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People v. Kuhn

OPINION FILED JANUARY 26, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JACK KUHN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. CONWAY L. SPANTON, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 22, 1979.

This case comes to us on appeal from the circuit court of Rock Island County. In a bench trial, wherein the only question was whether the defendant was legally sane at the time he committed the crimes, the circuit court concluded that defendant was, in fact, sane and therefore guilty of two counts of kidnapping and one count each of rape, aggravated battery, and robbery. Sentence was imposed of not less than 8 nor more than 24 years for rape, not less than 3 nor more than 9 years for the kidnapping and robbery charges, and not less than 1 nor more than 3 years for the aggravated battery. The sentences were to run concurrently.

The testimony adduced at trial tells a story of Christmas nightmare for several innocent parties. Walter Roth testified that on December 24, 1974, he was employed as a cab driver in Davenport, Iowa. At about 10 p.m. on that date he picked up a fare in Davenport and transported him first to Milan, then Moline, Illinois. Upon their arrival in Moline, the fare placed his hand in his pocket and while pointing something through his coat at Mr. Roth demanded Roth's money. Roth gave the man, whom he identified in court as the defendant, some $30 or $40. The defendant ordered the cab driver inside a house and, once there, threw him to the floor and started to beat and stomp upon him. This beating lasted, off and on, for about an hour and was accompanied by the defendant's referring to Roth as his father and his wife's lover. The defendant, whom Roth thought had taken some drugs during the evening, would calm down for awhile but then fly off into a rage again.

Ms. Vendetta Strong, a close cousin of the defendant who lived in the house, confirmed Mr. Roth's story. She added that after tying Mr. Roth up and making him lie face down on the floor, the defendant had intercourse with her against her will. According to Ms. Strong the defendant then calmed down and sat still for awhile, but eventually led Mr. Roth into a bathroom and Ms. Strong to a sofa where he again had intercourse with her after threatening others in the house.

Sometime later the five persons in the house, the defendant, Mr. Roth, Ms. Strong, Ms. Strong's mentally handicapped brother and her palsied son, entered Ms. Strong's car at the defendant's direction. The five then drove to Interstate 74 and headed east, stopping twice at the defendant's suggestion, once near Peoria and once in Indiana. Just prior to leaving, however, the defendant moved the cab behind the house so it could not be found.

While travelling on the interstate, the defendant was the one giving the directions. He mentioned going to Virginia to kill his ex-wife's husband and his ex-wife. The quintet finally stopped in Ohio where they drove around looking for an apparent friend of the defendant. They finally found him and the defendant left the car to speak with the man. As he did so Ms. Strong handed Mr. Roth an extra key. The four kidnap victims drove off, stopping only briefly in Ohio before returning to Moline where they reported the matter to law enforcement officers in Rock Island County.

Mr. Roth had never seen the defendant before the time of this incident. He thought the defendant was well oriented as to time and place, although he described the defendant's conduct as "irrational." Ms. Strong was the defendant's cousin, had known him all his life, and considered herself a close relative of his. She testified that he did not normally act as he did during this incident.

Two psychiatrists examined the defendant in connection with proceedings in the State of Ohio which concerned an offense committed in that State on December 26, 1974. One, Dr. Francisco Vidal, examined the defendant in March 1975, and concluded that he was suffering from a mental illness called schizophrenia-reaction, paranoid type. This caused Mr. Kuhn to be unable to distinguish right from wrong. Dr. Vidal was generally unwilling to speculate concerning the defendant's condition three months before the examination. A second psychiatrist, Dr. Sheldon Rogers, examined Kuhn in July of 1976, considering both a personal interview and the defendant's records from the mental hospital in Ohio. Dr. Rogers concluded that the defendant hallucinated frequently, was mentally defective, and suffered from schizophrenia. In response to a hypothetical question, Dr. Rogers explained that the defendant was unable to distinguish right from wrong in December of 1974.

These psychiatrists were unable to testify at the defendant's trial in his case in Rock Island County. A transcript of their testimony from the Ohio proceedings was, nonetheless, available. This transcript was referred to by an examining psychiatrist in Illinois and was admitted as Defendant's Exhibit 1 at trial.

Dr. Thomas Tourlentes, a psychiatrist in the State of Illinois, did testify at the defendant's trial in this case. He examined the defendant and found him to be well oriented as to time and place and diagnosed him as having an antisocial personality and problems with alcohol and drugs. In response to a question as to whether the defendant had the capacity to appreciate the criminality of his conduct or to conform his conduct on the 24th of December, 1974, Dr. Tourlentes answered that the defendant did have sufficient awareness of what he was doing and what the consequences of what he was doing might be. The doctor continued by testifying that the defendant's antisocial personality when combined with alcohol and drugs could result in impairment of mental functions which resembled psychotic symptoms.

Based upon the testimony of these lay and expert witnesses, the trial court concluded that the defendant was legally sane. It ruled, consequently, that the defendant was guilty of each offense charged.

The defendant alleges on appeal that the circuit court erred in finding that the State's evidence was sufficient to overcome the showing of defendant's insanity. Section 6-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 6-2) provides the following definition of the affirmative defense of insanity:

"(a) 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 ...


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