chapman, 194 Ill. 2d 186,
     222 (2000).

                                                     -2-
       when it happened, but she recalled that it was still daylight, and it always occurred in
       defendant’s bedroom. S.M. testified that she did not tell Marinier that defendant removed her
       clothes. She testified that she was not comfortable talking to Marinier.
¶6         Anne Huff, the principal at S.M.’s school, testified that she interviewed Jen’s daughter,
       Brooklyn, and then spoke to S.M. because Brooklyn told Huff that defendant had “snuggled”
       with her.
¶7         The parties stipulated that S.M. was interviewed by the State’s Attorney’s victim witness
       coordinator, Kelly Gallagher, on October 30, 2015. Assistant State’s Attorneys Sharyl
       Eisenstein and John Gibbons were also present. S.M. told them that defendant had touched her
       over her clothes approximately 10 times. S.M. denied that defendant ever touched her under
       her clothes. S.M. stated that she was confused when she told the prosecutors the previous week
       that defendant touched her under her clothes. S.M. also stated on October 30, 2015, that
       defendant held her down and that her clothes were both “on” and “off.” S.M. then said in that
       interview that, because she was embarrassed to talk about it, she told them that her clothes
       were on.
¶8         Brooklyn, age nine at the time of trial, testified that she knew “Dave,” but she did not see
       him in the courtroom. Brooklyn testified that “Dave” knelt beside her and rubbed his hand over
       her upper thigh when she was on his bed.
¶9         Detective Michelle Asplund testified that she interviewed defendant on December 11,
       2013. During the three-hour interview, defendant repeatedly denied any wrongdoing. The
       State rested. The court denied defendant’s motion for a directed verdict, and defendant rested
       without presenting evidence.
¶ 10       On November 5, 2015, the jury began deliberating at 10:50 a.m. The jurors asked to watch
       the tape of Marinier’s CAC interview with S.M. again. The time of that request is not noted in
       the record. The video of the interview was replayed for the jury in the courtroom at 1:40 p.m.
       The jurors returned to the jury room at 2:15 p.m.
¶ 11       At 4:25 p.m., the foreman sent a note to the judge: “Dear Judge Prather, after deliberating
       for 5 hours and despite our best efforts, we are at an empasse [sic].” After receiving this
       communication, the judge convened defense counsel and the State. The record does not show
       whether defendant was present. The judge disclosed the note, and she also disclosed that the
       jury had earlier indicated to her, through her bailiff, that it was at an “impasse.” She divulged
       that she had instructed the bailiff to tell the jury to continue deliberating. According to the
       judge, that ex parte communication occurred “shortly after” the jury rewatched Marinier’s
       CAC interview with S.M. Now, the judge suggested that she inquire whether further
       deliberation would help. She noted that she was willing to ask if the jurors would like to go
       home, sleep on it, and return the next morning. When the State wondered whether the judge’s
       questions would elicit multiple responses, the judge stated: “I’ll inquire of the foreperson.”
       Defense counsel agreed to that procedure. The judge then acquiesced to the State’s request to
       follow up on the foreman’s answers with arguments outside the jury’s presence on how next to
       proceed.
¶ 12       The jurors returned to the courtroom, and the judge asked the foreman how long the jury
       had been at an impasse. He replied, “[p]retty much a good part of the day. Four and a half hours
       or five hours.” He indicated that “some numbers changed here and there, but we were stuck at
       a certain proportion” for the last three hours. The judge asked if it would do any good to go
       home and “sleep on it” and continue deliberations the next day. The foreman stated: “I asked

                                                   -3-
       that question, and it was indicated that it would not [do any good].” The judge asked: “It would
       not?” The foreman replied: “No, ma’am.” The jury then returned to the jury room.
¶ 13       The State and defense counsel both asked the judge to give the Prim instruction and to
       bring the jury back for further deliberations the following morning. The judge responded: “I
       am fearful, folks, if I do that, you’re going to have some extremely angry jurors. *** There has
       been [sic] some very loud voices back there for a period of time. I think it would be futile to do
       that. Therefore, I would decline.” The prosecutor said: “Understood, Judge.” Defense counsel
       did not respond. The judge then excused the jurors and declared a mistrial. The State asked for
       another trial date. Defense counsel requested a status date.
¶ 14       On December 4, 2015, defendant filed a motion to dismiss the charges on the ground that
       reprosecution was barred by double-jeopardy principles. Defendant argued that, as he and the
       prosecution had both requested the court to give the Prim instruction and to order further
       deliberation, there was no “manifest necessity” to declare a mistrial. The court found that a
       manifest necessity existed and denied the motion. Defendant filed a timely appeal.

¶ 15                                         II. ANALYSIS
¶ 16       Defendant contends that the court abused its discretion in denying his motion to bar retrial
       where the trial judge’s ex parte communication with the jury caused the conditions that led to
       the mistrial. The State argues that defendant consented or acquiesced to the mistrial or,
       alternatively, that there was a manifest necessity to declare the mistrial because the jury was
       hopelessly deadlocked. We review the denial of a motion to dismiss on double-jeopardy
       grounds for an abuse of discretion. People v. Wilson, 309 Ill. App. 3d 235, 242 (1999).

¶ 17                                   A. Double-Jeopardy Principles
¶ 18        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. 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. The deeply ingrained idea behind the prohibition against double jeopardy is that
       the State, with all its resources and power, should not be permitted to subject a defendant to the
       embarrassment, expense, and ordeal of multiple prosecutions. People v. Cervantes, 2013 IL
       App (2d) 110191, ¶ 24. Indeed, the prohibition against trying a defendant twice for the same
       crime is the sine qua non of American due process standards. State v. Olson, 609 N.W.2d 293,
       303 (Minn. Ct. App. 2000). In a jury trial, jeopardy attaches when the jury is empaneled and
       sworn. People v. Bellmyer, 199 Ill. 2d 529, 538 (2002).
¶ 19        Because a second prosecution subjects a person to the ignominy alluded to above, the
       protection against double jeopardy embraces a defendant’s “valued right” to have his trial
       completed by a particular tribunal. Arizona v. Washington, 434 U.S. 497, 503 (1978). For this
       reason, as a general rule, the prosecution is entitled to only one opportunity to try a defendant.
       Washington, 434 U.S. at 505. However, retrial is not automatically barred after a mistrial is
       declared. Washington, 434 U.S. at 505. A defendant’s valued right to have his trial completed

                                                   -4-
       by a particular tribunal sometimes must be subordinated to the public interest in affording the
       prosecution one “full and fair” opportunity to present its evidence to an impartial jury.
       Washington, 434 U.S. at 505. Reprosecution is also permissible where the mistrial is
       attributable to the defendant by virtue of his motion or consent. People v. Dahlberg, 355 Ill.
       App. 3d 308, 312 (2005). A defendant who requests or consents to 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).
¶ 20        When a mistrial is declared without a defendant’s consent, retrial is permitted 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).2 Discussing the phrase “manifest necessity,” the 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.
       That said, a trial judge may discharge a genuinely deadlocked jury and require a defendant to
       submit to a second trial. Washington, 434 U.S. at 509. The decision to declare a mistrial when
       the jury is deadlocked is accorded great deference by a reviewing court. Washington, 434 U.S.
       at 510. 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).

¶ 21                          B. Whether Defendant Consented to the Mistrial
¶ 22       Before the trial court, defendant joined the State in requesting the Prim instruction and in
       arguing that the jury should be brought back the next day to resume deliberations.
       Nevertheless, the State now maintains that defendant consented or acquiesced to the mistrial.
       Relying on People v. Camden, 115 Ill. 2d 369 (1987), the State contends that defendant had to
       specifically object to the mistrial, although at oral argument the State could not articulate when
       the objection should have been made.
¶ 23       In Camden, our supreme court held that defense counsel consented to a mistrial where he
       had two opportunities to object but stood mute and then later agreed to a date for retrial.
       Camden, 115 Ill. 2d at 377-78. Camden is readily distinguishable from our case. Here, defense
       counsel did not stand mute. Counsel joined in the State’s request for the Prim instruction, and
       he also suggested that the court order the jury to keep deliberating. That conduct is inconsistent
       with a request for, or acquiescence to, a mistrial.
¶ 24       The State also relies on People v. Escobar, 168 Ill. App. 3d 30 (1988). In Escobar, the
       judge called the foreman of a deliberating jury into chambers when he discovered that the
       jurors had access to police street files. Escobar, 168 Ill. App. 3d at 35-36. When the judge
       suggested that he declare a mistrial, defense counsel stated: “We’ll just have to proceed. We
       don’t want to jeopardize our client’s position.” Escobar, 168 Ill. App. 3d at 36. The jury kept
       deliberating until it informed the court that it was unable to reach a verdict. Escobar, 168 Ill.
       App. 3d at 36. Then, the judge rejected defense counsel’s request for the Prim instruction and
       sua sponte declared a mistrial. Escobar, 168 Ill. App. 3d at 36. Days later, the defendant
       objected to the mistrial and moved to dismiss the cause on double-jeopardy grounds. The judge

          The “manifest necessity” doctrine was first articulated in United States v. Perez, 22 U.S. (9
          2

       Wheat.) 579 (1824).

                                                    -5-
       denied the motion, and the defendant appealed. Escobar, 168 Ill. App. 3d at 36. The First
       District Appellate Court affirmed, holding that the defendant was required to
       contemporaneously object to the mistrial, in words that specifically invoked the right against
       double jeopardy. Escobar, 168 Ill. App. 3d at 39. The court noted that the “suggestion of a
       Prim instruction, alone, is insufficient.” Escobar, 168 Ill. App. 3d at 39.
¶ 25        Reviewing the Escobar decision in the context of a federal habeas corpus proceeding, the
       Seventh Circuit disagreed. In Escobar v. O’Leary, 943 F.2d 711 (7th Cir. 1991), the court
       noted that the United States Supreme Court has never required that an objection to a mistrial
       contain an explicit reference to double jeopardy to preserve a defendant’s double-jeopardy
       rights. O’Leary, 943 F.2d at 715-16. “As long as the defendant’s desire that the first jury
       continue deliberating is clear, there is no additional obligation to broach the topic of retrial.”
       O’Leary, 943 F.2d at 716. This is so because judges are capable of recognizing that a mistrial
       has double-jeopardy implications. O’Leary, 943 F.2d at 716. The court concluded that
       Escobar’s “unequivocal expression of his desire to proceed to verdict in the first trial was
       sufficient to dispel any implication that he consented to the mistrial or waived his double
       jeopardy objection.” O’Leary, 943 F.2d at 717.
¶ 26        We agree with the reasoning in O’Leary and reject the Escobar decision. In Bagley, this
       court held that a defendant who “forcefully argued” his position that the trial should proceed
       was not obligated to specifically object when the court sua sponte declared a mistrial. Bagley,
       338 Ill. App. 3d at 982. Other case law supports our conclusion.
¶ 27        In State v. Kendrick, 868 S.W.2d 134 (Mo. Ct. App. 1993), after a State’s witness admitted
       committing perjury, the judge expressed his belief off the record that a directed verdict in the
       defendant’s favor would be appropriate. Kendrick, 868 S.W.2d at 135. The judge indicated on
       the record that he wanted to end the case, but defense counsel suggested allowing the
       prosecution to proceed so that counsel could make a motion for a directed verdict at the end of
       the State’s case. Kendrick, 868 S.W.2d at 135. Instead, the judge sua sponte declared a
       mistrial. Kendrick, 868 S.W.2d at 135. The defendant moved to dismiss the case on
       double-jeopardy grounds, but the motion was denied. Kendrick, 868 S.W.2d at 136. The
       Missouri Court of Appeals held that the defendant did not implicitly consent to the mistrial by
       failing to make a specific objection. Kendrick, 868 S.W.2d at 137. The court held that
       determining consent “does not turn on any mechanical formula.” Kendrick, 868 S.W.2d at 136.
¶ 28        We agree. In our case, defense counsel’s position that he wanted the trial to continue could
       not have been clearer. Defense counsel stated three times that he was requesting the Prim
       instruction. When the State suggested that the court give the Prim instruction before
       discharging the jury, defense counsel stated: “I would agree with the State, [Y]our Honor.” The
       court responded: “Pardon?” Defense counsel repeated: “I would agree with the State.” The
       court inquired: “You agree with the State?” Defense counsel replied: “I do.” Defense counsel
       then suggested that the jury return the next day to deliberate. Surely, three requests for the Prim
       instruction as well as asking that the jury return the next day qualify as “forceful argument”
       under Bagley. In Bagley, in response to the State’s eleventh-hour production of a videotape of
       the defendant’s arrest that it had earlier represented was lost, defense counsel suggested that
       the court exclude the tape and proceed with the trial. Bagley, 338 Ill. App. 3d at 980. Here,
       defense counsel argued his position at least as forcefully as did counsel in Bagley. There was
       no need to make a pro forma objection when the court declared the mistrial. Accordingly, we


                                                    -6-
       hold that defendant did not consent or acquiesce to the mistrial.

¶ 29                   C. Whether There Was a Manifest Necessity for the Mistrial
¶ 30                                       1. Judicial Indiscretion
¶ 31       Much of the case law applying the manifest-necessity doctrine involves the proper
       evaluation of alternatives to a mistrial. 5 Wayne R. LaFave et al., Criminal Procedure § 25.2(d)
       (3d ed. 2007); see Street, 316 Ill. App. 3d at 212 (one of the factors in determining whether
       there was a manifest necessity for a mistrial is whether the trial judge considered the
       alternatives). Here, defendant maintains that the judge’s improper ex parte jury
       communication contributed to her subsequent decision to declare a mistrial rather than provide
       the available alternative of the Prim instruction. Defendant argues that this “judicial
       indiscretion” bars reprosecution.
¶ 32       Defendant relies on People v. Wiley, 71 Ill. App. 3d 641, 644-45 (1979), where the trial
       judge’s sua sponte dismissal of the charges barred a retrial. In Wiley, after the arresting officer
       testified for the prosecution, the State requested an overnight continuance to bring in its two
       remaining witnesses. Wiley, 71 Ill. App. 3d at 642. The judge denied the request, and then, “on
       his own unprompted motion,” dismissed the case. Wiley, 71 Ill. App. 3d at 642. The State
       appealed, arguing that the dismissal was not an acquittal that would trigger double-jeopardy
       concerns. Wiley, 71 Ill. App. 3d at 642-43. The appellate court held that, even if the dismissal
       was not an outright acquittal, retrial was prohibited because the decision to abort the trial was
       the result of what the court cryptically termed “judicial indiscretion.” Wiley, 71 Ill. App. 3d at
       644.
¶ 33       The court in Wiley relied on United States v. Jorn, 400 U.S. 470 (1971). In Jorn, the trial
       judge sua sponte declared a mistrial so that government witnesses, who assisted in preparing
       fraudulent tax returns, could consult with attorneys. Jorn, 400 U.S. at 473. Even though the
       government and the witnesses themselves assured the Court that federal agents had warned
       them of their constitutional rights, the Court refused to believe them. Jorn, 400 U.S. at 486-87.
       Then, the Court opined that, even if the witnesses had been warned of their rights, the warnings
       were insufficient. Jorn, 400 U.S. at 487. The Supreme Court held that reprosecution was
       barred because the trial judge considered nothing less drastic, such as a continuance, before
       declaring a mistrial. Jorn, 400 U.S. at 487.
¶ 34       A legal commentator has construed Jorn to mean that a trial judge abuses his or her
       discretion by ordering a mistrial without a “scrupulous” search for alternative means to deal
       with the difficulties. Stephen J. Schulhofer, Jeopardy and Mistrials, 125 U. Pa. L. Rev. 449,
       465 (1977). Professor Schulhofer also observed that Jorn upheld the defendant’s
       double-jeopardy claim “in the absence of actual or potential harassment and in the absence of
       identifiable prejudice to the defendant.” Schulhofer, supra, at 466.3
¶ 35       When we read Wiley in light of Jorn, we interpret Wiley to mean that a mistrial is improper
       where the trial judge is responsible for the difficulty and alternatives are available. We agree
       with defendant that Wiley is apt.



          3
            According to Professor Schulhofer, the decision in Illinois v. Somerville, 410 U.S. 458 (1973),
       distinguished Jorn but can be reconciled with it. Schulhofer, supra, at 466-69.

                                                    -7-
¶ 36        In our case, the judge’s ex parte jury communication led to the precipitous declaration of a
       mistrial without considering available alternatives. A criminal defendant has a constitutional
       right to a public trial, and to appear and participate in person and by counsel at all proceedings
       involving his or her substantial rights. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8;
       People v. Childs, 159 Ill. 2d 217, 227 (1994). Jury deliberations are a critical stage of trial,
       involving substantial rights that trigger a defendant’s right to be present and participate in
       person and by counsel. People v. Ross, 303 Ill. App. 3d 966, 975 (1999). Communications
       between the judge and the jury after the jury has retired to deliberate, except when held in open
       court and in the defendant’s presence, deprive the defendant of his or her fundamental rights.
       People v. Cotton, 393 Ill. App. 3d 237, 262 (2009). Thus, defendant suffered a deprivation of
       his fundamental rights when the judge engaged in the ex parte communication with the jury.
¶ 37        This tipped the scales in the judge’s decision to sua sponte abort the trial rather than give
       the Prim instruction. The judge disclosed the ex parte communication to emphasize that the
       4:25 p.m. note from the jury was “the second time” the court “received information from the
       jury that they [sic] are at an impasse.” Hence, the judge concluded that it would be “futile” to
       give the Prim instruction and allow further deliberations. Without the earlier ex parte
       communication, the court could not reasonably have believed that giving the Prim instruction
       would be futile. The foreman’s note said that the jury had been deliberating for five hours.
       However, we note that, in that time, it had also picked the foreman, eaten lunch, and rewatched
       the video of the CAC interview with S.M.
¶ 38        Furthermore, we determine that the judge’s ex parte communication prejudiced defendant.
       We look at whether the content of the communication created prejudice. Ross, 303 Ill. App. 3d
       at 975. The judge told the bailiff to instruct the jury to “continue to deliberate.” Presumably,
       that is what the bailiff conveyed to the jury, though the bailiff’s precise words are not part of
       the record. That direction was given when the jury first indicated that it was at an impasse,
       “shortly after” it rewatched the video. The purpose of the Prim instruction is to guide a jury
       that is unable to reach a verdict. People v. Chapman, 194 Ill. 2d 186, 222 (2000). Having the
       bailiff tell the jury to “continue to deliberate” left the jury with no guidance. Indeed, jurors
       voting in the minority conceivably could feel coerced if, when seeking guidance from the
       court, “they are met with stony silence and sent back to the jury room for further deliberation.”
       Prim, 53 Ill. 2d at 74.
¶ 39        As a result, our supreme court approved a jury instruction to avoid that state of affairs.
       Prim, 53 Ill. 2d at 76. In Prim, the instruction was given after approximately four hours of
       deliberation. Prim, 53 Ill. 2d at 71. In People v. Andrews, 364 Ill. App. 3d 253, 267 (2006), a
       mistrial was not declared until after the jury had been deliberating under the Prim instruction
       for 90 minutes. In People v. Dungy, 122 Ill. App. 3d 314, 324 (1984), the Prim instruction was
       given after 12 hours of deliberation. In Dungy, the appellate court noted that “[i]t is within the
       trial court’s discretion to permit further deliberation and to monitor the length of such
       deliberation even after a jury has indicated that it is hopelessly deadlocked.” (Internal
       quotation marks omitted.) Dungy, 122 Ill. App. 3d at 324.
¶ 40        The purpose of a defendant’s right to be present with counsel at any jury communication is
       so that counsel can “aid and advise the defendant as to what course of action he should take,
       including whether to object, concur, or attempt to influence how the court addresses the jury.”
       Ross, 303 Ill. App. 3d at 976. Here, the court’s ex parte communication foreclosed defendant’s
       option to request the Prim instruction earlier in the afternoon when the jury first considered

                                                   -8-
       itself at an impasse. Then, because the jury declared itself still at an impasse approximately two
       hours later, the court declined to give the Prim instruction, which provides as follows:
                     “The verdict must represent the considered judgment of each juror. In order to
                return a verdict, it is necessary that each juror agree thereto. Your verdict must be
                unanimous.
                     It is your duty, as jurors, to consult with one another and to deliberate with a view to
                reaching an agreement, if you can do so without violence to individual judgment. Each
                of you must decide the case for yourself, but do so only after an impartial consideration
                of the evidence with your fellow jurors. In the course of your deliberations, do not
                hesitate to reexamine your own views and change your opinion if convinced it is
                erroneous. But do not surrender your honest conviction as to the weight or effect of
                evidence solely because of the opinion of your fellow jurors, or for the mere purpose of
                returning a verdict.
                     You are not partisans. You are judges—judges of the facts. Your sole interest is to
                ascertain the truth from the evidence in the case.” Prim, 53 Ill. 2d at 75-76.
       Our supreme court explicitly directed that trial courts give this instruction when faced with
       juries in disagreement. Prim, 53 Ill. 2d at 76. In People v. Cowan, 105 Ill. 2d 324, 328 (1985),
       the court held that whether and when to give the instruction is discretionary, based upon such
       factors as the length of the deliberations and the complexity of the issues. It is proper to give
       the Prim instruction if the court perceives that the jury is having difficulty reaching a verdict.
       People v. Preston, 76 Ill. 2d 274, 284 (1979). The court is not required to delay giving the
       instruction until the foreman flatly states that the jury cannot reach a verdict. Preston, 76 Ill. 2d
       at 284. The court may have the jury continue to deliberate even though it has reported that it is
       deadlocked and will be unable to reach a verdict. Cowan, 105 Ill. 2d at 328. When faced with a
       deadlocked jury, a trial judge should not leave the jury “to grope in such circumstances without
       some guidance from the court.” Prim, 53 Ill. 2d at 74.
¶ 41       The State argues that the court’s ex parte admonition to “continue to deliberate” was the
       equivalent of the Prim instruction. We disagree. The purpose of the Prim instruction is to
       ensure that deadlocked jurors will closely examine their competing views and attempt to reach
       a unanimous verdict. People v. Bibbs, 101 Ill. App. 3d 892, 900 (1981). The instruction to
       “continue to deliberate” did not contain the five points inherent in the Prim instruction: (1) to
       return a verdict, each juror must agree thereto, (2) jurors have a duty to consult with one
       another and to deliberate with a view to reaching agreement, (3) each juror must decide the
       case for himself or herself but only after an impartial consideration of the evidence with fellow
       jurors, (4) jurors should not hesitate to reexamine their own views and change their opinions if
       convinced they are erroneous, and (5) no juror should surrender his or her honest conviction.
       Prim, 53 Ill. 2d at 74-75. Whereas the Prim instruction encourages jurors to reexamine their
       opinions and to abjure them if the evidence warrants it, the direction to “continue to deliberate”
       conveys a different message: “Keep doing the same thing you’re already doing.” The judge’s
       ex parte communication thus might have contributed to the jury’s lack of progress and later did
       unduly influence her denial of the joint request for the Prim instruction. Consequently, we hold
       that the court’s judicial indiscretion, rather than a manifest necessity, prompted the mistrial.
       Under these circumstances, reprosecution is barred.



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¶ 42                                           2. Jury Deadlock
¶ 43        Even though we have determined that retrial is barred due to judicial indiscretion, we
       nevertheless will consider defendant’s argument that there was no manifest necessity to
       declare the mistrial due to jury deadlock. In Andrews, this court identified six factors to
       consider where the issue presented is the manifest necessity for declaring a mistrial based on
       jury deadlock: (1) the jury’s collective opinion that it cannot agree, (2) the length of the
       deliberations, (3) the length of the trial, (4) the complexity of the issues, (5) any proper
       communications that the judge has had with the jury, and (6) the effects of possible exhaustion
       and the impact that coercion of further deliberations might have on the verdict. Andrews, 364
       Ill. App. 3d at 266-67. Reviewing courts must examine the facts of each case to determine the
       propriety of a double-jeopardy claim. Street, 316 Ill. App. 3d at 211.
¶ 44        Turning to the factors set forth in Andrews, we examine whether the mistrial in the present
       case was a manifest necessity.

¶ 45                      a. The Jury’s Collective Opinion That It Is Deadlocked
¶ 46       After receiving the jury’s 4:25 p.m. note, the court brought the entire jury into the
       courtroom but spoke only to the foreman.4 The foreman related that the jury had been at an
       impasse “pretty much a good part of the day. Four or five hours.” He also indicated that “some
       numbers changed here and there, but we were stuck at a certain proportion for the last three
       hours.” (Emphasis added.) The foreman opined that it would not do any good to continue
       deliberations the next day. The salient point is that the actual deadlock was only three hours
       old.
¶ 47       As the court explained in Mills v. Tinsley, 314 F.2d 311, 313 (10th Cir. 1963), “[t]he jury
       cannot determine the length of its deliberations.” The court also noted that “[i]t is not unusual
       for a jury to advise the court that it is deadlocked and to thereafter agree and return a verdict.”
       Mills, 314 F.2d at 313. In Mills, the jury reported that it was deadlocked, but it nevertheless
       returned a verdict after being given a deadlocked-jury instruction. Mills, 314 F.2d at 312-13.
       Thus, the jury’s own view of whether it can reach a verdict is only one factor in the court’s
       determination. People v. Thompson, 93 Ill. App. 3d 995, 1008 (1981). “There is no
       requirement that a mistrial be declared because of the jurors’ inability to come to a unanimous
       verdict immediately.” People v. Logston, 196 Ill. App. 3d 30, 33 (1990). Pertinently, a trial
       court is not required to accept a jury’s assessment of its own inability to reach a verdict.
       Logston, 196 Ill. App. 3d at 33.
¶ 48       Here, the judge expressed her belief that “you’re going to have some extremely angry
       jurors” if deliberations were allowed to continue. Experience shows that tempers flare in the
       emotional atmosphere of a criminal trial. In other words, angry voices do not necessarily signal
       a hopelessly deadlocked jury.




           4
             In Andrews, this court held that a mistrial due to jury deadlock may be declared even where the
       trial judge relies on the foreperson’s statement without polling the other jurors. Andrews, 364 Ill. App.
       3d at 268. However, we expressed that polling each juror with respect to his or her opinion on the
       issue of deadlock is the preferred procedure. Andrews, 364 Ill. App. 3d at 268.

                                                      - 10 -
¶ 49                          b. The Length of Deliberations, Length of Trial,
                                         and Complexity of Issues
¶ 50       Generally, the longer the trial and the more complex the issues, the longer the jury should
       be given to deliberate. Andrews, 364 Ill. App. 3d at 269. Here, the trial involved four counts of
       aggravated criminal sexual abuse, and it lasted three days. The five hours that the jury
       deliberated included time-outs to pick the foreman and to eat lunch, as it retired to deliberate
       near the lunch hour. Then, the jury spent over a half hour rewatching the video of the CAC
       interview.
¶ 51       The issue that the jury had to resolve was S.M.’s credibility. That issue was anything but
       straightforward. Jen was the first person to ask S.M. if defendant had touched her
       inappropriately. S.M. at first did not answer, but then she indicated that defendant had touched
       her. The indictment charged that the touching occurred over S.M.’s clothing because that was
       what she told investigators. She also told investigators that it happened two to five times. Then,
       S.M. testified that it happened 10 times and that defendant removed her clothes. The parties
       stipulated that S.M. had variously told members of the State’s Attorney’s office that she was
       dressed or undressed. Consequently, we cannot agree with the State that determining S.M.’s
       credibility was a simple job.

¶ 52                       c. Communications Between the Judge and the Jury
¶ 53       The judge and the jury communicated three times. The first communication was on the
       jury’s request to rewatch the video of the CAC interview. As discussed above, the second,
       ex parte communication caused the court to end the trial prematurely when it received the third
       communication (the note) because the court had foreclosed all other options. It is significant
       that neither side moved for a mistrial.

¶ 54                                 d. Effect of Exhaustion on the Jury
¶ 55        Because the jury did not deliberate for even a full workday, this factor weighs against a
       manifest necessity to declare a mistrial.
¶ 56        We are mindful that, while trial judges have “considerable leeway” in determining whether
       the jury is hopelessly deadlocked, the reviewing court has an obligation to satisfy itself that the
       trial judge exercised sound discretion. Renico v. Lett, 559 U.S. 766, 785 (2010) (Stevens, J.,
       dissenting, joined by Sotomayor and Breyer, JJ.). If the record establishes that the trial judge
       failed to exercise sound discretion, the reason for deference disappears. Renico, 559 U.S. at
       785-86. Accordingly, we hold that there was no manifest necessity for the court’s sua sponte
       declaration of the mistrial. It follows that the court abused its discretion in denying defendant’s
       motion to bar reprosecution. Pursuant to this court’s authority under Illinois Supreme Court
       Rule 366(a)(5) (eff. Feb. 1, 1994), we grant defendant’s motion to bar reprosecution.

¶ 57                                      III. CONCLUSION
¶ 58      For the foregoing reasons, the judgment of the circuit court of McHenry County is reversed
       and defendant’s motion to bar reprosecution is hereby granted.

¶ 59      Reversed.


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