Appeal from the Circuit Court of Cook County; the Hon. Earl E.
Strayhorn, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted of murder and sentenced to a term of 20 to 40 years. He contends on appeal that (1) the trial court erred in refusing to give his tendered instruction on the consequences of a verdict of not guilty by reason of insanity; (2) refusal to give an instruction on voluntary manslaughter denied him due process when there was evidence of a mutual quarrel and combat; (3) he was denied a fair trial (a) by improper cross-examination of defendant's expert witness and (b) by improper, inflammatory remarks during closing arguments; (4) his sentence should be reduced because it is grossly disparate from that of his co-defendant; (5) all statements made by defendant were erroneously admitted where his first statement was obtained in violation of his constitutional rights and all subsequent statements were fruits thereof; and (6) he was denied effective assistance of counsel.
Defendant and Steven Johnson were charged by information with the murder of Brian Pillar. Johnson subsequently pleaded guilty and was sentenced to a term of 14 years to 14 years and 1 day. Defendant's first trial resulted in a mistrial when the jury was unable to reach a verdict.
On the retrial, Laura Reed testified that she had been dating defendant for approximately two years when, on December 4, 1976, he and Brian Pillar came to her place of employment, and she went with defendant to his apartment; then when Pillar and Johnson came in later, they began arguing and defendant told them to go outside if they wanted to fight; that when they continued arguing, defendant threw a knife on the floor between them and told Pillar to use it; that Johnson picked up the knife, placed it on Pillar's lap, and offered to fight him for it; that after Pillar put the knife back on the floor, defendant and Johnson pulled him into the hallway where Johnson began to "stomp" (kick) him while defendant watched; then after three or four minutes of stomping, the two men dragged Pillar out of the building and down the street; that later, when police officers questioned her about the fight, she took them to defendant's apartment, and when defendant and Johnson returned, defendant told the officers that Pillar had stolen $20 and he (defendant) had chased him to recover it; that after the police left, defendant told her he had never killed anyone before and sent her out for coffee while he and Johnson went back to move Pillar's body; that later the police returned and, after arresting her, defendant, and Johnson then took her to the alley where she saw Pillar's body; that she had never noticed anything unusual about defendant during the two years she had known him, and after the killing he looked and spoke normally; and that in her opinion he was sane and knew what he was doing.
On cross-examination, Reed said that although she had also been charged with murder she was offered nothing in exchange for her testimony; that defendant seemed normal and happy that evening and that he remained calm and took no part in the argument between Pillar and Johnson.
Cathy Groves testified that she and defendant were good friends; that while defendant was jealous of Pillar's attention to Reed, they otherwise appeared to get along well; that she had never observed defendant do anything unusual; and that in her opinion he was sane.
Officer Hyland testified that when he responded to a call of a battery in progress, he found traces of blood in the hallway outside defendant's apartment; that he was talking to Reed in the apartment when defendant and Johnson entered; that defendant told him he, Johnson, and Pillar fought over rent money allegedly taken by Pillar; that later, after other officers discovered Pillar's body in a nearby alley, he arrested defendant, Johnson, and Reed; that defendant admitted stabbing Pillar in the back, stomach, and neck; that he was with defendant for approximately two hours immediately after Pillar's death; and that in his opinion defendant was sane.
Assistant State's Attorney Reid testified that defendant was advised of his rights and, after waiving them, gave a statement which was transcribed; that defendant read the statement and signed it; that Johnson gave a similar statement; and that he (Reid) was of the opinion, based on his observation, that defendant was sane, able to appreciate the criminality of his acts, and able to conform his conduct to the law.
The written statement of defendant was received in evidence, and in it he stated that he, Johnson, and Pillar, after drinking in his apartment, went to pick Reed up at her place of employment; that he and Reed returned immediately to his apartment, and Johnson and Pillar came in later; that Johnson began calling Pillar names and accused him of being afraid to fight; that he provided a knife for them to use in their fight, but Pillar put it aside; that he finally told them to go outside and fight, and when Pillar refused, he (defendant) and Johnson pulled Pillar out of his chair and Johnson pushed him into the hall; that when he (defendant) entered the hall, Pillar was on the floor and Johnson was kicking him; that he attempted to help Pillar up and when he (Pillar) swung at him, he hit Pillar — knocking him to the floor; that he and Johnson picked Pillar up and guided him to the front door; that Pillar fell going down the stairs and, after they helped him up, Pillar ran away from them; that he (defendant) threw a knife which struck Pillar in the back, causing him to fall; that he pulled the knife from Pillar's back and stabbed him in the stomach and throat while Johnson looked on; that he threw the knife away before he and Johnson ran back to the apartment; that he told Reed he killed Pillar, and later he and Johnson returned to Pillar's body to remove identification and move it to a gangway; and that he then returned to the apartment where he cleaned up the blood in the hall.
Sergeant Merritt testified to an oral statement made by defendant which was essentially the same as the written statement, except he told Merritt that he and Johnson had punched Pillar while in the apartment and both had kicked and beat Pillar and had thrown him down the stairs before dragging him from the building. Merritt further testified defendant told him that after he struck Pillar in the back with the knife, he and Johnson hit him a few more times before he (defendant) stabbed Pillar in the face and stomach to make sure he was dead; and that during the entire interview defendant was lucid, coherent, and, in Merritt's opinion, sane.
For the defense, Charles Johnson of the Department of Children and Family Services (DCFS) testified, from the records in his keeping, that as a child defendant had been placed in several foster homes and was in various residential institutional facilities for emotional problems.
Sergeant Merritt, recalled by the defense, testified to a statement of Johnson that he and Pillar, before going to defendant's apartment that evening, went to a fish and chips restaurant where, to get even with the manager for throwing them out earlier that evening, they knocked over the cash register and chased the manager and employees from the restaurant, and that he (Johnson) had a knife which he gave to decedent after they left the restaurant.
Shirley Bernhardt, defendant's mother, testified that her brother suffered from hydroencephalitis; that one of her five other sons had severe brain damage, another had emotional problems, and a third was a deaf mute; that when she saw defendant in jail the morning after the killing, he was crying, confused, and did not remember the killing nor the fight preceding it; that both she and her ex-husband had physically abused defendant as a child and, as a result, he did not have a good relationship with his father; that the family moved frequently during defendant's early childhood; that defendant had trouble in school which led to his placement in classes for the educably mentally handicapped; that when he still did not make progress, he was sent, at the age of 10, to Boys Town, where he resided for three years; that upon his return, he was placed in a temporary foster home for one year; and that later he was again placed in a foster home. She stated also that while defendant was with her, he caused problems with her other children; but that, in her opinion, he was sane and knew right from wrong. She said, however, that she thought defendant was mentally disturbed and had taken him to a psychiatrist, but he was never institutionalized.
Carol Domroese, a learning disabilities resource teacher in the Oak Park school system, testified that when defendant was in her class during the 1972 school year, his IQ was in the seventies, and he could not cope with a regular classroom situation; that an educably mentally handicapped child can learn reading and mathematics to a certain level; and that defendant was able to secure and hold a job as a busboy. She acknowledged that other test scores indicated defendant's IQ was 88; that his common sense level was at a par with other children his age; and that in her opinion he was sane but had difficulty adjusting to certain situations, particularly those involving his immediate family.
Elmer Smith, a psychologist for the Chicago Board of Education, testified that records in his keeping indicated that because defendant's IQ was 72 at the age of seven, it was recommended he be placed in classes for the educably mentally handicapped, and that defendant had emotional or adjustment problems which interfered with full and effective function. He also stated that IQ scores indicate nothing about ability to conform to law and appreciate the criminality of acts; that being educably mentally handicapped does not mean that a person is insane; and that such a person can function in and contribute to society, including holding a job and forming meaningful relationships.
DCFS reports admitted into evidence indicated that defendant's home life was troubled due to his father's alcoholism; that because of his parent's constant arguing, there was much tension in the home; that defendant failed first grade and was described by his mother as indifferent and unmotivated for learning; that he had behavior problems and was jealous of attention given the other children; that all of the children suffered from varying degrees of emotional disturbance; that there were problems with defendant stealing — mostly from the family, lying, and abusing his siblings; that while with a foster family, he took their van without permission and struck two other cars; and that he stole money from his foster parents, which resulted in his removal from their home.
Julie Hansen, a social worker for the DCFS, testified that defendant was rejected by his family and suffered a great deal of physical and emotional abuse from them; that at age 13 he had severe emotional problems stemming from his family situation, was withdrawn, passive, and had difficulty relating to people; and that he was referred from residential treatment.
Dr. Marvin Schwartz, a Board-certified psychiatrist, testified that he had interviewed defendant and reviewed his records and it was his opinion that defendant suffered from schizophrenia, latent type, resulting in a poor sense of reality and abnormal emotional responses such that, while he could appreciate the criminality of his acts, he was unable to conform his conduct to the standards of the law and control his behavior. Dr. Schwartz admitted that he had only a single interview with defendant, lasting less than one hour, and in prior testimony he had described defendant's grasp of reality as good.
In rebuttal, Assistant State's Attorney Michael Robbins testified that he listened to a telephone conversation between the prosecutor and Dr. Schwartz with the knowledge and permission of both, in which Dr. Schwartz indicated that defendant's grasp of reality was good; that he had not seen the Psychiatric Institute's reports; and that his ultimate diagnosis at trial could depend on the cleverness of the lawyer's hypothetical question. Robbins admitted, however, that the conversation occurred several months before trial and that he had made no notes on it.
Dr. Frederick Gibbs, a psychiatrist, testified that there was no indication of organic brain damage or brain malfunction in defendant's EEG. He acknowledged, however, that a normal EEG does not, of itself, negate brain damage and had he known that one of defendant's brothers suffered from brain damage and ...