APPEAL from the Circuit Court of Du Page County; the Hon.
BRUCE R. FAWELL, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 17, 1981.
Thomas La Fiura, pursuant to indictment, was found guilty by a Du Page County jury of armed violence and aggravated assault in connection with the shooting of two Addison policemen. The trial court vacated the conviction of aggravated assault but sentenced defendant to 10 years' imprisonment for armed violence. (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2.) From this sentence defendant appeals.
At about noon on October 1, 1978, defendant telephoned the Addison Police Department to complain about a man with a gun in his house. Upon further inquiry by the police dispatcher, defendant said that he himself had the gun and would shoot the first policeman to arrive at the premises.
La Fiura had been severely depressed. His wife, with whom he had bitterly quarreled three nights before, had not returned home and could not be found. To console himself, La Fiura had consumed a large quantity of whiskey from Thursday evening until the early morning hours of Sunday, October 1. Later that morning at his parents' home he resolved to commit suicide. Defendant testified that he loaded a shotgun and placed it against his head but could not bring himself to pull the trigger. It was then that he called the Addison Police Department.
When the first police car arrived at the house, defendant opened the front door and fired the shotgun in the direction of the car, wounding the two officers. At trial, defendant claimed that this was done to provoke the police into shooting him since he was unable to shoot himself. Shortly thereafter, a second squad car arrived. La Fiura came out of the house and, still holding the shotgun, began walking toward one of the officers. After ignoring repeated demands that he halt and drop the shotgun, two policemen fired upon defendant striking him in the upper thorax and leg.
On June 15, 1979, more than eight months after the shooting, defendant was brought to trial where he presented evidence in support of his defense of insanity. Special verdict forms of not guilty by reason of insanity were submitted to the jury together with the general verdict forms of guilty and not guilty.
Defendant first assigns as error the trial court's omission of certain jury instructions with regard to the special verdict of not guilty by reason of insanity. By supplemental record to this court the parties have stipulated that prior to the conference on instructions reported of record, an off-the-record conference was held. Defense counsel requested the court to instruct the jury as set forth in section 115-4(j) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 115-4(j)). This statute provides in part:
"(j) * * * When the affirmative defense of insanity has been presented during the trial, the court shall provide the jury not only with general verdict forms but also with a special verdict form of not guilty by reason of insanity, as to each offense charged, and in such event the court shall separately instruct the jury that such a special verdict of not guilty by reason of insanity may be returned instead of a general verdict but such special verdict requires a finding by the jury that the defendant committed the acts charged but at the time of the commission of those acts the defendant was insane. In the event of a verdict of not guilty by reason of insanity, a hearing shall be held pursuant to the Mental Health Code of 1967 to determine whether the defendant is in need of mental treatment." (Emphasis added.)
The supplemental record further discloses that the trial court refused to issue written instructions incorporating the text of this paragraph but agreed to explain to the jury in its own words what the paragraph required. Additionally, the court stated that it would issue written instructions pertaining to the issue of insanity but only as provided in the Illinois Pattern Jury Instructions, Criminal (1968) (hereinafter cited as IPI Criminal).
Despite its promise to orally instruct the jury on the substance of section 115-4(j), only the IPI written forms were used. No other comments were made by the court to the jury concerning the special insanity verdict or, specifically, the substance of section 115-4(j).
The pertinent written instructions submitted to the jury included People's Instruction No. 25 (patterned after IPI Criminal No. 24.01), which sets forth the statutory definition of insanity, and People's Instruction No. 13A (IPI Criminal No. 25.01), which purports to instruct on the issues involved in the insanity defense in relation to the elements of the underlying crime and the burden of proof. These instructions are reproduced below as they appear in the record.
"People's Instruction No. 25.
The following instruction was given by the Court with no objection:
A person is insane and not criminally responsible for his conduct if at the time of the conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct ...