People v. Kimble, 2017 IL App (2d) 160087

Background

Defendant David Kimble was tried on four counts of aggravated criminal sexual abuse for touching a 9‑year‑old (S.M.) between Aug–Nov 2013; the three‑day jury trial focused largely on S.M.’s credibility and inconsistent statements.
After closing arguments the jury began deliberating; they rewatched a videotaped CAC interview and returned to deliberate.
At 4:25 p.m. the jury foreman sent a note saying the jury was at an "impasse" after about five hours of total deliberation (including breaks and the rewatch).
Earlier that day, without counsel or the parties present, the judge had instructed the bailiff to tell the jury to “continue to deliberate” after an initial, off‑the‑record indication of an impasse. The judge later disclosed that ex parte contact to counsel.
Both the State and defense requested the Prim deadlocked‑jury instruction and asked that deliberations continue (including resuming the next day); the judge refused as "futile," excused the jurors, and sua sponte declared a mistrial.
Defendant moved to dismiss on double‑jeopardy grounds; the trial court denied the motion. The appellate court reversed and barred retrial, holding the judge’s ex parte communication and premature mistrial deprived defendant of protections and precluded manifest necessity.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Kimble)	Held
Whether defendant consented or acquiesced to the mistrial	Kimble failed to contemporaneously object to preserve double‑jeopardy; silence or acquiescence amounted to consent	Counsel repeatedly sought Prim and further deliberation; that manifested desire to proceed preserved the right	Court: No consent — defense clearly and repeatedly requested Prim and further deliberation, so no waiver
Whether judicial ex parte communication bars retrial	The judge’s brief instruction to “continue to deliberate” was harmless and not equivalent to denying Prim; mistrial justified by deadlock	Ex parte contact before parties/counsel were present was judicial indiscretion that caused the mistrial and prejudiced defendant	Court: Ex parte communication was improper and prejudicial; it contributed to the mistrial and bars reprosecution
Whether a "manifest necessity" existed for sua sponte mistrial based on deadlock	Jury reported impasse after lengthy deliberations; judge reasonably concluded further deliberation would be futile	Jury deliberated only ~5 hours (with interruptions); alternatives (Prim, overnight) were available; judge acted precipitously	Court: No manifest necessity; judge abused discretion in declaring mistrial without considering/allowing Prim and other alternatives
Whether the Prim instruction was required or appropriate	Judge could decline Prim given jury dynamics and prior communications	Prim should have been given when jury first reported impasse; the earlier ex parte instruction did not substitute for Prim	Court: The ex parte “continue to deliberate” was not the Prim instruction; Prim should have been considered and its denial contributed to bar on retrial

Key Cases Cited

Arizona v. Washington, 434 U.S. 497 (establishes "manifest necessity" standard for retrial after mistrial)
United States v. Jorn, 400 U.S. 470 (trial judge must search for less drastic alternatives before declaring mistrial; judicial indiscretion can bar retrial)
Benton v. Maryland, 395 U.S. 784 (double jeopardy applies to the states)
People v. Prim, 53 Ill.2d 62 (approves deadlocked‑jury instruction to guide jurors and avoid coercion)
People v. Wiley, 71 Ill. App.3d 641 (sua sponte judicial dismissal/mistrial caused by judicial indiscretion can bar retrial)
People v. Bagley, 338 Ill. App.3d 978 (defendant who forcefully argues to continue need not make pro forma objection to preserve double‑jeopardy claim)
People v. Andrews, 364 Ill. App.3d 253 (factors to assess manifest necessity where mistrial claimed due to deadlock)
People v. Cowan, 105 Ill.2d 324 (court discretion on when to give Prim instruction)