author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHIRLEY MARSHALL, Defendant-Appellant.
    Fourth District
    No. 4—82—0145
    Opinion filed April 25, 1983.

      Daniel D. Yuhas and Don L. Johnson, both of State Appellate Defender’s Office, of Springfield, and Ginevera K. Moore, law student, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Murder.

Insanity defense.

Bench trial.

Guilty but mentally ill.

Sentence: 20 years.

We affirm.

First of all, this court is apologetic for the length of this opinion. But since defendant asserts that she was insane at the time of the murder, virtually all of the prolix evidence in this cause is relevant to some measurable extent.

FACTS

On the morning of February 4, 1981, after eating breakfast, defendant drank about a pint of whiskey and two cans of beer. She was also taking medication for a cold at that time. Sometime that morning, Marvin Smith told defendant that her van — which she had left in a garage at the home of her brother, Virgil Marshall, for the purpose of being repaired — had been moved out of the garage. This information made defendant angry, because the van bore expired license plates, and she feared that if the police saw the plates they might tow the van away. In the late morning or early afternoon of that day, Smith gave defendant a ride to the home of another brother, Dexter Marshall, which was about Ufe blocks from Virgil’s home. Defendant subsequently proceeded to Virgil’s residence and found Virgil in his garage in the company of Tom Brooks. The two men were attempting to repair an automobile, and defendant’s van was parked in the driveway leading to the garage.

The accounts of Brooks and defendant as to what happened after defendant entered the garage differ in some respects. According to Brooks, the defendant, after entering the garage, asked Virgil why her van was outside. Virgil replied that he and Brooks had temporarily moved the van out of the garage so that they could work on someone else’s car, and that they would move it back when they were finished. Brooks began to elaborate on Virgil’s explanation of the reasons for the van’s removal from the garage, but defendant told him to shut up. The defendant then pulled out a gun and fired three shots, one of which hit her brother, Virgil. After the shots were fired, Brooks hit the floor and remained there until defendant exited from the garage. As Brooks was leaving the garage, he confronted defendant in the driveway. She told him that she was going to “blow his [Brooks’] brains out.” Brooks did not remember whether Virgil had anything in his hand at the time of the shooting.

Defendant testified that when she arrived at Virgil’s home, she felt “kind of bad” because the van, which was unlocked, was sitting outside in the driveway. When she began to discuss this situation with Virgil, he got angry and started arguing with her, but defendant could not recall exactly what was said. Virgil subsequently picked up the ratchet part of a ratchet wrench and started toward defendant with the ratchet in his hand. At the same time, Brooks grabbed one of defendant’s wrists. Defendant told Brooks to let her go, which he did, but Virgil then “let the wrench go” and defendant had a scuffle with him. Virgil later came toward defendant again, and she thought that he was going to hit her head with the ratchet, whereupon she fired two shots from a gun that she had brought with her. The first shot hit a wall; the second hit Virgil. After the shooting, defendant returned to Dexter’s home and asked him to call an ambulance for Virgil. The defendant further testified that approximately two weeks prior to the shooting, Virgil kicked her in the stomach.

On cross-examination, defendant stated that she frequently carried a gun with her, primarily for the purpose of protecting her house, and preventing people from stealing things from her. She also acknowledged that one of the reasons for her concern as to whether her van bore the proper license plates was that she was trying to make sure that her conduct conformed to the requirements of the applicable law. She admitted that on the day of the shooting, she was not angry at anyone else, and that on that day she knew that it would have been unlawful for her to pull out her gun and shoot someone at Dexter’s home.

The only unusual thing that Dexter Marshall noticed about defendant on the day of the shooting was that she was a little quieter than usual. According to Marvin Smith, defendant appeared calm and he noticed nothing unusual about her during the ride from her residence to Dexter Marshall’s home. Cleo King, who was at Dexter’s residence at the time of the shooting, stated that defendant said that she shot Virgil because “she was just tired of people messing with her,” and that defendant said that she hoped Virgil was dead. He further stated that following the shooting, defendant looked very upset, and in King’s opinion defendant’s conduct on the day of the shooting was different from her normal conduct.

According to James Zimmerman (one of the police officers who transported defendant to the police station) the defendant kicked him in the knee several times while being taken to the prisoner transport van at the scene of the shooting. During the trip to the station, the defendant was “very combative, both verbally and physically.” She stated that she “shot him [Virgil] and hoped that he [Virgil] was dead” and that “she would do it to us [the police officers], too, if we didn’t let her go.” The defendant was still combative when she arrived at the police station, but calmed down when a police officer engaged her in a conversation about fishing, which is apparently a favorite avocation. Zimmerman testified that it is not unusual for persons placed under arrest to be combative, and that there was nothing in defendant’s behavior that he had not seen before.

Pat Ford, a female police officer, participated in the booking of defendant. When Ford first saw the defendant, she was “mad or angry and excited” and was yelling that “she would teach her brother from messing around with her and she hoped he was dead,” but she later calmed down. In Ford’s opinion, the defendant was coherent and was acting logically on the day of her arrest. Ford also stated that the defendant’s conduct on that day was not substantially different from that of many other arrestees whom she had previously seen.

Officer Flavian Hughes similarly testified that defendant was combative when she first arrived at the police station, but that she calmed down when he and other officers started talking to her about fishing. The defendant and a group of police officers then carried on a logical, coherent conversation for about 20 minutes.

The defendant presented the testimony of two expert witnesses. The first, Dr. Nieves Tan-Lachica, a psychiatrist, was Marshall’s treating physician at McFarland Zone Center from April 9, 1981 (when defendant was committed to McFarland following a finding that she was unfit to stand trial), until May 31, 1981. From the latter date until shortly before the date that defendant’s trial commenced (January 25, 1982), Dr. Tan-Lachica supervised the physician who was directly responsible for defendant’s treatment. Dr. Tan-Lachica had extensively discussed the events of February 4, 1981, with defendant, and defendant’s accounts of events on that date were very consistent. She believed that defendant truthfully related to her, defendant’s perception of what occurred on the day of the shooting.

During her stay at McFarland, the defendant was treated for paranoid schizophrenia. When first committed, she was preoccupied with much paranoid thinking and “thought that a lot of people had messed up her life.” With the exception of one temporary relapse, her condition thereafter consistently improved as a result of medication. Following her discharge to the custody of the Sangamon County sheriff’s office for the purpose of standing trial, the defendant was continued on the same medication which she had been receiving at McFarland. The purpose of the medication was to control defendant’s psychosis and depression.

The defendant’s second expert witness, Dr. Philip Bornstein, also a psychiatrist, first saw the defendant in the spring of 1976, shortly after she gave birth to a daughter. The reason for the initial consultation was that defendant’s attending physician was concerned about her mental state and her ability to care for her newborn daughter. At that time, Bornstein made a diagnosis of chronic schizophrenia, probably of the paranoid type. The second period of Dr. Bornstein’s contact with defendant occurred between January and April 1977, when defendant was incarcerated in the Sangamon County jail. She was referred to Bornstein by the jail physician for treatment of a psychiatric problem. Following three or four weeks of treatment, Bornstein diagnosed defendant as suffering from chronic paranoid schizophrenia.

In 1978, defendant voluntarily entered St. John’s Hospital in Springfield for psychiatric treatment, and Dr. Bornstein was her treating physician. At the time of defendant’s admission, “[s]he was very upset and worried because she felt that her parents had cut a hole inside her.” Bornstein again diagnosed defendant’s condition as paranoid schizophrenia. Dr. Bornstein also saw defendant on one occasion in 1979, and at that time she was still suffering from schizophrenia.

On both February 24, 1981, and October 20, 1981, Dr. Bornstein examined defendant for IV2 to two hours in an effort to ascertain her state of mind on the day that she shot Virgil. At both interviews, defendant indicated that she shot her brother because she thought that he was going to hit her with a wrench.

Dr. Bornstein described defendant’s conduct and state of mind at the time of the first interview as “hostile, belligerent, profane, yelling, disorganized, she couldn’t concentrate, mad at everyone, no one wanted to help her, everyone was out to get her.” At the second interview, defendant “had many of the same kinds of thoughts [as at the time of the first interview] but with much less intensity,” and she was able to engage herself in an organized conversation “with less suspicion.”

Dr. Bornstein testified that based on his total knowledge of the defendant, there were two possible explanations for her conduct on the date of the shooting: first, that Virgil did in fact come at her with a wrench; second, that she merely perceived that Virgil had a dangerous object in his hand, and that she was in danger from him. The second explanation was a possibility because a perception on the part of defendant that she was in danger from Virgil would have been compatible with her prior history.

Dr. Bornstein opined that the defendant was — to a reasonable degree of medical certainty — suffering from paranoid schizophrenia on the date of Virgil’s death. Furthermore, he believed that on that date, defendant knew that it was against the law to shoot another person, except in self-defense. The defendant did not feel that she was breaking the law in shooting Virgil, however, because of her feeling that she was indeed acting in self-defense.

In Dr. Bornstein’s view, the defendant, at the time of the shooting, lacked substantial capacity to conform her conduct to the requirements of the law because “[s]he has done what she felt she had to do — her feelings and her thoughts were being influenced by psychiatric disease, regardless of what the law exactly was. This has been her behavior then; it was her behavior in the past. She’s not always able to do what the law requires of her.” As further reasons for his conclusion that at the time in question the defendant was unable to conform her conduct to the requirements of the law, Dr. Bornstein stated that defendant had every known symptom of paranoid schizophrenia, that she is hostile, unstable, threatening and violent when she is not receiving treatment for her schizophrenia, and that to his knowledge, she was not receiving treatment at the time that she shot Virgil.

Based on his long period of acquaintanceship with defendant, Dr. Bornstein also believed that she told him the truth as to events on February 4,1981, as she perceived them.

On cross-examination, Dr. Bornstein admitted that a third possible explanation for defendant’s shooting Virgil was that she just did not like him and decided to kill him. The following exchanges subsequently occurred between the prosecutor and Dr. Bornstein:

“Q [Assistant State’s Attorney Shiftman]. Now, you also indicated it’s your opinion that Miss Marshall lacked substantial capacity to conform her conduct to the requirements of the law, but you’ve indicated by your testimony that she was in reality acting in self-defense, and so then she did not lack that capacity, is that your testimony?
A [Dr. Bornstein]. I don’t think she cared about the law. I think maybe that’s a more accurate way to put it.
She perceived herself to be in danger, felt she had the right to shoot her brother because she thought she was going to get herself hurt.
If there was something there, a wrench there — I think someone else had to decide whether that is right or wrong. But if there wasn’t a wrench there, it was much more of a paranoid ideation, the ones she’s always had.
Q. But Doctor, isn’t it correct to say that if there was in fact a wrench there, and she had the legal right to act in self-defense, that at that point in time she did have the legal capacity to conform her conduct to the law — isn’t that correct?
^ * * *
I really don’t think that, whether or not she was acting in self-defense, has anything to do with her perception — I mean of her ability to conform her conduct. I think she would have shot him either way ultimately, because she was so afraid of him. You know, I think she could have had a policeman standing there and she would have done it.
Q. Doctor, is what you’re saying to the Court then, if she actually committed murder, she’s innocent; but if she actually acted in self-defense at the same time, she is insane?
A. No, I didn’t say that. I think she — either one is entirely possible.
Q. So she is not insane?
A. Insane is a legal term, but she was actively schizophrenic when she did it. The only problems in my mind is what the actual facts are. She has repeatedly, consistently asserted to me that her brother had a wrench. And I wasn’t there and I don’t know what is the fact. But that is from her point of view of what the facts are, at least.
Q. But at the same point in time, based on your examination of her, you’re content or it’s your opinion she could have two possible different mental states at that time, depending on other facts?
A. You’re not changing anything — her mental state was the same.
* * *
Q ***
Essentially, as I understand your testimony, would it be fair to say that you cannot say with a reasonable degree of medical certainty whether or not at the time Miss Marshall shot Virgil Marshall, she was insane — it depends on the facts that you’re not familiar with at the time of the occurrence — is that correct?
A. No, I don’t believe that is correct, Mr. Shiftman, and that’s really the key to this matter. I really would like to explain that reason again, if I might.
Q. All right; sure.
A. Miss Marshall had severe active paranoid schizophrenia at the time she shot her brother. There is no doubt in my mind she shot her brother. She admitted to it.
The problem is whether or not she did it in self-defense. She had the disorder anyway. How anybody wants to interpret what happened is another matter. I don’t know what all the evidence is here. All I know is what she says she saw.”

Finally, Dr. Bornstein acknowledged the preparation of a report of his November 11, 1981, examination of the defendant, in which he concluded that while defendant was probably psychotic at the time that she shot Virgil, her schizophrenia was not the primary operative factor in her shooting Virgil. Rather, she shot Virgil because she perceived that she was in danger from a weapon which she saw. In acknowledging the preparation of this report, Dr. Bornstein stated that the only addition he would make was that the report was based on defendant’s absolute assertion that a wrench was, in fact, present at the time and place of the shooting.

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

I

We first consider defendant’s contention that the State did not establish beyond a reasonable doubt that she was sane at the time she shot her brother, Virgil. Section 6 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 2(a)) provides:

“Insanity, (a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.”

Once a defendant presents sufficient evidence to create a reasonable doubt as to his or her sanity at the time of the relevant offense, the State must establish beyond a reasonable doubt that the defendant was sane at that time in order to secure a conviction. (People v. Kuhn (1979), 68 Ill. App. 3d 59, 385 N.E.2d 388.) In meeting this burden of proof, the State is not required to produce expert testimony as to the defendant’s sanity at the time of the offense, but may rely on facts in evidence and the inferences which the trier of fact may draw therefrom. (See People v. Ross (1978), 63 Ill. App. 3d 884, 380 N.E.2d 897.) The weight to be accorded an expert’s opinion as to a defendant’s sanity is to a great extent dependent on the factual details which the expert provides to support his or her opinion. (People v. Spears (1978), 63 Ill. App. 3d 510, 380 N.E.2d 423.) The trier of fact may properly reject expert testimony that a defendant was insane at the time that he or she committed an offense and conclude that the defendant was sane solely on the basis of lay testimony. (See People v. Dominique (1980), 86 Ill. App. 3d 794, 408 N.E.2d 280.) Finally, whether a defendant was sane when he or she committed an offense is a question for the trier of fact, whose finding will not be disturbed on review unless it is so improbable or unsatisfactory that it raises a reasonable doubt as to a defendant’s sanity. People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171.

Applying these controlling principles to the facts of this case, we are of the opinion that the State established beyond a reasonable doubt that defendant was sane when she shot Virgil Marshall. The only evidence offered in support of defendant’s assertion that she was insane at the time of the shooting was the opinion of Dr. Bornstein that she was at that time incapable of conforming her conduct to the requirements of the law. However, the totality of Dr. Bornstein’s testimony raises serious doubts as to the validity of this conclusion. First, there is Dr. Bornstein’s testimony that a paranoid delusion on the part of defendant that Virgil posed a threat to her, when in fact he did not, is one of only three possible explanations for defendant’s shooting Virgil. Second, Dr. Bornstein believed that at the time of the offense, defendant knew it was against the law to shoot people except in self-defense, and that she felt that she was not breaking the law in shooting Virgil because of her feeling that she was indeed acting in self-defense. Third, Dr. Bornstein implied that perhaps a better way of characterizing defendant’s mental state at the time of the shooting was that she simply did not care about the law, rather than that she lacked the capacity to conform her conduct to the requirements of the law. Fourth, and most significantly, Dr. Bornstein acknowledged the preparation of a report containing a statement that if, in fact, Virgil had a wrench at the time of the shooting, defendant’s schizophrenia was not the primary operative factor in her shooting Virgil.

In our view, that testimony effectively eviscerates Dr. Bornstein’s opinion that defendant was unable to conform her conduct to the requirements of the law at the time she shot Virgil Marshall. Such opinion is therefore, under Spears, entitled to little, if any, weight in ascertaining whether defendant was sane at the time of the offense with which she was charged.

Moreover, the testimony of defendant herself demonstrates that she was able to conform her conduct to the requirements of the law— and was thus sane — at the time of the shooting. The admitted source of the defendant’s perturbation at her van being removed from Virgil’s garage was her desire to avoid the penalties which she might incur as a result of her failure to conform her conduct to the laws relative to motor vehicle registration. Further, the defendant admitted that on the day of the shooting, she refrained from pulling out her gun and shooting people at Dexter Marshall’s home because she knew that such conduct would have been illegal.

Indeed, the evidence offered in support of the proposition that defendant was insane at the time she shot Virgil Marshall was weak and the State was required to present only a sufficient amount of contrary evidence in order to establish beyond a reasonable doubt that defendant was sane at the time of the shooting. This the State did by presenting the testimony of Marvin Smith that defendant appeared calm and did nothing unusual during the ride from her residence to Dexter Marshall’s home and the testimony of Dexter Marshall that the only unusual thing that he noticed about defendant on that day was that she was a little quieter than usual. Cleo King’s testimony that defendant was upset on the day of the shooting and was not acting like herself does not mandate a contrary holding. It is not clear from the record whether King’s testimony relates to defendant’s conduct before or after the shooting, and in any event the trier of fact was entitled to disbelieve King’s testimony and to instead regard the testimony of Smith and Dexter Marshall as conclusive evidence of defendant’s sanity at the time of the offense.

We agree that the conduct of defendant on the day that she fatally wounded her brother was unusual and bizarre. But more than that is needed to establish that a defendant was insane at the time of an offense. (See Ward.) Otherwise, all persons accused of egregious crimes could avoid criminal responsibility for their actions by simply asserting that they were insane at the time of their transgressions. On the basis of the record before us, we believe that the State met its burden of establishing beyond a reasonable doubt that defendant was sane at the time that she murdered Virgil Marshall.

No error.

II

The defendant also contends that the evidence adduced at her second competency hearing was insufficient to establish that she was fit to stand trial. On April 3, 1981, defendant was found unfit to stand trial and was committed to the Department of Mental Health for treatment, but at a second competency hearing, held on August 24, 1981, defendant was found fit to stand trial and was remanded to the custody of the Sangamon County sheriff.

The sole witness at defendant’s second competency hearing was Dr. Tan-Lachica, who testified that defendant’s psychosis was controllable only through the use of medication and implied that during her trial, the defendant would continue to receive the same medication she had received while in the custody of the Department of Mental Health. However, Dr. Tan-Lachica further testified that defendant was able to understand the nature of the “criminal problems” pending against her, that she understood the charges placed against her, and that defendant had the capacity to assist her attorney by advising him of facts relevant to her defense.

The fact that a defendant’s mental capabilities are maintained through the use of medication is irrelevant to a determination of whether the defendant is fit to stand trial. (People v. Dalfonso (1974), 24 Ill. App. 3d 748, 321 N.E.2d 379.) We conclude that the evidence presented at defendant’s second competency hearing did not create a bona fide doubt as to her fitness to stand trial (see Ill. Rev. Stat. 1981, ch. 38, pars. 104 — 10, 104 — 11(c)), and the trial court therefore acted properly in holding that defendant was fit to stand trial at the conclusion of that hearing.

Defendant additionally urges that a statement which Dr. Tan-Lachica made at her second competency hearing, that the stress of a trial could cause psychosis, accompanied by memory lapses, to reappear, coupled with defendant’s actual conduct at trial, demonstrates that she was actually unfit to stand trial. The only direct evidence of defendant’s behavior at trial is the testimony of her trial attorney, Bruce Locher, at the hearing on defendant’s post-trial motion. According to Locher, defendant “sat through this entire proceeding [the trial] like a stone.” Furthermore, while the third witness was testifying on the first day of her trial, defendant asked Locher, “When is my trial going to start?” Following the defendant’s trial, a Sangamon County sheriff’s deputy contacted Locher and told him that, “Shirley didn’t know what had happened, didn’t understand what had happened, and would I please come up and talk to her and discuss what had happened during the course of her trial.”

A thorough review of the transcript of defendant’s trial testimony convinces us that defendant responded to all questions put to her in a clear and coherent manner, and that she is a rather intelligent individual who was in full control of her mental faculties during the trial. We trust that if the trial judge, who observed defendant throughout the trial, had entertained serious doubts as to her continuing fitness to stand trial, he would have interrupted the proceedings and sua sponte ordered a hearing as to defendant’s competency, as would have been his duty in such a situation. (People v. Chambers (1976), 36 Ill. App. 3d 838, 345 N.E.2d 119.) The trial record, however, contains no evidence which would support a holding that the trial judge should have conducted such a midtrial hearing, and in fact contains not a shred of indicia that defendant may have been unfit to stand trial.

In view of the clarity and lucidity of defendant’s trial testimony, the self-serving post-trial statements of defendant and her attorney to the general effect that defendant did not understand that she was on trial while the trial was going on, are insufficient to raise a bona fide doubt as to defendant’s fitness to stand trial. (See generally People v. Motis (1962), 23 Ill. 2d 556, 179 N.E.2d 637.) The principal case on which defendant relies in support of her position on this issue, People v. Thompson (1978), 60 Ill. App. 3d 198, 376 N.E.2d 442, is clearly distinguishable. In Thompson the quantum of evidence of the defendant’s unfitness was of a much greater magnitude, and the evidence was much more convincing, than the evidence offered in support of the allegation that defendant Marshall was unfit to stand trial.

For these reasons, we hold that the evidence in the record before us is sufficient to support the trial court’s determination that defendant was fit to stand trial, and that under the circumstances of this case, the trial court was under no obligation to hold a midtrial competency hearing on its own motion. Cf. People v. Sims (1966), 34 Ill. 2d 206, 215 N.E.2d 201 (clarity and lucidity of defendant’s trial testimony supports holding that there is no bona fide doubt as to defendant’s sanity at the time of trial); People v. Davis (1978), 65 Ill. App. 3d 580, 382 N.E.2d 594 (fact that defendant suffers from mental disturbance is insufficient to raise bona fide doubt as to his ability to stand trial, where coherence and lucidity of defendant’s statements are inconsistent with claim of unfitness).

No error.

Ill

Closely related to defendant’s contention that she was unfit to stand trial is her contention that she did not knowingly and understandingly waive her right to a jury trial. Defendant alleges that in view of her mental condition and history of mental illness, the trial court should have made a more careful effort than it did to ascertain whether she understood the implications of her decision to waive a jury trial. The following colloquy took place at defendant’s jury waiver hearing:

“THE COURT: Now you understand that under our law you have a right to have a jury determine your guilt or innocence?
THE DEFENDANT: Yes.
THE COURT: Do you know what a jury trial is?
THE DEFENDANT: Twelve people.
THE COURT: To determine your guilt or innocence?
THE DEFENDANT: Yes.
THE COURT: And it is your desire to give up that right?
THE DEFENDANT: Yes.
THE COURT: Now you have discussed this with your attorney, have you not?
THE DEFENDANT: Yes.
THE COURT: This waiving of the jury?
THE DEFENDANT: Yes.
THE COURT: And based upon his information and your feeling, you wish to give up that right?
MR. LOCHER [Defendant’s attorney]: I think I would like to interject for the record.
I advised my client not to waive her right to a jury trial, Judge, it’s her wish that she waive a jury trial, its’ contrary to my advice, my advice would be to retain the jury.
THE COURT: There’s some question in this file that she is under psychiatric care, is she not?
MR. LOCHER: She is presently out at McFarland Zone Center.
MR. SHIFFMAN [Prosecutor]: She has been found fit to stand trial.
THE COURT: She has been found fit?
MR. SHIFFMAN: Yes.
THE COURT: Now, Miss Marshall, your attorney has advised you to have a jury trial, you understand, but you don’t want a jury?
THE DEFENDANT: No.
THE COURT: You want just a judge to decide your guilt or innocence?
THE DEFENDANT: Yes.
THE COURT: Let the record show then that the defendant in open court has advised the court that she understands what a jury trial is, she understands that she has a right to a jury trial, the record should further disclose that her attorney, Mr. Locher, has advised her to submit this matter to a jury, but she persists in her desire to waive a jury.
Is that correct?
THE DEFENDANT: Yes.”

During his examination of defendant, the court also inquired as to defendant’s age and educational background. Defendant stated that she was 34 years old and had attended one year of college.

In ascertaining whether a jury waiver is made in a knowing and understanding manner, a trial court is not required to conduct an inordinately long examination of the defendant nor to provide the defendant with a detailed explanation of the consequences of a jury waiver. (People v. Murff (1979), 69 Ill. App. 3d 560, 387 N.E.2d 920. To our view, the manner in which the trial court interrogated defendant far exceeded the minimal requirements for ascertaining whether a jury waiver is understanding^ and knowingly made.

With respect to defendant’s contention that because of her mental condition and her history of mental disease the trial court was obligated to exercise greater caution in determining whether she understood the implications of her decision to waive a jury trial, the defendant had been found competent to stand trial prior to her jury waiver hearing, which took place on December 14, 1981. Evidence sufficient to support a finding that a defendant is fit to stand trial is generally sufficient to support a finding that a defendant is competent to waive his or her right to a jury trial, especially where there is no conflict in the psychiatric testimony presented at the hearing on defendant’s fitness to stand trial. (See State v. Decello (1974), 111 Ariz. 46, 523 P.2d 74.) In the case at bar, there was no conflict in the psychiatric testimony presented at the hearing on defendant’s fitness to stand trial. Furthermore, there is no evidence of a deterioration in defendant’s mental condition between the time that she was found fit to stand trial and the time that she waived her right to a jury trial, and there is likewise no evidence that defendant’s trial attorney did not fully advise her of all of the consequences and implications of waiving a jury trial.

The case upon which defendant chiefly relies in support of her argument that she did not knowingly and understanding^ waive her right to a jury trial (Murff) is inapposite. There, the record contained no positive evidence whatsoever that the defendant knowingly and understandingly waived a jury trial. In the present case, by contrast, the record contains ample evidence that defendant knowingly and understandingly waived that right.

No error.

IV

The defendant further asserts that because of the vagueness of the language of subsection 5 — 2—6(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6(b)) relevant to the treatment of persons found guilty but mentally ill, she is not assured of receiving any treatment for her mental illness while incarcerated. Subsection 5 — 2—6(b) provides:

“If the court' imposes a sentence of imprisonment upon a defendant who has been found guilty but mentally ill, the defendant shall be committed to the Department of Corrections, which shall cause periodic inquiry and examination to be made concerning the nature, extent, continuance, and treatment of the defendant’s mental illness. The Department of Corrections shall provide such psychiatric, psychological, or other counseling and treatment for the defendant as it determines necessary.” :

Defendant specifically contends that since subsection 5 — 2—6(b) prescribes no time frame for the performance of the “periodic inquiries] and examination[s]” in regard to a prisoner’s mental illness, and since the Department of Corrections (DOC) need only provide the psychiatric treatment and counseling which “it deems necessary,” this provision allows the DOC to effectively deprive defendants who are incarcerated after being found guilty but mentally ill of necessary treatment for their mental illnesses, in violation of their constitutional right to treatment.

The sole case which defendant cites in support of the above argument is Youngberg v. Romeo (1982), 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452. That case involved a seriously retarded individual who had been involuntarily committed to a State mental hospital. The court held that the patient’s fourteenth amendment “liberty interests” required that the State provide him with the amount of minimally adequate training necessary to insure that he would be able to care for and control himself, to the extent that he would be free from unreasonable restraint and safe from attacks by fellow patients.

Defendant’s argument that her incarceration is violative of her constitutional right to treatment necessarily rests on the premise that a person sent to prison following a verdict or finding of guilty but mentally ill is “involuntarily committed.” This assumption is clearly erroneous. Persons found guilty but mentally ill and sent to prison are not “committed” to anything, but are sentenced to prison as punishment for crimes which they have committed. If it were not for their criminal conduct, such individuals would not be incarcerated. They are incarcerated for their crimes, not their mental condition.

The right to treatment articulated in Youngberg and similar decisions of lower Federal courts (see, e.g., Nelson v. Heyne (7th Cir. 1974), 491 F.2d 352) derives its very being from the fact that adults committed to mental institutions and juveniles committed to juvenile correctional facilities are not incarcerated as a result of convictions of criminal offenses. Instead, they are confined solely because they have been found in need of rehabilitative treatment for such problems as mental illnesses, difficulty in conforming their conduct to social norms, etc. If treatment is not provided, their continued incarceration amounts to illegal detention. Since prison sentences imposed upon persons found guilty but mentally ill are a direct result of criminal offenses of which such persons have been convicted following trials in which they enjoyed the full panoply of procedural safeguards available to other adult defendants, it follows that such prisoners enjoy no separate constitutional right to treatment for their mental health problems beyond the constitutional right to minimally adequate medical care which is applicable to all prisoners. Thus, defendant’s contention that her incarceration is violative of a specific constitutional right to treatment for her mental illness is utterly lacking in merit.

No error.

V

The defendant shot Virgil Marshall on February 4, 1981. The statutory provision providing for a verdict of guilty but mentally ill (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4<j)) became effective September 17, 1981, and defendant was tried on January 25-27, 1982. The defendant contends that the application of subsection 115 — 4(j) to an offense committed before its effective date is violative of the State and Federal constitutional proscriptions of ex post facto laws.

The classic and generally accepted statement of the types of laws which are ex post facto is contained in the 18th century seminal case of Calder v. Bull (1798), 3 U.S. (3 Dall.) 386, 390-91, 1 L. Ed. 648, 650:

“1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to. the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.”

Subsection 115 — 40 obviously does not aggravate any offenses committed before its effective date. Nor does it alter the rules of evidence.

Furthermore, the application of subsection 115 — 40) to the instant case did not result in the infliction upon defendant of a greater punishment for murder than existed at the time that she fatally wounded Virgil Marshall. Rather, subsection 115 — 40) merely altered the conditions of defendant’s confinement by insuring that she will receive adequate treatment for her mental health problems while incarcerated. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6(b), (c).) Statutes which change the conditions under which punishment for an offense is imposed, but which do not significantly alter the fundamental nature of the punishment, are not ex post facto laws. (Malloy v. South Carolina (1915), 237 U.S. 180, 59 L. Ed. 905, 35 S. Ct. 507; Carter v. Burt (1866), 94 Mass. 424.) Moreover, statutes which mitigate the penal provisions of a statute in force at the time of an offense are not regarded as ex post facto with respect to that offense. (Rooney v. North Dakota (1905), 196 U.S. 319, 49 L. Ed. 494, 25 S. Ct. 264.) Subsection 115 — 4(j) merely alters the conditions of confinement of a person imprisoned as a result of a criminal offense, and quite probably ameliorates the conditions of confinement by insuring that such an individual receives adequate treatment of his or her mental health problems. Consequently, we conclude that under the facts of this case, the application of subsection 115 — 4(j) to a murder committed prior to its effective date did not alter or increase the penalty for that offense within the meaning of the ex post facto doctrine.

Defendant also argues that the application of subsection 115 — 4(j) to an offense committed before its effective date has the possible effect of making criminal an action which was innocent before enactment of the relevant portion of that subsection in that such an application of subsection 115 — 4(j) deprived her of some of the defenses available at the time of the murder. The basis for this assertion is that if defendant’s trial counsel had known that the subsection 115 — 4(j) was going to be applicable to the case, he might have chosen to avoid the possibility of defendant being found guilty but mentally ill by basing his defense on the theory that defendant shot Virgil Marshall in self-defense or lacked the intent necessary to commit a murder, as opposed to the theory that defendant was insane at the time of the shooting. (A defendant may be found guilty but mentally ill only if he or she presents the affirmative defense of insanity at trial. Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(j).)

While it is well settled that a statute which completely deprives a defendant of a defense available at the time of an offense is an ex post facto law (Beazell v. Ohio (1925), 269 U.S. 167, 70 L. Ed. 216, 46 S. Ct. 68), we believe this case presents the question of whether a statute which merely makes the assertion of certain defenses less desirable than they would have been at the time of an offense is violative of the ex post facto doctrine. Counsel cites no cases which so hold, and our research has disclosed none. Since the guilty but mentally ill statute did not operate to completely deprive defendant of any defense available to her on the date of her offense, we are of the opinion that defendant’s argument as to this prong of the ex post facto doctrine is likewise void of merit.

No error.

VI

Lastly, defendant contends that subsection 115 — 4(j) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(j)), which created the verdict of guilty but mentally ill, was improperly applied as a retroactive law. We disagree. A retroactive law is a law that takes away or impairs vested rights acquired under existing laws, or which creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed. (United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 204 N.E.2d 4.) The general rule that statutes will not be applied retroactively is ordinarily inapplicable to statues relating to remedies and forms of procedure, and which do not affect substantial rights. (Hogan v. Bleeker (1963), 29 Ill. 2d 181, 193 N.E.2d 844; see People v. Myers (1977), 44 Ill. App. 3d 860, 359 N.E.2d 197.) Also, a statute is not retroactive because it relates to an antecedent event if its application is actually invoked by an event occurring subsequent to its effective date. People v. Valdez (1980), 79 Ill. 2d 74, 402 N.E.2d 187.

The application of subsection 115 — 4(j) to the defendant’s trial was not triggered by the murder which defendant committed. Rather, that subsection was invoked when defendant raised the insanity defense at trial. (Cf. Valdez.) Furthermore, defendant has not identified any substantive right which she accrued prior to the effective date of subsection 115 — 4(j) that was impaired by the application of that statutory provision. Nor has she pointed to anything which would support a holding that the application of subsection 115 — 4(j) attached a new disability with respect to the murder of which she was convicted. Even before the subsection became effective, persons convicted of crimes were subject to mental examinations and could have their probation conditioned on continued psychiatric treatment. Finally, this subsection did not serve as a bar to the defendant’s raising any defense at her trial. For these reasons, we hold in this case that subsection 115 — 4(j) was not improperly applied as a retroactive law.

No error.

In sum, we find no merit in any of defendant’s allegations of error.

Affirmed.

GREEN and TRAPP, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    TONY BAKUTIS et al., Plaintiffs-Appellees, v. JOHN E. SCHRAMM et al., Defendants-Appellants.
    Fourth District
    No. 4—82—0685
    Opinion filed April 25, 1983.
    Presney, Huffman, Kelly & Appleton, of Springfield, for appellants.
    Maurice W. Kepner, of Kepner and Giganti, of Springfield, for appellees.
   JUSTICE GREEN

delivered the opinion of the court;

This case concerns a dispute over ownership of a somewhat rectangular strip of rural land extending approximately 496 feet from south to north, 60 feet in width at the south end and 45 feet in width at the north end.

On August 28, 1980, plaintiffs, Tony and Alice Bakutis, brought this action in the circuit court of Sangamon County against defendants, John E. and Nina R. Schramm. Plaintiffs sought a declaration that (1) plaintiffs were the owners of the strip, and (2) the east line of the strip is the boundary line between plaintiffs’ property and that of defendants. Plaintiffs also requested that defendants be enjoined from “farming, using, and going upon and interfering with” plaintiffs’ possession of the strip. After an evidentiary hearing on the merits, the circuit court entered an order on September 16, 1982, granting plaintiffs the relief requested. Defendants appeal. We affirm.

The contested strip lies in the south 15 acres of the East Half of the Northeast Quarter of Section 10, in Township 14 North, Range 7, West of the 3rd Principal Meridian, situated in Sangamon County, Illinois. By mesne conveyances, the west 11 acres of the aforesaid south 15 acres have been conveyed to plaintiffs, and the east four acres have been conveyed to defendants. Plaintiffs do not dispute that the west edge of the contested strip divides the 11-acre tract from the four-acre tract. Rather, they claim ownership in the contested area by adverse possession. The trial court agreed and granted relief accordingly.

In Joiner v. Janssen (1981), 85 Ill. 2d 74, 421 N.E.2d 170, the supreme court restated the long-accepted elements necessary to be proved in order to establish title under the 20-year adverse possession doctrine incorporated in section 1 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 1). To do so, “there must be 20 years’ concurrent existence of the five elements: (1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious, and exclusive possession of the premises, (5) under claim of title inconsistent with that of the true owner.” (85 Ill. 2d 74, 81, 421 N.E.2d 170, 174.) The evidence here was sufficient to prove such adverse possession by plaintiffs and their predecessors at least from 1951 until 1972.

The evidence showed that plaintiffs purchased the west 11 acres from Russell W. and Florence A. King by deed in 1971, and that those grantors purchased the property by deed in 1953 from the late Richard J. Sprinkel who had obtained title by inheritance in 1951. Betty Sprinkel, Richard’s widow, testified she was familiar with the land as early as 1943. She stated that, from that date, there was a fence in the area of the east boundary of the tract in dispute which was considered to be the east boundary of the 11-acre tract. She further testified that land in the tract west of the fence was farmed by their tenant. She also testified that a road extending through the disputed tract was used by the owners and persons in possession of the 11-acre tract to reach land owned by them north of the tract. Russell W. King testified that when he bought the land, Richard J. Sprinkel and a banker told him that the previously mentioned fence was the east boundary of the land he was purchasing. He stated that he plowed portions of the disputed tract up to the fence line, and that defendants’ predecessors in title did not use the lane which went through the disputed tract.

Tony Bakutis testified that at the time of his purchase, Russell W. King told him that the fence line previously referred to was the east boundary of the tract being conveyed to him. Bakutis further testified that he and his tenants used a road that went through a portion of the strip. He also related that he had his tenant develop a grass waterway over portions of the strip.

Defendants obtained title to their four-acre parcel by conveyance from William D. and Marie James in 1972. They presented some evidence that, thereafter, they challenged plaintiffs’ possession of the tract. However, as we have determined that plaintiffs and their predecessors sufficiently proved their 20 years of adverse possession prior to 1972, we need not consider this evidence.

Defendants dispute the sufficiency of the proof of plaintiffs’ and their predecessors’ adverse possession from 1951 until 1972 on the theories that: (1) The adverse possession of the various owners of the west 11 acres cannot be tacked; and (2) the Kings took several actions which constituted a recognition that they did not own the disputed tract.

In support of defendants’ first contention, they cite Duck Island Hunting & Fishing Club v. Whitnah (1922), 306 Ill. 284, 137 N.E. 840, Illinois Central R.R. Co. v. Hatter (1904), 207 Ill. 88, 69 N.E. 751, and Baumann v. Lawndale National Bank (1977), 45 Ill. App. 3d 328, 359 N.E.2d 1086, for the rule that adverse possession of land adjacent to that of land conveyed cannot be tacked from vendor to purchaser, unless there is proof that the vendor delivered possession of the land not covered by the terms of the conveyance by indicating that the land was intended to be conveyed. Here, there was evidence which the trier of fact could have accepted that, at the time of the Sprinkel and King conveyances, a grantor told a grantee that the land in the disputed tract was part of the land being sold. The evidence supported the trial court’s conclusion that the adverse possessions could be tacked.

In 1954, the Kings conveyed an oil and gas lease over their property, and in 1966 the Kings conveyed a right-of-way over their property to a public utility. In both cases the conveyancing documents described only the west 11 acres of the 15-acre tract. According to the measurements now accepted by the parties, neither conveyance covered the tract in question. Similarly, in 1955 the Kings filed a request to detach the west 11 acres from the village of Loami. Defendants maintain that since the legal descriptions used in these documents did not include the disputed strip, plaintiffs’ predecessors knew they did not have right to the disputed strip and thus, their possession of the strip was not adverse. Similarly, in 1956 when the Kings were the owners of the west 11 acres and persons named Davis the owners of the east four acres, the parties exchanged quitclaim deeds to the tract of the others. The Kings made a quitclaim deed to the Davises of the east four acres, and the Davises made one to the Kings of the west 11 acres. Russell W. King testified that this was done to clear matters on the Davises’ abstract.

The opinion in Joiner speaks to defendants’ contentions. The situation there is similar in many respects to that in the case at bar. There, suit was brought to quiet title to a strip of land adjacent to property purchased by those plaintiffs in 1951 but was not actually part of the property described in the conveyance. The evidence indicated that the plaintiffs were told by the sellers that the strip was part of the property conveyed. The plaintiffs had mowed grass on the area, raked leaves on it, and planted and maintained shrubbery on it for a period in excess of 20 years. A tree and brush line formed a definitely ascertainable boundary on the side of the strip away from the plaintiffs’ property.

The Joiner plaintiffs had believed for 17 years that they held legal title to the strip. However, in 1977, a survey revealed that legal title was in the defendants. In support of their claim to the strip, the defendants maintained that after 1977, the plaintiffs’ possession was no longer adverse because of plaintiffs’ knowledge of their lack of title. This position was supported by the decision in Hansen v. National Bank (1978), 59 Ill. App. 3d 877, 376 N.E.2d 365. The supreme court overruled Hansen, stating:

“The essence of the doctrine of adverse possession is the holding of the land adversely to the true titleholder. ‘A party, claiming title by adverse possession, always claims in derogation of the right of the real owner. He admits that the legal title is in another. He rests his claim not upon a title in himself, as the true owner, but upon holding adversely to the true owner for the period prescribed by the Statute of Limitations.’ (Mercer v. Wayman (1956), 9 Ill. 2d 441, 445-46; White v. Harris (1903), 206 Ill. 584, 592; 3 Am. Jur. 2d Adverse Possession sec. 7, at 87 (1962).) To hold that because the possessor knows or should know that record title is in another precludes any possibility of the possessor’s title being adverse is the antithesis of the doctrine of adverse possession as it has existed in this State. (Illinois Central R.R. Co. v. Houghton (1888), 126 Ill. 233.)” Joiner v. Janssen (1981), 85 Ill. 2d 74, 80-81, 421 N.E.2d 170, 173-74.

Under the holding in Joiner, even if the petition and various deeds made by the Kings were taken as acknowledgments by them that they had no legal title to the disputed tract, that would make no difference. Their knowledge of lack of title would be entirely consistent with their possession being adverse. Likewise, the fact that the property described in the various conveyances by which plaintiffs and their predecessors obtained title did not include the tract was not significant. The Joiner court stated:

“Since the claim to ownership need not be spoken or supported by title documents, and one’s actions can adequately convey the intent to claim title adversely to all the world in: eluding the titleholder (Walter v. Jones (1958), 15 Ill. 2d 220), it is apparent that what the property description in a deed held by the adverse possessor excludes or includes is irrelevant to the adverse-possession issues. Schwartz v. Piper (1954), 4 Ill. 2d 488, 493.” 85 Ill. 2d 74, 82, 421 N.E.2d 170, 174.

The trial court was not required to find that the exchange of deeds between the Kings and the Davises constituted an agreement that the Davises were the owners of the tract. The stated reason for the exchange was uncertain. The evidence showed that there had been different descriptions used in the various conveyances in the respective chains of title, and the exchange could have been made for that reason rather than with intent upon the part of the Kings to convey the tract.

Defendants also question whether the east boundary of the land over which plaintiffs and their predecessors exercised adverse possession was adequately established. In Joiner, the court also spoke to this issue, stating:

“ ‘The proof must be such as to establish with reasonable certainty the location of the boundaries of the tract to which the five elements of adverse possession are applied and all of the elements must extend to the tract so claimed. While it is not necessary that the land should be enclosed by a fence, the boundaries must be susceptible of specific and definite location.’ ” 85 Ill. 2d 74, 83, 421 N.E.2d 170, 175.

Here, plaintiffs established the location of the boundary fence line through the testimony of their predecessors in title as well as the physical evidence of a concrete right-of-way marker on the south side of the property near the county road, and a hedge post on the north which established the east line of the disputed tract. Although a fence no longer existed between the two markers, the proof was sufficient to show its former location with reasonable certainty.

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

Affirmed.

WEBBER, P.J., and MILLS, J., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PHILLIP WALLACE, Defendant-Appellant.
    First District (5th Division)
    No. 81—1107
    Opinion filed April 15, 1983.

      Kenneth L. Jones and Scott Szala, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Jeanette Sublett, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After defendant was convicted by a jury of murder, armed robbery, and home invasion, he was sentenced to life imprisonment. On appeal, he contends that the trial court erred in (1) denying his motion to suppress his written statement; (2) failing to excise from his written statement a reference to his alleged sale of narcotics; (3) denying his motion for a mistrial after a State’s witness testified to his presence in jail; and (4) permitting his impeachment on a collateral issue involving his bond forfeiture in an unrelated case.

There is no contention that guilt was not established beyond a reasonable doubt, and we will therefore discuss only the testimony bearing upon the issues presented. At the hearing on defendant’s motion to suppress his written statement on the ground that it was not voluntarily given, Assistant State’s Attorney Neville testified that defendant was advised of his constitutional rights and then gave the statement to him at 2:50 p.m. on October 1, 1980, in the presence of Officer Pochardo and a court reporter at police headquarters; that after the statement was typed, defendant read it, initialed every page, and signed the last page; that in his presence there were no promises or threats made to defendant, and no one struck him; and that defendant had given a prior oral statement to him which was substantially the same as the written statement.

Defendant testified in substance that he was in Birmingham, Alabama, on September 30, 1980, when Chicago police officers Hood and Pochardo informed him they had an arrest warrant against him for murder; that the next day, on the way to Chicago, Pochardo told him the details of the murder and, although he told the officers that he had no knowledge of it, Pochardo said that the State would seek the death penalty if he would not cooperate; that no Miranda warnings were given him by the police officers, but they were given by the assistant State’s Attorney prior to the oral and written statements given to him; and that he made these statements because he was scared and trying to protect himself.

Officers Hood and Pochardo both stated that when they first saw defendant, in Birmingham, he was advised of his constitutional rights; however, they both admitted the police report did not so state. They also testified that he never asked for a lawyer and that no threats or promises were made at any time to him. Hood also stated that he may have told defendant that they had statements from Larry Wiggins and Webber Dowells which implicated someone named “Bull” in the shooting, but that he did not say that either of them had named defendant as the person doing the shooting.

The motion to suppress was denied and, at trial, a Chicago police officer testified that in his investigation of the shooting of a woman on June 21, 1979, he found the body of Wilhemina Wade lying in the hallway of the first-floor apartment at 5021 Indiana Avenue. He also noticed that dresser drawers in her apartment had been removed and their contents strewn about. While the officer was in the apartment, Anthony Harris came in and told him of seeing two men involved in the shooting. Harris gave a description of them and said one had the nickname “Bull.”

Harris, age 13 at the time of the shooting, then testified that he was in the rear yard of the building helping Wade clean up her yard when three men approached the gate from the alley. One man walked on through the gate, and she stopped the other two who said that they were going to see someone on the second floor. She told the latter two to ring the front bell. Shortly thereafter, the two men returned to the yard, and he heard one of them call into the house for “Bull.” He (Harris) was then standing on the porch next to the back door of Wade’s apartment, and a man he identified as defendant came out of the apartment, pointed a gun at him, and told him to come in. Defendant was pulling him into the apartment when Wade told defendant to get out of the house. Defendant then shot her twice, and she fell to the floor. Although defendant told one of the others to tie him up, he was allowed to go home. When the police arrived, he talked to them and they later showed him five photographs from which he identified defendant as the person who shot Wade. In court, Harris again identified defendant as the person doing the shooting.

Webber Dowells testified that when he met defendant on June 21, 1979, the latter asked him to take a walk, and they were joined by Larry Wiggins. They had a conversation about robbing a woman who owned a building whom defendant thought would have some money since she collected rent. Defendant produced a handgun, and they proceeded to her building at 5021 South Indiana. They entered the yard, and Mrs. Wade, who was with Anthony Harris, told them to go to the front if they wanted to see someone; that shortly thereafter, he went up on the back porch of the first-floor apartment where he saw defendant inside. Wiggins said, “Bull, you in there?” and Wade then came in and asked defendant what he was doing in the apartment. He (Dowells) heard a struggle and then two shots, following which he saw defendant standing over Wade’s body, pointing a gun at Harris whom he told not to say anything or he would kill him. The next day, Harris was in an unmarked police car with two officers and pointed him (Dowells) out as being one of the men who had been in Wade’s apartment. He admitted being a drug addict at the time of the incident; that he had been using drugs on and off for four years; and that he “was promised something” for his testimony.

Stephen Hood, a Chicago police officer, found some belongings of Wade’s in the second-floor apartment at 5021 South Indiana. He obtained an arrest warrant for defendant and, after learning he was in Birmingham, Alabama, he went there with his partner, Investigator Pochardo. They arrested defendant on September 29, 1980, and on October 1 flew him back to Chicago, taking him directly to police headquarters where he and Pochardo talked to him in the presence of a State’s Attorney.

Arthur Neville, an assistant State’s Attorney, testified that about 2:50 p.m. on October 1, defendant gave him a statement before a court reporter who then typed the statement, and it was given to defendant who initialed each page and signed it. Defendant was advised of his constitutional rights before giving the statement, and in it he said, among other things, that he was also known as “Bull”; that he met Larry and Webber in a poolhall when they came to him for pills; that he was selling “T’s and Blues” but he did not have any at that time, and they talked about making some money by robbing a store, somebody on the street, or taking a car; that Larry had a gun, and as they walked down an alley drinking wine, they saw Wade and some young persons cleaning her yard; that he knew she was the landlady, because he had stayed there on the second floor with someone named James once or twice a week for the previous month and a half; that they entered the yard and he walked up the stairs, and when she wasn’t looking he entered her first-floor apartment and crawled under the dining room table; that after Wade and a boy came in, he heard her say, “My God, he is going to kill me,” and then he heard a shot; that as she was lying on the floor, he grabbed the gun from Larry who was next to her; that the boy and Webber were at the back door, and he said to Webber, “You might as well kill him. No witnesses”; that Webber said he would not do it because he knew the boy’s brother; that he disposed of the gun in some bushes in back of a poolhall; that when he learned Webber and Larry had been arrested, he went into hiding; and that, after staying in Chicago for a week or two, he went to Birmingham.

Evelyn Morris, defendant’s aunt, testified that she lived in Birmingham and, after she told defendant that she needed his help because her husband was ill, he arrived in Birmingham about the middle of June 1979. She knew this was the time, because he had been there about a week before a policeman shot and killed a black woman named Carter in Birmingham on June 21 or 22 of that year.

Defendant stated that he went to Birmingham around the first or second of June when his aunt said she needed his help because her husband was ill. He recalled being there on June 21, 1979, because on June 22 a police officer shot a black girl in Birmingham. On September 30, 1980, in that city, Chicago police officers Hood and Pochardo told him they were picking him up for a robbery and murder. Defendant told them he knew nothing about the crimes, but on October 1 he was flown to Chicago and taken to a police station, arriving about 10:30 a.m., where he was handcuffed to a wall. At about 11 a.m., Pochardo told him he had talked to the State’s Attorney and that if he gave a statement, the death penalty would not be sought. He made an oral statement but had not been given any Miranda warnings, although he did receive those warnings before giving a written statement later. He gave that statement because he had been threatened with the electric chair if he did not cooperate, and he was scared. He said he was able to describe the crimes in the statement, because the police officers had told him what occurred. He admitted that his nickname was Bull and that, in April 1979, he was out on bond for an unrelated criminal charge which was pending when he went to Alabama.

Opinion

Defendant first contends that the motion to suppress his written statements should have been granted because it was involuntarily given. The State has the burden to establish by a preponderance of the evidence that the statement in question was voluntarily made (People v. Brownell (1980), 79 Ill. 2d 508, 404 N.E.2d 181, appeal dismissed (1980), 449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59), and the key inquiry on such a motion to suppress is whether defendant’s will was overcome at the time he made the statement (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508, cer. denied (1982), 455 U.S. 1024, 72 L. Ed. 2d 144, 102 S. Ct. 1726). A reviewing court considers all the evidence surrounding the giving of the statement (People v. Kincaid), and a finding of voluntariness will not be disturbed unless it is against the manifest weight of the evidence (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731).

At the hearing on the motion to suppress, the only testimony as to possible involuntariness was from defendant, who stated that he was told by Officer Pochardo that the State would seek the death penalty if he did not cooperate and that he gave the statement because he was scared and wanted to protect himself. However, Pochardo and another officer (Hood), as well as Assistant State’s Attorney Neville, all testified that no threats or promises were made to defendant. The weight to be accorded the testimony of the witnesses was for the trial court, and because we do not believe the evidence indicates that defendant’s will was overborne, we think it clear that the trial court properly denied the motion to suppress at that time.

Defendant, however, also contends that we should reverse the court’s ruling in the light of trial evidence which was not presented at the hearing on the motion. It has been held that additional testimony at trial, received after a complete hearing on a pretrial motion to suppress and before the statement was admitted, may be considered by a reviewing court in passing upon the trial court’s ruling on the motion. People v. Braden (1966), 34 Ill. 2d 516, 216 N.E.2d 808; People v. Wade (1979), 71 Ill. App. 3d 1013, 389 N.E.2d 1230.

Defendant here points out that at the hearing on the motion to quash, he did not say that he was in Birmingham on the day of the shooting but that he did so testify at trial, as did his aunt. He argues that this additional evidence requires reversal of the court’s ruling. However, we are of the view that it lends little support to defendant’s contention, and from our consideration of the entire record, we are satisfied that the court’s ruling was not against the manifest weight of the evidence.

Defendant further contends that even if his statement was otherwise admissible, the trial court erred in failing to excise that portion thereof which shows his involvement in other, unrelated crimes. In the course of his statement, the following colloquy took place:

“Q [State’s Attorney]. Will you tell us who you met prior to the armed robbery and the murder that took place earlier in the day.
A [defendant]. I was standing down by the pool hall with Larry and Webber. I don’t know their last names. They had come up to me and wanted pills. I was selling T’s and Blues.
Q. And did you not have any pills for them at that time?
A. No.
Q. Were Larry and Webber straight at that time, sober?
A. I would never call them sober because they always seemed hyped to me anyway.
Q. Did you have a conversation with them after they asked you for T’s and Blues?
A. Yes.
Q. What did you talk about?
A. We talked about making some money.
Q. How is that going to happen?
A. Robbery, stick up a store or something, or somebody on the street, or take a car, something like that. They needed money.”

At trial, defendant argued that the references to his drug dealing were irrelevant and should have been excluded; however, the trial court denied his motion in limine, finding that the passage was relevant to show motive; to show the relationship among defendant, Wiggins, and Dowells; and to rebut defendant’s alibi defense.

Generally, evidence that the accused committed other crimes unrelated to the offense charged is inadmissible if presented merely to establish his propensity to commit crimes (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200), for such evidence may “overpersuade the jurors and cause them to convict the defendant as an ‘evil person’ worthy of punishment rather than because he is guilty of the crime charged” (People v. Butler (1978), 63 Ill. App. 3d 132, 139, 379 N.E.2d 703, 708). However, this rule of exclusion if inapplicable where the evidence is relevant for any purposes other than to show a propensity for crime (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489), such as to place a defendant in proximity to the time and place of the crime, to aid or establish identity, to explain the circumstances of an arrest, to prove design, motive or knowledge, or to disprove an alibi (People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288; People v. Satchell (1981), 94 Ill. App. 3d 422, 418 N.E.2d 1063), so long as the court determines that is probative value outweighs any prejudice to the accused (People v. Stout (1982), 108 Ill. App. 3d 96, 438 N.E.2d 952).

In the instant case, the court found that the passage in question was relevant to show defendant’s motive;.i.e., to obtain money to purchase drugs. Defendant argues that this finding is based on mere speculation, because he never explicitly said “we committed the robbery in order to obtain money for drugs.” Therefore, he maintains, his conviction should be reversed, citing People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238. There, the State argued that evidence of a subsequent arson was admissible in the defendant’s murder trial because it manifested his purpose to avoid detection by concealing evidence. However, we believe that defendant’s reliance on Lindgren is misplaced. The court there did not hold, as defendant posits, that the motive for a crime must be explicitly stated; rather, its relevance must be fairly inferrable from the evidence. In Lindgren, unlike here, the evidence not only failed to support the State’s theory of relevance, but directly contradicted it. Here, we believe the motive relied upon by the court may be inferred from the passage quoted. An analogous situation arose in People v. Schwartz (1978), 64 Ill. App. 3d 989, 382 N.E.2d 59, where the defendant was charged with a murder that occurred as he and the decedent were weighing a recent drug purchase. We found testimony relating to drug dealing relevant to show motive, although it was never explicitly stated by any witness.

The passage in question also rebuts portions of defendant’s alibi defense. He claimed that he was in Alabama at the time the crime occurred, and provided this statement only out of fear, using details of the crime supplied by police personnel. However, it appears from defendant’s own testimony that the police never mentioned prior drug dealing, the drug habits of his accomplices, or any specific motive for the crime. Therefore, this passage contradicts defendant’s claim that he knew nothing about the crime other than the few details related to him by the officers.

Moreover, even if we were to find introduction of this evidence erroneous, testimony relating to other offenses does not per se constitute grounds for reversal. (People v. Bynum (1981), 102 Ill. App. 3d 461, 430 N.E.2d 110.) Where every element of the crime charged has been established by properly admitted evidence, the error is harmless (People v. Bacon (1980), 91 Ill. App. 3d 673, 415 N.E.2d 678) if that admissible evidence is so overwhelming that there is no reasonable probability that defendant would have been acquitted if the inadmissible evidence had been excluded (People v. Thingvold (1978), 66 Ill. App. 3d 1002, 384 N.E.2d 489). Here, two witnesses with an excellent opportunity to observe identified defendant as the man who committed the crimes charged. Furthermore, defendant himself made an extensive, detailed statement admitting his involvement therein. In the light of this evidence, we believe that “no fair-minded jury could reasonably have voted to acquit.” People v. Carlson (1982), 92 Ill. 2d 440, 449, 442 N.E.2d 504, 508.

Defendant next maintains that the trial court should have granted his motion for a mistrial when the State’s witness violated an in limine order. Defendant presented a pretrial motion asking that the court “exclude any reference to the fact that defendant was taken into custody at the Jefferson County Jail in Birmingham, Alabama.” In the discussion on the motion, the prosecutor said that the State “would not be introducing any evidence that he was in custody for a burglary in Birmingham, Alabama.” The court did not rule on the motion, and no request for a ruling was made by defendant, apparently because of the prosecutor’s statement.

After Officer Hood had testified as a State’s witness, he was recalled by defendant as his witness, and in answer to a series of questions lay defense counsel, Hood stated that he had a conversation with defendant in Birmingham at the time of his arrest on September 29 and, at that time, he gave the Miranda warnings to defendant. The defense counsel then asked questions which were answered as follows:

“DEFENSE COUNSEL: Mr. Pochardo, as a matter of fact talked to him on the 29th, when you saw Mr. Wallace didn’t he, if you recall?
A. I believe I did the talking on the 29th, yes sir.
Q. In going back to October 1 before you had this conversation, you gave him his rights too didn’t you?
A. No sir.
Q. You didn’t give him his rights?
A. On October 1st?
Q. Right.
A. When we picked him up at the jail?”

Defendant’s motion for a mistrial at that time was denied, and in his brief here, defendant contends the trial court erred in refusing a mistrial because the jail reference was in violation of the in limine order. We reject this contention, for a number of reasons — first, because no order was entered; second, because the prosecutor stated only that he would not introduce any evidence that defendant was in custody for a burglary in Birmingham and no such evidence was introduced; and third, because the jail reference was brought out by defense counsel in his direct examination of Hood, who was defendant’s witness, and he cannot now complain of error relating to such testimony. (See People v. George (1971), 49 Ill. 2d 372, 274 N.E.2d 26.) Moreover, a trial court does not abuse its discretion in failing to grant a mistrial where, as here, the statement in question was an isolated, inadvertent reference, the damaging effect of which could have been remedied by an instruction to disregard it. People v. Winfield (1983), 113 Ill. App. 3d 818.

Further, we find no merit in the additional argument of defendant that the court should have neutralized the effect of the unresponsive answer by an admonition or instruction to the jury. There is no requirement on the part of the court to do so where defendant did not move to strike the reference or request that the jury be admonished or instructed to disregard it. People v. Burage (1961), 23 Ill. 2d 280, 178 N.E.2d 389, cert. denied (1962), 369 U.S. 808, 7 L. Ed. 2d 555, 82 S. Ct. 651.

Finally, defendant contends that the trial court erred in permitting the State to impeach him on a collateral matter by cross-examining him with regard to a bond forfeiture in an unrelated criminal case. Cross-examination which is limited to the subject matter raised on direct examination is proper (People v. Brown (1982), 106 Ill. App. 3d 1087, 436 N.E.2d 696), and it may be used “to develop all circumstances within the knowledge of a witness which explain, qualify, discredit or destroy his direct testimony, although the circumstances may incidentally constitute new matter which aids the cross-examiner’s case” (People v. Olbrot (1982), 106 Ill. App. 3d 367, 374, 435 N.E.2d 1242, 1248). In the instant case, defendant testified on direct examination that he went to Alabama to assist his aunt in caring for her invalid husband. The trial court allowed the State to inquire whether defendant was out on bond at the time in question and whether he forfeited that bond by failing to return. It ruled, and we believe properly so, that defendant opened the door to that question by relating his motive in going to Alabama, and the State was therefore entitled to show that defendant was motivated, not by altruism, but by a desire to avoid prosecution. This situation is entirely different from that in cases relied upon by defendant in arguing that he may not be impeached on a collateral matter. For example, in People v. Persinger (1977), 49 Ill. App. 3d 116, 363 N.E.2d 897, cited by defendant, a prosecution witness denied during cross-examination that she had been treated for a drug overdose, and we held that the trial court properly excluded other witnesses offered for the sole purpose of rebutting that denial. Thus, Persinger does not address the proper scope of cross-examination, which is the issue before us here; rather, it concerns impeachment on a collateral matter contained in a witness’ cross-examination through the introduction of extrinsic rebuttal evidence.

For the reasons stated, defendant’s conviction is affirmed.

Affirmed.

WILSON, P.J., and LORENZ, J., concur.

      Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY CLARK, Defendant-Appellant.
    First District (1st Division)
    No. 81—2300
    Opinion filed April 18, 1983.

      James J. Doherty, Public Defender, of Chicago (Judith A. Stewart, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Peter M. DeLongis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After a jury trial, defendant Billy Clark was convicted of murder, attempted murder, aggravated battery and armed violence. He was sentenced to serve concurrent terms of 15 years for attempted murder and 40 years for murder in the penitentiary.

On appeal, defendant contends that the cumulative impact of improper prosecutorial comments during opening and closing arguments denied defendant a fair trial.

We reverse and remand for a new trial.

In his opening statement, before any testimony had been heard and prior to discussing what the State’s evidence would show, the prosecutor warned the jury about the defense attorney’s tricks:

“It is like thinking of it in terms of slide [sic] of hand. How does the slide [sic] of hand trick work? It works by getting you to take your eyes off the subject that you are supposed to be looking at and look at some distraction.
(Objection overruled.)
*** And if you take your eye off the coin and off the evidence in this case and go chasing after what the lawyers tell you, you are going to be in serious trouble ***.
*** [W]hen lawyers ask questions of witnesses, sometimes the form of those questions seem to indicate that the lawyers may know something about the witness or the facts of the case that you haven’t heard in evidence. So if the lawyer asks the question, when did you stop beating your wife ***.”

The trial judge sustained defense counsel’s second objection and warned the prosecutor to “get into the evidence.”

The prosecutor returned to the themes of “attorney’s tricks” and “sleight of hand” and tactics employed by the defense attorney during the State’s rebuttal closing argument:

“Ladies and gentlemen, you remember the first day of this trial I stood before you ***. And I was in the process of telling you the tactics the defense attorney will employ during the trial so you can anticipate that happening * * * when I was cut short by an objection by the defense.
(Objection overruled.)
Well, what I was telling you about was how defense attorneys use slide [sic] of hand in defending people and I can understand why the defense wouldn’t want me to tell you about this.
(Objection overruled.)
*** And what I was in the process of telling you, when you are defending somebody, when you are defending a case where the evidence is as overwhelming as the evidence in this case, there is only one thing you can do - [that] is get the jury to ignore the evidence ***. And it is just like a magician uses slight of [sic] hand, the way they make a coin disappear is by getting you to look at something else.
The old trick, look at the hand, don’t look at the evidence, and that’s exactly the way defense attorneys make the evidence disappear by getting you to look at something else and the only something else that is available to them is naked speculation.”

In discussing the defense presented, the prosecutor commented that the defense attorney is a very able and experienced defense attorney, who has “been around the block a few times.” He continued by stating that as an experienced defense attorney he knew that the jury would not receive a certain photograph until they forgot its significance. This “trick,” the prosecutor explained, is employed by experienced defense attorneys in an effort to confuse the jury and has been employed by the defense attorney throughout the trial.

The prosecutor then described to the jury how the defense attorney attempted to mislead the jury by “dirtying the victim.” He explained that the defense attorney tried to make the jury dislike the surviving victim in an effort to discredit her testimony. He further informed the jury that when the defense has no facts favorable to his side, the defense attorney will “dirty the victim” so that the jury is apathetic about convicting the defendant. The prosecution concluded its discussion of defense tactics by stating, “We are subject to these types of tactics, and jurors like yourselves let people like Bobby [sic] Clark go free.”

Defendant contends that the prosecutor’s remarks from opening statement through 19 pages of closing arguments prejudiced him.

We find that the prosecutor’s conduct was improper and substantially prejudiced defendant’s right to a fair trial. Here, as in People v. Suggs (1977), 50 Ill. App. 3d 778, 365 N.E.2d 1118, the prosecutor’s accusations of trickery on the part of defense counsel tended to arouse the jury’s antagonism against defendant and his attorney. Further, it created a trial of the defense attorney rather than a determination of defendant’s innocence or guilt. (See also People v. Stock (1974), 56 Ill. 2d 461, 309 N.E.2d 19; People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) We realize that there is considerable evidence which would sustain defendant’s conviction, as there was in the case of People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880. As stated therein, this fact operates to present the issue, not to resolve it. One accused of a crime is entitled to a fair trial regardless of the proof against him. (62 Ill. 2d 114, 119, 338 N.E.2d 880, 883.) Therefore, the repeated verbal attacks on defense counsel, far exceeding permissible courtroom decorum, violated defendant’s right to a fair trial. Suggs.

The fact that the accusations were made during the prosecution’s opening statement makes them even more reprehensible. This is so because the prosecutorial misconduct was unprovoked and had the effect of directing the jury to view the defense’s evidence, that had not yet been presented, with suspicion. The improper comments were emphasized when the prosecutor repeated them in closing arguments. Under these circumstances, the prosecutor’s repeated comments that the defense attorney engaged in “attorney’s tricks,” “sleight of hand,” and “dirtying the victim” were sufficiently prejudicial to warrant reversal. However, other areas of prosecutorial misconduct also contribute to our conclusion that defendant was denied a fair trial.

The record shows that the prosecutor created the impression that the defense attorney was hiding evidence:

“*** [I]f we didn’t prove that the victim was once alive and then killed *** [defense attorney] could make a motion outside your presence to dismiss these charges. He also knows that you don’t know that.
(Objection overruled.)
We have to prove great bodily harm to you. He knows if we didn’t bring [certain witnesses] in, he could make a motion to dismiss these charges outside your presence and the case would go away.
(Objection overruled.)
And you don’t know about that.
* * *
Where is the blood on the defendant’s clothes? I don’t know ***. The defendant knows where those bloody clothes are if there ever was any blood on any clothes. Think about this ***.
Don’t you see what lawyers do to the evidence?
* * *
[Defense counsel] asked us why we didn’t bring in this photograph, well, where is Roberta, ladies and gentlemen, if she is so important. Where is she? They have the power of subpoena just like we do. The judge will enforce any subpoena they issue. That’s all the power we’ve got *** [Roberta] is gone with the wind, ladies and gentlemen, because she wouldn’t help this case.”

Remarks that a jury was prevented from hearing certain evidence because of defendant’s actions have been repeatedly held to be reversible error. (People v. Hovanec (1976), 40 Ill. App. 3d 15, 351 N.E.2d 402. See also Anderson v. Universal Delta (1967), 90 Ill. App. 2d 105, 234 N.E.2d 21, and cases cited therein.) The instant case is also analogous to People v. Lopez (1980), 89 Ill. App. 3d 456, 411 N.E.2d 1071, wherein this court held that the prosecutor’s conduct of informing the jury that defendant kept from them evidence which supported the State’s case constituted reversible error. The comments as set forth above have the same import. The prosecutor was attempting to make it appear to the jury that defendant was trying to keep unfavorable evidence from them. People v. Hovanec (1976), 40 Ill. App. 3d 15, 17, 351 N.E.2d 402, 404.

Defendant’s right to a fair trial was also violated when the prosecutor injected his personal opinion into the case. His statement, “I believe that this case is overwhelming,” was improper. An assistant State’s Attorney may not express his personal opinion of the strength of the State’s case or of defendant’s guilt. People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.

We have thoroughly examined the entire record and are compelled to conclude that the misconduct of the prosecutor deprived defendant of a fair trial. While no single act would necessarily require reversal, the cumulative impact of the errors may have affected the jury’s verdict. (People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924.) Moreover, the frequency of the prosecutor’s misconduct, together with the trial judge’s failure to sustain the objections and adequately admonish the jury, vitiated any curative effect resulting from the instruction that comments of counsel should not be considered. (Suggs.) A prosecutor must demonstrate respect and due regard for defendant’s constitutionally protected right to a fair and impartial trial. People v. Brown (1983), 113 Ill. App. 3d 625.

For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand the case for a new trial.

Judgment reversed; cause remanded for a new trial.

BUCKLEY, P.J., and CAMPBELL, J., concur.