author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEBORAH WILHOITE, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—1577
    Opinion filed December 27, 1991.

      Michael J. Pelletier and Debra R. Salinger, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Jeanette Sublett, and Donald Lyman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a trial without a jury, defendant Deborah Wilhoite was found guilty of the attempted murder of her nine-year-old daughter. The court sentenced her to a term of 10 years in prison. On appeal, defendant contends that she proved by a preponderance of the evidence that she was insane at the time of the offense and that the State failed to prove specific intent beyond a reasonable doubt.

At trial, the State presented all of its evidence by way of stipulation. The parties agreed that if defendant’s nine-year-old daughter, Tiffany Wilhoite, were called to testify, she would state that on February 28, 1988, at 9:00 p.m. she, her 11-year-old sister Ava and her 14-month-old brother Andy were in their respective beds. Tiffany saw defendant pick Andy up, walk towards the window of the eighth-floor apartment, and open the window. Defendant was saying, “We have been saved and are going to heaven.” Ava managed to pull Andy away from defendant, run into the bathroom and lock the door.

Defendant then grabbed Tiffany and pushed her out of the window head first. Tiffany resisted, saying, “Mama, I thought you loved me.” Defendant pushed Tiffany’s entire body out of the window, but Tiffany held on to a curtain and did not fall. Defendant then walked away from the window. A neighbor then came and pulled Tiffany up into the apartment, unharmed. Her mother was gone.

The parties agreed that if Ava were called to testify she would testify similarly.

The parties agreed that if Valerie Brown were called to testify, she would state that she lived in a ninth-floor apartment in defendant’s building. On February 28, 1988, at 9:00 p.m., she heard screaming. She looked out her window and saw Tiffany being pushed out of a window by defendant. Defendant was yelling “Get out.”

If Stanley Norman were called to testify, he would state that he lived on the sixth floor of defendant’s building. On the night in question, he heard screaming and saw Tiffany hanging out the window by a curtain. “He would testify that he ran up to the [defendant’s] apartment ***. And as he got to the door to their apartment he encountered the defendant whom he would identify in open court who was fleeing the apartment.” Norman entered the apartment and helped Tiffany back into the apartment. They located Ava and Andy hiding in the bathroom.

If Officer Skahill were called to testify, she would state that she arrested defendant on March 1, 1988, at 6 p.m. in an apartment at 1900 West Washington. Skahill and an assistant State’s Attorney interviewed defendant at the police station. Defendant told them that on February 28, 1988, she smoked a marijuana cigarette, then began to pray. “The defendant told her that she thought throwing Tiffany out of the window was a test to see if the defendant could get into heaven. The defendant thought she would be able to join Tiffany in heaven. She took Tiffany over to the window [and] Tiffany said, ‘Mama, I thought you loved me.’ The defendant stated, T do love you.’ And then she pushed Tiffany out the window. The defendant thought she had *** succeeded in throwing Tiffany out of the window to her death.” A laceration on defendant’s head was the result of the struggle with Tiffany.

The State then rested its case.

The defense then presented the stipulated testimony of three psychiatrists who had each previously examined defendant on behalf of the court.

If Dr. Gerson Kaplan, a forensic psychiatrist employed by the Psychiatric Institute, were called to testify, he would state that he examined defendant on June 6, 1988. (On March 31, 1988, the court ordered the Psychiatric Institute to examine defendant as to her mental condition and report to the court.) Based on his examination and his review of the police reports, Dr. Kaplan would opine that at the time of the offense defendant was legally insane and unable to conform her behavior to the requirements of the law due to the condition of brief reactive psychosis.

If Dr. Albert Stipes, a forensic psychiatrist employed by the Psychiatric Institute, were called to testify, he would state that he examined defendant on July 14, 1988. (On June 17, 1988, the court ordered the Psychiatric Institute to examine defendant as to her mental condition, including her fitness to stand trial and her sanity.) Based on that examination, Dr. Stipes would opine that defendant was legally insane at the time of the offense.

If Dr. Robert Reifman, a forensic psychiatrist employed as director of the Psychiatric Institute, were called to testify, he would state that on November 2, 1988, he examined defendant. (On October 17, 1988, the court ordered Dr. Reifman to examine defendant as to her mental condition and report to the court.) Based upon that examination, he would opine that defendant was legally insane at the time of the offense. She suffered a brief psychotic reaction which rendered her unable to appreciate the criminality of her act or conform her conduct to the requirements of the law.

Defendant then rested her case.

In rebuttal, the State called Dr. Werner Tutuer, a psychiatrist, to testify in court. (On August 23, 1988, the court granted the State’s motion for a third opinion “from outside of the Psychiatric Institute.”) Dr. Tutuer testified that he examined defendant on October 9, 1988. He had also reviewed the reports of Drs. Kaplan, Stipes and Reifman. He opined that she was legally sane at the time of the offense. She was able to conform her behavior to the requirements of the law. In addition, she was able to form intent. “[S]he had knowledge when she escaped after the incident.” Dr. Tutuer believed defendant was “under the influence of pot when this incident happened.” He was of the opinion that she “was in a drugged condition.” He diagnosed the condition of cannabis intoxication.

Dr. Tutuer testified that during his interview with defendant, she provided him with a background history which revealed that Ava was born when defendant was 15 years old. Tiffany was born two years later. When defendant was 21 years old, she moved out of her parents’ home with the two girls, and moved in with her boyfriend, who fathered her third child, Andy. In 1987, Tiffany informed defendant that the boyfriend had molested her. The boyfriend then moved out.

According to Dr. Tutuer, defendant disclosed to him that for 10 years she had been using marijuana and “restricted] [her]self to two intakes twice a week.” She reported no history of mental illness.

Defendant reported to Dr. Tutuer that on February 28, 1988, she smoked marijuana 15 minutes before the incident in question. Defendant reported that after she smoked the marijuana, she felt like “the world was coming to an end. And then she became confused. She has complete amnesia for the incident.” (Similarly, his written report states: “She had smoked one joint of pot approximately 15 minutes before the incident and stated that she felt the world was coming to an end. Now follows a period of confusion and there is complete amnesia regarding the window incident.”) Defendant also stated that Tiffany resisted and eventually was able to get back in through the window. Dr. Tutuer did not recall defendant saying anything about the intervention of a neighbor.

In his testimony, Dr. Tutuer conceded that defendant did not tell him how much marijuana she had smoked on February 28, 1988. He believed that patients “have never given [him] relevant information in this context.” Defendant reported using marijuana twice a week and therefore was an “addict.” Dr. Tutuer also conceded that according to defendant, she had never before reacted to marijuana in a similar way.

Dr. Tutuer testified further that he did not believe defendant had suffered from brief reactive psychosis because she had no history of mental disease and the minimum period for brief reactive psychosis was two days and defendant’s reaction did not last that long.

Dr. Tutuer believed that defendant’s flight from the scene was “not relative to the brief reactive psychosis” diagnosis because the two were inconsistent.

“Q. Doctor, with regard to brief reactive psychosis, would you find it significant in your diagnosis that the defendant was able to stop her actions and attempt to escape after the intervention of a neighbor? Is that significant in your diagnosis?
A. In my diagnosis of drugged condition.
Q. Should I say would this be significant if a person was to make a diagnosis of brief reactive psychosis?
* * *
That defendant attempted to escape after a neighbor intervened?
A. Yes.”

In surrebuttal, defendant called Dr. Reifman to testify. Dr. Reifman testified that on November 1, 1988, he examined defendant. He had also reviewed previous examinations done at the Psychiatric Institute by Dr. Baker, a psychiatrist; Dr. Stipes; Dr. Kaplan; Dr. Fautek, a psychologist; a social worker who interviewed defendant’s mother; and a letter concerning defendant from an organization called Causes. Dr. Baker’s psychiatric interviews took place on March 8, 1988, within a period of time when the brief reactive psychosis could be even more easily determined. He also reviewed the police reports. The police reports were consistent with defendant’s report of the incident to Dr. Reifman.

Dr. Reifman opined that defendant was legally insane at the time of the incident. She suffered from brief reactive psychosis which resulted in her being unable to appreciate the criminality of her act or to conform her conduct to the requirements of the law. At the time, she was aware that the act was a violation of the law. Even if a police officer had been standing next to her, she still would have committed the acts in question. The precipitating factors of the psychosis were two stresses: discovering “around that time *** that her live-in boyfriend had been molesting her daughter, which was a severe stress to her; and secondly, she was having financial difficulty.” These stresses could account for “this breaking point.” Smoking marijuana was not the cause of the psychosis.

The brief reactive psychosis ceased within less than two weeks, “but there were indications that she was still religiously preoccupied for several months” while in jail.

Dr. Reifman further testified that the ingestion of marijuana was not an organic factor precipitating the psychosis here. The typical symptoms of cannabis intoxication, as listed in the standard diagnostic manual used in the mental health field, included anxiety, suspiciousness, paranoid ideation, impaired judgment, and panic attacks. However, according to Dr. Reifman, these were also symptoms “found throughout the [diagnostic] book. They are symptoms that go along with psychosis. There are symptoms that go along with practically every major psychiatric disturbance.” He also took into account that ■defendant had no previous psychiatric history.

Defendant reported to Dr. Reifman that on February 28, 1988, “God communicated to her that the end of the world was about to occur and that she should, she and her children should die painfully so that they would have peace in heaven.” She then threw Tiffany out of the window. She believed she was doing an “altruistic deed; she was saving her children from a horrible death when the world came to an end and giving them a painful death now, but then they would have peace in heaven, so it seemed to her with her mental condition at that time that that was a logical, reasonable thing to do.”

Dr. Reifman stated that he was aware that a neighbor gained entry to the apartment, and that defendant then “fled.” He explained:

“[I]t means to me that there was some awareness of reality at that given time, some awareness that something had gone wrong.
* * *
*** Well, she describes it like having a seizure, so I think there was at some level awareness that something was going on that was terrible.”

During the incident, defendant was “very guarded. I mean, she ha[d] an illusion that the world was coming to an end. I think that she would be suspicious of anything that would happen at that time. I think she was very vulnerable to suspiciousness at that time. She was also hearing voices at the time. I think she heard God’s voice telling her this, so her, in her state of confusion I would say emotionally she was very suspicious.”

Dr. Reifman further testified that defendant informed him that she had smoked a joint or two of marijuana every week for 5 or 10 years, but he did not consider her an “addict.” Although he agreed that a person experiencing cannabis intoxication may experience auditory hallucinations, he explained further:

“It’s not a natural ordinary response, it could be an idiosyncratic response, it would be a[ ] rare response.
I took that into consideration, but it’s unlikely, very unlikely this would happen to a person who had used marijuana over a period of time, because apparently this is the first time it ever happened.
When you experience, when a person experienced these kinds of strange reactions to substance, that usually is early when they start taking them, early in the game.
A person who has experienced marijuana over years is unlikely to have an untoward reaction to it after experiencing the drug for about five or ten years, whatever time.
It’s those people who have never experienced the drug that have a strange reaction to it.”

Thus, if defendant were going to have a reaction to marijuana, “it would have happened when she first started using the drug.” Defendant had never experienced “this kind of difficulty” with marijuana.

At the time of the November 1, 1988, examination, defendant exhibited signs of depression, but she was free of psychosis.

The court found that defendant was legally sane at the time of the offense and was guilty of attempted murder. It rejected the defense psychiatrists’ opinions because defendant had no prior history of mental illness and they had “no explanation for it.” The court found Dr. Tutuer’s diagnosis of cannabis intoxication, “a voluntary cannabis intoxication caused by the frequency of the defendant’s use,” to be “more logical.” The court concluded that the cannabis intoxication “did not deprive her of any capability of forming an intent nor did it deprive her of a capability to conform her conduct to the requirements of the law.”

Opinion

Defendant contends she proved by a preponderance of the evidence that she was not sane at the time of the offense.

A defendant may not be convicted of conduct “if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2(a).) Defendant bears the burden of proving “by a preponderance of the evidence that the defendant is not guilty by reason of insanity.” (Ill. Rev. Stat. 1987, ch. 38, par. 6— 2(e).) A preponderance of the evidence means defendant must prove it is “more likely than not that he was insane when he committed the offenses charged.” (People v. Moore (1986), 147 Ill. App. 3d 881, 886, 489 N.E.2d 701. See also P. Robinson, 1 Criminal Law Defenses, §5(c), at 51-52 (1984) (“Proof by a preponderance of the evidence requires the burdened party to convince the jury that the claim he asserts is more likely than not to be true. Where a defendant must prove a defense by a preponderance of the evidence, the factfinder must deny the defense where it believes only that it is as likely as not that the defendant qualifies for the defense”).) (Emphasis added.) The State bears no burden on the issue of insanity. People v. Seuffer (1991), 144 Ill. 2d 482.

Under the pre-1984 insanity defense, a reviewing court would only overturn the finding of the trial court on sanity if the finding was so improbable or unsatisfactory as to create a reasonable doubt as to defendant’s sanity. (People v. Silagy (1984), 101 Ill. 2d 147, 169, 461 N.E.2d 415 (construing Ill. Rev. Stat. 1979, ch. 38, par. 6 — 2).) Because the burden of proof has been modified from “beyond a reasonable doubt” to “a preponderance of the evidence,” the standard of review has changed to “a determination of whether the trial court’s finding was against the manifest weight of the evidence.” (People v. Quay (1988), 175 Ill. App. 3d 965, 968-69, 530 N.E.2d 644.) For other opinions construing the new insanity defense and holding that the standard of review is that the fact finder’s resolution of the sanity issue will not be disturbed unless it is contrary to the manifest weight of the evidence, see, e.g., People v. Johnson (filed November 27, 1991; as revised upon denial of rehearing February 3, 1992), 146 Ill. 2d 109, 128-29, 585 N.E.2d 78; People v. Beehn (1990), 205 Ill. App. 3d 533, 539, 563 N.E.2d 1207; People v. Engram (1990), 193 Ill. App. 3d 511, 523, 549 N.E.2d 1333; People v. Janecek (1989), 185 Ill. App. 3d 89, 93, 540 N.E.2d 1139; People v. Bouchard (1989), 180 Ill. App. 3d 26, 33, 535 N.E.2d 1001; and People v. Martin (1988), 166 Ill. App. 3d 428, 433, 519 N.E.2d 1085. See also People v. Bradley (1991), 220 Ill. App. 3d 890, 904 (“it was not unreasonable for the jury to conclude that defendant failed to prove the defense of insanity by a preponderance of the evidence”). Cf. People v. Beehn, 205 Ill. App. 3d at 541-42 (Steigmann, J., specially concurring) (standard of review should be same as civil standard for directed verdict or judgment n.o.v.).

The issue of defendant’s sanity at the time of the offense is generally a question of fact. (People v. Martin, 166 Ill. App. 3d 428, 519 N.E.2d 1085.) The weight to be given an expert’s opinion on sanity is measured by the reasons given for the conclusion and the factual details supporting it. (People v. Martinez (1980), 86 Ill. App. 3d 486, 408 N.E.2d 358; People v. Kuhn (1979), 68 Ill. App. 3d 59, 385 N.E.2d 388.) The opinion of an expert is of value only when it is based upon and in harmony with facts which are capable of verification by the court. (St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1973), 12 Ill. App. 3d 165, 179, 298 N.E.2d 289.) The trier of fact may accept one expert’s testimony over that of another, but the witness must be credible in his diagnosis. People v. Tylkowski (1988), 171 Ill. App. 3d 93, 524 N.E.2d 1112; People v. Palmer (1985), 139 Ill. App. 3d 966, 487 N.E.2d 1154.

If the expert’s opinion is without proper foundation, particularly where he fails to take into consideration an essential factor, that opinion “is of no weight, and must be disregarded.” 32 C.J.S. Evidence §569(1), at 609 (1964), (“[e]xpert testimony is of no weight, and must be disregarded, when it is contrary to common sense ***, undisputed facts ***, or where the opinion admits ignoring much of the best evidence available”), citing, e.g., Kentucky-Tennessee Light & Power Co. v. Fitch (1946), 304 Ky. 574, 201 S.W.2d 702; see also 32 C.J.S. Evidence §569(2), at 616 n.38 (1964), citing Marshall v. Sellers (1947), 188 Md. 508, 53 A.2d 5 (if any essential facts have been overlooked, the weight of the expert’s opinion is thereby weakened or destroyed).

In People v. Parr (1971), 133 Ill. App. 2d 82, 86-87, 272 N.E.2d 712, the court found that the testimony of the State’s expert witness was “improperly admitted into evidence, in light of the fact that no proper foundation was laid for its admission” where the expert admittedly failed to take into consideration the weight of the occupants of the vehicles “which [was] especially significant in light of his testimony that his opinion as to the speeds of the vehicles was based in part on the relative weights of the vehicles.” See also Heideman v. Kelsey (1960), 19 Ill. 2d 258, 265-66, 166 N.E.2d 596 (expert’s testimony was “at best meaningless” and was not competent evidence and was improperly admitted where he “failed to take into account” essential information regarding handwriting specimens).

In the present case, the State’s expert witness, Dr. Tutuer, diagnosed defendant’s condition as cannabis intoxication. That diagnosis suffers from many foundational flaws which fatally undermine his opinion that defendant was legally sane at the time of the offense.

Dr. Tutuer never asked defendant nor otherwise attempted to ascertain how much marijuana she smoked on the night of the incident, or at any previous time. While Dr. Tutuer stated that patients generally have poor credibility regarding the amount of marijuana ingested, he also stated that the amount ingested would be a variable relevant to a diagnosis of cannabis intoxication.

The State argues in its brief that “Dr. Tutuer did not admit the amount of cannabis smoked would be significant to a finding of cannabis intoxication.” However, the record shows that Dr. Tutuer was asked on cross-examination about whether his opinion varies depending on whether the patient smoked five cigarettes or half a cigarette of marijuana. He testified as follows:

“A. It might, but my experience is that defendant and patients have never given me relevant information in this context.
Q. So, you don’t concern yourself with the amount that is ingested — .
* * *
A. Not particularly, because there is usually very poor credibility with regard to the amount taken.” (Emphasis added.)

Because Dr. Tutuer failed to ascertain or even consider the amount of marijuana ingested by the defendant, his opinion attributing defendant’s conduct to cannabis intoxication rather than to brief reactive psychosis is untenable. (See People v. Jackson (1991), 144 Ill. 2d 43, 69, 72, 88-89 (failure to establish amount of marijuana and cocaine ingested renders expert opinion that defendant was intoxicated too tenuous in absence of strong support from other symptoms).) Without the knowledge of the amount ingested, Dr. Tutuer’s diagnosis depends entirely upon the inferences to be drawn from defendant’s behavioral symptoms. The evidence shows that the textbook source Dr. Tutuer professes to use as guidance in diagnosing her condition virtually negates his conclusion and supports those of defendant’s experts. As we detail below, the trial court’s conclusion that there was “no explanation” for a diagnosis of brief reactive psychosis ignores the substantial evidence offered by the defense.

The diagnosis of cannabis intoxication is listed in the Diagnostic and Statistical Manual of Mental Disorders, at 139 (3d ed. rev. 1987) (DSM-III-R). The State argues that we cannot consider the DSM-III-R because it was not admitted as substantive evidence and is not part of the record. However, the parties and witnesses at trial all referred to and relied upon the DSM-III-R extensively. All four psychiatrists, including Dr. Tutuer, acknowledge the use of the DSM-III-R in formulating their diagnoses. Many of the criteria listed in the DSM-III-R relating to the diagnoses of cannibas intoxication and brief reactive psychosis were discussed in detail in the testimony of Dr. Tutuer and the testimony of Dr. Reifman. The State itself used the manual in its cross-examination of Dr. Reifman.

Moreover, we may consider scholarly authority referred to by the parties in interpreting the evidence. (People v. Garrett (1975), 62 Ill. 2d 151, 339 N.E.2d 753.) The DSM-III-R is a diagnostic manual drafted by the American Psychiatric Association for the purpose of detailing diagnostic classifications used in the mental health field. (People v. Lang (1986), 113 Ill. 2d 407, 498 N.E.2d 1105; People v. Lucas (1986), 140 Ill. App. 3d 1, 487 N.E.2d 1212 (DSM-III-R is a recognized treatise in the fields of psychology and psychiatry); People v. Parker (1983), 113 Ill. App. 3d 321, 447 N.E.2d 457 (DSM-III-R is standard text for diagnosing psychiatric illness); In re Marquardt (1981), 100 Ill. App. 3d 741, 427 N.E.2d 411 (DSM-III-R’s purpose is to outline diagnostic categories and achieve a uniform nomenclature in psychiatry to facilitate statistic gathering and information exchange).) We also note that the State itself argues in its brief that Dr. Tutuer’s diagnosis of cannabis intoxication “was supported by the evidence and by DSM-III-R.”

Under the diagnosis of cannabis intoxication, the DSM-III-R states that symptoms such as abnormal feelings of anxiety and panic attacks occur “primarily in people who have not developed tolerance to the substance.” (DSM-III-R at 139.) In rejecting a diagnosis of cannabis intoxication, Dr. Reifman relied on the fact that defendant had used marijuana consistently for 10 years. She had never suffered an adverse reaction in the past. Dr. Tutuer offered no explanation for the anomaly that one night’s use of marijuana, after a decade of smoking marijuana regularly, would cause defendant to throw her children out of an eighth-floor window. In contrast to Dr. Tutuer, yet consistent with the DSM-III-R upon which Dr. Tutuer relied, Dr. Reifman opined that it would be “rare” and “highly unlikely” to experience such a reaction after having developed a tolerance to the drug.

Moreover, defendant’s symptoms went far beyond mere anxiety and discontent, and actually extended into hallucinatory delusions. It is undisputed that defendant suffered from auditory hallucinations and delusions. These symptoms were even acknowledged by Dr. Tutuer. Defendant believed the world was coming to an end and that God had commanded her to kill her children so that they could find peace in heaven.

The DSM-III-R expressly states that “[transient hallucinations or delusions are common” symptoms of brief reactive psychosis. (DSM-III-R at 205.) Significantly, however, the DSM-III-R does not include auditory hallucinations or delusions within the diagnostic criteria of cannabis intoxication. In fact, it states that hallucinations caused by cannabis intoxication are rare except where very high blood levels are reached. (DSM-III-R at 139.) It would be ironic to presume high blood levels here, where Dr. Tutuer did not ascertain any amount at all, and the other evidence in the record indicates defendant smoked only a single “joint.”

This is not a case where defendant may have invented the “voice of God” hallucinations as a defense after the offense occurred. Here, Tiffany testified that when her mother brought Andy to the window she stated, “We have been saved and we are going to Heaven.” Moreover, defendant consistently reported to the arresting officer and every physician who examined her that she was reacting to religious delusions. See People v. Garcia (1987), 156 Ill. App. 3d 417, 509 N.E.2d 600 (reversing conviction and finding defendant was insane where he heard spirits communicating with him and was unable to ignore the voices commanding him to harm the victim).

Similarly, the DSM-III-R attributes the symptom of aggressive behavior to brief reactive psychosis. (DSM-III-R at 205.) Defendant’s aggressive behavior toward her children falls under this description.

The DSM-III-R also states that brief reactive psychosis appears shortly after and in response to events which are markedly stressful, conditions which both defendant’s and the State’s experts recognized as having been present at the time of the occurrence. (DSM-III-R at 205.) Dr. Reifman noted the highly stressful events of the molestation of Tiffany by defendant’s live-in boyfriend and Andy’s father, who then moved out of the apartment, and the recent financial difficulties experienced by defendant. (Dr. Tutuer’s report specified various financial problems including a cancellation of defendant’s public aid for herself and her three children; her landlord’s threat to evict defendant if she did not pay past-due rent; and the electric company’s decision to turn off defendant’s electricity.)

In addition, Dr. Tutuer rejected the diagnosis of brief reactive psychosis on the erroneous basis that the condition must last at least two days, and upon the additional erroneous basis that defendant’s symptoms lasted only a short time. On the contrary, the DSM-III-R states that the condition may only last a few hours. (DSM-III-R at 205.) It should be noted with respect to Dr. Tutuer’s expressed contention that it has to last over two days that nothing in this record supports his presumption that defendant’s symptoms dissipated before that time. In fact, Dr. Reifman opined that, in defendant’s case, the condition actually persisted for up to two weeks.

Dr. Tutuer also believed the diagnosis was incorrect because defendant had no prior psychiatric history. However, the DSM-III-R does not require a prior psychiatric history for a diagnosis of brief reactive psychosis.

We further note that the DSM-III-R requires at least two of the following symptoms for cannabis intoxication: conjunctival injection; increased appetite; dry mouth; or tachycardia. (DSM-III-R at 140.) There was no evidence that defendant exhibited any of these symptoms. Moreover, the DSM-III-R diagnosis of cannabis intoxication requires that the behavior not be due to any physical or other mental disorder. (DSM-III-R at 140.) Even Dr. Tutuer found that defendant suffered from a personality disease.

Thus, the weight of Dr. Tutuer’s opinion is substantially diluted by its pervasive inconsistency with the DSM-III-R. See Mullen v. General Motors Corp. (1975), 32 Ill. App. 3d 122, 134, 336 N.E.2d 338 (opinion of plaintiff’s expert was “thoroughly discredited” where court’s examination of exhibits he relied upon “force[d] the conclusion that the only reasonable explanation for the tire’s failure was the one offered by the defendants”); see also St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp., 12 Ill. App. 3d at 179 (opinion of plaintiff’s expert was “severely impeached by the physical exhibits” before the court).

Thus, we are not convinced by the State’s assertion at oral argument before this court that cannabis intoxication can be inferred from defendant’s symptoms, even though the quantity ingested is unknown. (See People v. Jackson (1991), 144 Ill. 2d 43 (defendant failed to raise the affirmative defense of voluntary intoxication from marijuana and cocaine where defense experts did not know amount of drug ingested by defendant and where his behavior at the time of the murders, the detail of his recall, his motor coordination and lack of difficulty in speaking, walking or maneuvering all indicated he was not intoxicated or drugged to the point of being incapable of acting knowingly or intentionally).) Based upon the DSM-III-R, defendant’s symptoms cannot be attributed to cannabis intoxication without gross distortion and rash speculation and therefore may not provide a basis from which an inferential diagnosis of cannabis intoxication can be made. See People v. Janecek, 185 Ill. App. 3d at 94 (court reversed conviction, finding that trial court’s rejection of expert witness’ conclusions that defendant was insane was against the manifest weight of the evidence where both State and defense expert witnesses agreed on the factual evidence showing that defendant was confused, incoherent and suffering from delusions and hallucinations at time that defendant believed she was in danger, heard voices, believed her car wanted her to drive to a certain location, and led police on 24-mile high-speed chase).

Although Dr. Tutuer and the trial court purported to place some weight on the stipulated fact of defendant’s flight, the record discloses that the stipulation merely states that Norman, defendant’s neighbor, would testify that when he entered the apartment, “as he got to the door *** he encountered the defendant *** fleeing the apartment.” They also stipulated, however, that Tiffany would testify that her mother “walked” away after pushing Tiffany out of the window.

The stipulated testimony is not inconsistent with the diagnosis of brief reactive psychosis. Dr. Reifman explained that defendant’s leaving the apartment indicated she was aware at some level that “something was going on that was terrible.” In addition, she was extremely guarded and suspicious of her environment because at the time she was hearing God’s voice telling her that the world was ending. Flight “for the purpose of evading punishment under the lash of a guilty conscience” (People v. Martin (1942), 380 Ill. 328, 340, 44 N.E.2d 49) differs significantly from, e.g., flight which is part of defendant’s insane delusion. Dr. Reifman found no indication that defendant was fleeing in order to escape detection.

It should be noted that although Dr. Tutuer indicated that defendant’s “flight” was significant to his diagnosis, he relied upon inferences that were not mandated by the stipulated testimony of Norman through which the flight factor was established.

The question posed to Dr. Tutuer (whether it was significant that “defendant was able to stop her actions and attempt to escape after the intervention of a neighbor”) erroneously presumed flight in the face of detection and apprehension. The actual stipulation simply presumed flight of a general, unfocused nature. There was no testimony that defendant fled after she saw Norman, but rather defendant was in the process of “fleeing” as Norman entered the apartment. Nothing in the stipulated testimony of Norman indicated that defendant “stopped” her actions, upon perceiving Norman’s presence. The testimony of Tiffany indicates quite clearly that defendant did not stop until she believed that she was successful in carrying out her mission, after which she “walked” to the door.

Moreover, the testimony of Dr. Tutuer, including his testimony pertaining to the “flight” factor, would not provide a basis to preclude defendant from proving by a preponderance of the evidence that she lacked the “substantial capacity to *** conform [her] conduct to the requirements of law,” and therefore was insane at the time of the offense (Ill. Rev. Stat. 1989, ch. 38, par. 6 — 2(a)), nor does the State purport to make any such argument.

The key here is whether defendant “lack[ed] substantial capacity *** to conform [her] conduct to the requirements of law” (Ill. Rev. Stat. 1989, ch. 38, par. 6 — 2(a)), not whether she had knowledge of the criminal nature of her conduct. See People v. Schmidt (1915), 216 N.Y. 324, 338-40, 110 N.E. 945, 949-50 (Cardozo, J.) (“A mother kills her infant child to whom she has been devotedly attached. She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice. It seems a mockery to say that, within the meaning of the statute, she knows that the act is wrong.”). See also People v. Skinner (1985), 39 Cal. 3d 765, 217 Cal. Rptr. 685, 704 P.2d 752 (defendant not guilty by reason of insanity where he believed the homicide was commanded by God); State v. Cameron (1983), 100 Wash. 2d 520, 674 P.2d 650 (defendant may be insane where he believed God directed him to kill his stepmother).

As further support for the psychiatric testimony offered by defendant, we note that Dr. Reifman relied on outside sources of information which Dr. Tutuer apparently never saw. Dr. Tutuer only reviewed police reports and the reports of Drs. Stipes, Kaplan and Reifman. In contrast, Dr. Reifman had access to those sources plus reports from Drs. Baker and Fautek, a social worker, and the Causes letter. Notably, the report of Dr. Baker which Dr. Reifman reviewed was made within a week of the incident. Dr. Reifman testified that this was the most opportune time to examine defendant and determine if she suffered from brief reactive psychosis. See People v. Arndt (1980), 86 Ill. App. 3d 744, 749-50, 408 N.E .2d 757 (reversing conviction on basis of insanity; relying on defense psychiatrist who examined defendant less than two days after the occurrence and thus “was in an excellent position to evaluate her condition”).

Based on the foregoing considerations, Dr. Tutuer’s opinion regarding defendant’s sanity “raised serious doubts as to the validity of [his] conclusion and thus was entitled to ‘little if any’ weight.” See People v. Palmer, 139 Ill. App. 3d at 973 (reversing conviction on basis that defendant was insane, and finding State’s psychiatric testimony was weak and self-contradictory); People v. Marshall (1983), 114 Ill. App. 3d 217, 448 N.E.2d 969.

The trial court’s conclusion that it was “more logical” that defendant’s behavior was the result of intoxication caused by frequency of use is a medical diagnosis made by the trial judge alone. It ignores the fact that Dr. Tutuer did not base his opinion on frequency of use. Instead, he focused on the single episode of cannabis intoxication. Moreover, this argument is diametrically contradicted by the fact that there were no prior episodes.

Furthermore, “it does not seem that the [trial] court questioned the credibility of the psychiatrists, but rather that it drew different conclusions than they did.” People v. Arndt, 86 Ill. App. 3d at 749 (reversing defendant’s conviction and remanding for entry of a finding of not guilty by reason of insanity); see also People v. Garcia, 156 Ill. App. 3d at 424 (same).

We conclude that the manifest weight of the evidence at trial established that it was more likely than not that defendant was insane at the time of the offense. The weak and conflicting reasons offered by Dr. Tutuer for his opinion that defendant was sane and the absence of factual details supporting that opinion render the opinion of little or no weight, as a matter of law. The trial court’s holding that defendant failed to prove by a preponderance of the evidence that she was insane at the time of the offense is against the manifest weight of the evidence. See People v. Janecek (1989), 185 Ill. App. 3d 89, 540 N.E.2d 1139; People v. Garcia (1987), 156 Ill. App. 3d 417, 509 N.E.2d 600; People v. Arndt (1980), 86 Ill. App. 3d 744, 408 N.E.2d 757.

In view of our holding, we need not address defendant’s contention that the State failed to prove beyond a reasonable doubt that she had the requisite specific intent for attempted murder.

For the foregoing reasons, the judgment of the circuit court of Cook County finding defendant guilty of attempted murder is reversed, and the cause is remanded with directions that the court enter a finding of not guilty by reason of insanity and for further proceedings pursuant to section 5 — 2—4 of Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 2—4).

Reversed and remanded with directions.

MURRAY and McNULTY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE DIXON, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—0567
    Opinion filed February 4, 1992.
    Modified on denial of rehearing April 28, 1992.

      David W. Borenstein, of Alfred D. Stavros & Associates, of Wheeling, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Randall Roberts, and Brian Clauss, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Willie Dixon was employed as an officer of the Cook County sheriff’s police department and was stationed in Maywood. On January 25, 1987, Superbowl Sunday, Dixon was working as a dispatcher. It is common practice for the sheriff’s department to make audio tapes of on-duty dispatcher communications. At 12:24 p.m. Dixon received an anonymous call regarding illegal gambling at the Prime Minister Restaurant in unincorporated Northbrook. After taking the call, Dixon wrote a report on the complaint according to standard operating procedures.

Dixon then called the restaurant, and the following is a transcript of the taped conversation.

“VOICE: Prime Minister.
VOICE: Yes, is Gus there?
VOICE: Someplace.
VOICE: Can I speak to him, please? This is Dixon from Cook County Police.
VOICE: Dixon, this is Tom.
VOICE: Huh.
VOICE: Tom.
VOICE: Yeah Tom, how you doing?
VOICE: All right.
VOICE: All right. We just got a — just—we just got a couple of calls about some things going on—
VOICE: Right.
VOICE: —you know what I’m talking about?
VOICE: Right, I don’t have nothing here.
VOICE: Just — just make sure everything is covered, ‘cause the wrong people might get a word of it. Okay?
VOICE: Okay.
VOICE: Just make sure everything is covered. All right?
VOICE: Right, (inaudible) call off the other part too in the strip.
VOICE: Huh?
VOICE: Call off the strips too?
VOICE: Anything that will point in that direction, kinda— kinda keep it under cover. Okay?
VOICE: Okay. We won’t have nothing else?
VOICE: Yeah, just in case somebody comes — it—it—it—let me talk to Gus.
VOICE: Okay.
VOICE: Hello.
VOICE: Yeah, Gus.
VOICE: Yeah.
VOICE: Willie Dixon. How you doing?
VOICE: Okay, Buddy, what’s up?
VOICE: We just got a couple of calls about you know what. VOICE: Okay. Great, Thank you.
VOICE: Okay. Just, you know, keep everything under.
VOICE: Everything. All right, ‘cause the wrong folks might get word of it too, so—
VOICE: Thank you very much.
VOICE: Okay.
VOICE: Thank you, Buddy.
VOICE: All right.
VOICE: Bye.
VOICE: Bye.
VOICE: At the tone WELD time will be 12:28 and 40 seconds.”

Dixon then went on to radio codefendant, Officer Joseph Peluso:

“VOICE: 1295.
VOICE: 1295.
VOICE: Uh, make a premise check at the Prime Minister 3355 North Milwaukee. Uh, give me a call from that location. See Gus.
VOICE: 10.4.10.4.
VOICE: Yeah, 95, if you’re near the phone give me a call now.
VOICE: 10.4.
VOICE: —5 County.
VOICE: Go ahead. Go ahead.
VOICE: 22 Same, he’s finally showed up.
VOICE: Is he gonna need any backup over there?
VOICE: Negative.
VOICE: 10.4.
VOICE: Yeah, Joe.
VOICE: Yeah.
VOICE: Yeah, they did — we just got a couple of calls in reference to you know what.
VOICE: Uh-huh.
VOICE: All right. Just in case the complainant is listening, you know, we’ve got to send somebody over there.
VOICE: Right.
VOICE: Okay. I already talked with Gus, but, just, you know, just stop in and say hello and, you know, whatever.
VOICE: Uh-hmm.
VOICE: You know, I already talked with Gus. I called Gus as soon as we got the call. So—
VOICE: Okay.
VOICE: Take care of it. All right.
VOICE: All right.
VOICE: All right. Bye.
VOICE: 12:30 and 20 seconds. At the tone — 12:34 and 20 seconds.”

Sometime later, David Stetler, then Chief of the Criminal Receiving and Appellate Division of the United States Attorney’s Office in Chicago, began an investigation of Dixon and Peluso. Stetler began his investigation after being contacted by James Walsh, then Chief of the Cook County sheriff’s police, who had received an anonymous letter regarding illegal gambling activities at the Prime Minister Restaurant. Acting on the information contained on the tapes, Stetler, an FBI special agent and an IRS special agent decided to interview Dixon and Peluso. Stetler wanted to know not only if Dixon had been paid by the restaurant, but also if Dixon was involved in more than one isolated incident.

Five days after the conversations referred to above had been taped, Stetler and the other Federal agents called Dixon and went to his house in Wheeling to interview him. At trial Stetler testified that when they arrived, Dixon answered the door and invited them in. Following introductions, Stetler showed Dixon the anonymous letter and told him that a Federal investigation was being conducted into gambling that occurred at the Prime Minister Restaurant on Superbowl Sunday, January 25, 1987. Dixon then reviewed the letter, stated that he was familiar with the restaurant and its owner, Gus, but that he had spent Superbowl Sunday at a party downtown. When asked if he was aware of any gambling at the Prime Minister on Superbowl Sunday, Dixon “paused for a while, looked down, looked up, and said, ‘no.’ ”

After Dixon denied knowing of gambling activities at the Prime Minister on Superbowl Sunday, Stetler told Dixon that he (Stetler) had a copy of the department’s tape recordings made of the conversations of the on-duty dispatcher that day. Stetler went on to tell Dixon that the tape contained what the United States Attorney’s office believed to be a conversation between Dixon and Gus, the owner of the Prime Minister. One of Stetler’s colleagues then played a portion of the tape for Dixon. Only after the playing of the tape did Dixon state that he was aware of social gambling occurring at the restaurant. Stetler also testified that after playing the tape, Dixon “acknowledged that it was [Dixon] on the tape discussing what he discussed with Gus.” Dixon also told Stetler that he never took money from the Prime Minister and that the event recorded on the cassette was a one-time favor.

On January 20, 1988, Dixon appeared before a Cook County grand jury, which indicted Peluso and him with the offense of official misconduct. (Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3(b).) On March 28, 1988, Dixon filed a motion for discovery, a part of which contained a request for a bill of particulars. The State filed an answer to the request for a bill of particulars, but, on August 8, 1988, Dixon filed a “Motion to Dismiss Due to Insufficiency of Charge.”

After a bench trial, Dixon was found guilty, and thereafter he filed a “Motion for New Trial and/or Motion in Arrest of Judgment,” which the court denied. Dixon appeals, charging the trial judge with committing nine errors, only three of which merit our consideration.

A

Dixon makes a two-part claim that not only does his indictment set forth separate acts and rule violations in such a manner that the wording of the one-count indictment is impermissibly duplicitous, but also that he should have been exonerated when the trial court found him not guilty of a portion of the indictment. The pertinent parts of the indictment read as follows:

“Willie Dixon and Joseph Peluso committed the offense of Official Misconduct in that they, in their official capacity as public employees, to wit: Cook County sheriff’s police officers, knowingly performed an act which they knew they were forbidden by law to perform, to wit:
They failed to perform their assigned duties and obligations of law enforcement in a proper fashion; by failing to properly investigate a complaint of a gambling operation at the Prime Minister Restaurant, as required under Chapter 14 of the Cook County sheriff’s police Department Rules and Regulations, to wit: ‘Conduct regarding the performance of duty;’ and Cook County sheriff’s police Department General Order Number 86-35, ‘Preliminary Investigations.’
Further, they revealed information, the effect of which indicated the existence of a complaint of gambling at the Prime Minister Restaurant, said information obtained in the course of their duties; to other parties including the subject of said complaint in a manner not required by law, duty or assignment, in violation of Chapter 14.29 of the Cook County sheriff’s police Department Rules and Regulations, to wit: ‘Department files and information.’
Further, they revealed, not in the proper discharge of their duties, the existence of information regarding an investigation aimed at the apprehension of criminals or the control or suppression of vice activities, to wit: They notified and warned the subject of a gambling complaint of information, the effect of which indicated the existence of a complaint of gambling operations at the Prime Minister Restaurant and imminent investigation, in violation of Chapter 14.32 of the Cook County sheriff’s police Department Rules and Regulations, to wit: ‘Information regarding suspected criminal or vice activity.’ ”

The pertinent provisions of the definition of official misconduct (Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3) read as follows:

“A public officer or employee commits misconduct when, in his official capacity he commits any of the following acts:
* * *
(b) Knowingly performs an act which he knows he is forbidden by law to perform.”

We shall treat first Dixon’s allegation of duplicity. It is generally understood that “due process requires that an indictment or information must- apprise the defendant of the nature and cause of the offense charged with sufficient specificity to enable him to prepare his defense.” (People v. Lee (1978), 57 Ill. App. 3d 927, 930.) In support of his argument that the indictment set forth above does not apprise him of the nature and cause of the offense charged, Dixon cites People v. Simmons (1982), 105 Ill. App. 3d 402, 404, which holds that “when two or more offenses are charged in the same count, not from charging a single offense in more than one way or where different acts contribute to the same offense,” duplicity exists.

It is Dixon’s contention that the manner in which the indictment is worded, specifically the use of the word “further,” charges him with three separate offenses: failure to properly investigate a complaint of gambling (in violation of General Order No. 86 — 35); revealing department files and information, in a manner not required by law, to the subject of a complaint (in violation of chapter 14.29); and notifying and warning the subject of a gambling complaint of information regarding an investigation of that complaint (in violation of chapter 14.32). Therefore, he could not know which charge the State would focus upon in its case against him. In support of this contention, he cites People v. Woolfolk (1973), 11 Ill. App. 3d 911, and suggests it is controlling. We do not agree.

In Woolfolk the State charged defendant with a violation of section 28 — 1(aX8) of the Illinois Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 28 — 1(aX8)), and according to the indictment, defendant “set up and promoted, *** and sold, *** and offered to sell, *** and transferred, *** and knowingly possessed” gambling devices. Section 28 — 1(aX8), however, makes it an offense to do any one of these acts, not all of them, since the statute uses the disjunctive “or” rather than the conjunctive “and,” as was done in the indictment in Woolfolk. Consequently the Woolfolk court held that by charging defendant with the commission of all the acts, the indictment did not sufficiently notify defendant of the crime against him. Woolfolk, 11 Ill. App. 3d at 913.

The official misconduct statute, unlike section 28 — 1(a)(8), does not list the methods by which it may be possible to violate the statute. In the case at bar, the indictment charges Dixon with violating section 33 — 3 of the Criminal Code, and then goes on to list the ways in which the violation occurred. According to People v. Ross (1961), 21 Ill. 2d 419, 421, “[d]uplicity *** arises from charging more than one offense, and not from *** pleading different acts contributing to the ultimate charged offense.”

Similarly, People v. Clark (1979), 71 Ill. App. 3d 381, 406, citing People v. McMullen (1948), 400 Ill. 253, 255, states that “[c]learly, separate offenses can be charged in different counts or in one count of one indictment if the offenses are part of a single transaction.” Moreover, in order to support a conviction for official misconduct, the State must show, in part, that the law the defendant violated was specified in the indictment. (People v. Locascio (1985), 137 Ill. App. 3d 201, 205.) At oral argument, defense counsel acknowledged that the alleged violations occurred as part of one transaction; counsel also admitted that Dixon had been charged with only one offense. Thus, this part of Dixon’s argument cannot be sustained.

Turning to the second part, Dixon posits that even if the indictment is not duplicitous, he nonetheless should have been exonerated when, he alleges, “the trial court found him not guilty of ‘a material allegation,’ ” that is, the first paragraph of the indictment. We disagree. It is important to note that the trial judge did not find Dixon to be “not guilty” of the acts described in the first paragraph of the indictment; rather, he found that “paragraph one *** just does not apply to Mr. Dixon; [it] is directed not to Mr. Dixon, but to Mr. Peluso.” Moreover, the first paragraph of the indictment is not a material allegation which must be proven by the State. (See People v. Williams (1978), 67 Ill. App. 3d 524.) As discussed above, Dixon was charged with the one offense of official misconduct, in such manner and form that the individual paragraphs of the indictment are not material allegations, but rather, are merely the delineated ways he committed official misconduct. Thus, to the extent that the first paragraph of the indictment does not apply to Dixon, it is surplusage and may be disregarded. (See People v. Mullinax (1979), 67 Ill. App. 3d 936.) Accordingly, Dixon’s argument on this part also fails.

B

Dixon next complains that State’s exhibits Nos. 2, 3, 4, and 8 were admitted into evidence without observing the proper foundational requirements and that therefore this evidence should have been excluded. These exhibits were the two sets of the master reel-to-reel tape-recorded conversations and two cassette copies of the master tapes.

At trial there was much testimony about how the Department’s taping machine works and how copies of the master tapes were made. The machine uses a 20-channel recorder that records all dispatcher communications. Two copies are made of the same conversation; one copy is made as a backup. The relevant information for this case was contained on three or four tracks. Therefore, in order to put together the information in some sort of chronological order, some editing of the tracks was necessary.

The authenticity of both the masters and the copies was questioned by the defendants. The prosecution claimed that State’s exhibit No. 8 was a near-complete copy of the relevant events from the master tape. The defense, however, claimed that the copies were missing pieces of information from the master tapes. There was also considerable chain-of-custody testimony relating to both the master and copied tapes. Eventually, the court admitted into evidence both versions of the master tapes (State’s exhibits Nos. 3 & 4), one near-complete copy of the master tape’s relevant information (State’s exhibit No. 8), and one copy, the completeness of which was uncertain (State’s exhibit No. 2).

Anthony Cirincione, communications engineer for the Cook County sheriff’s police, testified as to how the tape machine operates, describing the way in which the time stamp operates and how it would be impossible to tamper with the master tapes without the time stamp showing the alterations. He also testified that these tapes would record continuously for a 24-hour period of time per reel. After this time, communications personnel, usually the watch commander, would take the tapes off the machine and put them in the unlocked radio room cabinet. Sometime on January 26, 1987, Cirincione was ordered to make a cassette of the January 25, 1987, tapes. When he obtained the tapes, they had been in the unlocked cabinet since approximately 12 a.m. on January 26,1987.

Cirincione testified that he took the master tapes and made three cassette copies; the first two were made for practice and hence were incomplete. The third tape (State’s exhibit No. 8), however, included what Cirincione considered to be nearly all the information regarding the requested transaction. Upon completing this task, Cirincione placed the master tapes in his personal locker, for which he had the only key. He then gave the third cassette (exhibit No. 8) to Lieutenant Peters, Cirincione’s superior, and returned the master tapes to him 45 minutes later. On re-cross-examination, Cirincione testified that it was not his job to protect the chain of custody.

Judy DeJohn, secretary of the internal investigations unit of the Cook County sheriff’s police, testified that the master reel-to-reel tapes were kept in a locked filing cabinet in John Ritter’s office from January 28, 1988, until October 11, 1988. There existed six copies of keys which fit this locked cabinet. The record does not indicate how the tapes got into the locked cabinet. When Investigator Miller of the United States Attorney’s office came to get the tapes in October of 1988 to listen to them, he signed a receipt for them. Ms. DeJohn also testified that within 1 and V-k hours, the tapes were again in the locked cabinet.

Citing People v. Estrada (1980), 91 Ill. App. 3d 228, and M. Graham, Cleary & Graham’s Handbook of Hlinois Evidence §901.6 (5th ed. 1990), Dixon claims that the above-described testimony is insufficient to meet the foundational elements necessary for admitting tape recordings into evidence, for the reason that the State did not establish a proper chain of custody regarding the master tapes. Dixon further maintains that the chain was broken because there were many keys unaccounted for that would open the cabinet which contained the tapes, and that there appeared to be no one person whose job it was to maintain the custody of the tapes. Therefore, he concludes, the master tapes could have been tampered with, without its being reported, since no formal inventorying process was used. Dixon also claims that there was no proper chain of custody for the two copies made of the master tapes as well, specifically, that it was never shown that additions, deletions, or changes had not been made, or that the recordings (exhibits Nos. 2 and 8) were preserved in any reliable manner. We disagree.

“[A] trial court’s ruling on the sufficiency of a chain of custody is subject to reversal only for an abuse of discretion [citation].” (Williamson v. Police Board (1989), 182 Ill. App. 3d 304, 310, appeal denied (1989), 127 Ill. 2d 644.) We do not find any such abuse. In order to establish a satisfactory chain of custody, the proponent must show to a reasonable probability that the evidence has not been subject to tampering, and that reasonable protective measures were taken — it need not remove all possibility of tampering. Moreover, a defendant’s speculations are insufficient to support a claim of tampering. (People v. Hermann (1988), 180 Ill. App. 3d 939, 945, citing People v. Martine (1984), 121 Ill. App. 3d 793.) However, the more the authentication is genuinely in issue, the greater the need to negate the possibility of alteration, substitution, or change of condition. People v. Judkins (1957), 10 Ill. 2d 445.

Our review of the testimony set forth above persuades us that the trial court did not abuse its discretion in admitting the disputed tapes into evidence. More important, the record plainly establishes that, despite his previous denials, Dixon was aware that gambling was going on at the Prime Minister, and that he admitted that the event recorded on the cassette that was played for him by the Federal agents — the incident for which he was tried — did in fact occur and was a one-time favor. Accordingly, the defendant’s argument as to this issue must also be rejected.

C

Dixon further contends that the trial court abused its discretion by not granting his motion to strike Stetler’s testimony because of an alleged discovery violation. Stetler first testified that he did not make any type of memorandum of the conversation that he had with Dixon. However, when Stetler was recalled the next day, he testified that he “had various materials, including photographs, the tape. [He] wrote a letter to Frank Debony [not further identified in the record] about it and so forth. [He] had [his] secretary prepare a transcript which *** would probably be laying [sic] in the file.”

The parties appear to be somewhat confused as to precisely what the issue is here. Dixon claims that a formal file exists regarding Stetler’s thoughts and theories pertaining to the case against him. The State, however, claims that no formal file exists and that what is at issue is some type of “transcript,” the contents of which are not disclosed in the record.

In his discovery motion Dixon requested the production of the material from the States Attorney’s office, but it was not produced. At trial Dixon’s counsel requested sanctions against the State’s Attorney for failure to deliver the material, and at the close of the prosecution’s case, Dixon’s counsel made a motion to strike Stetler’s testimony. The court reserved ruling on the request for sanctions and denied the motion to strike. When the court asked Assistant State’s Attorney Wynne why his office did not comply with the discovery request, he said:

“I am prepared to argue that we did not ever get those things that were spoken about. In fact, on very diligent inquiry by me and my predecessors, we were told they [the United States Attorney’s office] never had them. After I found out from Dave Stetler on cross examination there was some kind of file, I talked with a supervisor at the U.S. Attorney’s office, complained vehemently. He said he would never disseminate [sic] that type of order.”

Dixon argues that there was no valid reason given by the State as to why the file could not be produced and it was therefore an abuse of discretion for the trial court to allow Stetler’s testimony to stand. He cites People v. Weaver (1982), 92 Ill. 2d 545, 559, for the proposition that “[a] reviewing court will find an abuse of discretion, however, when a defendant is prejudiced by the discovery violation and the trial court fails to eliminate that prejudice.” Dixon claims to have been prejudiced in that (1) Stetler was the only prosecution witness who testified regarding purported incriminating statements made by Dixon; (2) it was through the testimony of Stetler that the unauthenticated tapes were first played; and (3) had the file been properly tendered to Dixon, his counsel could have more effectively cross-examined Stetler.

We note, however, that it was a witness (David Stetler of the United States Attorney’s office), and not the prosecutor (the assistant State’s Attorney), who failed to disclose the evidence in response to a specific request. We fail to perceive how it is the responsibility of the State’s Attorney to obtain information which is in the possession of the United States Attorney. In addition, the United States Attorney’s office was never served with a subpoena to produce this information; rather, the discovery motion was directed to the State’s Attorney. Nonetheless, the State’s Attorney’s office attempted to obtain the material which the record indisputably shows was in the control of the United States Attorney, and this is all the State’s Attorney’s office could have done. Under these circumstances, the State’s Attorney’s office cannot be charged with a discovery violation.

Nor was the trial court in error for refusing to strike David Stetler’s testimony. In order for the United States Attorney’s office to be guilty of a discovery violation for failing to disclose the materials in question, it needed to have been properly served with a subpoena. Accordingly, the United States Attorney’s office had no duty to produce the material in question, and the trial court was correct in not striking Stetler’s testimony.

Moreover, in order to establish a due process violation regarding suppression of evidence, defendant must demonstrate: (1) that the evidence was favorable to him; (2) that the prosecutor failed to disclose the evidence in response to a specific request; and (3) that the evidence was material. (People v. Velez (1984), 123 Ill. App. 3d 210, 216-17, citing Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) Pursuant to the holding in Brady, materiality means that the omitted evidence would tend to raise a reasonable doubt of defendant’s guilt. (Velez, 123 Ill. App. 3d at 217.) It is not enough that the evidence might have helped defendant’s case; “[r]ather, at the very least, to be considered material, the evidence must reasonably be expected to affect the outcome of the case.” Velez, 123 Ill. App. 3d at 217, citing People v. Penland (1978), 64 Ill. App. 3d 656, 661.

Dixon, however, nowhere alleges that the information contained in the records was favorable to him. There was also no allegation that the information in the records is material to his case. Even if we were to assume that a discovery violation occurred here, Dixon fails to show prejudice, for reversal is not warranted where a discovery violation does not prejudice the defendant (Velez, 123 Ill. App. 3d 210), and it is the defendant’s burden to show such harm. (People v. Curtis (1986), 141 Ill. App. 3d 827, 832, cert. denied (1987), 480 U.S. 932, 94 L. Ed. 2d 744, 107 S. Ct. 1584.) In sum, in the case at bar, we are not offered any indication by Dixon that the transcript or file was favorable to him, or that it was material to his defense, or that it would have subjected Stetler’s testimony to effective attack. Any possible impeachment would have gone only to collateral matters; it would not have undermined to any degree the formidable evidence which showed that Dixon had warned the Prime Minister that the police had been dispatched there and to hide all evidence of a gambling operation before they arrived. People v. Enoch (1988), 122 Ill. 2d 176, 194, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

For the above-stated reasons, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and McCORMICK, J., concur.

      The record reflects that Dixon requested the reports in his discovery motion. In response to his request the court merely stated, “Get him the reports and I will decide on sanctions. You will have them tomorrow. Let’s proceed.” Yet, no further steps were taken by Dixon to ensure receipt of the reports. Moreover, at the close of the State’s case, Dixon’s attorney stated to the court, “on at least three occasions and as late as last night you directed the State’s Attorney of Cook County to get us the reports. They have not — .”


author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY HOOTS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—3423
    Opinion filed March 31, 1992.
    Randolph N. Stone, Public Defender, of Chicago (Roland P. Alwin, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Michele I. Lavin, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Following a bench trial, defendant, Larry Hoots, was convicted of murdering his girl friend, Joan Brady (Ill. Rev. Stat. 1985, ch. 38, par. 9 — l(aXl)), and sentenced to 27 years in custody of the Illinois Department of Corrections. He argues on appeal that (1) the finding of guilty but mentally ill, as opposed to insane, was against the manifest weight of the evidence; and (2) the court used an incorrect standard of proof in evaluating his insanity defense. We affirm, for reasons which follow.

Because defendant’s mental condition was at issue, a lengthier account of trial evidence must be set forth for a complete understanding of this case. Thomas Patrick Brady, Joan’s son, testified that he lived with Joan, his sister and younger brother. Defendant visited their home a few times per week. Joan dated defendant for approximately one year. In January 1986, she indicated that she did not want to continue her relationship with defendant. He heard her tell defendant that she wanted to have cosmetic surgery, which defendant opposed, and did not want to see him for the eight-week recovery period. On April 14, 1986, by telephone, Joan told defendant twice that she did not want to see him. At 10:15 p.m. on Tuesday, April 15, when Thomas arrived home, he saw defendant’s car parked in back. All house lights were off. Although defendant had stayed over on a front room couch three to five other times, it was unusual for a Tuesday night, because Joan had to awaken early for work the next day.

Thomas entered the kitchen, turned on the light and noticed an empty survival knife sheath on the counter, which was normally kept with the knife in a drawer. Joan, who had been sleeping, entered the kitchen. She then spoke to defendant, who she then learned was in the front room. He falsely denied taking the knife. Thomas, who was concerned about the missing knife, listened from the porch, watching television. Joan scolded defendant, telling him to stop acting like a baby. At some point, defendant returned the knife to the victim, who put it in a drawer. After 45 minutes, Thomas went to bed in the basement. His sister, Colleen, was asleep upstairs, and his younger brother was away at college. He heard no more conversation.

Thomas awoke to find State Troopers and Chicago police in the dining room area. He reentered the front room and found Joan lying in a pool of blood at the bottom of the steps leading upstairs. A trail of blood led from the front room couch to her body. He gave the police two statements, informing them that defendant was possessive and jealous. He noticed nothing unusual about defendant’s behavior and never saw him go into a trance-like state.

Hlinois State Trooper William Atkins testified that on April 16 at about 1:45 a.m. he saw defendant, through closed circuit television, enter the district headquarters at Harlem and Irving Park in Chicago. Defendant walked around in the lobby, went back to the entrance doors and struck them twice, and eventually proceeded up the stairs to the second floor where Officer Atkins was located. Defendant opened the office door and asked for help. Defendant then twice informed Officer Atkins “I think I’ve killed my girl friend.” Defendant was handcuffed. The officer noticed that defendant’s left hand was “tacky,” “sticky” and “covered in blood.” Defendant revealed his girl friend’s address and was turned over to Chicago police. Officer Atkins described defendant as confused and a “wandering type.” He responded to questions, but was quiet and hung his head down. Defendant had no trouble understanding or carrying out the officer’s instructions. There was an odor of alcohol on his breath; however, he did not appear to be intoxicated.

Chicago police officer Phillip White testified that on April 16, he went to State Police headquarters and received a prisoner from Officer Atkins, whom he transported to the Area Five police station. He recalled nothing unusual about the prisoner.

Chicago police officer Rutkowski, after having been given the address of the victim, investigated the scene of the occurrence. Upon ringing the doorbell and receiving no response, he entered the house through the rear door, which was open. No lights were on. He found Joan’s body in a hallway.

Chicago police officer Alfred Klaser, assigned to the Chicago police crime laboratory for 21 years, asserted that at 2 a.m. he arrived at the scene. He observed a stab wound which lacerated the right side of the victim’s neck. She was lying in a large pool of blood. Blood was found on the living room couch, carpet and inner handle of the exterior storm door. He recovered a brown-handled knife, on which the victim’s blood was found, from the living room area carpet.

After processing the crime scene, Officer Klaser went to the State Police station, where defendant was arrested. He examined defendant’s red Ford station wagon in the parking lot and found blood on the steering wheel. Next, he proceeded to the Area Five violent crime unit, where he photographed defendant, whom the officer identified in court. Defendant agreed to being photographed. Defendant, when asked, was able to move his watch up his arm and turn his hands front and back. He took blood samples from defendant’s hands, for crime lab analysis. These samples later were found to contain the victim’s blood.

Assistant State’s Attorney (ASA) Margaret Anne Glass, assigned to the felony review unit, testified that she spoke to defendant at the Area Five station after speaking to Thomas, his sister Colleen and Officer Atkins. Detective Allen Jaglowski was present. Defendant was given and understood each of his Miranda rights, but requested that the detective leave before he would give a statement; the detective complied.

Defendant told ASA Glass that he knew and loved Joan for about one year before she was stabbed to death. He asked her to marry him around Christmas, but the timing was not right due to her commitments to her sons, who were still in college. Defendant assumed that they planned to marry. On the night of the incident, defendant had five to six beers in a tavern and then went to the victim’s home. He parked in the back as usual, entered through the back door, went into a kitchen drawer and removed a knife from its sheath. He left the sheath on a counter and went to the front room, where he sat alone on the couch. Shortly thereafter, Thomas arrived home. Defendant later returned the knife to the victim after admitting he had it. Defendant did not know why he went to the house that evening or why he took the knife into the living room with him.

The victim entered the living room and sat on the couch next to him. His drinking upset her. She previously had told him not to take nerve pills, which he stopped taking after she helped him through a depressing time. While he was in the military in Thailand he smoked marijuana once, but never abused liquor or drugs. Joan told him he could not stay there that night. He left through the back door and walked around the house. The victim let him in the front door, but again she told him he could not stay. On the morning of April 16, defendant left the house and got in his car, intending to go home. As he was driving he became aware of blood, fresh and wet, on his hands. He drove to a State Police station, where he was arrested. He did not know why he would stab to death the woman he loved. He did not recall thinking of or actually hurting her.

Defendant signed each page of the statement handwritten by ASA Glass after he read it aloud and changed a transposed date. His responses were coherent. He never appeared in a trance-like state. ASA Glass noticed no change in defendant’s demeanor when he spoke of Vietnam.

Detective Jaglowski testified that defendant orally told him substantially the same sequence of events prior to giving the written statement to ASA Glass. Defendant indicated he had no past mental problems, nor was he taking medication. Defendant’s answers were very responsive. After being told they wanted to inventory his jacket and pants due to bloodstains, defendant voluntarily relinquished them. Defendant had no problem donning a paper suit or gown.

The State and defense stipulated that the cause of death was a stab wound to the neck lacerating the victim’s carotid artery and jugular vein, causing massive bleeding. They also stipulated that the victim’s blood was found on defendant’s jacket and blue jeans.

The State rested its case in chief. Defendant’s motion for a finding as a matter of law was denied.

Dr. John George Loesch, a board-certified psychiatrist, testified for the defense. He came into contact with defendant on May 9, 1986, at River Edge Hospital on referral from Dr. Marvin Schwarz, defendant’s rebuttal expert. Dr. Loesch saw defendant three times per week to evaluate his treatment during the four- to six-week period he was in the hospital. Psychological and neurological tests were also taken. Dr. Lawrence Heinrich, defendant’s treating psychologist, asserted that he first saw defendant on May 9 or 10, 1986, and met with him about five times per week until approximately June 18. Subsequent to discharge, they met for 9 to 10 months.

Both Doctors Loesch and Heinrich asserted that at the time of the offense, defendant was suffering from a mental disease which deprived him of the substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law. Both stated that if a policeman had been standing next to defendant at the time of the occurrence, he would not have acted differently. He would have been unaware of the policeman, the victim and himself because he was so absorbed in his internal depressive state. Subsequent testing indicated that his sense of reality diminished at times.

Doctors Loesch and Heinrich also testified to defendant’s partial memory loss regarding Joan’s death. Defendant gave a fragmented narrative in which he recalled visiting her, but was unsure of what happened; however, he recalled going to the police and indicating something bad had happened. Dr. Loesch related that defendant could not recollect key stages in the sequence of events surrounding the homicide. The amnesia may have started as early as the Monday night before the occurrence, very typical of the fragmented type of amnesia. His conduct at the police station could be explained as his coming out of this fragmented condition. In his opinion, defendant was not malingering; however, an MMPI test given to him showed possible malingering by attempting to present a false claim of mental illness. The test also showed that defendant had no formal thought disorders. Regarding defendant’s diaries, which were written at the hospital after the murder by defendant at the doctors’ suggestion, Dr. Loesch asserted it would take a very skilled literary person to concoct the confusion they present.

Dr. Loesch asserted defendant had symptoms of “personalization; depersonalization,” where he felt as though he was outside of his body the night of the homicide. A fragmentation and breakdown in his ego functions causing disassociation occurred, resulting in an outburst of behavior which could no longer be adapted to reality.

Doctors Loesch and Heinrich observed defendant in a trance-like state during conversations about loss, memories of his girl friend and the “kind of relationship he never had before in his life.” Defendant would lose contact and become so self-absorbed and withdrawn that he was no longer affected by external stimuli, indicating this was like a “petite mall seizure.” Defendant’s ex-wife, interviewed by Dr. Heinrich, described similar trancé-like states. During one such trance, Dr. Heinrich observed defendant clench his hands and, when asked where he was, defendant responded “I think I’m in Vietnam.” He believed this was a thought deviation disorder.

Dr. Loesch found defendant’s answers to questions to be in the pathological range. He did not exhibit normal grief, but self-condemnation and suicidal ideation. This is not normal unhappiness, but deep psychological pathological depression. Defendant’s fragmented memory showed that he lost contact with reality.

Dr. Heinrich also concluded defendant was severely depressed and suffered from recurrent or episodic psychotic depression, and thought disturbances that were transitory and periodic. He was sad because someone he loved was dead. His responses to questions were minimal, and he appeared confused and apathetic. He was also suicidal, which opinion Dr. Loesch shared. Most people who are psychotic are not impaired most of the time. They go in and out of these states where they lose touch with reality. Dr. Heinrich believed that defendant was depressed from the time he was in Thailand.

When asked for a trigger event, Dr. Loesch testified that it was a whole progressing, long-lasting, mental illness of a deep psychotic depression that finally intensified to a point where there was a breakdown. He added it was also due to an unresolved severe dependency on an endorsing self-object; his existence, well-being and self worth depended on the victim. Dr. Heinrich asserted that defendant tended to form relationships with women too quickly.

Dr. Albert Henry Stipes, a board-certified psychiatrist employed by the Psychiatric Institute of Cook County (Institute), testified for the State. In his opinion, on April 15 and 16, defendant was able to appreciate the criminality of his conduct and conform his conduct to the requirements of the law. This opinion was based upon his examination of defendant’s records from the Institute, which included his social history, psychological summary and police reports, records from River Edge Hospital, defendant’s diaries, as well as personally questioning and observing defendant. He diagnosed defendant as having dysthymic disorder and evidence of personality disorder. Dysthymic disorder is a chronic depressive illness characterized by appetite and sleep disturbances, depressed moods, suicidal ideation and loss of interest in a person’s activities. This is different from psychotic depression, where hallucinations and delusions must occur, called major depression with psychotic features. He also relied upon a report which included information given by defendant’s mother. She said that on the night of the murder he came home, talked to Joan on the telephone as usual and left the house. He probably went to a bar before coming home. After the divorce from his ex-wife, defendant was depressed, drank more and moved in with his parents, but never, in her presence, talked about suicide or demonstrated psychotic symptoms or trances.

Dr. Stipes asserted defendant’s diary showed grief over loss, but no evidence of psychotic thinking. He believed defendant’s memory loss was due to alcohol and hysterical amnesia, which is traumatic amnesia due to the incident itself. This would not have anything to do with defendant’s thought processes at the time of the incident. He found nothing in the record to support Dr. Heinrich’s diagnosis of a severely psychotic depression, adding it is unusual not to give medication, such as here, to someone diagnosed with severely psychotic depression. He asserted the cause of defendant’s behavior was the result of suffering a severe rejection by the victim after rejection by his ex-wife, motivated by anger at suffering the loss.

Dr. Stipes asserted defendant’s out-of-body feeling is a hysterical symptom called depersonalization. This is neurotic, not psychotic, since the individual knows what is real. Psychosis means loss of sense of reality. Motivation by severe rejection is not inconsistent with being psychotic and such a person would have been able to hold his hands out pursuant to police orders. He added that severe recurrent depression is a mental disease or defect, but this does not deprive a person of the ability to conform his or her conduct to the requirements of the law or to appreciate the criminality of his or her conduct, unless it is with psychotic features.

Dr. Michael Rabin, a clinical psychologist specializing in forensic psychology, also testified for the State. He saw defendant on April 2, 1987, and diagnosed him as having a dysthymic disorder with a mixed personality disorder. He described dysthymic disorder as a depressive neurosis with a showing of various clinical signs of neurotic depression without psychotic depression, which means no hallucinations, no delusions, no melancholy, no apathy to the point where a person is unresponsive or mute, no catatonia and no loss of reality contact. The difference between dysthymic depression and major depression is a matter of degree. In his opinion defendant was legally sane at the time of the offense. He attributed the memory loss to the ingestion of alcohol.

Defendant told Dr. Rabin that he recently had been jealous of the victim’s attention to other men. He denied any instances of derealization or trance-like states or other indications of dissociative disorder. A catatonic state could be indicative of psychosis from which a person could lack the substantial capacity to appreciate the criminality of his conduct or lack the substantial capacity to conform his conduct to the requirements of the law. The sequence of actions which occurred on the night of the homicide could not have been done by one in a catatonic state, because such a person does not respond or move.

After examining defendant and reviewing his diaries and the doctors’ records, Dr. Rabin found nothing to indicate defendant was suffering from a dissociative disorder, where one is unaware of what is going on around him. He also found Dr. Heinrich’s diagnosis of severe depression with psychotic episodes to be unsupported by the records. The diagnosis in Dr. Heinrich’s report was major depression without psychotic features. At the time defendant put the knife in the victim’s neck, he was not suffering from delusions or hallucinations.

Dr. Marvin Schwarz, a board-certified psychiatrist and licensed attorney, testified as a defense rebuttal witness. He met defendant on May 12, 1986, when he was hospitalized at River Edge Hospital. During their first meeting, he spent V-k hours with defendant. He later had discussions with Drs. Loesch and Heinrich and evaluated Dr. Rabin’s psychological reports. He diagnosed defendant as suffering from schizoaffective psychosis, a disease from which defendant could lack the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. The label severe major depression with psychotic aspects is also such a mental illness. The only difference between his diagnosis and that of Dr. Loesch was technical and insignificant, adding that both his diagnosis and severe depression recurrent refer to psychotic mental illness. No anti-psychotic drugs were given to defendant because he would not agree to take them.

Dr. Schwarz explained that the term “dysthymic disorder” refers to a difference in degree from major depression. It is a depressive disorder of neurotic rather than psychotic degree. Frequently people go through long periods of time with the disorder and under stress decompensate into a major depression of psychotic degree and then return to dysthymic disorder. There is some argument as to whether such people should always be labeled with a psychotic equivalent diagnosis or whether it is correct to label them dysthymic when they are not in periods of psychotic depression and as major depression recurrent in the periods when they are psychotic.

Dr. Schwarz averred that the trance-like states were types of periodic withdrawal from reality into a period of psychotic withdrawal and ceasing to be in contact with reality. He did not think that defendant’s amnesia was due to the alcohol, even assuming that defendant drank 10 beers that evening, because he was intact and coherent when he went to the police station shortly afterwards. Suddenly looking at one’s hands, as defendant did, is unusual in terms of alcoholic amnesia. Additionally, his decompensation to the point of loss of awareness was episodic; his loss of awareness did not occur all the time, unlike other people. In the face of overwhelming stress, he lost control of his feelings. In doing things he normally would not do, he had to compartmentalize his thoughts and deny them to the point of amnesia.

When asked why it was not probable that, rather than being legally insane, defendant was just angry, Dr. Schwarz responded that the victim was only six years younger than defendant’s mother; the relationship was one in which he had to take care of tremendous needs; and he had just lost his wife and children. Additionally, defendant does not act out his anger, but internalizes it, becoming more depressed and angry. This is his form of denial and control. In this case he turned his anger to the victim, which was very atypical and represented a breakdown of his defense system, a psychotic state in which these feelings got out and he could no longer control them.

In the opinion of Dr. Schwarz, as a result of the mental disease, defendant lacked the capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law. He added that if a police officer was standing next to defendant at the time of the incident, his conduct would have been no different.

At the conclusion of all the evidence the court found defendant guilty but mentally ill.

I

Defendant contends the finding that defendant was guilty but mentally ill, rather than legally insane, was contrary to the manifest weight of the evidence.

Defendant is not criminally responsible for his conduct if at the time of the conduct he suffered from a mental disease or defect which deprived him of the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(a).

The circuit court found all the doctors’ testimony to be consistent with the theory that depressive illness reaches the level of legal insanity when psychotic overtones are present. The only differences in their testimony were their conclusions as to the proper interpretation of the evidence of defendant’s depression. The court’s finding that defendant suffered from a mental illness — some type of depression — was supported by the evidence, thereby fulfilling the first requirement of the statute.

Next, the court concluded that defendant appreciated the criminality of his act at the time of the occurrence by looking to the time immediately before and after the incident, also within the range of the evidence. Before the homicide, he was asked about the knife and first denied, then ultimately admitted, he had it. After the incident he went to the station and told the police that he thought he killed his girl friend. Based upon this evidence, the court determined that defendant appreciated and understood the criminality of his conduct.

The final issue for decision was whether defendant was able to conform his conduct to the requirements of the law. The circuit court observed that defendant had no history of psychiatric treatment before the murder. It noted that none of the lay witnesses testified to conduct which demonstrated that defendant was hallucinating or having delusions, two words that were consistently used to indicate psychotic episodes. It found the diaries unhelpful because the experts disagreed with their meanings. The court recounted defendant’s conduct immediately before the homicide. Defendant parked in the usual place at the victim’s home. He entered her home through the usual door. He answered “hello” when she called out to him while he was seated in the darkened room before the crime was committed. He eventually relinquished the survival knife upon her request. The court found reason to believe that motive existed for the killing because the victim ended their relationship against defendant’s will.

After reviewing the foregoing evidence, the court commented on the credibility of the State’s witnesses, noting, “[t]hey don’t get paid for finding someone insane or sane at the time.” The court expressed concern over a defense witness. “Dr. Schwarz’s testimony left me troubled *** he went to great lengths to explain how his diagnosis was the same as the diagnosis [sic] of all the other doctors, whereas the other doctors did not adopt his analysis.” The court then evaluated the significances attributed by the witnesses to inconsistencies in defendant’s violent behavior, and decided that they did not prove defendant delusional or out of touch with reality. Only then did the court find defendant guilty but mentally ill.

Defendant insists that his experts’ testimony must be given greater weight because they observed defendant closer in time to the incident and more frequently than the State’s experts. Defendant’s argument is claimed to be supported by Dr. Stipes’ assertion that the more time a psychiatrist spent with someone he was attempting to diagnose, the more likely he would have a complete mental and emotional picture, and that the amount of time which passes from the incident until patient observation may have a bearing on the conclusions reached. It is also alleged that this testimony contradicts the court’s conclusion that the psychologists who testified were similarly situated, since no one was present at the time of the occurrence and each doctor testified as to interviews, reading reports, reading psychological tests and the interpretations of those tests by other doctors. No expert here stated that greater weight must be given to the testimony of one who followed such procedures, however; the court’s finding that the experts were similarly situated, partially because none of them were present at the incident, is supported by Dr. Schwarz’s testimony that to make a judgment call by extrapolating backwards, as all the experts did, is not the same as seeing the person immediately at the time of the incident.

Contrary to defendant’s assertions, the circuit court was permitted to utilize its prior experiences to evaluate expert testimony. The weight to be given expert testimony is dependent upon the facts marshaled in support of the conclusions reached. (People v. Fosdick (1988), 166 Ill. App. 3d 491, 500, 519 N.E.2d 1102.) The court did not err by analyzing the facts before it to determine the weight to be given the testimony. Further, the court may accept one expert’s testimony over that of another, and may even accept lay testimony over that of an expert (People v. Tylkowski (1988), 171 Ill. App. 3d 93, 99, 524 N.E.2d 1112), as it did by looking at the lay witnesses’ observations, questioning some and accepting other expert testimony.

The question of defendant’s mental state at the time of an offense is a matter for the trier of fact. Although defendant’s evidence bore some persuasive qualities, the record also reveals ample evidence supporting the court’s sanity finding here. In a bench trial, a determination of sanity will not be reversed unless it is so improbable or unsatisfactory as to create a reasonable doubt of defendant’s sanity. People v. Ward (1975), 61 Ill. 2d 559, 568, 338 N.E.2d 171; People v. Carlson (1980), 79 Ill. 2d 564, 580, 404 N.E.2d 233; People v. Fosdick (1988), 166 Ill. App. 3d 491, 500, 519 N.E.2d 1102.

We cannot conclude from this record that the circuit court’s findings were improbable or unsatisfactory.

II

Defendant avers that the circuit court applied an erroneous standard of law in finding defendant guilty.

After the court found defendant guilty but mentally ill, defense counsel asked whether the court had found that defendant did not establish by a preponderance of the evidence initially that defendant was insane. The court replied, “I am not convinced beyond a reasonable doubt that Mr. Hoots was insane at the time that the act occurred.” There is no such requirement. A defendant has the burden of proving “by a preponderance of the evidence” that defendant is not legally responsible by reason of insanity; once such evidence is established, the State has the burden of proving sanity beyond a reasonable doubt for the purposes of a guilty, but mentally ill judgment. (People v. Urioste (1990), 203 Ill. App. 3d 1062, 561 N.E.2d 471.) Although the remark was not objected to or raised in a post-trial motion, the evidence is closely balanced and the application of the wrong standard may have rendered a different result. (People v. Young (1989), 128 Ill. 2d 1, 46-47, 538 N.E.2d 453.) We find the issue is not waived.

The circuit court is presumed to know the law and apply it properly. The court need not state for the record the standard of proof employed. In determining the sufficiency of a judgment, the entire record may be searched to support the judgment. (People v. Gutierrez (1982), 105 Ill. App. 3d 1059, 433 N.E.2d 361.) Defense counsel never objected to or questioned the court after this statement was made. In closing argument and in rebuttal, the correct standard was argued to the court, which did not comment or indicate that it was the wrong standard. More importantly, the court later stated, “the defense did raise the issue to the level where the state need[ed to] address it.” Further, the court noted, “[t]he defense was required to raise the issue. It’s an affirmative defense. They did raise it. The state is obligated to meet that burden and to overcome it, and they did and that’s my ruling.”

A reviewing court can affirm the -judgment of the circuit court where examination of the entire record shows that the court’s finding was correct, even where a misstatement of the law may have been uttered. (People v. Williams (1991), 143 Ill. 2d 477, 485, 577 N.E.2d 762; see People v. Thompkins (1988), 121 Ill. 2d 401, 428, 521 N.E.2d 38.) The circuit court’s finding here, based upon the evidence, was in consonance with the correct standard and must be upheld.

For the reasons set forth above, we find no reversible error and, therefore, affirm.

Affirmed.

SCARIANO and DiVITO, JJ., concur.

      This was not the same hunting knife located in the victim’s kitchen, but was one defendant brought with him to the victim’s house.