Appeal from the Circuit Court of Cook County; the Hon. MEL R.
JIGANTI, Judge, presiding. Judgment affirmed.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT.
In two separate indictments, defendant was charged with one murder and two armed robberies. After a jury trial, he was convicted of voluntary manslaughter and both robberies. The court imposed concurrent sentences of two to ten years.
In this appeal it is contended that (1), the trial judge erred in not allowing a psychologist (in testimony before the jury), to answer hypothetical questions concerning defendant's sanity; (2), the trial judge erred in refusing to instruct the jury on the subject of sanity; (3), the trial judge erred in giving the jury an instruction defining murder when the evidence could not support a conviction for that offense; (4), the trial judge erroneously instructed the jury on the subject of self-defense; and (5), defendant was prejudiced by final arguments in which the assistant state's attorneys made a personal attack on defendant's court-appointed counsel.
On August 27, 1967, at approximately 6:15 a.m., Preston Fox was the night clerk in the Nicollet Hotel in Chicago. Present at the time was a self-described prostitute, Mrs. Helen Barnes, who lived in the hotel and was the maid. Defendant entered the hotel. Moments later, Fox and defendant exchanged words, followed by an altercation in which each man struck the other with his hand. Fox drew a .38-caliber gun from his pocket. The two men struggled for the gun. As they did, Mrs. Barnes stepped into a room nearby. In the struggle, the men moved out of Mrs. Barnes' vision. When they returned within Mrs. Barnes' view, she saw the gun in defendant's right hand. The two men again struggled out of Mrs. Barnes' vision. She heard the gun go off. Mrs. Barnes then heard Fox say, "You did it." He fell to the floor and died a short time later from a wound caused by a bullet that entered his left chest.
With Fox's gun in his possession, defendant ran out of the hotel and went six blocks north and west to a filling station at 327 West Chicago Avenue. A taxicab was being checked by the station attendant, Lester Woodruff. Standing nearby was the driver, Randall Ehardt. Using the gun, defendant robbed both men, taking $17.00 from Woodruff and between $6.00 and $7.00 from Ehardt. Defendant then ordered Woodruff to lie on the ground near some gas pumps. He ordered the cab driver to drive him away. Woodruff heard defendant say, "I've killed one man and another doesn't make any difference." After the cab left, Woodruff called the police.
When Ehardt drove from the filling station, defendant, seated in front, held him at gun-point. The cab went a short distance north, then east. He then told Ehardt "[t]hat he wanted to go to the County Hospital Blood Bank." At one intersection, an illegal left turn by Ehardt (ordered by defendant) attracted a police car. Ehardt attempted to comply with the officers' command to stop; but defendant told him "to take off." A short distance away the cab was stopped by a road block. Defendant was forced out, arrested and searched. On his person $23.00 in currency were found. In the cab was found the gun defendant took from Preston Fox. It and a bullet taken from the body of Fox were admitted in evidence. Defendant, through his counsel, stipulated that the bullet was fired by the gun.
In his defense defendant called Doctor Joseph Garvin, a psychologist. His testimony disclosed that more than eleven months after the events in question he examined defendant and subjected him to psychological tests. Doctor Garvin was asked whether he could "tell the ladies and gentlemen of the jury and the court something about McBride's personality and makeup." There was an objection. In proceedings outside the jury's presence, the assistant state's attorney argued that the question asked Doctor Garvin would have elicited irrelevant evidence. He argued that a question concerning defendant's personality or his personality traits could not raise an issue concerning sanity. After hearing counsel, the trial judge sustained the state's objection. Defendant's attorney requested and was given leave to make an offer of proof by questioning Doctor Garvin outside the presence of the jury.
In answers to questions put to him by defense counsel, the court and the assistant state's attorney, Doctor Garvin said that in his opinion defendant, at the time of the offenses charged in the two indictments, was not suffering from any mental disease or mental defect. A hypothetical question was asked Doctor Garvin. Then, before he could answer, he was asked:
THE COURT: "Are there enough factors there for you to conclude?"
A. "There really aren't. We are asking about an act here which could have numerous interpretations, it might indicate that the man was not sane or thinking rationally, but it might indicate many other things, I do not know his purpose or "
MR. MURPHY: Q. "By the fact you say there might be this, that and the other thing, would you characterize these thoughts in your own mind as a doubt?"
A. "I think you could say that, yes, there would be something for further exploration, but I could not come to any conclusion, there is no one conclusion that follows ...