Appeal from the Circuit Court of Cook County; the Hon. Dwight
McKay, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
The issue raised by this appeal is whether a mistrial due to the State's failure to disclose what the trial court characterized as a "material," "prejudicial" 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.
Defendant, Patsy Franklin, was charged with murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (2)) as a result of the death of her three-year-old daughter. In response to defendant's discovery request for a list of the State's 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's statement as follows:
"MR. MORRISSEY [defense counsel]: May we have your notes of your conversation with Doctor Stein?
MR. PERRY [assistant State's Attorney]: I didn't take any notes. I —
MR. GERRITY [assistant State's Attorney]: I didn't take any notes either. I don't have any notes."
Shortly thereafter, the following colloquy occurred:
"MR. PERRY: * * * Judge we have one other motion now.
THE COURT: Let's hear it.
MR. PERRY: As to Doctor Stein's 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.
MR. MORRISSEY: Your Honor, we are not sure if the State's comments regarding — 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's 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.
The State apparently has taken statements from the Doctor that are different than what appears in the discovery that I just tendered to Mr. Perry. * * *
THE COURT: Have you delivered to them the statements of Doctor Stein?
MR. PERRY: I didn't take any statements from — Any notes on statements made by Doctor Stein to me.
MR. MORRISSEY: That's not the question. It's not a question of whether it's in writing or not. Were ...