APPEAL from the Circuit Court of Lake County; the Hon. LLOYD
A. VAN DEUSEN, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Eugene Lee Newbury, the defendant, was found guilty of the murder of Anna Louise Mondragon by a jury in the circuit court of Lake County. The jury, in its verdict, recommended that the defendant be sentenced to death, and following a hearing in aggravation and mitigation the trial court did sentence him to death. The defendant has appealed.
On December 20, 1968, the body of Anna Mondragon, a school teacher, was found in a field in Lake County near the Illinois State Dunes Beach Park. There were bruises on her face, neck, chest, and legs. Her nose appeared to have been broken. There were several cuts on her legs, which had been circled with a crayon or other marking device. A pencil was protruding from her right eye. Her undergarments were around her ankles, although there was no evidence that she had been sexually assaulted. A checkbook had been placed partially within her vagina and several staples had also been inserted in her vagina. A small balloon was tied to her left hand. Death had resulted from asphyxiation due to obstruction of the airways, and grass and dirt had been stuffed into her mouth.
The defendant had been engaged to be married to the deceased. On the evening of December 19, the two had been together. They stopped at an optometrist's office and a bridal shop in Zion, Illinois, shortly before eight o'clock that evening. The deceased was not seen alive after that time.
Shortly after midnight on the morning of December 20, the defendant, alone, registered at a motel in Madison, Wisconsin, as Mr. and Mrs. Newbury. The motel clerk noticed what appeared to be blood on his hands, shirt and jacket. He apparently remained in the motel room for two days. On December 22, a deputy sheriff of Dane County, Wisconsin, went to his motel room in response to a call from the defendant, who said that he wanted to talk to the officer about something he was involved in. The officer advised the defendant of his rights and he then refused to make any statement.
The defendant was later indicted for the murder of Miss Mondragon. He was determined to be competent to stand trial after a hearing, and no issue is raised concerning that determination. He pleaded not guilty, and at trial he raised the question of his sanity at the time of the offense. Except for that question, he does not contend that the State failed to prove him guilty beyond a reasonable doubt. It may be noted, however, that the State presented evidence which established that it was the defendant who took the life of the deceased. In addition to the conduct that has been described, this evidence included the eyeglasses found at the scene, which were shown to be identical to those previously worn by the defendant, tire tracks at the scene which were similar to those of the defendant's automobile, blood stains on the clothes of the defendant which matched the blood type of the deceased, and a matching of impressions on the body of the deceased with the fabric lines of the corduroy trousers which the defendant wore on the date of the killing.
The first contention is that the defendant "was deprived of a fair trial by erroneous rulings on insanity testimony." Dr. Leigh Roberts, a psychiatrist, was called as a witness by the defendant. He had been employed by the defendant and he had examined the defendant six times between December 27, 1968, and January 3, 1969, for the purpose of diagnosing and treating him. The doctor was of the opinion that on December 19 and 20 the defendant suffered from schizophrenia, paranoid type, and that he could neither appreciate the criminality of his conduct nor conform his conduct to the requirements of law. In response to a question asked by defense counsel on direct examination, Dr. Roberts testified to statements the defendant made to him, in which he described how he killed Miss Mondragon. It is now contended that the trial court erred in allowing this evidence, offered in connection with the question of the defendant's mental capacity, to be considered by the jury in determining whether he killed Miss Mondragon.
If Dr. Roberts had examined the defendant in connection with a court-ordered examination, the statements made to him by the defendant could not have been admitted against the defendant on the issue of his guilt. (Ill. Rev. Stat. 1969, ch. 38, par. 104-2(d).) In this case the doctor was privately retained and voluntarily consulted by the defendant, but even in such a case the statutory psychiatrist-patient privilege can be used to exclude statements made by a defendant to his psychiatrist. (Ill. Rev. Stat. 1969, ch. 51, par. 5.2.) But it was the defendant who called the doctor as a witness and elicited his testimony concerning the defendant's statements. Thus the defendant waived the privilege and he cannot now contend that it was error to admit the testimony. Cf. 8 Wigmore, Evidence (McNaughton Rev. 1961), sec. 2390(2) at 861.
Similarly, no error was committed by the trial court in not limiting the statements testified to by the doctor to the issue of the defendant's sanity. As the statements constituted an admission by the defendant, they were not objectionable under the hearsay rule. (4 Wigmore, Evidence (3d ed. 1940), sec. 1048(2), at 3.) The use of a defendant's statements to psychiatrists may raise issues concerning the defendant's privilege against self-incrimination when the defendant makes the statements in a court-ordered examination (see W. LaFave & A. Scott, Jr., Handbook on Criminal Law (1972), sec. 40 at 310-312), but in this case the State played no part in eliciting the statements, and their use cannot violate the defendant's privilege against self-incrimination.
Nor do we find merit in the contention on appeal that the defendant's statements to the doctor were improperly admitted because they were made by an insane individual where, as here, the defendant has been found competent to stand trial, the testimony was elicited by defense counsel, and no effort was made at trial to exclude the testimony or to strike it once it had been given. Indeed, the record fails to disclose any attempt by defense counsel to have the court instruct the jury that they were not to consider these statements in determining whether the defendant had committed the offense.
Another psychiatrist, Dr. Henry Millett, had been appointed to examine the defendant for the purpose of his pretrial competency hearing and was called as a witness at trial by the defendant. It was Dr. Millett's opinion, given in response to a hypothetical question, that the defendant was psychotic and that he lacked the capacity to appreciate the criminality of his conduct and the ability to conform his conduct to the requirements of law. It is contended that the conviction should be reversed because the trial court refused to allow defense counsel to incorporate the history given to Dr. Roberts into the hypothetical question asked of Dr. Millett.
The trial judge subsequently changed his ruling, and allowed the psychiatrists who testified for the State to consider that history in arriving at their conclusions. But when the court ruled that the State's psychiatrists could consider the defendant's statements to Dr. Roberts, defense counsel indicated that he might want to recall Dr. Millett and include the same material in questions to him. The trial judge told defense counsel that he could move to recall Dr. Millett at the close of the State's case, and he would not consider such a motion until then. Counsel did not make such a motion, and thus waived the opportunity to cure any possible prejudice that might have resulted.
The defendant also contends that the State failed to prove beyond a reasonable doubt that he was legally sane at the time of the commission of the offense. As previously mentioned, the defendant called two psychiatrists, both of whom testified that at the time of the offense the defendant suffered from a mental disease which made him incapable of appreciating the criminality of his conduct and unable to conform his conduct to the requirements of law. Other witnesses testified concerning the defendant's outstanding record as a scholar and an athlete in high school and college, and his performance as a grade school teacher, a position which he held at the date of the killing.
The three psychiatrists called by the State had not examined the defendant. In response to hypothetical questions incorporating the facts in evidence, it was the opinion of all three that the hypothetical person did not suffer from a mental disease and that he could understand the criminality of his conduct and conform his conduct to the requirements of law. It was for the jury to decide, based upon all of the evidence, whether the defendant was insane at the time of the offense. Although there was conflicting expert testimony on this issue, there was sufficient evidence from which the jury could conclude, beyond a reasonable doubt, that the defendant was legally sane at the time of the offense. As this court has previously held, there is no constitutional right to a bifurcated trial and it was not error to deny the motion for such a trial. People v. Speck (1969), 41 Ill.2d 177, 206-208; People v. Ford (1968), 39 Ill.2d 318, 320-321.
The defendant also urges that his conviction should be reversed because of three rulings of the trial judge relating to pretrial discovery. The first of these concerns the fact that the trial court did not allow that portion of a motion for the discovery of certain specific items of evidence which requested that the State furnish the defense with all items of evidence, and the names of witnesses, that would tend to exculpate the defendant or provide "mitigating factors." The prosecution is required to disclose to an accused all evidence favorable to his case (Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194; People v. Moses (1957), 11 Ill.2d 84, 89), and since October 1, 1971, our rules concerning pretrial discovery have required the prosecution to disclose that information to the defendant, whether or not he has requested it. (Rule 412(c), 50 Ill.2d R. 412(c).) This case, however, was tried before the adoption of Rule 412. It is a case in which the proof of the defendant's guilt is such that the defendant does not dispute that he was proved guilty beyond a reasonable doubt. Counsel for the defendant has not suggested, even hypothetically, any kind of evidence that might have tended to exculpate him, nor ...