APPEAL from the Circuit Court of Cook County; the Hon. R.
EUGENE PINCHAM, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, Julius Anderson, was charged by indictment with burglary, armed robbery, rape and deviate sexual assault. (Ill. Rev. Stat. 1975, ch. 38, pars. 19-1, 18-2, 11-1, 11-3.) Anderson entered a plea of not guilty by reason of insanity. In a jury trial he was found guilty of all charges. Defendant was sentenced to serve seven years for burglary, 30 years for armed robbery, 35 years for rape and 40 years for deviate sexual assault, all sentences to run concurrently. From those judgments and sentences defendant appeals, presenting the following issues for review: (1) whether the prosecution's cross-examination of defense experts in terms of "sanity" and "insanity" constituted prejudicial error; (2) whether the trial court erred in allowing the prosecution to cross-examine a defense expert on the basis of a study (the "Rosenham Report") where the authoritativeness of the study, which indicated the symptoms of psychosis could be feigned, was never established; (3) whether the trial court should have instructed the jury to disregard the prosecution's suggestion that defendant could have read the Rosenham study at college where no evidence was ever presented to the jury that defendant had attended college; (4) whether the trial court on its own motion should have instructed the jury as to what mental states are necessary to commit the crimes of armed robbery, rape and deviate sexual assault; and (5) whether the sentences imposed should be vacated and the cause remanded for a new sentencing hearing where defendant was not advised of his right to be sentenced under the law as it existed at the time the offenses were committed.
For the reasons hereinafter set forth the judgments of defendant's convictions are affirmed, the sentences imposed thereon are vacated and the cause is remanded for a new sentencing hearing.
At trial defendant raised the defense of insanity. On appeal he does not question the legal sufficiency of the evidence the State elicited to prove his sanity but argues that the judgments and sentences must be reversed on other grounds. Because neither the facts of these crimes nor the sanity of defendant at the time he committed them is now in dispute, a detailed recitation of the evidence is unnecessary. What follows is a brief summary of the evidence.
On May 11, 1977, at approximately 3:15 p.m., defendant surprised the victim when she was alone in her apartment on the north side of Chicago. At gunpoint defendant robbed the victim, then bound her hands behind her back with nylon stockings. After defendant discovered that the victim's roommate had a few hundred dollars in a bank account, defendant told her that they would wait until the roommate came home from work, then all three of them would drive to the bank where the roommate would withdraw her funds. While they were waiting, defendant, placing the loaded revolver to the victim's temple and threatening to "blow her brains out," forced the victim to submit to acts of anal and sexual intercourse. Defendant put on one of the victim's sweaters, then went into her roommate's closet and removed a pair of blue jeans. Concerned that the victim's roommate might not be so easily subdued, defendant decided to leave before she returned from work. He placed the victim in the hall closet, blocking it with a desk, rummaged around in the apartment for a few minutes, then left. The victim escaped and ran to another apartment for help. Later that day a physician at St. Francis Hospital in Evanston found evidence of spermatazoa in her vaginal area.
The following afternoon (May 12) defendant was arrested by the Evanston police who had spotted a handgun in his waistband and had observed him wearing the sweater and jeans he had removed from the apartment. A search of defendant yielded other property taken in the robbery. Defendant was thereafter identified in a lineup and his fingerprints were matched to those developed at the scene.
In support of his insanity defense defendant presented testimony from five psychiatrists, two registered psychologists and two laymen. The psychiatrists, Drs. Prabeep Rattan, Paul Cherian, Thomas Catteo, Edward J. Kelleher and Jerome Katz, and the psychologists, Drs. Edward Blumstein and Paul Kennedy, all testified that defendant was suffering from schizophrenia. Only Dr. Katz, however, expressed the opinion that on the date of the offenses, May 11, 1977, defendant was not able to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Dr. Katz did not include this conclusion in either of his written examination reports because he "overlooked" it. The other defense experts either expressed no opinion as to defendant's sanity or stated that defendant's mental illness did not prevent him from appreciating the criminality of his conduct and from conforming his conduct to the requirements of the law. These witnesses also expressed the belief that defendant had tried to manipulate their psychiatric interviews by feigning various symptoms characteristic of schizophrenia.
Defendant's former parole officer, Leon Johnson, testified that defendant was mentally ill but knew the difference between right and wrong and was able to conform his conduct to the requirements of the law and to appreciate the criminality of his conduct. Dwight Woodruff, a Cook County deputy sheriff, testified regarding what he believed was a suicide attempt by defendant when he set his locked cell on fire in December 1977.
In rebuttal the State called Dr. Frank M. Lorimer, a board certified psychiatrist on the staff of the Psychiatric Institute of the Circuit Court, Michael Jettner, the arresting officer, and Ferdinand Minelli, an assistant state's attorney who was present at defendant's lineup. Dr. Lorimer, who interviewed defendant on six different occasions both before and after the date of the offenses, diagnosed defendant's illness as paranoid schizophrenia in remission, in a personality disorder, antisocial. He believed defendant was a malingerer and said defendant had attempted to manipulate the interviews. Applying the legal definition of insanity, Dr. Lorimer expressed the opinion that defendant was sane on May 27, 1977, 16 days after the offense. Officer Jettner and Mr. Minelli testified regarding defendant's post-arrest behavior. The jury returned verdicts of guilty on all charges, and sentences were imposed as heretofore indicated.
Defendant's first assignment of error on appeal is that the trial court abused its discretion in allowing the State to cross-examine defense experts in terms of "sanity" and "insanity." The State responds, initially, that defendant has waived his right to review of this alleged error where he failed either to object to the questions at trial or to include this issue in his written post-trial motion.
• 1 Defendant cites 11 instances of allegedly improper cross-examination. In only three, however, did defendant object on the ground now urged as error. As to the remaining eight, we consider them waived. Our supreme court, in People v. Carlson (1980), 79 Ill.2d 564, 576, 404 N.E.2d 233, stated:
"It is fundamental to our adversarial system that counsel object at trial to errors. * * * The rationale underlying this procedural requirement is based on the need for timely resolution of evidentiary questions at trial. * * * Thus, we have generally held that the failure to object to the admission of evidence operates as a waiver of the right to consider the question on appeal."
The waiver doctrine is not absolute. Rule 615(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 615(a)) provides in pertinent part that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." This rule permits review of alleged errors in cases where the evidence is closely balanced and in cases where the errors are of such magnitude that the commission thereof denies the accused a fair and impartial trial. (Carlson, at 576-77.) Defendant does not claim and we do not find that the evidence of defendant's sanity at the time of the offenses was "closely balanced." Nor are we able to conclude that the error could have denied defendant a fair and impartial trial. In People v. Zemola (1972), 9 Ill. App.3d 424, 292 N.E.2d 195, the court held that the defendant had waived any objection to the ...