*1 ILLINOIS, THE PEOPLE Plaintiff-Appellee, OF THE STATEOF SEAMAN, Defendant-Appellant. TERRY Fifth District No. 5-88-0357 Opinion August filed 1990.
RARICK, J., specially concurring. Kuehn, Rhein,
Clyde Belleville, appellant. of L. Kuehn & for Baricevic, Attorney, (Kenneth John Boyle, State’s Belleville R. Norris, Jr., Stephen Raymond Buckley, Attorneys E. F. all of State’s Office, Appellate counsel), People. Prosecutor’s for the JUSTICE WELCH delivered the of the court: opinion Defendant, Seaman, from on March Terry appeals his convictions murder, on counts attempted battery, aggravated armed following violence trial held in the circuit court of St. jury Clair The County. count, found him but ill on each jury guilty mentally and he was sentenced on the counts of mur- concurrently attempted der and armed violence to nine in the of Correc- years Department tions. following
Defendant raises the issues on appeal: (1) whether the Illinois for a verdict of providing special law constitutional; ill guilty mentally but
(2) whether statutory right trial was vio- speedy lated such that his motion for discharge granted by should have been court; the trial
(3) whether the admitting testimony trial court erred State’s expert insanity;
(4) whether the trial court erred the State’s motion granting cause; remove two prospective jurors (5) whether the State failed to reasonable doubt prove beyond that the defendant ill at the time of the incident such was mentally ill mentally verdicts him were jury’s finding against weight the manifest of the evidence. male was married at the time 25-year-old defendant is who victim,
of the incident to the Seaman. had a They two-year-old Jonna Nicole. daughter,
At the unconscious age lying the defendant had been found in a street in Iran where he had been with his Prior to living parents. A student. straight this incident the had been a nearly D’s, However, incompletes, turned to F’s and year grades within a with tem- changed. diagnosed and his behavior He was later markedly His mother damage. after poral epilepsy lobe an EEC indicated brain left a note writ- incident school when he had during high recalled an to a going ten out of the house to avoid in his own blood and sneaked with his friends that eve- being dinner after he had insisted on family *4 was as- the defendant’s bizarre behavior ning. She also testified that use of alcohol. sociated with from school 1981 but diploma high
The defendant received his Following in order to do so. to attend summer school required delivering papers obtaining job he until high unemployed school was for the He married Jonna in September Belleville News-Democrat. 1984, and Nicole was born a later. The defendant took care of year collected for his route in the baby during day, early evening, and awoke at 2 a.m. so that he could deliver the papers route. The defendant had left that and had recently job job obtained adults, with a sheltered care workshop stocking gro- for handicapped cery shelves at the Scott Air Force Base Commissary.
In 1987, the August couple began having marital One problems. evening wife, after an argument with his the defendant to a lo- went cal home, tavern and consumed one beer. When he returned the argu- resumed, ment and he began slashing some their furniture awith knife. When started the defendant baby crying, stopped slash- ing, put the back to and then baby sleep slashing. resumed the A few weeks later another argument with his wife the defendant punched eye. her Jonna then left with Nicole and moved in with her parents. She obtained an order protection and filed for di- vorce in late September 1987.
On October on a Belleville busy highway during afternoon hour, rush Jonna Seaman noticed the defendant’s car behind her. At the intersection he to her called over pull they so could talk. When refused, she pulled car, defendant in front of her her forcing over pull on the shoulder highway. a fish- slipped ing knife in the sleeve his coat and went back to his wife’s car. They argued for a short time while Jonna was still seated in her car. When the defendant apparently dropped something and stooped to it pick Jonna she up, opened testified her car door and noticed the knife. Jonna pushed defendant with the door and attempted exit the area when the defendant began stabbing back, her in the say- ing that if her, he couldn’t nobody have could. Two passing motorists saw the assistance, altercation and came to Jonna’s but were unable to free her and the knife from the defendant’s until grip she had been stabbed a total of 22 times. Most of her wounds were to the back and chest area. She suffered a collapsed lung. Her most injury serious to her left finger. index At some point during the attack the defend- ant grasped blade of the knife rather than the handle and his hand was cut down to the bone and tendon. attack,
After the the defendant quietly waited for the He police. was reported to have had a blank stare on his face and to periodically twitch. The two responding reported calm, officers that he appeared spoke and understood their intelligently questions. gave He the police signed statement wherein he ,a explained the attack as a result of be- ing with his angry wife about their marital problems.
Later that he his from evening called mother and asked her to jail him bring Dilantin, his for prescription a drug to control his seizures. he Although told her he was in he jail failed to convey seriousness of what had His happened. mother assumed he had been arrested for violating the order of The protection. defendant was charged next day by information with attempted murder, armed criminal violence aggravated and His battery. parents learned of the incident that day when read the they newspaper.
The jail had physician given Ativan, the defendant a mild tranquil- izer, to relieve He was in an anxiety. kept isolation cell for fear that he would be harmed by prisoner another because of his bizarre behav- ior, or he that would commit suicide. Although held in originally lieu $75,000 bail, the State obtained an order bail revoking on October 29, 1987. given Notice was State in early November way discovery response, of defendant’s intent to claim the affirma- tive defense and of the defense’s expert witness in that re- gard, Dr. Daniel Cuneo, Cuneo. Dr. a clinical psychologist, examined the defendant for fitness to stand trial as well as insanity.
Dr. Cuneo originally found the defendant unfit to stand trial and so Attorney. informed State’s The State’s Attorney informed the that he attorney wanted to have the defendant examined for fitness. Dr. Cuneo later changed his on the defendant’s fit- opinion trial, ness for and this was also to the State’s conveyed Attorney. The State’s Attorney parte obtained an ex order from the court to have the defendant examined for fitness on December 1987. No written defense, motion served on nor was a record made of any to the hearing order, recited that prior entry which bona fide raised, doubt as to defendant’s fitness to stand trial had been Shuman to appointed Joseph Dr. evaluate defendant’s fitness to stand trial. Shuman,
Dr. a the defendant for fit- neuropsychiatrist, examined ness for His approximately report two hours on December 1987. on this examination was delivered to the State on 1987. December 1988. The court ready January defense announced for trial trial so that a on fitness could first held. The hearing continued the be expert on fitness was held and the State’s hearing February close the defendant that it wasn’t even “a call” and that opined kind of mental illness. Dr. Shu- any showed no serious symptoms give “guessti- man that he could hearing also testified at the fitness sanity. mate” as to the defendant’s for failure to discharge try
The defense filed a motion for this mo- of incarceration. The court denied days defendant after tion, insanity being on the affirmative defense of noting based State, it to the believed representations raised and Dr. Cuneo’s of the defendant’s fitness. The State raised bona doubt properly fide 24,1988. jury trial on March proceeded strike Following jurors voir dire State moved to two cause. The juror being charged burglary first had admitted with a he replied negatively agreed when asked whether understood with the innocent proposition person presumed proven unless The second crime and said guilty. juror had twice been a victim of a that he might prejudiced be of it. The court removed these because jurors over the defense’s objection. trial,
At the defendant testified that separation from *6 Jonna he going was not to work and was more than usual. drinking incident, On the of the day he had returned from work in the early morning, and after his wife had told him the phone that were they through, had consumed three two or rum and Cokes. He then went sleep.
The defendant testified that he had remembered Jonna acci- dentally jumped onto the knife stabbing but did remember her 23 or 24 times and did not hearing remember her scream. In spite what had he happened, still to ask planned custody for of their daugh- ter. Frost,
Cheryl a psychological consultant for the court system in St. Clair County, had seen the defendant on numerous occasions fol- lowing his arrest. She testified that the defendant knew he had done something wrong but did not how serious the appreciate incident had been.
Dr. Cuneo testified that he had examined the defendant on three occasions. diagnosed He having defendant as organic personality syndrome, abuse, aggravated alcohol by resulting from temporal lobe He epilepsy. testified that his examination indicated that defendant all five of had criteria for diagnostic organic personality syndrome: affective instability with severe mood swings, outrageous rage reaction, markedly impaired judgment, social marked apathy and indifference, and paranoid ideation. He an gave expert opinion the defendant’s mental disease or defect did not him to allow appreci- ate the criminality of his conduct when he stabbed his wife. He based his conclusion of legal insanity on the combination of the defendant’s epilepsy with use of alcohol. He further stated that the did not have to be a seizure at the having time of the incident but that the personality structure by caused the brain could ex- damage plain his behavior. He also opined that defendant was not guilty but ill his mental illness reason the mentally because major occurred; crime if one is ill, but he mentally would be impaired by damage, brain crime would be unrelated to the ill- mental ness.
Dr. Shuman State, testified as a rebuttal for the witness over ob- jection defense, that he had examined the defendant but once and that was for the purpose of fitness determining for trial. Shuman testified that in addition to this examination he had the po- reviewed lice reports, witness accounts and medical history and had concluded that the defendant’s behavior the attack was a loss voluntary of control. He stated that while the defendant had an ongoing mental illness in his disorder, seizure this would not his affect to un- ability the wrongfulness derstand of his conduct and his ability conform to the requirements of the law. He admitted during cross-examination that alcohol could affect the defendant than an differently ordinary person because the brain damage.
The defense moved to exclude instructions of law conforming to section 6—2 of the Criminal (Ill. Code of 1961 par. 2), which deals with criminal as men responsibility affected disorder, tal arguing that this law was an unconstitutional violation of process equal protection due under the law. The gave court these instructions over the objection of the de fense.
The first issue we shall address is whether the trial court erred in denying defendant’s motion for discharge violating trial speedy rights under section 103—5 of the Code of Criminal Procedure of which provides in pertinent part: *7 “(a) person in in this State Every custody for an of- alleged fense by shall be tried the court having jurisdiction within 120 days from the date he was taken into custody delay unless defendant, occasioned an by by examination for fitness or- Act, dered to Section 104—13 of this a fitness pursuant by hearing, an of unfitness to stand trial ***. by adjudication
[*] * * (d) not tried in accordance with subsections Every person (b) of this Section shall from (a), (c) discharged custody be 1987, 38, ch. (111. par. 103-5.) ***.” the de may by The issue of defendant’s fitness for trial be raised fense, State, before, or trial. If bona or the court after raised, to fitness has the court shall order a deter doubt as been fide 1987, Stat. (Ill. mination of the issue further. Rev. proceeding before 38, The court’s failure to make such de- 11(a).) inquiry par. 104— v. (Pate trial. right to a fair his constitutional a defendant of prives Ct. 815, 822, 86 S. 385, 15 L. Ed. 2d 375, U.S. Robinson (1966), doubt of a bona 836, The determination of whether 842.) fide of the trial the sound discretion fitness exists rests within to and evaluate judge, position who is in a observe superior 215, 148 Ill. 3d (1986), v. (People defendant’s conduct. Balfour under 225, 547, An for fitness ordered 498 N.E.2d examination Sonntag People trial term. speedy this section to toll operates 631, 3d N.E.2d 638. (1984), the issue of the In the case it was the State that raised instant 7, 1987. The record indicates defendant’s fitness on December that defense motion, acknowledges this oral and the State by was motion, that counsel had been counsel had no notice of the but states aware that the State was to move for a fitness evaluation going neither hearing; no There no record of expressed objection. any was However, the order present. defendant nor attorney trial had states that bona as to defendant’s fitness stand doubt fide been motion appeal parte raised. Defendant contends on ex for examination of the defendant to determine fitness for trial was faith, not him good depriving made in but for the of his purpose right trial. speedy into supreme parameters inquiry court has outlined the
whether defendant’s due have been violated process rights State’s request for fitness examination: case, proper delay purpose necessitated for
“[I]n ascertaining a defendant’s and mental sanity capacity be to criminal is a subjected prosecution permissible delay which or does the constitutional to a impair infringe upon trial, or speedy violate the statute enacted to implement However, constitutional provision. suggestion a mere arbitrary suffice, of insanity will not and whether such consti ground good given tutes a cause for in a case must be a matter delay court, resting within the discretion of the trial to be resolved from the facts circumstances it. re particular before On view, the will not unless the shows a ruling be disturbed record clear 19 Ill. 2d People (1960), abuse discretion.” v. Benson 166 N.E.2d 83. In v. Count
the defendant had as error that the State’s motion similarly alleged hearing fitness had been made for that the in purposes delay, formation before the trial court was insufficient to raise a bona fide trial, doubt as to his fitness to and as a result he entitled stand *8 to for want of within the term. The re discharge prosecution 120-day the viewing court held that trial court did not abuse its discretion in determining that bona doubt as to defendant’s competency had fide existed in granting the State’s motion such that defendant was entitled to discharge. The court noted the court appellate that aware of the defendant’s the past psychiatric disorders and State’s motion also presented new information that the defendant had re cently been transferred to after complaining Menard for evaluation hearing voices and visions. There was also no of in seeing evidence tent to in delay because two co-defendants the indictment were tried Count, as scheduled. v. 42 Ill. 3d at 437.
In
v.
People Hugley (1971),
the defendant successfully argued on
that the State’s motion
appeal
for
hearing
fitness
was made in bad faith and for
purposes
delay.
court
appellate
noted that the State’s
petition alleged that
defendant attempted to do violence
himself and
to
others and was ad
mitted
However,
to the
security hospital Menard.
at the time the
petition
entered,
was filed and order
the defendant had already been
released from Menard with a
that
finding
he was not in need of men
tal treatment. No notice of the
filing
petition
given
had been
Moreover,
the defendant or his
attorney.
petition
just
was filed
two weeks before the
term
have
120-day
would
run. The court found
that since no
for questioning
valid reason
the defendant’s
ability
petition
filed,
stand trial existed at
time the
it was not filed
faith,
in
that to
good
petition
and held
allow the
to toll the statute
would violate the
defendant’s
to a
trial.
speedy
People Hug
830-31,
3d at
ley,
At hearing on defendant’s motion for in the in discharge case, stant the court found that the State had raised bona doubt fide fitness, as defendant’s based on the that insanity fact had been raised as an affirmative defense and that expert defense had conflicting made as to the defendant’s representations fitness. We find that it was reasonable for the State to seek resolution of the fitness an insanity issue. We also find as had been raised as affirmative he already testify defense and Dr. Cuneo had determined that would legal as to the defendant’s the State did not raise a mere ar insanity, brought when it the motion before bitrary suggestion find, record, of intent to court. we based on no evidence Finally, on the of the State in the motion December delay part bringing term, find that the trial court days into the only 120-day circum- did not its facts and determining abuse discretion as to doubt a bona to raise it were sufficient stances before fide fitness motion the State’s granting fitness and *9 hearing. the admitting in court erred the next consider whether
We to An expert qualified sanity. on expert of the State’s testimony facts which inferences from drawing function of necessary the provide how However, no matter draw. not to competent the would be jurors or guess to permitted the will be experienced, expert skilled or v. Gas (Schwartz Peoples conjecture. on mere judgment state a based 826, 25, 31-32, 181 N.E.2d 2d (1962), 35 Ill. Light & Coke Co. not have been allowed should 829.) Defendant claims that Dr. Shuman fitness hear prior trial at the on at the since give opinion sanity an of for the purpose he examined defendant Shuman admitted that ing as “guesstimate” a give trial that he could fitness for but establishing trial that this ex at the Moreover, Dr. Shuman admitted sanity. to his of defendant he made for fitness was the examination only amination also re notes that Dr. Shuman However, the State prior trial. *10 trol was involuntary. Dr. Shuman based this opinion on the following facts: that the defendant remembered what happened; that the behav- ior was in response to a perceived provocation; and that defendant’s history partial seizures only would simple involve repetitive acts like smacking of or lips playing with buttons. Dr. Shuman admitted that the judgment defendant’s would be more severely affected al- by cohol; however, he reported that the defendant had not told him about use any of alcohol on the day of the incident. Cuneo,
Dr. hand, on the other found that the defendant’s mental disease prevented him from conforming his conduct to the require- ments of the law. He admitted on cross-examination that there are people with temporal lobe brain disorder who can conform their judg- ments to the requirements law, of the but stated that in the defend- ant’s case it was the combination of alcohol the organic and syn- brain drome which the prevented defendant from conforming his judgment to the requirements of the law.
Other than the defendant’s that he testimony had two or three al- coholic drinks at his incident, mother’s house the of the morning no other witnesses could corroborate that information. Defendant’s mother, Henderson, Patricia whose testimony substantiated the opin- ion that alcohol had been a trigger disease, for the mental the saw defendant that morning did not that defendant testify consumed any presence. defendant, however, alcohol her The testified that the alcohol was drunk at her and home that he then went to his own apartment to Neither sleep. Timothy Heil, nor Daniel Fahey the two
883 the rescue, alcohol on smelling victim’s recalled men who came to the alcohol concluded that was The jury apparently defendant’s breath. or that attack on Jonna factor for the defendant’s triggering alcohol of his by of aggravation because involuntary conduct was disorder. temporal lobe brain said, I had
The defendant testimony victim’s “[I]f moti the defendant was can!” indicates that nobody can’t have you, that her refusal to in the out of or and anger jealousy vated attack More provocation. to him their speak separation provided about angry that he was over, the defendant’s statement indicates police talk to him and that he remem unwillingness with about her Jonna her, and some of which some of which was intentional stabbing bered and Heil as well as that testimony Fahey was accidental. The officers, Dahm, that the defend indicated responding Stumph after the inci immediately ant and in control of his faculties was calm on twitching noticed a stare and dent. While one of rescuers blank incident, this consistent part of the defendant after the would be seizures, while prior with Mrs. Henderson’s of her son’s descriptions attack on Dr. Shuman’s opinion violent Jonna would not. was therefore corroborated witness tes sanity lay are ad timony concerning Lay opinions defendant’s mental condition. if missible on the issue of defendant’s at the time of the offense sanity or after the crime they shortly are based on observations made before 26, 35-36, Ill. 3d was committed. v. Bouchard 180 1007. N.E.2d It conflicting this case. expert testimony within the sound discretion of the trier of fact to resolve all contradic Ill. (Bouchard, tions in the to it. expert testimony presented accept 3d at The trier of fact is allowed part expert’s parts other testi any testimony reject it another or all mony; may accept expert’s opinion reject one over expert testimony testimony to conclude that the rely solely lay 35-36, sane. Ill. (Bouchard, *11 finding The in favor of defend 1007-08.) jury resolved this conflict ant of the the supported by sane at the time offense. This decision Seaman, of Timo opinion lay testimony of Dr. Shuman and the Jonna Dahm, Daniel Heil and and all of whom thy Fahey, Stumph Officers shortly testified the defendant’s actions or after the inci about dent. the of testimony supports
Likewise the above witnesses its beyond decision that the State met burden of reasonable proving was ill of the mentally doubt that the defendant at the time commis- sion of 6—2 the (c) the crime. As defined in subsection of section of 1961, Criminal Code of mental illness means a substantial disorder of behavior thought, mood or which afflicted the at the time of person the commission of the offense which that impaired person’s and judg ment but not the extent he was to appreciate that unable the wrongfulness of his behavior or conform his conduct to the require 1987, ments of (Ill. 38, the law. ch. par. 2(c).) Rev. Stat. Both ex 6— defendant, perts testified to a mental of the as disorder the part though one it as brain characterized and the other organic syndrome as temporal disorder. Both of alcohol lobe testified that the use would trigger over which control, conduct the defendant would have no or that the would judgment severely be more affected that thereby. Both testified the mental disorder itself would not neces sarily mean that the defendant conform would be able to his judg law, ment to the addition requirements the but that the of alcohol would that severely judgment. affect determined jury apparently that alcohol did not in play part causing defendant’s attack on Jonna Seaman. We therefore the decision jury’s find but ill guilty mentally was not against manifest or that weight the evidence its basis was passion prejudice. or argues Defendant next applied as to defend- constitutionality, ant, of the Illinois law of and mental illness. Defendant con- insanity tends 6—2 that sections Code of 1961 and 4(j) Criminal 115— Code of Criminal Procedure of 1963 violate his to fundamen- tal fair treatment under the clause of the United process due States clause of the equal protection Illinois Constitutions under fourteenth to the States amendment United Constitution. in attempted
Defendant notes that to the assas response legislature sination of Reagan President Illinois revised defense, its laws on the shifting proving burden insan to the ity defendant and verdict of interjecting compromise guilty ill mentally (hereinafter, GBMI). urges but Defendant that the statute should be reviewed for due process equal protection purposes un scrutiny der a strict rather than analysis a rational basis anal merely fair because a treatment in the ysis right, judicial sys fundamental tem, is same argument unsuccessfully involved. This made protection purposes People Kaeding (1983), defendant for equal concerning 98 Ill. 2d section 5—2—6 the Uni Corrections, sentencing provides fied Code of section which differing (Ill. treatment of defendants found ill. mentally 2—6.) The court outlined the par. equal review follows: judicial analysis as protection
885 whether determining to their role restrict ‘courts “Generally, to designed rationally is classification legislative the particular legis When purpose.’ State legitimate further a [Citations.] is directed or rights constitutional threatens fundamental lation ex will then—courts only then—and group, ‘suspect’ towards a ‘ to narrowly “tailored” that it is to insure amine the statute compel in furtherance objectives’ legitimate serve [citations] 245-46, 456 98 Ill. 2d at (Kaeding, interests.” ling government 16.) at N.E.2d holding argument, the strict scrutiny court supreme rejected
The right. constitutional a fundamental did not threaten section 5—2—6 likewise believe N.E.2d at We Ill. 2d at 456 (Kaeding, 98 right, not threaten a constitutional and 6—2 do 4(j) that sections 115— has a classification to the GBMI inquiry limit our whether and we will the impermissi to demonstrate It is defendant’s burden rational basis. v. (People Smith of the classification created. ble nature has advanced 101, 106.) Defendant 805, 812, 465 N.E.2d Ill. defendant the statute deprives us that persuade in his to nothing brief fact, In we are situated. similarly citizens among treatment equal clas argument impermissible what to discern from defendant’s unable 6— hold that sections Accordingly, involved. we sification here be may under the of equal protection do not defendant deprive 4(j) 115— law. that a fundamental con determined already As we have 6—2 and our 4®, sections stitutional is not threatened involve the only need process purposes review for substantive due a statute vio determining whether of the law. When reasonableness the statute must determine whether lates the court process, due has deter legislature the evils designed remedy to reasonably welfare; health, general safety, the public mined to be a threat to to designed reasonably that the statute be due process requires only accomplish means of that it be the best its not accomplish purposes, 105-06.) 811, 465 N.E.2d 3d at (Smith, them. ing ill guilty mentally but v. found that court in Smith because People goal accomplish legislative rationally designed clearly statute is guilty by found not erroneously of persons the number reducing in need of such defendants as to characterize insanity reason of (Smith, process. due treatment, the statute does not violate 106.) Notwithstanding, App. 3d at Smith, argu v. People of the court reasoning us to urges reject goal accomplishing just more than ing process requires that due wit, per- the number of mind, reducing has in legislature which erroneously sons found not Defendant ar guilty by insanity. reason gues that the ill was not guilty mentally designed law reduce error but reduce the number verdicts of reason of in guilty by sanity (hereinafter, Defendant NGRI). suggests that insertion of the verdict, GBMI in effect, supplants or abolishes defense. However, Smith, as court noted but men ill does tally statute not chill assertion of the insanity defense be *13 cause of a purported compromise verdict since the defendant must first be found of the crime guilty and then found sane before legally may this verdict properly by (Smith, be considered the jury. Ill. 811, 3d 106.) at we that to As believe be the more we find appropriate inquiry, the Illinois law on insanity and mental on a rationally legitimate legislative illness based purpose and that it does not violate defendant’s due process. argues Defendant next that 4(j) sections 6—2 and violate due 115—
process reasons of for The Illinois which vagueness. statute defines the composing elements the verdicts of not reason of guilty by insan- ity and but ill provides in follows: guilty mentally pertinent parts as
A“(a) person is not criminally responsible for conduct if at conduct, the of time such as a of result mental disease or men- defect, tal he substantial lacks either to capacity appreciate the criminality of his or to conduct conform his to the conduct re- of quirements law.
(b) terms ‘mental disease or mental do defect’ not in- clude an only by repeated manifested criminal or abnormality otherwise antisocial conduct. A at
(c)
person who,
the time of the
of a crimi-
commission
offense,
nal
suffering
not insane but was
from a mental ill-
ness, is not
of
relieved
criminal
conduct
responsibility
and
be
but
ill.
may
guilty
found
mentally
***
‘[Mjental illness’
means a
disorder of
(d)
substantial
mood,
at the
or behavior which afflicted a
time
thought,
person
of the commission
the offense
which
that
impaired
per
of
not to
extent that he
unable to
judgment,
ap
son’s
but
the
is
the
of his
or
unable to con
preciate
wrongfulness
behavior
is
the
Ill.
requirements
form his conduct to
law.”
Rev. Stat.
38,
6—2.
par.
ch.
is
forth in section
which in
4(j),
part
The GBMI verdict
set
115—
provides:
defense of insanity
presented
affirmative
has been
“When
trial,
court,
evidence,
where warranted
by
provide
jury
guilty
shall
with
verdict form
special
also
ill,
separately
and shall
charged
as to each offense
mentally
but
ill
mentally
but
special
guilty
instruct the
that a
verdict
jury
verdict,
spe
that such
instead of a
general
be returned
may
finding by
jury beyond
a unanimous
requires
cial verdict
the acts
committed
that
the defendant
reasonable doubt
insane at
legally
that the defendant was not
charged and
he
mentally
of those acts but that
time of the commission
4(j).)
ill
(Ill.
par.
at such time.”
115—
face,
verdict,
the GBMI
on its
is an unconstitu
argues
Defendant
and mis
tional denial of due
because it
irrelevant
process
interjects
inno
guilt
the determination of
or
leading
thought
elements of
into
reasoned,
cence,
in
and fair
logical,
its
detracts from
application
determination on the
or innocence. These same ar
guilt
basic issue
the court in
guments
rejected by
were made
the defendant and
v. DeWit
Defendant that on 6—2 urges instructions based section are confusing to the because “mental illness” for of jury purposes while defined, GBMI is “mental disease or defect” for of NGRI is purposes i.e., not defined in an except negative, “does include abnor 'mality only manifested criminal or otherwise antisocial by repeated conduct,” and this makes defendant’s on all proof insanity burden However, 2(a) harder. we believe that section further defines 6— legal test for “he lacks substantial either to insanity: capacity ap preciate criminality his conduct or conform conduct to 1987, 38, (Ill. par. 2(a).) of law.” Rev. Stat. ch. requirements 6— As another court of review concluded when faced with this recently identical this not be invalidated argument, provision merely should be cause it “mental or mental defect” attempts to describe disease rather than to list each and every condition which fall into may this category. v. (People Kapsalis (1989), 186 Ill. 3d App. 1323,
N.E.2d 1328.) We likewise decline to find section 6—2 violative of due process for vagueness reasons.
Finally, urges requiring prove defense to insanity by preponderance of the evidence violates the process due clause of the United States and Illinois Constitutions. The constitu tionality which, the statute 1984, January shifted the burden of proving to the defendant insanity by a preponderance of the evidence has previously and unsuccessfully been challenged on appeal these grounds. same For this example, court upheld has the constitutional ity of section 3—2 of the 1961, Criminal Code of which sets forth that if the affirmative defense raised, insanity defendant bears the burden of proving aby preponderance of the evidence his insanity at the time of the (Ill. 1987, 38, offense. Rev. Stat. ch. In par. 2.) 3— v. People Hightower (1988), 678, 172 Ill. 3d 526 N.E.2d we held that the insanity statute which shifted the burden of in proving sanity the defendant guarantees did not violate of due un process der either the United States or Illinois Constitutions. (People v. Hightower, 693-94, 3d N.E.2d at Section 2(e) of the Criminal Code of which also refers to the shift of the burden of proving defendant, to the insanity states:
“(e) When the defense of has insanity presented been the trial, the burden of is on the proof defendant to prove by preponderance of the evidence that the defendant is not by reason of However, the insanity. proof burden remains on prove State to beyond a reasonable doubt each of the ele ments of each of and, the offenses charged, trial jury where the defense has insanity presented, been the jury must be it may instructed that not consider whether the defendant has met his of proving burden that he is not reason of guilty by until and unless it has first determined that the State has proven the defendant guilty beyond a reasonable doubt of the offense with which he is charged.” (Ill. 2(e).) par. 6— of this constitutionality section of the Criminal Code has been up
held in McDarrah
808, where the rejected argument court the defendant’s *15 shifted burden of proof defendant to the improperly required disprove mens rea element of the crime. v. McDarrah 175 Ill. (People (1988), 295, 815; 3d at App. (1988), see also v. Martin 428, 1085, 436, 3d 519 N.E.2d 1090 defendant (requiring
889 of evidence by preponderance of defense to affirmative prove shifted that the to hold also decline We process).) not due did violate rights. due process violates proof burden of law, of this constitutionality the are upholding Because we instruc jury patterned the Illinois submitting in there was no error law, the jury. this to tions, state correctly which in erred trial court that the argues Finally, jurors prospective to remove two motion granting the State’s within allowed rests should be for cause challenge cause. Whether will not court, its trial determination the sound discretion evidence. weight is the manifest against unless it be set aside 721, 232 Ill. 2d N.E.2d (1967), Harris (People v. juror preju to the to show objecting is on the party The burden 846, 3d (People v. Underwood juror. dice of case, State articulated the instant 1086.) In 439 N.E.2d that, in to Jackson’s addition being its to Jackson as objection juror person pre proposition with expressed disagreement at one charged had been unless Jackson proven guilty, sumed innocent preju shows possible This second factor alone burglary. time with a a per to Eise involved objection juror dice The State’s to State. he might a crime and said that son been the victim of who had twice it, crying broke down juror but also who prejudiced be because possible the State showed when about it. find that questioned We instability emotional juror’s this as well since prejudice juror with (cid:127)In the evidence. assimilating him from prevented rationally could have short, allowing its discretion we find that the court did abuse jurors. to these challenges regard for cause with two State’s reasons, of the circuit court of St. foregoing judgment For the Clair is affirmed. County
Affirmed.
CHAPMAN, J., concurs. RARICK, concurring: specially
JUSTICE the manner in concern with my I write separately express the defendant examined which State the order have obtained any or serve any type pleading for fitness. The State did not file the ex seeking parte ex prior notice defendant or his counsel upon condoned, espe are not to be amination order. Such ex orders parte Ill. People Bryant (1988), cases. cially (See, e.g., criminal has to be (defendant *16 present at all proceedings affecting his rights).) substantial At least defendant or his counsel should have present been for the State’s pre sentation of the motion. Because section 104—11 of the Code of Crim inal Procedure of (Ill. par. 11) al lows the court itself to raise the issue of a defendant’s fitness for trial time any and because it fails to set forth any procedure obtain ing such an examination, my concern does not rise to the level of dis sent on point. Furthermore, this I with the agree majority opinion on all other issues. I too see no bad-faith motive for obtaining the fitness order, examination I do see great potential for abuse in handling such orders in the manner the State pursued reasons, here. For these I concur. specially
In re MARRIAGE OF (Burger, Fombelle, LEOTA J. BURTON et al. Bax- ter, Zachry Rathbun, P.C., & Petitioner-Appellant, Burton, v. Leota J. Re-
spondent-Appellee). Fifth District No. 5—89—0693 Opinion August 30, 1990. filed notes and his own history medical reports, viewed the eyewitness for the sanity an on reaching opinion from the examination prior trial. sanity as to a defendant’s give opinion A an psychologist may actions and defendant’s based his examination of the defendant upon (1986), v. Hickman (See People on the the crime. day 1041, 1045-46; Martin 195, 200-02, People see also v. 3d 492 N.E.2d 1085, A 1089.) 519 N.E.2d review (1988), 3d concerning for his testimony opinion Dr. Shuman’s in foundation the inescapable at the not leave us with sanity defendant’s trial does the sanity. that Shuman as to defendant’s On guessing conclusion was was opinion sanity factual for his we find basis contrary, most, argument can make an about outlined. At defendant thoroughly opinion with opinion, comparison of Dr. Shuman’s weight Cuneo, insanity. Dr. on expert defense issue, next whether the us to a consideration of the This leads doubt. mental was reasonable beyond defendant's illness established whether jury Before the could have considered the defendant ill, .it determined that mentally must have guilty court rather than insane. As the noted supreme sane 176, 972, the defendant 124 Ill. 2d while Fierer evidence, of the preponderance must prove insanity by now a reasonable doubt of proof beyond State’s still includes burden 188, 124 Ill. 2d at sanity. (Fierer, defendant’s form of Moreover, special verdict when court submits but mentally ill to the after jury determining that the evidence so warrants, the must jury unanimously find that the defendant was not insane, legally ill, but mentally at the time of commission of the acts charged. Ill. par. 4(j). Defendant argues that the State failed to establish sanity beyond rule, reasonable doubt. As a general the question of the sanity the time of the offense is a question of fact for the jury and the jury’s finding the issue of will not be dis turbed unless it is so manifestly against weight evidence as to indicate the verdict was passion based on or prejudice. People v. Spears (1978), 63 App. Ill. N.E.2d 428. The State’s Shuman, expert, Dr. found no organic brain syn- drome, as Cuneo, did Dr. the defense Dr. expert. Shuman did admit that the medical history showed an ongoing mental illness in his sei- disorder; zure however, he felt this had nothing to do with the inci- dent. He opined that with seizure disorder there is an involuntary loss control, but in this case there was no evidence that the loss of con-