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NO. 96-CA-003242-MR COMMONWEALTH OF KENTUCKY APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE WILLIAM E. MCANULTY, JR., JUDGE ACTION NO. 94-CR-473 APPELLEE OPINION REVERSING *** *** *** APPELLANT

V.

JOHN PATRICK DOOLAN

BEFORE: WILHOIT, CHIEF JUDGE;1 COMBS and JOHNSON, JUDGES. JOHNSON, JUDGE. The Commonwealth of Kentucky (Commonwealth),

appeals from an opinion and order of the Jefferson Circuit Court entered on January 23, 1997, that dismissed with prejudice on double jeopardy grounds, two counts of robbery in the first degree against the appellee, John Patrick Doolan (Doolan). reverse. On February 23, 1994, Doolan was indicted on three counts of robbery in the first degree, Kentucky Revised Statute (KRS) 515.020; two counts of burglary in the first degree, KRS 511.020; sexual abuse in the first degree, KRS 510.110; and persistent felony offender, first degree, KRS 532.080. The We

Commonwealth moved the trial court to dismiss the two burglary

Chief Judge Wilhoit concurred in this opinion prior to his retirement effective November 15, 1997. Release of the opinion was delayed by normal administrative handling.

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counts on July 7, 1994. separate robberies.

The remaining charges stem from two

The first robbery occurred on July 21, 1993, at Marco Polo Antiques, Louisville, Kentucky, when a man entered the business, held Cheng Shen (Shen) at gunpoint, threatened her, and demanded money. Shen identified Doolan as the man who had spoken

with her manager approximately one hour prior to the robbery. Both she and the manager subsequently identified Doolan in a photographic lineup as the robber. The second robbery occurred on October 19, 1993, at Howard & Company, Louisville, Kentucky, when a man entered the business and robbed Novella Boehnke (Boehnke) and Anita Heim (Heim). Boehnke contacted Louisville police over a year later in

December 1994, after seeing Doolan on an episode of "Louisville's Most Wanted." Both Boehnke and Heim subsequently identified

Doolan in a photographic lineup. Doolan was first tried on all counts on July 5, 1994.2 Doolan orally moved the trial court to suppress Boehnke's identification of him from "Louisville's Most Wanted." court ruled that Boehnke could testify that she viewed a photograph of Doolan on television, but she could not identify the program. Boehnke did not violate the order. The trial

Doolan was found guilty on all counts and sentenced to prison for fifty years. The Kentucky Supreme Court reversed

Doolan's conviction in an unpublished opinion (case #94-SC-633)
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The first trial was presided over by Judge Edwin A. Schroering, Jr. (Judge Schroering). 2

on May 23, 1996.

The Court remanded the case for new trials with

instructions that counts one and three of the indictment (the Shen robbery) be severed for a separate trial from counts four and five (the Boehnke and Heim robberies).3 Judge Schroering,

who, as stated in note 1, had presided at the first trial, recused himself from the case, and Judge William E. McAnulty, Jr., was randomly assigned to the case. four and five began on November 16, 1996. Doolan renewed his motion to suppress Boehnke's identification of him from "Louisville's Most Wanted." Judge The retrial on counts

McAnulty ruled that the law of the case controlled and the previous judge's ruling which had gone before the Supreme Court would stand. Boehnke testified first, stating that she was shown

two photographic lineups, that she did not identify Doolan in the first lineup, but that in the second lineup (which was given as a result of seeing Doolan's photograph on a television program) she did identify him. Boehnke did not mention the name of the

program during her testimony. Heim testified next, stating that she, too, was unable to identify Doolan in the first photographic lineup, but she did identify him in the second lineup. During cross-examination by

Doolan's trial counsel, Heim stated that she was aware that Boehnke had seen Doolan's photograph on "Louisville's Most Wanted."

Doolan was acquitted of counts one and three in a jury trial on December 12, 1996. 3

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The trial court then held a bench conference. court questioned the prosecutor, Assistant Commonwealth's

The

Attorney Stacy Greive, as to whether she had instructed Heim not to mention "Louisville's Most Wanted." Ms. Greive stated that

she was unsure as to her exact instructions to Heim since the television program did not arise in her testimony in the original trial. The prosecutor also stated that Heim's reference to the

program was a surprise, given that the information was elicited on cross-examination when her direct examination had not broached the subject. On the basis of Heim's testimony and the order suppressing the naming of "Louisville's Most Wanted" in witness testimony, Doolan's counsel moved for a mistrial. The

Commonwealth objected, stating that the answer was forced by the questioning of Heim by the defense. Judge McAnulty questioned

Heim outside of the presence of the jury to determine the instructions Heim was given regarding the limits of her testimony. Heim stated that she did not specifically remember

whether the prosecutor told her she was not to mention the program's name prior to the current trial; however, she thought she remembered being told not to do so before the first trial. The trial court granted Doolan's motion for a mistrial. The Commonwealth moved the trial court to make a specific finding that it was a manifest necessity for the trial court to grant a mistrial and that the Commonwealth's conduct was not intentional in bringing the name of the television program 4

into the trial.

Doolan moved the trial court to dismiss the case

with prejudice, arguing that the Commonwealth's negligence caused the mistrial. On November 15, 1996, the trial court held a The prosecutor said that after

hearing on the parties' motions.

reviewing her notes of her meeting with Heim two days before trial, she strongly believed she had informed Heim not to mention the name of the television program, that she had instructed Heim not to mention several other things, and that Heim's response was inadvertent as a result of the cross-examination question. The

trial court ordered that counts four and five be dismissed with prejudice. The trial court entered a written opinion and order on January 23, 1997, wherein it found the following: (1) the prosecutor was clearly mistaken in her belief that she advised Heim not to mention "Louisville's Most Wanted"; (2) the prosecutor did not intentionally cause Heim to violate the evidentiary ruling; (3) the prosecutor stated in court, prior to the trial, that all witnesses were advised of the evidentiary ruling; and (4) the prosecutor had not advised all witnesses of the ruling suppressing the mentioning of the television program. The trial court ruled that the prosecutor's misrepresentation was fundamentally unfair to Doolan and had resulted in the court having to grant a mistrial; therefore, the double jeopardy rule prevented Doolan from being tried a second time. followed. This appeal

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The Commonwealth argues that the double jeopardy clause is not applicable, and that Doolan can be tried again because the damaging testimony which resulted in a mistrial was elicited by Doolan during cross-examination, and was not the result of any intentional provocation. Doolan contends that the double

jeopardy clause bars him from being retried because the Commonwealth was negligent in not instructing its witnesses to adhere to the trial court's evidentiary ruling. The Fifth Amendment to the United States Constitution and

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