*1 аn executor of an estate not file a claim principle where does against relationship a third because between executor party cordial the of limitations is tolled. party and third remains statute reasons, For the above we find trial judgment granting summary judgment proper. court favor of defendant was Accordingly, County the circuit court of Cook judgment affirmed.
Affirmed. BUCKLEY, JJ.,
CAMPBELL and concur. ILLINOIS, Plaintiff-Appellee, v. THE PEOPLE THE STATE OF OF STACK,Defendant-Appellant. RICHARD Division) (1st 1 — 87—2212 First District No.
Opinion filed March *2 CAMPBELL, J., concurring. specially *3 Richards, Defender, Stone, Chicago (Stephen of L.
Randolph Public N. Defender, counsel), appellant. of for Public Assistant Goldfarb, (Renee L. Attorney Chicago Carol O’Malley, Jack Lavin, Attor- Gaines, Mahoney, I. Assistant State’s Janet C. and Michele People. neys, counsel), for the of the court: opinion delivered the
JUSTICE BUCKLEY 1252 People v. Stack In (Stack grounds on various I), and remanded this court reversed natural life sen and concurrent convictions defendant Richard Stack’s son. Our of his wife and infant for the brutal murders imposed tences in of this cоurt opinion part court affirmed supreme II), and remanded (Stack Stack 112 Ill. 2d N.E.2d trial, which held a second The circuit court the case for retrial. Because we believe guilty again. being found resulted time, we reverse a second a fair trial denied defendant the State has trial. remand for a new dis- exception major with one adopt, brevity, For purposes I. Stack court given by of facts below, the recitation cussed trials, no the same in two different testimony While witnesses’ will be testified in this case did not in Stack testify and while witnesses who I, the recitation of facts in I is similar for sufficiently purposes Stack of this appeal. Bohr, we note is the of John whom the exception testimony
State called Bohr at defend- during rebuttal case. did testify ant’s first trial. We summarize his as follows. Bohr,
According to while imprisoned Maynard Psychiatric Department charges Unit the Illinois of Corrections on of violation of probation, theft and he aggravatеd battery, and defendant had daily regarding conversations the deaths of defendant’s wife and in- fant son. Defendant go informed Bohr on how to insane acting about get so as to (NGRI) verdict. Defend- not-guilty-by-reason-of-insanity ant told Bohr that Bohr along should walk and talk aloud as if he were talking there, to someone who was not tell the doctors that (Bohr) sees devils and coming demons out of and also to stand people in the yard singing occasion, himself. On more than one told him that his plan get verdict, was to a NGRI go then to Chester Mental Health Facility acting start normal so he re- could be leased.
Bohr murders, testified that before the nag- defendant’s wife was ging defendant drinking about too much and his inability to hold a job. Defendant told Bohr he just exploded and stabbed wife death with either a broom or stick pool against and threw his son wall got because he in the way. Defendant told Bohr he knew he was so trouble he went to the window where he yelled рolice he had waiting been and had just killed his wife and child. After leav- ing Maynard, Bohr wrote a letter to then Cook County State’s Attor- ney Richard M. Daley and in the repeated letter the conversations he had with defendant.
firstWe address defendant’s contention that the State failed to rebut his defense proof beyond reasonable doubt. I, Stack we rejected defendant’s on the sufficiency argument ground that the evidence presented a classic of fact to be resolved question by a jury noted, after a fair trial. As presented evidence the State *4 to counter defendant’s defense in the two trials was substan same; tially Bohr’s testimony made the State’s case only stronger. Accordingly, again hold that the evidence in the presented second trial raised a question of fact which the to jury was entitled resolve against defendant.
II when, whether defendant was denied a fair trial We next address defendant, that repeatedly jury told according prosecution kill again” released” and "free to “automatically would be of prosecu- Defendant’s claim if the returned NGRI verdict. jury during discourse upon following torial is predicated error argument: State’s rebuttal Attorney]: John
“MR. DI BENNEDETTO [Assistant this He told that guy? you did he you Bohr. What tell about back, go get found going said. He’s is what the defendant Chester, out. go get and insanity, reason guilty by That’s the defendant said. what attorney]: Objection.
MR. KUNZ [Defense pool to take the cues— going MR. DI BENNEDETTO: He’s heard testimony. THE The COURT: Overruled. pool these cues He’s to take going MR. DI BENNEDETTO: chalk another one. go up out of here and right Objection. attorney]: MR. KULL [Defense you That’s chance have MR. DI BENNEDETTO: take— Objection.
MR. KULL:
THE Sustained. COURT: like this. guy BENNEDETTO: From
MR. DI Sustained, counsel. THE COURT:
* * * have gentlemen, you Ladies and MR. DI BENNEDETTO: Stack, over for Mr. mission isn’t the mission because the end he what until does he’s on be over the mission that won’t and of insan- reason guilty He a case by he told Bohr. beats Chester. going to he out the door after gets ity, Objectiоn. MR. KULL:
THE COURT: Sustained. That’s his mission. DI BENNEDETTO:
MR. to dis- instructed The will be THE Sustained. COURT: the last comment. regard that’s gentlemen, BENNEDETTO: Ladies
MR. DI only you way penitentiary. out mission he laid not to win is mission, way you can stop can He could conform this case. He beat let him win. cannot ev- from the doing. That’s clear He knew what conduct. *5 171 are let him too se- consequences idence. You can’t win. vere.”
The trial on this note. ended I Stack our in our implicates present how opinion
We first address I, In Stack this court cited as error of the above comments. analysis closing statement that prosecutor’s repeated during argument the ” if the allowed him would ‘have to live with’ “society there the state- to Defendant contended that escape responsibility. that if was for rea- acquitted ments the into he believing misled immediately of to insanity, society. sons would be returned 950, People v. Wilson Ill. Relying App. on 120 3d 458 (1983), 1081, N.E.2d we ruled over a dissent that the remarks complained-of This not ruling by supreme opin werе error. affected the court’s II Stack and, in accordingly, (See ion the law of the case. became Stack, 112 Ill. 2d 314, 493 at 345.) at N.E.2d In this defend appeal, I, Stack ant that in notwithstanding ruling contends court’s the prosecution violated the law the case the comments. repeating law of case applica We believe the the doctrine has limited question light tion the comments in in Under testimony. Bohr’s doctrine, the where the evidence on a is the same subsequent appeal so, as on the first or or prior appeal, substantially adjudica the v. tions of (People Lyles prior appeal become the law of the case. 370, (1990), 376, 396, 208 Ill. App. 3d 567 N.E.2d We believe I, Bohr’s testimony, which was not Stack present that we requires Stack distinguish independently assess whether the prosecu torial comments question improper constituted comment on the consequences a NGRI verdict.
Although we distinguish Stack I on account of Bohr’s testi mony, again we nevertheless hold that State improperly has com mented on the of a NGRI consequences Contrary verdict. State’s belief, give prosecution Bohr’s testimony did license arouse fear the minds of fact jurors defendant could in walk if streets his “mission” again testimony were succeed. Bohr’s on issue time only sanity relevant of defendant’s at the (See 1979, 38, crime. (“A Ill. Rev. Stat. par. person ch. 6 — 2 criminally responsible if at time for conduct of such conduct ***”).) end, To this right had to make the prosecution every most of this insofar as it testimony sanity related to defendant’s time of the murders. went prosecution beyond We believe well this parameter, however, and instead used Bohr’s ham mer home the idea that verdict jury’s guilty stood between being again free to kill incarcerated. These being types 172 an inherent fear only play jury’s
of comments could man free. might dangerous set verdict 120 People (1983), v. Wilson holding, again To our cite support 950, 960-61, 1081, pro 458 prohibits Ill. 3d N.E.2d 1088. Wilson App. jury’s or convey, implicitly explicitly, secutorial comments which v. People in a release. See also may NGRI verdict result 1106; People 3d v. Brown App. Alerte 458 N.E.2d 1081; Etten People v. App. 104 Ill. 3d N.E.2d cf. 270, 274-75, 842, 847, cert. denied , 29 Ill. 3d 331 N.E.2d (1975) App. 2207; L. 2d Ct. , Ed. S. (1976) 425 U.S. 936, 944-45, 590-91. Hering (1975), assertion, cases, line which Contrary to the State’s Wilson I, persuasive despite prior ruling includes our Stack nevertheless *6 that defendant prosecution that the here did comment the fact rendition of a NGRI verdict. automatically upon released would be told the prosecutor only The State claims because right the road rather than could be set free sometime down disagree lessened. We nature of the comments is away, prejudicial prosecutor the fact ignores as this distinction purported set free. verdict could clearly the seed that NGRI planted proper invitation to find comments We also decline the State’s closing argument, to defensе counsel’s they response were because argued: who And more what’s importantly,
“MR. KULL [Defense counsel]: Stack, tells him says, flaw? Richard real real Well [sic] go I’ll insanity reason of go. guilty I’ll Ill found [sic] sane, and I’ll walk I’ll am convince doctors to Chester. the law is. out. That ain’t what Attorney]: Objection.
MR. State’s STOCK [Assistant THE Sustained. COURT:
MR. That’s not law. KULL: THE Counsel. COURT: argument. in their they
MR. It is what said KULL: is objection The sustained. Okay. THE COURT: MR. KULL: Fine. Counselor, don’t—
THE COURT: MR. It ain’t true. KULL: Judge, objection.
MR. STOCK: says Stack Richard he told what you MR. KULL: What happened. not what disregard it.” instructed will be
THE COURT: While defense counsel’s argument was itself do not improper, we be- lieve the intent underlying prosecutor’s comments in rebuttal was respond First, counsel’s comments. our notwithstanding decision I, in Stack the prosecutor throughout the entire trial pushed defend- rights ant’s fair trial to the limit. His comments in rebuttal are only one instance cannot, therefore, of this unsound trial tactic and have as their motive an intent to to defense counsel’s comments. reply Sec- ond, one of thе State’s themes in closing argument to emphasize Bohr’s not as to testimony, how it impacted defendant’s crime, time of the but what happen could to defendant after trial. A comparison of the State’s treatment of Bohr’s initial close and rebuttal reveals this much:
“MR. STOCK Ladies and Attorney]: gen- [Assistant tlemen, we also know what Richard Stack is about. What’s his plan?
John Bohr told you what Richard Stack’s is. plan Richard Stack Bohr, told John play role a little longer, play game a little I’ll longer; beat case. I’ll be found not guilty by reason of insanity.
I’ll go back to Chester. I’ll stay awhile, there and then I’m just going to convince the doctors that I’m sane because he knew he could convince the doctors that he was sane.
That’s Richard Stack’s plan. That’s the plan he brought into this courtroom.
[**] [*] You, folks, are going to have to make Richard Stack take re- It sponsibility. up folks, to you to stop Richard plan, Stack’s plan NGRI, be found go Chester, back convince the *7 doctor’s that I’m sane.”
Because we determine that
prosecutor’s
the
comments were not
an invited response to defendant’s closing argument, we distinguish
v.
People Myers (1966),
311,
35 Ill. 2d
297,
220 N.E.2d
and
v.
Fox (1970),
131 Ill. App. 2d
In Myers, defense argued counsel should not sen- jury tence defendant to death and should instead “gamble” that defendant would stay behind bars in a mental institution where he would present no problem to society. The prosecution responded by question- ing the jurors whether wanted to they gamble accept where defendant could be inevitably released and free to kill another. The prosecutor also that if replied occur, this inevitability were to the jury “ him, ‘[Gjood boy, and giving gun telling be defendant
would
”
John,
2d
(Myers,
kill another Carole Ballard’
35 Ill.
at
go out and
error,
to not
the court held
335).
finding
In
comments
constitute
argument.
legitimate
was invited
defendant’s
reply
that the State’s
35 Ill.
In defense counsel a NGRI verdict release where defendant still in not result defendant’s would insane, a found although The State responded sane. and it would machinery NGRI would be State’s subjected be released in two years, difficult to determine whether would days. rejecting weeks or as little as two two years, re argued contention that the State had would be NGRI, if the court little as two found found days leased as to defense response argu comments were an invited counsel’s Fox, 131 2d at 611- seriously ment prejudicial. and were N.E.2d at shows, Myers of Fox and holdings As the above discussion counsel has invited. comment which defense prosecutorial deal with Moreover, the response” not occur here. “invited a situation did Such which, here, operate be used to comments as justify rationale cannot him fair trial. prejudice deny to a defendant’s substantial error, comments were determined that Having prosecutor’s Prоsecutorial required. next ascertain whether reversal we must if new trial argument warrants reversal closing misconduct factor in the conviction. constitute a material improper comments 22, 28, 1355, 1358.) 566 N.E .2d (People Linscott contrary reached a verdict is whether the could have jury The issue 142 Ill. 2d at (Linscott, not been made. had the remarks improper that the say prosecu If court cannot reviewing at 566 N.E.2d to the defendant’s convic did not contribute improper tor’s comments Linscott, 142 Ill. 2d tion, order a new trial. the court should at 1358. case, mother and in with a emotionally charged an This was Although objections Day. murdered on Mother’s horrendously fant and the instructed dis sustained many of the comments were comments comments, continued with the prosecution regard the Moreover, boiler-plate subsequent, the court’s despite objections. sentencing or itself with was not concern instruction that damage. insufficient cure during deliberatiоns was punishment Criminal, 1.01(4) (2d ed. Instructions, No. Jury Illinois Pattern (See played prosecutor repeatedly done. The damage 1981).) man dangerous could set a fear that verdict inherent jury’s *8 it defendant, though might invited to even free. The convict insane, to be in order to defendant off the keep believe defendant Jackson (7th States v. society. (United from Cir. away streets 1976), 411.) closely 542 F.2d As the bal evidence anced, not influence the say question we cannot the comments did outcome of the case. grant supported by
Our a new trial is decision to States ex rel. Alerte v. Lane (N.D. 1989), United recent decision of grounds on other sub nom. Alerte McGinnis F. Supp. aff’d corpus of habeas Cir. F.2d a this court’s de (7th 1990), 898 review v. Alerte cision in Alerte,
In repeated regarding made comments prosecutor NGRI consequences of a verdict: Frank
“Mr. Are we to let Alert Goggin: going skate? [sic] Are we to let him on the going get slap again wrist and walk out of this courtroom and— Objеction.
Mr. O’Donnell: Mr. Goggin: scoff at all of us? (continuing)—and The up Court: Punishment is left to me.
Mr. Let him at all Goggin: of us and laugh escape responsi- bility? laugh Let him at Kelly family, family that no son, brother, longer has their their baby family, future, tennis the kid with the player, who had to scholarship college? Tell the Kelly ‘Forget it, it.’ family, forget We are go- ing to him on slap the wrist and let him out walk because of Lane, Frank like F. somebody Supp. Lorimer.” at 940. [Dr.] During closing argument, defense counsel at- unsuccessfully tempted to to respond the prosecutors’ concerning statement the ef- court, of a finding however, fect The insanity. sustained objections. argument, prosecutor rebuttal a different commented:
“Mr. Your to job Owen: is not evaluate the or minuses pluses of mental our or programs health of whether society; treat or patients mental in a bad or indifferent manner. good Your job is not determine whether or not what happened others, him will me just deter but let this on that say point; one you find, guy, guilty there’s deterrent when murder. The deterrent he will get opportunity is that murder else. anybody That’s the deterrent. that, Object
Mr. O’Donnell: and that’s not law. Jury (Emphasis original.) heard the evidence.” Court: (Lane, Supp. 725 F. error, we neverthe the above comments this court found
While *9 and that it a basis for the verdict supporting less found substantial the not been made. not have different had comments would been Alerte, 458 N.E.2d at relief corpus the district court for habeas petitioning Federal trial, fair comments denied him a ground prosecutor’s on the that the record, disagreed with court, reviewing after the entire the district not deny the erroneous comments did' this court’s assertion that expressed its analysis, In its the district court defendant a fair trial. court and that the trial prejudicial the comments were view and in- sustaining objection to counsel’s prejudice by failed cure this Rather, to the district structing disregard comments. comment, “[j]ury that the heard the trial court’s court believed me,” po- to evidence,” up is left ambiguous, “[pjunishment was disallowing action of defense The trial court’s tentially confusing. minimize nothing did to similarly to the comments response counsel a F. Lane, 725 at 943. prejudice. Supp. for not criticized this court analysis "The court its also district It evidence the entire record. believed that review of giving adequate testimony strong, by as shown insanity of Alerte’s since psychologists numerous psychiatrists defendant had seen institutions and received five, time several mental age spent of Lane, 725 F. at 943. Supp. his violent medication control behavior. from the case. hand, distinguished can instant the one Lane On im- did not amount an of the comments The trial court’s treatment Lane, the court did unlike where Similarly, of them. approval plicit or instruc- give any curative objections the defendant’s not sustain Also, unlike the defendant here did both. tions, the trial court treatment, of psychiatric а Lane, history defendant here did not have of age from institutionalization repeated behavior and aggressive Bohr and the of John testimony not have the Lane did Finally, five. as “normal” witnesses, who all described lay other State’s murders. morning until the of the up egre- common an share in hand, and this case the other Lane
On defense, repeated prosecu- murder, disputed gious hotly that its inherent fear jury’s on the designed play torial comments free, judicial response inadequate man dangerous set a verdict could de- response by fair comments, prohibition a trial court’s cure the consequence instruction any lack of and the fense counsel balance, that Lane is more On we believe prejudice comments. not. analogous to this case than concurring opinion argues in this case defend- specially com- the State degree prejudice merely
ant suffers a lesser when after a ver- may ments that a defendant be released sometime NGRI being released. The opposed automatically specially dict as concurring opinion prohibition further takes issue with our absolute comments, against NGRI both defense and consequence State, Bohr witnesses like at trial. testify where wish to make that the error in this case occurred
We clear because of how it used Bohr’s Bohr’s testimony. Again, testimony relevant to show defendant’s at the time of the murders. sanity Instead, the State Bohr’s for invited to consider purpose reflecting upon returning consequences and, case, NGRI This verdict. was error under the facts of the revers- ible error. wish to further clear is no
We make that there distinction between release, comments of an consequence speak which terms automatic *10 an future, immediate release in the one near or sometime the down such road. All comments have the prejudicial insanity same effect in cases, all are not to be tolerated. This is so indi- especially where viduals like Bohr the In face of such a testify. testimony, little conse- comment quence go long can a way.
In we summary, reverse and remand the case for a new trial. In light of this disposition, our is on remaining focus issues which may reappear remand.
Ill whether, One issue which appear course, so as a may matter of the court must the trial instruct with jury defendant’s “consequence” instruction, which provided:
“If you find the defendant not guilty by insanity, reason be by Department will evaluated of Mental Health and De- velopment Disabilities.
A hearing will be held Court before this to determine whether he should committed to the of Mental Department be Health until approves. this Court
If orders, by Court so the defendant will not be released Department Health Court approves.” Mental until this Initially, again we defendant’s the “law of reject argument the case” doctrine thаt this trial required given instruction be by I, court in instant case. In Stack we not hold that the did circuit give erred when it failed to a curative instruction which cor court set forth the of a NGRI rectly consequences verdict. We noted I, an 3d at given. (Stack App. that such instruction was Ill. 620, Thus, 1258.) 470 N.E.2d at I did not dictate that cir Stack defendant’s instruction required give consequence cuit court on remand. reject argument consequence
We next instruc given as a of course in all cases. Re insanity tions should be matter 666, v. Glenn 233 Ill. 3d 599 N.E.2d cently, App. 1220, we addressed this issue and concluded such instruc very reaching will a result in an insanity jury tions not as matter course a more correct cases. true and verdict all conclusion, supreme
To
our
we noted that while our
court
support
issue,
rejected
had addressed and
it
Peo
yet
had
address
we
162,
“If is found not reason of guilty by the defendant held to Illinois statute tо determine hearing pursuant shall be is in need of mental treatment.” whether the defendant Meeker, 86 Ill. 3d at 407 N.E.2d App. instruc Meeker,
In rejected argument consequence from con to forestall an otherwise uninstructed necessary tion from victing returning an merely prevent insanity argument an Rather, more that such persuasive streets. we found of its consequences influenced instruction invited (Meeker, 86 Ill. 3d at App. and to reach verdicts. compromise verdict that the then-in-effect Illinois 407 N.E.2d at We also noted cases (see dealing post-verdict consequences statute with 2—4) “presented] major ob par. Ill. Rev. Stat. ch. 1005 — concerning consequences.” of an instruction stacle to formulation at 1065. Meeker, 3d at from Meeker Glenn, that no Illinois case had deviated we noted contrary following conclusion our reached a although other States had *11 Nevertheless, giv- Meeker that agreed we with decision in Meeker. result not as a matter course will ing consequence of a instruction verdict. true and correct reaching in the more jury to as- exist Adequate protections to this again position. We adhere not the con- and sanity on the determination jury sure that focuses control of First, charged courts are with of its verdict. trial sequences first instance to assure It in the responsibility is their the courtroom. guilt, punish- role is to determine understands jury that instructing sustaining objections and Second, by promptly ment. remain should comment, a attention jury’s disregard improper as defend- such consequence focused. instructions properly Finally, fear, heightened by already ant’s are not A satisfactory. jury’s case, nature of an such instructions insanity may not be alleviated In- even be more focused after the of the instruction. may giving deed, defendant’s instruction tells the still be may Thus, released court upon approval. the instruction could prompt same rеaction it seeks to reasons, avoid. For these we believe instructions, such, consequence as have no place cases. insanity we Finally, reject defendant’s Gacho argument 221, 122 Ill. 2d cert. denied 488 U.S. 102 L. Ed. 2d 109 S. Ct. has so weakened Meeker’s ra tionale that consequence given instructions be as a matter course. Gacho, In the court held that a capital sentencing jury multiple in a murder case must be if instructed that it finds sufficient mitigating factors to preclude death, the imposition of the defendant will be sen tenced to natural life without possibility parole, and can only be freed by executive Gacho, clemency. 2d at 522 N.E.2d at again
We
Glenn wherein we addressed and
rely on our
analysis
rejected this very
There,
same argument.
we distinguished Gacho on
the ground that
jurors impanelled to pass on the death sentence are
concerned with sentencing while insanity jurors are impanelled to de
cide guilt or innocence. While the decision in Gacho was prompted by
juror
misconception
cases,
death penalty
and while misconceptions
similarly exist
cases,
purpose
the respective juries
required that Gacho be found inapplicable to the insanity setting.
Glenn, 233 Ill. App.
681-82,
3d at
the case required that a consequence instruction given in the in that, stant case remand, such an instruction given should be as a matter of retrial, course. On the trial court tois do whatever necessary and proper assure that neither party comments on the consequences of an NGRI testifies, verdict. If Bohr again this will be end, difficult. To this we reiterate that Bohr’s relevant as it pertains to defendant’s mental state at the time of the crime. The court should assure that the parties’ comments are cur and, tailed accordingly perhaps, provide limiting instruction to this effect. We independently urge the State to a trial adopt strategy whiсh will not risk yet another trial.
IV briefly other comments to assure that prosecutorial We address on remand. they repeated will not be a pros- that he was denied fair trial when the
Defendant contends fact not during in evidence highly prejudicial ecutor assumed a repeated and then later expert cross-examination Garvin, cross-examination Dr. closing argument. During in matter course, you didn’t tell asked Dr. Garvin: “Of prosecutor [Richard] in he began punching in of 1979 he was arrested a bar and July kill signed and he threatened to who patrons anyone bar [a question to this was sustained. objection Defendant’s complaint].” Later, argument, prosecutor during prosecutor’s rebuttal a and then threat- somebody up stated: “1979. When beat bar signed objection if Defendant’s they [complaint].” to kill them ened to comment was sustained. this in clos agree that the comment question subsequent
We
State, on
error. Error occurs
cross-ex
ing argument were
when
not in
amination,
presuming
a defense witness
facts
questions,
asks
witness,
evidence,
in the
of that
ab
precursor
impeachment
as
(People v.
inquiry.
sence of rebuttal evidence to substantiate
760,
767, 769;
756,
184 Ill.
3d
540 N.E.2d
Braggs
App.
1088, 1095.)
3d
v.
145 Ill.
App.
Rivera
ignore
the jury
inherent
in such
is that
will
danger
questioning
The
or in
denial,
insinuation
presume
accuracy
questions’
any
nuendo,
Braggs,
for
Ill.
presumption
proof.
and substitute
Rivera,
769;
3d at
App.
3d
540 N.E.2d at
App.
Here, prove the State failed rebuttal if to kill them a bar and then threatened up in somebody [in 1979] the State introduced some signed complaint.” While they abusive in a becoming defendant involving a 1979 incident regarding per- “beat” another bar, the never established that defendant State kill or arrested. son, anyone threatened expert, Stipes, Dr. when defendant’s similarly erred State breakthrough if had a cross-examination during was asked receiving his the murders after began to feel emotion about he, according work which check from her wife’s death benefit objection for Defendant’s State, clothes himself. purchase used sustained, given. instruction was but no curative No evi- obviously improper. the State was posed by
The question
from
wife’s death.
his
profited
to show that defendant
dence exists
its case
again attempted
prove
the State
question,
With
People Littlejohn (1986),
This is not
See
through
proper.
innuendo.
for
(reversing
part
None of the First, above comments were proper. prosecutor’s personal have no bearing beliefs on a criminal trial. (E.g., People v. (1990), 634, 645, Scott 194 Ill. App. 295.) Second, 3d 551 N.E.2d calling branch of this State’s an “armpit” courts does not deserve Third, comment. subject temporary is not relevant in insanity Illinois. v. (People Littlejohn (1986), 144 Ill. 3d 494 N.E.2d 477; People Eckhardt 124 Ill. App. 3d 465 N.E.2d 107.) Finally, comments which are designed solely to arouse the pas sions and of the sympathy improper. (Littlejohn, are 144 Ill. App. 3d 477.) remand, On urge the State to strongly refrain from the course of conduct it took during this trial.
V We next address whether the circuit court erred by giving the jury, over defense objection, the instruction. The instruc- “sociopath” tion at issue instruction, second paragraph which provides: criminal,
“[Abnormality only by repeated manifested or oth- conduct, erwise anti-social is not mental disease or mental de- (Illinois Instructions, Criminal, Pattern Jury No. 24— fect.]” ed. (2d 1981)(hereinafter 25.01 IPI Criminal 2d).) The committee note to this states para instruction second graph given is to be “repeated when evidence shows criminal or other 24—25.01, anti-social conduct.” Criminal mi (IPI 2d No. Com Note, ttee It give has been held to error to this instruc be tion when supported evidence. v. Fierer Ill. 2d N.E.2d 972. as socio great length paint goes State end, possible the State lists bad act defendant
path. every To this use, drug life. include during his adult These incidents ever committed fighting. and barroom drinking, arguments husband-wife heavy social sociopathic personality, indicative of a may these incidents be While giving of a “so justify are of insufficient number to the incidents remand, general same evidence assuming On ciopath” instruction. given. the instruction should not baсkground, of defendant’s Fierer, N.E.2d 972. whether issue the need address holding
Our on this obviates initial jury during closing argu- when he told the prosecutor erred *** of mental dis- conduct evidence ment that “anti-social [i]s remand are not to recur unless evidence comments on ease.” Such of the instruction. giving supports
VI when, according to erred next address whether the court We stating from defendant, witnesses precluded lay the court During the mental condition. sanity as to defendant’s or opinions their Principato, John of defense witness direct examination on his based observation give opinion the witness asked to his mental health.” “something happening defendant whether During the direct examina- objection. the State’s The court sustained *14 Lutz, ques- counsel asked series witness Father tion defense on opinion to elicit the witness’ whether attempted tions which normal. court sustained Again, conduct seemed defendant’s Later, explained the court tо these objections questions. State’s in form. objectionable were asked ruling stating questions that by on that the court remand only issue to assure We review this testimony. defendant’s While unnecessarily lay restrict does sustained objections that the State's were court’s comments indicate the court’s comments question, form of the improper because law re Illinois the court understands doubt as to whether leave some lay testimony. garding regarding the men Illinois, may lay give opinion “a witness facts, personally observed individual based
tal condition an Wright Ill. 2d (People must stated in detail.” which be 640, 647, cert. denied (1987), 479 U.S. 128, 148-49, 490 N.E.2d v. Chatman 1327; 107 S. Ct. L. Ed. 2d Graham, & Gra 1067, 1074; Cleary M. 648, 659, Here, 1990).) (5th ed. of Illinois Evidence ham’s Handbook §704.3 aon lay testimony that indicating as may comments be read court’s condition” is This is an erroneous view improper. defendant’s “mental of the law. issue, do not intend to limit our discussion of this
By in foundation has been determining proper court’s discretion whether addressed the issue on the chance that established. We have court entertained an incorrect of the law. view
VII in limiting We next address whether the circuit court erred Bohr. Bohr that in Au- cross-examination of John testified gust he wrote a letter to Cook State’s Richard County Attorney time, relating M. what defendant had told him. At that certain Daley members of Bohr’s had filed family aggravated battery charges an- other county against Bohr. cross-examination, Bohr’s
During attempt and an to show that in fact a deal the prosecution struck, with had been sought to use statements contained in police report to show the the beatings and, the victims took consequently, were severe Bohr’s motive to curry prosecution’s great. favor was The court sus- tained the objection the statements hearsay were and could not used. cross-examination,
On further counsel elicited that after Bohr letter, wrote the the aggravated charge, which battery potеntially car- ried a penalty of years prison, was reduced to misdemeanor simple battery. Bohr pleaded guilty charge to this and ultimately spent little time in prison because of credit received for time served. examination,
On redirect Bohr testified that he never had any charges pending against him in Cook County, that he never mentioned in the letter to Daley him, that he had charges pending against that he nothing received in exchange for his Bohr further testimony. testified that the charges were family reduced because Bohr’s did not want to prosecute.
Defendant later sister, surrebuttal to call attempted Bohr’s Lisa Oberman, who would testify, according to defense counsel’s offer proof, agree she did Bohr drop charges against was never contacted The court prosecution. ruled defend- ant should bring and, Oberman to court to make an offer of af- proof ter her hearing testimony, the court would make its ruling. Obеrman *15 brought never to court.
findWe the circuit court made no error in limiting Bohr’s cross-examination. The court properly prevented defense coun sel using from unsupported, unproven allegations within a re police Not specifics aggravated charge. the
port
battery
to establish
People Watkins
allegations hearsay (see
the
were
889, 900,
701, 709),
were also the written
they
N.E.2d
of
used for
person being
impeachment purposes.
statements
a third
impeachment. v. Lucas
Ill. 2d
This
not
proper
399,
As for defendant’s of error that Oberman was A of testify, simply nied the this true. review opportunity testimony to first hear Oberman’s record shows that court wanted produced her to in court. Defendant never allowing testify before assertion, the court did Thus, Oberman. to defendant’s contrary from prevent testifying. Oberman
VIII it allowed We next address whether circuit court erred when his Miranda and receipt warnings defendant’s regarding trial, Before defendant moved subsequent rеsponses. defendant’s he limine to exclude evidence silence after post-arrest defendant’s motion, all received his Miranda During on the warnings. argument I and II is- in Stack regarding this acknowledged opinions parties sue, silence agreed post-arrest and all that evidence re- ruled evidence could be The court improper. ultimately and that defendant received Miranda rights his ceived which showed understanding them. acknowledged chief, testified that case in Officer Scott
During prosecution’s Miranda his scene, arriving given at the murder upon Later, of them. and indicated that he understood each warnings case, given testified that defendant was Officer Foley State’s rebuttal his Miranda he understood them. rights and indicated back to argument, State referred
During closing Foley and in time when Officers Scott point scene of the crime at the “Why objection: without defense prosecutor any stated arrived. on him and gun put hear whеn Scott and Foley didn’t he God said, all of a sudden didn’t he hear demon go Why door. objection, Later, without through again the window?” jump stated: prosecutor rights. his One and he understood gave rights,
“He him mind kind of you it important, them is so shows can and will has, Anything you say that day. had guy translating law, Stack, and Mr. in a court of against you used that, can say is anything who does a mind of person into *16 court, I Foley, yeah used for me in and so he tells and will be them.” killed use a address the issue of whether the State can defend
We of his Miranda understanding rights as affirma acknowledged ant’s II, I that it Stack In the courts held sanity. tive of his proof the State to use evidence which that defendant for showed improper of his invoked Miranda’s of silence as affirmative guarantee proof The stated rationale of those decisions was that it is fundamen sanity. prosecution implied promise unfair for the to breach the which tally of Miranda accompanies giving rights, namely, that the exercise of the right to remain silent and to counsel will not used as evi (Stack, against 306-07, dence defendant. 112 Ill. 2d at at Stack, 1257; 617-18, 341; 3d at 470 N.E.2d at see also Wainwright 474 U.S. 88 L. Ed. 2d Greenfield rationale, S. Ct. We the implied promise believe which underlies I, II, the decisions in Stack and Wainwright, Stack covers the situa tion at bar.
The State should not be allowed to ask whether a defendant un derstands his Miranda rights, rights the State is required give, and then use acknowledgement rights his of those as evidence of san II, As Stack ity. stated the court in the State may “exploit recital of Miranda warnings to sing song the Siren’s and lure a (Stack, defendant into creating against evidence himself.” 112 Ill. 2d at 341.) N.E.2d This rationale is equally applicable to the acknowledgement Miranda rights. light issue,
In of the disposition of this we do not address the pro- of the priety prosecutor’s closing remand, comment. On as evidence Miranda pertaining understanding warnings is inad- missible, the comments repeated. should not be
IX Defendant has raised other issues on which we do not ad- appeal dress. We find each of these contentions to be without merit.
X conclusion, this case remanded for a trial. Defendant’s new second trial was less than fair. While defendant is not entitled to a trial, perfect trials, he is entitled to one fair trial. each less than Two fair, do not amount to the constitutionally one fair trial to which he is entitled. recognize
We that our to en- opinion requires family victim’s State, dure yet another trial. Fault rests with the not this court. We urge again precautions that the State take assure that trial. receives fair reasons, court of foregoing judgment
For the circuit reversed and remanded. Cook County and remanded.
Reversed
O’CONNOR,J., concurs. CAMPBELL, concurring: specially JUSTICE case, in this I dissented from first decision Although appellate for that this case must be remanded a third trial agree reluctantly However, I dis- today’s respectfully and therefore concur in decision. аgree opinion’s rationale. majority with
I fair because defendant was denied a trial holds that majority to comment on the possir it that the State is not permitted concludes To a new trial of a verdict. reach the conclusion that consequences ble warranted, however, People likens this case to v. Wilson the court 1081, In 950, progeny. 3d 458 N.E.2d and (1983), 120 Ill. App. re Wilson, be argued “automatically the State that would argument if The State did make that leased” he was found NGRI. Thus, People that more like v. Fox in this I conclude this case is case. 604, 502, 264 where the State raised 131 Ill. 2d N.E.2d (1970), App. Fox, release. In as (not certainty) the the of defendant’s possibility case, State, the commented argument by was initiated the NGRI the 131 Ill. (Fox, and then State. by defense counsel rebutted by stronger than 612, Indeed, this case is 508.) 2d at 264 N.E.2d at App. taught testimony the record contains that Fox, for here that he repeatedly defense stated Bohr how to fake an and the Mentаl be Facility, to transferred to Chester intended Health argument The State’s on this normal and obtain release. gin acting in Fox. therefore less than that point prejudicial for to it was the State improper the that agree majority I with release, as State again upon intended to kill argue that defendant agree I also State to effect. present failed evidence to show that defendant was Bohr’s every right had use I the ma- disagree and infant son. with killed his wife sane when he may the State never suggests that to the extent that it opinion jority be released may defendant found NGRI possibility refer pro- such as that of testimony The introduction at future date. some 187 of rule an to the sort argues exception in this case for vided Bohr by con However, contrary reaches the majority as the today. announced defend me to reach the issue of whether clusion, unnecessary it is for in such instruction “possible consequences” аnt entitled to a would be 680-81, 666, v. Glenn 233 Ill. 3d People (1992), a case. See prosecu of whether (leaving open question N.E.2d 1229-30 instruction). comment would an justify torial
II argu- the case due to the State’s reversing remanding After length addresses at regarding “plan,” majority ments on retrial. I with the ma- disagree a number of issues arise may of some of these issues. jority opinion’s disposition For concludes that the trial court example, majority opinion erred in tendering “sociopath” (Illinois Pattern Jury instruction Instructions, Criminal, No. (2d 1981)) 24 — 25.01 ed. Yet in jury. v. majority, People Fierer upon case relied by 529 N.E.2d the trial court struck the word improperly “repeated” from the instruction and the record indicated that defendant had illegal no record of or antisocial (and conduct fact had a long (Fierer, distinguished career). professional Ill. 2d contrast, N.E.2d at the instruction here so altered and the State introduced a number of defendant’s bad prior acts. am not cоnvinced that this court must venture at this time into the area of how determining “repeated” bad acts must be warrant instruction, instruction. Even if it give was error that error not, itself, would warrant a reversal in this case. See Vanda 551, 569, App. 3d
III The concludes majority that State should not permitted be of his Miranda rights as use acknowledged understanding defendant’s proof agree conclusion, of his I sanity. though with this not for the reason suggested by majority.
The on the in this majority opinion, relying previous decisions Wainwright 284, case and on 474 88 L. Ed. U.S. Greenfield 623,106 634, 2d S. Ct. indicates:
“The stated rationale of those decisions was that it is funda- unfair for the mentally prosecution implied prom- breach Miranda ise of accompanies giving rights, namely, which right that the exercise of the to remain silent and to counsel 188 (244 Ill. App. not used as evidence defendant.” against
will be 185.) 3d at rationale opinion “implied promise”
The concludes majority case, fails to this conclusion. explain to the facts this but applies spoke police af- eventually The record indicates that defendant thus, of his there no use of rights; ter he was informed Miranda is I prove defendant’s therefore conclude post-arrest sanity. silence is- “implied promise” the aforementioned of Miranda is at sue.
Indeed, requires Miranda warning to remain silent must right accompa- of
“[t]he explanation that said can will be used anything nied warning This in order against the individual in court. is needed of the only of the but also privilege, make him aware it.” v. Arizona consequences forgoing (Miranda 436, 469, 694, 720-21, 16 Ed. S. 1625.) L. 2d 86 Ct. U.S. held him in court could against defendant’s statements bemay That promises” of the Miranda warn “express be said to be one where the defendant also invokes exceptions There are made ings. rights. (See, People v. Anderson e.g., one of his or her Miranda here 1, 5-6, 486-87.) Ill. But defendant (1986), 113 N.E.2d an right to remain silent and does not raise issue did not invoke his rights. other Miranda regarding
Nevertheless, agree acknowledgement here could not be cases, legal probative In some sanity. to prove used le warning silence on issue of post-Miranda effect of post-arrest, v. Wain (Greenfield effect. gal sanity outweighed by prejudicial is 329, 332, grounds 741 F.2d on other (11th 1984), Cir. wright aff’d 634.) 106 Ct. The same L. Ed. 2d S. (1986), 474 U.S. attorney. for an warning request -Miranda post true of defendant’s The 619.) 444 N.E.2d at assertion 3d at (Vanda, The of these rules. scope within the schizophrenia may fall paranoid decision in stated: appellate Greenfield un- ability only petitioner’s probative evidence was “[T]he calm, consist- remain which would be English and to derstand The evi- schizophrenia. of paranoid the mental disease ent with probative petitioner’s sanity.” was not accordingly dence (Greenfield, 741 F.2d recogniz- not the decision appellate decision Greenfield phenomenon:
ing schizo- paranoid phases; has manic depressive “A manic for not dangerous the less not, need not be need phrenic *19 Cir. 910 F.2d (Thomas Indiana (7th 1990), having them.” 1413,1414.) Stipes, of Dr. testimony the expert record in this case contains
The of schizo- paranoid from a type that suffered opined who record portion of the identify any The State has failed phrenia. of Miranda acknowledgment defendant’s suggest would that that insanity Despite defense. is with defendant’s warnings inconsistent on evidence, contrary position lack apparent argue that acknowledgment the State used the appeal, was argument The killings. improper. sane at the time of the was error question. was another argument reversible Whether post-Miranda warning silence as evidence An isolated reference to (Vanda, Vanda in the case. harmless sanity deemed on The Vanda 570-72, court held 3d at N.E.2d at so based The Fed on the issue at trial. developed sanity the extensive record corpus habeas Vanda case in the elabo eral decisions relief denying point, noting experts rated on this that testified on san multiple issue, relating early ity Vanda’s childhood that de suggesting introduced there was evidence United States ex rel. Vanda v. Lane (N.D. (See fense was fabricated. 1252, 1257-58, 758 F. 962 F.2d 1991), (7th 1992), Cir. Supp. aff’d 583, 585.) The here is It respects. record similar all these isolation, possible argument, therefore when considered However, would warrant reversal. the other when combined with closing arguments disapproved majority opinion, the State’s closing arguments rise the level of cumulatively plain requir error ing reversal.
IV seek opinion. The State should not solace in this The State should conclude that this court was in the record agreement unanimous where appeal unfairly contained numerous instances the State right fair trial. This court also unani- prejudiced agrees regrettable it is the victim’s will be mously family Illinois, in- forced to endure a third trial. State of are not mis- cluding family, by prosecutorial victim’s well served to take to ensure that urge steps conduct. the State necessary trial in the third this case is the last.