No. 2-19-0476 Opinion filed March 30, 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

phone with a hammer.

¶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-in-

chief, 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 get not 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 crime-

scene 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,

(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,

(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,

, ¶ 13. In a jury trial,

jeopardy attaches when the jury is empaneled and sworn. People v. Bellmyer,

(2002).

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

completed by a particular tribunal. Arizona v. Washington,

(1978). Thus, the

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

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

People v. Dahlberg,

(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,

(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,

;

People v. Street,

(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,

. The prosecution

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

. 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,

(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,

(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 self-

defense. 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 cross-

examination 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,

, ¶ 17. A stipulation, being conclusive as to all matters

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

(2005). A stipulation to a witness’s testimony obviates the need for the defense to

subpoena the witness. Pablo,

. 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,

(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,

. Anticipating a

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

made the motion. Lovinger,

. 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,

. When declaring the mistrial, the court articulated additional reasons for its action.

Lovinger,

. 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,

. 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,

(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,

. 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,

(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,

. The defendant moved for a mistrial. Roche,

. The court did not rule on the motion. Roche,

. Instead,

the court went on to other business. Roche,

. However, the next morning, as

soon as the jury was brought in, the court declared a mistrial. Roche,

.

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,

. 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,

.

¶ 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,

(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,

(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,

(Neb. 2018); Ex Parte Montano,

(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,

. 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,

. In Bagley,

, 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,

. The

State moved for a mistrial. Dahlberg,

. 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,

. Immediately,

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the court declared a mistrial. Dahlberg,

. This court held that, under those

circumstances, the defendant did not impliedly consent to the mistrial. Dahlberg,

.

¶ 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,

.

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,

. 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,

.

¶ 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,

(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,

(2003). For a

“ ‘manifest necessity’ ” to exist (People v. Shoevlin,

(quoting

Street,

)), the circumstances must be “ ‘ “ ‘very extraordinary and

striking’ ” ’ ” (Shoevlin,

, ¶ 26 (quoting Largent,

,

quoting Downum v. United States,

(1963), quoting United States v. Coolidge,

(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,

. 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,

.

¶ 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

alternatives. Street,

. “A trial judge must first consider all reasonable

using any prior consistent statements to bolster her testimony. That motion in limine indicates 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 before granting a mistrial in a criminal case.” People v. Kuhfuss,

(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,

.

¶ 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,

, 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,

(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,

(1991). Here, defense counsel’s cross-examination brought out weaknesses in

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

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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

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

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

mistrial. Brady v. Samaha,

(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,

. Consequently, we determine that

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

United States v. Jorn,

(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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No. 2-19-0476

Cite as: People v. Kosobucki,

Decision Under Review: Appeal from the Circuit Court of Kane County, No. 18-CM-1955; the Hon. Alice C. Tracy, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Anthony J. Santella, of for State Appellate Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick for Delfino, Edward R. Psenicka, and Victoria E. Jozef, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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