People v. Mink

JUSTICE NASH,

dissenting:

The trial judge granted defendant a new trial, at defendant’s request, after defendant’s attorney convinced the court that only part of the evidence offered by the State and considered by the jury could be properly applied as evidence of venue. It seems clear to me the trial judge found that, based upon all of the evidence, venue was established if the jury could properly make its decision based on the total evidence presented to it by the State. The judge expressed that he should be able to view all of the evidence in considering the post-trial motion for a new trial, but that there was a good argument on both sides of the issue. The judge stated he was not quite sure whether the jury should have been precluded from considering evidence received for a limited purpose for any other purpose and believed it best to resolve the issue by giving defendant the new trial he requested. The court did not find that the State had failed to prove the venue of the offense and stated, without objection by defendant’s counsel, that there was no double jeopardy impediment to a new trial. This trial judge, who has since retired, would find it difficult to understand how his findings have been turned around by the defendant in this case so as to be considered as some kind of an “implied” acquittal of defendant for double jeopardy purposes.

Nor do I agree with the conclusion of the majority that defendant did not waive his present claim of prior jeopardy by failing to raise it below. A claim of error must be first raised in the trial court to preserve it for review. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Constitutional issues, including the prohibition against double jeopardy, are waived by failure to object in the trial court. (People v. Scales (1960), 18 Ill. 2d 283, 164 N.E.2d 76; People v. Escobar (1988), 168 Ill. App. 3d 30, 39, 522 N.E.2d 191; People v. Green (1984), 125 Ill. App. 3d 734, 744, 466 N.E.2d 630; People v. Szudy (1978), 56 Ill. App. 3d 494, 498-99, 371 N.E.2d 1222.) As our supreme court noted in People v. Scales:

“The constitutional right to not be put twice in jeopardy for the same offense is a personal privilege which may be waived. [Citation.] The right has been waived where the accused seeks and obtains a new trial, (People v. Liechron, 384 Ill. 613,) or where he does not raise the defense of former jeopardy before judgment in the trial court.” (18 Ill. 2d at 285-86.)

In the present case, defendant made no objection to the trial court’s declaration on granting a new trial that principles of former jeopardy would not bar it. Nor did defendant raise this issue at either the hearing of the State’s motion to reconsider the order granting a new trial or at sentencing.

I would apply the standard declared by our supreme court in People v. Scales, and the appellate court decisions which follow it, and affirm defendant’s conviction.