APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
543 N.E.2d 1106, 188 Ill. App. 3d 378, 135 Ill. Dec. 538 1989.IL.1386
Appeal from the Circuit Court of Lake County; the Hon. William D. Block, Judge, presiding.
JUSTICE NASH delivered the opinion of the court. McLAREN and REINHARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
The State appeals pursuant to Supreme Court Rule 604(a) (107 Ill. 2d R. 604(a)) from an order dismissing an indictment charging murder brought against defendant, Steven Palmer. In 1984, defendant was first indicted for the murder of Thomas Degen, and, after trial, a jury returned a verdict finding him to be guilty but mentally ill, and he was sentenced to a term of natural-life imprisonment. In People v. Palmer (1985), 139 Ill. App. 3d 966, 487 N.E.2d 1154, this court reversed defendant's conviction on finding that a reasonable doubt remained whether he was sane at the time of the offense, and remanded the cause for the entry of a judgment of not guilty by reason of insanity. On October 28, 1987, a new indictment was returned by a grand jury against this defendant for the murder of Degen, which the trial court dismissed as barred by principles of double jeopardy.
In the present appeal, the State contends that our reversal of defendant's conviction in Palmer was based on the weight, rather than the sufficiency, of the evidence, and that the 1987 indictment was thus not barred by double jeopardy or the doctrines of res judicata or collateral estoppel.
The facts were noted in the first appeal of this case. On December 28, 1983, defendant stabbed 14-year-old Thomas Degen while in line at a McDonald's restaurant in Waukegan; the child later died of his injuries. After the stabbing, defendant ran to a nearby bowling alley and exhibited bizarre behavior until the police arrived. At trial, there was extensive testimony with respect to defendant's past and present mental condition from four expert witnesses, defendant's father, and other lay witnesses. Defendant, who was 32 years old, had exhibited extremely abnormal behavior since age 17 and had been diagnosed as having schizophrenia; he had been treated for that illness for several years by numerous doctors and as an inpatient and outpatient at several hospitals. He was being treated for his psychosis at the time he stabbed Degen.
Each of the three expert witnesses who testified on defendant's behalf stated that he was suffering from paranoid schizophrenia and that his psychosis was severe. Two of the defense experts testified that defendant was unable to distinguish right from wrong and unable to conform his conduct to the requirements of the law at the time of the offense. The State's expert, Dr. Ronald Baron, testified that, in his opinion, defendant was faking his psychosis. Dr. Baron did not agree that defendant was a paranoid schizophrenic, yet, could not unequivocally state whether defendant was schizophrenic. At many points in his testimony, Dr. Baron's statements were self-contradictory and speculative. When he examined defendant, Dr. Baron found no evidence of defendant's psychosis, but he stated that defendant was "grossly psychotic" on the day of the stabbing; that he was able to distinguish right from wrong and could conform his conduct to the requirements of the law; and, that he was not mentally ill. Dr. Baron considered that defendant suffered from a drug-induced psychosis, but the doctor failed to examine defendant for any signs of drug usage or administer any drug tests. A jury found defendant guilty, but mentally ill, and a sentence of natural-life imprisonment was imposed. On appeal, this court reversed defendant's conviction, finding that there was no real evidentiary conflict for the jury to resolve because the testimony of the lay witnesses corroborated the defense experts' Conclusion and Dr. Baron's testimony was weak and self-contradictory. This court concluded that a reasonable doubt remained as to defendant's sanity at the time of the offense which required reversal of the conviction. Palmer, 139 Ill. App. 3d at 973-74, 487 N.E.2d at 1159.
The State filed a petition for rehearing, asserting that this court had improperly substituted its judgment for that of the jury on the issue of the credibility of the expert witnesses. After consideration of the State's petition for rehearing, we denied it (Palmer, 139 Ill. App. 3d 966, 487 N.E.2d 1154), and our supreme court denied the State's petition for leave to appeal. Upon the issuance of our mandate, the trial court entered a judgment of not guilty by reason of insanity whereupon the State moved for reinstatement of the guilty but mentally ill verdict, asserting that the appellate court judgment was void. The trial court denied the State's motion, and the State then sought an original writ of mandamus or supervisory order from our supreme court. In People ex rel. Foreman v. Nash (1987), 118 Ill. 2d 90, 514 N.E.2d 180, the supreme court determined that issuance of a writ of mandamus or prohibition, or a supervisory order, was inappropriate because it would in effect constitute an additional appeal to which the State was not entitled. (118 Ill. 2d at 98-99.) On September 14, 1988, we reissued a mandate directing the trial court to enter a judgment of not guilty by reason of insanity.
On October 28, 1987, defendant was reindicted by a grand jury for the murder of Thomas Degen. His motion to dismiss the indictment on grounds it was as barred by double jeopardy and the doctrines of res judicata and collateral estoppel was granted by the trial court, and the State has again appealed.
We consider first defendant's argument that, because the 1987 indictment was returned prior to this court's September 14, 1988, mandate, the circuit court lacked jurisdiction to proceed on the new indictment, and it was void. We disagree. Defendant correctly notes that once appellate jurisdiction attaches it continues until a mandate is issued and filed in the circuit court. (See People v. McBride (1983), 114 Ill. App. 3d 75, 79, 448 N.E.2d 551, 553; People v. Baker (1980), 85 Ill. App. 3d 661, 662, 406 N.E.2d 1152, 1153.) However, appellate jurisdiction of the 1984 indictment did not preempt the trial court from proceeding on a new indictment returned against defendant by a grand jury. Our 1988 mandate concerned an appeal taken from defendant's conviction under the 1984 indictment and had no effect on the return and filing of a new indictment in 1987. The trial court properly exercised its original jurisdiction over the 1987 indictment. See Ill. Const. 1970, art. VI, § 9.
Citing Tibbs v. Florida (1982), 457 U.S. 31, 72 L. Ed. 2d 652, 102 S. Ct. 2211, the State contends that it should not be barred from reprosecuting defendant on the ground of double jeopardy because, it asserts, the reversal of defendant's conviction was based on the weight, rather than the sufficiency, of the evidence. The State argues that our reversal in Palmer was based on the weight of the evidence because we found that Dr. Baron's testimony was not credible.
In Tibbs, the Supreme Court decided the issue of whether the double jeopardy clause (U.S. Const., amend. V) bars retrial after a reviewing court sets aside a conviction on the ground that the verdict was against the manifest weight of the evidence. (Tibbs, 457 U.S. at 32, 72 L. Ed. 2d at 655, 102 S. Ct. at 2213.) In deciding that question, the court noted that Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141, had carved a narrow exception to the general rule that a defendant who successfully appeals his conviction is subject to retrial. (Tibbs, 457 U.S. at 40, 72 L. Ed. 2d at 660, 102 S. Ct. at 2217.) Under the Burks exception, if a reviewing court determines that the evidence is legally insufficient to support a conviction, the double jeopardy clause precludes retrial. (Burks, 437 U.S. at 18, 57 L. Ed. 2d at 14, 98 S. Ct. at ...