People v. Wilbur , 226 Ill. App. 3d 733 ( 1992 )

JUSTICE HAASE

delivered the opinion of the court:

The defendant is a 14-year-old tried as an adult for the murder of a neighbor woman in 1988. He made a full confession to killing her by cutting her throat and stabbing her 15 to 20 times. The defendant showed no remorse, and according to his parents, did not appear upset after the killing. The defendant suffers from learning disabilities. There is conflicting evidence as to whether he suffers from periodic violent outbursts. The defendant raised the defense of insanity, and his expert testified that the defendant was, in fact, insane at the time of the murder and was suffering from schizophrenia. The State’s expert testified that the defendant was sane at the time of the commission of the crime. The State asked for a guilty but mentally ill instruction, and the court instructed the jury on verdicts of guilty, not guilty, not guilty by reason of insanity, and guilty but mentally ill (GBMI). The jury returned a verdict finding the defendant guilty but mentally ill, and the court sentenced the defendant to 60 years. The defendant appeals, raising issues of the questioning of the jury in voir dire, the court’s giving of the guilty but mentally ill instruction on the evidence presented in this case, the impropriety of the prosecutor’s closing argument, and the court’s abuse of discretion in imposing a sentence of 60 years. We affirm.

First, the defendant contends the trial court erred in conducting voir dire. The defendant made a motion prior to trial requesting the court to question prospective jurors about their beliefs as to (1) the State’s burden of proof; (2) that the defendant is presumed innocent; (3) that the defendant does not have to present any evidence on his behalf; (4) that the defendant’s failure to testify may not be held against him; and (5) that the defendant assumes the burden of proving insanity. The court held a conference with the attorneys in chambers and agreed to explore these topics with prospective jurors. The court also agreed to allow the attorneys to ask prospective jurors any follow-up questions they felt might be necessary. The defendant made no objection during voir dire to the sufficiency of the questions posed by the judge, but did allege the questions were insufficient in his post-trial motion.

In particular, the defendant alleges that the court did not adequately explore the question of whether the possible veniremen would hold the defendant’s failure to testify against him. The judge admonished the veniremen as follows:

“I am going to instruct you at the end of this case about the law, and I will be asking you if you can follow the law, if you will follow the law as I give it to you, and apply the law to the facts as you find the facts to be ***. First of all, you should know the defendant is presumed innocent until he is proven guilty beyond a reasonable doubt by the State. The Defense need not produce any evidence, whatsoever, rather it is up to the State to produce evidence to convince you of the Defendant’s guilt.”

In People v. Zehr (1984), 103 Ill. 2d 472, the defendant tendered voir dire questions to the court dealing with the right of the defendant not to testify and the burden of proof. The court refused to ask the submitted questions. The court ruled that the proposed question violated the dictates of Supreme Court Rule 234; “Questions shall not directly or indirectly concern matters of law or instructions.” (87 Ill. 2d R. 234.) The Illinois Supreme Court reversed the defendant’s conviction. The court ruled that the defendant had the right to probe the undisclosed prejudices of prospective jurors. By failing to broach these questions to the veniremen, the defendant was denied his right to a fair and impartial jury.

The court also went on to note that the questions need not be asked in the manner requested by the defendant. Inquiries made of potential jurors are sufficient if they reasonably explore any prejudices prospective jurors might possess which would deprive the defendant of his basic constitutional right to a fair trial. (Zehr, 103 Ill. 2d at 477.) The court specifically rejected the notion that any one set of “patterned” questions is required.

In the case at bar, the court did broach to potential jurors questions concerning (1) the State’s burden of proof; (2) the presumption of innocence; and (3) that the defense need not present any evidence whatsoever. In addition, the court allowed counsel to ask follow-up questions during voir dire. It is true the court did not ask the questions as tendered by the defendant, but a thorough review of the record before us reveals that the trial court’s inquiries were sufficient.

Next, the defendant asserts that there was insufficient evidence to support a verdict of GBMI. The defendant’s expert, T.W. Mathews, opined that the defendant was unable to conform his behavior to the law. Mathews based his opinion on the fact that defendant heard “voices” and suffered from schizophrenia (a mental disease). The State’s expert, Robert Chapman, testified that he was not “floored” by Mathews’ - opinion, but he felt the defendant was not legally insane {i.e., he opined the defendant was able to conform his acts to the law). The question becomes whether the jury was free to accept Mathews’ opinion that the defendant suffered from a mental disease and simultaneously reject his conclusion that the defendant was insane.

The testimony of experts is judged by the same rules of weight and credibility which are applied to other witnesses. (Cannell v. State Farm Fire & Casualty Co. (1975), 25 Ill. App. 3d 907, 912, 323 N.E.2d 418, 422.) Discrepancies in testimony in evidence are matters for the jury’s consideration, and the jury is free to disregard an expert’s conclusions of fact. (Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 685, 418 N.E.2d 1079, 1085.) The weight to be accorded an expert’s opinion is measured in part on the factual details supporting his conclusions (People v. Kuhn (1979), 68 Ill. App. 3d 59, 64, 385 N.E.2d 388, 391), and the jury is not required to accept the opinions of experts concerning the defendant’s sanity. People v. Martin (1980), 87 Ill. App. 3d 77, 81, 409 N.E.2d 114, 118.

In People v. Hood (1990), 203 Ill. App. 3d 289, 560 N.E.2d 1187, for example, the defendant presented four expert witnesses who all opined the defendant was legally insane at the time of the offense. The State presented one expert who opined the defendant was not legally insane at the time of the offense. The trial court instructed the jury as to GBMI. The jury found the defendant “guilty but mentally ill.” The first district affirmed. The court ruled that a GBMI verdict may be predicated upon evidence presented by the defendant. The court held that the jury was free to accept the defense experts’ opinion that the defendant was mentally ill and simultaneously reject their conclusion that she was legally insane. We agree.

The State’s Attorney, during his closing argument, argued that the defendant had the burden of proving his insanity. That is clearly a correct statement of the law as it applies to the insanity defense to the charge of murder. The problem lies in this case with the fact that the legislature had not yet amended the guilty but mentally ill statute to place the proving of mental illness on the defendant by a preponderance of the evidence so that it was in total accord with the raising of the insanity defense.¹ The burden of the State at the time this case was tried was to prove all the elements of the crime beyond a reasonable doubt. The supreme court has commented on the statutory scheme in People v. Fierer (1988), 124 Ill. 2d 176, as follows:

“Under the new enactment, the defendant now bears the burden of proof of insanity by a preponderance for purposes of a not guilty by reason of insanity verdict, while at the same time the State bears the burden of proof of noninsanity beyond a reasonable doubt for purposes of the GBMI verdict.” 124 Ill. 2d at 185.

The defendant appears to argue that the State cannot separately and independently comment on the insanity defense he raises and the State’s burden of proving noninsanity for the purposes of guilty but mentally ill without in some way prejudicing him. The State’s argument to the jury that the defendant bore the burden of proving his insanity was clearly legally correct for purposes of his assertion of the defense of insanity, and the defendant concedes that if insanity was the only issue, the argument was acceptable. The jury instructions tendered by the court to the jury correctly stated the burden of proof on insanity and guilty but mentally ill. The defendant would require that the State argue the defendant’s total defense of insanity and the guilty but mentally ill requirements simultaneously. There is no such requirement.

There was no objection to the State’s argument, so in order for it to be reviewable now, it would have to be determined to be plain error. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) We do not believe the State’s argument represents plain error. We further point out that in order for the complaint regarding the argument to be the basis of a reversal it must have resulted in substantial prejudice so that the verdict would have been different had it not been made. (People v. Morgan (1986), 112 Ill. 2d 111, 132.) We decline to take an unobjected-to correct statement of the law as it applies to the insanity defense out of context and apply it to the guilty but mentally ill requirements to find error.

Lastly, the defendant contends that the trial judge abused his discretion in imposing the maximum nonextended-term sentence of 60 years on him. Defendant claims that the trial court discounted mitigating factors regarding the 14-year-old defendant and found aggravation in a situation that, due to the verdict of guilty but mentally ill, was questionable as a deterrent. The trial court is entitled to great deference in sentencing under our scheme provided that the sentence is based on the particular circumstances of each case. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In this case, the record reflects that the court properly considered all the statutory factors, and based on the attack on the victim of this crime, which the court characterized as brutal and heinous, given the defendant’s admitted attack on a woman with a knife in 1988 and evidence of his deterioration since he was in custody, it cannot be said that the 60-year sentence imposed is a clear abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 281, 412 N.E.2d 541, 548.

For the foregoing reasons, this court affirms the defendant’s conviction and sentence.

Affirmed.

GORMAN, J., concurs.

1 Effective January 1, 1990, the legislature has amended the guilty but mentally ill statute to place the burden of proving mental illness on the defendant by a preponderance of the evidence. Ill. Rev. Stat. 1989, ch. 38, par. 115—4(j).