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THE PEOPLE OF THE STATE OF WHITAKER, Defendant-Appellant. ALFRED JAMES District No. 79-916 Third rehearing August on denial of 14, 1980. Supplemental filed filed 28,1980. August *2 Agostinelli Hoffman, Robert Appellate and Charles both Defender’s Office, Ottawa, appellant.
Jeffrey O’Connor, W. Attorney, Cambridge, State’s People. for the Mr. SCOTT delivered the of the court: JUSTICE This is appeal from an order of conviction entered after a trial by the Circuit Henry Court County. guilty Defendant was found of two violence, counts of aggravated armed battery and reckless conduct. He six years’ imprisonment sentenced to on one count of violence. armed early 3,1979, morning hours May Roberta Fox left her home Geneseo, in Illinois, husband, pick up to working her who was Betten- dоrf, Iowa. She drove to Route 92 where she turned west. She had driven one-quarter mile when she saw bright lights approaching a car with its on her from behind high speed. at a rate of The car remained behind her from 20 to 30 seconds pulled and then out as if pass. to The car remained next to hеr for 10 to 15 seconds. She turned to look at driver when a shot the other shattered her window and struck her in the chin. Fox not see the other driver but gold did notice that his car strip paint color with a of white on the right front quarter. Illinois,
Fox Joslin, drove to stopped where she was at a railroаd crossing by motorist, passing sought help Virginia train. She from another Lively, who stopped crossing. Lively’s was also entered After Fox car, Lively passed, pulled drove across into a the tracks after the train tracks, driveway, headlights. gold and shut off her She car saw a cross Lively drive to thе Illini Packing Beef Plant and turn around to come back. police backed away. gold onto Route 92 to drive Fox then saw a car and stopped car on the road near her car. he received Henry County when Wally duty
Trooper White was armed by an being harassed people transmission that some radio Joslin, Packing Plant at Mini Beef gold black man in a Continental driver, White who away. The Illinois. White saw the Continental drive immediately signal. defendant, upon White’s stop failed to identified as the car squad his finally White left stopped, When the Continental car, Defendant, inside who remained approached defendant’s car. get got said, going I’m home. I’ve “Where am I? turned to White and it. prevent White was able but away, work.” Defendant tried to drive gun the seat defendant. White noticed beside Agent of Law Enforcement Department The defendаnt told John forced he was in East Moline driving that while to his home Gully he was right to the causing damage off road his car truck struck happened of what front of his car. had no clear recollection Defendant after that. drinking in Rock Island for
At trial that he had been 2,1979. go he drove onto May several hours on When decided to home he in traffic Interstate 74. some trouble with Defendant then testified about driving complained several cars. He of those cars were the drivers erratically escape them. Defendant merely trying from pulled road, warning gun off the the trunk and firеd a removed car, fired got approached shot. He back one of the another into his cars back shot. He drove to he was lost. He drove and realized Joslin *3 car highway driving pass. saw tried to slowly. and a car He slowed and a shot warn kept pace with him he slowed. He fired as accelerated and turned around at sped away. the car off and then He still lost when he was frighten shooting the Mini Beef His Packing only Plant. reason drivers, the other hurt them. not his, bumped
The other their cars with drivers testified defendant erratically drove off the and shot at their аnd tried to force them road They Packing vehicles. Mini where called drove to the Beef Plant police. Hauck, psychologist,
Dr. Paul clinical testified for the defendant. a Utah, University practiced a full degree Hauck received Ph.D. from the Utah, years, taught University 26 psycholоgy time for and also the State, College. St. was consultant at Bradley Marhot and Ambrose and had Hospital Franciscan Rock Island Mental Health Center and the articles He also had lectured to psychology. written 30 and 10 books and Psychiatric diagnosing American had involved Assoсiation. He been when he was treating psychosis schizophrenia such mental illnesses as psychologist Hospital. chief Illinois at the defendant, in- study performed psychological a
Hauck the basis of intelligence personality tests. On administering cluded 566
study, diagnosed Hauck defendant hystryonic personality, as a an emo- tional by disorder listed Psychiatric the American Association. Hauck considers hystryonic personality to be a disease. A mental person with that disorder does not how know to control his emotions in a stressful situation. The produce persоn use of alcohol can a reaction in with such A person a disorder. with a hystryonic personality psy- is not a chotic and when under not be drugs very influence of or stress can well-thinking person. In a situation such May one which occurred on 3, 1979, a person with a hystryonic personality wоuld lack the substantial capacity appreciate the criminality of his or to conduct conform the requirements of neurological the law. dys- Hauck found evidence of no function performed any no medical if tests determine there psychological problеms.
Two reputation witnesses called he had a testified that peaceful for being a person. and nonviolent During his closing argued statement the that Hauck not psychiatrist disregarded. and therefore his testimony should be argued person’s that the is not sanity best evidence testimony an expert people but the known him who had over period objection time. Defense counsel’s was sustained.
The prosecutor also not stated he did believe defendant’s conduct by his hysterical caused personality. story He stated was unbelievable and that he fear bеlieve entered into defendant’s actions objections toward Roberta Fox. counsel’s were overruled Defense court, right trial to his beliefs.” who stated that “has a
On right appeal argues that he was denied his constitutional argument. to a fair improper closing trial argues Hе also that the trial a motion to vacate denying court erred convictions four was convicted because all offenses of which defendant physical arose from the the trial same act. The State has conceded that in denying charge more arises from erred motion. Where than one act, may physical only greatest same the conviction for the offense cert, 551, 838, v. (People King (1977), stand Ill. 363 N.E.2d 66 273), though U.S. 54 L. S. Ct. even no Ed. (People Lilly sentence is entered on the lesser offenses 1). 309 N.E.2d time he Defendant contended that he was insane at the cоmmitted charged appreciate offenses in the information and could not therefore *4 requirements of his to the of the law. He criminality conduct or conform Hauck, support to testimony psychologist, of Dr. introduced Paul a clinical his asked the insanity During closing argument prosecutor defense. his the testimony psychologist, jury disregard to Dr. Hauck’s because he was hypotheti- psychiatrist. opinion expressed after a argued He that Hauck’s ingredient psy- medical it “the question incompetent because lacked cal — chiatry neurologicаl examinations.” — prop “a to allow recognized a trend Supreme The Court has Illinois psycho of and results qualified testify the nature erly psychologist to as to have been him, where those tests logical particularly tests administered by the use purpose performed at thе request psychiatrist the of a v. Noble (People diagnosing latter in an mental condition.” individual’s court found 96, 101.) supreme (1969),42 Ill. The 248N.E.2d testing and many jurisdictions recognize psychological value the experts. as accept psychologists treatment therefore to are inclined thе condition opinions to mental psychologists Some even admit the as (People v. individual, properly qualified. if the is psychologist an prop believe, suggested, that Noble.) strongly We as supreme mental erly qualified may give opinion of defendant’s psychologist an condition. years his including
Dr. has impressive qualifications, Hauck practice, position psychologist his his as teaching, authorships, his chief qualified give to Hospital. properly the Illinois he We find that was examined carefully have defendant’s mental condition. We closing prosecutor’s аrgument instant We believe case. credibility qualifications remarks his directed Hauck’s rather than lamentable, or expert his is opinion. prosecutor’s Whilethe choice of words we do not find them be error.
The of defendant’s argued that the best evidence The mental his character witnesses. testimony condition two (DiverseyLiquidat trier of fact determines of the witnesses. credibility 523,19 is ing 363.) No witness Corp. Neunkirchen 370Ill. N.E.2d inherently expert he is an witness or because more credible either because lay is (31 Expert Am. Evidence witness. & §181 Jur. however, (1967).) is believable may, argue Counsеl that one witness more reasonable long than another as is on the evidence or argument his based inferences to (People be drawn from the v. Sinclair evidence. case, find that the 298.) N.E.2d In the instant we argued
included his remarks several references the evidence. of timе period one of the for a character witnesseshad lived with defendant ample with behavior. The opportunity to observe defendant’s and his compared spent then this with the time with defendant Hauck that these opportunity Again, we find to observe behavior. defendant’s refеrence credibility. prosecutor’s were directed toward The his best consider merely suggestion jury evidence was argument credibility of the witnesses. determining when that he not believe also told of the authority or prosecutor speaks with evidence. *5 568
State. He great must take care that he not defendant prejudice does the extent that (Peoplev. Fain (1976), App. he affects the jury verdict. 41 Ill. 872, 355 61.) opinions N.E.2d A even may express may and use express those opinions. (People v. App. invective to Allen (1966), 256,219 not, however, 653.) may N.E.2d is express opinion which People upon based v. 221 Ostrand (1966), evidence. 35 Ill. 2d 499. N.E.2d case, the instant preface by saying would,
that he “interpret I my opinion they the facts as in are told believe from the stand here.” We proper believe his remarks were within the limits argument. The reminded the defendant’s actions and his alleged insanity contradictory. Defendant that he feared the actions of suits by the other drivers and them and civil only wanted escape appre- them. His defense was that he did not gun. ciate use of a This is We what the called unbelievable. permissible find his remarks in that context.
For the rеasons stated judgment above the of the Circuit Court Henry County hereby is affirmed.
Affirmed.
ALLOY, BARRY, J.,P. J., and concur.
SUPPLEMENTAL OPINION ON DENIAL REHEARING OF Mr. opinion SCOTT delivered the court: JUSTICE opinion 14,1980, An in this August case was which filed this on affirmed the trial court’s counts conviction the defendant two violence, armed aggravated battery Subsequently, and reckless conduсt. 19,1980, on August it is petition rehearing filed a for alleged that this court failed to whether error to address issue as committed it certain trial court when denied motion to vacate convictions, wit, a conviction for one of armed violence and count conduct, conviction aggravated for and since all arose battery reckless from the same physical act. 18,1980, multiple opinion
In the the issue of August this court noted act, however, convictions resolve the same. arising from one did not its cor contention of the is and the State concedes well taken cert, Ill.2d 551, 363 838, (See N.E.2d People King rectness. 66 Accordingly Ct. 273.) U.S. Ed. S. 54 L. 98 this court armed vio vacates the defendant’s conviction on one count of battery lence and for reckless conduct. aggravated the conviction and remaining count armed violence conviсtion for the one imposed the sentence thereon are affirmed. by this court
Having supplemented opinion heretofore entered 14,1980, is August rehearing denied. petition the defendant’s for petition Affirmed supplemental as modified this rehearing denied.
ALLOY, BARRY, J., J., P. concur. *6 CHIRIKOS, CAB COMPANY v. YELLOW Plaintiff-Appellant, N. ANTHONY al., Defendants-Appellees.
et (1st Division) 79-288 No. First District 15, 1980. Rehearing September filed June 1980.