Appeal from the Circuit Court of Cook County; the Hon. HERBERT
R. FRIEDLUND, Judge, presiding. Judgment affirmed.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 20, 1969.
In a jury trial the defendant was found guilty of armed robbery and sentenced to serve a term of 30 to 60 years in the State Penitentiary. His sole defense was insanity. On appeal he contends that he was not proved sane beyond a reasonable doubt, that erroneous forms of verdict were given to the jury, that the jury was improperly instructed on the issue of insanity and that the State's Attorney's closing argument was improper and prejudicial. The facts are not in dispute.
On February 15, 1965, at 7:15 p.m., defendant entered a jewelry store at 2721 Milwaukee Avenue in Chicago. He was wearing sunglasses and his hat was pulled down over his face. At gunpoint he ordered the owner and four employees to move to the rear of the store and to give him cash and "the big diamonds." As he was picking up the diamonds, one of the employees struck him and the owner grabbed for his gun. During the struggle the gun was fired four times, one shot going through the shoulder of another employee. A lengthy struggle ensued during which the defendant was hit over the head with a mirror and smashed repeatedly with the gun butt. Finally he ran out of the store through the front door and escaped in a waiting car which was driven by another man. The car was stopped in the vicinity of the crime by a police officer who later identified defendant. Defendant escaped from that encounter but was arrested the following day in a hotel. At the time of his arrest he denied he was Charles Count. He was taken to a police station where he admitted the crime.
A hearing was held to determine defendant's competency to stand trial. Dr. William H. Haines, director of the Behavior Clinic of the Criminal Court of Cook County, testified that defendant understood the nature of the charge and was able to cooperate with counsel. The case proceeded to trial and the facts as before related were proved by the State.
In support of defendant's plea of insanity his mother testified that as a child his behavior was unusual and that he had been destructive. Defendant testified that he did not remember any of the facts relating to the crime and that his memory had lapsed from the time he entered the jewelry store until the time of his arrest. Dr. Geoffrey L. Levy, a psychiatrist testifying for the defense, said that after a two-hour examination of defendant in the County Jail on January 12, 1966, it was his opinion that defendant suffered from an impulse character disorder, that certain of his impulses were "so compelling and impelling that he acts on the impulse, on the evoked impulse rather than assessing the situation as it really is," and that such impulses are "irresistible and overwhelming." He concluded that at the time of commission of the crime the defendant lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
Dr. Haines testified in rebuttal that from his examination of the defendant after the crime he could not form an opinion as to the defendant's sanity at the time of the crime and that no doctor could form an opinion as to defendant's sanity merely from an examination made after the crime, since anything defendant then said would be self-serving.
Defendant contends that the testimony of Dr. Levy that he was subject to irresistible impulses and that the crime was committed while he was under the influence of such an impulse was uncontradicted and unimpeached. From this the defendant argues that the State has not proved his guilt beyond a reasonable doubt.
A person is not criminally responsible for his 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. Ill Rev Stats, c 38, § 6-2 (1967). While a man is presumed to be sane, it is now the law of Illinois that once evidence of insanity is introduced, the ordinary presumption of sanity does not prevail and the burden devolves on the State to prove that at the time of committing the act, the accused was legally sane. People v. Le May, 35 Ill.2d 208, 220 N.E.2d 184. Accepting this principle as now laid down, we feel that the evidence in this case amply supports the submission of this issue to the jury and their finding of defendant's sanity at the time of the occurrence.
The record does not support defendant's contention that Dr. Levy's testimony as to defendant's insanity was uncontradicted and unimpeached. Dr. Haines testified that no psychiatrist could make an accurate assessment of defendant's impulses at the time of a crime committed eleven months earlier. He was of the opinion that anything defendant told a psychiatrist in an examination made for the purpose of determining his legal sanity would be self-serving and unreliable. This finds support in common sense and in People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466, where the court said (p 510):
"It is our rule that a doctor who examines a patient merely for the purpose of qualifying as a witness ordinarily may not testify as to his medical opinions based upon subjective symptoms described by the patient because of the absence from this relationship of the normal trustworthiness accompanying symptomatic descriptions by a patient to a treating physician."
While in the instant case Dr. Levy's testimony was admitted and no question is raised on that point, nevertheless the credibility and weight of such testimony is for the jury to decide.
In addition to Dr. Haines' testimony, other evidence adduced at the trial contradicted Dr. Levy's conclusion that defendant was acting under an irresistible impulse when he robbed the store. Dr. Levy in describing the effect of the alleged irresistible impulse testified that it lasts very briefly, perhaps only a second or two, and that during such impulse the victim has noticeable facial changes. The evidence here reveals that defendant planned the robbery enough in advance to have a companion in a car waiting for him. Nor did the four witnesses to the robbery testify that the defendant displayed any unusual facial expressions, as described by Dr. Levy. On the contrary, two of the witnesses testified that he was calm and not nervous. The jury could conclude that defendant at the time of the crime was sane beyond a reasonable doubt.
Defendant's second contention is that the jury was improperly instructed on the issue of sanity; that five of the instructions were erroneous or confusing and that as a result the defendant was deprived of a fair trial. Three of the five instructions were submitted by defendant. It is well settled that a defendant may not challenge on appeal the propriety of instructions tendered by him. People v. McGregor, 26 Ill.2d 239, 186 N.E.2d 309. The only exceptions to this general rule are claims of incompetency of counsel or claims of violation of due process. People v. ...