Appeal from the Circuit Court of Cook County; the Hon. Romie
J. Palmer and the Hon. Fred G. Suria, Jr., Judges, presiding.
PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 30, 1984.
Defendants' convictions on charges of attempted murder and attempted armed robbery, which arose out of a 1975 shooting incident at the Robert Taylor Homes, were reversed by this court on September 1, 1981, and were remanded for a new trial. (People v. Gathings (1981), 99 Ill. App.3d 1135, 425 N.E.2d 1313.) Prior to the new trial, defendants moved for discharge pursuant to section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103-5), the speedy-trial provision. That motion was filed and denied on September 28, 1982. The new trial commenced on October 6, 1982, at which defendants' motion for a mistrial was granted during the State's opening statement. Defendants' next motion, to bar reprosecution on double jeopardy grounds, was denied. Defendants appeal pursuant to Supreme Court Rule 604(f) (87 Ill.2d R. 604(f)).
Defendants present two issues on appeal: first, whether the State intentionally provoked a mistrial so as to raise a double jeopardy bar to their reprosecution; and second, whether defendants' speedy-trial rights were violated.
• 1 Although the double jeopardy clauses of both the United States and Illinois constitutions provide that no person shall be put in jeopardy twice for the same offense (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10), where a mistrial is declared pursuant to a defendant's request, as in this case, there is no double jeopardy bar to reprosecution. (Oregon v. Kennedy (1982), 456 U.S. 667, 672-73, 72 L.Ed.2d 416, 422, 102 S.Ct. 2083, 2088; People v. Pendleton (1979), 75 Ill. App.3d 580, 394 N.E.2d 496.) This is true even in situations in which the defendant's request is prompted by prosecutorial error. (United States v. Jorn (1971), 400 U.S. 470, 485, 27 L.Ed.2d 543, 556, 91 S.Ct. 547, 557; People v. Pendleton (1979), 75 Ill. App.3d 580, 394 N.E.2d 496.) An exception to this rule, postulated by the United States Supreme Court in Oregon v. Kennedy (1982), 456 U.S. 667, 72 L.Ed.2d 416, 102 S.Ct. 2083, is that where a defendant's request for a mistrial is granted due to prosecutorial misconduct, double jeopardy will bar reprosecution only if the prosecutor's conduct was "intended to provoke the defendant into moving for a mistrial." (Oregon v. Kennedy (1982), 456 U.S. 667, 679, 72 L.Ed.2d 416, 427, 102 S.Ct. 2083, 2091.) The Kennedy standard has been adopted by this court. People v. Franklin (1983), 119 Ill. App.3d 899, 906, 457 N.E.2d 1005; People v. Clark (1984), 124 Ill. App.3d 14, 20-21, 463 N.E.2d 981.
The circumstance which gave rise to the declaration of a mistrial in this case was an asserted violation of the circuit court's ruling in limine that the fact of the victim's death could be indicated only as an explanation for the use of a transcript of the victim's testimony from the original trial. In the State's opening statement, the prosecutor detailed the facts of the shooting, post-occurrence developments, including a description of the victim's ensuing injuries and treatment at hospitals, and the victim's loss of his ability to speak because of that gunshot wound. The prosecutor then observed that there had been a previous trial in this matter and, at the time of the earlier trial, the victim spoke through the voice of a doctor, who interpreted the words that the victim mouthed to the jury from his hospital bed. The prosecutor then stated, in pertinent part:
"* * * some three weeks after that trial, Michael [the victim] died and
MR. STECK [defense counsel]: May I approach the bench, Your Honor.
THE COURT: Take the jury out of the room, please."
At this point, defense counsel moved for a mistrial, arguing that the prosecutor's opening statement violated the circuit court order regarding the death of the victim. The circuit court granted defendants' motion and declared a mistrial.
Defendants urge that the prosecutor's reference to the victim's death was an intentional violation of the circuit court's order and was designed to provoke a mistrial. As evidence of such intent, defendants point to the fact that the circuit court excluded certain photographs offered by the State and to an exchange reflected in a supplement to the record in which the prosecutor expressed the notion that the circuit court judge always believed the defense attorney. Defendants argue that these facts show that the case was going poorly for the State and that the prosecutor was frustrated with the circuit court; therefore, the State intentionally provoked a mistrial satisfying the Kennedy standard and raising a double jeopardy bar to retrial. We disagree.
It is important to note that at the point in the State's opening statement, in which the reference to the victim's death was made, defense counsel interrupted in midsentence. The prosecutor may well have been on the verge of explaining that the victim's death was the reason for the introduction of a transcript of his earlier testimony. This possibility, coupled with the fact that the excluded photographic evidence was not crucial to the State's case, and that the assertion in the supplement to the record was tenuously supported, *fn1 militate against a finding of prosecutorial intent to provoke a mistrial. Significantly, the circuit court transferred the case to another court after the mistrial was declared. Upon hearing, the transferee court found that the prosecutor's remarks were not intended to cause a mistrial, but were ...