Justice PECCARELLI delivered the opinion of the court:
Defendant, Timothy Roche, was indicted on one count of reckless homicide (Ill.Rev. Stat.1989, ch. 38, par. 9-3(a) (now 720 ILCS
On July 22, 1990, eight-year-old Michael Grimm was killed after the van his father was driving collided with the car that defendant was driving. The State charged defendant with reckless homicide in connection with Michael's death. Defendant has provided only a portion of the trial record. What defendant has supplied reveals that the following relevant events took place at defendant's trial. Rose Alfonso, a medical technologist, testified for the State on September 16, 1992, concerning defendant's blood tests. The following exchange took place before the jury while defendant's attorney was crossexamining Alfonso concerning conversations that she had with the prosecutor prior to trial:
The prosecutor subsequently withdrew the objection, and defendant's attorney began to elicit the desired testimony. After defendant's attorney questioned Alfonso for a period of time about her conversation with the prosecutor, the prosecutor made another objection. The trial judge then sent the jury out, and the following exchange took place:
Rather than rule immediately on defendant's motion for a mistrial, the trial judge resumed his discussion of defendant's attorney's discovery objection. The trial judge then ordered the jury to be brought back in, and the parties finished questioning Ms. Alfonso. The prosecutor then stated that its last witness would be present in the morning. The trial judge excused the jury, the parties argued over the admission of certain evidence, and the trial court recessed for the day. Defendant states in his brief that he obtained an immediate transcript of the proceedings to confirm that the judge had said "Jesus Christ," although no mention of this appears in the record.
When court reconvened on the following morning, before the jury was brought in, defendant's attorney voiced some evidentiary objections. The trial court reserved ruling on those objections. After the jury was present, the trial court made the following statement:
The trial judge then recused himself from any further proceedings in the case and reassigned it to another judge.
Defendant subsequently moved to dismiss the indictment on the ground that a second prosecution would subject him to double jeopardy. The trial court denied defendant's motion. Defendant then took an interlocutory appeal to this court pursuant to Supreme Court Rule 604(f) (134 Ill.2d R. 604(f)).
Defendant argues on appeal that, although it is highly improper and constitutes a lack of judicial temperament for a judge to swear in court, the conduct of the trial judge in this case did not constitute manifest necessity for a mistrial. Defendant further argues that, although he moved for a mistrial on the second-to-last day of the trial, that motion was not pending when the trial court granted the mistrial. Therefore, according to defendant, he did not consent to the mistrial. He also claims that his attorney had no opportunity to object to the mistrial because his attorney was so surprised by the trial judge's actions and because the trial judge left the courtroom before defendant's attorney had the opportunity to object to a mistrial.
The fifth amendment provides, in part, 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 protects a defendant from "multiple punishments or repeated prosecutions for the same offense." United States v. Dinitz (1976), 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267, 273; see
A second prosecution after a mistrial implicates not only a defendant's right to be free from double jeopardy but also his right to have his trial completed by a particular tribunal. (Dinitz, 424 U.S. at 606, 96 S.Ct. at 1079, 47 L.Ed.2d at 273.) Therefore, where a trial court grants a mistrial sua sponte, a second prosecution is permissible only if "manifest necessity" existed for the mistrial. (United States v. Jorn (1971), 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543, 554; People v. Ortiz (1992), 151 Ill.2d 1, 11,175 Ill.Dec. 695, 600 N.E.2d 1153.) Manifest necessity only exists when "`the ends of public justice would not be served by a continuation of the proceedings.'" People v. Pondexter (1991), 214 Ill.App.3d 79, 83, 157 Ill.Dec. 921, 573 N.E.2d 339 quoting Jorn, 400 U.S. at 485, 91 S.Ct. at 557, 27 L.Ed.2d at 557.
On the other hand, a defendant's request for, or acquiescence in, a mistrial will generally remove any bar to reprosecution unless the conduct of the judge or prosecutor was calculated to provoke the defendant to move for a mistrial. (Oregon v. Kennedy (1982), 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416, 426-27; People ex rel. Roberts v. Orenic (1981), 88 Ill.2d 502, 509, 59 Ill.Dec. 68, 431 N.E.2d 353; People v. Gustafson (1990), 194 Ill.App.3d 910, 916,141 Ill.Dec. 639, 551 N.E.2d 826.) "`[T]he Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.'" (People v. Mulcahey (1993), 155 Ill.2d 549, 557, 187 Ill.Dec. 455, 617 N.E.2d 1176, quoting United States v. Scott (1978), 437 U.S. 82, 99, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65, 79.) Furthermore, a defendant's failure to object to the trial court's sua sponte grant of a mistrial generally constitutes acquiescence in the mistrial. People v. Camden (1987), 115 Ill.2d 369, 378-79, 105 Ill.Dec. 227, 504 N.E.2d 96.
There is no dispute that jeopardy attached in this case after the jury was empaneled. (Crist v. Bretz (1978), 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24, 32; People v. Wright (1992), 234 Ill.App.3d 880, 897, 176 Ill.Dec. 119, 601 N.E.2d 817.) Nonetheless, we conclude that the mistrial was attributable to defendant because defendant had moved for a mistrial on the previous day. The record reflects that defendant strenuously argued for a mistrial late in the day on September 16 because the trial judge had exclaimed "Jesus Christ" in front of the jury. At that time, the judge denied having said "Jesus Christ," and he made no attempt to rule on defendant's motion. Defendant's attorney neither pressed the trial court for a ruling nor withdrew his motion for a mistrial. The following morning, the trial judge ordered a mistrial. He claimed to have given the matter much thought over the previous evening. Although the judge did not specifically refer to the previous day's exclamation, he did refer to defendant's motion for a mistrial. He also referred to numerous problems that he felt had besieged the trial.
It is apparent from the trial judge's statements and from the timing of his declaration of the mistrial that the trial judge based his decision to declare a mistrial at least in part on defendant's earlier motion. We acknowledge that the trial court did not grant defendant's motion for a mistrial immediately. Rather, he considered the matter overnight and declared a mistrial the following morning. Very little happened in the trial between defendant's motion and the trial court's declaration of a mistrial. This is not a case where the defendant moved for a mistrial and the trial judge declared a mistrial several days later on different grounds. (See Lovinger v. Circuit Court of the 19th Judicial Circuit (7th Cir.1988), 845 F.2d 739, 743-44.) Furthermore, there is no suggestion that either the prosecutor or the trial judge intended to cause a mistrial. "Mere error by a trial court does not amount to `judicial overreaching' so as to bar the reprosecution of a defendant who has requested a mistrial." (Roberts, 88 Ill.2d at 511, 59 Ill.Dec. 68, 431 N.E.2d 353; see also People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 535, 25 Ill.Dec. 669, 387 N.E.2d 325.) Therefore, defendant's argument that he did not consent to the mistrial is unpersuasive. (See
The judgment of the circuit court of McHenry County is affirmed.
DOYLE and COLWELL, JJ., concur.