People v. Gathings

• Decision Date: 07 November 1984
• Docket Number: No. 83-291,83-291
• Citation: 470 N.E.2d 1260,83 Ill.Dec. 840,128 Ill.App.3d 475
• Parties: , 83 Ill.Dec. 840 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony GATHINGS and David Bracey, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1260

470 N.E.2d 1260

128 Ill.App.3d 475, 83 Ill.Dec. 840

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony GATHINGS and David Bracey, Defendants-Appellants.

No. 83-291.

Appellate Court of Illinois First District, Second Division.

Nov. 7, 1984.

Rehearing Denied Nov. 30, 1984.

Steven Clark, Deputy State Appellate Defender and Richard F. Faust, Asst. State Appellate Defender, Chicago, for defendants-appellants.

Richard M. Daley, State's Atty., Cook County (Michael E. Shabat, Jane E. Liechty and Maureen A. Dahlke, Asst. State's Attys., of counsel), for plaintiff-appellee.

HARTMAN, Presiding Justice:

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, 55 Ill.Dec. 140, 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. I.

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, § 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, 102 S.Ct. 2083, 2087-88, 72 L.Ed.2d 416; People v. Pendleton (1979), 75 Ill.App.3d 580, 31 Ill.Dec. 294, 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, 91 S.Ct. 547, 557, 27 L.Ed.2d 543; People v. Pendleton, supra.) An exception to this rule, postulated by the United States Supreme Court in Oregon v. Kennedy, supra, 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." (456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416.) The Kennedy standard has been adopted by this court. People v. Franklin (1983), 119 Ill.App.3d 899, 906, 75 Ill.Dec. 563, 457 N.E.2d 1005; People v. Clark (1984), 124 Ill.App.3d 14, 20-21, 79 Ill.Dec. 427, 463 N.E.2d 981.

The circumstances 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 mid-sentence. 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, ¹ 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 based on a good faith misunderstanding. The Kennedy standard, therefore, has not been satisfied. Accordingly, we affirm the circuit court's finding that double jeopardy does not bar reprosecution of defendants.

II.

The second issue on appeal, whether the circuit court properly denied defendants' motion for a discharge pursuant to the Illinois speedy trial provision (Ill.Rev.Stat.1983, ch. 38, par. 103-5), ordinarily is deemed a nonappealable interlocutory order. (People v. Miller (1966), 35 Ill.2d 62, 219 N.E.2d 475.) Because the appeal on the speedy trial issue is coupled with an appeal on double jeopardy grounds over which this court has clear jurisdiction (87 Ill.2d R. 604(f)), we elect to exercise jurisdiction over the speedy trial issue in pursuance of efficient judicial administration. While not specifically applicable, that policy is evident in Supreme Court Rule 366(b)(2)(v) (87 Ill.2d R. 366(b)(2)(v), Committee Comments), and in Robbins v. Professional Construction Co. (1978), 72 Ill.2d 215, 222-23, 20 Ill.Dec. 577, 380 N.E.2d 786. (See also, People v. Berland (1978), 74 Ill.2d 286, 310, 24 Ill.Dec. 508, 385 N.E.2d 649; People v. Lilly (1974), 56 Ill.2d 493, 309 N.E.2d 1; Supreme Court Rule 615(b)(2) (87 Ill.2d R. 615(b)(2)).) To require the completion of the new trial before the inevitable review was sought would be unrealistic, uneconomic and a waste of human resources under the circumstances of this case.

On the merits of the speedy trial issue, we find that defendants' rights were not violated. Although the circuit court concluded that the term began when the appellate court mandate reversing defendants' original convictions was spread of record on April 22, 1982, under Illinois law, the time for computing a speedy trial violation begins on the date that the appellate court mandate is filed in the circuit court. (People v. Dodd (1974), 58 Ill.2d 53, 317 N.E.2d 28; People v. Worley (1970), 45 Ill.2d 96, 256 N.E.2d 751; People v. Baskin (1967), 38 Ill.2d 141, 230 N.E.2d 208; People v. Nolan (1981), 102 Ill.App.3d 895, 58 Ill.Dec. 403, 430 N.E.2d 345.) In the instant case, therefore, the term began on the mandate filing date, March 18, 1982.

On March 18, 1982, defendants were in custody. The applicable term within which trial should have commenced was 120 days. (Ill.Rev.Stat.1983, ch. 38, par. 103-5(a).) Defendants moved to reinstate bond and demanded a speedy trial on May 21, 1982. Pursuant to the bond motion, one defendant was released from custody on June 14, 1982 and the other on June 24, 1982. Neither defendant repeated his demand for trial upon release. Nevertheless, defendants' release from custody changed the applicable term during which they were to be brought to trial to 160 days. (Ill.Rev.Stat.1983, ch. 38, par. 103-5(b).) Contrary to the State's contention, defendants' failure to renew their demand for trial upon their release did not prevent the triggering of the 160-day term because their demand had been made simultaneously with their bond motion; to require a new...