APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
___ N.E.2d ___ Raymond Scott Larsen (hereafter defendant) was charged with the offense of murder. (Criminal Code of 1961, section 9-1; Ill. Rev. Stat. 1971, ch. 38, par. 9-1.) Following a bench trial, defendant was found guilty as charged and was sentenced to a penitentiary term of from 100 to 300 years. From this conviction defendant appeals.
The major issue presented for review is whether defendant is entitled, upon his request, to the presence of counsel at a court-ordered pretrial psychiatric examination. The psychiatrist was designated by the State for the purpose of ascertaining defendant's sanity or insanity at the time of the offense where defendant, under discovery requirement, had notified the State that he intended to rely upon that affirmative defense at trial.
Pursuant to Supreme Court Rule 413(d) (Ill. Rev. Stat. 1971, ch. 110A, par. 413(d)), the State filed a written pretrial motion for disclosure by defendant of the defense or defenses upon which defendant intended to rely at trial; in response, defendant notified the State that he intended to rely upon the defense of insanity at the time of the offense. Thereupon, pursuant to a provision of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 115-6), the State moved to require defendant to undergo a psychiatric examination by a psychiatrist designated by the State, and the trial court allowed the motion. Defendant then requested that his counsel be present at the said examination, which request was refused.
Defendant contends that he was entitled to the presence of counsel at the said examination: (1) in order to protect his fifth amendment privilege against self-incrimination; (2) becase the examination is a critical stage of the criminal proceeding under the sixth amendment; and (3) because Supreme Court Rule 413(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 413(b)) provides that counsel shall have the right to be present at physical or medical inspections of defendant's body. Defendant also contends that, in further violation of Supreme Court Rule 413(b), he was not properly notified of the said psychiatric examination; that the State failed to prove him sane at the time of the offense beyond a reasonable doubt; and that his sentence was excessive.
The State's case-in-chief established the following facts. On May 12, 1972, defendant was released from the Joliet Branch of the Illinois State Penitentiary on a three-day furlough for good behavior as an inmate of that institution. On May 17, 1972, Francis Casolari (hereafter decedent), age 16, went fishing after school in a forest preserve area known as Schiller Woods. His parents became concerned when decedent did not return home for dinner. The police were notified on that evening that the boy was missing. An exhaustive search of the Schiller Woods area was made. Decedent's dead body was found there by the police in the early morning hours of May 18, 1972.
At approximately 4 a.m. the next day, in another part of Schiller Woods, the police stopped a car operated by defendant, in which his brother, Gary Larsen, and a young woman were passengers. In open view, in the console area of the vehicle, the police observed a rifle, a hand pellet gun, and two containers of pellets. The individuals were placed in custody and taken to the police station. The weapons were subsequently established by the crime laboratory as being the one which fired the 23 to 25 rounds of ammunition which killed decedent.
At the police station, defendant made an oral confession to an Assistant State's Attorney and several police officers. Defendant stated that he drove out alone to Schiller Woods on May 17, 1972. It was just before dark. Defendant parked his car in a parking area and removed the two weapons he had in the car. He then walked along a bridle path adjoining the Des Plaines River. He was looking for something to shoot when he observed decedent fishing from the river bank approximately 50 feet away. Defendant fired the rifle and shot decedent in the abdomen. Decedent fell, groaning and screaming. Defendant continued to fire until he was silent. Defendant then dragged the body into some shrubbery. He began to disrobe it, but became apprehensive when he heard people approaching. Defendant then ran to his car and left the area. He was not under the influence of alcohol or drugs at the time of the killing.
Defendant conceded at trial that he did the acts which caused the death of decedent. He raised only the affirmative defense of insanity at the time of the offense. *fn1
Three lay witnesses were called on behalf of defendant: Darlene Jacobek, defendant's half-sister; Gary Larsen, his brother, and Grace Romagnoli, his maternal grandmother. Collectively, these witnesses testified as to the unsavory atmosphere in which defendant grew up. Jack Larsen, defendant's father, was a drunkard and ex-convict. He repeatedly threatened and beat defendant's mother, Nellie Larsen, and the children. From time to time, defendant stayed with his grandmother for a few days or weeks because "he couldn't live at home." Defendant, as a boy, lived in fear of his father. The family moved often because Jack was continually switching jobs, with varying periods of unemployment between jobs. At one point, Nellie and the three children left Jack to live with Mrs. Romagnoli. Jack threatened to kill her if she didn't return. Nellie and the children moved back. When defendant was 15 and his brother Gary was 13, they both moved in with their grandmother permanently. Their sister Darlene had previously done the same thing. When Nellie died on May 17, 1966, exactly six years before decedent's murder, defendant was severely affected. At the funeral, Jack accused him of causing his mother's death by always getting into trouble.
In addition, Gary testified that defendant began using drugs, including LSD, heroin, and amphetamines, at the age of 11 or 12. When Gary saw defendant a few days after defendant had been released from the penitentiary in May of 1972, defendant had barbiturates in his possession and appeared to have taken some. Defendant was mumbling and laughing to himself, and did not appear to know what he was doing.
Defendant also called as an expert medical witness, Dr. Marvin Ziporyn, a psychiatrist. Ziporyn testified that he examined defendant on July 1, 1973, at the Cook County Jail. (Defendant had filed a motion for this examination and the motion had been allowed.) An evaluation of defendant's mental status was made by observing his physical mannerisms, tone of voice, gestures, and by a question and answer discussion. Prior to the examination, the witness was informed of the crime charged and that defendant had had difficulties with his father. Some of defendant's penal records were also made available to the witness.
Ziporyn made the general diagnosis that defendant was suffering from an organic brain syndrome associated with cerebral trauma. Defendant's condition was characterized as a post-traumatic personality disorder, defined as a change of personality which is a result of damage to the central nervous system. The witness further noted certain psychodynamic factors (defined as psychological factors in an individual which motivate that individual to behave in any of several different directions) which he found operative in defendant: (1) the presence of a severe castration anxiety; (2) the presence of a supreme degree of hostility and anger; (3) the presence of a pervasive depression; and (4) the presence of an addictive personality. The witness placed great importance on defendant's strong attachment to his deceased mother as the source of behavioral symptoms manifested after her death.
In response to a hypothetical question which described the background and behavior in evidence concerning defendant, Ziporyn testified that in his opinion the hypothetical man was suffering from a mental defect at the date of the killing. Although the hypothetical man had the capacity to appreciate the criminality of his conduct, the defect caused him to lack substantial capacity to conform his conduct to the requirements of the law.
On cross-examination, the witness related a conversation he had had on August 15, 1973, with the two Assistant State's Attorneys who tried the case below. In that conversation, Ziporyn told the prosecutors that defendant would have been able to conform his conduct to the requirements of the law in the absence of drug usage.
The witness further stated on cross-examination that he did not utilize any psychological tests, did not administer an electroencephalogram, did not have defendant examined by a neurologist, and did not administer any sodium pentothal to minimize falsity and malingering. On redirect examination, Ziporyn stated that there was no need for supportive testing or an electroencephalogram; the clinical material was so definitive that defendant was insane on May 17, 1972, that no substantiation was required.
In rebuttal, the State presented two lay witnesses and one expert medical witness to show that defendant had the capacity to conform his conduct at the time of the offense to the requirements of the law. The first witness was one Lawnie Suchy, a housewife from whom defendant stole a rifle and money on the day of the killing. Defendant entered her apartment at gunpoint about 1 p.m. The witness had previously suffered a broken nose and broken ribs, and was wearing a rib belt to protect her ribs. Defendant took her into the bedroom and began to disrobe her when he observed the rib belt. He asked her what it was and she informed him of its purpose. The witness asked him not to rape her. He replied that he would not rape or hurt her. They did not have intercourse. Before he left, she thanked him for not raping or hurting her. Defendant replied: "But I did hurt you, I hurt your pride and your self-respect and your pocketbook." Defendant then walked out of the apartment, approximately 45 minutes after he entered.
The next witness was Sergeant Howard Cherry, a prison guard at the Joliet Branch of the Illinois State Penitentiary. Cherry testified that defendant's work assignment at the penitentiary was as a clerk-typist in a minimum security area. He was also housed in a minimum security area. Defendant had no disciplinary problems while an inmate of that institution.
The State's final witness was Dr. Robert Reifman, Assistant Director of the Psychiatric Institute of the Circuit Court of Cook County. Reifman had examined defendant twice. On the first examination, on January 26, 1973, pursuant to a defense motion which had been allowed, Reifman was acting as a court-designated psychiatrist for the purpose of ascertaining defendant's fitness to stand trial. Defendant was given a routine screening examination, including a question and answer interview by the witness, and defendant's grandmother was interviewed by a social worker employed by the Institute. Reifman, at that time, concluded that defendant could understand the nature of the charges pending against him and was able to cooperate with his attorney.
On the second examination, on August 24, 1973, pursuant to a State motion which had been allowed, Reifman was acting as a prosecution-designated psychiatrist for the purpose of ascertaining defendant's sanity on May 17, 1972. Defendant was given various psychological tests, including a Bender-Gestalt test, a draw-a-person test, and a sentence completion test. An electroencephalogram was administered. There was also a question and answer interview. The witness' diagnosis, based on interview and observation, supportive testing, and the electroencephalogram, was that defendant had a personality disorder known as anti-social personality. He found no evidence that defendant was suffering from the mental defect known as organic brain syndrome on the date of the offense. In response to a hypothetical question which incorporated the background and behavior in evidence concerning defendant, Reifman stated that it was his opinion that the hypothetical man was not suffering from any mental defect or disease, and had substantial capacity to appreciate the criminality of his conduct and had substantial capacity to conform his conduct to the requirements of the law. All of this testimony by Dr. Reifman was admitted over objection by defendant on the ground that he had been denied his right to the presence of his counsel at the examination.
• 1 Before proceeding to the merits of the controversy, we need to consider whether defendant waived the right to challenge the judgment of the trial court by failing to file any post-trial motion for a new trial. It is well established that an alleged error will not be reviewed unless asserted at trial. This applies to constitutional and non-constitutional questions. (People v. Long (1968), 39 Ill.2d 40, 233 N.E.2d 389.) If a written post-trial motion is made, a failure to include an alleged error in that motion constitutes a waiver of that issue and it cannot be raised on appeal. (People v. Horton (5th Dist. 1973), 15 Ill. App.3d 51, 303 N.E.2d 534.) A post-trial motion is not necessary in a bench trial to preserve for review questions of the sufficiency of the evidence. (People v. Hoffman (1942), 381 Ill. 460, 45 N.E.2d 874.) Other types of error will be preserved in a bench trial if they were somehow brought to the trial court's attention; a trial court must be made aware of alleged errors so that it has the opportunity to correct the alleged error involved. (People v. Guynn (3d Dist. 1975), 33 Ill. App.3d 736, 338 N.E.2d 239.) However, even if an alleged error is not brought to the attention of the trial court, this court has authority under Supreme Court Rule 615(a) (Ill. Rev. Stat. 1971, ch. 110A, par. 615(a)) to consider the error if it affects substantial rights, and if fundamental fairness requires that it be corrected. People v. McAdrian (1972), 52 Ill.2d 250, 287 N.E.2d 688, People v. Bonds (1st Dist. 1975), 26 Ill. App.3d 703, 325 N.E.2d 388.
In the instant case, the record shows that the trial court had been made aware of every alleged error urged in this appeal. Before Dr. Reifman testified, defendant objected to his testimony because defendant had not been allowed to have his counsel present at the psychiatric examination conducted by Dr. Reifman, and because defendant did not receive adequate notification of the examination. Defendant's closing argument to the trial court stressed the State's alleged failure to prove him sane, at the time of the offense, beyond a reasonable doubt. And the same argument that is used in this appeal for reduction of sentence was employed by defendant in the aggravation and mitigation proceeding below. In light of the foregoing principles, we hold that all of the issues raised by defendant in this appeal are properly before this court despite the absence of any post-trial motion for a new trial, and all of the issues will be considered in this opinion.
We now address ourselves to defendant's contention that he was entitled to the presence of counsel at his second court-ordered psychiatric examination in order to protect his fifth amendment privilege against self-incrimination. We inquire first as to whether defendant has any fifth amendment privilege to be protected.
In Schmerber v. California (1966), 384 U.S. 757, 761, 16 L.Ed.2d 908, 914, 86 S.Ct. 1826, 1830, the Supreme Court formulated a test to determine the scope of the privilege against self-incrimination. "We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." The court concluded that the taking of a blood sample from a suspect accused of drunk driving did not provide the State with evidence of a testimonial or communicative nature, and, thus, did not violate the suspect's fifth amendment rights.
The distinction is between "real or physical evidence" and communications or testimony. However, the Schmerber court noted that the distinction is not always applicable:
"Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances. There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain `physical evidence,' for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the ...