APPEAL from the Circuit Court of St. Clair County; the Hon.
J.F. CUNNINGHAM, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This cause is an appeal by the defendant, John Mask, from a judgment of conviction for the crime of armed robbery entered by the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, pursuant to a jury verdict of guilty. More particularly, the defendant is appealing from the trial court's ruling granting the State's attorney's motion to strike the defendant's affirmative defense of insanity at the close of all the evidence, and the trial court's concomitant decision not to tender any instructions as to an insanity defense. The defendant also appeals from the trial court's sentence of 4 to 12 years' imprisonment and its denial of defendant's request for a sentence incorporating a work release plan. An understanding of the evidence is essential to the determination of this appeal.
The evidence is uncontradicted that in the early morning hours of January 12, 1972, the defendant entered a certain restaurant and tavern in Cahokia, Illinois, pulled a gun, stating "This is a holdup," seized money from the bartender, seized a woman patron around the neck, and while pointing the gun at her head, stated that she was going with him or he was going to "blow her brains out." The defendant then left the restaurant and tavern, entered a parked automobile with the hostage and two other co-defendants, and proceeded to attempt an escape from the scene, while being pursued by the police, at speeds in excess of 100 miles per hour. During this chase the defendant again threatened to blow the hostage's brains out, suggested that the hostage should be thrown from the speeding auto, and made sexual advances towards the hostage. The defendant also threatened to kill the co-defendant driving the automobile if he stopped for the police car pursuing them. The chase ended when the automobile in which the defendant and the others were riding collided with a light pole. The money and the gun were subsequently found in the vicinity of the collision scene. It is also uncontradicted that the defendant was drinking alcoholic beverages heavily for several hours preceding these enumerated events, and that he was considerably intoxicated by the time he entered the restaurant.
On January 13, 1972, while the defendant was in the custody of the Cahokia police, the defendant made a voluntary statement, after being fully advised of his legal rights, in his own words, less specific than the facts as above set forth but substantially the same and in no way contradictory.
On January 29, 1972, the defendant filed a motion for a mental examination pursuant to section 104-2(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 104-2(d)). This examination was subsequently ordered by the trial court and the defendant was examined by a psychiatrist, Dr. Frank M. Perez. Dr. Perez filed a psychiatric evaluation with the trial court that found, in pertinent part, that the defendant's intelligence was at the level of "dull normal," that the defendant had "difficulty in functioning socially," and that:
"This defendant is, at present, competent and able to examine, without any difficulty, the events described. He knows the nature of the charges; he is able to assist counsel with the preparation of his defense."
The report does not contain any opinion with regard to the defendant's mental state at the time of the criminal conduct on January 12, 1972. On April 11, 1973, the defendant filed a motion for further psychiatric examination, which motion was denied. The defendant makes no objection to these two proceedings on this appeal.
At the trial of this cause the facts as above delineated were produced, and, in addition, the defendant testified in pertinent part that while he remembered entering the restaurant-tavern with the gun in his pocket, ordering a beer and taking a drink, thereafter he could not remember anything else until he was climbing into the car with the woman. The defendant also testified that he remembered the auto collision and being taken to the police station, but nothing thereafter until he awoke in a cell. He further testified he could not remember writing the statement, although he acknowledged the statement was in his handwriting.
The defendant's father testified at trial that the defendant's conduct when drinking substantial quantities of alcoholic beverages was, in his experience, antagonistic, and that, on one occasion, it was his opinion that the defendant's behavior was "more than simple drunkenness."
The defendant also called a psychiatrist, Dr. Juan C. Corvalan, to testify as to the defendant's mental condition. Dr. Corvalan examined the defendant for approximately 1 1/2 hours on October 5, 1973. He also had examined the police reports concerning the commission of this crime, the psychiatric report of Dr. Perez, and a hospital report on the defendant. The pertinent questions of defense counsel and the replies of Dr. Corvalan were as follows:
"Q. After you had opportunity to do that you conducted your examination, Doctor? Did you draw some conclusions, first, as to his intelligence?
A. Yes, sir, examination of his mental functioning, I gave him a test IQ test, which was a kind of intelligence test I gave. It was borderline or defective stage.
Q. Now, in addition to that, did you form a diagnostic impression?
A. Yes, sir, my diagnostic impression was first from the record of excessive drinking, there is alcoholism, that means that the patient is suffering from a disease called Alcoholism in this particular moment. It is one of the stages.
The other point was borderline mental retardation versus adult normal the other possibility in the diagnosis was inadequate personality; fourth was organic disorder has to be ruled out.
Q. By that what do you mean?
A. It meant that the information that I have, it wasn't enough for me to make a final diagnosis in regard to this organicity not to be neurological work up he has to be able to find out to be able to classify this mental retardation to his abnormal behavior * * *."
Defense counsel then proceeded to ask a hypothetical question containing a history of the defendant from his adolescent years through the events of January 12, 1972, when the defendant was 20 years of age. Defense counsel concluded the hypothetical question, and Dr. Corvalan answered as follows:
"* * * Assuming all these facts to be true, Doctor, do you have an opinion, to a reasonable degree of psychiatric certainty, whether at the time of said conduct as a result of mental disease or mental defect the hypothetical individual lacked substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the requirements of the law?
A. I feel that this person is unable any way to conform his conduct to the ...