Appeal from the Circuit Court of Cook County; the Hon. Frank
W. Barbaro, Judge, presiding.
JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
After a jury trial, the defendant Thomas Vanda was found guilty of the stabbing murder of Marguerita Bowers and was sentenced to serve 300 to 500 years imprisonment. The sole issue raised at trial was whether the defendant should be found not guilty by reason of insanity; it has remained undisputed that the defendant killed Bowers. On appeal, the defendant contends that he was denied a fair trial because of eight alleged trial errors and consequently asserts that the evidence that reached the jury was so unbalanced in the State's favor that the jury had virtually no choice but to find the defendant guilty of murder. Specifically, the defendant contends: (1) that the trial court erroneously refused to admit letters written by the defendant as rebuttal evidence of his mental state; (2) that the trial court improperly allowed evidence of another killing committed by the defendant and that the State violated the trial court's ruling in limine regarding discussion of the facts surrounding the earlier crime; (3) that it was error for the court to admit the defendant's post-arrest request for a specific attorney as evidence of the defendant's sanity because it infringed upon the defendant's Miranda rights; (4) that the court erroneously admitted a receipt into evidence without proper foundation; (5) that the court improperly restricted cross-examination of State expert witnesses; (6) that expert psychiatric witnesses called by the State were allowed to testify outside their area of expertise; (7) that the court allowed a jury instruction that improperly highlighted the testimony of State's witnesses; and (8) that the prosecution made improper comments during closing arguments. For these reasons, the defendant requests that we remand his case for a new trial.
• 1 The first issue raised by the defendant is whether the trial court improperly refused to admit letters into evidence that were written by the defendant to his parents and to his former attorneys. During its case in chief, the State offered into evidence a letter written by the defendant to a fellow inmate after the defendant's arrest. It described how to successfully evade a murder charge by pleading insanity. In rebuttal, the defendant sought to admit several letters written by him to his parents and to the attorneys who had represented him on a prior murder charge. From what we can gather from the record, these letters contained defendant's false representations that he was acting in authoritative positions within the prison, such as helping the superintendent run the jail or serving as a fireman and being injured while putting out fires at the jail. While in most instances the defendant offered the actual letters into evidence, he also wished to have his mother testify regarding the contents of letters he had written to her that had been destroyed. Stating that all of the letters offered by the defendant were inadmissible hearsay and "self-serving," the court refused to allow them to be admitted into evidence. We disagree and find that the letters should have been admitted as relevant non-hearsay evidence of the defendant's mental state.
We first find that the letters were relevant to the issue of the defendant's mental state. When a defendant's sanity is in issue, great latitude is allowed in admitting evidence relating to a defendant's mental condition because "[t]o determine insanity, you cannot take an isolated cross section of a single series of acts and myopically examine it within the narrow confines of the date set forth in a formal charge. In order to make a proper determination, there must be more than a cross section; we must examine the person, his history, his relationship with the victim, prior mental illnesses and other intervening factors of causation." (People v. Haun (1966), 71 Ill. App.2d 262, 268, 217 N.E.2d 470, 473.) Within reasonable time limits, every act in a defendant's life is relevant to the inquiry regarding his sanity (McCormick, Evidence sec. 249, at 592-93 (2d ed. 1972)), including events that occurred both prior to and subsequent to the crime committed by the defendant. (People v. Lannes (1966), 78 Ill. App.2d 45, 223 N.E.2d 440.) Therefore, as Professor Wigmore has stated, "The first and fundamental rule, then, will be that any and all conduct of the person is admissible in evidence. There is no restriction as to the kind of conduct. There can be none; for if a specific act does not indicate insanity it may indicate sanity. It will certainly throw light one way or the other upon the issue." (2 Wigmore, Evidence sec. 228, at 9 (Chadbourn rev. ed. 1979).) We thus find that the defendant's letters were relevant to the issue of his sanity because they were offered to demonstrate alleged delusions under which he suffered.
Because we find that the letters were relevant evidence, we must now determine whether they nonetheless should have been excluded as inadmissible hearsay. We find that the letters are quite simply not hearsay statements and that the hearsay rule should not have barred their admission into evidence.
• 2 Hearsay is in-court testimony or written evidence concerning an out-of-court statement where the out-of-court statement is offered to prove the truth of the matter asserted in the statement. (People v. Garlick (1977), 46 Ill. App.3d 216, 360 N.E.2d 1121; McCormick, Evidence sec. 246, at 584 (2d ed. 1972).) Where out-of-court statements are offered to circumstantially prove or disprove insanity, they are offered to show the defendant's mental state rather than the literal truth of the defendant's assertions. (2 Wigmore, Evidence sec. 228, at 14-15 (Chadbourn rev. ed. 1979); McCormick, Evidence sec. 249, at 592-93 (2d ed. 1972); see also E. Cleary and M. Graham, Illinois Evidence sec. 801.6, at 402-03 (3rd ed. 1979).) In the instant case, the defendant's letters were not offered to prove that he was actually helping the superintendent run the jail or that he was a prison fireman, but rather to demonstrate that the defendant was suffering from delusions and was therefore insane. Thus, the letters were not offered to prove the truth of their contents and they consequently cannot be considered as hearsay. See also People v. Garlick (1977), 46 Ill. App.3d 216, 360 N.E.2d 1121 (defendant's out-of-court statements admissible as non-hearsay evidence of mental state); People v. Chancy (1980), 91 Ill. App.3d 817, 414 N.E.2d 1239 (the words "Fantastic, Super Dopee and Me" written on blackboard at scene of crime were non-hearsay); Sollars v. State (1957), 73 Nev. 248, 316 P.2d 917 (defendant's "classic paranoid letters" admissible as non-hearsay evidence of mental state); Chase v. State (Alaska 1962), 369 P.2d 997 (defendant's out-of-court statements admissible on insanity issue).
The State cites People v. Hester (1968), 39 Ill.2d 489, 237 N.E.2d 466, in support of its position that the defendant's letters were "self-serving" hearsay. The Hester court held that an examining doctor secured solely for the purpose of testifying at trial cannot testify regarding subjective symptoms described by the patient. (See also McCormick, Evidence secs. 292, 293, at 690-94 (2d ed. 1972).) However, in the instant case, the State fails to make a distinction between statements, such as those in Hester, that are offered for the truth of their contents and statements, such as those in the case at bar, that are offered simply as circumstantial evidence of the defendant's mental state. Illustratively, in State v. Lucas (1959), 30 N.J. 37, 152 A.2d 50, the New Jersey Supreme Court found that even an examining physician, such as the doctor in Hester, could testify regarding statements made to him by the defendant where the issue is insanity rather than guilt. Therefore, the State's reliance upon Hester is misplaced, and we conclude that the letters offered by the defendant were not inadmissible hearsay.
• 3 Having determined that the defendant's letters were relevant non-hearsay evidence, we must determine whether they could be refused admission into evidence simply because they were "self-serving." We find the term "self-serving" to be something of a misnomer because any evidence or testimony offered by any party to a lawsuit is logically and necessarily "self-serving" to that party's presentation of his case. An examination of Illinois case law reveals that it is the hearsay rule that generally precludes a party from proving his own self-serving statements. (People v. Colletti (1968), 101 Ill. App.2d 51, 242 N.E.2d 63.) The rationale for exclusion is that testimony regarding out-of-court statements made by a defendant after commission of a crime is not competent because the defendant had a motive to fabricate favorable testimony relating to his innocence. (People v. Lewis (1979), 75 Ill. App.3d 259, 393 N.E.2d 1098.) However, in the instant case, the fact that the defendant killed the victim is not at issue; the jury was only concerned with the question of the defendant's sanity or insanity. Indeed, while the defendant may have had a motive to lead others to believe he was insane, we find two reasons for this to be a matter weighed in the jury's determination of his sanity rather than an issue of admissibility. First, the defendant's "self-serving" statements were not hearsay and therefore do not fall under the hearsay rule's ancient prohibition against admission of such statements. (See generally McCormick, Evidence sec. 290, at 688 (2d ed. 1972).) Second, as we determined earlier, practically all evidence of a defendant's mental state is relevant when the defendant's sanity is at issue, and we hesitate to restrict the bounds of the jury's inquiry into the defendant's mental state.
As the Seventh Circuit has observed, "We think that a flat rule of exclusion of declarations of a party on the grounds that they may be described as `self-serving' even though otherwise free from objection under the hearsay rule and its exceptions, detracts from the fund of relevant information which should be available to the jury, without, in compensation, materially insuring the integrity of the trial process." (United States v. Dellinger (7th Cir. 1972), 472 F.2d 340, 381.) We therefore conclude that the letters offered by the defendant were relevant and should not have been excluded as either inadmissible hearsay or as "self-serving" statements.
• 4 As a final matter, the State contends that the best evidence rule should bar any testimony concerning the letters sent to Vanda's parents which were subsequently destroyed. However, it appears from the record that testimony regarding these letters was excluded by the trial court on hearsay grounds rather than under the best evidence rule. While the State claims that "the judge obviously found insufficient showing of legitimate loss or destruction," we cannot indulge in this presumption where there is no evidence to support it in the record. Rather, the defense offered to provide testimony that the letters had not been destroyed with intent to defraud or to conceal evidence, and the State did not indicate that it could offer testimony to rebut the defendant's offer of proof. The trial court subsequently ordered that the letters were inadmissible as "self-serving" hearsay. Where the record is unclear concerning any ruling on the best evidence question and where the defense could apparently meet its initial burden of proving legitimate loss or destruction, we believe that the best evidence rule should not have barred admission of this evidence. See People v. Baptist (1979), 76 Ill.2d 19, 389 N.E.2d 1200.
• 5 The second issue raised by the defendant is whether the trial court improperly allowed the State to introduce evidence concerning a previous crime committed by the defendant. Specifically, in 1971, the defendant had been found not guilty of murder by reason of insanity of the stabbing death of a 15-year-old girl. The defendant was committed to the Department of Mental Health and was subsequently released.
In the instant case, an expert psychiatric witness called by the defense had previously examined the defendant at the Department of Mental Health following the earlier murder charge. In a pretrial motion in limine, the defense moved to restrict the State from referring to the previous killing and its disposition. The State argued that in order to cross-examine the defense expert, it was necessary to determine the facts which led the expert to reach his diagnosis, including the fact that the defendant had previously been charged with murder and had been committed to the Department of Mental Health. The court ruled that the State could introduce evidence of the previous murder charge and the defendant's confinement with the Department of Mental Health, but ordered that the disposition of the case and any facts surrounding the incident could not be presented to the jury. Apparently for tactical reasons, the defense, in its opening argument, introduced the fact that the defendant had been found not guilty of a previous murder charge by reason of insanity. Further, in the State's cross-examination of the defense expert referred to above, the prosecutor asked if the defendant had blacked out "at the very moment of the act causing the death of the girl involved here," referring to the facts of the previous killing. The defense moved for a mistrial. The trial court denied the defendant's motion but it did strike the prosecutor's question from the record and promptly admonished the jury to disregard it. The defendant now contends that both the court's initial ruling on the motion in limine and the prosecutor's alleged violation of the ruling in limine require this court to remand the defendant's case for a new trial. We disagree.
We believe that evidence of the defendant's previous murder charge was admissible because it was relevant for a purpose other than to show criminal disposition and because its probative value outweighed its prejudicial effect. As we have previously discussed in detail, practically every event in the defendant's life is relevant when the defendant interposes an insanity defense. This inquiry may include consideration of a defendant's history of criminal conduct. People v. Burress (1971), 1 Ill. App.3d 17, 272 N.E.2d 390.
Further, once the defendant raised the defense of insanity, the State was required to shoulder the formidable burden of proving the defendant sane beyond a reasonable doubt. (See, e.g., People v. Spears (1978), 63 Ill. App.3d 510, 380 N.E.2d 423.) Where the State had to meet this affirmative duty of proving the defendant sane, we think it would be inequitable to curtail meaningful avenues of inquiry during the State's cross-examination of the defendant's own expert on the issue of insanity. And we do believe the State's inquiry to be relevant. Where an examining psychiatrist is clearly aware that his patient was found not guilty of murder by reason of insanity, we cannot help but suggest that this information could have had a significant impact upon a doctor's diagnosis of the patient's sanity or insanity. Further, in order for the State to effectively cross-examine the witness, it was necessary for the State to elicit testimony concerning the circumstances upon which the expert based the opinions he expressed at trial. Without this background, the jury would have been unnecessarily presented with a very one-sided view of the facts surrounding the doctor's examination of the defendant.
• 6 Thus, having determined that this information was relevant, we observe that "[a]s a general rule, evidence is held inadmissible if it points to crimes unrelated and unconnected to the crime for which the defendant is being tried. [Citations.] However, evidence of other offenses is admissible if relevant for any purpose other than to show propensity to commit a crime." (Emphasis added.) (People v. Bailey (1980), 88 Ill. App.3d 416, 420, 410 N.E.2d 545, 547; accord, People v. Hoppock (1981), 98 Ill. App.3d 58, 423 N.E.2d 1351; People v. McKibbins (1981), 100 Ill. App.3d 787, 427 N.E.2d 238.) In the instant case, information relating to the defendant's previous murder charge was relevant for two reasons other than to demonstrate general bad character or criminal disposition. First, the information was probative as to the circumstances under which the defense expert developed his diagnosis. Second, the information was probative as to the issue of insanity, not guilt. Importantly, the fact that the defendant actually stabbed the victim was not in issue in this case. Rather, the sole issue to which evidence was directed at trial was the inquiry into the defendant's sanity or insanity. Therefore, the defense cannot object to evidence regarding the defendant's prior crime where propensity to commit a crime, or the fact that the defendant killed this victim, is not even in issue.
Finally, evidence of the defendant's prior crime still would not be admissible, even if relevant, if the prejudicial effect of the evidence outweighed its probative value. (People v. Hoppock (1981), 98 Ill. App.3d 58, 423 N.E.2d 1351; People v. McKibbons (1981), 100 Ill. App.3d 787, 427 N.E.2d 238.) However, we do not believe that to be the case here. We cannot find that the fleeting references to the defendant's prior crime unduly prejudiced the defendant's position. Therefore, we ...