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People v. Upshaw

OPINION FILED DECEMBER 29, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

EZRA UPSHAW, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Defendant was charged with, and, after a jury trial, convicted of three murders. He was sentenced to 300 to 900 years imprisonment. For appellate review he raises the issues of whether: (1) the trial court properly admitted evidence of defendant's attempted escapes subsequent to his arrest; (2) the jury should have been instructed as to the consequences of a verdict of not guilty by reason of insanity; (3) the prosecutor's closing argument was improper and deprived defendant of a fair trial; and (4) defendant was proved sane beyond a reasonable doubt. We affirm.

Defendant was charged on September 25, 1974, with the murders of Henry Stewart, Mary Wilson, and Christ Wilson. He was found unfit to stand trial from March 10, 1975, until April 23, 1980, when, after a hearing, he was adjudged competent to stand trial.

At trial, Chicago Police Officer Thomas McKenna testified that three days after the victims' bodies were discovered, police found defendant in an apartment hiding in a crouched position behind a refrigerator. He was calm, stated that he understood his rights, and asked to which police station the officers were taking him. A woman, Karen Mundane, was in the apartment, and a gun was found in her purse. Defendant claimed ownership of the gun, stating that he had put the gun in the purse when the police arrived thinking the gun would not be found there.

At the police station, defendant again stated that he understood his rights and gave a narrative oral statement to Officer McKenna. Several hours later, he gave substantially the same statement in question and answer form to felony review assistant State's Attorney James Klein and a court reporter. During the interview with Klein, defendant understood the questions, gave responsive answers, appeared logical and rational, and talked in a normal, animated voice. In a signed confession, defendant related that in the early evening on August 23, 1974, he saw Henry Stewart, Mary Wilson, and her three-year-old daughter Christ, on the street. Earlier in the day, defendant had pawned, for $25, a .32-caliber gun to Stewart. Defendant now wanted to pay Stewart the $25 in return for his gun. Stewart said he did not have the gun. Defendant went to his mother's house nearby and got another .32-caliber gun which he kept there. He then went outside and caught up with Stewart, Wilson and her daughter. He offered to let them stay at his house since their apartment had been raided and they felt they couldn't return to it. They all went to defendant's house and the three adults "shot some stuff."

Sometime after they had taken the drugs, the confession continued, Mary Wilson dropped her purse and defendant's gun fell to the floor. Stewart and defendant argued about the gun; thereafter, Stewart reached for it. Defendant shot him with the other gun. Mary Wilson attacked defendant and was also shot by him. Christ Wilson, Mary's three-year-old daughter, began screaming so defendant put his hand over her mouth and nose, and afterwards realized she was dead. Defendant then dismembered the bodies of Henry Stewart and Mary Wilson, severing their heads, legs and arms, in order to move them from the apartment. He put the various body parts in garbage bags and disposed of the bodies in different locations near his apartment. Defendant's girlfriend helped him dispose of Stewart. They then cleaned up the blood in the apartment, dumped the knives in the garbage and flattened the murder weapon with a hammer.

For the defense, Dr. Werner Tuteur, a psychiatrist, testified that he examined defendant on four separate occasions: the first examination was on September 28, 1974; the second was on April 21, 1979; the third on June 13, 1979; and the fourth on April 19, 1980. In Dr. Tuteur's opinion, defendant was mentally ill and suffering from schizophrenia on the date of the killings, from which he still suffered on the date of the April 19 examination. Defendant was not faking or malingering. In his further opinion, defendant did not comprehend the criminality of his actions and was in no condition to appreciate anything he might do wrong at the time of the offense. Dr. Tuteur based his opinions, in part, on statements made by defendant to him during the examinations, for example: he enjoyed seeing blood spurt; and that he would kill again. He had no remorse and Dr. Tuteur considered that very psychotic. Dr. Tuteur saw the police report of the murders prior to examining defendant for the first time. Although he formed his opinion of defendant's sanity and mental state on September 28, 1974, four weeks after the offense, he did not put it in writing until five years later when he was directed to do so by the court.

On cross-examination, Dr. Tuteur had no knowledge of whether or not defendant had an opportunity to consult his attorney before he discussed the case with him on September 28, 1974. He had not submitted defendant to psychological testing and relied totally on his interview of defendant for his diagnosis. He had not interviewed defendant's mother or family, teacher or the state's attorney in charge of the case. In his report of September 28, 1979, he stated that the possibility of malingering was considered and that defendant had behaved clownishly. The fact that defendant had perfect recall of the incidents leading up to the deaths did not affect his diagnosis because schizophrenics have good memories. The fact that an offender acts with motive does not indicate that he has a sound mind. The fact that an offender cleans up blood after the commission of a crime does not indicate that the person could conform his conduct to the precepts of the law. The planning of a crime doesn't demonstrate that a person understands the consequences and criminality thereof.

On rebuttal for the State, Dr. Jewett Goldsmith, a psychiatrist, testified that he evaluated defendant on October 17, 1977, at the Illinois State Psychiatric Institute (ISPI). This evaluation included a psychiatric interview, a physical examination, and 24-hour observation; it did not include psychological testing. Dr. Goldsmith diagnosed defendant as having an antisocial personality, not a major mental disease. Defendant acted rationally while with other ISPI staff members but was very disturbed during the psychiatric interview. He appeared to be consciously controlling his psychosis; his acts were no better than that of a grade "B" movie actor.

On cross-examination Dr. Goldsmith testified that he had previously examined defendant in 1975 and found him to be schizophrenic. At that time, defendant constituted a danger to himself and others and was not malingering or faking his schizophrenia. Defendant was then committed on the basis of examinations by other psychiatrists. According to Dr. Goldsmith, it is conceivable that a schizophrenic could plan acts despite not appreciating the criminality of those acts. He had given no opinion in 1975 as to defendants' mental state as of August 23, 1974, the date of the offense, and had no way of knowing what it was at that time.

Dr. Richard Rogers, a clinical psychologist at the Isaac Ray Center, examined defendant for 2 hours on September 27, 1979 and for 2 hours and 45 minutes on October 16, 1979. He tested defendant with the Schedule of Affective Disorders and Schizophrenia, which he claimed is very reliable. He diagnosed defendant as having an antisocial personality disorder and schizotypical co-features on August 23, 1974. This was defined as a persistent and recurrent pattern of antisocial behavior in which the rights of others are violated. He further characterized it as a non-psychotic disturbance which causes difficulty with perceptions, with communication and with forming long-lasting responsible relationships. In his opinion, defendant was not suffering from a psychosis or any major psychiatric disorder on August 23, 1974, and he was able to appreciate the criminality of his behavior and conform his behavior to the requirements of the law on that day.

Dr. Jonathan Kelly, a psychiatrist at the Isaac Ray Center, examined defendant for a total of 2 hours on August 6, 1979 and November 15, 1979. He reviewed police reports, investigations regarding defendants' friends, preliminary hearing reports, Dr. Rogers' testing results, and defendant's signed confession. In his opinion, defendant did not suffer from a mental disease or defect on August 23, 1974, nor did he lack the substantial capacity both to appreciate the criminality of his conduct and to conform his behavior to the requirements of the law. In Dr. Kelly's opinion, defendant was not suffering from acute schizophrenia at the time of the offense.

At trial, the State also introduced testimony of four correctional officers and one police officer concerning successful escapes by defendant from custody and attempts within a 51-month period after his arrest. Sergeant James Harris, a policeman for the State of Illinois Mental Health Police Department, testified that on April 10, 1975, defendant escaped from custody during a court proceeding held at the Illinois State Psychiatric Institute. Levi Ramseur, a correctional officer at Cook County Jail, testified that on July 7, 1977, at about 3:30 a.m., he prevented an escape by defendant from the jail compound. Herbert Martin, a guard at Cook County Jail, testified that on November 25, 1978, defendant and seven other inmates armed with homemade knives, jumped Martin and handcuffed him then locked him up during an escape attempt. Defendant escaped for two days but the other seven inmates were recaptured. James Montgomery, a correctional officer at Cook County Jail stated that while searching the roof at the jail on November 27, 1978, he found defendant hiding in an airvent. Chicago Police Officer Harry Gaines testified that on October 1, 1976, he and his partner placed defendant under arrest after a shootout following his emergence from a currency exchange.

Defense counsel moved to strike all testimony by the correctional officers and for a mistrial because such testimony was evidence of other crimes and was not probative or relevant. The trial court denied both motions. The court also denied a motion in limine made by defense counsel to prevent any reference to a book which allegedly contained two hacksaw blades found in the defendant's possession during the pendency of the trial. Defendant argued there was no showing that he ...


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