author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD BALDWIN, Defendant-Appellant.
    First District (1st Division)
    No. 1-87-0980
    Opinion filed June 30, 1989.

      Paul P. Biebel, Jr., Acting Public Defender, of Chicago (Marilyn Martin and Mary C. Arundel, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Mary E. Shields, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial, the defendant, Reginald Baldwin, was convicted of armed robbery and sentenced to six years’ imprisonment. The defendant appeals from the conviction.

On appeal, defendant contends (1) his conviction must be reversed where it was based on identification testimony that was doubtful and vague and, therefore, he was not proven guilty beyond a reasonable doubt; (2) his conviction must be reversed because of errors made by the trial court in determining that defendant was fit for trial and was able to cooperate with his counsel; and (3) he did not receive effective assistance of counsel where defense counsel proceeded to trial prior to investigating defendant’s mental condition and where he failed to obtain relevant psychiatric records until after trial.

At trial, Patricia Kesterson testified that on the night of August 5, 1986, at approximately 10:20 p.m., she returned home to her courtyard apartment on the north side of Chicago. She unlocked the exterior vestibule door, propped the door open with her right foot, and began pulling her keys out of the door. At that moment, the defendant approached the victim and stuck his foot in the door. The defendant put a knife to the victim’s throat with his right hand and used his left hand to push her against the mailboxes. Kesterson stated the robber had “crazy black eyes,” which she described as watery, glossy, extremely shiny, and bulging out. The defendant repeatedly stated “give it to me,” indicating that he wanted her purse, and Kesterson protested. The defendant finally grabbed Kesterson’s purse and started to run through the courtyard. Kesterson ran after the defendant, calling out for help. Michael McClory, a neighbor of Kesterson’s, heard her cries and also began chasing the defendant. Kesterson lost sight of the defendant, but hailed down a police car and the two police officers began running after McClory. The defendant was subsequently apprehended and Kesterson identified the defendant in court.

Michael McClory testified that he resides in the vicinity of Patricia Kesterson’s apartment. On the night of August 5, 1986, he heard screams and saw Kesterson running.. Kesterson told him that her purse had been taken and pointed at the defendant. McClory chased the defendant down an alleyway. He followed the defendant over a fence at the end of the alleyway but twisted his ankle. He yelled out to the police officers the direction in which the defendant was running. McClory identified defendant in court as the man he had chased.

Peter Roach testified that he heard shouting in the alley outside his home on August 5, 1986. He looked out over his balcony and saw a person moving from one stairwell to another stairwell. Roach saw the police officers on the street and told them that there could be a problem. The police began checking the stairwells and found the defendant hiding in the stairwell below Roach’s apartment. The officers also found a knife and a baseball cap in the stairwell.

Chicago police officer James Buckner testified that he received a call about an offender being chased in the area of 2331 N. Geneva Terrace in Chicago. Buckner and his partner, Officer Jakowski, began a foot search in the rear of some of the buildings in that area. Buckner heard his partner yell “don’t move” and went to his assistance. Jakowski had his revolver drawn and pointed down a stairwell. Jakowski ordered the defendant to come up from the stairwell, handcuffed him and advised him of his rights. Buckner testified that defendant was wearing a gray sports jacket and dark pants. The defendant had a moustache and brown eyes. The defendant told the police officers that he had been sleeping. The officers found a knife and a black baseball cap with a yellow front in the stairwell. It was stipulated by the parties that no fingerprint evidence was taken from the knife or the victim’s purse.

Defendant’s first contention is that his conviction must be reversed because it was based upon identification testimony which was doubtful and vague and which did not prove his guilt beyond a reasonable doubt. The State maintains that the defendant was proven guilty beyond a reasonable doubt where two eyewitnesses identified the defendant in court as the offender, and the defendant was arrested within minutes after the offense a short distance from the scene of the crime, and the knife used in the armed robbery was recovered in the defendant’s immediate vicinity.

In a bench trial, it is for the trial judge to determine the credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649; People v. Mendoza (1978), 62 Ill. App. 3d 609, 378 N.E.2d 1318.) On review the trial court’s judgment will not be set aside unless the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt as to the defendant’s guilt. (People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Discrepancies or conflicts in the testimony generally affect only the weight to be given the testimony, and the trier of fact is free to accept or reject a witness’ testimony. People v. Childs (1981), 95 Ill. App. 3d 606, 420 N.E.2d 513.

In the case at bar, the victim testified that the defendant approached her while she was standing in an area adequately supplied with artificial light. She stated she was able to view the defendant’s face at close range for approximately two minutes. Later, after the defendant was apprehended by the police, she positively identified defendant at the scene and also identified him at trial.

Defendant contends that Kesterson’s testimony cannot sustain his conviction because of the discrepancies in the victim’s description of the facial features of the defendant at the time she reported the crime as compared to the testimony of Officer Buckner. Kesterson testified that the robber did not have a moustache and that she noticed no facial hair. She also stated that defendant’s hair was kinky and chin length. Officer Buckner testified that the defendant had a moustache when he was arrested and wore his hair in braided corn rows.

Illinois courts have recognized that discrepancies and omissions as to facial and other physical characteristics are not fatal, but simply affect the weight to be given identification testimony. (People v. Miller (1964), 30 Ill. 2d 110, 195 N.E.2d 694; People v. Fairbanks (1986), 141 Ill. App. 3d 909, 491 N.E.2d 74; People v. Brown (1977), 50 Ill. App. 3d 348, 365 N.E.2d 907.) It has consistently been held that a witness is not expected or required to distinguish individual and separate features of a suspect in making an identification. (People v. Winston (1987), 160 Ill. App. 3d 623, 513 N.E.2d 1121; People v. Dean (1987), 156 Ill. App. 3d 344, 509 N.E.2d 618; People v. Brown (1982), 110 Ill. App. 3d 1125, 443 N.E.2d 665.) The presence of discrepancies or omissions in a witness’ description of the accused do not in and of themselves generate a reasonable doubt as long as a positive identification has been made. People v. Harrison (1978), 57 Ill. App. 3d 9, 372 N.E.2d 915.

In the case at bar, the victim, Patricia Kesterson, positively identified the defendant as the man who robbed her. She stated she was looking right at defendant’s face at the time of the offense for a period of two minutes and that the area was adequately supplied with artificial light. The trial judge stated that he interpreted Kesterson’s testimony that defendant had no moustache to mean that she did not notice a moustache. The trial judge also based his finding of proper identification testimony on the fact that the defendant’s arrest occurred within a short period of time after the offense and within a small geographic area. In viewing the totality of the circumstances in this case, in our judgment, the identification testimony of Kesterson was sufficiently reliable to sustain defendant’s conviction. See People v. Bias (1985), 131 Ill. App. 3d 98, 475 N.E.2d 253; People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121.

Defendant further claims that the testimony of Robert Mc-Clory, the victim’s neighbor, was dubious and of uncertain value because the identification rested in large part upon defendant’s mode of dress. Defendant cites People v. Hughes (1978), 59 Ill. App. 3d 860, 376 N.E.2d 372, and People v. Moore (1972), 6 Ill. App. 3d 932, 287 N.E.2d 130, in support of his position. A review of these cases reveals that they are distinguishable from the case at bar. In Hughes and Moore the victims did not see the defendants’ faces but simply gave general descriptions of their clothing. In the case at bar, McClory testified that during the chase following the robbery he twice saw the profile of defendant’s face when the defendant looked back. Further, the description McClory gave of the clothing defendant was wearing matched the clothing defendant had on when arrested shortly after the crime less than one block away. It has been held that the testimony of a single eyewitness is sufficient to support a conviction (People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355; People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671), and we view McClory’s identification of defendant as- corroborative of the victim’s identification. Therefore, it is our opinion that the evidence as presented at trial was sufficient to prove defendant guilty beyond a reasonable doubt.

Defendant next contends that his conviction must be reversed since at the fitness hearing prior to trial the State presented uncontradicted expert testimony as to defendant’s unfitness to stand trial. Despite the uncontradicted expert testimony, the State maintains that the trial court properly found the defendant fit for trial where the expert testimony indicated that defendant was able to understand the nature and purpose of the proceedings against him and the defendant testified that he was able to cooperate with his counsel.

On defendant’s motion, a pretrial fitness hearing was held on November 25, 1986. Dr. Mathew Markos, employed as a psychiatrist by the circuit court of Cook County, testified on behalf of the State. Dr. Markos stated that he had reviewed a psychological summary prepared by Dr. Lisa Grossman of the Psychiatric Institute which listed defendant’s admissions to psychiatric institutions. Specifically, Dr. Grossman’s report indicated that the defendant had been admitted to various mental health facilities, including Manteno Mental Health Center, Chester Mental Health Center and Tinley Park Hospital. Dr. Grossman’s report contained a current diagnosis of paranoid schizophrenia for defendant and concluded that he was unfit to stand trial. Dr. Markos further testified that he examined defendant for a period of approximately 50 minutes and his examination confirmed Dr. Grossman’s impressions and he agreed with her diagnosis. Dr. Markos stated that defendant demonstrated delusions of both religiosity and persecution, including the beliefs that people were conspiring and plotting against him and that he was in direct communication with God and would be saved. Dr. Markos believed that Baldwin was aware of the charges against him, but that he was unfit to stand trial since he was unable to cooperate with counsel in his defense as a result of his abnormal and paranoid thinking. Dr. Markos stated that the defendant was hostile, angry and uncooperative during his examination. Further, Dr. Markos’ opinion was that the defendant has a serious psychotic illness and was subject to involuntary admission in an in-patient psychiatric unit with constant supervision and monitoring of his medication and daily activities.

Following the testimony of Dr. Markos, defendant, who was 27 years of age at the time the offense was committed, testified at the pretrial fitness hearing. Defendant stated that he believed he was fit to stand trial. The trial judge then interrogated the defendant as to his understanding of the nature and purpose of the proceedings. Defendant stated that he understood who the individuals in the courtroom were and what they were there to do. When the trial judge asked him whether he was cooperating with counsel, the defendant stated “yes — she’s good.” The defendant stated that he often felt depressed but stated he could nevertheless help his attorney because he considered the case “open and shut.” When queried about his interview with Dr. Markos, the defendant related that the interview lasted for a very short while and that Dr. Markos had only asked him a couple of questions.

Following this testimony, defense counsel stated that although Dr. Markos believed defendant was unfit, she “must argue in his behalf” and expressed the hope that the court “will do what is best for him.” In ruling that the defendant was fit to stand trial, the trial judge stated that the evidence was close, but resolved the case in favor of a finding of fitness based upon the presumption of fitness. Ill. Rev. Stat. 1985, ch. 38, par. 104 — 10.

Fitness to stand trial is fundamental to an adversary system of justice. (People v. McCullum (1977), 66 Ill. 2d 306, 362 N.E.2d 307.) Once a defendant has raised a bona fide doubt of fitness, he cannot be presumed to possess the wherewithal necessary to assist counsel in gathering, coordinating and presenting the facts required to prove unfitness. (McCullum, 66 Ill. 2d 306, 362 N.E.2d 307.) Moreover, the metaphorical “bubble” of presumptive fitness bursts once a bona fide doubt of fitness is raised. (People v. Burnside (1977), 52 Ill. App. 3d 524, 367 N.E.2d 733.) The State bears the ultimate burden of proving a defendant’s fitness to stand trial by a preponderance of the evidence. People v. Bilyew (1978), 73 Ill. 2d 294, 383 N.E.2d 212; People v. Dominique (1980), 86 Ill. App. 3d 794, 408 N.E.2d 280.

A trial court’s determination of a defendant’s fitness to stand trial rests largely within its discretion and will not be reversed absent a clear abuse of that discretion. (People v. Wilson (1984), 124 Ill. App. 3d 831, 464 N.E.2d 1158; People v. Greene (1981), 102 Ill. App. 3d 639, 430 N.E.2d 219.) In reaching its determination, the trial judge is not obliged to accept the opinions of psychiatrists on whether the defendant is fit to stand trial. (People v. Williams (1980), 87 Ill. App. 3d 860, 409 N.E.2d 439.) The trial judge must analyze and evaluate the factual bases for experts’ opinions rather than rely on the ultimate opinions themselves. (Bilyew, 73 Ill. 2d 294, 383 N.E.2d 212.) It has repeatedly been noted that an incompetent defendant can hardly be accepted as a reliable witness to his own competency. People v. McKinstray (1964), 30 Ill. 2d 611, 198 N.E.2d 829; Fitch v. Estelle (5th Cir. 1979), 587 F.2d 773; United States v. Johnson (4th Cir. 1975), 527 F.2d 1104.

In McKinstray, a psychiatrist testified at a pretrial fitness hearing as to the defendant’s prior hospitalizations, his hyperactivity and rambling conversations, and his previous head injury in an accident. The psychiatrist expressed the opinion that the defendant was suffering from organic brain disease and was unable to cooperate with his counsel in his defense. The defendant took the stand and testified that he did understand the nature of the charge against him and that he was willing to cooperate in his defense. The State offered no evidence and no objection was raised to the jury’s finding of fitness. The supreme court, on appeal, held that the finding of fitness in such circumstances was error requiring reversal of the defendant’s conviction. In holding that the defendant had rebutted the finding of fitness, the court ruled that fitness had not been shown by the defendant’s own testimony, stating:

“To accept defendant’s opinion that he is able to co-operate with counsel in his defense, when the purpose of the hearing is to determine that very fact, would make a sham out of the sanity hearing, especially here where there is a history of a severe head injury and psychiatric treatment and the opinion of the sole medical witness that the defendant, although understanding the nature of the crime with which he was charged, was unable to co-operate with his counsel and was then committable to a mental institution.” McKinstray, 30 Ill. 2d at 616-17, 198 N.E.2d at 832.

We find McKinstray to be controlling of the case at bar. At the pretrial fitness hearing here the trial judge engaged in a colloquy with defendant and sought defendant’s own opinion about his fitness. Defendant stated that he believed he was fit to stand trial. The only other evidence presented was the uncontradicted testimony of the psychiatric expert, Dr. Markos, who testified that in his opinion defendant was suffering from an acute psychosis due to paranoid schizophrenia. Based on this diagnosis, it was Dr. Markos’ opinion that defendant was unfit to stand trial and was unable to cooperate with his counsel. Only two witnesses testified at the initial fitness hearing, Dr. Markos and the defendant. Following Dr. Markos’ testimony, the defendant made no motion as to the State’s burden of proof. Since the expert testimony that defendant was unfit was uncontradicted in the trial court, it is our opinion, the trial court could not reject the expert’s conclusion without other testimony or evidence that defendant was fit, other than defendant’s own statement. (Mc-Kinstray, 30 Ill. 2d 611, 198 N.E.2d 829; see also People v. Murphy (1987), 160 Ill. App. 3d 781, 513 N.E.2d 904.) While the trial court’s determination that defendant is fit to stand trial must be given weight on review (People v. Wilson (1984), 124 Ill. App. 3d 831, 464 N.E.2d 1158), the trial court record must affirmatively show the exercise of judicial discretion and judgment insofar as a finding of fitness is concerned. Under the facts and circumstances of this case, we conclude that the record does not support the finding of fitness.

Defendant further argues that he received ineffective assistance of counsel where defense counsel did not investigate and discover certain psychiatric records until after the trial was over. At defendant’s sentencing hearing on February 11, 1987, defense counsel moved for a psychiatric reevaluation of fitness. Defense counsel informed the court that after defendant’s conviction, defendant had been sent to Cermak Hospital to be reevaluated for fitness. At the second fitness hearing, held on March 11, 1987, Dr. Markos testified that he examined the defendant on February 25, 1987. Dr. Markos stated that the defendant appeared to be in worse condition and more disorganized than he had been in November, prior to trial. Defendant expressed the view that the court proceedings were evidence of a plot or conspiracy against him. The defendant stated that he was hearing voices and believed he was being controlled by external forces. He also stated that he had been in direct communication with God and that God would punish Markos and other court officials. Dr. Markos found, based on his evaluation, that defendant was not fit for sentencing based on his inability to cooperate with counsel. Dr. Markos testified that defendant was angry and hostile at the time of his examination and concluded that defendant was suffering from paranoid delusions. Dr. Markos further stated that he believed defendant understood the nature of the charges against him but told the court he was not able to form an opinion as to whether defendant understood the functions of the courtroom officials.

Subsequently, the trial judge proceeded to question the defendant as to his ability to cooperate with his counsel. Defendant stated several times that his counsel was “all right, okay.” The trial judge then asked defendant about Dr. Markos’ statements regarding defendant’s religious delusions and defendant responded by reading from the Bible. The defendant also stated that he thought his attorney’s decision that he not take the stand had been a mistake because “he had plenty to say.”

Subsequent to defendant’s trial and sentencing, on March 16, 1987, defense counsel presented a motion for a new trial. At this time defense counsel presented for the first time certain records from the Residential Treatment Unit of the Cook County Department of Corrections from 1986 when defendant was incarcerated pending trial. The Residential Treatment Unit is a 200-bed facility for inmates who are treatable and not in an acute state, but nonetheless are not able to function among the other jail inmates. (See People v. Murphy (1987), 160 Ill. App. 3d 781, 513 N.E.2d 904.) The records described the defendant’s auditory hallucinations and incidents where defendant refused to eat for a period of up to five days. In addition, the records contained a note dated August 6, 1986, describing defendant as alert and oriented but showing flight of ideas, poor sleep, depressed mood and a recent suicide attempt. Another note dated September 5, 1986, described defendant as tense, defensive, angry and disoriented. A third note dated September 23, 1986, described defendant’s agitations and a suicide attempt. The trial judge commented that the authors of the notes were unknown and that parts of the notes were illegible. The trial judge stated that he would admit those portions of the records that were consistent with testimony already heard, but that other parts of the record were irrelevant. Thereafter, the trial judge denied defendant’s motion for a new trial and motion to reconsider fitness.

In alleging a claim for ineffective assistance of counsel, a defendant must prove that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceedings would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246; People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) A reasonable probability is a probability sufficient to undermine confidence in the outcome, and defendant bears the burden of showing that, absent counsel’s errors, the fact finder would have had a reasonable doubt respecting guilt. In determining whether there has been ineffective assistance, a court must consider the totality of the circumstances and determine whether counsel’s assistance was reasonable considering all the circumstances. Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

In the case at bar, defendant contends that his counsel’s failure to present defendant’s records from the Residential Treatment Unit until after trial and sentencing denied him the effective assistance of counsel. The State maintains that defense counsel’s decision to proceed to trial prior to investigating defendant’s mental condition, but instead to present defendant’s own opinion of his fitness, was permissible trial strategy which did not prejudice defendant. In People v. Murphy (1987), 160 Ill. App. 3d 781, 513 N.E.2d 904, the defense counsel was aware that the defendant had been assigned to the Residential Treatment Unit of Cook County jail and thought that fact was significant. Counsel also indicated that he had difficulties communicating with the defendant and that he believed the defendant had a problem. Since the outcome of the fitness hearing might have been different had this history been investigated and since the discovery of the psychiatric records might have led counsel to raise an insanity defense at trial, the court concluded that there was a showing of sufficient prejudice to defendant to warrant reversal and remand of the case for a new trial. See also People v. Howard (1979), 74 Ill. App. 3d 138, 392 N.E.2d 775.

The undisclosed records from the Residential Treatment Unit in the instant case were compiled within one day to six weeks after the date of the offense and, therefore, would be clearly pertinent to the potential issue of insanity. A patient’s psychiatric history is one of the most important criteria in making a diagnosis. (People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485.) We cannot ascertain any tactical advantage by defense counsel in failing to discover and introduce these records at the fitness hearings and cannot consider it sound strategy to defer the question of sanity until after a trial on the merits. We recognize the possible dilemma of a defense counsel who is aware of questions about both fitness and sanity but whose client denies the illness and opposes any attempt to obtain a ruling as to unfitness or insanity. Indeed, this court has expressed sympathy with a defense attorney who urged his client was competent in the face of contrary evidence, noting that his representation would quickly have terminated altogether had he spoken otherwise in front of his adamant client. (See People v. Gravot (1974), 19 Ill. App. 3d 486, 311 N.E.2d 699.) The clear weight of authority, however, holds that it is nonetheless counsel’s responsibility to alert and inform the court about any doubts as to fitness. People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677; People v. Burson (1957), 11 Ill. 2d 360, 143 N.E.2d 239; People v. Schwab (1986), 151 Ill. App. 3d 424, 502 N.E.2d 815; People v. Rangel (1982), 104 Ill. App. 3d 695.

Accordingly, it is our determination that the inadequate investigation of the defendant’s records and the issue of sanity, which was prejudicial to the fitness question and to the determination of a proper defense at trial, is sufficient to meet the standard for ineffective assistance of counsel. (Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246; Greer, 79 Ill. 2d 103, 402 N.E.2d 203.) Sufficient prejudice has been demonstrated in this case since there is a reasonable probability that proper investigation might have produced a different trial result. (Murphy, 72 Ill. 2d 421, 381 N.E.2d 677; Howard, 74 Ill. App. 3d 138, 392 N.E.2d 775.) We, therefore, reverse defendant’s conviction and remand this case for a new trial.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

MANNING, P.J., and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    ILLINOIS NATIONAL INSURANCE COMPANY, Plaintiff-Appellant, v. WALTER SZCZEPKOWICZ et al., Defendants (Anna Banek et al., Defendants-Appellees).

    First District (2nd Division)
    No. 1-88-2869
    Opinion filed June 30, 1989.

      Gurion & Lewis, of Chicago (David W. Ott, of counsel), for appellant.
    Doyle & Ryan, Ltd., of Chicago (John A. Doyle, of counsel), for appellees Anna Banek and Eugeniusz Banek.
    James Dahl & Associates, of Chicago (James E. Dahl, of counsel), for appellee Kenneth Davis.

      The only defendants to move for summary judgment against Illinois National Insurance Company in the circuit court, and file briefs as appellees in this case, are Anna Banek; Eugeniusz Banek, individually and as special administrator of the estate of Jacek Banek; and Kenneth Davis.

   JUSTICE HARTMAN

delivered the opinion of the court;

Plaintiff Illinois National Insurance Company (National) sought a judicial declaration determining the amount it was obligated to pay under a liability insurance policy for two lawsuits filed against its insureds. On cross-motions for summary judgment, the circuit court ruled against National. On appeal, National identifies as error the denial of its motion for summary judgment and the granting of defendants’ cross-motion for summary judgment. There is no dispute as to the facts.

The complaint for declaratory judgment arose out of collisions involving a tractor-trailer unit driven by Walter Szczepkowicz and two automobiles, a Lincoln Continental driven by Ken Davis and a Chevrolet driven by Jan Banek. The issue presented to the circuit court was whether the two collisions were one or two “accidents” for purposes of a certain liability insurance policy: if the two collisions constitute one “accident,” National is obligated only to pay up to $300,000 for all injuries and damages arising out of the incident; if the collisions are two “accidents,” National might be liable for up to $300,000 for injuries claimed by Davis, and an additional amount up to $300,000 for injuries to occupants of the Banek vehicle.

The collision occurred on October 1, 1983, on Illinois Route 41 in Lake County. The speed limit was 50 miles per hour. There were two northbound and two southbound lanes. Each lane was 12 feet wide. The northbound and southbound lanes were separated by a grassy median strip 31 feet wide. The median strip was intersected by a crossover lane 41 feet wide. On the date of the occurrence, there was fog in the area.

Szczepkowicz was driving a tractor-trailer unit with an inoperative left rear side clearance light on its trailer. He steered the tractor-trailer out of a private driveway on the east side of Route 41, entered the northbound lanes and proceeded west into the crossover. Due to traffic in the southbound lanes, he was forced to stop with the rear portion of his vehicle effectively blocking both northbound lanes.

At the same time, the Davis vehicle was proceeding northbound in the curb lane and struck the rear wheels of the stopped tractor-trailer. According to Davis, the tractor-trailer moved forward approximately 12 feet “almost immediately” after the collision, and then stopped again. At that point, according to the agreed statement of facts, Szczepkowicz failed to completely remove the vehicle out of all lanes of traffic; he did not back the tractor-trailer off the roadway, proceed into the southbound lane, or pull onto the median strip parallel with the road. Five minutes later, an automobile driven by Jan Banek and occupied by three passengers, his parents Anna and Eugeniusz, and now-deceased brother Jason (the Banek passengers), travel-ling in the left northbound lane, smashed into the side of the stopped tractor-trailer, forward of the rear wheel area which Davis previously had struck. At the time of the second impact, the rear wheels of the trailer were situated on the line dividing the two northbound lanes.

Davis, Jan Banek, and the Banek passengers separately brought lawsuits against Szczepkowicz, his employer, the owner of the tractor-trailer, and the owner of the property fronting Route 41 where the accident occurred. Pursuant to an insurance policy in effect on the date of the incident, National was required to defend Szczepkowicz, his employer, and the owner of the tractor-trailer in the three lawsuits. National then filed the complaint for declaratory judgment against Davis, Jan Banek, and the Banek passengers to determine its potential liability in the various actions, and eventually moved for summary judgment; in response, Davis and the Banek passengers (appellees) filed cross-motions for summary judgment.

After a hearing, the circuit court initially found that there was no ambiguity or inconsistency in the effective insurance policy. Next, after a thorough discussion of case law, the circuit court concluded that two accidents occurred. Specifying two factors, a time element and a “continuum between impacts” concept, the court found that the second collision did not result from continuous or repeated exposure to substantially the same conditions; it then granted appellees’ motions for summary judgment while denying National’s motion. From this ruling, National appeals.

Although the argument is made to the effect that the policy defines “one accident” as all bodily injury and property damage resulting from continuous or repeated exposure to substantially the same conditions, and that the conditions here were “substantially the same,” it must be concluded that the claims arose out of two accidents, even if we were to adopt National’s construction of its policy language. National argues that the act giving rise to all the claims was Szczepkowicz’ moving the tractor-trailer onto the highway in the fog. Appellees contend that each collision resulted from distinct negligent acts and that there was no continuous exposure to substantially the same conditions.

If the provisions in an insurance policy are expressed in plain and unambiguous terms, the language must be given its ordinary meaning without further construction. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4-5, 429 N.E.2d 1203.) A term may be considered unambiguous where it has acquired an established legal meaning. (Schnackenberg, 88 Ill. 2d at 5.) Despite numerous decisions in other jurisdictions, Illinois law was unclear until recently regarding the interpretation of “occurrence” or “accident” in liability policies for determining whether one or multiple accidents existed. A majority of foreign courts have concluded that the number of occurrences is determined by referring to the cause or causes of the damage (the “cause” theory), as opposed to the number of individual claims or injuries (the “effect” theory). (See Michigan Chemical Corp. v. American Home Assurance Co. (6th Cir. 1984), 728 F.2d 374 (and cases cited therein).) First, in a 1984 case in which the Sixth Circuit construed Illinois law (Michigan Chemical Corp., 728 F.2d 374), and then recently, in an appellate decision, Illinois has followed the majority of jurisdictions, which have concluded that the number of occurrences is determined by referring to the cause or causes of the damage rather than to the number of individual claims or injuries. (Mason v. Home Insurance Co. (1988), 177 Ill. App. 3d 454, 459-60, 532 N.E.2d 526.) In the case at bar, the circuit court correctly adopted the “cause” theory.

Courts applying the “cause” theory uniformly find a single accident “[i]f cause and result are so simultaneous or so closely linked in time and space as to be considered by the average person as one event.” (Welter v. Singer (1985), 126 Wis. 2d 242, 251, 376 N.W.2d 84, 87.) The Illinois cases are of little assistance, however, in answering the question of whether one or two accidents occurred. Both Michigan Chemical Corp. (shipment of tainted livestock feed to several customers) and Mason (serving of contaminated food to several restaurant patrons) present distinguishable facts.

More factually similar are Liberty Mutual Insurance Co. v. Rawls (5th Cir. 1968), 404 F.2d 880, Hartford Accident & Indemnity Co. v. Wesolowski (1973), 33 N.Y.2d 169, 305 N.E.2d 907, 350 N.Y.S.2d 895, and Olsen v. Moore (1972), 56 Wis. 2d 340, 202 N.W.2d 236. In Rawls, a northbound driver struck the rear section of another northbound automobile, knocking it off the highway; he continued forward, veered across the centerline, and collided head-on with a southbound auto. Finding two accidents, the court took cognizance of the separation of time and distance and that two distinct collisions occurred rather than a single, sudden encounter. The court mainly focused, however, on the aspect of the driver’s control before the second collision; his control of the vehicle after the initial contact with the first car was found persuasive. (Rawls, 404 F.2d at 880.) In contrast, in Wesolowski, a southbound driver sideswiped a northbound vehicle, and immediately continued on into a head-on collision with a second northbound auto. Relying on the fact that the two collisions occurred “but an instant apart,” the court found an unbroken “continuum” between the two impacts, and concluded that there was a single occurrence. (Wesolowski, 33 N.Y.2d at 173-74, 305 N.E.2d at 910, 350 N.Y.S.2d at 899-900.) Also, in Olsen, an eastbound automobile crossed a median strip, hit an oncoming vehicle driving in the right westbound lane, and then “almost instantaneously” glanced into another car in the left westbound lane. Finding a single, uninterrupted cause, the court held only one accident occurred. (Olsen, 56 Wis. 2d at 350, 202 N.W.2d at 241.) The Olsen court distinguished Rawls on two grounds; unlike that case, both collisions occurred simultaneously and the driver never regained control of his vehicle after the initial impact. 56 Wis. 2d at 349-50, 202 N.W.2d at 240-41.

Under the circumstances presented in the instant case, it cannot be said that the two collisions resulted from the same negligent act. Two separate, distinct collisions occurred five minutes apart. This is not a situation where, after the initial impact, one vehicle immediately “ricochets” off the other and within seconds collides with a third. Unlike Olsen and Wesolowski, there was no single force, nor an unbroken or uninterrupted continuum that, once set in motion, caused multiple injuries. (See American Indemnity Co. v. McQuaig (Fla. App. 1983), 435 So. 2d 414, 415.) Further, as in Rawls, Szczepkowiez never lost control of his vehicle after being struck by Davis.

More importantly, the conditions resulting in each collision were not “substantially the same.” Davis struck the admittedly negligently driven tractor-trailer as it blocked both northbound lanes. Immediately after the impact, Szczepkowiez drove forward about 12 feet. This movement resulted in a change of navigability in the northbound lanes by opening, approximately, one full lane of traffic which previously had been blocked by the trailer at the time of the first collision. Five minutes elapsed before the Banek car crashed into the trailer. Szczepkowiez should have had knowledge, especially after the Davis accident, of the danger imposed by his obstruction of the northbound lanes in the fog. His failure to remove his vehicle completely, which was still operable, from the northbound lanes after the first accident created a different set of conditions and constituted a separate cause of the second collision.

For purposes of the policy, the appellees’ claims must be held to arise out of two accidents; the second collision did not result from continuous or repeated exposure either to the same or to substantially the same conditions. Summary judgment against National in its action for a declaratory judgment was proper and, accordingly, the judgment of the circuit court granting summary judgment for appellees must be affirmed.

Affirmed.

BILANDIC, P.J., and DiVITO, J., concur.

      Past cases have used the words “accident” and “occurrence” interchangeably. (See Hartford Accident & Indemnity Co. v. Wesolowski (1973), 33 N.Y.2d 169, 172-73, 305 N.E.2d 907, 910, 350 N.Y.S.2d 895, 898-99; Olsen v. Moore (1972), 56 Wis. 2d 340, 351, 202 N.W.2d 236, 241.) No distinction is drawn between these terms in this opinion.

      National argues that the time span between collisions is not a factor this court can consider. This contention is without merit. Certainly one occurrence can result in injuries suffered over a period of time; in such a case, time would be irrelevant to a determination of the number of occurrences. (See Michigan Chemical Corp., 728 F.2d at 380.) The relevance of time between injuries is relevant, however, under other factual scenarios. (See Wesolowski, 33 N.Y.2d at 174, 305 N.E.2d at 910-11, 350 N.Y.S.2d at 899-900.) In the instant case, the issue involves the reasonableness of a driver’s actions and his failure to take corrective measures after an accident; the time span between collisions is one factor that must be taken into account.


author: PRESIDING JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD WILEY, Defendant-Appellant.
    First District (5th Division)
    No. 1-87-0548
    Opinion filed June 30, 1989.

      Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Marilyn F. Schlesinger, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

After a bench trial, defendant Richard Wiley was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) and sentenced to 30 years’ imprisonment. On appeal, he urges that: (1) his murder conviction should be reduced to voluntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2) and that we remand the cause for a resentencing hearing; or (2) that his conviction should be reduced to “guilty [of murder or voluntary manslaughter] but mentally ill” and his sentence reduced or the cause remanded for resentencing; or (3) that we reduce his sentence of 30 years to 20 years.

On April 12, 1985, defendant concededly killed his wife, Ruth. The following evidence was adduced at trial. On April 12 at approximately 6:10 p.m., defendant summoned the police by calling “911”; he identified himself, asked that an ambulance be sent to his home at 2503 North Oak Park Avenue, and stated he had stabbed his wife in “the chest and on top of her” and that she was unconscious. Chicago police officer Michael Stephens went to defendant’s home, heard sobs from within, and found the door ajar. He entered the house and saw defendant in the living room kneeling over the body of his wife; she was lying face up and was nude from the waist down. Officer Stephens observed that defendant was not under the influence of alcohol — he did not sway, slur his speech or appear off-balance — and a fellow officer concurred in this observation. (On cross-examination, however, Stephens testified that the police report stated that defendant “Had Been Drinking (H.B.D.).”) Stephens took defendant to the kitchen and he related that he and his wife had argued. Paramedics subsequently arrived and announced that defendant’s wife was dead. Defendant then yelled “Oh God” or “Oh no” and ripped off his shirt. The officers then handcuffed defendant, placed him under arrest, and took him to the station house.

At the station house, Detective Raymond Shalk spoke to defendant about the stabbing incident. Defendant explained that his wife was upset because he had cancelled their vacation trip to Jamaica, he was angry at her because he had heard a comment from a neighbor about her staying out late, and that he believed his wife was having an affair with someone. Defendant further stated that when their argument intensified, he lost control, picked up a “ceremonial” knife from a drafting table in the living room, then stabbed his wife several times. Upon realizing “his action was wrong,” he called the police and then his father.

Detective Ernest Halvorsen also spoke to defendant at the station house later that day. Defendant told Halvorsen that his argument with his wife began in the bathroom, he hit her with a pop bottle, he later stabbed her but he did not remember how many times, and that he had been drinking. Halvorsen observed that defendant displayed no sorrow or remorse for what he had done.

Dr. Michael Chambliss, a Cook County deputy medical examiner, testified that the victim had been stabbed 23 times, suffering wounds to her chest, back, abdomen, right thigh, buttock and arm, and her fingers and hands. Dr. Chambliss also found blunt trauma injuries producing abrasions, lacerations or contusions on the victim’s left shoulder, right chest, forehead, eye and cheek, and hemorrhaging under the victim’s scalp. The cause of death was a stab wound to the chest.

Debbie MacDuff, a friend and co-worker of the victim, testified that she called her between 6:10 and 6:15 p.m. to make arrangements with her for going out that evening. Defendant answered the telephone and told her her “timing” in calling was “bad,” “I can’t handle this anymore,” and “How do you think it makes me look and feel when my neighbor tells me Ruth’s been staying out late?” Defendant also told MacDuff that his relationship with his wife was “terminated,” using the word “terminated” several times. MacDuff asked defendant twice to speak to his wife, but defendant declined. During the conversation, which lasted approximately five minutes, MacDuff heard a faint gurgling sound in the background. MacDuff also testified that she and the victim went out together frequently, staying out late; that she had spoken to her about her relationship with a man named Jack Evans, but she did not know the full extent of the relationship; that if Evans appeared when they were out for the evening, the victim would stay at the night club when she decided to go home; and that she was aware that the victim had filed for divorce about a year prior to her death.

Jack Evans, who testified for the defense, admitted that he and the victim had been lovers for nine months in 1983; that he knew defendant before beginning the relationship with his wife and that their relationship never changed even after defendant learned of the affair; his affair with the victim ended when defendant spoke to him about it and he withdrew from it to give defendant an opportunity to reestablish the marriage; and that he was never aware of the fact that the victim had become pregnant, had had an abortion, or whether he was the father of the child. Evans further testified that he never sought out defendant after this time, but, in 1985, he saw the victim at a bar, she told him she was still having marital problems, and she wanted to resume their relationship. Subsequently, in February 1985, he attended a party at defendant’s home and he sensed defendant knew his wife was “seeing” someone. During the evening, defendant took his car keys and refused to let him drive home. An altercation arose between the two men, and when he turned to leave, defendant struck him on the back of his head with a bottle. Evans nevertheless continued his affair with the victim until her death.

Defendant testified on his own behalf. He stated he was 31 years old and an honors graduate of Northern Illinois University. On April 12 he stayed home from work because of a sinus infection. At approximately 1 p.m. he began drinking wine and whiskey and continued doing so until 5:15 p.m. At some point he started his barbecue and a neighbor came over and they ate dinner. His wife came home from work at 5:15 p.m., “had some conversation with him in passing,” and went into the house. After his neighbor went home, he went inside the house and he and his wife got into an argument about his staying home from work and not having enough money for a trip to Jamaica which they had planned. When the argument became more heated, he called his bank sometime before 6 p.m. and cancelled a check for the trip; his wife was in the bathroom showering at the time. Their argument continued, becoming more intense and loud. After his wife accused him of “terrorizing” her sister, Mary Beth Hartford, during a trip to Wisconsin, he called Hartford to prove that he had not done so, but she was not at home. Thereafter, at approximately 5:45 p.m., he received a telephone call from Debbie MacDuff. He told MacDuff that his wife was in the shower, they were arguing, and his wife was unable to come to the telephone. At 6 p.m., Hartford called him. (Contrary to defendant’s testimony, Hartford testified she never telephoned him.) Later, after having talked to Hartford, he “went into the bathroom and told his wife — who was putting on her make-up for her evening activities — that she was lying.” He made several accusations about her staying out late and that she was probably having an affair “and seeing Jack,” and she replied, “Yes.” He then “exploded,” struck her with a pop bottle, and proceeded to stab her numerous times.

More specifically, on direct examination, defendant admitted that he told Dr. Richard Elliot, a psychiatrist, that he supposed hitting his wife with a bottle “just wasn’t enough for the betrayal” she had inflicted on him. He stated that everything then happened “fast.” He heard a thud after he hit his wife, vaguely recalled struggling with her, picked up a knife, and lunged at her. He further stated that the next thing he remembered was “there was air coming out of her, she said she loved me and she went unconscious.”

On cross-examination, defendant stated that the drafting table, where the murder weapon was located, was six to eight feet away from the bathroom in the living room. When he returned to the bathroom with one of four knives which were on the table, his wife was standing in the doorway, facing him. She wore only a polo shirt and was putting on her makeup when he lunged at her and struck her in the shoulder. He admitted having told a psychiatrist that he aimed for his wife’s chest; at trial he denied this was true. He further testified that he did not think of the propriety of his actions — rather, “it just happened.” Defendant subsequently called “911” and his father.

Defendant’s father testified that defendant sounded hysterical and depressed when he spoke to him after the slaying and appeared distraught at the station house. He also testified that the day after the slaying he found two wine jugs and a whiskey and champagne bottle in defendant’s garage.

Defendant’s mother testified that defendant had a history of emotional outbursts in which he would strike out at others, including her and his first wife, and that he also damaged property. Specifically, he once pulled a knife on his mother, he threw a beer bottle at his father, striking him in the forehead, he had violently retaliated against his first wife (who subsequently divorced him due to his extramarital affairs) when she locked him out of their house while he was drinking, he hit Jack Evans over the head with a bottle a few weeks prior to the stabbing of his wife, and he broke into his wife’s employer’s office, stole some money and destroyed property while under the influence of hallucinogens. Defendant’s mother also stated that he was self-centered, liked to control things and had “explosions” to get his way. Defendant also described himself as a bully as a child who had always had problems with his temper; he once broke a schoolmate’s arm. The record further discloses that defendant underwent four different courses of out-patient psychotherapy and three drug and/or alcohol-based hospitalizations in 1983 and 1976. Defendant had also used hallucinogens since high school and drank alcohol as well.

Dr. Richard Elliot, who testified as an expert on defendant’s behalf, stated that based on three interviews with defendant, as well as reports from other treatment facilities and psychiatrists who dealt with defendant, his diagnosis was that defendant suffered from alcohol intoxication, alcohol abuse and substance abuse, an intermittent explosive disorder, and an atypical personality disorder with borderline features.

Dr. Gerson Kaplan, the State’s expert, disagreed with Dr. Elliot’s diagnosis. He diagnosed defendant as having a borderline personality disorder with alcohol and drug abuse. He also stated that defendant knew what he was doing and intended to kill his wife and that he had the capacity to control his actions.

In finding defendant guilty of murder, the trial court rejected as inapplicable the offense of voluntary manslaughter or a finding of “guilty but mentally ill,” and this appeal followed.

Defendant first argues that he was not found guilty of murder beyond a reasonable doubt and instead he should have been found guilty of voluntary manslaughter on the bases of the victim’s provocation in confessing to him that she was having an affair and his “impaired mental condition.” Under the Criminal Code of 1961, voluntary manslaughter requires that at the time of an unlawful killing the perpetrator was “acting under a sudden and intense passion resulting from serious provocation” by the individual killed. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2.) “Serious provocation is conduct sufficient to excite an intense passion in a reasonable person” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(a)(2)) and thus the provocation must be shown objectively, not subjectively (People v. Middleswart (1984), 124 Ill. App. 3d 35, 463 N.E.2d 1050). As a general rule in Illinois, the categories of provocation which are sufficient to reduce the crime of murder to voluntary manslaughter are substantial physical injury or assault, mutual quarrel or combat, illegal arrest, or adultery with the offender’s spouse. (People v. Fausz (1983), 95 Ill. 2d 535, 449 N.E.2d 78.) Mere words, however aggravated, abusive, opprobrious, or indecent, are not sufficient provocation (People v. Neal (1983), 112 Ill. App. 3d 964, 446 N.E.2d 270), and adultery by a spouse has generally been limited to those instances where the parties were discovered in the act of adultery or immediately before or after its commission (People v. Middleswart (1984), 124 Ill. App. 3d 35, 463 N.E.2d 1050).

An exception to the above general rules has developed based on verbal revelations of infidelity and other conduct. The exception is applicable in the situation where a revelation of adultery is made after a series of provoking statements or circumstances. See People v. Am-bro (1987), 153 Ill. App. 3d 1, 505 N.E.2d 381 (victim announced publicly to a group that she no longer loved the defendant and was going to seek a divorce, on the night of her death she implied the defendant was not the father of her children, she called the defendant an alcoholic, she told him she was going to take their children away from him, and, when the defendant asked her how he could restore their relationship, she informed him of her adultery and then goaded him to kill her); People v. Carr (1980), 91 Ill. App. 3d 512, 514, 414 N.E.2d 1108 (the defendant’s wife moved out of the marital home, the defendant informed a cousin of the victim that he would kill his wife if she tried to remove any furniture from their home, the wife returned to the home to remove some furniture, she told the defendant “ ‘At least now I have a real man,’ ” and defendant shot her); People v. Ahlberg (1973), 13 Ill. App. 3d 1038, 301 N.E.2d 608 (victim moved out of the marital home with the parties’ children without informing the defendant, the defendant looked for her for several days, when the victim finally contacted the defendant she informed him that she was getting a divorce, she told him that he never satisfied her sexually, and that she had found an older man who could love her and the children more than he could).

We find the foregoing exception inapplicable to this case. During the parties’ argument, the victim merely commented on the fact that if defendant went to work instead of staying home they would have enough money to go on vacation. Defendant presented no evidence that the victim went into detail about having an affair with Jack Evans and, in fact, defendant stated at one point that he did not know the identity of the man who was having an affair with his wife. We further note that the victim did not announce she was having an affair; defendant brought the subject up and, in demanding a confession, the victim merely answered in the affirmative. Although the parties had marital problems in the past, there is no evidence in the record that they had been having daily, weekly or even monthly arguments since that time or immediately prior to the victim’s death; defendant had merely taken notice that the victim was frequently staying out late and coming home in the morning hours and that a neighbor had commented on the fact. Accordingly, we find, as apparently did the trier of fact, that the limited remarks by the victim to defendant did not constitute the type of provocation recognized in Illinois as sufficiently serious to reduce the charge of murder against defendant to voluntary manslaughter. We agree with the trial court that “from simply a public policy standpoint, society did not condone or expect that the spouse — even when given an unfaithful spouse, should be permitted to take the person’s life upon disclosure of the unfaithfulness.”

We further observe, arguendo, that if we were to hold that the victim’s remarks constituted serious provocation causing defendant’s actions, only defendant’s hitting the victim over the head with a bottle, had she died as a result thereof, would constitute voluntary manslaughter, but not his subsequent stabbing of the victim in light of the fact that he removed himself from the situation and/or provoking comment, which caused him to “explode,” by going into the living room. The victim made no further comments after that time and defendant’s subsequent stabbing of her could not be deemed to have occurred because of any serious provocation by her. In other words, defendant had time to reflect after his initial “explosion” and, therefore, his act in stabbing his wife 23 times thereafter was clearly not a result of a “hair trigger” type of an “explosion”; he clearly intended to kill or do great bodily harm to his wife or knew that there was a strong probability that his acts would cause death or great bodily harm (see Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) when he decided that hitting his wife with a bottle “just wasn’t enough.” Defendant’s stabbing of his wife constituted the crime of murder beyond a reasonable doubt, not voluntary manslaughter. Since the trial court was in the best position to observe the witnesses, heard their testimony, and concluded that defendant’s conduct was not the result of any serious provocation by the victim that justified the reduction of the crime from murder to voluntary manslaughter, we find no reason to disturb its determination.

Defendant further argues that his “impaired mental condition” by itself required a reduction of the charge of murder to voluntary manslaughter. Defendant’s argument is apparently based on his expert’s diagnosis that he had an “intermittent explosive disorder.” He cites to cases where the defendants were intoxicated at the time they committed a homicide and our courts held that their intoxication was a factor to be considered in reducing a murder charge to voluntary manslaughter. (See People v. Woollums (1981), 93 Ill. App. 3d 144, 416 N.E.2d 725; People v. Zynda (1977), 53 Ill. App. 3d 794, 368 N.E.2d 1079; People v. Johnson (1975), 32 Ill. App. 3d 36, 335 N.E.2d 144.) Specifically, defendant contends that “[tjhese cases support defendant’s argument that a serious mental disorder, though short of insanity, could reduce murder to manslaughter in appropriate cases because if a person who voluntarily impairs his mental state by drinking alcohol may only be guilty of manslaughter, surely one whose mental state is involuntarily impaired, due to a mental disorder, deserves the same treatment.” (Emphasis in original.) We find it unnecessary to address this specific argument because at a minimum it depends upon the existence of a serious impaired mental condition which the trial court rejected and which we reject as discussed below relative to defendant’s overlapping argument that the trial court should have found him guilty but mentally ill.

It should be noted that although defendant concedes in his appellate brief that his mental illness falls short of insanity, he nonetheless appears to contend that because he was “partially” mentally impaired he should have been found guilty but mentally ill. In support thereof, he relies on his expert’s diagnosis that he was suffering from an “intermittent explosive disorder,” along with alcoholism and drug abuse, and an “atypical personality disorder with borderline features which involve explosions grossly out of proportion to a precipitating stress followed by periods of stability.”

On the other hand, the State’s expert, Dr. Kaplan, diagnosed defendant as having a borderline personality disorder which merely causes a person difficulty in dealing with anger, reacting reasonably, and controlling his impulses. Dr. Kaplan further stated that defendant knew what he was doing, he intended to kill his wife, and he had the capacity to control his actions.

The term “mentally ill,” authorizing a finding of “guilty but mentally ill,” “means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment.” (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(d).) A finding of guilty by a trier of fact will not be disturbed on appeal on the issue of mental illness absent facts indicating a defendant’s illness at the time he committed an offense and its decision should be affirmed unless the determination is so improbable or unsatisfactory as to raise a reasonable doubt as to the defendant’s sanity. People v. Christiansen (1987), 116 Ill. 2d 96, 506 N.E.Sd 1253.

Here, although the record reflects that defendant had certain personality defects, enhanced by the use of alcohol and drugs, the facts do not justify this court’s overturning the decision of the trial court because they do not raise a reasonable doubt as to his mental state at the time of the stabbing of his wife. As stated above, at the most defendant’s hitting his wife with a bottle might constitute the crime of voluntary manslaughter had the victim seriously provoked his conduct, but defendant’s stabbing of her thereafter under the actual circumstances could not; defendant acted merely out of anger, which he gave free rein to without assuming responsibility for the consequences, as he apparently did throughout his life. That this is the case is supported by other clinicians who agreed with Dr. Kaplan’s assessment of defendant. One nontestifying psychologist evaluated defendant as prone to suspicion and possessing hostile attitudes. Defendant was also described as egocentric, self-righteous, grandiose and prone to deny his guilt. He expressed no remorse for the pain he had caused his victim; his only regret was that his actions led to his incarceration and curtailed his freedom. Defendant described his interpersonal relationships as competitive and uncooperative and his family relationships as discordant. Other tests showed defendant distrusted people, disrespected authority, and believed people should try to get away with whatever possible. We believe that the trial court correctly assessed defendant’s mental state; it appears from the record that defendant’s mental state did not rise to the level of a mental illness depriving him of all rational thought, but rather was one of common, unchecked, self-indulgent anger, exascerbated by his use of alcohol and drugs which he knew increased that anger. Dr. Kaplan’s opinion and the evaluations of other witnesses amply support the trial court’s conclusion in this regard. The fact that Dr. Kaplan’s opinion contradicted defendant’s expert’s does not entitle this court to overturn the conclusion of the trier of fact on the issue; a trier of fact may give one expert’s opinion more weight than another on the issue of mental illness. People v. Wright (1987), 161 Ill. App. 3d 967, 514 N.E.2d 817.

We further briefly observe that defendant’s alleged impaired mental condition is belied by the fact that after the stabbing he maintained sufficient control to respond to Debbie MacDuff’s telephone call and conceal from her what he had done, he was able to call the police and place two telephone calls to reach his father in order to report the crime, and he thought to leave the door of his home ajar for the police.

' In light of the foregoing, we hold that the trial court properly rejected defendant’s urging that he was guilty of voluntary manslaughter or, alternatively, guilty but mentally ill.

Finally, defendant argues that this court should reduce his sentence from 30 to 20 years based on the fact that the crime was “not premeditated,” he is intelligent, supported by responsible members of the community, and he has a good potential for rehabilitation. The trial court considered all of these factors in imposing sentence and we can find no legal justification for reversing it. Absent a clear abuse of discretion, this court will not substitute its judgment for that of a trial judge who had the opportunity to observe defendant throughout the trial and sentencing proceedings. (See People v. Angelly (1988), 167 Ill. App. 3d 477, 521 N.E.2d 306.) Given the nature of defendant’s crime, the brutal stabbing of his wife, we do not find his sentence of 30 years to be excessive or even greater than it would have been had he been found guilty but mentally ill as he has urged.

In light of the foregoing, we affirm defendant’s conviction and sentence.

Affirmed.

PINCHAM and COCCIA, JJ., concur.