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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE WILLIAMS, Defendant-Appellant.
    First District (6th Division)
    No. 1-87-2096
    Opinion filed June 29, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of the murder and aggravated criminal sexual assault of two 76-year-old women. The trial court sentenced defendant to a term of imprisonment for life. On appeal, defendant contends that he sustained his burden of establishing his insanity by a preponderance of the evidence; that he was denied a fair trial due to comments made by the court; that the jury instructions on the verdict of guilty but mentally ill misstated the law; and that the court erred in excusing for cause all potential jurors who opposed the death penalty.

Because defendant does not challenge the jury’s finding that he did in fact commit the crimes, we will summarize the evidence.

On July 12, 1984, defendant killed 76-year-old Dorothea Smith by strangling her with a nylon stocking and stabbing her in the chest, after beating her and forcing her to perform fellatio. Later that day, defendant killed 76-year-old Josephine McMullen. He first vaginally raped the victim, then tied her to a chair, and strangled her with a nylon stocking.

On July 20, 1984, defendant was arrested and charged with the murder and aggravated criminal sexual assault of each of the victims.

At trial, the state presented certain physical and forensic evidence which connected defendant to both crime scenes. It also offered evidence detailing the discovery of the bodies; the condition of the crime scenes; and defendant’s actions following the murders, when he fled to Indiana, California, Utah, and Nebraska.

Officer Thomas Ptak testified for the State that on July 20, 1984, he questioned defendant about the two homicides. At first, defendant denied committing the crimes, but then admitted he had killed the victims. Defendant said he had been under a lot of pressure and stress lately due to financial and sexual problems.

James Linn, an assistant State’s Attorney, testified for the State that on July 20, 1984, he interviewed defendant. Defendant’s confession was taken down by a court reporter. When the 17-page statement was transcribed, defendant went over it and made corrections.

In the confession, defendant stated that on July 12, 1984, he was at a tavern in Chicago in the morning. After leaving the tavern, he went to'Smith’s home. Defendant knew Smith through his wife and had been to her home five or six times.

Defendant described the first killing and sexual assault. After leaving Smith’s home, defendant went home and changed clothes, and then went to his sister’s home. From there, he went to his bank and withdrew $2,000 using a credit card. He felt he would need money because he would be on the road, trying to evade the police.

Defendant then drove his car to the home of McMullen, for whom he had done handy work. After describing the crime, he stated that he had taken a ring from the victim’s finger.

Defendant left the McMullen house, driving her car, and drove to Indianapolis, where he left the car. He then bought a bus ticket to Los Angeles and checked into a hotel under the name of George Gray. The next day he took a bus to Salt Lake City, and then took a bus to Omaha, Nebraska, where he spent the night in a hotel, registered under his own name. He then returned to Chicago. He arrived at his sister’s home on July 19 and slept in her backyard. The next morning he saw his sister and was arrested. Previously he had telephoned his sister several times. He did not tell her where he was because he was still trying to avoid the police.

Judy Williams, defendant’s sister, testified for the State regarding numerous telephone calls which defendant made to her prior to, and during the week following, the murders. As the calls took place, Judy reported them to the police. The first call was a message on her answering machine. On July 12, 1984, at 11:30 a.m., she heard the message when she arrived home. Defendant stated, “I called to tell the family to forgive me but I have to hurt somebody and kill myself.”

Just then, defendant called again. He repeated his statement and mentioned he was in a tavern. He was talking in a normal conversational tone. He did not appear intoxicated, although he might have been drinking a little. He called back later and said he was at a tavern at 70th and Western. His voice was still normal. He said that “voices were telling him he had to hurt somebody. He also said he had to rape somebody and kill himself.” A neighbor, Peggy Moore, spoke with defendant while Judy went next door to call the police.

Just after 2 p.m., defendant telephoned again. He was upset because Judy had telephoned the police. The police had come to the tavern, but the bartender, a friend, lied and said defendant was not there. Judy testified that defendant did not sound intoxicated.

Defendant telephoned Judy later. He wanted to meet with Judy. He said, however, that the voices were still talking to him and that he would rape and kill her.

At 4:40 p.m., defendant came to Judy’s home. He told her that he had killed an older woman. While they were talking, “he was just kind of trying to dance back and forth, walking back and forth to the car and back to where we were talking.” He was not crying or yelling, or acting unusual. She smelled no alcohol. He warned her not to call the police, and said within 15 minutes he was getting rid of his car.

At this point, Peggy Moore walked up with her husband, George Moore, a Chicago police officer. Judy introduced him to George. Within a few minutes, defendant left in his car. During the visit, he had not complained of voices or mentioned any pains in his body or head. He was coherent, had no problem walking or speaking, and his answers were responsive to her questions. Later that evening, at defendant’s home, Judy and Carol, defendant’s wife, found some of defendant’s clothes and some towels, which had blood on them. They gave the items to the police.

On Sunday, July 15, defendant telephoned and said he had to leave town. The next day, defendant called Judy and said he was on the road and that the voices were telling him that he had to keep going. Defendant told her that he could not talk long, in case her telephone was tapped.

On Wednesday, defendant telephoned twice. At 4:30 p.m., he told Judy he felt fine and wanted to talk to his wife and daughter. He also asked whether television showed him with or without a beard. He was thinking of coming back.

At 11 p.m., defendant telephoned again. He wanted to know if Judy had been in touch with his wife, and Judy told him that his wife was a nervous wreck. Judy advised him to come home. His voice was not unusual and he used a normal conversational tone.

On July 20, 1984, Judy was at home with a police officer when her brother arrived and was arrested. Defendant told the officer he wanted to leave his duffle bag, which contained cash, with Judy. Defendant called later that day from the police station to tell Judy that he did not hold her responsible for turning him in and that he wanted her to have his duffle bag and the cash in it.

Anita Rios testified for the State that she tended bar at a tavern patronized by the defendant about twice a week in the mornings. She had known him for two years. He used to be employed to clean the tavern. He was usually calm and had never complained about losing his memory. She had seen him drunk once or twice, and his behavior would become very angry, belligerent and nasty.

On July 12, he came in at about 9 a.m. He stayed for a half hour, and drank two beers. He mentioned that he had to build a birdhouse for his ex-landlady, a 70-year-old who lived across the street. He said that “he was going to go over there and rape her and do things to her.” Rios admonished him for making such threats, and defendant left.

He returned one hour later and made several telephone calls. He had IV2 beers. Defendant argued with another customer, and Rios refused to serve defendant any more drinks. He left at about 11 a.m.

Rios testified on cross-examination that she previously told defense counsel she thought defendant had been drinking or taking drugs before he came in. She had never seen him act like that before.

George Moore, a police officer, testified for the defense that on July 12, he was with his wife, Peggy, and defendant’s sister Judy, when he spoke with defendant in front of Judy’s house. Defendant shook hands with Moore when introduced to him. At this point, everything seemed fine. When defendant walked a short distance to speak with Judy, he seemed “anxious, but that is about it.”

Moore continued, “Then he started, you know, saying he had hurt someone, then when he started saying this I went to go toward him and he told me to stop.” Moore testified further, “Judy was asking him what had happened and he said I hurt someone, I hurt them bad.” Moore continued: “[H]e was talking about it saying that they wouldn’t find her, it would be a few days before anyone found her and they were asking him where she was so they could get some help for her, and he said they couldn’t help her, that he had hurt her bad, that he had killed her.” After defendant left, Moore telephoned the police.

Officer Winfield Wendt testified for the defense that on July 26, he spoke with defendant at the police station. After being read his Miranda rights and indicating he understood, defendant stated he knew nothing about the murders. The last thing he remembered was being in a tavern, then remembered nothing until he was on a bus leaving Indianapolis for Los Angeles. Defendant also mentioned that he had been getting headaches for six months. He did not mention about hearing voices. Defendant denied that he was crazy.

Carol Williams, defendant’s wife, testified for the defense that defendant was a good husband and father. It was only when he drank that he would do crazy things. Carol thought he had quit drinking for the past two years. Just before the murders, they had been in Wisconsin on vacation. They returned on July 9. During the vacation, defendant complained of headaches and went to see a chiropractor in Wisconsin.

On July 12, Judy telephoned Carol at work, said defendant had been drinking, “and she said that he was crazy, he was talking suicide and talking that he was going to kill somebody.” She and Judy later found bloody clothing and towels in Carol’s home.

Dr. Henry Conroe, a psychiatrist, testified as an expert witness for the defense. He opined that on July 12, 1984, defendant was able to appreciate the criminality of his conduct. He could understand that what he was doing was wrong, but he was not able to conform his conduct to the requirements of the law. Dr. Conroe described the basis of his opinion:

“DR. CONROE: Well, first is that he had a mental disease on that day, and what gave me the evidence for it was the accounts that his sister gave of his making these phone calls, of his compelling force being with him as he spoke to her as a voice being in his head telling him to kill and his being unable to resist that, this voice coming and it was outside of his control, and his being unable to fend it off and leading to his carrying out actions that were in accordance with the voice.
He could not control his behavior because of this compelling force within himself that came out in the form of this voice within his head.”

Dr. Conroe examined defendant July 12, 1985, for 2V2 hours. He also reviewed all reports and records, and interviewed defendant’s wife. Initially, Dr. Conroe diagnosed two mental diseases, an isolated explosive disorder and chronic alcohol abuse. The day before he testified, he added the diagnosis of atypical psychosis with depressive features, based on the fact that defendant reported hearing voices.

Dr. Conroe testified that the basis for his diagnosis of psychosis was that defendant had a break with reality, as evidenced by his sister’s report of his hearing voices. Dr. Conroe saw nothing in the records to indicate the report of hearing voices was not true. Defendant might not have mentioned the voices to Dr. Conroe because he did not remember. Defendant’s psychosis was also indicated by the age of the victims. In regard to the diagnosis of isolated explosive disorder, Dr. Conroe testified that the disorder occurs when someone who is usually not impulsive or aggressive suddenly shows explosive behavior “out of proportion to any sort of stress, sometimes felt as if it is a compelling force within the person to act, and they don’t know where it comes from, but their behavior is controlled by that.” Dr. Conroe knew there was a past violent criminal record, including a charge of rape, and a conviction for armed robbery, but still believed the explosive disorder precipitating the murders was “isolated.”

Dr. Conroe pointed to defendant’s heavy alcohol abuse to support his opinion and diagnoses. In the interview, defendant denied having any DT’s. There was no history of psychosis before or after the murders.

Dr. Anthony Gaspero, a clinical psychologist, testified as an expert for defendant. In his opinion, at the time of the offenses, defendant lacked the ability to understand the criminality of his behavior and lacked the ability to control that behavior. Dr. Gaspero examined defendant on April 23, 1985, for two hours; on May 1, 1985, for three hours; and on February 19, 1986, for two hours. He also interviewed defendant’s wife on the telephone for an hour.

Dr. Gaspero believed it was important to read all records, but did not believe in reviewing any records supporting an opinion contrary to his own. He would not read social histories taken by the Psychiatric Institute, even though they might contain information to corroborate or discount, e.g., defendant’s report of his alcohol abuse history.

Dr. Gaspero’s final diagnosis was that defendant suffered from a dysthymic disorder, an obsessive compulsive disorder, and psychothymic disorder, and sexual sadism. He also found psychosexual disorder paraphelia, a very rare condition. For that to occur, it was necessary that there be a moderate to severe depression, and “we must have black out, we must have the obsessive compulsive anxiety,” and the excessive use of a tranquilizing drug such as alcohol.

Because no blood-alcohol levels were taken from defendant at the time of the murders, Dr. Gaspero could not be sure how much defendant had been drinking that day. He believed that defendant had no memory of events occurring after he left the tavern. Dr. Gaspero recalled that defendant had blacked out two or three other times in his life, but there was no notation of that history in his records. Dr. Gaspero believed that defendant was extremely dangerous when drinking alcohol.

Dr. Gaspero believed it was possible that defendant was having auditory hallucinations at the time of the murders. He did not believe defendant was malingering. Dr. Gaspero thought there was neurological and physiological damage to defendant caused by alcohol abuse. Dr. Gaspero explained that the reason that defendant would attack an older woman was “he is looking at that person as a person from his past and his emotional history who he fears,” such as his stepmother.

The State offered the rebuttal testimony of Dr. Robert A. Reifman, a psychiatrist and the director of the Psychiatric Institute of the circuit court of Cook County. Dr. Reifman opined that defendant was not insane at the time he committed the offenses and that he suffered from no mental disease or defect. Dr. Reifman believed that defendant had a substantial capacity to appreciate the criminality of his conduct on July 12, and had a substantial capacity to conform his conduct to the requirements of the law.

On December 3, 1985, Dr. Reifman examined defendant for less than an hour. Previously he had reviewed psychological exams done by Custom Organics, Dr. Conroe’s report, police reports and criminal records, Dr. Grossman’s psychological work-up, a social history given by Judy, and defendant’s confession. He diagnosed dysthymic disorder, which is a condition of personality where a person goes through life in a depressed state, always sad, always feeling inadequate, having recurrent thoughts of death and suicide and generally pessimistic about life. In reviewing the records shortly before trial, it occurred to Dr. Reifman that the diagnosis of antisocial personality disorder would also be valid.

Dr. Reifman testified that, although Judy reported defendant’s hearing voices, defendant did not verify that information because he denied having any memory of the events. Dr. Reifman noted that hearing voices is “hard to verify, but he never reported hallucinations or voices in the past and he subsequently has not heard voices except or complained about voices since coming into the jail after the several days. *** But ordinarily when you hear voices that are of psychotic concern you hear them from outside your head, not within your head.” If he was hearing voices, it was probably a result of alcohol intake, although it was not clear how much he drank prior to the crimes. Dr. Reifman had “never seen a case in which hallucinations came from the head that appeared to be valid [to] me.”

Dr. Reifman testified further that he found no evidence of psychosis, i.e., that defendant was never out of contact with reality, and that he did not know what he was doing. Dr. Reifman noted that psychosis was not something which could suddenly occur, then disappear after the crimes were completed. Dr. Reifman believed that defendant’s antisocial personality disorder was indicated from defendant’s childhood criminal history, truancy, suspensions from school, carrying into adulthood a criminal record, and impulsive behavior.

Defendant first contends that reversal of his convictions is required because he established by a preponderance of the evidence that he was insane at the time he committed the offenses, and the State failed to refute that showing.

A person is not criminally responsible for his conduct if at the time of the conduct, as a result of mental disease or 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. 1985, ch. 38, par. 6 — 2.

The law presumes that all persons are sane. (People v. Fosdick (1988), 166 Ill. App. 3d 491, 519 N.E.2d 1102.) As of January 1, 1984, defendant bears the burden of proving the defense of insanity by a preponderance of the evidence. Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(e); People v. Bouchard (1989), 180 Ill. App. 3d 26, 535 N.E.2d 1001.

If the opinions of the expert witnesses on the issue of insanity conflict, the trier of fact may accept one expert’s opinion over another. (People v. Moore (1986), 147 Ill. App. 3d 881, 498 N.E.2d 701; People v. Deizman (1976), 44 Ill. App. 3d 829, 358 N.E.2d 1208.) The weight to be given an expert’s opinion depends upon the reasoning and factual details used to support that opinion. People v. Jackson (1987), 170 Ill. App. 3d 77, 522 N.E.2d 577; People v. Martinez (1980), 86 Ill. App. 3d 486, 408 N.E.2d 358.

Defendant maintains that the opinions of the defense experts “were clearly superior to that of the State’s Dr. Reifman.”

The expert testimony was in considerable conflict. The experts disagreed both as to their conclusions and as to the bases for their findings. The defense experts not only disagreed with the State’s expert, but also disagreed with each other. See People v. Deizman (1976), 44 Ill. App. 3d 829, 358 N.E.2d 1208.

Dr. Conroe believed defendant was insane at the time of the crimes and unable to conform his conduct to the requirements of the law, although he was able to appreciate the criminality of his conduct. Dr. Gaspero also thought defendant was insane and unable to conform his conduct, but he believed, unlike Dr. Conroe, that defendant was not able to appreciate the criminality of his conduct. Dr. Reifman believed defendant was sane, suffered from no mental illness, could conform his conduct to the law, and could appreciate the criminality of his conduct.

The three expert witnesses also disagreed about the significance of certain facts which were relevant to whether or not defendant was sane at or about the time he committed the murders. For example, they disagreed about the relevance of facts that defendant: went to see his sister after killing Smith; withdrew money' to leave town; sounded normal and conversational when he telephoned his sister; could drive a car; knew he had to get rid of the car to evade police; could not remember the crimes; suffered from headaches; stole rings from the victims; had a long history of violent criminal behavior; and cleaned up blood after the murders. In deciding whether or not defendant was sane, the jury need not have accepted the defense experts’ opinions that many of these facts were not significant.

The defense experts’ explanation for defendant’s confession could also be rejected by the jury in evaluating whether defendant was insane. Dr. Conroe explained that defendant “felt terrible about what had happened and tried to push it out of his memory, and in so doing forgot and it came back to haunt him, and when he was questioned specifically he was able to provide information but he constantly tried to push it out of his mind, the memory of what happened.” In contrast, Dr. Gaspero thought the confession was not significant because he believed that defendant was fed the information.

Dr. Conroe diagnosed atypical psychosis. Dr. Gaspero disagreed, stating that he believed there was no such thing as psychosis. Dr. Reifman also disagreed, stating that he found no evidence of psychosis or other mental disease. Moreover, psychosis would certainly not suddenly occur, with no evidence of a pre-existing condition before or after the crime, and then disappear again when the crime was complete. Dr. Conroe, however, testified that defendant could fade in and out of a psychotic state. The jury could also reject Dr. Conroe’s explanation that defendant did not appear psychotic now because he was on medication. According to Dr. Conroe, it did not matter if defendant was not taking the drugs, but was trading them with other prisoners for cigarettes.

The basis of Dr. Conroe’s diagnosis of psychosis was that Judy reported “there were voices inside his head telling him to kill. And this was clearly a break with reality.” Dr. Conroe explained that defendant might have failed to mention the voices in their interview because he did not remember them.

The fact that defendant claimed to hear voices prior to the offenses does not mandate a finding of insanity. See, e.g., People v. Redmond (1974), 59 Ill. 2d 328, 320 N.E.2d 321; People v. Tylkowski (1988) , 171 Ill. App. 3d 93, 524 N.E.2d 1122; People v. Bouchard (1989), 180 Ill. App. 3d 26, 535 N.E.2d 1001; People v. Moore (1986), 147 Ill. App. 3d 881, 498 N.E.2d 701; People v. Jones (1982), 109 Ill. App. 3d 120, 440 N.E.2d 261; People v. Ureste (1972), 7 Ill. App. 3d 545, 288 N.E.2d 45.

Moreover, Dr. Reifman testified that the hallucinations were subjective and not verifiable by either defendant’s previous or subsequent conduct or history, and thus hearing voices was inconclusive as far as forming a basis for an opinion that he was insane. (See People v. Ureste (1972), 7 Ill. App. 3d 545, 288 N.E.2d 45; People v. Jackson (1976), 42 Ill. App. 3d 919, 356 N.E.2d 979.) Dr. Reifman stated that when defendant was reporting hearing voices to his sister, it was “hard to know at this time whether he was actually hearing voices or they were his own thoughts or he was discussing his urges.”

Dr. Reifman also explained that “ordinarily when you hear voices that are of psychotic concern you hear them from outside your head, not within your head.” Dr. Reifman pointed out that he had “never seen a case in which hallucinations came from [inside] the head that appeared to be valid.” In addition, defendant did not mention hearing voices to the police. The confession contains no mention of voices, hallucinations or blackouts.

The jury could also have rejected Dr. Gaspero’s diagnosis of psychosexual disorder paraphelia and sexual sadism. The paraphelia was a “very rare condition indeed,” because defendant acted both sadistic and homicidal. For that to occur, it was necessary that there be an alcohol-induced blackout. As proof that defendant actually suffered blackouts, Dr. Gaspero pointed to neurological damage and a history of blacking out two or three times previously. He did not write down this “history” in his report. He found neurological damage despite the fact that no other examining professional found such damage. He did not order neurological tests; nor was he aware that the EEG showed no neurological damage.

Dr. Gaspero’s intentional disregard of the records, and his statement that they were not important to his final opinion, also undermines his credibility. He refused to read other reports because they might bias his view. Incredibly, he would not even read social histories to find facts, e.g., determining defendant’s drinking problems, which were the basis of his expert opinion on insanity and his diagnosis of defendant. See People v. Jackson (1976), 42 Ill. App. 3d 919, 356 N.E.2d 979. Cf. People v. Tylkowski (1988), 171 Ill. App. 3d 93, 524 N.E.2d 1112 (jury could accept expert’s explanation for disregarding references to defendant’s hallucinations in hospital records; goes to weight of his testimony).

The defense experts focused heavily on defendant’s use of alcohol. The jury need not have believed that defendant’s use of alcohol caused him to commit the crimes. See People v. Deizman (1976), 44 Ill. App. 3d 829, 358 N.E.2d 1208; see also People v. Christiansen (1987), 116 Ill. 2d 96, 506 N.E.2d 1253; People v. Wiley (1989), 185 Ill. App. 3d 1097, 541 N.E.2d 1345.

In regard to the blackouts, Dr. Reifman testified that in his experience total amnesia is “extremely rare and unlikely.” If there were amnesia, it would usually be sketchy or partial. “But total amnesia for the incident in view of his behavior at the time of the crime, in view of the [confession] he made is inconsistent.”

Defendant maintains that Dr. Reifman’s interview was too brief, and too distant from the time of the crimes, to deserve any weight. This argument goes to the weight of the testimony, which is a decision for the trier of fact. See People v. Hickman (1986), 143 Ill. App. 3d 195, 492 N.E.2d 1041.

In view of the numerous conflicts in the experts’ opinions, the jury was entitled to reject the defense experts in favor of the State’s expert. Moreover, the testimony of the State’s lay witnesses tended to support Dr. Reifman’s conclusions.

The jury may reject all expert testimony and conclude defendant was sane based solely on lay testimony. (People v. Bouchard (1989), 180 Ill. App. 3d 26, 535 N.E.2d 1001; People v. Marshall (1983), 114 Ill. App. 3d 217, 448 N.E.2d 969; People v. Deizman (1976), 44 Ill. App. 3d 829, 358 N.E.2d 1208.) Lay observations are especially relevant on the'issue of defendant’s sanity at the time of the offense if they are based on observations made shortly before or after the crime was committed. People v. Gindorf (1987), 159 Ill. App. 3d 647, 512 N.E.2d 770; People v. Bouchard (1989), 180 Ill. App. 3d 26, 535 N.E.2d 1001; People v. Jones (1982), 109 Ill. App. 3d 120, 440 N.E.2d 261; People v. Deizman (1976), 44 Ill. App. 3d 829, 358 N.E.2d 1208.

The existence of a plan for a crime, and methods to prevent detection, are relevant factors in determining a defendant’s sanity. (People v. Skorka (1986), 147 Ill. App. 3d 976, 498 N.E.2d 607; People v. Bouchard (1989), 180 Ill. App. 3d 26, 535 N.E.2d 1001.) In the present case, defendant tried to prevent detection. For example, in his confession, defendant stated that after murdering Smith, he went home, washed, and got rid of his bloody clothes. See People v. Tylkowski (1988), 171 Ill. App. 3d 93, 524 N.E.2d 1112; People v. Bouchard (1989), 180 Ill. App. 3d 26, 535 N.E.2d 1001.

In addition, defendant became angry with his sister when he discovered she had telephoned the police. He made her promise not to call again. He also managed to evade the police when they came to the tavern in response to Judy’s call. Defendant convinced the bartender, a friend, to tell the police he was not in the tavern. Defendant also reported that he registered in a motel under an assumed name. See People v. Deizman (1976), 44 Ill. App. 3d 829, 358 N.E.2d 1208.

Defendant also went to the bank and obtained a $2,000 cash advance on a credit card. (See People v. Deizman (1976), 44 Ill. App. 3d 829, 358 N.E.2d 1208.) Defendant stated that he needed the money because he would be on the road, trying to evade the police.

Defendant was functioning well enough to make numerous telephone calls just before and after the crimes. (See People v. Wiley (1989), 185 Ill. App. 3d 1097, 541 N.E.2d 1345.) He telephoned his sister repeatedly, and even drove to her house to report the first murder. Defendant stated that he did not inform Judy of his location specifically because he was trying to avoid the police. Moreover, defendant expressed concern that his sister’s telephone was tapped. (See People v. Deizman (1976), 44 Ill. App. 3d 829, 358 N.E.2d 1208.) Defendant’s statements to his sister and to the police, describing the killings and sexual assaults, also supported a finding that he was sane at the time of the offenses. See People v. Jackson (1976), 42 Ill. App. 3d 919, 356 N.E.2d 979.

In addition, Judy testified that there was nothing unusual about defendant’s speech or appearance on the day of the murders. (See People v. Bouchard (1989), 180 Ill. App. 3d 26, 535 N.E.2d 1001; People v. Tylkowski (1988), 171 Ill. App. 3d 93, 524 N.E.2d 1112; People v. Jones (1982), 109 Ill. App. 3d 120, 440 N.E.2d 261; People v. Ureste (1972), 7 Ill. App. 3d 545, 288 N.E.2d 45.) The bartender, Rios, testified that defendant had only SVz beers that morning. Judy repeatedly stated that defendant did not seem intoxicated, although she believed he had been drinking a little. When he came to her home on July 12, she smelled no alcohol. Moore, a police officer, saw defendant just after the first murder, and he did not describe defendant as appearing to be intoxicated. Moore stood close enough to defendant to shake his hand and observed him for several minutes. When defendant was arrested, he seemed coherent to the police. See People v. Redmond (1974), 59 Ill. 2d 328, 320 N.E.2d 321; People v. Tylkowski (1988), 171 Ill. App. 3d 93, 524 N.E.2d 1112; People v. Deizman (1976), 44 Ill. App. 3d 829, 358 N.E.2d 1208; People v. Ureste (1972), 7 Ill. App. 3d 545, 288 N.E.2d 45.

Moreover, the absence of either prior mental treatment or prior irrational conduct of this type is of importance in determining the sanity of accused at the time of the offense. (People v. Harrington (1974), 22 Ill. App. 3d 938, 317 N.E.2d 161.) In the present case, there was no history of prior mental treatment or similar types of irrational conduct, or hearing voices. Rios testified she had known defendant for two years. He had never complained of blackouts or mental problems. Defendant reported that he had suffered only one blackout prior to July 12, and that blackout occurred 18 years earlier. Dr. Conroe stated there was no evidence of delusional thinking in the past.

The fact that several witnesses testified that at some point on July 12, defendant appeared upset, or anxious, or made threats they had never heard him make before, does not require the jury to ignore the other witnesses’ testimony on the issue. See, e.g., People v. Tylkowski (1988), 171 Ill. App. 3d 93, 524 N.E.2d 1112; People v. Jones (1982), 109 Ill. App. 3d 120, 440 N.E.2d 261.

We hold that defendant failed to carry his burden of proving his insanity by a preponderance of the evidence.

Defendant next contends that the jury was improperly influenced by the court’s statements adversely reflecting on defense counsel and on defense witness Dr. Gaspero.

A court’s comments should not have an effect on jurors, and the jury should not be swayed by judicial opinion either directly or indirectly. (People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.) A trial court may, however, properly attempt to fulfill its responsibility for achieving prompt and convenient dispatch of its business. (People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.) In addition, the court must see that the proceedings are conducted in an orderly manner with proper decorum, and the control of the conduct of the trial rests within its discretion. People v. Long (1968), 39 Ill. 2d 40, 233 N.E.2d 389. See also People v. Banks (1974), 17 Ill. App. 3d 746, 308 N.E.2d 261.

For example, defendant complains that the court admonished the defense expert by saying, “Doctor, would you do me a favor? Answer the question yes or no, don’t ramble.” And: “The witness has a tendency to ramble. These are yes or no questions and a date is a date.”

The remarks complained of, when taken in context, were made within the court’s discretion and were not attempts to discredit the witness or the defense in general. We hold that the remarks did not substantially prejudice defendant or deny him a fair trial. (See, e.g., People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183; People v. Long (1968), 39 Ill. 2d 40, 233 N.E.2d 389; People v. Mahaffey (1978), 60 Ill. App. 3d 496, 377 N.E.2d 85.) We note also that the trial court admonished the prosecutor several times regarding Dr. Reifman’s responses to questions.

Defendant next contends that reversal is required because the jury instruction explaining the verdict of “guilty but mentally ill” misstated the law because it said the State’s burden was to show defendant was not insane by a preponderance of the evidence, when the actual .burden is beyond a reasonable doubt. The State concedes that the instruction was improper under People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972.

The State argues, however, that the issue was waived. The Fierer court refused to find waiver because certain basic instructions, such as those stating the burden of proof, must be given and the concept of waiver will not be employed in the absence of such instructions. (Fierer, 124 Ill. 2d at 187, 529 N.E.2d at 976.) On that basis, we also must reject the waiver argument.

We hold, however, that the error was harmless beyond a reasonable doubt. The court in Fierer rejected an argument that the error was harmless, because the improper instruction might have affected the outcome. (Fierer, 124 Ill. 2d at 187-88, 529 N.E.2d at 976.) The present case, however, differs from Fierer.

In Fierer, the jury found defendant guilty but mentally ill. The supreme court was not willing to speculate whether the result of the case could have differed if the jury had been properly instructed, and thus the error was not harmless. In contrast, in the present case, the jury found defendant guilty. It rejected the verdict of guilty but mentally ill.

The prerequisite to a finding of insanity, under any standard, is that defendant suffered from a mental illness. By rejecting the verdict of guilty but mentally ill, the jury emphatically found no mental illness. Therefore, this court need not speculate as to whether the jury believed defendant was not mentally ill. We conclude that the error in the guilty but mentally ill instruction was harmless beyond a reasonable doubt. Because the jury rejected the guilty but mentally ill verdict, the error could not have affected the result of the trial.

In People v. Cooney (1985), 136 Ill. App. 3d 989, 484 N.E.2d 802, the jury was instructed on the special verdict of guilty but mentally ill when there was no evidence of mental impairment, and the jury returned a verdict of guilty. We found no error:

“[Defendant] has not explained how, under these circumstances, erroneously instructing the jury on the special verdict of ‘guilty but mentally ill’ could be anything but harmless.” (Cooney, 136 Ill. App. 3d at 1009, 484 N.E.2d at 815.)

The same language applies to the case before us.

Defendant finally argues that he was denied a fair trial where the court excused for cause all potential jurors opposed to the death penalty, and thus “he was tried before a jury organized to convict him because of its opposition to the insanity defense.” The courts in Illinois have rejected this argument, and we find no reason to change that precedent. See People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174; People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046; People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

Defendant cites “The Death-Qualified Jury and the Defense of Insanity,” 8 Law & Human Behavior 81, 83 (June 1984), where the authors concluded that the removal of potential jurors who are against the death penalty causes the jury to be less likely to accept insanity as a valid defense because “people with a strong crime control ideology would be more likely to vote for conviction in a case involving the insanity defense than people with a strong due process ideology.” The United States Supreme Court, however, has rejected an argument based on that same article. (Lockhart v. McCree (1986), 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758. See also People v. Silagy (1984), 101 Ill. 2d 147, 461 N.E.2d 415.) We hold that no error occurred here.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FAUSTO VILLAREAL et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1-88-1699, 1-88-1700 cons.
    Opinion filed June 29, 1990.

      John M. Kalnins, of Chicago, for appellant Fausto Villareal.
    Kenneth N. Flaxman, of Chicago, for appellant Jesus Contra.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Elizabeth A. Sklarsky, and Michael J. Drake, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendants, Fausto Villareal and Jesus Contra, were each convicted by a jury of the offense of aggravated battery of a police officer, and subsequently were sentenced to 30 months’ probation. Villa-real and Contra are brothers. In their consolidated appeal, defendants urge this court to reverse their convictions for the following reasons: The State failed to prove them guilty beyond a reasonable doubt; the trial court erred in denying defendants’ motion for a new trial based on newly discovered evidence; the trial court erred in the giving and refusal of certain instructions to the jury; the trial court improperly failed to declare a mistrial when the jury was unable to reach a verdict after its second day of deliberations; and the trial court erred in denying defendants’ motion for a new trial based on the State’s alleged abuse of subpoena.

The incident leading to defendants’ arrests began with a telephone call to the police by a neighbor, Vanessa Orr, who had heard some gunshots fired next door. It culminated in defendants’ brother, Jose Villareal, being shot and killed by the police.

Officer Israel Pacheco testified that he and his partner, Joseph O’Connor, responded to the call to go to 1735 North Menard on September 27, 1986, at about 11:40 p.m. The officers approached in an unmarked vehicle but had its oscillating flashing headlights in operation. Pacheco was wearing a blue Bears tee shirt, jeans and gym shoes. His tee shirt was tucked into his jeans. O’Connor was wearing a short-sleeve shirt, tucked in, jeans and gym shoes. Each officer had a belt which held ammunition pouches, revolvers, handcuffs, a radio holder, and a police badge. Pacheco was holding his flashlight and his radio.

As Pacheco began speaking with Orr, the person who had reported hearing gunshots, they both saw a man, later identified as the deceased, come to the window at 1733 North Menard. When Pacheco flashed his light, the man jumped back from the window.

Pacheco then heard two gunshots. Shoving Orr back into her apartment, Pacheco proceeded to 1733 Menard. After Pacheco identified himself as a police officer, he and O’Connor apprehended two men standing in the vestibule. At this point, a door opened and Pacheco saw several women in an apartment. The deceased came to the doorway and reached into his pocket. Pacheco again announced his office and pushed the deceased back into the apartment. When the deceased came at him again, Pacheco pinned him against the wall. The deceased pushed away from him and went into the dining room.

Pacheco saw the deceased grab a woman, put her in front of him, and pull out a gun. Pacheco again identified himself and ordered the deceased to drop the gun. At that time, Pacheco felt someone punch him from the right side. The deceased was holding the gun with both hands, and Pacheco saw his finger jerk. Pacheco fired his service revolver at the deceased. When Pacheco saw the deceased’s finger jerk again, Pacheco fired his gun a second time.

Pacheco stated that he began falling and felt someone on his back, kicking him. An individual was standing over him, and Pacheco fired twice in that direction. While defendants attacked him, Pacheco heard more gunshots, apparently fired by O’Connor. One of the two men tried to grab his gun, and Pacheco reached out to get the gun back. As he did so, he was being kicked and punched. Pacheco testified that during the struggle for the service revolver, he was able to save his life by holding the cylinder of the gun, causing it to misfire. (We will refer to Pacheco’s testimony regarding the misfiring in more depth during our analysis.)

Officer O’Connor, who had entered the building with Pacheco, heard the scuffle and gunshots, and he and Officer McNicholas attempted to locate Pacheco. Both officers heard someone shouting “Police.” O’Connor looked into a door leading into a dining room and observed Pacheco struggling with someone. Someone in the apartment saw O’Connor and slammed the door into him. McNicholas also was able to see into the dining room and observed Pacheco with two male Hispanics on top of him. It appeared that Pacheco was wrestling with the men.

O’Connor gained access to the dining room. He observed Pacheco on his back, with both defendants punching him. O’Connor observed the deceased in the middle of the room standing in a combat-style stance with both hands on a gun, pointing it at Pacheco. O’Connor raised his gun and fired eight shots at the deceased. O’Connor stopped firing when the deceased dropped the gun and fell to a chair.

O’Connor then pulled one of the men off Pacheco. Villareal jumped up and Pacheco followed suit. Villareal came at Pacheco, and Pacheco hit him with the gun. Pacheco handcuffed Contra, and O’Connor and McNicholas handcuffed Villareal. McNicholas looked for other occupants of the apartment and observed 15 or 20 men running towards the dining room. Two or three of them reached into the inside of their coats. He announced several times that he was a police officer. The men halted and exited out the back doorway. None of these men was arrested.

Pacheco testified that the next day, he was able to see the extent of his injuries. He had bruises all over his body. His neck was scratched up, and he had black and blue marks all over his shoulders and face. He also had a cut on his face. Pacheco stated that the injuries which he received occurred after he fired at the deceased.

Villareal testified for the defense that he was in the room when Pacheco entered. A birthday party was in progress. He stated that Pacheco did not identify himself as a police officer. Villareal did not think that Pacheco was a police officer because he was dressed in ordinary clothes. Villareal stated that as Pacheco entered the dining room, he met Villareal with a gun, which he placed on Villareal’s chest. Pacheco told him to raise his hands and threatened to shoot him if he did not do so. Villareal complied with the man’s demand. At that time, there were several people in the room, including Villareal’s brothers, the deceased and Contra. (Villareal and Contra are brothers.) The deceased’s widow, Villareal’s wife, and some children were also present.

Villareal testified that Pacheco approached the deceased and told him to put his hands up. When the deceased asked Pacheco to identify himself, Pacheco swore and told him to shut up. The deceased swore back, and Pacheco shot the deceased twice. Villareal did not see anyone touch Pacheco before he shot the deceased.

After Pacheco shot the deceased, Villareal grabbed Pacheco’s gun to protect himself. As Villareal did so, someone hit him from behind and he fell down. Villareal yelled at him, and Pacheco shot at Villa-real, missing him. He heard more shots being fired. Villareal stated that he never touched Pacheco, but only grabbed his gun. Villareal also stated that he and Contra were beaten up prior to being taken to the police station.

Quintia Villareal, the deceased’s wife, corroborated Villareal’s testimony. She added that when she saw her husband fall, she attempted to go to him but was restrained by Pacheco. When Pacheco restrained her, she scratched him in the face. Quintia acknowledged that she had a lawsuit related to this incident pending against the City of Chicago and the Chicago police department.

Emelda Villareal, the deceased’s 12-year-old daughter, testified to the same series of events to which her mother had testified. She added that after her father was shot, her mother sent her to one of the bedrooms.

Julien Gallet, the deputy chief of detectives, testified for the defense and stated that when questioned, Pacheco never said anything about how his gun had been turned on him and clicked and misfired.

Officer Hector Valdes testified for the State both during its case in chief and in rebuttal that he interviewed several of the people involved. Quintia told him that one of the men who entered the apartment asked her if her husband had a gun. As she stated that he did not, one of her brothers-in-law jumped on the man. The man shot at her husband, and she was pushed to the ground. Emelda told Valdes that when the men entered the apartment, her mother instructed her to go into the bedroom. One of her aunts closed the door to the bedroom. A few minutes later, she heard shots. She stated that she did not see any of the shots being fired.

In an interview with Villareal, Valdes was told that Villareal drank a large amount of beer at the party. Villareal also told Valdes that he knew the individual who came into the apartment that evening was a police officer. Villareal said he knew this immediately upon the man’s arrival.

After hearing evidence and arguments, the jury was instructed as to the law. Following three days of deliberations, the jury returned its verdict of guilty as to both defendants. The trial court denied defendants’ motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

On appeal, we initially address defendants’ challenge of the trial court’s ruling on their post-trial motions. In the motions, defendants sought a new trial based on newly discovered evidence concerning Pacheco’s revolver.

At trial, Pacheco testified that the “dimple” mark on his revolver had been made during the struggle for the revolver. Pacheco stated that during the struggle, one of the defendants attempted to fire the revolver at him, but that he was able to save his life by holding the cylinder of the gun, causing it to misfire. He stated that he saw the hammer go back and hit and strike the cylinder. Pacheco was able to hold the cylinder to prevent the hammer from striking and discharging the bullet. Pacheco’s revolver had been returned to him after this incident and he was permitted, over defense objection, to show the jury a “dimple” mark on the gun cylinder. Pacheco asserted that the mark had been made during the struggle. He also stated that he noticed the mark when the gun was returned to him. The revolver was received in evidence, and when, in the second day of deliberations, the jury asked to see the revolver, it was sent back to the jury. (No report or statement by Pacheco or any of the officers mentioned this misfiring incident prior to Pacheco’s testimony.)

In their post-trial motions, defendants stated that they learned after trial that the mark on the cylinder of Pacheco’s weapon was made during manufacture of the gun and could not have been made during a struggle. Defendants stated that scientific evidence demonstrated that Pacheco had testified falsely and that they were entitled to a new trial. In their motions for a new trial, defendants attached the affidavit of Burt C. Nielson, a firearms consultant and former assistant chief firearms examiner of the Chicago police crime laboratory, who stated that he examined the revolver and immediately knew that the mark was part of the manufacturing process. Nielson’s affidavit stated in part:

“10. I inspected the rear face of the cylinder and found a factory applied dimple on the opposite edge of the rim from the ‘S’ mark. The ‘S’ mark between the chambers on the rim of the cylinder is a factory proof mark showing that the cylinder had been tested with hot loads. The dimple indicates that the cylinder had been magnafluxed (subjected to magnetic particle inspection) at the factory. I observed another magnaflux dimple approximately one-quarter of an inch forward of the frame on the left side of the barrel in the ejector rod shroud.
* * *
12. The construction of the .357 Luger double action revolver makes it impossible for the firing pin to strike the cylinder other than the primer of a center fired cartridge. This is because of a part of the firearm known as the ‘transfer’ bar which transfers energy from the hammer to the firing pin. Because of the way in which the firearm is constructed, the transfer bar will not be in a position between the hammer and the firing pin unless the cylinder had been rotated and locked into position, with a cartridge directly under the firing pin.”

Nielson concluded that it was not possible for the firing pin to have struck any part of the rear of the cylinder in the type of gun used by Pacheco.

The trial court denied defendants’ motions for a new trial and placed both men on probation.

To warrant a new trial, the new evidence must be of such a conclusive character that it likely will change the result on retrial. Moreover, the evidence must be material to the issue but not merely cumulative, and it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. (People v. Molstad (1984), 101 Ill. 2d 128, 461 N.E.2d 398; People v. Baker (1959), 16 Ill. 2d 364, 158 N.E.2d 1.) A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial court and denial thereof will not be disturbed in the absence of a showing of an abuse of discretion. (People v. Baker, 16 Ill. 2d 364, 158 N.E.2d 1.) We find that here, the trial court abused its discretion. Each part of the test has been satisfied and a new trial is required.

First, the new evidence here is of such a conclusive character that it likely will change the result on retrial. It was Pacheco’s testimony that he followed the deceased into the dining room; that deceased drew a gun and pointed it at him; that somebody slapped and punched him; that he drew his revolver and fired at the deceased; and that he then was attacked and injured by defendants. Pacheco testified in detail about his struggle with defendants. He narrated with specificity how he observed the gun hammer go back and hit and strike the cylinder, and how he was able to hold the cylinder to prevent the hammer from striking and discharging the bullet. Pacheco claimed that this action saved his life. The new evidence would tend to establish that Pacheco’s recitation of this series of events was false. Thus, the new evidence could operate to cast doubt on Pacheco’s testimony as a whole.

At the time the struggle began, no officer except Pacheco was in the dining room. Thus, the State’s case regarding that struggle depended in large part upon Pacheco’s testimony. In view of the fact that the new evidence could establish that at least a portion of that testimony was false, we believe that outcome of the trial likely would change on retrial.

Moreover, we find that the evidence is material to the issue at trial, and not merely cumulative. As noted above, the crucial issue at trial was whether defendants attacked Pacheco and attempted not only to wrestle the gun away from him, but to shoot him. According to Pacheco the only reason he was not shot was that due to his efforts the gun misfired. Evidence that the gun could not have misfired certainly is material to a resolution of this issue. Significantly, we note that the jury was given the opportunity to examine the gun during the course of the trial. The jury also requested to see the gun during deliberations. We conclude, therefore, that the jury found the gun testimony important to resolution of the case.

Finally, the evidence was discovered after trial and could not have been discovered prior to trial by the exercise of due diligence. Defendants had no prior knowledge that Pacheco would testify he was able to save his life by holding the cylinder of the gun, causing it to misfire, as demonstrated by the dimple mark on the cylinder. Defendants were not on notice that the gun would be used at trial in such a way and, therefore, could not be expected to seek to examine the gun prior to trial.

We conclude that the trial court abused its discretion in denying defendants’ motion for a new trial. We therefore reverse defendants’ convictions and remand for a new trial.

Because we reverse the convictions for trial error, we must decide whether the evidence at the first trial was sufficient to sustain the conviction. (People v. Brooks (1987), 115 Ill. 2d 510, 505 N.E.2d 336; People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366; People v. Avery (1989), 180 Ill. App. 3d 146, 534 N.E.2d 1296.) Double jeopardy is not a bar where, as here, reversal is the result of trial error. Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141; People v. Stofer (1989), 180 Ill. App. 3d 158, 534 N.E.2d 1287.

A reversal based on certain trial errors implies nothing with respect to a defendant’s guilt, but merely determines that he was convicted through a judicial process which is defective in some fundamental respect. (Lockhart v. Nelson (1988), 488 U.S. 33, 102 L. Ed. 2d 265, 109 S. Ct. 285; People v. Taylor, 76 Ill. 2d 289, 391 N.E.2d 366; People v. Avery, 180 Ill. App. 3d 146, 534 N.E.2d 1296.) All evidence submitted at the original trial may be considered in determining the sufficiency question for double jeopardy purposes. Lockhart v. Nelson, 488 U.S. 33, 102 L. Ed. 2d 265, 109 S. Ct. 285; People v. Stofer, 180 Ill. App. 3d 158, 534 N.E.2d 1287.

In view of all of the competent evidence presented at trial, we find there is sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that defendants were guilty of aggravated battery. There was evidence that defendants caused bodily harm to Pacheco and that defendants knew Pacheco was a police officer. Both O’Connor and McNicholas testified that they announced their office upon entry into the apartment. Moreover, O’Connor testified that he heard Pacheco announce his office as he proceeded through the apartment. Additionally, Orr testified that Pacheco had a flashlight, a badge, a walkie-talkie, and a gun, all indicia of his office. There was also evidence from Valdes that Villareal told him he knew the men who entered the apartment were police officers. We believe the evidence is sufficient to permit a jury to find defendants guilty beyond a reasonable doubt.

In light of our holdings, we need not decide the issue of the State’s alleged abuse of subpoena or the issue of the trial court’s alleged error in denying defendants’ motion for a mistrial after the jury failed to return a verdict after two days of deliberation. We also hold that the trial court properly instructed the jury.

For the foregoing reasons, the judgments of the circuit court of Cook County are reversed, and the matters are remanded for a new trial.

Judgments reversed and remanded.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    JOHN CLAXTON, Plaintiff-Appellee, v. RICHARD D. THACKSTON, SR., d/b/a A Storage Inn, Defendant and Third-Party Plaintiff (Mayer Manufacturing Corporation, Third-Party Defendant-Appellant).
    First District (6th Division)
    No. 1-89-1213
    Opinion filed June 29, 1990.
    David J. Fitzpatrick, of Matyas & Norris, of Chicago, for appellant.

      Edward L. Osowski, of Chicago (James G. Andros, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

In this appeal, we are asked to decide whether an eyewitness statement given by an employee of defendant Mayer Manufacturing Corp. (Mayer) is an attorney-client communication and, therefore, privileged from disclosure under Supreme Court Rule 201(b)(2) (107 Ill. 2d R. 201(b)(2)). The circuit court ordered production; defendant refused and was held in contempt. The court then entered judgment on the contempt finding in the amount of $1 against Mayer’s attorney. We therefore have jurisdiction pursuant to People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 174, 429 N.E.2d 483.

The issues on appeal are: (1) whether proponent Mayer met its burden of articulating those threshold facts which are necessary to qualify the statement as an attorney-client communication; and (2) whether an otherwise privileged attorney-client communication loses its status because it is an eyewitness report. We affirm on other ground.

The uncontested facts are these. On January 11, 1984, the plaintiff John Claxton was injured while moving equipment for his employer Mayer Manufacturing at the facility of defendant Richard D. Thackston, Sr., d/b/a A Storage Inn (Thackston), in Homewood, Illinois. Cameron MacGregor, plaintiff’s supervisor, was present when the accident occurred and afterwards helped Claxton into the truck for a ride back to the Mayer plant.

Subsequently, Claxton sued Thackston for damages. Thackston brought a third-party complaint against Mayer for contribution. Claxton then noticed the deposition of MacGregor and requested production of a written statement made by MacGregor to an insurance carrier on September 4 or 6, 1984 (the record is unclear). Defendant refused to produce the statement, claiming attorney-client privilege because MacGregor was a member of the control group for the Mayer Corporation.

Plaintiff moved the court for a production order, and at a hearing on March 22, 1989, the court ordered Mayer to produce MacGregor’s written statement for in camera inspection within seven days. The statement was not produced.

Instead, Mayer filed an affidavit by Cameron MacGregor wherein MacGregor stated that he was a member of the board of directors of Mayer at the time of the accident. Moreover, at the time of the accident, “affiant had sole authority over all manufacturing aspects of Mayer Manufacturing Corporation and all attendant supervisory authority over all production employees.” MacGregor stated further that his responsibilities also included the investigation of “all production related accidents, such as that involved in the subject occurrence, and reporting the details of the same to his corporation’s liability carrier.”

According to the affidavit, on September 6, 1984, MacGregor prepared a “two-page confidential letter to [Mayer’s] liability insurance carrier, respecting affiant’s knowledge of the January 11, 1984 accident of its then employee, the plaintiff, John Claxton.” MacGregor stated that: “It was affiant’s understanding that this letter was offered to assist and safeguard his corporation, Mayer Manufacturing, from any potential liability, and it was further affiant’s understanding that this letter would be offered in confidence for this purpose, and that it would not be circulated for any other use.”

The rule governing protection of attorney-client communications and attorney work product from discovery is Rule 201(b)(2) of the supreme court rules (107 Ill. 2d R. 201(b)(2)), which provides that: “All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.”

The party who claims a privilege “ ‘has the burden of showing the facts which give rise to the privilege.’ ” (Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416, 419-20, 337 N.E.2d 15, quoting Krupp v. Chicago Transit Authority (1956), 8 Ill. 2d 37, 42, 132 N.E.2d 532.) Among other things, the party must prove that the statement was made for a privileged purpose (Cox, 61 Ill. 2d at 420) and show the circumstances under which the statement was made (Krupp, 8 Ill. 2d at 42, 132 N.E.2d 532).

The burden of proof reflects the policy behind attorney-client privilege. Not all communications between attorney and client are privileged. The privilege exists so that a present or potential client may “consult freely with counsel without fear of compelled disclosure.” (People v. Adam (1972), 51 Ill. 2d 46, 48, 280 N.E.2d 205, cited in Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 118, 432 N.E.2d 250.) Under some circumstances, the privilege can pose an absolute bar to the discovery of relevant material and contravene the broad discovery which is essential for the fair disposition of a lawsuit. (Consolidation Coal, 89 Ill. 2d at 118.) For this reason, courts limit the protection of the privilege, especially in a corporate context where broad privilege would effectively make most relevant material immune from discovery. Consolidation Coal, 89 Ill. 2d at 117-19.

To be entitled to the privilege, a claimant must show that the statement: (1) originated in a confidence that it would not be disclosed; (2) was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) remained confidential. (Consolidation Coal, 89 Ill. 2d at 119.) Beyond this, a corporate claimant must show that the statement was made by someone in the corporate “control group,” that is, someone who was:

“(1) *** in an advisory role to top management, such that the top management would normally not make a decision in the employee’s particular area of expertise without the employee’s advice or opinion; and (2) [whose] opinion [did] in fact form the basis of the final decision by those with actual authority.” Archer Daniels Midland Co. v. Koppers Co. (1985), 138 Ill. App. 3d 276, 279, 485 N.E.2d 1301, citing Consolidation Coal, 89 Ill. 2d at 120.

The control-group test provides a balance between privilege and discovery. (Consolidation Coal, 89 Ill. 2d at 118-19.) The focus of the court for finding privilege is “on individual people who substantially influenced decisions, not on facts that substantially influenced decisions.” (Archer Daniels, 138 Ill. App. 3d at 280.) In Consolidation Coal and Archer Daniels, for example, the court found that employees who provided the technical information about accidents and safety features to opinion makers were not themselves in the control group and, therefore, their communications were not privileged. In Knief v. Sotos (1989), 181 Ill. App. 3d 959, 964-65, 537 N.E.2d 832, the appellate court found that a head manager and head waitress, who had information about the drinking of a customer, were not in the control group. To argue that the statements of these two people should be protected, the proponents would have to prove “that no final decision as to this litigation would be made without first consulting the head manager and head waitress.” Knief, 181 Ill. App. 3d at 965.

Under Illinois law, attorney-client privilege also extends to “communications between an insured and insurer, where the insurer is under an obligation to defend.” (Braglia v. Cephus (1986), 146 Ill. App. 3d 241, 249, 496 N.E.2d 1171, citing People v. Ryan (1964), 30 Ill. 2d 456, 460, 197 N.E.2d 15.) This rule reflects the fact that the liability carrier usually selects the attorney under a common liability contract. Thus, “the insured may properly assume that the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured.” Ryan, 30 Ill. 2d at 460-61.

When a proponent cannot prove that a statement should be protected, submitting it for in camera inspection is a reasonable procedure for finding if a basis for privilege exists. Johnson v. Frontier Ford, Inc. (1979), 68 Ill. App. 3d 315, 321, 386 N.E.2d 112; see also 107 Ill. 2d R. 415(f).

Once privilege attaches to a communication, it is immaterial whether the client is or is not a party to a specific action. (Johnson, 68 Ill. App. 3d at 319.) While both the client who made the communication and the attorney to whom it was given can invoke the privilege, only the client can waive it. (People v. Jacobson (1983), 119 Ill. App. 3d 103, 105, 456 N.E.2d 218.) The same principle applies to privileged statements made to insurance carriers. Only the client can waive the privilege. Chavez v. Watts (1987), 161 Ill. App. 3d 664, 672, 515 N.E.2d 146.

I

Mayer asserts that Cameron MacGregor was a member of the Mayer control group. As a basis for this claim, Mayer points to MacGregor’s affidavit in which he stated he was a director in 1984 and had sole authority over manufacturing at Mayer and responsibility for the investigation of all production-related accidents at the time of the accident. Mayer argues further that MacGregor’s statement, made to the insurance company, comes under the protection explicated in Ryan.

Claxton contends, however, that Mayer has not proved a right to protection under Ryan (30 Ill. 2d at 460), wherein the court specified that the insurer must be “under an obligation to defend.” Claxton notes that the record does not disclose policy coverage, the name of Mayer’s carrier or any other details of the insurance contract.

The trial court did not decide whether Mayer presented sufficient facts to claim a privilege but, instead, based its holding on other criteria.

The record presented to us on appeal does not show that Mayer met its burden. MacGregor’s affidavit does not state facts to show whether he was a member of the Mayer control group. It does not specify if he had an advisory role in top management, whether a decision in this area would normally not be made without his advice, or whether his opinion would in fact form the basis for any decision by others with authority in the company. (Consolidation Coal, 89 Ill. 2d at 120.) Although the affidavit states MacGregor was a corporate director, Mayer does not cite authority for the proposition that directors are ipso facto members of the control group. Nor did Mayer present any evidence about the actual decision making power of the only non-family director in the Mayer family firm.

Furthermore, Mayer did not provide information about the insurance carrier and its duty to defend Mayer against suits arising out of the accident. The affidavit does not say who the insurance carrier was, attach a copy of the policy, specify policy coverage, or state whether or not the carrier had a duty to defend for this occurrence.

Finally, because the statement was not produced for in camera inspection, we are unable to determine if it was a communication for the purpose of securing legal advice.

For these reasons, we hold that Mayer has not articulated the threshold facts necessary to qualify MacGregor’s statement as an attorney-client communication.

II

Additionally, Mayer contends that an otherwise privileged statement prepared by Cameron MacGregor for Mayer’s insurance carrier would not lose its status because MacGregor was an eyewitness to the accident. Although not necessary to our disposition of this case, we will consider this issue on appeal because it was the basis of the trial court’s ruling.

The trial court ruled that factual accounts by witnesses to an event could not be protected. Such statements would be analogous to those made by the head waitress and head manager in Knief and, therefore, not privileged. The Knief case, however, was not decided because the two employees had witnessed an event. Rather, the court ruled against the proponent of privilege on the grounds that the employees were not people whose opinions had to be consulted before the corporation made final decisions about litigation. Knief, 181 Ill. App. 3d at 965.

None of the parties cite cases to the effect that a member of the corporate control group must disclose otherwise privileged statements simply because he or she actually witnessed the events involved. Archer Daniels (138 Ill. App. 3d at 280) indicates the reverse, holding that courts find privilege by looking at the people who influence decisions, not at the facts used by these people.

If factual statements could be discovered regardless of who made them, then attorney-client privilege often would not protect confidences between attorneys and their clients from sole proprietorships or small closely held corporations. In these settings members of the control group often witness the events that lead to litigation. Without protection for their eyewitness accounts, these clients would be unable to engage in “full and frank consultation” and could not consult legal advisors without the “fear of compelled disclosure of information.” Consolidation Coal, 89 Ill. 2d at 118.

Furthermore, the privilege protects only the attorney-client communication itself. Opposing counsel is free to question a member of the control group about the underlying facts which were communicated. Carrillo v. Indiana Grain Division, Indiana Farm Bureau Cooperative, Inc. (1986), 149 Ill. App. 3d 135, 144, 500 N.E.2d 682, citing Upjohn Co. v. United States (1981), 449 U.S. 383, 395, 66 L. Ed. 2d 584, 595, 101 S. Ct. 677, 685.

For the reasons stated, the judgment of the trial court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


text:
      In re MARRIAGE OF NANCY M. STONE, Petitioner-Appellant, and FREDERICK W. STONE, Respondent-Appellee.
    First District (6th Division)
    No. 1-89-0854
    Opinion filed June 29, 1990.

      David A. Thompson, of Hanover Park, for appellant.
    Stuart B. Dubin, Ltd., of Chicago (Stuart B. Dubin, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Nancy M. Stone, sought a court order permitting her to remove her three minor children from Illinois to Colorado. Her ex-husband, respondent Frederick W. Stone, objected to the petition. The trial court denied the petition, and petitioner appeals. She contends that the court’s order is against the manifest weight of the evidence.

The parties were married on September 13, 1975. The marriage was dissolved in April 1985 in the State of Idaho. On July 27, 1988, the petition to remove the children from Illinois to Colorado was filed.

At the August 19, 1988, hearing on the petition, petitioner testified that respondent is an airline pilot. Petitioner has worked part time at various jobs, and attended college to obtain a degree in accounting. During their nine years together, respondent was in the Air Force, and the parties lived in Nevada, in England, in Idaho, returned again to England, and then returned to Idaho.

They lived in Idaho for approximately five years. For nine months after the parties’ separation, petitioner and the children remained in Idaho. Respondent visited the children in Idaho. He was out of military service and lived near Pittsburgh. When the children moved to Chicago, respondent visited for one week each month to see the children.

Heather is now 12 years old, and Jason and Alexander are 9 years old. Alexander suffers from cerebral palsy, which resulted in severe brain damage caused by severe trauma either during birth or prior to birth. He attended a severe learning disability (SLD) program in Idaho, and is now attending an SLD program in Chicago.

In August 1985, petitioner and the children moved to Chicago. Her parents and siblings assisted her in financially supporting the children. She lives with the children in an apartment building owned by her parents. Her parents, grandmother, and brother also have apartments in the building. She paid $350 per month when she could afford it. In 1985 and 1986, petitioner completed an associate’s degree at Daley College in Chicago. She worked part time on weekends demonstrating different products for a food company. She was also on a list for accounting temporary personnel. After obtaining her associate’s degree, she attempted to get full-time employment several times, but was confronted with day-care problems for the children. Her parents worked, and only her 70-year-old grandmother was at home to take care of the children after school. Petitioner did not work full time because of the children’s needs, particularly Alexander’s need for special care.

Petitioner seeks to return to Colorado, where she lived for seven years, and graduated from high school. Her fiance, William Andrejasich, previously an Illinois State trooper, has obtained employment with the Denver Police. They plan to marry in Denver. Petitioner’s parents bought an apartment building in Denver, and her mother had moved there. Petitioner’s mother works in Denver; petitioner’s father previously worked at the University of Colorado. Petitioner’s grandmother has also moved to Colorado. Petitioner and children, her parents and her grandmother would all have apartments in the building her parents purchased.

Petitioner would finish her college education in accounting at the University of Colorado and obtain her CPA certification. She would care for children to earn money while she completed her degree. Heather and Jason would attend Catholic schools. Alexander would be enrolled in the Denver public school special education program.

Petitioner testified that she wished to move to Denver “[t]o improve my kids’ and my life, and to get on with our life.” She had never planned on staying in Chicago permanently, and had always hoped she could return to Denver. She and respondent had always agreed they did not want to raise the children in Chicago or in any eastern city. Her plans to move were not intended to deprive respondent of his visitation rights.

Jessie Garcia, petitioner’s father, testified on her behalf. At the time of the hearing, he owned an apartment building in Chicago, and rented apartments to his mother-in-law, to his son, and to petitioner. Petitioner pays rent when she can afford it. He assists his daughter financially in buying food and clothing for the children. He would continue to assist petitioner financially if she were compelled to remain in Chicago. In Chicago, the children have supper with their grandparents every evening. Petitioner took some part-time work, but had to be home when Alex returned from the special education classes.

Garcia had completed his plans to move to Denver. He bought a four-unit apartment building. His wife was already in Denver, working, and living in one of the apartments. The apartment building was very nice, as was the neighborhood itself.

In Denver, Garcia planned to assist his daughter in finishing her education and obtaining her CPA. They were investigating the possibility of petitioner providing day care at home in Denver. Garcia had obtained a commitment from a professor at the university to hire petitioner to care for his three children.

Respondent testified that he was an airline pilot residing in Pittsburgh. He visits his children for one week each month in Chicago. Since June 1986, respondent has shared the rent on an apartment in Chicago with his father, and used his father’s car when in Chicago. Petitioner never discussed the move to Denver with him. He never indicated to petitioner that he objected to the children being raised in Chicago. Respondent’s sister and cousin live in Chicago and see the children every month. Other relatives also live near Chicago. He has no family in Denver.

Respondent testified it would be “extremely difficult” for him to get to Denver. It would involve “longer airline flights, possible connections, not being able to get there at all the [sic] due to the planes being full. I can only travel on a space-available basis if there is [sic] openings in the flights.” On other airlines, he flies for 50% of the regular fare. In addition, there would be financial problems “of the added expense of an apartment without me and my dad splitting the rent; and, of course, having a car that is available so that I can take the kids where they need to, the expenses are substantially more.” In order to see the children each month, he has to rearrange his schedule so he can be off the entire week. It is “relatively easy” to get to Chicago, as there are 13 round trip flights a day.

Frederick W. Stone, respondent’s father, testified on behalf of respondent. He works for the city in the department of public works. For two years, since June 1986, he had seen his grandchildren for one week each month. Respondent had asked Stone if he “would be good enough to move out of my downtown apartment *** and he asked me if I would be willing to get an apartment in the old neighborhood and share it with him on a share-cost basis.” When respondent’s flights are late, Stone picks up the children. If the children moved, he would see them once a year.

The court denied the petition for removal of the children from Illinois.

On March 1, 1989, a hearing was held on petitioner’s motion for reconsideration of that ruling. Petitioner testified that her father had not sold the Chicago apartment building or moved yet, “because of me.” She had seen a motel kitchenette near the airport in Denver which she thought respondent could use when he visited the children. He would pay $75 per week. In addition, he would pay $75 a week to rent a car.

The court denied the petition for reconsideration. It noted that “more than half” of the evidence it heard was the same evidence that was before the court at the hearing, “or was evidence that was available at that time that could have been brought before the court.” The court refused to reopen the proofs or grant a new trial.

The court found petitioner “really made no attempt to find any such employment here in Chicago.” She could go to college, and her parents could “support her financially” here. As to baby-sitting problems, there was little or no difference between the situation in Chicago and in Denver. In regard to petitioner’s assertion that she was going to remarry, and that her fiance had found work in Denver, the court noted that petitioner failed to show why he could not work in Chicago since he was only going to Denver to follow petitioner, not because his job required it. The court concluded, “I do not like to prohibit somebody from going somewhere to be with their family — but I will deny your motion.”

The court may grant leave to the custodial parent to remove the children from Illinois where such approval is in the best interests of the children. Under Illinois law, the burden of proving that the removal is in the best interests of the children is on the party seeking the removal. Ill. Rev. Stat. 1987, ch. 40, par. 609.

The mere desire of the custodial parent to move out of Illinois, without more, is insufficient to show that the move is in the children’s best interests. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041.) The determination of what is in the best interests of the children requires an evaluation of many factors and cannot be reduced to a simple bright-line test. (In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041.) The court should consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children. In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041; Gallagher v. Gallagher (1978), 60 Ill. App. 3d 26, 376 N.E.2d 279.

The court must recognize that it is in the best interests of children to have a healthy and close relationship with both parents, as well as with other family members, and thus the visitation rights, of the noncustodial parent should be carefully considered. (In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041, citing In re Marriage of Brady (1983), 115 Ill. App. 3d 521, 450 N.E.2d 985.) It is also important to determine whether a realistic and reasonable visitation schedule can be reached if the move is allowed, which will preserve and foster the child’s relationship with the noncustodial parent. (In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041; In re Custody of Anderson (1986), 145 Ill. App. 3d 746, 496 N.E.2d 345.) A trial court’s determination of what is in the best interests of the children should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. In re Marriage of Eckert, 119 Ill. 2d 316, 328, 518 N.E.2d 1041, citing Quirin v. Quirin (1977), 50 Ill. App. 3d 785, 365 N.E.2d 226; Hickey v. Hickey (1975), 31 Ill App. 3d 257, 333 N.E.2d 271.

In the present case, petitioner testified that she wished to move to complete her college education and to obtain her parents’ financial assistance. The evidence showed, however, that those same goals could be met in Chicago. Petitioner’s father testified that he would continue to assist petitioner financially if she remained in Chicago. Interestingly, petitioner never attempted to finish her college education and obtain her CPA during the last several years she lived -with her parents in Chicago. Petitioner testified she would provide day care to earn money in Denver. Yet she never attempted to earn money in this manner in Chicago during the several years prior to filing this petition, and never sought full-time work.

We conclude that the trial court could properly find that “[petitioner’s] reasons for not working or not going to school here [in Chicago are] insufficient for me to say that the quality of life here would not be sufficient for the children to live if she would make whatever efforts that were necessary for her to reasonably be allowed to become self-sufficient to support those children.”

Moreover, the evidence established that respondent was an exemplary parent who had an excellent relationship with his children. Respondent asked his father to move from downtown and share an apartment with respondent and the children one week each month. Respondent and his father moved to the new apartment; furnished it; purchased a car together; and established the apartment as a home for the children a week each month. Respondent participates extensively in the children’s school and other activities. It was more difficult for respondent to fly to Denver than to Chicago, and it would be financially difficult because he would have to pay additional rent and get a car.

Petitioner urges that respondent rent a motel kitchenette one week each month in Denver, where the children could stay with him. The trial court was not required to find such an arrangement, as compared with the Chicago home they shared with their father and grandfather, would enhance the general quality of life for the children, or otherwise be in their best interests.

In addition, most of respondent’s extended family lives in the Chicago area. (See In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041.) The children spend one week each month living with their paternal grandfather. During that time, they have frequent contact with their extended family.

We conclude that the record supports the trial court’s order denying permission to remove the children to Colorado. The evidence sufficiently supports the trial court’s decision that petitioner failed to meet her burden of proof that the removal to Colorado would be in the best interests of the children.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.