APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
This is an appeal by Jose Mireles, the defendant, from his conviction for the murder of Marsha Keshick. Following his conviction by a jury the defendant was sentenced to 15 to 30 years in the Illinois State Penitentiary. On appeal he contends:
(1) the trial court erred in failing to sua sponte order a fitness hearing;
(2) defendant was denied effective assistance of counsel when his trial attorney failed to request a fitness hearing;
(3) incriminating statements made by the defendant should have been suppressed as involuntary because of defendant's mental condition when he made them;
(4) the trial court erred in excluding as hearsay testimony concerning defendant's irrational conduct and delusional thinking;
(5) defendant was denied due process when, in response to a defense request for discovery of a memorandum prepared by an assistant state's attorney, the trial court excised certain portions as a non-discoverable work product;
(6) the trial court erred in permitting hearsay testimony showing the intent or state of mind of the deceased;
(7) the trial court erred in permitting the State to use improper impeachment testimony as substantive evidence of defendant's sanity;
(8) the trial court abused its discretion when it permitted photographs of the deceased to be displayed to the jury;
(9) the trial court abused its discretion when it permitted a prejudicial display of electrical wires used to strangle the deceased, and when it permitted these wires to go to the jury;
(10) the jury was erroneously instructed that defendant had given a confession;
(11) the prosecution failed to establish defendant's sanity beyond a reasonable doubt;
(12) defendant's sentence was excessive.
We affirm the judgment and sentence of the trial court.
Defendant's contentions necessitate a summary of pretrial procedures as well as the evidence adduced at trial. Prior to trial, on April 11, 1975, at the request of the assistant public defender who then represented the defendant, Judge Maurice Pompey referred defendant to the Psychiatric Institute of the circuit court of Cook County for an examination concerning his fitness to stand trial. On April 22, 1975, Dr. Langner examined the defendant and found that he was not competent to stand trial.
On August 26, 1975, defendant was represented by private counsel before Judge Mackoff, who presided over all subsequent trial proceedings. Counsel informed the court that a defense of insanity was contemplated and requested a copy of the prior fitness report. The report could not be located at that time. Defense counsel told the court he did not wish to order another such examination, stating he had no basis for such a request. He also stated he had had "no problem with co-operation" with his client. However, when the court was informed by counsel that defendant had a "considerable history" of mental illness or emotional problems, it ordered a fitness examination. Defense counsel then joined in a request for such an examination, but asked that it be extended to the question of sanity as well. He again stated that he had no reason to question the fitness of the defendant.
On October 6, 1975, the court received the report of Dr. Robert Reifman, assistant director of the Psychiatric Institute. It was his opinion, based on an examination he conducted October 3, 1975, that the defendant was not mentally fit to stand trial. He had no opinion concerning defendant's sanity at the time of the offense. Defense counsel then obtained court permission for a private psychiatrist, Dr. Ilse Judas, to examine the defendant as to his fitness to stand trial and his sanity at the time of the offense. The court was also advised that the first evaluation of the defendant had indicated he was not competent to stand trial.
On October 31, 1975, at defense counsel's request, a competency hearing was set for November 20. However, on November 11 defense counsel informed the court that he believed that defendant was not unfit. This was on the basis of his own experience with the defendant as well as the report of Dr. Judas, which he had received but did not yet have available for the court. The court ruled that because of the earlier finding of Dr. Reifman it would schedule a fitness hearing on its own motion.
On December 23, 1975, defense counsel presented to the court the report of Dr. Judas. In that report Dr. Judas, who examined defendant on November 12, concluded that defendant was fit to stand trial:
"At this point his thought processes are not sufficiently interfered with nor is his affect so far withdrawn that he cannot understand or cooperate in a trial. It seemed to me this was adequately demonstrated by how he was able to deal with me in the interview.
Specifically, he was able to tell me why I was here to examine him according to what I knew his lawyers had told him. In addition, he held up without disintegration to extensive investigation on my part into his personal history, his offense, and the nature and the functions of his lawyers, social worker, and his fitness hearing and trial.
I see no good purpose in continuing to postpone his trial. As a matter of fact there may be adverse consequences as he sits out his guilt and uncertainties. Under the circumstances of his present confinement, he is in as good shape as he is apt to be."
Defense counsel again opposed holding a fitness hearing, basing this opposition on the report and on his experience with the defendant. However the matter was continued to January 21, 1976. On that date the court received the report of Dr. Reifman, who had examined the defendant a second time on January 16, 1976. He concluded that defendant was fit to stand trial "with medication." Upon inquiry by the court one of defendant's attorneys stated that to the best of her knowledge defendant was receiving medication. She also advised the court it was in the best interest of the defendant to have the trial as soon as possible. The court stated that based on the report of Dr. Judas and the revised opinion of Dr. Reifman indicating defendant's fitness for trial, no competency hearing was required.
Prior to trial defendant moved to suppress statements made by him following his arrest on the ground, inter alia, that he did not have sufficient mental capacity or control to understand the Miranda warnings given him or to knowingly and voluntarily waive the rights communicated by those warnings.
The following facts were adduced at the hearing on defendant's motion to suppress his statements. At about 6:45 p.m. on March 30, 1975, Officers Dale Whitmer and William Solke were sitting in a police car at 2648 West Haddon in Chicago when the defendant approached with his hands out in front of him. In response to their inquiry he identified himself and they arrested him. Defendant was upset and was sobbing at the time. Whitmer read him his Miranda rights and defendant said he understood them. He was then transported to the 13th District police station.
At the station Solke again advised defendant of his rights and defendant indicated that he understood them. He was sobbing as Solke spoke to him. Solke asked if he wanted coffee or cigarettes or whether he could do anything for him. Defendant responded, "If I asked you to kill me, would you?" In response to Solke's questions defendant gave his date of birth, social security number, and address.
At about 8 p.m. defendant was driven to the office of Area 4 Homicide. In the car defendant asked if there was still a death penalty in Illinois. He was told no and when asked why this concerned him he responded that he had taken a life. At Area 4 Officer Ben Wieclawek advised defendant for a third time of his rights and defendant again indicated that he understood them. Defendant then gave a statement, lasting about 30 minutes. During the interview he was emotional, crying and sobbing.
At about 9 p.m. Officer Thomas O'Connor spoke with the defendant. He informed him of his rights and defendant said he understood them. In the presence of members of defendant's family, whose presence was requested by the defendant, O'Connor questioned defendant about the killing and he gave a second statement. He cried during part of the questioning, but O'Connor described him as very responsive to the questions posed.
Assistant State's Attorney Arthur Stefans met with the defendant about 9:30 p.m. He identified himself and advised defendant of his rights. Defendant said he understood those rights and wished to make a statement concerning the incident. Defendant then related what had occurred in a narrative form. On occasion Stefans would interrupt with specific questions and defendant would respond to them. Stefans described defendant as calm and unemotional during the session; he never changed his expression and spoke in a monotone. After the statement was given Stefans asked defendant if he wished to repeat it to a court reporter. Defendant asked to speak with his family, and after doing so he declined to repeat the statement to a court reporter.
Dr. Baker Howell, the chief psychiatrist at Cermak Memorial Hospital, was the sole witness testifying for the defendant at the hearing. He observed the defendant every day from April 2, 1975, to April 10, 1975. His diagnosis was that defendant was suffering from schizophrenic reaction, paranoid type. Dr. Howell explained that this was a mental illness and a form of psychosis. Among its characteristics which he observed in the defendant was a distortion of thinking. Defendant was partially out of contact with reality. He did know where he was, who he was, and was able to give factual information such as his age, but he also claimed to have communicated with God. God had told him that he must die because of what he had done. Defendant also exhibited a bland affect, or observable feeling. He spoke like a machine, with no feeling involved; no sadness, joy, anger or fear. Dr. Howell noted, however, that this condition might change at any time. A third characteristic of the illness observed by Dr. Howell was suggestibility. He explained that one with this illness would appear docile, would answer all questions and would do what he was told, all out of a desire to avoid interaction with others. The examples the doctor saw in the defendant were that he did not object to his condition of being strapped down in a bed and was not concerned about where he was. Dr. Howell stated that this illness typically does not affect memory so that the person could respond to questions about past activities and relate facts from memory. Thus, the defendant responded in every respect appropriately to questions asked of him by the doctor.
Dr. Howell's opinion was that defendant's condition constituted a severe illness. He could not say how long defendant had been ill, but believed the condition existed prior to April 2 when he first saw the defendant. This opinion was based on the defendant having told him that at some prior time he had entered into a suicide pact with his girlfriend so they would be together forever.
On cross-examination the doctor conceded that defendant had been coherent and had directed his answers to the questions asked. Defendant told him he had strangled his girlfriend and deserved to die for that. The doctor said it would not be a distortion of thinking for one to believe he should be punished for committing a crime, or to feel badly about the act. Nor would it be a distortion of feeling to express sadness and cry over the loss of a loved one. On redirect examination the doctor maintained that coherence and relevance of responses to questions would be consistent with a diagnosis of schizophrenia. He also testified that sadness could also be consistent as it might be caused by depression, often associated with the illness.
At trial Leon Mattigosh, a counselor at Central YMCA Community College, testified that he first met Marsha Keshick in December 1974. Between that time and March 1975 he saw her many times in his capacity as a counselor. On Tuesday of the week prior to her death Marsha told him during a meeting in his office that she liked him. This testimony was elicited over defense objection. Later that same week Mattigosh attended a dinner party hosted by Lynn Dennis. Marsha was there and he sat and talked with her. Later defendant arrived but did not sit with them. He looked upset when he arrived and at one point that evening he yelled at Marsha about her wanting to come to the party and see Mattigosh. On March 30, 1975, at about 1 or 1:30 p.m., Marsha telephoned Mattigosh and they had a 10-minute conversation which abruptly ended when the phone line went dead.
Lynn Dennis testified that she was Marsha's classmate and had known her for nine to 10 months before her death. Dennis had known the defendant for about three years. She saw both of them on either Wednesday or Thursday evening before Marsha's death when she (Dennis) hosted a dinner party. That evening defendant told her he loved Marsha but feared they might break up. Over defense objection Dennis also testified that about two weeks before the dinner Marsha told her she and defendant were having problems, she was thinking of leaving him, and was interested in Mattigosh. Marsha also told her she had mentioned these matters to the defendant.
Over defense objection Officer Ben Wieclawek related the statement defendant gave him upon questioning at about 8:15 p.m. on March 30, 1975. Defendant stated he went to the apartment at 1340 North Washtenaw. At the front door he heard Marsha talking on the phone. When he heard her mention she was talking with another man he became angry and kicked the door in. Marsha hung up the phone and began writing a letter at a table. Defendant stood there for a few minutes and then went to a neighbor and borrowed a hammer and some nails to repair the door. After repairing it he returned the tools and came back to the apartment where Marsha was still writing a letter. Defendant told her that if he could not have her nobody else would. He strangled her with an electrical cord used in the kitchen and then placed her body on a mattress in the front room. He sat beside her for a few minutes, then tore the telephone cord from the socket and left. He borrowed a dollar from a neighbor in the building and went to a restaurant where he telephoned his mother and told her he had killed Marsha and planned to kill himself. From there he went to a CTA subway station and unsuccessfully attempted suicide by standing on the third rail. Defendant then went to the area of his mother's house where he was arrested.
Officer Wieclawek also testified that he himself entered that apartment about 6:15 p.m. on March 30. He identified an unfinished letter which he found on the kitchen table. It contained, inter alia, the following statements: "I am not going to marry Graywolf," and "I'll be moving and hopefully I'll be out of this house by the time you receive [sic] this letter."
Assistant State's Attorney Arthur Stefans related a second statement given by the defendant. Defendant told him he went to the apartment about 3 p.m. He heard Marsha talking on the telephone inside and when there was no response to his knocking he kicked it open. Marsha hung up the phone and in a brief conversation told him she had broken her vows to him and was seeing another man. After borrowing tools and repairing the door defendant approached Marsha as she wrote a letter and told her he was going to have to kill her. He then strangled her with the cord, which he left behind along with the letter when he left the apartment.
Lawrence Horton testified that on March 30 he was staying in an apartment directly opposite that of the defendant. That afternoon *fn1 he heard a kicking sound, looked out his door, and saw defendant standing by the door to defendant's apartment. One of the top panels of that door was out and defendant explained that he was angry and ...