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People v. Butler

NOVEMBER 23, 1971.




APPEAL from the Circuit Court of Champaign County; the Hon. BIRCH E. MORGAN, Judge, presiding.


The essence of this appeal is the asserted incredibility of the State's witnesses with a request for outright reversal of two trials, one for competency and the other for murder, and the assignment of a single error in the competency hearing with an alternative request for a new trial.

• 1-5 Courts of review can, of course, determine as a matter of law the insufficiency of the evidence to support either a finding of competency or a verdict of guilty and this question of law can partake of an express finding that the proof was insufficient for the reason that the testimony of the witnesses is incredible. This doesn't happen very often, and indeed, courts are loathe to say even that, although they might think it, and instead merely imply such by reviewing evidence and simply finding that it was insufficient. For the general rule is that credibility or believability of witnesses is for the trier of the facts and only very seldom will it ever be said on review that as a matter of law the testimony of a given witness is unbelievable or incredible.

• 6 With regard to the competency hearing before a jury, one of the State's psychiatrists testified that defendant was competent, that is, he understood the nature of the proceedings and could assist counsel in his own defense. The argument here that the State failed to prove by a preponderance of the evidence defendant's competency is just that — argument. The State's witness is belittled, defendant's witness exalted. But there is no point in rehashing the argument as to the credibility or lack of it as to the witnesses for both sides as, at least here, such was for the triers of the fact. We are not going to say, without ruling out that in a given situation we might, that the testimony of the State's witness, as a matter of law was incredible or unbelievable. If one chose to believe him, and apparently the jury did, his testimony was sufficient on which to premise a determination of competency.

With regard to the one error which is asserted to mandate a new trial on the competency hearing, we have this situation. Another psychiatrist for the State was asked a hypothetical question not as to the ultimate issue, but rather a side issue — whether defendant was "suffering from a delusion". The question assumed, unlike most hypotheticals, very little that had been in evidence — here the fact that the hypothetical man in order to relax himself from time to time viewed himself as being a lieutenant fighting past and current wars. The answer was in the negative, but only after objection by defendant that there was more to the hypothetical man than just that and that the question should assume all the facts that one of the defendant's witnesses testified to — he put it his way: "[I want to add] everything the [defendant's] doctor testified to including these facts and circumstances on the report he furnished the Court". The court aptly observed that this wasn't very helpful or specific and allowed the witness to answer. The cross-examination of the witness as to whether these additional facts would result in a contrary opinion was not explored.

• 7-11 We are of the opinion that the objection was so general that the court was right in permitting the witness to answer. But, assuming we are wrong, we do not believe the court's ruling amounted to reversible error. As we have said the witness was dealing with a side-issue apropos of competency and whether or not defendant had delusions, at least in the context here, was of minor importance. If the witness had had before him what the defendant thought he should have had before forming an opinion, it seems highly unlikely that his answer would have been different — we say this, because it was not explored on cross-examination, presumably, because the answer would be the same with the added material — whatever that was. "Whatever that was" bears directly on our view that the objection was too general. A general objection raises only the question of relevancy and materiality. And it is a cardinal principle that a general objection if overruled cannot avail the objector an appeal. In our opinion, it is not enough to say that something more should have been added — the "more" should be articulated. But as we have said, even if error, it was not reversible error.

• 12 With regard to the bench trial on the substantive crime, we are again told that the conviction must be reversed because the State did not prove beyond a reasonable doubt the sanity of the defendant. Again, we have a logomachy — a battle of words — but the words are enough to sustain a determination either way as to sanity. The argument again, is simply that we should not believe, as a matter of law, the State's witnesses but on the other hand that we should believe defendant's. As we have said, this is hard for even the trial court to do sitting as a judge of the law, and much harder for us as a court of review. Of course, a judge sitting as a trier of the fact can believe whom he chooses but only very seldom will he be in a position to say, as well as we, that as to so and so, "I will not believe or cannot believe him as a matter of law". Defendant argues that the testimony of his witnesses "through their more diligent and time-consuming examination of the defendant, determined that not only a reasonable doubt exists, but a near certainty of insanity exists". As to the State's psychiatrists he asks, "What amount of credence can be laid upon the State's two material witnesses?" His answer in essence is "Not much". But this is argument! We have here the now classic battle of psychiatrists — extended examination and cross-examination, opposing opinions, with the trier of the fact, in this case the judge — left with the clear choice of believing one side or the other. We say clear choice, because obviously he couldn't believe and accept the opinion of both sides. He made a choice, the choice was his to make, and in reviewing such choice, we cannot say that he made a mistake and therefore we must reverse outright. As we have said, no errors are asserted mandating a new trial on the substantive crime. We are asked to reverse or affirm and we can only reverse if we are prepared to say — not that the State's evidence as to sanity was insufficient (which it was not) — but that the witnesses themselves who mouthed such facts cannot be believed and therefore the trial court should not have so believed them. This we cannot do and we accordingly affirm both the finding of competency and the judgment of guilty.

Judgment affirmed.

CRAVEN and TRAPP, JJ., concur.


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