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People v. Moore

MAY 7, 1974.




APPEAL from the Circuit Court of Whiteside County; the Hon. JOHN J. POOLE, Judge, presiding.


The defendant was found guilty of attempted murder and attempted burglary by a jury and sentenced to a term of 8 to 20 years on the former charge and 5 to 20 years on the latter charge. This is the second time the case has been before this court. See People v. Moore, 6 Ill. App.3d 568, 286 N.E.2d 6.

Defendant was initially tried and sentenced to 10 to 20 years for attempted murder and aggravated battery, and 5 to 30 years for burglary. In both trials the defense was insanity.

At the time this court first considered this case it was of the opinion that certain evidence produced after trial and contained in the probation report and investigation sufficiently impeached the testimony of State witness Dr. Rydak so as to warrant the granting of a new trial.

On March 3, 1969, in the late afternoon defendant met a friend, Kenneth Finkle, in Sterling, Illinois. The defendant was armed with a .22 Colt automatic revolver. The two visited a few places in Sterling and according to Finkle's testimony they were looking for someone to kill. At one point defendant suggested they kill a young lady known to Finkle, but Finkle prevented this by expressing his disapproval. Finkle was apparently unarmed. About 9 P.M. they saw a woman walking toward her car parked in the Y.M.C.A. parking lot. She had been shopping in Sterling. Neither the defendant nor Finkle knew her. Defendant said to Finkle, "Let's go get her" and the defendant ran toward the woman who was by then entering her automobile. Finkle did not follow. He observed defendant trying to push his way into the car and testified the woman started to scream. Defendant then said, "Lady, you're dead" and continued to push his way into the car. He then fired two shots at the lady.

The victim testified that when defendant approached the car he kept pushing and trying to get her to slide over in the car. She commenced screaming and he put his hand over her mouth, then told her she was dead.

At the first trial defendant testified that as he neared the car he pulled out the gun and pulled the hammer back. The victim heard the noise and turned and started to scream. He then pushed her down on the front seat of the car. He further testified, "She was more or less laying on her back and I half straddled her, put my left hand on her mouth to stop her from screaming and attempted to fire a shot from the gun which was aimed at her forehead." He then testified that he fired a round but the gun wouldn't fire and he "reached up with my left hand and pulled the mechanism on the automatic so it would eject the bad shell and reload it." According to this own testimony he then re-aimed the gun at the victim's forehead and fired twice. He stated that he could not remember if he told Finkle, "Let's go get her" when he spotted the victim but denies that he intended to rob, rape or kidnap her but he intended only to hurt her. He further testified he stopped shooting because the gun jammed and while he was in the process of unjamming the same he "suddenly realized what was going on" and that he yielded to the victim's pushing. He testified that the victim did fall to the pavement and that he did kick her while she was lying on the pavement. He further testified that he did not know if he tried to shoot her again.

Finkle testified that shortly after the two shots were fired he ran to the passenger's side of the car to warn defendant the police car was coming. He testified that defendant did not appear aware of the approaching squad car. He further testified that he proceeded to walk out of the parking lot when the defendant ran past him.

At the initial trial defendant testified he ran from the scene with the gun in his hand; that he ran toward an alley, down the alley and at the end of the block saw a young boy in a car talking to a girl in another car; he asked them for a ride and then offered them $10. The boy refused and the defendant walked and ran 20 blocks to his home. His home was only 10 blocks away but he did this to avoid being caught. En route he hid the gun in a tree and later advised the police where it was hidden.

On cross-examination defendant testified he told the victim she was dead "meaning that I was going to harm her" and "I pulled the trigger on the gun and nothing happened like it was dead and I ejected the shell manually, let the slide go back, fired a shot at this time. I fired the shot, Mrs. Mattox I remember swung around in such a manner to throw the gun off to the side. I think it hit the floor of the car. This was on the passenger side and I re-aimed the gun at Mrs. Mattox's forehead and pulled the trigger again. At this time I pulled the trigger Mrs. Mattox turned her head to the side and the bullet then struck in the side of her head. I thought in front, I thought I saw blood coming from the front." He further testified that she was screaming and asking him not to do this.

At the second trial, the one involved in this appeal, the defendant testified that he had no memory as to what occurred on March 3, 1969, nor did he have any recollection of the events of the first trial. He did not deny any part of his testimony at the first trial but merely testified that he could not remember what occurred and in fact could not remember testifying at that trial.

Appellant first contends that the State failed to prove defendant's sanity beyond a reasonable doubt, contending that defendant had presented evidence which raised a doubt as to defendant's sanity at the time of the commission of the crime.

• 1 The law presumes all men to be sane. (People v. Lono, 11 Ill. App.3d 443, 297 N.E.2d 349; People v. Groves, 100 Ill. App.2d 171, 241 N.E.2d 622.) Once evidence of insanity is introduced by either the State or the defendant presumption ceases and it becomes the State's burden to prove beyond a reasonable doubt that at the time of committing the crime the defendant was legally sane. Ill. Rev. Stat., ch. 38, par. 3-2 (a), (b); People v. Le May, 35 Ill.2d 208, 220 N.E.2d 184.

The defendant called Dr. Daniel Schiff. a physician specializing in psychiatry, to testify. He testified that he had seen defendant on a number of occasions and at the first such interview on August 6, 1969, he obtained defendant's history and testified that defendant related to him the events that occurred on the date of the crime. He testified as to the substance of the conversation with the defendant and concluded that defendant at the time of the commission of the crime suffered from a mental illness called paranoid schizophrenia. He further testified that defendant at the time the crime was committed was unable to control his impulses and to conform to law, even though he knew that he was doing a wrong act. He testified that he again saw the defendant on November 30, 1972, at which time he noted an improvement in defendant's condition from the last time he had seen him in 1969. On cross-examination Dr. Schiff described paranoid type schizophrenia and acknowledged that his opinion was based in part on the assumption that defendant was telling the truth. He further testified that the distinction between a schizoid personality and a schizoid paranoid is that the former is shy and retiring, withdrawn and does little else. The other is "over the line and is quite psychotic or crazy." He further stated that it is possible for a person to be unable to conform his conduct to the requirements of the law and not be suffering from a mental disease and stated that these persons are called criminals. He acknowledged that the fact that the person might have an irresistible impulse to do something doesn't necessarily mean he is mentally ill or has a mental disease. Dr. Schiff concluded that in his opinion defendant was 100 percent incapable of conforming his conduct to the law at the time of the commission of the crime.

Dr. W.S. Rydak was called by the State and testified as to interviews he had with the defendant. He like Dr. Schiff is a physician specializing in psychiatry. The first interview was held on September 3, 1969. He obtained the history of defendant and testified that the defendant had related to him the incidents that occurred on the day of the crime. He testified that in his opinion the defendant was not suffering from a mental illness or disease at the time of the commission of the crime. He did testify that the defendant was unable to appreciate the criminality of his conduct at the time he committed the crime because of stress imposed upon him. He stated that defendant was not suffering from schizophrenia; that on examination the defendant's mental grasp was good; that there was no evidence of a mental deficiency and that while the defendant lacked capacity to conform his conduct to the requirements of law at the time the act was committed this was not a mental illness but an emotional stress.

The facts in the case illustrate that defendant left his home on the evening in question carrying a loaded revolver. According to the witness Finkle defendant advised him that he was looking for someone to kill and that he had first discussed the possibility of killing another girl, only to be restrained by Finkle. The testimony further illustrates that defendant had a clear recollection of the events leading up to the crime, the commission of the crime, and events subsequent to the same. His testimony of where he and Finkle had been, the beverages they consumed, what they had done and how long they had stayed at the various locations in Sterling, indicates total awareness of the events leading up to the crime. The description of the events that occurred at the time of the ...

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