{ "id": 3629305, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PATSY FRANKLIN, Defendant-Appellee", "name_abbreviation": "People v. Franklin", "decision_date": "1983-11-29", "docket_number": "No. 82\u2014609", "first_page": "901", "last_page": "908", "citations": [ { "type": "official", "cite": "119 Ill. App. 3d 899" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "424 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027140 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "611" }, { "page": "276" }, { "page": "1081" } ], "opinion_index": 0, "case_paths": [ "/us/424/0600-01" ] }, { "cite": "456 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189962 ], "weight": 12, "pin_cites": [ { "page": "679" }, { "page": "427" }, { "page": "2091" }, { "page": "669" }, { "page": "427" }, { "page": "2091" } ], "opinion_index": 0, "case_paths": [ "/us/456/0667-01" ] } ], "analysis": { "cardinality": 721, "char_count": 17088, "ocr_confidence": 0.766, "pagerank": { "raw": 1.1156024669712764e-07, "percentile": 0.5721441674784901 }, "sha256": "a26ea1ae5ea17ea957947ed1ad7fe223ec8f674e8a753a86033aa594907b6d2e", "simhash": "1:6f589010f460c6cf", "word_count": 2849 }, "last_updated": "2023-07-14T17:31:44.831415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PATSY FRANKLIN, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nThe issue raised by this appeal is whether a mistrial due to the State\u2019s failure to disclose what the trial court characterized as a \u201cmaterial,\u201d \u201cprejudicial\u201d statement made by one of its witnesses, notwithstanding a defense discovery request and a court order to disclose such statement, acts as a double-jeopardy bar to reprosecution under Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083.\nDefendant, Patsy Franklin, was charged with murder (111. Rev. Stat. 1981, ch. 38, pars. 9 \u2014 1(a)(1), (2)) as a result of the death of her three-year-old daughter. In response to defendant\u2019s discovery request for a list of the State\u2019s potential witnesses, the State identified, inter alia, Dr. Robert Stein, the Cook County Medical Examiner, who had performed an autopsy on the deceased child. On December 15, 1981, immediately prior to trial, the defense renewed its motion for the production of Stein\u2019s statement as follows:\n\u201cMR. MORRISSEY [defense counsel]: May we have your notes of your conversation with Doctor Stein?\nMR. PERRY [assistant State\u2019s Attorney]: I didn\u2019t take any notes. I\u2014\nMR. GERRITY [assistant State\u2019s Attorney]: I didn\u2019t take any notes either. I don\u2019t have any notes.\u201d\nShortly thereafter, the following colloquy occurred:\n\u201cMR. PERRY: *** Judge we have one other motion now.\nTHE COURT: Let\u2019s hear it.\nMR. PERRY: As to Doctor Stein\u2019s testimony, Mr. Morrissey has tendered a copy of statements that I believe he took from Doctor Stein. From the brief statements that I have here, these statements could very well be impeaching Doctor Stein. * * *\nMR. MORRISSEY: Your Honor, we are not sure if the State\u2019s comments regarding \u2014 Since the statements that are before you, *** are all one sided, since the court has the benefit of what our conversations were with Doctor Stein, but not what the State\u2019s conversations were with Stein, and since Mr. Perry apparently indicates that the doctor told him something different, we say that we have a right to that same information that we have just turned over to the State.\nThe State apparently has taken statements from the Doctor that are different than what appears in the discovery that I just tendered to Mr. Perry. ***\nTHE COURT: Have you delivered to them the statements of Doctor Stein? * * *\nMR. PERRY: I didn\u2019t take any statements from \u2014 Any notes on statements made by Doctor Stein to me.\nMR. MORRISSEY: That\u2019s not the question. It\u2019s not a question of whether it\u2019s in writing or not. Were there any statements made?\nMR. PERRY: Of course statements were made. I interviewed him for almost an hour.\nMR. MORRISSEY: Then we have a right to that.\nMR. PERRY: I\u2019m not prepared to write everything he said to me and tender it to you. I don\u2019t think the rules of discovery require me to do that.\nMR. MORRISSEY: *** If you take a statement from a doctor and now you look at my notes and you say *** the doctor\u2019s going to be impeached by that, you know exactly what the statement is in your own mind and we\u2019ve got a right to know what it is. * * *\nTHE COURT: How do you argue against his point? You tell me by looking at the notes which you requested from him in limine, and tell me very specifically that he\u2019s going to attempt to impeach the doctor. You must know something in your mind that the doctor told you which is different from what\u2019s down here. * * *\nMR. PERRY: There\u2019s a lot of things mentioned in here which could be subject to impeachment, ***. * * *\nMR. MORRISSEY: *** Mr. Perry sits there, looks at my notes of a conversation with Doctor Stein and says there is impeaching material in there.\nI want to know what statements he\u2019s got in his mind that Doctor Stein gave him that point of view.\nTHE COURT: I\u2019m ordering you to tell him those statements right now.\u201d Lawrence, a potential prosecution witness] they should be revealed to the defense. If you don\u2019t have a statement and then you walk into the courtroom before the jury and you have that man testify to a statement, I\u2019ll declare a mistrial in this matter so fast your head will spin.\u201d\nThe prosecutor then pointed out several minor inconsistencies in the notes of defense counsel as to whether the injuries inflicted on the deceased child could have been due to either a belt, falling against the table, or cardiopulmonary resuscitation. The prosecutor also noted that the statement that \u201cit was acute a single blunt trauma\u201d was inconsistent because the doctor told him that the cause of death was multiple trauma. The prosecutor read aloud a notation, \u201chomicide versus undetermined accident. Natural cause.\u201d The prosecutor said only that he did not understand what the notation meant.\nThroughout additional pretrial motions in limine and discovery motions, the prosecutors continued to be evasive as to whether or not they had a complete .statement from certain potential witnesses. The trial court expressed agitation with what it deemed the prosecution\u2019s inadequate compliance with discovery and warned the attorneys that:\n\u201cIf there were statements made [apparently referring to Mr.\nIt is undisputed that on the medical examiner\u2019s certificate of death for defendant\u2019s daughter, in the space which requires an indication whether the manner of death (as distinguished from cause of death) was by \u201caccident, suicide, homicide or undetermined.\u201d Dr. Stein specified her manner of death as \u201cundetermined.\u201d Further, during Dr. Stein\u2019s conversations with the defense attorneys on December 4 and 11, 1981, he continued to represent to them that the manner of death was \u201cundetermined.\u201d On December 16, 1981, in reliance on Dr. Stein\u2019s statements, defense counsel asserted in his opening statement to the jury that the evidence would establish that on the day defendant\u2019s daughter died, defendant punished her for drinking out of a toilet by spanking her with a belt; however, that Dr. Stein would testify that the spanking was not the cause of her death. Defense counsel suggested the testimony would show that when defendant spanked her daughter, the child pulled away and accidentally fell against the table incurring an injury in the form of a lacerated liver which was the actual cause of her death.\nDr. Stein was called to testify as the State\u2019s fifth prosecution witness. Before he commenced his testimony, the defense made a motion in limine to exclude certain autopsy slides of Dr. Stein\u2019s internal examination of the victim\u2019s head and brain on the ground that they were highly prejudicial and that any injuries shown were not related to the cause of her death. One of the prosecutors represented to the trial court that Dr. Stein would testify that blunt trauma to the brain was the cause of death and based on that representation, the trial court denied the motion in limine and allowed the State to use all of the autopsy slides. After the jury was shown each of the autopsy slides of the victim, Dr. Stein stated that the cause of death was laceration of the liver due to a blunt trauma.\nThe prosecutor then asked Dr. Stein the meaning of the term \u201cmanner of death.\u201d The doctor replied that that was the \u201cmode\u201d of death which was either homicide, suicide, accidental, by natural causes, or undetermined. In response to the inquiry whether he had an opinion as to the manner of death of defendant\u2019s child, Dr. Stein replied:\n\u201cA. As I stated previously in my report, in the death certificate dated the 18th of July, a manner of death was undetermined.\nQ. Based on the material that you now have access to, do you wish to change that or do you have a different opinion ***?\nA. The material that I have access to, namely, the emergency room report whereby the physician has stated that *** Andrea Franklin was dead, and if I would have known that at the time of the autopsy my manner of death would have been homicide.\u201d\nFollowing completion of Dr. Stein\u2019s testimony, the defense moved for a mistrial on the grounds that the State tendered incomplete discovery of Dr. Stein\u2019s statements. The defense attorney argued that throughout the entire pretrial discovery process, Dr. Stein\u2019s opinion regarding the manner of death was that it was \u201cundetermined.\u201d This remained Dr. Stein\u2019s position as late as December 11, 1981. Although the prosecutors subsequently talked to Dr. Stein and determined that he had changed his opinion regarding the manner of death, they refused to disclose this change to the defense. Defense counsel further asserted that on December 15, 1981, when the prosecutor asked defense counsel how he planned to perfect impeachment of the doctor, the State already knew Dr. Stein had changed his opinion as to the manner of death.\nThe prosecutors argued against granting the defense motion for a mistrial. They acknowledged that on December 15, 1981, they were aware that based upon certain emergency room reports, Dr. Stein was going to change his initial opinion concerning the manner of death from \u201cundetermined\u201d to \u201chomicide.\u201d However, one of the prosecutors stated: \u201cI don\u2019t see any duty on our part to notify the defense of that. They had an opportunity to talk to Stein ***.\u201d The prosecutors also claimed that defendant was not prejudiced by the State\u2019s failure to disclose the change in Dr. Stein\u2019s opinion concerning the child\u2019s manner of death since the doctor on the record stated his reasons for the change and the defense attorney was able to cross-examine him on that point.\nIn response, defense counsel claimed that the State\u2019s failure to disclose the change in Dr. Stein\u2019s testimony caused him to make an inaccurate opening statement to the jury and denied him the opportunity to adequately cross-examine the emergency room physician who had testified prior to Dr. Stein!\nThe court stated:\n\u201c[T]his Court feels that the failure of the State to reveal the additional information known to them prior to the beginning of this trial is extremely prejudicial to the defense, and the fact that they did not reveal it until after the party has been questioned and it\u2019s far too late, I feel there is a very prejudicial effect on this trial, and there is a mistrial declared in this matter.\u201d\nThe trial judge then dismissed the jury, recused himself \u201cfrom any further participation in this matter,\u201d and transferred the case for reassignment and for a new trial. We note that the court made no findings of fact as to whether the prosecutors\u2019 actions were intended to provoke the defense motion for a mistrial.\nThe case was then assigned to Judge Dwight McKay for retrial. On February 24, 1982, the defense moved to dismiss the information and discharge the defendant on the ground that reprosecution was barred because the mistrial was declared due to prosecutorial misconduct. Defendant contended that the State was unprepared for trial and feared an acquittal. Defendant argued that the State\u2019s concealment of the change in Dr. Stein\u2019s opinion concerning the manner of death reflected that the prosecutors\u2019 intent was either to provoke a mistrial or \u201cto harass and prejudice the defendant by misrepresenting to the court certain things and it has been one misrepresentation after another up until the mistrial was declared.\u201d In support of her contentions, defendant also calls attention to the State\u2019s misrepresentation to the trial court regarding the necessity of showing to the jury all of the autopsy slides in light of the prosecutors\u2019 inaccurate assertion that the injuries in the head region contributed to the cause of death.\nThe State denied that it had intended to provoke a mistrial. The prosecutors argued that they could not be characterized as having concealed Dr. Stein\u2019s testimony from the trier of fact since it was elicited on direct examination of Dr. Stein. They further claimed that \u201cthere was no bad faith on the part of the prosecution\u201d underlying its inadequate compliance with discovery and that the \u201cfailure to disclose that information was an error on our part or negligence or inadvertence,\u201d but that it was \u201cnot sufficient grounds to constitute bad faith on the part of the prosecution that would necessitate the granting of a motion to dismiss on the grounds of double jeopardy.\u201d\nJudge McKay noted that the State was under a continuing duty to disclose Dr. Stein\u2019s statement, due to both a direct court order and to Stipreme Court Rule 415 (87 Ill. 2d R. 415) and that the State\u2019s failure to disclose was \u201cmaterial\u201d and was the reason a mistrial was declared. Without any reference to the prosecutors\u2019 intent, the court concluded that the defendant had been placed in double jeopardy and granted the motion to dismiss the information.\nOn appeal, the State acknowledges that at the time the trial court dismissed the information, it was an established rule that a violation of the double jeopardy clause barred reprosecution where (1) the prosecution\u2019s conduct which resulted in the mistrial was undertaken to harass or prejudice the defendant or (2) such conduct was intended to provoke a mistrial so as to give the prosecution a more favorable opportunity to convict the defendant at a second trial. (United States v. Dinitz (1976), 424 U.S. 600, 611, 47 L. Ed. 2d 267, 276, 96 S. Ct. 1075, 1081.) However, the State argues that on appeal we should apply the more stringent standard subsequently adopted by the United States Supreme Court in Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083, concerning the effect of a successful defense motion for a mistrial in a criminal trial. The court held in Kennedy.\n\u201c[T]he circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.\u201d (456 U.S. 667, 679, 72 L. Ed. 2d 416, 427,102 S. Ct. 2083, 2091.)\nThe State contends that in the instant case the record does not support a finding that the prosecutors intended to provoke defendant into moving for a mistrial. To the contrary, defendant argues that the prosecutors\u2019 intent to provoke a mistrial can be inferred from their deliberate failure to disclose Dr. Stein\u2019s statements despite a specific defense discovery request to disclose such statements and a direct order by the trial court to comply.\nThe record reveals that prior to trial, the prosecutors were aware that Dr. Stein had changed his opinion concerning the manner of the child\u2019s death to \u201chomicide\u201d and that they refused to disclose that information to defendant. The prosecutors thereby allowed defense counsel to make an inaccurate opening statement to the jury to the effect that Dr. Stem\u2019s testimony would establish that the manner of death was \u201cundetermined\u201d and that the evidence would show the death was accidental. The prosecutors then called Dr. Stein as a witness and elicited on direct examination that he had changed his opinion concerning the manner of death from \u201cundetermined\u201d to \u201chomicide.\u201d Immediately following that testimony, defendant\u2019s motion for a mistrial was granted.\nIn our judgment the appropriate standard to be applied herein is that propounded in Oregon v. Kennedy. In that case, however, the trial court had made a factual finding that the prosecution did not intend to provoke a mistrial. (456 U.S. 667, 669, 72 L. Ed. 2d 416, 427, 102 S. Ct. 2083, 2091.) In the instant case, the trial court made no such factual findings and we cannot without improper speculation determine from the record before us the intent underlying the prosecutors\u2019 conduct in the case at bar.\nWe therefore vacate the order dismissing the charges against defendant and remand this case to the circuit court for the purpose of making pertinent findings with respect to whether the prosecution in this instance intended to provoke defendant into moving for a mistrial. Should the court find such intent, the trial court should re-enter the order dismissing the charges against defendant; should the court find the. prosecution did not intend to provoke defendant into moving for a mistrial, the trial court should deny defendant\u2019s motion.\nOrder vacated and cause remanded with directions.\nSTAMOS and HARTMAN, JJ, concur.\nBecause a mistrial was declared following the testimony of Dr. Stein, Mr. Lawrence was not called to testify at the trial.\nWe are constrained to observe that we deem the prosecution\u2019s antics and actions in this case to be entirely improper. We caution the State against trifling with society\u2019s right to prosecute those charged with the commission of crimes as well as against infringing upon the rights of an accused to a fair trial.", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Adam Dabek, Assistant State\u2019s Attorneys, of counsel), for the People.", "James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin, George J. Morrissey, and Mark Dohm, Assistant Public Defenders, of counsel), for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PATSY FRANKLIN, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 82\u2014609\nOpinion filed November 29, 1983.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Adam Dabek, Assistant State\u2019s Attorneys, of counsel), for the People.\nJames J. Doherty, Public Defender, of Chicago (Ronald P. Alwin, George J. Morrissey, and Mark Dohm, Assistant Public Defenders, of counsel), for appellee." }, "file_name": "0901-01", "first_page_order": 923, "last_page_order": 930 }