People v. McCullum ( 2008 )

JUSTICE NEVILLE,

dissenting:

The State’s evidence established that defendant fatally shot the victim. The defendant’s psychiatrists testified and opined, one during the pretrial proceedings and the other during the trial, that the defendant was insane at the time of the shooting and that he lacked substantial capacity to appreciate the criminality of his actions. The State did not present a psychiatrist or any other evidence, during its case in chief or its rebuttal, that rebutted the defendant’s evidence of insanity; therefore, the defendant proved by clear and convincing evidence that he was insane at the time of the murder. Accordingly, I respectfully dissent because the defendant proved that he was insane at the time of the murder.

THE PRETRIAL PROCEEDINGS

In order to determine if the trial court’s finding, that the defendant was not insane (did not appreciate the criminality of his conduct) at the time of the murder but was guilty and suffering from a mental illness (did appreciate the criminality of his conduct), was against the manifest weight of the evidence, we must examine the evidence introduced at the trial. On May 2, 2003, Dr. Fidel Echevarria, a staff psychiatrist from Forensic Clinical Services,² opined that the defendant was unfit to stand trial and that the defendant was suffering from significant psychotic processing and was subject to involuntary hospitalization. The trial court relied on Dr. Echevarria’s first unfitness opinion. On September 4, 2003, Dr. Echevarria opined that the defendant was fit to stand trial with medication. The trial court relied on Dr. Echevarria’s second fitness opinion and found the defendant fit to stand trial with medication.

On January 8, 2004, Dr. Echevarria opined that the defendant was legally insane at the time of the alleged offense. The opinion was based on “the documented evidence that the defendant was manifesting psychotic thought processing and behaviors at about the time of his arrest.” Dr. Echevarria further opined that, given the defendant’s “psychiatric history and the fact that the defendant was noncompliant with medication treatment, it is more likely than not that at the time of the alleged incident, the defendant would not have had capacity to appreciate the criminality of his alleged actions due to the presence of psychotic thoughts which directed his behavior.” Finally, the trial court refused to rely on Dr. Echevarria’s opinion that the defendant was insane at the time of the offense.

The State asked the trial court for a second opinion, and the judge ordered Forensic Clinical Services to reexamine the defendant and express an opinion on his sanity at the time of the offense. On May 3, 2004, Dr. Roni Seltzberg, a staff psychiatrist from Forensic Clinical Services, opined that the defendant was legally insane at the time of the alleged offense.

After Dr. Echevarria and Dr. Seltzberg opined that the defendant was insane at the time of the offense, the State requested that Dr. Henry, the third psychiatrist from Forensic Clinical Services, evaluate the defendant’s sanity at the time of the offense. The trial court granted the State’s request, but the doctor never testified at the trial.³

THE STATE’S CASE

The State called two White Castle employees and two restaurant patrons to testify about the events surrounding the shooting. The State’s witnesses testified that the defendant walked up to the victim, shot him numerous times, and fled the restaurant. In addition, Tommy Marsh, one of the patrons, testified that he did not see the defendant engage in any bizarre behavior. Officer Joseph Carroll, one of the arresting officers, testified that the defendant did not show any confusion as to who the officers were. Officer Daniel O’Connor, one of the officers who was present when the defendant was brought back to the restaurant, testified that he did not notice the defendant engage in any bizarre behavior. The State also played the White Castle security tape. According to Detective Lazzara, the defendant got up and stood by the door facing the street. Approximately five minutes later, the defendant moved from the entrance, stood near the security guard, and began walking and shooting. Finally, the defendant exited the restaurant and ran across the parking lot.

THE DEFENDANT’S CASE

Dr. Seltzberg testified that, at the time of trial, she had worked full time at the Forensic Clinical Services as a forensic psychiatrist for 12 years. The first time she saw the defendant was in 1998 when he was referred for an evaluation on a misdemeanor assault charges. Dr. Seltzberg opined that the defendant had a psychotic disorder and was prescribed an antipsychotic medication.

The second time she saw the defendant was on February 13, 2004, and then on April 22, 2004. Prior to her February 13, 2004, evaluation, she reviewed a number of defendant’s documents: (1) a 1997 arrest report that indicated defendant had paranoid ideas and delusions and indicated that the defendant was discharged from the United States Marines because of a mental illness; (2) her previous report from 1998; (3) the medication profile from Cermak Health Services stating that the defendant was prescribed antipsychotic medication; (4) Dr. Echevarria’s reports in which he opined that the defendant was fit with medication to stand trial but was insane at the time of the offense; (5) the police reports from the instant shooting; and (6) a police report alleging that the defendant might have been the person who was asked to leave the restaurant prior to the shooting.

After meeting with defendant on February 13, 2004, Dr. Seltzberg reviewed the Veterans Administration (VA) Hospital records from 1984 which indicated that the defendant was delusional and believed that the Central Intelligence Agency and Federal Bureau of Investigation were trying to sabotage him and that he had auditory hallucinations. She also reviewed reports indicating that the defendant was admitted to the hospital in 1993, 1996, and 1998. Dr. Seltzberg reviewed the McNeal Hospital records which indicated that the defendant was in the hospital from July 18 until July 26, 2001, and diagnosed with paranoid schizophrenia. After the defendant was released from McNeal Hospital, he was transferred to the VA for outpatient treatment. The VA records noted that defendant stopped taking his medications. Therefore, the defendant was prescribed anti-psychotic medications and released.

Dr. Seltzberg also testified that she reviewed the August 2002 VA records, which indicated that the defendant had been absent for three months but was taking his medication and doing well. The doctor also noted that “for years” the defendant did not comply with treatment and only became compliant when he was in trouble with the law. However, Dr. Seltzberg testified that the VA records indicated that the defendant went into remission with “Alansopin,”⁴ an antipsychotic agent.

Dr. Seltzberg testified that during her meeting with the defendant on April 22, 2004, she asked the defendant to talk about the incident leading to his arrest. The defendant said he had not been taking his medication because it made him drowsy. The defendant also told Dr. Seltzberg that, after he felt threatened by a man with a tattoo, he climbed through a window at his father’s house and took a gun for protection. On the day of the shooting, he began to feel sleepy as he drank his coffee at the White Castle. The defendant reported that he observed the security guard and the employees “signaling” and thought they had done something to his coffee. The defendant felt threatened because the security guard had a gun, and he shot the guard in the head. The defendant ran toward the mosque for asylum and kicked the gun so the police would not get it.

Dr. Seltzberg diagnosed the defendant as chronic paranoid schizophrenic. She testified that there was no evidence of malingering; in fact, the defendant tried to minimize or deny any psychotic behaviors. She opined that the defendant was legally insane at the time of his offense because his prior history was consistent with violent and aggressive behavior, that there was evidence of schizophrenia, and that he was acutely psychotic at the time of the incident.

THE STATE’S REBUTTAL

The State called Melvin Mickens, a Chicago police officer who also worked as a security guard, and Larry McCullum, the defendant’s father, in rebuttal.

ANALYSIS

In Illinois, “[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 to appreciate the criminality of his conduct.” 720 ILCS 5/6 — 2(a) (West 2002). A person who was not insane at the time of the commission of the criminal offense, but was suffering from a mental illness, may be found guilty but mentally ill. 720 ILCS 5/6 — 2(c) (West 2002). In the Criminal Code, “mentally ill” means “a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior.” 720 ILCS 5/6— 2(d) (West 2002). When the defendant asserts the affirmative defense of insanity, the court may find the defendant guilty but mentally ill if the court finds: (1) that the State has proved beyond a reasonable doubt that the defendant is guilty of the offense charged; (2) that the defendant has failed to prove his insanity; and (3) that the defendant has proved by a preponderance of the evidence that he was mentally ill at the time of the offense. 725 ILCS 5/115 — 3(c) (West 2002). The defendant must prove by clear and convincing evidence that he is not guilty by reason of insanity. 720 ILCS 5/6 — 2(e) (West 2002).

In this case, the trial court found that the defendant failed to prove his insanity, by clear and convincing evidence, as required by section 115 — 3(c) of the Code of Criminal Procedure of 1963. 725 ILCS 5/115 — 3(c) (West 2002). A fact finder’s resolution of the issue of the defendant’s sanity at the time of the offense will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence. People v. Urdiales, 225 Ill. 2d 354, 428 (2007), citing People v. Johnson, 146 Ill. 2d 109, 128-29 (1991). A finding is against the manifest weight of the evidence if the opposite conclusion is clearly evident or if the finding is unreasonable, arbitrary, or not based on the evidence presented. People v. Deleon, 227 Ill. 2d 322, 332 (2008), citing In re D.F., 201 Ill. 2d 476, 498 (2002).

After reviewing the State’s case in chief, the defendant’s case, and the State’s rebuttal, it is clear that this is not a case (1) where there is substantial disagreement among the testifying experts (see People v. Baker, 253 Ill. App. 3d 15, 28 (1993), citing People v. Williams, 201 Ill. App. 3d 207, 216-17 (1990)), (2) where Dr. Seltzberg’s opinion suffered from a failure to consider relevant authorities or information concerning the defendant (see Baker, 253 Ill. App. 3d at 28, citing Williams, 201 Ill. App. 3d at 218), or (3) where Dr. Seltzberg ignored information that was contrary to her opinion (Baker, 253 Ill. App. 3d at 28, citing People v. Jackson, 170 Ill. App. 3d 77 (1987)). Indeed, Dr. Seltzberg’s opinion that the defendant was insane at the time of the murder was supported by Dr. Echevarria, who testified during the pretrial proceedings. It should be noted that both psychiatrists were employed by the Cook County Forensic Clinical Services office, that they examined the defendant pursuant to court order, and that their opinions were based upon a reasonable degree of medical certainty. See Baker, 253 Ill. App. 3d at 28 (noting that the experts were bolstered by the fact that they were employed by the psychiatric institute). I note that the trial court judge qualified Dr. Seltzberg as a medical expert, relied on Dr. Seltzberg’s opinion that defendant was a chronic paranoid schizophrenic, and then, although the medical expert’s testimony was unrebutted and there was no medical evidence in the record to support the court’s conclusion, rejected Dr. Seltzberg’s opinion that defendant was insane at the time of the murder and lacked substantial capacity to appreciate the criminality of his conduct. See People v. Wilhoite, 228 Ill. App. 3d 12, 28 (1991), quoting People v. Arndt, 86 Ill. App. 3d 744, 749 (1980) (“ ‘it does not seem that the [trial] court questioned the credibility of the psychiatrists, but rather that it drew different conclusions than they did’ ”); see also People v. Garcia, 156 Ill. App. 3d 417, 424 (1987); Baker, 253 Ill. App. 3d at 28.

The trial court’s finding (1) that defendant was not insane, and (2) that defendant did not lack substantial capacity at the time of the murder to appreciate the criminality of his conduct is contrary to the following evidence: (1) Dr. Seltzberg’s unrebutted testimony and defendant’s medical records, which established that the defendant’s psychosis went into remission with an antipsychotic medication; (2) Dr. Seltzberg’s unrebutted testimony that defendant told her he had not been taking his medication; and (3) Dr. Seltzberg’s unrebutted testimony that defendant was insane on October 31, 2002. I believe that the psychiatrist’s unrebutted testimony and the medical records established beyond a reasonable doubt that the defendant was insane at the time of the murder and that the defendant lacked the substantial capacity to appreciate the criminality of his conduct. I submit, given the unrebutted testimony from the psychiatrist, that the defendant proved by clear and convincing evidence that he was not guilty by reason of insanity. Therefore, the trial judge’s finding that the defendant was mentally ill and appreciated the criminality of his behavior was against the manifest weight of the evidence because the finding was not based on any medical evidence in the record.

CONCLUSION

In conclusion, in order for the trial court to find the defendant guilty but mentally ill, section 115 — 3 of the Code of Criminal Procedure required the trial court to find that the defendant failed to prove his insanity. 725 ILCS 5/115 — 3 (West 2002). Dr. Seltzberg’s opinion testimony that the defendant was insane at the time of the murder was unrebutted, therefore, the defendant proved his insanity with his medical records and with Dr. Seltzberg’s clear and convincing unrebutted testimony. Because the defendant proved his insanity, the trial court’s findings, that the defendant was mentally ill and appreciated the criminality of his conduct, were against the manifest weight of the evidence. Accordingly, I would (1) reverse the judgment of the trial court, and (2) remand the case to the trial court with directions (a) to enter a judgment of not guilty by reason of insanity, and (b) to hold a hearing, pursuant to the Mental Health and Developmental Disabilities Code (405 ILCS 5/1 — 100 et seq. (West 2002)), to determine whether the defendant is subject to involuntary admission. 725 ILCS 5/115 — 3(b) (West 2002).

2 Forensic Clinical Services is one of the circuit court of Cook County’s 13 nonjudicial offices. It (1) provides comprehensive and diagnostic clinical services to the court and related agencies under the court’s jurisdiction, (2) employs psychiatric, psychological and social service methods in the delivery of clinical services, (3) submits clinical opinions and recommendations to the court, and (4) provides expert witness testimony where mandated.

3 At sentencing, defendant’s counsel stated that Dr. Henry opined that the defendant was insane at the time of the offense.

4 “Alansopin” is the phonetic spelling of the drug.