People v. Purdle , 2021 IL App (3d) 190126-U ( 2021 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 190126-UOrder filed October 21, 2021
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2021
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0126
v. ) Circuit No. 18-CF-462
)
KENCEY RICO PURDLE, ) Honorable
) Katherine S. Gorman,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
PRESIDING JUSTICE McDADE delivered the judgment of the court.
Justices Holdridge and Lytton concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not abuse its discretion in determining there was manifest
necessity for declaring a mistrial. Defendant’s conviction for criminal sexual
assault violates the one-act, one-crime doctrine.
¶2 Defendant, Kencey Rico Purdle, appeals his convictions for home invasion and criminal
sexual assault. Initially, defendant raised two arguments on appeal: (1) the Peoria County circuit
court abused its discretion in declaring a mistrial during his first trial, and (2) the court used an
improper extended-term sentencing range in imposing his sentence for criminal sexual assault.
Subsequently, we ordered the parties to provide supplemental briefing on whether defendant’s
conviction for criminal sexual assault violates the one-act, one-crime doctrine. Upon review of
the original and supplemental briefs, we affirm in part and vacate in part.
¶3 I. BACKGROUND
¶4 Defendant was charged with home invasion (720 ILCS 5/19-6(a)(6) (West 2018)),
criminal sexual assault (id. § 11-1.20(a)(1)), and residential burglary (id. § 19-3(a)). The charges
stemmed from a single incident in which defendant allegedly entered the residence of the victim
and sexually assaulted her.
¶5 A jury trial was held. After the jury was selected, defendant moved for a mistrial based
on the racial composition of the jury pool. The court denied the motion.
¶6 The State called the victim as its first witness. The victim testified that, on the night of
the incident, she was sleeping in her residence. Her nine-year-old son and six-year-old daughter
were also in the residence. The victim woke at 4 a.m. and saw a man standing in her bedroom.
He was exposing himself. She had seen the man before. He had exposed himself to her outside
her residence on a prior occasion. She identified defendant in court as the man who had been in
her bedroom. Defendant told her that if she did anything “stupid,” he would “do it to [her]
daughter.” He then placed his penis in her mouth and vagina.
¶7 The victim testified that she identified defendant in a photographic lineup shortly after
the incident. At the time, she said that she was 90% sure that he was the man who had assaulted
her, but she would need to see him again. On cross-examination, defense counsel asked the
victim when she saw defendant again before the trial. The victim replied:
“My case manager at the apartment looked up his other felonies since his name
was on there, and it showed a picture of him on the computer, a large screen. ***
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She didn’t look up what he did this time. She looked up what he did prior times,
and she showed me a picture of him.”
The victim saw this photograph approximately eight weeks after she was assaulted. Defense
counsel asked the victim if she knew which photograph she was looking at. She replied, “His
other felonies.” The victim did not know when the photograph was taken. Defense counsel asked
the victim where she obtained this photograph. The victim replied, “I don’t know, because I’m
not the one that pulled it up. It was something to do with his past felonies.” Defense counsel
again asked the victim where she obtained the photograph. The victim replied, “It was his name
from a felony background and had his picture up.” She then said that the photograph came from
police records.
¶8 After defense counsel finished his questioning, the court excused the jurors from the
courtroom and asked the parties if they had any motions they wanted to make. The State said that
the victim had never mentioned knowing about defendant’s past felonies before her trial
testimony.
¶9 The court stated that it believed the victim had mentioned defendant’s prior felonies
approximately five times and that two of the times were invited by defense counsel’s questions.
The court said that it did not know if these were felony convictions or felony arrests for which
defendant was later acquitted. The court stated: “Now, the fear here is always that if the jury will
disregard the evidence and say the defendant’s got a bunch of prior felony convictions, he’s a
bad person, so we’ll convict him because of that, and I don’t know how valid that fear is.” The
court noted that declaring a mistrial was one option, but it had not yet decided whether it would
do so.
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¶ 10 The court said that it “let it go” the first time the victim mentioned defendant’s prior
felonies, but she mentioned it several more times. The court stated that on at least two of these
occasions, defense counsel should have known that his questions were going to cause the victim
to talk about defendant’s past felonies. The court said that the defense “must not think it’s so bad
since they went and asked her to say it two more times.” The court stated that it did not know if
defense counsel’s questions could amount to a waiver of the error. The court asked if either party
wanted a mistrial or if defense counsel wanted to speak to defendant alone. Defense counsel said
that he wanted time to speak with defendant, and a recess was held.
¶ 11 When the parties returned to the courtroom, the court recounted what had happened
during the victim’s testimony. The court said that it made a “[j]udgment call” not to stop the
proceedings after the first time the victim mentioned defendant’s prior felonies. The court
believed that the jury might not notice. The court also believed that if it had stopped the
proceedings and excused the jury, it would have highlighted the victim’s testimony concerning
defendant’s prior felonies in the minds of the jurors. The court said that it did not know that the
victim would proceed to mention defendant’s felonies several more times. The court explained
that it stopped the proceedings after defense counsel had completed his cross-examination
because it seemed like a natural time to stop that would not raise the suspicions of the jurors.
¶ 12 The court asked defense counsel if he was requesting a mistrial. Defense counsel said he
had discussed the matter with defendant and that they would not be requesting a mistrial. The
State said it would not be requesting a mistrial either. The court asked to see the attorneys in
chambers.
¶ 13 When the parties returned to the courtroom, the court said that it was declaring a mistrial.
The court stated that it had discussed with the attorneys the possibility that defense counsel had
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waived defendant’s right not to have the jury know about his felony convictions by repeatedly
asking the victim about the source of the photograph. The court said that it did not think there
was “such a thing as waiver by defense,” but that it was declaring a mistrial even if there was.
The court reasoned: “If [defendant] has got prior felony convictions in his background at this
point in the trial at least he has a right for the jury to not know that. That right was terribly
violated.” The court said that continuing the trial would be “cheating the defendant out of a fair
trial.” The court noted that defendant’s prior felony convictions might have been admitted if
defendant chose to testify. The court reasoned: “Well, that’s ruined. That’s all out the window
now, because the jury got told about it right off the bat the first witness.”
¶ 14 Both parties clarified that they were not requesting a mistrial. The court stated that it was
declaring the mistrial on its own motion.
¶ 15 A second jury trial was held, and defendant testified on his own behalf. The State
introduced evidence in rebuttal that defendant had previously been convicted of aggravated
discharge of a firearm. The jury found defendant guilty of all three counts.
¶ 16 Defendant filed a motion for a new trial alleging, inter alia, that the court erred in
declaring a mistrial over his objection during the first trial. At a hearing on the motion, defense
counsel said that he opposed a mistrial in the first trial because he did not want to give the victim
an opportunity to improve her story and correct mistakes in her testimony from the first trial. The
court denied the motion.
¶ 17 The court imposed consecutive sentences of 16 years’ imprisonment for home invasion
and 14 years’ imprisonment for criminal sexual assault. The court did not impose a sentence for
residential burglary.
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¶ 18 On appeal, we ordered the parties to provide supplemental briefing on the issue of
whether defendant’s criminal sexual assault conviction violated the one-act, one-crime doctrine.
¶ 19 II. ANALYSIS
¶ 20 A. Mistrial
¶ 21 Defendant argues that the circuit court abused its discretion in declaring a mistrial on its
own motion, and, as a result, the second trial violated his right against double jeopardy.
Specifically, defendant contends that the court failed to consider his right to have a particular
tribunal decide his case and that the improper testimony concerning his prior felonies was not so
egregious that manifest necessity for a mistrial existed. We find that the circuit court did not
abuse its discretion in declaring a mistrial.
¶ 22 When the circuit court declares a mistrial without the defendant’s request, double
jeopardy bars the retrial of the defendant unless there was a manifest necessity for the mistrial.
People v. Pondexter, 214 Ill. App. 3d 79, 83 (1991). “The manifest necessity standard is a
command to the trial court not to foreclose the defendant’s right to have a particular tribunal
decide his fate until a scrupulous exercise of judicial discretion leads to the conclusion that the
ends of public justice would not be served by continuing the proceedings.” People v. Dahlberg,
355 Ill. App. 3d 308, 314 (2005); see also People v. Segoviano, 189 Ill. 2d 228, 241 (2000). “The
trial court must carefully consider all of the circumstances and any reasonable alternatives to
declaring a mistrial.” People v. Bagley, 338 Ill. App. 3d 978, 982 (2003). “Whether to declare a
mistrial is a matter within the sound discretion of the trial court, and double jeopardy concerns
do not arise unless that discretion is abused.” Id.¶ 23 In determining whether manifest necessity warranted a mistrial, a reviewing court may
consider several factors, including:
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“(1) whether the difficulty was the product of the actions of the prosecutor,
defense counsel, or trial judge, or was events over which the participants lacked
control; (2) whether the difficulty could have been intentionally created or
manipulated by the prosecution to strengthen its case; (3) whether the difficulty,
prejudice, or other legal complication might have been ‘cured’ by another
alternative that would have preserved the trial’s fairness; (4) whether the trial
judge actually considered the alternatives to a mistrial; (5) whether a subsequent
conviction would be subject to reversal on appeal; (6) whether the trial judge
acted in the heat of the trial confrontation; (7) whether the trial judge’s decision
rested on an evaluation of the demeanor of the participants, the ‘atmosphere’ of
the trial, or any other factors that similarly are not amenable to strict appellate
review; (8) whether the trial judge granted the mistrial solely for the purpose of
protecting the defendant against possible prejudice; (9) whether the evidence the
State presented, prior to the mistrial, suggested a weakness in its case (e.g., a
witness failed to testify as anticipated); (10) whether the jurors had heard enough
of the case to formulate some tentative opinions; (11) whether the case had
proceeded so far as to give the prosecution a substantial preview of the defense’s
tactics and evidence; and (12) whether the composition of the jury was unusual.”
People v. Street, 316 Ill. App. 3d 205, 211-12 (2000).
¶ 24 In the instant case, the circuit court did not abuse its discretion in determining that there
was a manifest necessity for a mistrial. Defendant’s right to a fair trial was compromised where
the victim repeatedly mentioned defendant’s “past felonies” and “other felonies” during her
testimony. See People v. Donoho, 204 Ill. 2d 159, 170 (2003) (“Defendant is entitled to have his
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guilt or innocence evaluated solely on the basis of the charged crime.”); People v. Gregory, 22
Ill. 2d 601, 603 (1961) (“[I]t is well settled that evidence of other offenses unrelated to the crime
for which a defendant is on trial is incompetent.”). A conviction following this error could have
been subject to reversal on appeal. See People v. Lindgren, 79 Ill. 2d 129, 140 (1980) (“The
erroneous admission of evidence of other crimes carries a high risk of prejudice and ordinarily
calls for reversal.”).
¶ 25 The victim’s erroneous testimony appeared to be unexpected by both parties, and there is
no indication that the prosecution created this error to strengthen its case. The improper
testimony occurred on cross-examination, and the prosecutor stated that she was unaware that the
victim knew about defendant’s past felonies.
¶ 26 The case had not proceeded so far as to give the prosecution a substantial preview of the
defense’s strategy. Only one State witness had testified at the time the court declared a mistrial.
¶ 27 Nothing in the record indicates that the composition of the jury was unusual in a way that
was beneficial to defendant. In fact, defendant had previously moved for a mistrial due to lack of
racial diversity in the jury pool.
¶ 28 The court gave significant thought to its decision to declare a mistrial. The court sought
input from the parties and gave defense counsel the opportunity to discuss the matter with
defendant. Both parties advised the court that they were not requesting a mistrial. The court
noted that defense counsel had arguably invited the victim’s improper testimony on two of the
approximately five occasions that she mentioned defendant’s prior felonies. The court considered
the possibility that the defense waived the error by doing this. Nevertheless, the court concluded
that continuing the trial would “cheat[ ] the defendant out of a fair trial.” Thus, the record
indicates that the court declared a mistrial solely to protect defendant from possible prejudice.
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¶ 29 In light of all the circumstances discussed, we conclude that the circuit court did not
abuse its discretion in determining that a manifest necessity for a mistrial existed. Accordingly,
defendant’s second trial was not barred on double jeopardy grounds. See Bagley, 338 Ill. App. 3d
at 982.
¶ 30 We reject defendant’s argument that the circuit court erred in declaring a mistrial because
the victim’s testimony caused little prejudice to him. Defendant notes that he testified at his
second trial and that the jury learned that he had a prior conviction for aggravated discharge of a
firearm. Defendant argues that, if he were always planning on testifying, the victim’s improper
testimony would not have created any additional prejudice. However, the victim did not testify
that defendant had one prior felony conviction for a firearm offense. Rather, she testified that he
had multiple, unspecified “past felonies.” The victim’s testimony suggested that defendant had
more prior felonies than the one conviction admitted for impeachment purposes in defendant’s
second trial.
¶ 31 Also, while defendant ultimately chose to testify in his second trial, we cannot speculate
that he was planning on testifying in his first trial as well. Moreover, had defendant chosen to
testify in his first trial, it would have been unclear whether this choice was influenced by the
victim’s improper testimony. If defendant’s first trial had proceeded, defendant would not have
even had the option of preventing the jury from learning about his criminal history by declining
to testify, as the victim had already discussed his prior felonies.
¶ 32 We also reject defendant’s argument that the court erred in finding that a manifest
necessity for a mistrial existed because it failed to consider his right to have a particular tribunal
decide his fate or consider other alternatives to a mistrial. While the court did not explicitly
discuss defendant’s right to have his case decided by a particular tribunal, it clearly considered
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the possibility of continuing with the trial on the basis that defendant waived the error. In
determining that a mistrial was necessary despite defendant’s potential waiver, the court
implicitly found that defendant could not receive a fair trial before that tribunal. Again, we note
that defendant had already indicated his dissatisfaction with this particular tribunal when he
sought a mistrial because of its composition.
¶ 33 Defendant contends, without further elaboration, that a limiting instruction would have
cured the error. Defendant argues that because the court did not explicitly consider this option on
the record, it abused its discretion in declaring a mistrial. However, it is not apparent that a
limiting instruction would have cured the prejudice to defendant. It may have had the effect of
highlighting the improper testimony. Notably, neither party suggested a limiting instruction as an
alternative to a mistrial. Under these circumstances, the court’s failure to explicitly consider the
option of giving a limiting instruction did not render its decision to declare a mistrial an abuse of
discretion.
¶ 34 We reject defendant’s reliance on Pondexter, 214 Ill. App. 3d 79, in support of his
argument that the error in this case did not prejudice either party enough to outweigh defendant’s
right to have his case decided by the jury in the first trial. In Pondexter, after the State had
presented its case-in-chief, the defendant attempted to present the testimony of a witness who
had not been disclosed to the State in discovery. Id. at 81. The court, on its own motion, declared
a mistrial to give the defendant the opportunity to call the witness. Id. at 82. The appellate court
held that the circuit court erred in declaring a mistrial because there were other sanctions
available, namely, granting a continuance or barring the witness from testifying. Id. at 85-86.
The Pondexter court noted that “[c]ourts have held that ordering a mistrial for a discovery
violation is not an appropriate sanction.” Id. at 85.
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¶ 35 Unlike in Pondexter, the error in the instant case was not a discovery violation that could
result in unfair surprise to the other party. Rather, it was the improper introduction of evidence of
defendant’s past crimes, which was potentially reversible error. See Lindgren, 79 Ill. 2d at 140.
The court was within its discretion to find that manifest necessity for a mistrial existed under the
circumstances of this case. See supra ¶¶ 24-29.
¶ 36 B. One-Act, One-Crime
¶ 37 Defendant argues that his criminal sexual assault conviction violates the one-act, one-
crime doctrine because it is a lesser included offense of home invasion. The State confesses
error.
¶ 38 Although this issue was not preserved, it may be reviewed under the second prong of the
plain error doctrine because a one-act, one-crime violation affects the integrity of the judicial
process. People v. Coats, 2018 IL 121926, ¶ 10. The application of the one-act, one-crime
doctrine is reviewed de novo. Id. ¶ 12.
¶ 39 A defendant may not be convicted of multiple offenses that are based on the same
physical act. People v. King, 66 Ill. 2d 551, 566 (1977). However, when the defendant has
committed several acts, multiple convictions are improper only if one offense is a lesser included
offense of another. People v. Miller, 238 Ill. 2d 161, 165 (2010). We employ a two-step analysis
to determine whether there was a violation of the one-act, one-crime doctrine. People v.
Rodriguez, 169 Ill. 2d 183, 186 (1996). First, it must be determined whether the defendant’s
conduct consisted of a single physical act or separate acts. Id. If the defendant committed
multiple acts, the court then determines whether any of the offenses are lesser included offenses.
Id. In this case, we limit our review to the second part of the analysis, as neither of the parties
argues that defendant’s conduct consisted of a single physical act.
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¶ 40 When determining whether one offense is a lesser included offense of another, we
employ the abstract elements approach, which requires the court to compare the elements of both
offenses. Miller, 238 Ill. 2d at 163, 166. “If all of the elements of one offense are included within
a second offense and the first offense contains no element not included in the second offense, the
first offense is deemed a lesser-included offense of the second.” Id. In People v. Reveles-
Cordova, 2020 IL 124797, the defendant was convicted and sentenced on one count of criminal
sexual assault as well as one count of home invasion predicated upon criminal sexual assault.
The Illinois Supreme Court vacated the defendant’s criminal sexual assault conviction and held:
“Proof of criminal sexual assault is a necessary element of proof of home invasion
predicated on criminal sexual assault. All the elements of criminal sexual assault
are included in the offense of home invasion predicated on criminal sexual
assault, and criminal sexual assault contains no element not included in home
invasion. It is impossible to commit home invasion predicated upon criminal
sexual assault without committing criminal sexual assault. As such, criminal
sexual assault is a lesser-included offense of home invasion.” Id. ¶ 21.
¶ 41 The instant case is analogous to Reveles-Cordova. Here, defendant was convicted of
criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2018)) as well as home invasion
predicated on criminal sexual assault (id. § 19-6(a)(6)). Home invasion predicated on criminal
sexual assault contains all the elements of criminal sexual assault. Reveles-Cordova, 2020 IL
124797, ¶ 21. Therefore, defendant’s criminal sexual assault conviction violates the one-act, one-
crime doctrine because it is a lesser included offense of home invasion predicated on criminal
sexual assault.
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¶ 42 Accordingly, we accept the State’s confession of error and vacate defendant’s criminal
sexual assault conviction and sentence of 14 years’ imprisonment.
¶ 43 C. Sentencing
¶ 44 Defendant also argues that the circuit court improperly used an extended-term sentencing
range as a reference point in imposing the sentence for criminal sexual assault. It is unnecessary
for us to review this issue, as we have vacated defendant’s conviction for criminal sexual assault.
¶ 45 III. CONCLUSION
¶ 46 The judgment of the circuit court of Peoria County is affirmed in part and vacated in part.
¶ 47 Affirmed in part and vacated in part.
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