People v. Boaz ( 1991 )

JUSTICE CHAPMAN,

concurring in part and dissenting in part:

I agree with the majority’s disposition as to the in limine issue; however, I believe the defendant was exposed to double jeopardy in violation of the constitution. Contrary to the position taken by the majority, the jury was impaneled and sworn. It has long been established that jeopardy attaches when the jury is impaneled and sworn. Crist v. Bretz (1978), 437 U.S. 28, 35, 57 L. Ed. 2d 24, 31, 98 S. Ct. 2156, 2161; Downum v. United States (1963), 372 U.S. 734, 10 L. Ed. 2d 100, 83 S. Ct. 1033.

Section 115 — 4(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 4) provides that the jury shall consist of 12 members. The record is clear that during jury-selection proceedings 12 jurors and one alternate were selected by name. When the person selected to be juror number 12 did not return from lunch, the juror’s oath was simultaneously administered to the 11 “regular” jurors and the alternate. The record does not show that any distinction between the 11 and the alternate was made in administering the oath. Assuming prospective juror number 12 had not returned from lunch, or was otherwise not sworn in as a juror, the trial judge could have proceeded with the trial using the 12 jurors who had already taken the juror’s oath. (See People v. Harvey (1987), 162 Ill., App. 3d 468, 515 N.E.2d 337.) Jeopardy attaches when the jury is impaneled and sworn. Jeopardy had attached.