The jury began deliberating at 10:50 a.m. About 2½ hours later, at their request, the jury returned to the courtroom to rewatch the videotaped interview of S.M. The jury then continued its deliberations at 2:15 p.m.

About two hours later, at 4:25 p.m., the trial judge indicated on the record that she had received a note from the jury as follows:

“After deliberating for five hours, and despite our best efforts, we are at an impasse.”

The note was signed by the foreperson. Counsel was present for both parties.

Not The First Time

The trial judge indicated that this was the second time that she had received information from the jury that they were at an impasse. She explained that the jury had also informed the bailiff that they were at an impasse shortly after viewing the video.

The trial judge informed the parties that she had instructed the bailiff to tell the jurors to continue to deliberate.

Jury Brought Out

“THE COURT: [Foreperson], I received your note that you are at an impasse. Can you tell me how long that you have been at that impasse?

THE FOREPERSON: Pretty much a good part of the day. Four and a half hours or five hours.

THE COURT: And nothing has changed during that period of time?

THE FOREPERSON: Some numbers changed here and there, but we were stuck at a certain proportion.

THE COURT: And how long has that existed?

THE FOREPERSON: About I would say three hours.

THE COURT: And you haven’t moved during that period of time?

THE FOREPERSON: No, ma’am.

THE COURT: Do you—let me ask, do you think if I sent you home for the night, let you sleep on it, would it do any good? Could you continue your deliberation tomorrow? Would that help at all?

THE FOREPERSON: I asked that question, and it was indicated that it would not.

THE COURT: It would not?

THE FOREPERSON: No, ma’am.”

Should They Prim Them?

The following discussion was then had outside the presence of the jury:

“ASSISTANT STATE’S ATTORNEY: Judge, I do understand the foreperson’s comments. I understand it seems as though they are completely deadlocked at this point and it might be futile for future further deliberation. However, I believe that procedurally, from the State’s point of view, we should at least attempt the Prim instruction before we discharge the jury.

DEFENSE ATTORNEY: I would agree with the State, your Honor.

THE COURT: Pardon?

MR. HAIDUK: I would agree with the State.

…

THE COURT: I am fearful, folks, if I do that, you’re going to have some extremely angry jurors.

ASSISTANT STATE’S ATTORNEY: I understand, Judge.

THE COURT: There has been some very loud voices back there for a period of time. I think it would be futile to do that. Therefore, I would decline.

ASSISTANT STATE’S ATTORNEY: Understood, Judge.”

Hung Jury & Mistrial Declared

At that point, the jurors were called back into the courtroom.

The court then indicated that it would excuse the jurors and thanked them for their service. After discharging the jurors, the court declared a mistrial.

Lower Court Barred A Retrial

The appellate court barred a retrial based on double jeopardy.

The court found that

(1) defendant did not consent to or acquiesce in the trial court’s declaration of a mistrial, (2) the trial court’s decision to declare a mistrial resulted from an act of judicial indiscretion, and (3) there was no manifest necessity for the mistrial.

See Episode 398 – People v. Kimble, 2017 IL App (2d) 160087, ¶¶ 28, 41, 56 (September).

Double Jeopardy Law

The double jeopardy clause of the fifth amendment, which applies to the states through the fourteenth amendment, provides that an accused may not be tried more than once for the same offense. U.S. Const., amend. V; Currier v. Virginia, 585 U.S. ___, ___, 138 S. Ct. 2144, 2149 (2018). We interpret our state’s double jeopardy provision identically to the federal provision. See Ill. Const. 1970, art. I, § 10; People v. Levin, 157 Ill. 2d 138, 159 (1993).

The clause unequivocally provides three separate protections,

barring retrial for the same offense after an acquittal,
retrial after a conviction, and
multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Levin, 157 Ill. 2d at 144.

Moreover, because jeopardy attaches when the jury has been impaneled and sworn, the constitutional provision also protects a defendant’s valued right to have his trial completed by a particular tribunal and to be spared from the burden of repeated proceedings, even where the trial does not finally resolve the merits of the charges.

See Arizona v. Washington, 434 U.S. 497, 503-04 (1978) (quoting United States v. Jorn, 400 U.S. 470, 484 (1971)).

Manifest Necessity

When a mistrial has been declared, a retrial may proceed without offending double jeopardy principles if

(1) the defendant consents to the mistrial or (2) there is a manifest necessity for the mistrial.

Washington, 434 U.S. at 505; People ex rel. Roberts v. Orenic, 88 Ill. 2d 502, 508 (1981). Under these circumstances, the second trial is properly understood as the continuation of the original jeopardy arising from the first trial. Richardson v. United States, 468 U.S. 317, 325 (1984).

The Supreme Court has emphasized that a manifest necessity ruling must be grounded in its own facts. The Court has expressly declined to require the mechanical application of any rigid formula when trial judges decide whether jury deadlock warrants a mistrial.

In reviewing whether the trial court acted within its discretion in declaring a mistrial on the basis of a jury deadlock, lower courts have considered several nonexhaustive factors as useful guideposts. These factors include

(1) statements from the jury that it cannot agree, (2) the length of the deliberations, (3) the length of the trial, (4) the complexity of the issues, (5) the jury’s communications to the judge, and (6) the potentially prejudicial impact of continued forced deliberations.

The jury’s own statement that it is unable to reach a verdict has been repeatedly considered the most important factor in determining whether a trial court abused its discretion in declaring a mistrial.

Issue

The basis for defendant’s motion to bar retrial and the trial court’s denial of that motion both centered on whether the trial court exercised sound discretion in declaring a mistrial based on a manifest necessity.

A Hung Jury Meets Manifest Necessity

The Supreme Court, however, long ago explained that principles of double jeopardy do not bar reprosecution after discharge of a jury on the grounds that the jury cannot reach a verdict.

The Court explained that the trial judge may declare a mistrial “whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S. 579, 580 (1824); see also People v. DeFrates, 395 Ill. 439, 446 (1946).

The rule has been continuously reaffirmed because “a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.” Jorn, 400 U.S. at 480.

Thus, a defendant’s right to a complete trial with a chosen jury “must in some circumstances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Id.

Manifest Necessity Due to Deadlocked Jury

The manifest necessity standard does not require that a mistrial be “necessary” in the strict sense of the word, but it does require a “high degree” of necessity.

Settled law provides that a jury’s inability to reach a unanimous verdict is one circumstance that constitutes a manifest necessity permitting a retrial. Indeed, a deadlocked jury is the classic example of a situation when the manifest necessity standard is satisfied.

Renico v. Lett, 559 U.S. 766, 774 (2010); see also Richardson, 468 U.S. at 324 (“We have constantly adhered to the rule that a retrial following a hung jury does not violate the Double Jeopardy Clause.”); Oregon v. Kennedy, 456 U.S. 667, 672 (1982) (a hung jury is the “prototypical example” that meets the “manifest necessity” standard)

A trial judge’s decision to declare a mistrial when he considers the jury deadlocked should be accorded great deference by a reviewing court. While a trial judge may not act “irrationally or irresponsibly” in declaring a mistrial, the declaration will be upheld so long as it is the result of the trial judge’s exercise of “sound discretion.”

Based on this highly deferential standard, the Supreme Court in Lett noted that it had never overruled a trial court’s declaration of a mistrial based on a jury’s inability to reach a verdict on the ground that the manifest necessity standard had not been met. Id. at 775.

This Case: 2 Cases of Impasse

Here, the record revealed two statements from the jury indicating its inability to agree on the verdict. The trial judge initially urged the jurors to continue to deliberate and subsequently took care to clarify where the jury stood with respect to the deliberative process. The trial judge specifically asked the foreperson whether additional time would be helpful. The jury emphatically indicated that it had been at an impasse for several hours, and the collective belief of the jurors, after the foreperson specifically inquired of them, was that it would be futile to continue to deliberate.

The statements from the jury and the unequivocal communication with the foreperson supported the trial judge’s determination that further deliberations would have been futile.

But Was The Mistrial Too Fast?

The record reflects that this was not a long and highly complicated case. Rather, it was a relatively short trial, which primarily involved two days of witness testimony and videotaped statements and one defendant. The charges arose out of essentially the same operative conduct. At its core, the case was a credibility contest between S.M. and defendant.

Although defendant disputes the amount of time the jury deliberated, the record reflects that the jury deliberated for at least several hours and rewatched the video of S.M. The trial judge gave the parties an opportunity to provide input and to comment on the foreperson’s remarks, and she considered their input prior to declaring a mistrial.

Judge Had Some Discretion

Additionally, the trial judge explained on the record her fear of coercing the jury into a decision by requiring further deliberations. She expressed concern about the potential for “extremely angry jurors” after hearing “very loud voices in the jury room for a period of time.”

We will not substitute our judgment in characterizing the state of mind of the jurors.

Under these circumstances, applying the relevant considerations, the record amply supports that it was not irrational, irresponsible, or otherwise unreasonable for the trial judge to conclude that the jury was unable to reach a verdict and that further deliberations would have been pointless and coercive.

Yeah, But Was There Judicial Indiscretion?

We reject defendant’s assertion, raised for the first time on appeal, that the trial judge’s declaration of the mistrial was a result of judicial indiscretion, rather than manifest necessity.

Defendant maintains that the trial judge triggered the need to declare a mistrial by engaging in the ex parte communication, directing the jury to continue deliberating. He argues that the trial judge used the ex parte communication as the basis for her later decision to declare a mistrial, instead of giving the Prim instruction or allowing further deliberation.

Neither the record nor the controlling law supports a finding that the trial judge’s initial communication prompted a mistrial. Initially, we reiterate that any communication from a judge to a jury, after the jury has begun deliberations, should be made in open court and in the presence of the parties. People v. Childs, 159 Ill. 2d 217, 227 (1994).

Nevertheless, we have explained that a nonprejudicial ex parte communication does not impact the fairness of a defendant’s trial. People v. Johnson, 238 Ill. 2d 478, 489 (2010).

Judge Did The Right Thing

Here, the substance of the court’s communication to the jury in this case to “continue deliberating” was proper, constituting a clear and noncoercive response well within the court’s discretion. Furthermore, we note that defendant never objected to the ex parte communication itself nor raised it as a basis for granting his motion to bar reprosecution.

Prim Instruction Is Not Required

Essentially, defendant argues that the trial court was responsible for the continued impasse by failing to give the jury the Prim instruction to provide them with further guidance. Contrary to defendant’s assertion, the trial judge was not obligated to give the Prim instruction at any time prior to declaring a mistrial.

Nothing in our case law or the constitution indicates that the Prim instruction is mandatory, even on request of the parties, much less a prerequisite for finding a manifest necessity exists to declare a mistrial. Nor was the trial judge obligated to force the jury to deliberate for a minimum period. See Blueford v. Arkansas, 566 U.S. 599, 609 (2012); People v. Cowan, 105 Ill. 2d 324, 328 (1985) (no obligation to give the Prim instruction).

It is within the trial court’s discretion whether to give that charge at any time during the proceedings, and the trial judge was in the best position to decide whether such an instruction would be helpful or, instead, coercive, leading the jury toward a verdict it otherwise would not have reached.

We will not second-guess the trial court or substitute our judgment for the trial judge’s judgment or reweigh the evidence. A discretionary decision implies a range of acceptable outcomes.

Holding

We discern no basis to conclude that the trial judge abused her considerable discretion in deciding that a mistrial was justified by manifest necessity. Therefore, the double jeopardy clause did not bar reprosecution. Defendant may be retried, and the judgment of the appellate court is reversed.

Cause remanded for a new trial.