APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
J. MALONEY, Judge, presiding.
PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Eddie Pitts, was found guilty of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1). On September 3, 1979, defendant received a sentence of not less than 150 years and not more than 300 years imprisonment.
On appeal, defendant raises the following issues for review: (1) whether the trial court erred in failing to give an instruction outlining the procedure to be followed upon a verdict of not guilty by reason of insanity; (2) whether the trial court erred in denying defendant the right to question prospective jurors on the voir dire examination with respect to any bias or prejudice they might have against the defense of insanity; (3) whether the trial court erred in allowing the State to call rebuttal witnesses to testify where these witnesses were not listed on the State's list of witnesses; (4) whether the trial court erred in admitting hearsay testimony when it allowed the State to question Dr. Bogan about reports which he had never seen and which were never tendered to defense counsel prior to trial; (5) whether the State failed to meet the burden of proving the defendant sane beyond a reasonable doubt; and (6) whether defendant was deprived of a fair trial by prosecutorial misconduct during the closing argument by deliberately misstating evidence and by making prejudicial remarks.
The testimony at trial was as follows. Winston McCain testified that on November 30, 1976, he and Jerry Keane were employed by People's Gas Company. They answered complaint calls principally concerning gas leaks. On that date, November 30, they were called to repair a gas leak at 6620 South Harvard Avenue, in Chicago. Edward Stewart answered the door and informed them that the gas odor was emanating from the bedroom. Eddie Pitts, whom the witness later identified as defendant, walked toward them. Stewart, Keane, the witness and defendant all proceeded up the stairs to the bedroom. Defendant neither said nor did anything unusual at this time. Defendant was dressed in dark clothing and wore a purple fez.
The four men left the bedroom and proceeded to the basement where Keane examined the furnace. Keane went over to inspect the flue of the furnace and to remove the furnace door. Stewart was standing in the doorway of the basement. When McCain saw that Keane was having some difficulty in removing the furnace door, he started upstairs to get a screwdriver. As McCain was going up the stairs, Keane screamed, "Winston, run, get help." He ran back downstairs and saw defendant with his left arm around Keane's neck, hitting or "stabbing" him in his chest with his right hand. McCain then ran outside to radio for help.
Edward Beale testified that he is a Chicago police officer and that he was called to the scene. He was admitted into the house by Donna Petty and Edward Stewart. He entered the basement where he found Keane lying on the floor with bloodstains all over his body. When he went over to Keane, he could not find any vital signs. Approximately 3 feet from the body, he found a small pocketknife, a book of matches, and a flashlight.
John Smith testified that he is a Chicago police investigator and that on November 30, 1976, he conducted a homicide investigation at 6620 South Harvard. On December 1, 1976, he interviewed defendant and informed him of his constitutional rights. In response to questions asked by Smith, defendant stated that he had thrown away the knife used in the killing. Defendant said he had spent the night in a vacant building. Smith stated that defendant acted normally and spoke in normal tones.
Dr. Gilbert Bogan was called on behalf of the defendant. Bogan, a psychiatrist, testified as to the mental state of defendant. In February 1979, Bogan examined defendant for fitness and sanity. At that time, he found defendant was not fit. On April 5, 1979, he again examined defendant and again found defendant unfit for trial. Subsequently, on September 12, 1979, he examined defendant and diagnosed him as schizophrenic, paranoid type in remission with medication. He stated that at the time of the alleged murder, defendant could appreciate the criminality of his conduct but was unable to conform his conduct to the requirements of the law.
During Bogan's examination of defendant in February 1979, defendant told him that he was going to plead not guilty, and that he was psychotic at the time of the incident, and that he heard voices. Defendant told Bogan that he first began hearing voices at the age of 12 or 13 and that the affliction became much worse after taking drugs. Defendant also said that he began taking drugs 3 days prior to the alleged offense.
In the psychological reports, defendant told the psychologist that he stabbed a gas man whom he did not know because a voice told him to do so. The trial court sustained the State's objection to Bogan's testimony of what someone else wrote down in the psychological reports as to what defendant said. The trial judge instructed the jury that the conversations between defendant and Bogan were to be received for the limited purpose of the fact that Dr. Bogan had those conversations with defendant and not to prove the truth of the matter asserted.
On cross-examination, Dr. Bogan reiterated his opinion that defendant was insane at the time of the alleged offense. He changed his opinion when the State introduced certain reports not previously read or relied upon by Dr. Bogan. The trial judge overruled defendant's objection to the reports as hearsay and allowed the reports to be admitted. The reports of April 1, 1977, stating that defendant had no recollection of the alleged murder were written by social worker Dillingham, and those of April 13, 1977, were written by Dr. Armil. On April 18, 1977, Dr. Jewitt Goldsmith's report stated that defendant remembered only that he returned to the scene of the incident to find a body on the floor and a knife in his hand.
Three reports were admitted regarding whether defendant was under the influence of drugs: the first report, written by Dr. Tuteur, stated that defendant began taking drugs 3 days prior to the incident; the second report, by Dr. Goldsmith, stated that defendant had not taken drugs at least 1 day prior to the killing; and the final report, by Dr. Kaplan, stated that defendant had stopped using drugs 6 to 9 months prior to the killing.
On redirect, Dr. Bogan testified that a schizophrenic, paranoid type in partial remission could undertake certain actions which would seem commonplace and would be normal under certain circumstances. Defendant could suffer from a mental disease or defect by which he would be unable to conform his conduct to the requirements of the law on one day, and the next day the same person could conform his conduct to the requirements of the law even though he still had the mental disease.
The State then called rebuttal witnesses. Defense counsel objected to two of the State's rebuttal witnesses, Investigator Elbert Fitzpatrick and Dr. Gerson Kaplan, because they were not included in the State's answer to discovery. Defendant's objections were overruled and both were allowed to testify.
Investigator Fitzpatrick testified that on April 22, 1976, defendant answered questions regarding his name, age, date of birth, and physical description. He stated that, in his opinion, defendant was in contact with reality and sane on that date.
Investigator Smith was recalled and stated that defendant gave responsive answers to questions regarding his name, date of birth, place of birth, and social security number. He also stated that defendant was calm ...