APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
After a jury trial in the circuit court of Cook County, defendant Robert S. Dominique was convicted of attempt murder, aggravated battery and attempt deviate sexual assault. The trial court merged the aggravated battery conviction into the attempt murder conviction and imposed concurrent sentences of from 100 to 200 years for attempt murder and from 6 to 18 years for attempt deviate sexual assault. Defendant appeals, contending that (1) the instructions on attempt murder were improper, (2) the trial court erred in finding him competent to stand trial, (3) defendant's right to remain silent was violated by the State's comments to the jury on defendant's failure to assert his insanity defense at the time of his arrest or ask to see a doctor before his alleged escape attempt, (4) the State failed to prove defendant was sane beyond reasonable doubt, and (5) the trial judge at the sentencing hearing improperly considered testimony describing defendant's attacks upon three other victims.
Complainant Margaret Cassidy, who lived one block from the CTA El tracks, testified that about 9:15 p.m. on November 13, 1975, she went out the back door of her apartment and was going down the alley behind her apartment a distance of about three-fourths of a block to visit a friend. The alley was very well lighted. Complainant was walking south down the alley when she passed a man coming out from a parking area underneath one of the buildings. Cassidy testified that she continued to walk down the alley and in a very short time she heard some footsteps behind her and a man's voice say, "Hey." She continued walking down the alley. The man said, "Hey, what's your name," and grabbed complainant's right upper arm. Complainant testified that she turned and looked in the face of defendant. She noticed that he had "wide and open wide" eyes. Cassidy thought that defendant had the features of a retarded person, but she did not think defendant was retarded.
Cassidy testified further that defendant told her he wanted her to perform oral sex with him. After she refused, defendant told her he was going to kill her. Complainant stepped backward and the defendant grabbed her. She screamed and defendant struck her with a knife on her left side. After she was hit the first time, she crouched over, making a semi-circle with her back, so that her back was to defendant. The defendant continued to stab her in the back, seven or eight times in all. After defendant stopped hitting her, complainant turned around and saw defendant run toward the area where the cars were parked and then run between two cars and between two buildings.
She got up and tried to run toward her friend's apartment, but realized she was bleeding and walked as fast as she could. When she arrived at her friend's apartment building, she entered the vestibule and rang the bell. An ambulance arrived at the apartment and took her to Edgewater Hospital. Her stay there lasted two weeks, one week in intensive care. She suffered five stab wounds and the collapse of both lungs.
She further testified that defendant had spoken coherently in a slow, moderate tone throughout the attack. She said she did not think defendant had been under the influence of alcohol or drugs. She believed defendant had been sane at the time, that he knew what he was doing and could have conformed his conduct to the requirements of the law.
Chicago Police Officer Robert Louis testified that at approximately 9:30 or 10 p.m. on November 13, 1975, he and James Morrison, another Chicago police officer, were both assigned to the mass transit unit and were working in civilian dress. They boarded a southbound Howard Street El train at Washington and State Streets. As the officers rode south on the train, two uniformed officers boarded at the Monroe Street stop and Officer Louis saw a man, later identified as defendant, put something under his coat. It was a can of beer, and when the uniformed officers left and went into the next car, defendant proceeded to drink his beer. At the Jackson and State Street stop, Officers Louis and Morrison escorted defendant off the train. They told defendant it was against the law to be drinking on the train. Defendant replied that he knew that and apologized for it. Defendant was placed under arrest and then searched. Officer Morrison recovered a 6-inch hunting knife that was in a leather holder defendant had in the middle of his back in his belt. Defendant told the officers that he was a cook in a restaurant, that he used the knife at work, and that he carried it for protection since he had once been robbed on the El. Defendant was subsequently released on bond.
Officer Louis further testified that in his opinion, based upon the time he had spent with defendant that night, defendant was sane, could appreciate the criminality of his conduct and could conform his conduct to the requirements of the law.
Chicago Police Officers James Nolan, Paul Roppel and John DiMaggio were assigned to investigate the stabbing of Margaret Cassidy. Investigator Nolan testified that speaking with Officer Robert Louis on November 20, 1975, the investigators obtained eight photographs, including a photograph of defendant, and went to Edgewater Hospital. There, Cassidy viewed the photographs and made an identification, but had reservations since the man in the photograph had a moustache, but her attacker had had none.
Later that night, Investigators Nolan and Roppel and Sergeant DiMaggio went to a hotel at 12 West Van Buren Street, found defendant and subsequently placed him under arrest. At this time defendant was advised of his Miranda rights. Investigator Nolan further testified that defendant was taken to Area Six homicide headquarters. At that time defendant denied knowledge of or participation in the attack on Cassidy. On the morning of November 21, 1975, defendant was again advised of his Miranda rights. Defendant then stated that on November 13, 1975, he had demanded oral sex from a woman he had passed in an alley in the Loyola area and that when she refused he stabbed her. When an approaching car frightened him, he fled through a gangway. Defendant further stated that he boarded a southbound El train, got off at a station, bought two beers and reboarded a southbound El. At the Jackson Street station he was arrested, still carrying the knife he had used to attack the woman.
After this statement, defendant guided the police to the scene of the attack. He pointed out the underground parking area he had walked through when he first saw the victim walking down the alley. He also pointed out the spot where he had stopped the girl and had the short conversation. Investigator Nolan further testified that defendant then directed their attention to the place where the girl fell after he had stabbed her. Defendant pointed out the gangway where he had intended to take his victim in order to have oral sex performed.
The officers then took defendant back to the Area Six police station, where an Assistant State's Attorney took a written statement from defendant. Defendant told the Assistant State's Attorney substantially the same version of the attack that he had told the officers. In his statement, defendant added the fact that he put his hat in a garbage can and took his coat off and threw it over his arm so that he would not be recognized, since he believed the people in the car had gotten a good look at him. Defendant was then placed in a lineup with four other persons. Cassidy identified defendant as her attacker.
A microanalyst at the Chicago Crime Laboratory testified that Cassidy's blood was Type O, the same as the blood on the blade of the knife and the scabbard taken from defendant on the evening of November 13, 1975.
Edward Curtis, a lieutenant with the Cook County sheriff's police assigned to the Department of Corrections at the Cook County jail, testified that on May 5, 1976, he was in charge of the movement of prisoners from the courtrooms to the jail. At approximately 9 o'clock that morning, he had a conversation with Gene Brown regarding defendant, an inmate at the jail. After the conversation, Curtis asked the chief of security at the jail for permission to set up a surveillance situation on defendant. Curtis returned to the main boulevard in the basement of the jail complex and passed defendant dressed in a gray business suit and heading in the direction of the yard. The lieutenant went to the tunnel that led to the work release unit and to the loading dock of the central kitchen. The loading dock abutted Sacramento Avenue. Prisoners were not permitted in the tunnel unless they had special authorization. Defendant was not authorized to be in the area. A short time later, defendant was arrested while walking in the tunnel.
David C. Accardi, an investigator for the Cook County Department of Corrections, testified that on May 5, 1976, he investigated defendant's attempted escape from the county jail. He took a statement from defendant concerning the attempted escape. The investigator's further testimony concerning the substance of the statement was stricken on motion by the State.
Defendant testified that he had been born and raised in Long Island, New York. His father and mother had been divorced when he was one year old. His mother remarried when he was five, and defendant lived in a household with four half-brothers and a half-sister. Defendant testified that he had had a bad relationship with his mother, in that he reminded her of his real father. He stated he had completed the fifth grade, and that he had been confined to Central Islip State Hospital, a mental hospital, between the ages of 12 and 20. Defendant further testified that while at the hospital he had been given Thorazine and placed in restraints because he was always getting in fights. He also stated that he was given marijuana and alcohol for homosexual acts. When he had been released from the hospital, he had lived with his mother and stepfather for a couple of months, but left because he could not get along and felt like a stranger. He said that he had gone to New York City and had lived there with a homosexual who had picked him up.
Defendant testified that he had attempted to escape from the Cook County jail because he was not feeling good, was having nightmares, was nervous, and wanted to see a psychiatrist. After his escape attempt, he was seen by Doctor Howell. Since that time, defendant had been given the tranquilizing drugs, Thorazine and Artane.
The defense called Investigator Paul J. Roppel. He testified that on November 20, 1975, he was in defendant's hotel room where he observed defendant wearing ladies' panties and a woman's nightgown. He further testified that while in the hotel room he observed photographs depicting men and women engaged in oral sex.
It was stipulated that defendant's intelligence quotient was 92.
Dr. Katz, a psychiatrist, testified for the defense. He had examined defendant for one hour 13 months after the offense. Dr. Katz testified that on the basis of his examination he had made a tentative diagnosis that defendant had a paranoid psychosis, and that subsequent documents, consisting of a summary of defendant's stay in the mental hospital, a report of a Dr. Mellinger finding defendant had a personality disorder, four police reports, defendant's written statement and a report of an EEG ordered by Dr. Katz and taken on defendant, only added to that diagnosis. The doctor also concluded that the hypothetical man represented by facts assumed in defendant's hypothetical question was suffering from a mental disease on November 13, 1975, and had lacked the substantial capacity to conform his conduct to the requirements of the law. Dr. Katz thought that defendant had sociopathic characteristics, would tend to lie and misrepresent the truth and, since defendant was facing a long prison term at the time of the interview, possibly exaggerated his unusual behavior.
In rebuttal, the prosecution called Dr. John R. Hughes. A neurologist, he was licensed to practice medicine and specialized in the interpretation of brain waves. Dr. Hughes had evaluated the EEG tracing taken on defendant. He stated that there was nothing abnormal in the EEG and that ...