APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendant appeals a judgment and sentence of 10 to 30 years imposed by the Circuit Court of Macon County upon a jury verdict of guilty of attempt to commit murder (Ill. Rev. Stat. 1971, ch. 38, pars. 8-4 and 9-1). Grounds for reversal are alleged to be the State's failure to prove defendant sane beyond a reasonable doubt, the erroneous exclusion of certain evidence relating to defendant's sanity, improper closing argument by the prosecution, and excessiveness of sentence.
It is not disputed that on June 28, 1973, the defendant attacked and stabbed his wife several times with a scissors after her arrival at the parking lot of Decatur Memorial Hospital where she worked. The defendant had a history of heavy use of liquor and drugs, mostly amphetamines and hallucinogens, and there was also a history of marital difficulty, centering in part on defendant's use of drugs and liquor. The defense of insanity was based upon possible acute drug withdrawal symptoms or alternatively hysterical neurosis, dissociative type (a mental condition resulting from severe emotional upset).
The evidence relating to the defendant's sanity consisted of testimony of the defendant, his former wife, and an examining psychiatrist, Dr. Dale Sunderland. The doctor's testimony was based entirely upon an examination of the defendant on September 24, 1973, nearly 3 months after the commission of the crime. The doctor saw no indication that the defendant was lying during the examination, and the defendant's statements were taken to be true. The defendant had informed Dr. Sunderland of his past marital and drug problems, that the last use of drugs prior to the incident was the morning before the stabbing, and that the defendant's only recollection of the incident was seeing his wife enter her car on the way from Maroa, Illinois, to work, driving himself toward Decatur without seeing his wife's car on the highway, and "[t]he next thing that he remembered was that he was lying on the ground with a man standing over him, and that his wife was lying near him with blood on her."
Based upon this examination and various psychological tests, the doctor testified that on the date of the examination, the defendant was sane. On the same basis the doctor stated that on the date of the crime, two possibilities existed: that defendant was suffering from drug withdrawal or that he could have been suffering from an emotional element entirely separate from the drug usage which would have interfered with his appreciating the criminality of his conduct. This latter problem would have been a "hysterical neurosis, dissociative type" which could develop into "amnesia" or something similar to amnesia, which could occur before, during, or after any terrific emotional upset, or any incident where there is a lot of emotional energy involved. The doctor further testified that under these conditions, the defendant could converse with others and "move about and do things," and that if he were suffering from either condition, he would not be able to conform his conduct to the requirements of the law. He further said that it would not be unusual for the defendant to have been suffering from either of the two described conditions, and to recover from them some months later.
On cross-examination, the doctor testified that it was possible for the defendant to have been sane at the same time he stabbed his wife, and then to develop amnesia later. The doctor stated that "it could have been either way." Also, Dr. Sunderland stated that there were actually three possibilities regarding defendant's mental condition on the day of the incident the third of which was that defendant was not suffering from anything. The doctor admitted that he could have been feigning the symptoms of amnesia. Defendant had told the doctor that he could always function pretty well on drugs and that there was no prior history of blackouts. The doctor also said that the lack of history of past blackouts does not preclude likelihood of a blackout on the day in question.
In rebuttal, the victim testified that 2 days prior to the stabbing, the defendant had met her while she was in the parking lot on her way to work, that he ordered her to drive away, later driving the car himself out into the country where he threatened to kill her. She told him, in attempting to save her life, that she would try one more time to save the marriage. She also testified that her husband had been following her for 2 days prior to the stabbing, and that at the time of the incident, he did not appear to be under the influence of drugs, was lucid in his remarks to her, appeared angry, was sure of his movements, appeared to be able to communicate, and understood what the victim was saying. The victim also stated that she believed the defendant was able to appreciate the quality of his actions and that he knew what he was doing, and intended to commit the acts he was charged with. She testified that her belief that defendant knew what he was doing was based upon his understanding that his wife did not intend to get into defendant's car, after he asked her to do so. He then chased after her when she began to run from him.
The defendant had testified as to past marital problems surrounding his drug use and lack of employment. He could remember the incident only as he had told Dr. Sunderland, and he described his feelings after the stabbing:
"It was a suspended feeling, a type of I was on a cloud like thing. It was like people was there but they weren't really there. I don't know how to describe it. Like their faces were white or something and they were standing out like an old time movie, and they were saying things like I couldn't understand what they were saying. It was more or less garble. I could get no communication * * *. I had no pain, no feeling whatsoever."
The defendant had been able to work on his previous job while under the influence of drugs. He was not under the influence of drugs at the time of the stabbing. Defendant's usual drug habit was to sleep during the day and to take drugs in the afternoon.
• 1 The defendant testified that he did not pick up a pair of scissors, and there was no pair of scissors in his car on the morning of June 28, 1973. The blackout occurred after defendant had traveled 2 1/2 miles toward Decatur. Defendant had no idea as to how the pair of scissors could have come into his hands. He stated that he never carried a pair of scissors in his car, and he identified People's exhibit 1 as a pair of scissors similar to those owned by his mother, with whom he was living at the time. The defendant remembered watching his wife from his home get into her car in front of her mother's house on her way to work, after which the defendant walked to the kitchen, finished cleaning up after breakfast, went back into the bedroom, finished dressing, got his school books, and got into his car and went on his way to Decatur.
"A person is not criminally responsible for 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. Stat. 1973, ch. 38, par. 6-2(a).)
Insanity is an affirmative defense (Ill. Rev. Stat. 1973, ch. 38, par. 6-4). The trial court ruled that the evidence had raised that issue and instructed the jury that the State had the burden of proving beyond a reasonable doubt that the defendant was sane at the time of the commission of the offense. The State is not required to produce opinion evidence to meet its burden of proof. People v. Burress, 1 Ill. App.3d 17, 272 N.E.2d 390; People v. Arnold, 17 Ill. App.3d 1043, 309 N.E.2d 89.
In People v. Conrad, 81 Ill. App.2d 34, 225 N.E.2d 713, a psychiatrist, in answer to a hypothetical question embodying the defendant's version of the evidence, testified that the hypothetical person would not be able to choose between right and wrong. The court noted that the weight to be given to the expert opinion depended upon the validity of the accused's testimony of amnesia which was open to question. The opinion makes no mention of any countervailing evidence of defendant's sanity other than testimony by his wife that refuted defendant's claims of ...