People v. Dwight

SECOND DIVISION
November 21, 2006
No. 1-05-1898
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
MARCUS DWIGHT, ) Honorable
) Paul J. Nealis,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
The jury heard evidence that on November 20, 2000, the
defendant Marcus Dwight robbed Bertha Gonzalez at gunpoint. He
took her cell phone, phone charger, and work identification card.
The jury found the defendant guilty of armed robbery and the
trial court sentenced him to 10 years in prison. Dwight does not
deny he committed the armed robbery. The issues he raises in
this appeal have to do with the trial court’s refusal to instruct
the jury on the defense of insanity.
We find the instructions should have been given. For that
reason, we reverse the defendant’s conviction and remand this
cause for a new trial.
FACTS
Voir Dire
Before jury selection defense counsel requested that the
1-05-1898
trial judge ask potential jury members whether they had any
history or experience in their families of psychological illness
or treatment. Defense counsel agreed to two follow-up questions
suggested by the trial judge: (1) "would that influence your
opinion one way or the other as to any testimony that you may
receive from a psychiatrist or a psychologist?" and (2) "the
Defense in this case is raising the issue of insanity; would that
pose any problems?" The State requested the following question:
"Do You believe that a person can have a mental illness or
disorder and still be guilty of a crime as charged?" Defense
counsel told the court he had no objection to the State's
question. The judge asked the question of every juror impaneled.
The judge never asked jurors if the insanity defense would pose
any problems for them, but he did ask the other question proposed
by defense counsel.
Trial Testimony
At trial, Bertha Gonzalez testified that on November 20,
2000, she was sitting in her parked van when a red car pulled up
alongside her car and parked. Defendant got out of the car,
approached her van, and stood next to the driver’s side window.
She rolled down the window about four inches. Defendant asked
her where 13th Street was, and she told him. Defendant looked
around inside her car. He said, "Ma’am, I don’t want to hurt
2
1-05-1898
you, but I want you to give me something." Gonzalez said,
"What?" Defendant repeated the statement. Gonzalez said, "Well,
what do you want?" Gonzalez asked defendant if he wanted an Avon
book, and he said no. Defendant then asked Gonzalez to be his
girlfriend and asked her to engage in a sex act. Gonzalez said
no. Defendant said he didn’t want to hurt her, but that he had a
gun. He then pulled a gun from his pocket. He pointed the gun
at Gonzalez and held it so that only she could see it.
Defendant said he didn’t want to hurt her and asked her for
her cell phone. She gave the phone to him. Defendant then asked
for her cell phone charger. She gave him the charger. Defendant
then asked her for her picture time card, which she used for
work. The card was visible underneath the radio. Gonzalez told
defendant the card was not a credit card but a time card. He
said he just wanted something with her picture on it. She gave
him the card. Defendant then said he wanted a kiss. Gonzalez
told him no. Defendant left.
Gonzalez also testified that after giving defendant
directions he said, "What do you have for me?" She asked him
what he meant. He asked her if she had any money, and she said
she didn’t have any. She said the defendant did not take her
purse or credit cards. Her purse was next to her and not in view
of the defendant.
3
1-05-1898
Gonzalez reported the crime to the police and identified
defendant in a photo array and a lineup. The State introduced
evidence that a fingerprint impression taken from Gonzalez’s car
window matched defendant’s fingerprint samples.
Shalonda Dwight, defendant’s wife, testified that at the
time of the offense she was dating the defendant and saw him on a
daily basis. In October 2000, she noticed changes in defendant’s
demeanor and temperament that lasted for a couple months. He
became very paranoid, anxious, and frantic. He spoke loudly and
cursed frequently. Before that time, he was laid-back and
relaxed. Defendant exhibited paranoia by looking out the windows
and asking who was on the phone or at the door. Defendant was
not sleeping at night. Sometimes at night he would go outside
and watch TV in the car. He usually was a neat and clean person,
but his appearance changed.
Annie Dwight, defendant’s mother, testified defendant
exhibited significant changes in his behavior in October 2000.
He seemed very depressed. He told her he needed to see a doctor.
He was sleeping only one or two hours a night for three or four
days at a time. He was playing loud music, drinking, and waking
up the neighbors at 3 a.m. He became very paranoid. He told his
parents the FBI was trying to kill him. He thought the sound of
a car backfiring was the CIA shooting at him. He told his
4
1-05-1898
parents he was God and hit his bedroom door with his fist until
his fist bled.
The State made a motion to exclude Dr. James Corcoran, a
forensic psychiatrist, from testifying because he could not opine
whether defendant was insane at the time of the offense. Defense
counsel told the court Dr. Corcoran would testify that it was
more likely than not the defendant was insane at the time of the
offense. The court allowed Dr. Corcoran to testify but reserved
its ruling on the insanity instruction until after trial.
Dr. Corcoran testified he evaluated the defendant on June 1,
2003, and June 16, 2004. Dr. Corcoran said defendant’s symptoms
as reported by defendant’s girlfriend and mother were consistent
with bipolar or manic depressive illness. The description of the
offense in the police report contributed to Dr. Corcoran’s
diagnosis because hypersexuality is a common symptom of an
unmedicated bipolar disorder.
On October 26, 2000, the defendant’s mother took him to see
Dr. Ruben Nichols. He saw Dr. Nichols again on November 3 and
November 9, 2000. Dr. Nichols diagnosed defendant with
situational anxiety and put him on a work restriction. Dr.
Nichols referred him to Dr. Love, a psychiatrist. Dr. Love
evaluated the defendant on four occasions in January and February
2001. Dr. Love stated defendant was displaying a progressively
5
1-05-1898
depressed mood, agitation, an angry, hostile affect, and paranoid
delusional thinking. Dr. Love diagnosed defendant with paranoid
delusional disorder and major depression with recurrent psychotic
features. The defendant declined anti-psychotic medication and a
referral for inpatient treatment.
The defendant told Dr. Corcoran he was unable to recall the
incident of November 20, 2000. He recalled being told by his
mother that he had a court date in Indiana and driving around in
his car. He remembered receiving a call that the police were
looking for him, but he did not know why. Dr. Corcoran said a
person with unmedicated bipolar disorder may have memory problems
because of racing thoughts. Dr. Corcoran believed defendant
created an alibi or was malingering in his report to Dr. Henry.
The defendant also may have been experiencing a residual paranoia
even though he was on medication at that time.
Dr. Corcoran concluded defendant was suffering from bipolar
effective disorder, a severe psychiatric illness, at the time of
the offense. He said he could not give a formal opinion
regarding whether defendant was legally insane at the time of the
crime because the defendant could not say what was going on in
his mind at the time of the incident. Dr. Corcoran could not
state an opinion on defendant’s sanity to a reasonable degree of
medical and scientific certainty.
6
1-05-1898
On cross-examination, Dr. Corcoran testified he had read Dr.
Henry’s report in which defendant described in detail his
activities on November 20, 2000. The State read the report to
the jury, but the report was not admitted into evidence.
The State called Dr. Jonathan Kelly, a psychiatrist employed
by Forensic Clinical Services for the Circuit Court of Cook
County, as a rebuttal witness. Dr. Kelly said he interviewed the
defendant on June 1, 2004. He took over the case from Dr. Henry.
The defendant told Dr. Kelly he did not recall what happened on
November 20, 2000, or what had happened during the two prior
months. However, defendant’s answers to some questions showed he
had some memory. Dr. Kelly said the most logical explanation was
that defendant was malingering, i.e., fabricating a psychological
or physical symptom to avoid criminal prosecution. Dr. Kelly did
not observe any medical or psychiatric reason that would explain
the memory loss. He diagnosed defendant with bipolar disorder,
in remission with medications, and a history of alcohol and
cannabis abuse.
Dr. Kelly said a person may have bipolar disorder but not be
legally insane. He said most people with bipolar disorder do not
commit criminal offenses. Dr. Kelly’s opinion, within a
reasonable degree of medical and psychiatric certainty, was that
defendant was legally sane at the time of the offense. The
7
1-05-1898
following factors supported his opinion: (1) defendant had no
psychotic symptoms at the time of the offense that prevented him
from knowing what he was doing was wrong; (2) he had a non-
psychotic motive for the crime--obtaining money or possessions
from the victim; (3) the criminal behavior was goal-oriented,
organized and not bizarre; (4) the behavior reflected prior
planning in that defendant was armed with a handgun; (5)
defendant pointed a gun at the victim while demanding money,
showing criminal intent; (6) defendant’s flight from the crime
scene, failure to surrender himself to the police, and disposal
of the gun showed knowledge of the wrongfulness of his conduct;
(7) defendant did not require psychiatric hospitalization at the
time of the offense; and (8) at the time of the offense,
defendant was not homicidal or suicidal and was able to provide
for his own physical needs.
On cross-examination, Dr. Kelly admitted defendant’s
mother’s description of defendant’s behavior in October and
November 2000 was consistent with a manic episode, and the
mother’s reported observations could be seen as psychotic
symptoms. He said defendant told him he had suicidal thoughts in
October 2000 and had played Russian roulette by placing a gun to
his head then shooting at the wall. Dr. Kelly said he did not
think there was sufficient information to say defendant qualified
8
1-05-1898
for a manic episode every day in October and November. In Dr.
Kelly’s interview with the defendant, the defendant "indicated he
did not have symptoms, psychotic symptoms in particular, that
interfered with his knowledge of what he was doing was wrong or
against the law."
During the jury instructions conference, the court denied an
insanity instructions. The court found, based on the evidence,
no reasonable man could find the defendant was insane at the time
of the offense. The court allowed an instruction and a verdict
form for the jury to find defendant guilty but mentally ill.
The jury returned a general verdict of guilty and did not
find defendant guilty but mentally ill. The court sentenced
defendant to 10 years in prison.
DECISION
I. Insanity Instruction
Defendant contends he was denied a fair trial when the court
refused his request for jury instructions on insanity. The trial
court refused to allow the instructions because defendant had the
“burden to prove by clear and convincing evidence that [he] was
insane at the time of the offense and no such proof was presented
as to that.”
A defendant is legally insane under Illinois law if, “as a
result of mental disease or mental defect, he lacks substantial
9
1-05-1898
capacity to appreciate the criminality of his conduct.” 720 ILCS
5/6-2(a) (West 2004). The law presumes that all persons are
sane. People v. Williams, 201 Ill. App. 3d 207, 558 N.E.2d 1258
(1990). But the presumption serves no useful purpose when the
issue of a defendant’s sanity is clearly raised. People v.
Childs, 51 Ill. 2d 247, 256-58, 281 N.E.2d 631 (1972). It is the
defendant’s burden “to prove by clear and convincing evidence
that the defendant is not guilty by reason of insanity.” 720
ILCS 5/6-2(e) (West 2004).
Insanity is an affirmative defense. 720 ILCS 5/6-4 (West
2004). To raise any affirmative defense, the defendant must
present “some evidence” of the defense. 720 ILCS 5/3-2(a) (West
2004). Courts have interpreted the “some evidence” standard to
be “enough evidence so that, if believed, it would be sufficient
for a reasonable jury to find in [the defendant’s] favor.”
People v. Jordan, 247 Ill. App. 3d 75, 92, 616 N.E.2d 1265 (1993)
(defense of justification); see also People v. Everette, 141 Ill.
2d 147, 157, 565 N.E.2d 1295 (1990) (self-defense), People v.
Cord, 258 Ill. App. 3d 188, 192, 630 N.E.2d 173 (1994) (defense
of necessity).
Courts consider the standard of proof when deciding whether
an insanity instruction must be given. For example, in People v.
Moore, the court held a defendant is entitled to instructions on
10
1-05-1898
insanity “only if there is sufficient evidence to support a
jury’s finding of insanity by a preponderance of the evidence.”
147 Ill. App. 3d 881, 886, 498 N.E.2d 701 (1986); see also People
v. Williams, 235 Ill. App. 3d 638, 648, 601 N.E.2d 1070 (1992)
(“[d]efendant is entitled to instructions on insanity only where
a jury’s finding of insanity would be supported by a
preponderance of the evidence”). At the time Moore and Williams
were decided, the standard of proof for an insanity defense was
“preponderance of the evidence.” See Moore, 147 Ill. App. 3d at
884-85, citing Ill. Rev. Stat. 1983, ch. 38, pars. 3-2, 6-2.
That standard changed before the events of this case took place.
In 1995, the legislature changed a defendant’s burden of proof
for an insanity defense to “clear and convincing evidence.” 720
ILCS 5/6-2 (e) (West 2004).
The federal statute defining the affirmative defense of
insanity is very similar to the Illinois statute. The Insanity
Defense Reform Act of 1984 provides:
"(a) Affirmative defense.--It is an
affirmative defense to a prosecution under
any Federal statute that, at the time of the
commission of the acts constituting the
offense, the defendant, as a result of a
severe mental disease or defect, was unable
11
1-05-1898
to appreciate the nature and quality or the
wrongfulness of his acts. Mental disease or
defect does not otherwise constitute a
defense.
(b) Burden of proof.--The Defendant has the
burden of proving the defense of insanity by
clear and convincing evidence." 18 U.S.C. §
17 (1984).
The United States Court of Appeals for the 11th Circuit
held, under this insanity statute, “a federal criminal defendant
is due a jury instruction on insanity when the evidence would
allow a reasonable jury to find that insanity has been shown with
convincing clarity.” United States v. Owens, 854 F.2d 432, 435
(11th Cir. 1988). “The trial judge must construe the evidence
most favorably to the defendant.” Owens, 854 F.2d at 436.
In a determination of defendant’s sanity, a trier of fact
may reject all expert testimony and base its determination solely
on lay testimony. People v. West, 231 Ill. App. 3d 646, 650-51,
596 N.E.2d 740 (1992). Of particular relevance are observations
by lay witnesses made shortly before or after the crime was
committed. West, 231 Ill. App. 3d at 651. Other relevant
factors include the defendant’s plan for the crime and methods to
prevent detection. People v. Gilmore, 273 Ill. App. 3d 996,
12
1-05-1898
1000, 653 N.E.2d 58 (1995). A defendant’s unusual behavior or
bizarre or delusional statements do not compel a finding of
insanity, and a defendant may suffer from a mental illness
without being legally insane. Gilmore, 273 Ill. App. 3d at 1000.
The State contends the defendant did not meet his burden of
presenting sufficient evidence for insanity instructions because
no witness testified that at the time of the offense defendant
lacked substantial capacity to appreciate the criminality of his
conduct.
We find no authority to support the proposition that a
defense witness has to say the defendant, due to mental illness
or disease, lacked the substantial capacity to appreciate the
criminality of his conduct when he committed the offense. In
People v. Smothers, 55 Ill. 2d 172, 175, 302 N.E.2d 324 (1973),
our supreme court held the failure of a witness to express an
opinion on defendant’s sanity does not decide the issue of
whether defendant has raised the affirmative defense. Where
there is sufficient evidence based on the testimony and
observations of the witnesses to support the defense, the absence
of opinion evidence is immaterial. Smothers, 55 Ill. 2d at 175.
Neither psychiatric testimony nor medical or lay opinion is
necessary to give the instructions if the evidence itself reveals
serious mental defects or a substantial history of mental
13
1-05-1898
illness. People v. Childs, 51 Ill. 2d 247, 257, 281 N.E.2d 631
(1972); People v. Lono, 11 Ill. App. 3d 443, 448, 297 N.E.2d 349
(1973).
In fact, in the federal courts, witnesses, whether expert or
lay, are prohibited from testifying to the ultimate issue of a
defendant’s "mental state or condition constituting an element of
the crime charged or a defense thereto. Such ultimate issues are
matters for the trier of fact alone." Fed. R. Evid. 704(b).
The issue we must determine is whether a reasonable jury,
hearing the testimony presented by the defense witnesses, could
find by clear and convincing evidence that the defendant, due to
his mental illness, lacked substantial capacity to appreciate the
criminality of his conduct at the time of the crime.
What did the jury hear? At or near the time of the crime
the defendant’s behavior had changed markedly. His appearance
became unkempt, not neat and clean as he had been. He spoke
loudly and cursed a great deal. He was paranoid, anxious, and
frantic. He was depressed. He watched TV in his car. He told
members of his family the FBI was trying to kill him and the CIA
was shooting at him. He said he was God--and hit a door until
his fist bled. Then there are the bizarre facts of the offense.
No medical witness opined that defendant was insane at the
time of the crime, but each ascribed a mental illness to the
14
1-05-1898
defendant. Dr. Corcoran found the defendant suffered from a
bipolar effective disorder or a manic depressive illness. He
referred to it as a "severe psychiatric disease." Dr. Love’s
findings of February 2001 were testified to. They described the
defendant as having a paranoid delusional disorder and major
depression with recurrent psychotic features. Dr. Kelly, the
State’s witness, relying on a June 1, 2004, interview, about
three-and-one-half years after the offense, described the
defendant as having a bipolar disorder in remission with
medication. On cross-examination, Dr. Kelly agreed Mrs. Dwight’s
reported observations could be seen as psychotic symptoms.
Our review of the decisions does not disclose any bright
line that establishes the occasion for giving the insanity
defense instructions. It remains a matter for the exercise of
judicial discretion. See People v. Douglas, 362 Ill. App. 3d 65,
76, 839 N.E.2d 1039 (2005) (A trial court’s refusal to issue a
specific jury instruction is reviewed under an abuse of
discretion standard). We can say the trial court must look for
the presence of evidence that supports the instructions, avoiding
the temptation to make judgments about the weight of it.
We find there was adequate evidence to place the issue of
defendant’s sanity before the jury. The jury was free to accept
it or reject it, but it had to be properly instructed. Juries,
15
1-05-1898
not judges, weigh the evidence. Failure to instruct was
reversible error and it requires that this cause be remanded for
a new trial.
II. Other Issues
Because other issues raised by the defendant either fall by
the wayside on remand or have little merit we see no need for
extended discussion.
We do make these observations, applicable on remand,
assuming the testimony will be substantially similar to that of
the first trial:
(1) The trial should allow questions of potential jurors
directed to their attitude concerning the insanity defense. The
question of whether the insanity defense would pose problems for
the jury should be asked in some form, but can be more carefully
tailored to fit the case. See People v. Stack, 112 Ill. 2d 301,
313, 493 N.E.2d 339 (1986) (The insanity defense remains a
subject of intense controversy, known to be subject to bias or
prejudice); People v. Gregg, 315 Ill. App. 3d 59, 732 N.E.2d 1152
(2000).
(2) We see nothing wrong with the trial court asking
potential jurors, on remand, whether they "believe that a person
can have a mental illness or disorder and still be guilty of a
crime as charged."
16
1-05-1898
(3) We will not speculate on the contents of defense
counsel’s discussions with Dr. Corcoran, other than to say we
find nothing in the record that persuades us counsel did not
understand the legal standards for the presence of insanity.
(4) The trial court should, on request of counsel, instruct
the jury that testimony about the contents of reports not
admitted into evidence may be considered only for the purpose of
weighing the expert witness’s credibility or lack of it.
CONCLUSION
We reverse defendant’s conviction for armed robbery due to
the trial court’s failure to instruct the jury on the defense of
insanity. Because the evidence is sufficient to support a
finding of guilty, we remand this cause for a new trial.
Reversed and remanded.
HOFFMAN, and HALL, JJ., concur.
17