Supreme Court Summaries

Opinions filed April 18, 2013



People v. Martinez, 2013 IL 113475

Appellate citation: 2011 IL App (2d) 100498.


      JUSTICE FREEMAN delivered the judgment of the court, with opinion.

      Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.

      Justice Burke dissenting, with opinion.


      This criminal case comes from Elgin, in Kane County. Esteban Martinez was charged in 2006 with aggravated battery and mob action. The alleged victims were Avery Binion and Demarco Scott. After numerous continuances, a jury trial was scheduled to begin on May 17, 2010, at 8:30 a.m. However, the State announced it was not ready because its two main witnesses, the alleged victims, had not arrived. The prosecutor made an oral request to continue the trial “just for a few moments” to await the arrival of these witnesses. In response to this, in an apparent attempt to move the case forward, the trial judge proposed to begin the work of empaneling jurors without swearing them in, and the State agreed. The prosecutor participated in the voir dire. After the jury was chosen, the State still was not ready and filed a written motion for a continuance, which was denied. In denying the continuance, the trial judge noted that the missing witnesses were convicted felons who were well known to the police of Elgin. It also noted that the State had a list of 12 witnesses and that it would probably take some time to get through the other 10 of them. When the judge subsequently said it was time to swear in the chosen jury, the prosecutor announced that the State would not be participating. The jury was then sworn, but after it became clear that the State had nothing to present, the defense made a motion for a directed verdict and a dismissal of the charges, which was granted.

      The State appealed, complaining of impairment. It argued that there was an abuse of discretion in the trial court’s refusal to grant a continuance. On the other hand, Martinez claimed that he had been acquitted and that the appellate court lacked jurisdiction to entertain the appeal. The appellate court remanded for the setting of a new trial date, ruling that the State’s motion for a continuance should have been granted. Martinez appealed to the Illinois Supreme Court, claiming he was protected by the principles of double jeopardy found in the constitutions of the United States and Illinois.

      By the time the cause reached the supreme court, the propriety of the circuit court’s ruling on the State’s continuance motion was no longer before it. However, the supreme court affirmed the appellate court and vacated the circuit court’s judgment. The supreme court said that jeopardy did not attach and that the circuit court’s dismissal was an appealable order rather than a nonappealable acquittal. Under the unique set of facts presented here, the State’s indication that it would not participate came before the jury was sworn. At this point, the defendant was no longer at risk of being convicted, and any interest he may have had in retaining the chosen jury was no longer implicated. On remand, the procedures called for by statute in dealing with a written motion for a continuance should be followed, which had not been done in the circuit court proceedings below. The motion must be supported by the prosecution’s affidavit and there must be a hearing on the prosecution’s due diligence.