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People v. Dunigan





APPEAL from the Circuit Court of Cook County; the Hon. FRANK W. BARBARO, Judge, presiding.


Rehearing denied June 26, 1981.

Following a jury trial, defendant was convicted of attempt murder (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4, 9-1), rape (Ill. Rev. Stat. 1977, ch. 38, par. 11-1), aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4) and burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1). He was sentenced to concurrent terms of 6 to 18 years for the attempt murder of Agnes Silverstein, 100 to 300 years for her rape, 3 to 9 years for the aggravated battery of her husband, Leo Silverstein, and 5 to 15 years for the burglary of their apartment.

Defendant appeals and raises the following issues: (1) whether he was entitled to a substitution of judges after the judge had ex parte communications with government attorneys prior to trial and with the victims of the crime prior to sentencing; (2) whether the trial judge was required to recuse himself from hearing defendant's motion for substitution of judges; (3) whether the trial court properly restricted his access to intelligence information contained in the Chicago Police Department's "Red Squad Files"; (4) whether he was denied his constitutional rights to compulsory process and due process of law (U.S. Const., amends. VI, XIV), when the trial court quashed his subpoenas for evidence and denied him a continuance to prepare for his defense; (5) whether the trial court properly ruled that a lay witness could not render an opinion as to the existence of defendant's mental illness or defect; (6) whether the trial court erred in ruling that a lay witness could not offer an opinion as to defendant's sanity based upon observations 10 and 16 months after the crime; (7) whether the evidence at trial was sufficient to raise a reasonable doubt as to defendant's sanity and therefore justify the tender of an insanity instruction to the jury; (8) whether the jury was properly instructed on the "automatism" defense; (9) whether the trial court correctly found a lay witness incompetent to testify concerning defendant's ability to "formulate a conscious objective" and to perform "conscious volitional acts"; (10) whether the jury was properly instructed on defendant's theories of defense; (11) whether the trial court's oral directions to the court reporter to strike and to the jury to disregard evidence of defendant's sanity were required to be in writing; (12) whether the trial court erred in denying defendant's motion for a mistrial in response to certain notes from the jury during their deliberations; (13) whether defendant's sentence for rape is excessive. The relevant facts follow.

On Christmas morning, 1970, at about 11:30 a.m., Robert McPheterain, a doorman at the John Hancock Building in Chicago, was on duty. He noticed a black man enter the lobby and approach the "marquee." The man wore a black "Zorro" hat, a black three-quarter length coat, a black vest, dark pants, black boots and wire rimmed glasses. He had a "fine" moustache and facial hair in the area of his chin. At trial, McPheterain identified a picture of defendant as the man he saw that morning.

The man examined the building directory for about 15 minutes, then dialed a number on one of the building phones. When McPheterain approached him, he requested entry to deliver a telegram to apartment 6808, the "Ethnic Press." McPheterain called the occupant of that apartment and was told not to admit the man unless he produced a telegram. The man fumbled through a small black book, but could not find the telegram, stating that he had apparently left it outside in the car. The doorman watched the man as he left the lobby and walked west on Delaware to Michigan, south on Michigan to Chestnut and then east toward Seneca. McPheterain testified that he knew this man was not the regular messenger for this building.

Later, at about 1 that afternoon, Leo Silverstein and his wife Agnes returned from Holy Name Cathedral to 860 N. De Witt, Chicago. They took the elevator to their apartment on the 19th floor. As they reached their apartment they were accosted by a black man carrying a black leather coat over his arm and wearing a large black hat. The Silversteins both identified this man in court as the defendant. He put a gun to the back of Leo Silverstein's head, and said "If you make any noise I'm going to kill you both." He then forced them into their apartment and closed the door, attached the chain, and removed his hat and glasses.

At gunpoint, he ordered them into the bedroom where he closed the door and pulled the shade. He ordered them to strip. Agnes Silverstein pleaded with the man to leave them alone. He told her husband to make her "shut up" or he would blow his head off and "put the brains" in front of her. He then hit her husband over the left eye. Then, he ordered him to lie on the floor on his stomach, and he tied his legs and his hands behind his back. As he was doing so, Agnes Silverstein attempted to grab the gun which had been placed on the bed. They struggled, but the assailant gained control of the weapon. He ordered her to lie down and he tied her hands together. As she lay a few feet away from her husband, the man raped her, taunting her husband with remarks like, "How do you feel somebody doing this to your wife, doesn't it make you sick," and "doesn't this make you want to fight."

After he finished the rape, he tied her feet together. He then ordered her and her husband to crawl to opposite sides of the bedroom. Then he replaced the bullet clip on his gun with a larger one and threatened to kill a lot of people if they were disturbed. Agnes Silverstein continued to plead for their lives, but stopped when the man told her husband to keep her quiet. He struck her husband with his fist in the mouth and in the groin area.

The assailant asked Leo Silverstein his name and occupation. When he told him he was in the real estate business, the man asked why white people lived in high rise buildings and poor black people had to live in areas like Cabrini Green. When he discovered that Agnes Silverstein was German, he said that the only good thing Hitler did was to kill all the Jews. During this time, he spoke to them in a normal, conversational tone, and appeared cool and coherent. Then, the phone rang and he cut the telephone wires. He continued to beat them and pretended to stab Leo Silverstein in the head with a letter opener, but hit him in the chest instead with his fist and the handle.

He left and returned to the room several times. On one occasion he returned with roast beef from the kitchen. He ate several pieces of the meat which he cut off with a long knife, saying at the same time how he enjoyed it along with the jello he had found. Later, he came back with a bottle of Scotch. After drinking from the bottle he poured some over the victims. Then, he attempted to suffocate Agnes Silverstein with pillows, but was not successful. He drew swastikas on the bedroom mirror and circles on the door with lipstick and went through the pockets of their clothing, boasting that he had more money than they.

At about dusk, after he had been in the apartment for about four hours, he forced his penis into the woman's mouth. He then raped her again. Later, he punched her in the nose when he heard her talking, and stuffed a gag into her mouth. He tightened the bindings on her hands so that they cut into her flesh. He then rebound her husband's hands with a lamp cord. After putting on rubber gloves, the assailant wiped off various things in the apartment that he had touched. He also took a knife, grabbed her husband's penis and "massaged" it a little. Suddenly, he grabbed the gun and left the room.

He chased Agnes Silverstein, who had freed the ties from her feet and run out of the bedroom to the front door. She was unable to detach the chain, however, because her hands were so securely bound. The assailant was unable to pull her back to the bedroom because her husband had shut and locked the bedroom door, broken the window and called for help. The assailant told her he would kill her for this. She pleaded with him, but he shot her in the head behind the left ear. Although she was wounded and bleeding, she crawled to the bedroom, calling her husband and scratching on the bedroom door. He pulled her in, locked the door and cut the ties from her wrists.

At about 4:30 p.m. traffic patrolman Roland Harvey heard someone screaming for help. He saw a window shade flapping in a building on the northwest corner of De Witt and Chestnut. He ran to the building, and with the doorman went to apartment 1902 where they gained entry by using the doorman's pass key. He saw large amounts of blood splattered on the walls and the floor of the apartment. A black hat lay on the floor near the bedroom door. Leo Silverstein was calling for help from the bedroom, but he would not open the door until he recognized the doorman's voice. When the door was opened they found Agnes and Leo Silverstein naked on the floor. There was a pool of blood near her head and her husband was also bleeding from the head. After he gave Officer Harvey a description of the offender, the Silversteins were taken to the hospital in an ambulance.

At about 6 a.m. the following day, Michael Motch, an area resident, noticed something "glittering" in an areaway between his building at 65 E. Oak Street and the adjoining building. He saw a 9-millimeter Browning automatic pistol with a long bullet clip lying under pieces of plywood. He turned the gun over to the police. Their investigation revealed that it was registered to defendant. A firearm expert's examination of this gun revealed that the loaded weapon's magazine carried 9 hollow-point bullets and one fully jacketed bullet. The bullet recovered from the Silverstein's apartment was a hollow-point bullet. However, it was too mutilated to determine whether it was fired from the recovered pistol. A cartridge casing recovered at the apartment, however, was found to have been fired from defendant's gun. None of the fingerprints found at the apartment matched those of defendant. Along with the fired bullet and cartridge casing, police recovered several knives, an ammunition clip, a small black notebook, a black hat, glasses and a black leather coat.

Subsequently, Leo Silverstein positively identified a picture of defendant from a number of photographs shown to him by the police. A warrant issued for defendant's arrest, but the police were unable to find him.

On July 12, 1976, Kurt Jensen, a police officer in Copenhagen, Denmark, arrested defendant there for having over-stayed his three-months visa. Defendant, who was using a Canadian passport under the name of "Lark Daniel Anderson" was deported to the United States and turned over to local authorities.

On August 9, 1976, both victims viewed a six man lineup and immediately recognized defendant as the person who had assaulted them.

The following evidence was introduced on defendant's behalf.

Patricia Brown met defendant in New York City in August or September of 1971 and knew him as "Billy Hinton." They had an "emotional" relationship and she was "in love" with him. During this relationship she testified that defendant complained of severe headaches, and would fall asleep afterwards for long periods of time. Defendant later told her that he did not remember anything that happened during the headaches. He neither took medication nor saw a doctor for these headaches.

One evening in October of 1971, she had defendant and some friends over for dinner. He was particularly quiet that night and did not eat. After dinner, she found that defendant, who insisted upon doing the dishes, had swept everything off the kitchen table including the dishes, with his hand. When she screamed at him and asked what he was doing, he responded by screaming and banging his head against the wall. He then slept for 12 to 14 hours, and later only remembered the headaches.

In the spring of 1972, during a four-day sleepless period, defendant told her that he feared for her life and that the mob would "get" him. He also expounded on the evils of dope pushers. After these four days he slept for a long time after experiencing a headache. Defendant claimed that he only remembered the headaches. During their relationship, he was secretive about his past and never informed her of his wife and children. Defendant told her that he was a writer, and that he was running from "the mob".

Diane Pratt, an urban planner for the city of Chicago, testified that she met defendant late in 1968. At that time, he was lecturing with the Black Panther Party at Barat College in Lake Forest, Illinois. She was not romantically involved with defendant. After the deaths of Fred Hampton and Mark Clark, defendant's behavior changed. He started asking friends to sample his food and drink before him because the government was putting "dope" in them.

Early in December of 1970, she and defendant were at a party following a rally at a hospital at which defendant had given a speech requesting medical supplies. Shortly after the party started, he began to address the people at the party as if they were the hospital staff. When the people teased him, he called them greedy doctors and dope peddlers. Although defendant seemed coherent, his behavior was "totally out of context with the situation." Later, he seemed to be in pain. Biting on a handkerchief, he told her that he was having a headache. After sleeping, defendant had no recollection of the "speech" he had given at the party.

About two weeks later, Pratt met defendant at the Tap Root Pub with some other friends for dinner. He refused to accompany her inside, fearing "police spies". When she tried to persuade him to go in, he uncharacteristically jerked away very harshly. In her opinion, he had "a breakdown of some sort" and seemed "crazy and very disoriented." She thought he was insane and unable to conform his conduct to the requirements of the law.

Defendant testified in his own behalf. He was born in Chicago, and lived in the Cabrini Green housing project with his family from the time he was 10 years old. He was an honor student at Waller High School and was not involved in gang activities. At the age of 14, his mother lost her eyesight, and he stayed home quite a bit to care for her and the children while his father worked.

In 1961 or 1963, defendant felt in jeopardy because of his race. His family would drive to Mississippi in the summer, and when they stopped at gas stations, his father's demeanor would change. Defendant was confused by this behavior at first, but later determined that people were different in Mississippi and that his father's actions were for his safety.

When he was about 19, he met the woman who was to become his wife. She became pregnant and they married against his family's wishes, since he felt that men should not abandon women. He quit school during his senior year of high school to get a job. Subsequently, he re-enrolled in school, passed the G.E.D test and worked for the Chicago Committee on Urban Opportunity. He enrolled in a work-study program at North-eastern University and worked as a cameraman.

Shortly after he joined the Black Panther Party in November of 1968, defendant and his wife agreed to separate for the safety of the family, and to move the children into his mother-in-law's house. He testified that he had some "interesting encounters" with the police around this time, including an incident that happened while walking from the subway with his wife. He was stopped by an unmarked squad car, handcuffed, placed in the car and then released a few blocks away.

Defendant was indicted with 16 other Black Panther members in the spring of 1969. He "wasn't clear" about the charges and was forced to go "underground" to avoid the police. At this time, defendant was "Captain of Security" of the Black Panther Party, a position he shared with William O'Neal. It was defendant's duty to protect the lives of the members of the central staff.

When he surfaced in May of 1970, he learned that his wife had become a heroin addict. The rules of the Black Panther Party were that drugs and intoxicants were forbidden. He shared this belief and fought against drugs and drug dealing in the community. At this time, the Party had split into two factions, a militant group headed by O'Neal, and a reformist group which was working with the "breakfast for children" programs and with a medical center. Defendant was a member of the latter faction despite recruitment efforts by O'Neal to join the violent group. In about July of 1970, he purchased a 9-millimeter Browning automatic handgun to protect himself and his family from the police. During this period, O'Neal told defendant that drug dealers should be "hit" and gave him addresses where they lived. O'Neal pointed out to him the building at 860 N. De Witt and the Hancock Building, but did not mention apartment 1902, the Silversteins' home. Since he had his wife "to deal with" and duties with the Party, defendant did nothing with O'Neal's information.

During December of 1970, defendant learned that his wife had contracted hepatitis from an unclean hypodermic needle, and placed her in the hospital. He did not visit her there because it was "not safe". Later, he learned that she died of an overdose of barbituates. He thought that he discovered her death on December 24, 1970, but did not go to her funeral or wake.

Defendant corroborated the testimony of Diane Pratt and Patricia Brown concerning his loss of memory after the incidents they described. He also did not remember being at the Silversteins' apartment and did not know whether he committed the acts with which he was charged. He only recalled being at a party Christmas day and having a "migraine." After Christmas, he stayed for several months in a basement apartment where "Mad Peter" lived. He was told about the incident in question when he lived in the apartment "on Willow, west of Sheffield." Two or three months after Christmas of 1970, defendant left Chicago using the names "Bobby Hinton" and "Lark Daniel Anderson."

Father Joachim Martorano, a former pastor of St. Dominick's Church located in the Cabrini Green area, testified that he knew defendant when he worked there from 1963 to 1973. Defendant's reputation for truthfulness in the community was good and he was respected and dependable. He saw defendant every few weeks in 1970, and found that his character "lent to being that of an arbitrator."


It was stipulated that defendant was 29 at the time of trial; that his wife died at 8:50 p.m. on December 23, 1970, and that her death certificate admitted into evidence listed the immediate cause of death as "hepatitis, being insufficiency due to or as a consequence of hepatitis due to or as a consequence of barbituate intoxication self-induced." It was further stipulated that William O'Neal was an informant placed in the Black Panther Party during 1968 to 1970.

Further relevant facts are incorporated into the discussion of the issues raised on appeal.


Defendant first contends that the trial court erred in denying his motion for substitution of judges. The basis of this contention is that the trial judge should have recused himself after allegedly (1) participating in certain ex parte hearings prior to trial, and (2) socializing with the complainants between the jury's verdict and the sentencing hearing.

On February 1, 1978, defendant filed a motion for substitution of judges under section 114-5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-5(c)), and further moved that the hearing on the motion be before another judge, since the trial judge would be called by the movant as a witness. The court denied defendant's second request, electing to preside at the hearing on the motion.

Defendant's motion and supporting affidavit by one of his attorneys, James Young, set out that on January 6, 1978, his attorneys had subpoenaed the United States Attorney's Office and the Federal Bureau of Investigation for the production of William O'Neal, a former F.B.I. informant who was then a relocated Federal witness. During the week of January 16, 1978, Young received notice that the U.S. Attorney would move to quash the subpoenas in accordance with a memorandum of law attached to the motion. However, no memorandum was enclosed with the notice of motion, and none was in the court file.

At about 9:30 a.m. on January 24, 1978, when the attorney entered the chambers of the trial judge assigned to his client's case, he found Lorna Propes, the Assistant State's Attorney assigned to the case, John Gubbins, Assistant U.S. Attorney, and A.F. Di Lorenzo, an F.B.I. agent, in the room with the judge. Upon his entry into the chambers, the group's conversation abruptly ceased. Young informed Gubbins that the public defender's office had not received nor did the court file contain the memorandum of law referred to in his notice of special appearance. Gubbins tendered to counsel a copy of the memorandum, stating that it was the government's copy and that there were no other copies available for him or for his co-counsel. Young observed the trial judge reading a copy of the same memorandum.

At the hearing on the motion, Assistant State's Attorney Propes testified that Gubbins and Di Lorenzo came to her office on the morning in question and they proceeded to the chambers of the trial judge. After she introduced them to the judge, Gubbins handed a memorandum to him. Shortly thereafter, defense counsel entered the room.

Gubbins testified that minutes after he arrived at the chambers, he discovered that the judge had not received a copy of his memorandum with the appended applicable Federal regulations governing the testimony of Federal witnesses. Gubbins apologized, explaining that the copies had been mailed but not "routed" to the judge or the State's Attorney's Office. He tendered to the judge one of his few remaining copies. As the judge started reading the memorandum, defendant's attorneys walked in. At this point, Gubbins and the others had been in the chambers for about five minutes. According to both Gubbins and Di Lorenzo, the merits of the case were never discussed with the judge.

Young testified that he had previously received notice that a memorandum would be forthcoming concerning the motion to quash the subpoena, but that he had not received it. He did not contact the State's Attorney's Office or the U.S. Attorney's Office to ask for it. Young conceded that he had no personal knowledge of the contents of any conversation prior to entering the chambers, only that one had ceased when he arrived.

The trial judge, declining to formally testify, stated for the record that there were no ex parte communications and no discussions of the merits of the case. As was the custom in his courtroom, the trial judge offered coffee to Gubbins and Di Lorenzo after being introduced to them. The trial judge did not read the memorandum tendered to him because he had insufficient time to do so. Finding that defendant's motion was ...

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