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People v. Alerte





Appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.


Following a jury trial, defendant, Frank C. Alerte, Jr., was found guilty of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1) and sentenced to 30 years in the Illinois State Penitentiary. On appeal defendant argues that (1) the State failed to prove beyond a reasonable doubt that he was sane at the time of the stabbing, (2) the prosecutors' arguments to the jury deprived him of a fair trial, (3) the court erred in refusing to instruct the jury on the consequences of a verdict of not guilty by reason of insanity and (4) the court erred in denying his request for a bifurcated trial or separate juries on the issues of guilt and sanity. We affirm.

The evidence showed that at approximately 6:45 p.m. on January 12, 1980, two men ran across a field toward the dormitory of a local university. The pair then stood near the entrance of the dorm. One of them supported the other, who was leaning against the wall. A student who passed by asked what was going on and one of the men, who was identified as defendant, said something like, "he's just drunk, he'll get over it." Defendant pulled the other man toward nearby bushes and laid him down. The student noticed that the man on the ground, the victim, had a cut on his neck, and the student called the university security. When another student asked defendant to help carry the victim inside, defendant, who was coherent and rather calm, said that maybe they shouldn't move him because they might hurt him. Shortly thereafter, defendant was seen walking quickly from the dorm with his left hand pushing something that appeared to be a weapon into his pants pocket. The victim died of multiple stab wounds of the chest and back.

Later that night, Chicago police officers picked up defendant at his parents' home. On the way to the police station, defendant stated that he had been with the victim until 7 that evening, and defendant conversed about his position as manager of the university's tennis team. According to the assistant State's Attorney who questioned defendant that night, defendant responded in a coherent and intelligent manner, relating events of the day in great detail. An officer who also questioned defendant testified that defendant said that he had been with the victim that day and that they had watched TV and played ping pong at the dormitory until 6 or 6:30 p.m. The victim was walking defendant to the el station when the victim said he forgot something at the dorm and went back. Defendant waited 10 or 15 minutes, then walked back to the dorm and saw the victim leaning against the door. Defendant tried to hold him up. Defendant stayed until a group of people came. He then went home.

According to defendant's mother, defendant had behavior problems which resulted in referrals to psychologists and child psychiatrists, expulsion from various schools and periods of hospitalization. She recalled specific incidents when defendant struck a student with a rock, hit a neighbor's son with a hammer, ran away from home, set fire to his house, attacked a young man on a train platform and struck a co-worker over the head with an iron pipe. His mother described defendant just before and after two of these incidents as a different person, extremely quiet, with a certain staring expression. A woman who took care of defendant's brother testified that once when she reprimanded defendant for teasing his brother, defendant responded by dropping grapes down her back. Then, when she went to phone defendant's father, defendant stuck a knife in her back. The woman also testified that she thought defendant was not well but she did not think he was crazy. Several other witnesses testified about incidents when defendant behaved violently or aggressively and seemed like a different person, his facial expression completely changed, his strength doubled, showing no remorse and offering no explanation. One of defendant's former teachers testified that defendant seemed to turn on those classmates he liked best.

The university's tennis coach and a tennis instructor testified to the apparently normal relationship between the victim and defendant during the two days before the occurrence. A university student testified that on the afternoon of January 12, 1980, he was playing ping pong with the victim in the dormitory. He saw defendant standing, then pacing, outside with an envelope or papers in his hand. Defendant walked in and sat down without saying hello and began looking through the papers with a pensive expression, as if he had something on his mind. The student then left.

Dr. Fredric A. Gibbs, an expert in the field of epilepsy and electroencephalography, testified that he first met defendant in 1965. At that time, Gibbs administered and read defendant's EEG, which was abnormal, revealing a type of seizure activity in part of the brain. Gibbs stated that this type of abnormality does not produce convulsions, but 2% of the people with this abnormality have rage attacks during which they cannot control their actions or exercise normal judgment. Based on defendant's EEG and history, Gibbs believed defendant suffered from this condition. A 1969 EEG of defendant showed some improvement, but on that day defendant suddenly grabbed Gibbs' necktie and, with a display of unusual strength, started dragging Gibbs toward an open window. A friend of Gibbs' who was present grabbed defendant and helped quiet him down. Gibbs believes that this incident was a rage attack. According to Gibbs, epileptics and people who have rage attacks can have normal EEG's. Following a normal EEG of defendant in 1977, Gibbs referred defendant to Dr. Frank Lorimer.

Dr. Lorimer testified that he is a psychiatrist who had examined defendant on three occasions since the occurrence. He concluded, on the basis of those examinations, an interview with defendant's family, and defendant's medical records, that defendant best classifies diagnostically as having organic brain syndrome, non-psychotic with epilepsy. According to Lorimer, defendant's form of epilepsy is limbic epilepsy, a category of epilepsy now gaining medical recognition, which is characterized by rage attacks and blackouts. Normal EEG's would not be contrary to a diagnosis of epilepsy. Lorimer also testified that on January 12, 1980, defendant's condition of organic brain syndrome was in a psychotic phase because defendant was in a distinct rage attack at that time. Further, Lorimer testified that defendant was then unable to appreciate the criminality of his behavior or conform to the requirements of the law.

In rebuttal, Dr. John Hughes, a specialist in electroencephalography and epileptology, testified that he reviewed EEG's of defendant and found four early EEG's to be somewhat abnormal and 10 subsequent EEG's, including one considered abnormal by Gibbs, to be normal. According to Hughes, the pattern that Gibbs considered abnormal represented only drowsiness, not an abnormality. Hughes believes that it is impossible for an epileptic to have such a series of EEG's. Hughes also testified that Lorimer's diagnosis of organic brain syndrome non-psychotic with epilepsy does not appear in the manual containing acceptable diagnoses in the field of psychiatry. Further, Hughes testified that limbic epilepsy is not a term that is commonly understood and agreed upon by the world neurological community. Psychomotor seizures that fall under the classification of partial seizures with complex symptomatology are the closest things to limbic epilepsy which are medically recognized. In response to a hypothetical question, Hughes testified that activities such as those of defendant on January 12, 1980, could not have been the result of a psychomotor seizure since they were clearly directed and purposive.

Dr. Robert Reifman, a psychiatrist, testified that on the basis of his personal interviews with defendant and his examination of defendant's medical records, he concluded that defendant did not suffer from any mental disease or defect on January 12, 1980, and that defendant could appreciate the criminality of his conduct and was capable of conforming his conduct to the requirements of the law. Reifman diagnosed defendant as having a narcissistic personality, a diagnosis which is consistent with problems in school and violent episodes. Reifman also testified that Gibbs, having read an EEG which Reifman administered to defendant, wrote a letter which stated that the activity manifested in the EEG is not associated with mild or severe behavior disturbance.

The jury found defendant guilty of murder.

Defendant first contends that the State did not prove beyond a reasonable doubt that he was sane at the time of the stabbing. Specifically, defendant argues that the State did not prove beyond a reasonable doubt that the stabbing was not the result of defendant's particular kind of epilepsy, a mental disease or defect which manifests itself in violent rage attacks during which defendant neither knows what he is doing nor has the capacity to control his conduct. We disagree.

• 1 Once a defendant introduces sufficient evidence to create a reasonable doubt as to his sanity at the time of the offense, the burden of going forward with the evidence on that issue shifts to the State. (See People v. Foster (1979), 76 Ill.2d 365, 378-79, 392 N.E.2d 6, 12. But see Pub. Act 83-288 (1983 Ill. Laws 1713-14), amending Ill. Rev. Stat. 1981, ch. 38, pars. 3-2, 6-2 (which, effective January 1, 1984, changes the burden of proof when the affirmative defense of insanity is raised).) Whether the State has met its burden of proving beyond a reasonable doubt that the defendant was sane at the time is a question of fact. The fact-finder's decision will not be disturbed on review unless it is so improbable or unsatisfactory as to create a reasonable doubt of the defendant's sanity or is so palpably erroneous as to suggest that it is based upon passion or prejudice. People v. Clark (1981), 102 Ill. App.3d 414, 418, 429 N.E.2d 1255, 1258.

Here, the record reveals that the jury's decision as to defendant's sanity was not improbable, unsatisfactory or palpably erroneous. Both State and defense experts testified that some of defendant's EEG's were abnormal and some were normal. The experts drew conflicting conclusions from their readings of one of the 1980 EEG's. Gibbs considered the EEG abnormal, while Hughes considered the pattern to be the result of drowsiness, not abnormality. The experts disagreed with regard to the significance of the normal EEG's. Lorimer believed that normal EEG's would not be contrary to a diagnosis of epilepsy, yet Hughes believed it impossible for an epileptic to have such a series of EEG's. Further, the experts disagreed in their diagnosis of defendant. Lorimer diagnosed defendant as having organic brain syndrome, with limbic epilepsy, which was in a psychotic phase at the time of the victim's death, a diagnosis which is not among the possible diagnoses which appear in the diagnostic and statistical manual of the American Psychiatric Association. Reifman diagnosed defendant as having a narcissistic personality, not a mental disease or defect. Either condition could account for defendant's actions on January 12, 1980, and on the other occasions when he behaved violently. It is within the discretion of the trier of fact to accept one expert's opinion over another's on the question of insanity so as to resolve contradictions. (See People v. Clark (1981), ...

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