People v. Teague

the theft over conviction vacated since the same Finally, physical act, victim, taking of from the for property resulted conviction armed robbery. conviction,

Therefore we vacate the and the judgments sen violence, tences imposed, aggravated battery, armed burglary, theft over do not attempt (murder), We disturb the convictions for $150. invasion, home and armed robbery. disagree on parties resentencing whether remand for is neces

sary. Where the sentencing hearing record shows that the trial judge multiple considered separately offenses and sentenced the defend information, ant on each count of an is no reason to re separately there resentencing. mand for (People Kosanovieh 387 N.E.2d 1061.) By considering each offense the trial court separately avoids taint of an any alleged invalid conviction.

In the instant case the shows the trial record court consid each ered offense and sentenced the separately defendant separately Therefore, pursuant Kosanovieh, each count. is no there reason to re resentencing. mand for

Affirmed vacated in part part. TRAPP, JJ.,

LONDRIGAN concur. ILLINOIS, THE PEOPLE THE Plaintiff-Appellee, OF STATE OF JR., TEAGUE, DEAN Defendant-Appellant. FRANK Division) (1st First District No. 79—2095 Opinion 21, 1982. August 30, 1982. Rehearing September filed CAMPBELL, J., dissenting. P. Unsinn, Appellate Clark and Patricia both State Defender’s

Steven Office, Chicago, appellant.. Shabat, (Michael E. Daley, Attorney, Chicago of

Richard M. State’s Attorneys, Sweeney, Reggi, Kevin and Martin Assistant State’s of coun- D. sel), People. for the opinion

JUSTICE O’CONNOR delivered the of the court: trial, a defendant was of three Following jury guilty found counts murder, of two and one attempt ag- counts of armed count of robbery gravated 5, February Judgment committed on 1977. was en- battery tered the only robbery murder and armed counts and attempt defendant of imprisonment was sentenced to concurrent terms of 30 years on each count. issues, including

On numerous the man- appeal, defendant raises dire, of voir ner peremptory and the State’s use of scope improper allegedly expert testimony, and witness challenges, improper lay comments, instructions and reasonable propriety jury prosecutorial doubt the effective assistance of counsel. trial, He guilty insanity.

At reason pleaded now that he a fair contends was denied because impartial jurors sufficient was not made of the their attitudes inquiry regarding 894

toward him psychiatry insanity and the defense enable to excuse for cause and to exercise jurors intelligently his peremptory chal- lenges. alleges He those who jurors admitted to only having had or prior experience contact with psychiatrists questioned were di- rectly as to whether had or they any against bias prejudice psychia- trists.

As in People stated Dallas 85 (1980), 153, Ill. 3d App. 1202, 595, cert. denied sub Cooper nom. v. Illinois U.S. 68 L. Ed. 2d S. Ct. of a only legitimate purpose voir dire examination to assure the selection an impartial jury. Under Supreme Court (73 Rule 234 Ill. 2d R. the trial 234), court has primary responsibility voir conducting dire towards that end. The inmay, court its discretion, permit parties submit additional to it questions further An if, abuse of discretion will be found inquiry. only after re record, viewing is determined that the failure court’s to ask defendant’s tendered of an questions thwarted selection impartial 165. jury. to the voir dire of

Preliminary prospective jurors, trial judge informed the that he would parties conduct the questioning jurors himself and proposed could be submitted questions writing. He all of the questioned prospective jurors and a few generally individu- ally whether regarding follow law as embodied in his regardless instructions of their defense of insanity. He preliminarily also questioned regarding entire venire whether there was about the defense of anything insanity prevent which would being impartial. them from fair and Defendant submitted a list of defense he questions regarding insanity contends were nec- essary prejudice to discern bias or towards or psychiatry psychia- rejected questions trists. court said We re- inappropriate. have the record and do not find such viewed we to be abuse of discretion. stated, have previously purpose

As we of a voir dire is to select a fair it is not impartial jury; used as a means of pre educating indoctrinating or as a means of impaneling jury particular Nicholson predispositions. (People v. Homer Gasiorowski Gasiorowski, 43.) Ill. 365 N.E.2d In the court approved a direct into a bias juror’s or which inquiry prospective prejudice and the apparently evoked direct honest various responses ju 989, 993.) case, In instant the trial court (47 rors. the insanity ability made the defense and the repeated inquiries regarding to all of the applicable were made impartial, inquiries remain agreed the court request, At counsel’s jurors. defense prospective jurors prospective and those follow-up questions did ask additional dealings psychiatrists. with they previous who had indicated had had of a psychiatrist, Of had never utilized services those who voir dire whether had judge throughout anything inquired jurors, other heard, to the including specific questions put more The to remain fair to both sides. any way ability would affect their following: as the replete inquiries record is such heard me “THE COURT: there that have anything you Is that make feel you you some of these other would people ask if you fair and the State as well could not be to the defendant a juror remain as here?”

and panel: of another far, there heard that anything- anything

“Is have so you that has in some or another would maybe suggested way been if make feel not be a fair remained you you juror you a juror?” here as and was satisfied

Clearly, judge prospective jurors observed nothing that their and honest. There is before responses were direct to the voir dire and us an to indicate abuse of discretion with regard of a fair impaneling jury. and impartial to a argues right that due process utilizing trial a fair and were violated the State impartial jury all to exclude record peremptory challenges jurors. of its black challenges to that the State exercised all of its 10 peremptory shows for a the State had exclude blacks. Defendant moved mistrial after the conclusion of challenges against again used six six blacks that selection The State did not had proceedings. deny blacks, that challenges its 10 to excuse 10 out pointed used but it had defense had also black prospective juror, pe- excused excused a was a alternate and remptorily juror prospective white who and women and attempting it was to achieve a balance of men age shows that white groups. ju- While examination record men, fell within to which the age groups rors who women State, we do not State referred were not peremptorily by excused agree with defendant’s contentions. group it is error as a

It is true that constitutional to exclude has pre- it is shown that the group group systematically where been v. Alabama juries. (Swain vented from service or on particular People v. L. Ed. 2d 85 S. Ct. U.S. showing of Gaines No 896 action, however, systematic

such has been made here. v. Payne relies on 106 Ill. principally People (1982), 1034, 1046, Taylor 3d 436 N.E.2d which cites v. Louisiana App. 522, 690, 692, 419 L. Ed. 95 v. (1975), People U.S. 42 2d S. Ct. 258, 748, 890, (1978), 22 583 P.2d 148 Cal. and Rptr. Wheeler Cal. 3d 461, 499, (1979), v. 377 387 cert. Commonwealth Soares Mass. N.E.2d 881, 110, 170, (1979), 444 62 L. Ed. 2d 100 S. and denied U.S. Ct. to and distinguish seeks the Illinois cases which followed Swain Swain, 1040, In (1982), 1034, v. 106 Ill. 3d 436 People Payne App. 1046, 1050, N.E.2d court appellate stated: we hold that when it to the

“Accordingly, reasonably appears court, trial its by either own observation after motion defendant, that is prosecuting attorney using peremptory challenges to exclude from the systematically jury solely blacks blacks, because are the court they require prosecu- should demonstrate, exist, tor to and by whatever facts circumstances that being blacks were not systematically excluded from they because were At this solely stage, blacks. the burden that demonstrating the Constitution was not being violated is upon Also, this court prosecution. stage, trial should Constitution is not employ presumption being violated. Once to the trial court reasonably appears that the accused denied an being is affirmatively impartial jury as amendment, under the sixth there is to required no reason presume that the State is not ac- affirmatively violating cused’s constitutional entitlement.” case, In that the court stated that also “a defendant is constitution- to a ally petit approximation entitled as near process ideal cross section of the as the of random draw community and 106 3d constitutionally acceptable procedures permit.” Ill. App. 1037, 1034, 1046, 436 N.E.2d 1048. court,

This in v. 91 Ill. 413 People Fleming (1980), App. 3d (1981), N.E.2d expressly 83 Ill. 2d refused representative follow doctrine of the section of the cross commu- nity Supreme as enunciated Court of California in People Wheeler, stating: Wisconsin agree Appeals

“We with the Court that ‘the test uncertain, proposed by vague the California court is challenges. limits If severely scope peremptory peremp- a certain tory only way, strikes can be exercised in dependent circumstances, no subject scrutiny, will judicial longer be We refuse to undertake such an altera- peremptory.

897 tion very system.’ nature of the State v. peremptory Grady (1979), 1, 13, (91 2d 612. ***.” Wis. N.W.2d Ill. 3d App. 99,105.) 100; N.E.2d 871, 3d App. v. Allen People

See also 511; People 606, 425 Ill. App. Tucker People v. v. Be- 430 N.E.2d Lavinder our 1119. We adhere lton Payne. expressed the view adopt and decline holding Fleming there pos- the circumstances If, holds, under Payne the State pe- then the challenges, for its peremptory basis ited has to show destroy as to emasculated effectively has so challenge been remptory v. Harris recognized (People Illinois has function which Swain and its 809): 446, 451,161 N.E.2d (1959), 17 Ill. 2d that, challenges of peremptory the State’s exercise “The fact not from the did petit jury them excluding resulted in [blacks] right. of constitutional defendant deprive [Citation.] one which should is a substantial right challenge of peremptory nature, be exer- very It its may, by not or denied. abridged or ca- exercised, the will according judgment, or not to cised to thereto, required he is not as- of entitled price party therefor. sign any reason [Citation.]” of Further, peremptory if the in Illinois is to be the abolition law met forth- Payne, problem in should be challenges as enunciated to make challenges by abolishing peremptory legislature rightly their exercise in the dis- place for cause and challenges challenges all with the modem keeping This be in judge. cretion of the trial would Ill. 2d judge. (73 to the trial process trend to selection give 234, 431.) Rules See Jackson of Criminal of the Code holding 4(f) that section 115— 4(f)), which par. Rev. Stat. ch. (Ill. Procedure of 1963 115— of dire examination to conduct voir right counsel gave opposing determining qualifications, of their prospective jurors purpose for of the court power” legislative “judicial infringement upon was a hence, and, was void. Rule 234 Supreme as reflected Court in the State’s exercise of infirmity no We find constitutional challenges. peremptory its beyond a guilty he not proved next contends that was he sane at the prove to was because the State failed

reasonable doubt introduced evidence was argues time of the offense. He that sufficient the State then sanity to a and that at trial raise reasonable doubt of a reasonable sanity beyond to of proving failed sustain its burden doubt. defense,

Two psychiatrists giving substantially testified diagnoses, different yet agreeing that defendant not conform his conduct to the law on the of night February Ziporyn 1977. Dr. occasions, examined defendant on two the first time nine being some again months after the offense and a ex- year almost later. Defendant hibited no particular memory abnormalities terms of sensorium: his and ability to calculate were intact his within apperception was normal limits. Defendant exhibited of the and ru- hyperactivity body mination. Dr. no Ziporyn performed tests on the defend- psychological ant did nor he to of speak any members defendant’s defend- family, or police question ant’s co-workers He did not personnel. about events to a February response 1977. In hypothetical question which assumed as had to facts been testified defendant’s offense, mother and brother and the Ziporyn circumstances Dr. expressed the opinion suffering psycho- that defendant was from a offense, neurotic reaction at the time result of anxiety as a which he lacked the substantial capacity appreciate criminality of his conduct and was his require- unable conform conduct to the cross-examination, ments law. On Dr. it stated that Ziporyn possible suffering for a from person a psychoneurotic anxiety state his conform conduct to the requirements law. Seglin

Dr. also testified for the defense. It his opinion defendant was suffering hysterical fugue state on the date in him question, automatic, act in caused robot-like manner a result of which defendant could the criminal- appreciate ity Seglin aspect acts. Dr. also testified that amnesia was one state fugue and was his that defendant had total amnesia he between the time left home in Island, Illinois, his Rock and recov- ered his Park memory Oak on the of hospital night the arrest. His opinion single was based on a with the interview defendant two years cross-examination, after the offense. On defendant’s remarks to made two or after the were newspaper reporter days three offense interjected hypothetical, inducing into the Dr. his di- Seglin change from agnosis a total amnesia to a one. The doctor also testified partial road driving conformity one’s automobile with the rules of the conforming was one’s conduct to the law. requirements mother brother as to Defendant’s and both testified defendant’s for al- background, including the fact that he had been incarcerated eight most on a conviction which subse- years robbery bank was incarceration, reversed. from quently During his defendant suffered stress; him, much died his com- grandmother, who had raised and State, wife off daughter cutting mon-law left communication with him. he into a Upon prison, hasty his release entered marriage college. short-lived and worked two while jobs attending release, stress, Since his defendant to be under considerable appeared to be depressed changes. and have sudden mood Both defendant’s however, mother and opinion, brother were of the defendant knew the He fol- right wrong. difference between drove a car and lowed traffic rules. Defendant had never done in their anything pres- ence to indicate that he was to conform his conduct to the re- unable quirements of the law.

We agree with defendant that sufficient evidence was adduced to bring his into sanity issue. The then is question prosecu- whether tion sustained its burden of establishing sanity defendant’s on Febru- 5, ary 1977, beyond a reasonable doubt. We find that the State has met its burden. issue a defendant’s sanity at the time of the offense gen

erally a question of fact for the jury finding and a on the issue jury’s insanity will be disturbed unless is so manifestly against weight of the evidence as to indicate the verdict was based on passion or prejudice. (People (1980), 77, 81, Martin 87 Ill. App. 3d 114, N.E.2d 81 Ill. 2d People v. Spears appeal denied (1978), 71 Ill. 2d 620.) We also note that a is not required to accept conclusions of a psychiatrist and may properly reach a of san finding ity by accepting lay over testimony expert (See, testimony. e.g., Peo ple v. Ford Moreover, Ill. 2d weight to be given an expert’s opinion is measured the reasons given for the conclusion and the factual details which he marshals in support of it. (People 162, 169, Meeker 86 Ill. App. 3d N.E.2d 1058.) Resolution of contradictory testimony and determina tion of its weight and credibility are for the trier of fact. People v. Ward (1974), 313 N.E.2d 314.

The State introduced expert testimony direct con- flict with the findings of defendant’s Dr. experts. Kaplan, psychia- trist, 12, 1977, minutes, interviewed defendant on August for some 50 pursuant order, to court for the purpose determining his fitness for trial. Dr. Kaplan found fit to stand trial. An initial diagno- sis of a passive aggressive personality with alcoholism was based on the results of psychological tests performed on defendant and a social worker’s report an interview with defendant’s wife. At the time of interview on August defendant was unable to relate de- tails regarding the events of 5. Dr. did not at that February Kaplan time form an as to defendant’s mental state at the time of the who had testified Seglin, of Dr. opinion to the Contrary offense. difficult to very at trial that was defense, Dr. testified Kaplan fugue state hysterical from a suffering of an individual conceive hysterical fugue the nature of a at since grocery gunpoint, a store rob has a suffering that the person conflict state has to do with some defendant diagnosed to. Dr. facing up Kaplan deal of great difficulty disorder, he expressed having personality at trial as an antisocial 5, 1977, could, appreciate on February that defendant opinion requirements his conduct to of his acts and conform criminality previously of defendant and the In addition to his interview law. re- police on diagnosis Dr. later reports, Kaplan mentioned based in- incident, newspaper and a history defendant’s criminal ports of the of- account of the circumstances defendant’s containing terview reactions, after the incident. given only days fense and testimony to discount the that the decision say jury’s cannot We of the evi- against weight manifestly was experts of defendant’s (See v. Mahon People dence. v. Ford 79 Ill. 2d to the weight accord more could and did apparently lay was corroborated several expert, of the state’s

testimony witnesses: A & P store on the a on at an Robey, security guard duty

Naaman in the rear of the 5, .1977, that he was testified night February for an ordi- defendant, he mistook he first noticed whom store when him, on Robey’s his hand put approached customer. Defendant nary In a stickup. and announced Robey’s ribs gun pistol, placed fill a satchel manager have the voice, Robey told clear defendant him if he did as he not kill would Robey with He advised money. also manager, the store defendant As they approached he was told. Before group gunpoint. in the area to join ordered a customer to lie on instructed the three of them store, he exited the defendant face was cov- noticed that defendant’s the floor. At that time Robey slurred, nor was not speech shoe Defendant’s polish. ered with black in a straight he walked twitching, and shaking he quivering, was during of defendant on his observations specific manner. Based expressed robbery, Robey of the armed course and could have con- doing he know” what was could “well the law. his conduct to formed store, testified that A & P manager assistant Kage,

Claus area, the service 5, 1977, he called to was February at 10:30 p.m. him. ex- Robey defendant beside standing Robey where them into directed Defendant money. wanted that defendant plained then directed office, empty. the safe Defendant Kage where found placed cubbyhole Kage him in the tills stuck in a to look with a had trouble bag. the tills in defendant’s money “get he this Kage small from the office and ordered leading gate and ran out. damn them to lie down door Defendant ordered open.” his stomach. In in a trance or sick to appear Defendant did his acts Kage’s criminality defendant the appreciate opinion, opinion This doing.” that “he knew what he was precisely him, he talked and the way based defendant looked at the way on the Defendant was not way gun, very, very steady. he held his which was Kage’s opinion in a normal manner. It was operating violent and was that defendant was “sane.” respond- Toll he was

Oak Park officer Richard testified that police ing to of an at 5. robbery p.m. February a broadcast armed 10:30 He exit of the A his car 10 feet from the east stopped approximately Muth, & P officer, store while another Dan his vehicle 10 to stopped through the west defendant exit the feet from exit. Toll observed side, east passed passenger door. As defendant Muth’s vehicle on “Halt, Muth and fired shouted, pulled gun Defendant out a police.” two roof in defend- shots over the of the car. Toll then fired a shot through park- ant’s and and ran direction defendant turned east ing foot, losing sight lot. Both officers chased the defendant on him entered a two Defendant gangway buildings. ap- between feet, peared from a distance of 30 to 40 fired a shot struck Muth again in the and fled. Toll thigh, then observed defendant approximately building. two minutes in front of a He ex- nearby that pressed opinion appreciate defendant was sane and could conduct in he which was participating. Van he

Sergeant Clyde responding Nest testified also was on the He observed robbery night armed broadcast question. of a building. head southbound and exit on north side defendant his pulled drop He to the curb and defendant to halt and gun. ordered time, Defendant, who was 30 Nest his dropped feet from Van gun direction, case At vinyl carrying. and he was Van Nest’s he put hands on to his knees. top dropped vinyl his his head gun case another amount Before currency. contained and an of U.S. car, in the Nest read him his Miranda placing squad defendant Van that he under- rights from a card and defendant preprinted responded then defendant to Nest and Officer Michalek transported stood. Van told them he Hospital. room of Park emergency Oak emergency had into the wound. Defendant walked unaided gunshot nurse, room given by hospital personnel and followed directions re- gave specific an technician. He also the nurse information X-ray form. quired signed his name on admission Van Nest was with defendant the entire time between him and when he apprehending was taken to the 2V2 hours later. police station some Frank he

Officer Michalek testified sat with defendant back the squad car as he was to the He observed transported hospital. sign authorization form for treatment. Defendant did not ask what he was there nor did he look or aston- doing bewildered ished. station, When defendant was later taken to the he police pro- vided Michalek with the information to his arrest required complete card. Defendant also chose his in a station house position lineup. Both Officers Van Nest and Michalek were of the that defendant opinion could conform his conduct to the of the law. requirements dispute

Defendant does not who have had nonexperts oppor- tunities to observe a their mental person may give con- dition or capacity. (People v. Krauser v. Patlak Rather,

N.E. he lay contends witness elicited opinion testimony state was either wholly lacking legisla- foundation or distorted the prescribed test of a tively insanity, thereby creating misapprehension of law which improperly jury. Specifically, influenced contends the State blurred and weakened the more discriminat- of the ing aspects definition of statutory insanity by eliciting lay wit- ness which defendant’s testimony equated sanity with whether he knew the difference right between knew what he was do- wrong, ing laws, or had the ability to follow traffic the con- thereby ignoring of substantial cept capacity and the existence of a mental disease or defect. 1961, 6—2

Section of the Criminal Code of which defines the af- insanity, provides part (Ill. 1975, firmative defense of Rev. Stat. ch. 38, 6-2): par. A

“(a) is not if at person criminally responsible conduct conduct, the time of such as a result of mental disease or men- defect, tal he lacks substantial either to capacity appreciate of criminality his conduct or to conform his conduct to the re- quirements law.” Illinois,

In contrast to the earlier rule in which a of required finding total to that certain incapacity wrong, present know conduct was test is based on a determination of incapacity appreci- substantial (People Spears (1978), v. ate the of conduct. wrongfulness particular 510, 516; 63 Ill. 3d App. American Law Institute Model Penal Code 4.01; Stat., 2, Comments, sec. Ill. Ann 38, ch. Committee at par. 6—

903 an assertion raised question by The 1972).) principal 329 (Smith-Hurd so proceeds incapacity is “whether defendant’s defense insanity re conduct, to the his ‘conform(ing), of incapable to render him far as ” 38, 2, Stat., Ann ch. Committee par. (Ill. law.’ quirements 6— Thus, who under an accused Comments, 1972).) at 329 (Smith-Hurd its will wrongfulness nature of his conduct and appreciated stood the re consciously his ability criminal if liability still excused from be dis a mental impaired by was substantially frain from conduct 3d Ill. 516. Spears (1978), App. ease or defect. v. People its the facts in by find that the State has satisfied burden We opinion testimony presented witness ample lay evidence 351, 353, 376 Ill. (See People Young (1978), App. trial. v. Ill. 2d As appeal (1978), 614.) previously denied stated, general opportu rule is that who have had nonexperts mental condi give their person may opinions to observe nity observed, including on facts conversations tion or based capacity con admissible, must limited to opinions they him. To render such (People from the specific testify. clusions drawn facts to which 40, 44; Krauser 315 Ill. (1925), Patlak Whether sufficient facts and circumstances have been testified within the the trial of discre discretion of court and absent an abuse tion, its v. Lech appeal. People determination will be reversed ner Ill. 2d 809. 553; People v. Kuntz find here. wit lay

We no such abuse discretion Several testified facts and nesses as to circumstances testimony ap drawn conclusion. The that defendant have its peared ability normal substantiated defendant’s apparent instructions to him 5. In addi given night February follow on the tion, the evidence at trial included the fact that automo defendant’s bile was found some one-half block from the scene the crime con articles, taining including several can of polish, black shoe cotton rubbing balls and a plan design alcohol. existence of for a crime, especially escape prevention for detection or conceal crime, ment of the held to of particular has been a factor relevance 510, to a defendant’s v. 63 3d sanity. (People App. Ill. Spears 799, 519; 822, 3d 421 People Dunigan (1981), N.E.2d 1319, find the evidence appeal denied 2d We showed a substantial carried a satchel in which to plan: defendant conceal his and to He dis weapon place proceeds robbery. guised himself his face shoe car covering polish. getaway His nearby. Muth, ordered halt Officer posted When fired two shots before fleeing down a gangway. From the totality presented, evidence properly find that defendant both appreciated the criminality of his conduct and could conform his conduct to the law on the date question.

Defendant next contends he is entitled to a new trial where al- leged may errors have caused the reject the defense of insan- ity without examining the evidence. Specifically, defendant alleges that the State elicited certain testimony on cross-examination which unfairly discredited defendant’s expert witness and that the trial then judge erred in barring certain testimony would have shown bias on the part State’s expert. When coupled with the prosecutor’s closing argument which denigrated the defense of insan- he ity, argues that the alleged defects constitute reversible error. We do not agree.

We first note that none of the alleged defects were objected to at trial or by way of a post-trial motion. Failure to make a timely objec tion to improper remarks generally constitutes a waiver of that issue purposes appeal. (People v. Skorusa 577, 55 Ill. 2d 630; N.E.2d People v. Boyd (1980), 825, 88 Ill. App. 856, 931, 82 Ill. 2d cert. denied (1981), U.S. 70 L. Ed. 2d 102 S. 633.) Moreover, Ct. the trial court is in a better position than a court of review to determine the effect, prejudicial if any. rule, Notwithstanding the a reviewing court may consider the if argument the defendant would be so prejudiced as to be denied a fair trial. v. Brown (1974), 20 Ill. App. People Boyd (1980),88 Ill. 856.

Defendant’s Dr. expert, Seglin, was cross-examined after testify- ing defendant was insane at the time of the of- fenses. Defendant contends that the prosecution discredited Dr. Seglin’s testimony by repeated inferences that the doctor hid behind the doctor-patient privilege by advising defense attorneys not to re- quest written reports their regarding client’s In sanity. closing argu- ment the harm was compounded, defendant alleges, by the State’s comparison of Dr. to Dr. Seglin Kaplan, State’s expert, who had that very morning testified for the surrebuttal, defense. In the de- fense then attempted to prove bias of the State’s expert by showing that the trial in which he had testified that morning was a stipulated bench, as opposed a contested hearing. We have examined each of alleged defects in context and find none of them to re- present error, versible either individually cumulatively.

We note first that the two experts testifying for the defense gave different substantially diagnoses. As we have stated; the already

905 both testi- either or discount testimony free jury accept was Since 510, 518.) Ill. 3d we App. v. 63 (People Spears monies. sufficient factors in evidence opinion testimony find the other lay a sanity beyond of defendant’s reasonable jury’s finding the uphold offenses, in this regard time error any purported at the of the doubt not Further, will find reviewing court must considered harmless. error unless the would have arguments prejudicial a prosecutor’s remarks not been made. had contrary improper reached a verdict 855-56. Boyd (1980), App. v. that he argument little merit in defendant’s We likewise find in surrebuttal which would have was fact precluded proving of we that expert. agree showing the State’s While established bias of interest, accepted impeachment (People or is an method bias motive 901, 903, appeal N.E.2d Thompson (1979), 623), 79 Ill. 2d we find no abuse of discretion denied sought trial determination that the factor which defendant court’s impeaching. introduce was neither material nor The evidence showed that Dr. testified 15 times for the defense. Kaplan approximately had His as to was corroborated numerous sanity by defendant’s witnesses, In lay as as facts in evidence. light forego well ing, barring sought factor which defendant to es specific cannot be said to have a material factor in defendant’s tablish been conviction. also error when the

Defendant contends reversible occurred required not instructed on the element of intent properly murder or lesser offenses than those charged. included attempt to raise at trial or written objections Since defendant failed these motion, may we consider them Court Rule pursuant Supreme if there is a substantial defect instructions 451(c) only R. justice require. 451(c); People interests of so Ill. 2d Pardo 556, 564, 81 Ill. 2d 597.

The tendered instructions on murder were as follows: attempt who,

“A intent to person attempt commits crime of murder, commit the of act constitutes a crime does of substantial toward commission the crime murder. step The crime need have been committed. attempted

A murder kills an individual person commits crime of who if, death, the acts he intends to performing which cause individual; or he will kill that knows that such acts cause to that death individual. charge

To sustain the must attempt, prove State following propositions: That

First: the defendant act which performed an consti- commission tuted a substantial toward the step the crime murder; That the Second: defendant did so with intent to commit murder; crime Third: That the defendant was then sane.” (Emphasis added.) argues even given, though instructions there kill, a specific

was reference to the intent to the jury allowed to con- him vict if found he they something specific had less than intent to murder. He distinguishes between the intent to murder and knowl- that edge one’s acts will cause People death. court in v. Morano 580, (1979), 816, 69 Ill. 3d App. appeal 387 N.E.2d denied (1979), 79 616, Ill. 2d dealt with similar were instructions which couched in terms of knowledge of “the of death” probability and concluded that part belief on the of an that actor certain results would follow “[t]he his conduct is to specific sufficient show a intent that result to oc- 580, cur.” 69 Ill. 3d 586. See also v. People (1955), Shields 6 Ill. 200, 206, 2d 127 N.E.2d 440. defendant,

The cases cited v. including People Harris 16, 28, (1978), 72 Ill. 377 People (1979), 2d N.E.2d v. Roberts 75 Ill. 1, 331, 2d 1, 387 N.E.2d and v. Jones People (1979), 2d 405 343, N.E.2d that distinguishable they are in each involved instructions containing alternate definitions of murder in terms of “great framed bodily harm.” The instruction at issue does not contain the objection able was language proper. People (1979), therefore v. Morano 69 580; 704-05, Ill. App. People (1980), 83 Hancock Ill. App. appeal (1980), denied Ill. 2d see also v. Barker Ill. 2d 415 N.E.2d denied cert. 976,101 452 U.S. 69 L. Ed. 2d S. Ct. 3116. similarly reject jury

We defendant’s contention included regarding should have been instructed lesser offense of province reckless It is within the conduct. decide of the or guilty charged whether not accused is crime lesser where included offense there evidence which tends to prove lesser, Nonetheless, than rather crime. where the greater, evi dence shows the accused is offense or guilty higher either offense, an instruction on the is unneces guilty lower offense sary refused. properly (People Thompson 773, 776, Ill. 2d We that the sufficient to convict defend- presented hold evidence failed to has therefore that defendant offense and higher ant reversal. given require instructions show substantial defects two to defendant’s regard the record with reviewed Having of summar contentions, disposed feel that can be we remaining rights constitutionally guaranteed that his contends ily. when, counsel were violated and to confer with his at trial present removed from trial he was judge, from the warnings after repeated dis Defendant does not disrupting proceedings. the courtroom for discretion, argues but the court’s an act was within that such pute to the he was back transported error occurred when that reversible of hours. for a matter lockup, the courthouse jail, opposed the effective assistance that he was denied Defendant also contends that his to adduce evidence failed attorney counsel where defense although unjust, conviction was robbery incarceration on a bank prior retried was pre was reversed and never evidence that said conviction fact, introduced, if have influ may maintains that this sented. He conviction had wrongful to credit the evidence that enced to his mental illness. contributed of our find little merit in either of these claims view

We of the ev findings regard sufficiency to reasonable doubt and Further, nothing there is guilt. idence to defendant’s pertaining deprived very thorough record to indicate defendant was the course of the competent representation throughout proceedings, for representation required by far the minimum standards surpassing law. reasons, of the circuit court of foregoing judgment

For the Cook is affirmed. County

Affirmed. J.,

McGLOON, concurs. CAMPBELL, dissenting: PRESIDING JUSTICE I was over- guilt with the that the evidence of agree majority dissent, to the I whelming charges against respectfully as defendant. convic-- however, judgment insofar as the has affirmed majority man, defendant, trial, a black grant tion and refused to a new where 10 of its pe- the State exercised raised the issue of racial bias where No jury. from person to excuse black remptory challenges every black sat on the juror jury. the State and to the tactics of objected

Defendant’s counsel chai- stated, exercised 10 peremptory “As the Court is aware State lenges and each Black challenge excused a I feel person. client my is entitled to a jury of his I peers, your honor. feel is being that he de- nied I this. would ask the Court a mistrial.” The State responded by stating Honor, that “there was an attempt, your to have a balance equal number of men and women as the is jury comprised now there are seven men and five sitting women on the jury. We feel counsel’s motion is totally improper.” stated,

The “Counsel, court then I feel that would appear that the a appears to be fair I jury jury. your will motion.” deny The above constitutes the extent of the inquiry pretrial hearing on the issue of the improper use of the State’s peremptory challenge achieve a biased racially jury. Defendant that the argues State failed to explain why the blacks excluded did not fit the profile jurors se- approved State, lected and by State. On appeal, conceding use of its to exclude peremptory challenge 10 blacks from has jury duty, position stating reaffirmed its in People its brief “the attempted a balance of men have and women.” The State seems to be simply argu- ing how a is selected jury arguing and defendant is a is se- why jury lected. The State relies Swain v. Alabama 380 U.S. 13 L. Ed. 2d 85 Ct. S. and contends that defendant not may inquire a a prosecutor’s into motives in and the. particular case presumption must be that the prosecutor using the State’s challenges obtain fair and impartial jury.

This give must of facts to the presumption way light contrary court, decision, in a are evident this case. This well-reasoned 1046,1 Payne held recently amendment, that under sixth right to an accused’s not to have the State apply

“Swain does affirmatively sixth amendment to a drawn right frustrate his community, from a fair cross section of the which is the constitu- case. We therefore apply tional issue a decision this underlying Swain, case than and we and its rationale to this rather Taylor State, i.e., precludes that the sixth amendment conclude frustrating right attorney, affirmatively from prosecuting of the com- from a fair cross section the accused drawn to exclude blacks munity utilizing peremptory challenges because are blacks.” 106 jury solely 1042-43, 1046,1052. set the numerous great into detail to forth Payne goes case argument Payne subsequent case. to oral instant

1The in was issued raised, cases wherein this issue has been and this pernicious system- atic practice the State is made even worse of the frequency occurrence.2 There little doubt that the State has enthusias- embraced tically results use of the chal- produced by improper peremptory lenge fact, to achieve a in racially biased this case. In this practice unnecessary superfluous and resulted in error. The evidence of guilt was so that overwhelming finding would guilt probably not have if changed even the composition had been of the same ethnic group defendant.

The State also argues that defendant must show the use systematic of peremptory challenges against blacks over a of time. period argu- This ment completely exonerates the State gives the State the clean hands it claims it so richly deserves. To cast such a burden denies defendant a fair trial and good ascribes faith efforts to the State despite the presence and existence of the unconstitutional practice of the State of arbitrarily withdrawing the privilege jury service from black citizens. The practice of the State may form, fair in appear but admit- tedly has a discriminatory impact and discriminates in its operation. Any such placed burden on defendant of establishing prima facie case of prosecutorial misconduct would entail proof of a plan conceived or operated as a purposeful devise or technique to further racial discrimi- nation. The precise nature and extent of the evidence necessary to estab- lish such proof or intent would difficult, be most if not impossible, achieve.

Any burden placed on defendant should not aid the trial court avoiding its responsibility to a defendant by closing its eyes obvious practices occurring trial in open court especially where such practices tend to undermine our traditional guarantee of a fair trial.

In Commonwealth v. Henderson 497 Pa. 438 A.2d Justice Nix stated in his dissent:

“Is to sit justice by and flaunted in after supinely case case before a remedy is available? Is justice only obtainable after re- peated injustices are demonstrated? Is there any justification within the traditions of the Anglo-Saxon legal philosophy per- mits the use of a presumption to hide the existence of an obvious 23, 43, fact?” 497 Pa. 438 A.2d 961.

It would certainly follow this case that of the court duty 2It does not records or are appear reports compiled disposition (85 cases 23), Court Rule 23 Ill. 2d R. wherein this issue has been pursuant Supreme i.e. v. Batteast raised, 3d 1201. was clear not to endorse the conduct but to the in prosecutor’s protect tegrity and administration of the The proper judicial system. observation by court this case was “that the a fair jury appears jury” be an endorsement. The clearly disagreed with a ob timely jection justification. and with A more ample probing searching look hearing and more extensive the court was needed so that a by dispro portionate challenges number of were not used to facilitate and an justify invidious discriminatory purpose. People Payne; People See v. Wheeler 890; (1978), Cal. 3d 583 P.2d 148 Cal. Commonwealth Rptr. denied, v. Soares 377 Mass. 387 N.E. 2d cert. Annot., 444 U.S. 62 L. Ed. 2d 100 S. Ct. see also Use of Peremptory Challenges, (1977). 79 A.L.R. 3d 14 does not call for the or to

Payne peremptory challenges abolition function, consequences emasculate its but seeks to avoid the of biased and a said the State with jury perverted peremptory challenges by use of this court of the trial court. trial court and have acquiescence infir- the conduct of the State that no constitutional approved by finding challenges existed in the exercise of the State’s to ob- mity peremptory flagrant tain a The State is free to in more jury. again engage biased abuses as from the record in this case. appear abounding grandest

It said in this case that one of the of all may be the use through the State that may possessed by illusions be illusion that the State was challenges of its 10 to exclude 10 blacks peremptory of an number of men and equal “to have a balance only attempting the action I remain of the State’s efforts and view women.” unconvinced guarantees as a to circumvent the constitutional technique devise Payne, trial. I also find that the principles an unbiased and a fair and that the should the case bar controlling Wheeler and Soares and the are mis- majority of the standards cited the State application of the fact that the use convictions reason I would reverse the placed. and due impartial jury the State denied challenges by of peremptory as to a new trial. require so tainted or process polluted

Case Details

Case Name: People v. Teague

Court Name: Appellate Court of Illinois

Date Published: Aug 30, 1982

Citation: 439 N.E.2d 1066

Docket Number: 79-2095

Court Abbreviation: Ill. App. Ct.