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07/28/87 the People of the State of v. Patsy Franklin

July 28, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PATSY FRANKLIN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

512 N.E.2d 40, 159 Ill. App. 3d 56, 111 Ill. Dec. 136 1987.IL.1070

Appeal from the Circuit Court of Cook County; the Hon. Cornelius J. Houtsma, Jr., and the Hon. Frank Meekins, Judges, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SCARIANO delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Defendant Patsy Franklin (Franklin) was being tried for the murder of her three-year-old daughter Andrea when Judge Cornelius J. Houtsma, Jr., declared a mistrial. The cause was transferred to Judge Dwight McKay, who dismissed it on double jeopardy grounds. This court reversed and remanded the cause for further findings by the trial court in light of Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083, on the issue of whether the prosecutor intended to provoke Franklin into moving for a mistrial. People v. Franklin (1983), 119 Ill. App. 3d 899, 457 N.E.2d 1005.

Subsequently, Judge Houtsma held that the People were not barred from retrying Franklin and denied her initial motion to dismiss, which had first been heard before Judge McKay. In a jury trial before Judge Frank Meekins, Franklin was convicted of involuntary manslaughter and received an extended-term sentence of eight years' imprisonment, from which she appeals.

Immediately prior to the commencement of the first trial, defense counsel made a discovery request for the People's notes of the statements of Dr. Robert Stein (Stein), the Cook County medical examiner, who was to testify on behalf of the prosecution. (People v. Franklin (1983), 119 Ill. App. 3d 899, 900, 457 N.E.2d 1005.) The People replied that they did not take notes of their interview with Stein. (119 Ill. App. 3d 899, 900, 457 N.E.2d 1005.) However, upon review of defense counsel's notes of an interview with Dr. Stein, the People indicated that some of the statements contained therein could be impeaching of the doctor's testimony. 119 Ill. App. 3d 899, 901, 457 N.E.2d 1005.

Defense counsel then repeated his request for any information the People possessed that contradicted the information contained in the notes of his interview with Dr. Stein. (119 Ill. App. 3d 899, 901, 457 N.E.2d 1005.) The prosecutor responded that he did not believe the rules of discovery required him to write down and tender everything that Stein said to him. (119 Ill. App. 3d 899, 901, 457 N.E.2d 1005.) The trial court then ordered the prosecution to disclose any information it had that was different from the information contained in defense counsel's notes. (119 Ill. App. 3d 899, 901, 457 N.E.2d 1005.) Although the People knew at that time that Stein had changed his opinion regarding the manner of Andrea's death from undetermined to homicide, they did not disclose this information. (119 Ill. App. 3d 899, 901, 457 N.E.2d 1005.) Instead, they revealed several minor inconsistencies in Dr. Stein's statements. 119 Ill. App. 3d 899, 901, 457 N.E.2d 1005.

On direct examination, Stein testified that due to information he recently had received he had changed his opinion regarding the manner of death and believed that the death was a homicide. (119 Ill. App. 3d 899, 903, 457 N.E.2d 1005.) At that time, the trial Judge granted defense counsel's motion for a mistrial, because "'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.'" 119 Ill. App. 3d 899, 904, 457 N.E.2d 1005 (quoting Judge Houtsma).

The case was then assigned to Judge Dwight McKay for retrial. (119 Ill. App. 3d 899, 904, 457 N.E.2d 1005.) Franklin moved for discharge and argued that retrial was barred by double jeopardy because the mistrial was the result of prosecutorial misconduct. (119 Ill. App. 3d 899, 904, 457 N.E.2d 1005.) Judge McKay granted the motion and found that the prosecution's failure to disclose material information was the cause of the mistrial. 119 Ill. App. 3d 899, 904, 457 N.E.2d 1005.

On appeal, this court held that the standard set forth in Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083, was the appropriate standard for determining whether the prosecutor's actions would invoke a double jeopardy bar to retrial. In Oregon v. Kennedy, the United States Supreme Court held that retrial would not be barred unless the prosecutor intended to provoke a mistrial. Since Judge McKay had made no finding with respect to the prosecutor's intent, this court remanded the cause for a specific finding as to that issue. People v. Franklin (1983), 119 Ill. App. 3d 899, 906, 457 N.E.2d 1005.

Judge McKay transferred the cause back to Judge Houtsma, who heard argument on the issue of prosecutorial intent. Defense counsel asserted that the prosecutor's actions in violating the discovery rules and the direct order of the trial court to disclose could lead to no other Conclusion but that the prosecutor intended to provoke a mistrial. The People replied that they had successfully presented their case until the point in the proceedings at which the mistrial was declared, and thus had no reason to cause a mistrial. Judge Houtsma concluded that the prosecutor was motivated by a firm, but mistaken, belief that he was under no duty to disclose the information and that the prosecutor did not intend to provoke a mistrial. Accordingly, he denied Franklin's pending motion for dismissal, which she initially made before Judge McKay.

Franklin was retried before a jury, Judge Frank Meekins presiding. Franklin testified that on July 17, 1980, she spanked Andrea with a leather belt for drinking out of a toilet. Franklin then blacked out, and as she was blacking out, she saw Andrea fall into a cocktail table. When Franklin came to, she saw Andrea lying on the floor and gasping for air, so Franklin called the paramedics. She denied hitting Andrea with anything other than the leather portion of the belt and denied that the ...


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