APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1981.
In a jury trial, defendant, Simon Peter Nelson, was convicted of the murders of his six children. The jury was unable to reach a decision on whether to impose the death penalty. He was sentenced to 100 to 200 years' imprisonment on each of the six counts, the sentences to run concurrently.
Defendant raises seven issues on appeal, five of which involve his defense of insanity at the time of the commission of the offenses. Such facts as are pertinent and necessary to the resolution of the case follow and additional facts are included in the discussion of certain issues.
The defendant and his wife, Ann, were the parents of six minor children. Defendant's lack of "family orientation" and Ann's involvement with another male precipitated marital problems which had been the subject of much discussion and concern during the latter part of December 1977 and the first week of January 1978. It was decided that Ann should "get away" for a few days; on January 5, 1978, defendant saw her off on her trip to Milwaukee; the next day defendant called her a couple of times, and later in the day Ann called one of defendant's attorney friends and told him she wanted a divorce; the attorney friend advised the defendant of this conversation and suggested a temporary separation as a possible solution. Defendant went home, packed his belongings and made numerous calls to relatives and to Ann. During the early morning hours of January 7, 1978, he killed all six of his children with a rubber mallet and a large hunting knife. He then drove to Milwaukee to the hotel where Ann was staying and told her he had killed the children. After he physically abused Ann, her male friend, who was present, called the police, who subdued and arrested the defendant; he was charged with murder; he waived extradition and was taken to the Winnebago County jail on the same day, namely, January 7, 1978.
On January 9, 1978, counsel was appointed to represent the defendant, who was indicted by the grand jury. On the same day, officials of the county jail requested the State's attorney to have defendant examined in reference to "potential suicidal tendencies." An assistant State's attorney left directions for Dr. Carl Hamann, a psychiatrist, to go to the jail and examine defendant for this purpose. Later the same day, Dr. Hamann went to the jail and had been talking to defendant for 20 to 30 minutes when defendant's appointed counsel came to the jail to interview the defendant; counsel thereupon terminated Dr. Hamann's interview.
On January 20, 1978, the State filed a motion pursuant to section 115-6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 115-6) to compel defendant to submit to an examination by Dr. Hamann, the same psychiatrist who talked to him on January 9, 1978, at the county jail. On January 27, 1978, defendant filed a motion to prohibit the employment of Dr. Hamann by the State for the reason that he had interviewed defendant on January 9, 1978, in violation of defendant's right to remain silent and to have counsel present while being interrogated. The trial court denied defendant's motion, granted the State's motion, and appointed Dr. Hamann.
For nearly four months defendant stated that he had no memory of anything that occurred from midnight until about 6 a.m. on January 7, 1978 (the interval during which the six children were killed). After at least eight meetings with Dr. Lawrence Freedman, a psychiatrist retained by the defendant, defendant broke through his amnesia and he was able to recount the events and his activities on the night in question. At the trial, defendant took the stand; his counsel specifically directed him to repeat what he had already related to Dr. Freedman, Dr. Hamann and Dr. Cavanaugh; defendant related to the jury his account of the critical events which largely conformed to the testimony later given by the psychiatrists.
At the trial, Dr. Freedman testified in detail concerning defendant's relationship with his parents, his wife, and business associates; he considered that his wife's impending divorce suit was critical; that defendant was subjected to stress after stress during the 10 days prior to January 6, 1978, and that the telephone calls on the final night were more and more frantic and stressful, especially the last call to his wife when he was totally rejected; that it was his opinion that defendant at the time of the killings had a psychosis, reactive confusion — acute confusional state; and that this mental disease or defect deprived defendant of the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law. He based his opinion on 30 hours spent with defendant, his review of tapes on those sessions, on psychological tests given the defendant, on police reports and reports of defense attorneys of interviews with at least 60 persons who were able to detail various parts of defendant's history and background.
Dr. Hamann testified at the trial for the State; he had conducted 12 separate question and answer interviews with defendant, including the one on January 9, 1978; he found no evidence of a major mental disease or defect which would result in defendant's lack of substantial capacity to appreciate the criminality of his conduct or to conform to the law. In addition to the interviews, he based his opinion on investigative reports of the incident and psychological tests administered to the defendant. Finally, Dr. Hamann stated that one could not be legally insane unless he suffered from a major mental illness. On cross-examination he said that he had first concluded this after his interview of January 9; and the later interviews confirmed this.
Dr. James Cavanaugh was also appointed by the court to examine the defendant pursuant to the State's request and examined the defendant on May 5, 1978. His interview took some 2 1/2 hours. Dr. Cavanaugh also concluded that Nelson was not insane at the time of the incident. Cavanaugh believed this was a "revenge murder." He believed that Nelson "became enraged and wanted to strike out and wanted to get back at Ann in the most primitive and hurtful way he possibly could." Cavanaugh believed that Nelson decided that killing the children was the "most horrible way to do this." Cavanaugh was impressed with the goal-directed and apparently methodical nature of Nelson's actions on the night in question. Dr. Cavanaugh considered the psychological tests, the police reports, his own interview with Ann Nelson, and Dr. Freedman's diagnosis in arriving at his conclusion. He believed that Dr. Freedman's diagnosis was "totally inconsistent" with the facts in this case. Cavanaugh also stated that he found no major psychiatric illness syndrome in the facts of Nelson's background and that he did not believe that Nelson was in need of psychiatric treatment as of the day he interviewed him, May 5, 1978.
Dr. Roger Mick, a clinical psychologist, described the battery of psychological tests he administered to Nelson before trial. Also, over objection, Dr. Mick told the jury that in his opinion Nelson was not suffering from any mental illness or defect to any substantial degree which would impair his ability to conform his behavior to the law or to understand the law.
On appeal, defendant contends that:
(1) The appointment of Dr. Hamann as an examining psychiatrist for the State enabled Dr. Hamann to give testimony at trial based upon the January 9, 1978, interview with defendant in violation of defendant's right to remain silent and to have counsel present. *fn1
(2) The State violated the disclosure order of the court by failing to advise defendant's counsel that it had evidence that defendant had recently read the book Anatomy of a Murder; and that evidence admitted at trial that defendant had recently read the book Anatomy of a Murder was irrelevant and prejudicial.
(3) A clinical psychologist was erroneously permitted to give an opinion as to defendant's sanity at the time of the offense.
(4) The jury should have been instructed as to the consequences of a verdict of not guilty by reason of insanity.
(5) The court refused to permit the jury to hear tape recordings made at the time defendant broke through his amnesia as to critical events.
(6) Jurors were excluded in the selection process resulting in his conviction by a conviction prone jury.
(7) The sentence imposed was excessive.
The first error asserted by the defendant involves the appointment at the State's request of Dr. Hamann for the purpose of making a psychiatric examination of the defendant as provided in section 115-6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 115-6). This appointment was made over defendant's objection that Dr. Hamann was, in effect, disqualified to make this examination by reason of the January 9, 1978, interview with defendant, which was allegedly in violation of the defendant's right to remain silent and to have counsel present. It is defendant's position that this error greatly prejudiced his defense because Dr. Hamann subsequently testified at the trial for the State and, in part, based his opinion as to defendant's sanity on the January 9 interview. In response, the State has argued that regardless of Dr. Hamann's earlier interview, the trial court had no discretion in appointing him to examine the defendant regarding his sanity, since the governing statute provides that "* * * the Court shall, on motion of the State, order the defendant to submit to examination by at least one psychiatrist, to be named by the prosecuting attorney." (Ill. Rev. Stat. 1977, ch. 38, par. 115-6.) While this language appears to make it mandatory that the court appoint the psychiatrist the State designates, we do not believe that the statute should be so construed as to preclude the court from rejecting the State's nominee after objection by defendant, provided that there is a showing that such an appointment would infringe on his constitutional rights. To do so would be to apply an unconstitutional interpretation to the statute.
• 1 The critical issue, in our view, is whether communications of an accused in the course of a mental examination which bear on the issue of sanity, but not on the question of whether the defendant committed the crime charged, are "testimonial" evidence within the scope of the fifth amendment privilege against self-incrimination. (See Schmerber v. State of California (1966), 384 U.S. 757, 760-65, 16 L.Ed.2d 908, 914-17, 86 S.Ct. 1826, 1830-33.) While we recognize that the authorities are divided on this issue, we conclude that the more persuasive view is that communications relating only to the insanity defense are not constitutionally protected.
In United States v. Cohen (5th Cir. 1976), 530 F.2d 43, the defendant contended, as this defendant does, that since insanity negates an element of the crime, a court-ordered psychiatric examination, although solely to determine the accused's mental condition at the time of the offense, violates the privilege against self-incrimination. The court rejected the argument, noting that the examination does not determine guilt but the capacity to be guilty (530 F.2d 43, 47 n. 10); and held that since any statement made about the offense itself could be suppressed, the remaining communications were analogous to the required furnishing of "handwriting exemplars * * * and similar procedures." (530 F.2d 43, 48.) The court further concluded that rather than a per se rule which would "prevent no threatened evil" and would deprive the State of, usually, the only satisfactory method of meeting defendant's proof on the issue of sanity, the use of the testimony should be balanced against the total exclusion of the examination.
Cohen relied upon United States v. Albright (4th Cir. 1968), 388 F.2d 719, which reached a similar conclusion. In Albright the court noted:
"The maintenance of a `fair state-individual balance' clearly required that the government be permitted to have defendant examined. Once defendant offered some evidence that he was not sane, the burden of proving legal sanity was on the government. [Citation.] Where a defendant is indigent and claims reason to doubt his sanity, the government stands ready to supply him with the services of psychiatric experts necessary to his defense. * * *
It follows, also, that if the government is required `to shoulder the entire load,' it cannot be denied access to the only reliable means of ascertaining the truth ...