Appeal from the Circuit Court of Kankakee County; the Hon.
John F. Michela, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
After a jury trial in the circuit court of Kankakee County the defendant, Redmond Neely, charged with aggravated battery, was found guilty of the offense but mentally ill.
On this appeal three issues are presented. May the provisions of the statute authorizing a verdict of guilty but mentally ill be applied to a criminal offense occurring before the effective date of the statute? Was the instruction relative to insanity and mental illness so confusing that the defendant was deprived of a fair trial? Did the trial court fail to weigh certain mitigating factors before imposing the maximum sentence for aggravated battery?
In view of the nature of the issues presented any detailing of the circumstances of the incident are unnecessary. It is sufficient to say that the charge of aggravated battery grows out of an incident occurring on August 9, 1981, in which the victim, Henry Washington, was seriously injured after being shot by the defendant as a result of an argument and a fight. The defendant raised the affirmative defenses of insanity and self-defense. Extensive evidence of defendant's mental history was presented including hospitalizations commencing in 1975, which was the year of his discharge from the army on account of bizarre behavior. A psychiatrist testifying in behalf of the defendant generally supported his claim of insanity at the time of the offense. To refute this testimony the State also proffered the testimony of a clinical psychologist who testified the defendant was suffering from a mental illness but under the usual tests of insanity the defendant was not insane. At the close of the evidence, the State indicated it would not seek a straight guilty verdict, but instead would argue for a verdict of guilty but mentally ill. The court instructed the jury on that verdict and on the affirmative defenses of insanity and justifiable use of force. The jury returned a verdict of guilty but mentally ill on the aggravated battery charge.
• 1 The first issue, the constitutionality of applying the verdict of guilty but mentally ill (Ill. Rev. Stat. 1981, ch. 38, pars. 6-2(c), 6-4) to offenses occurring before the effective date of the statute, has previously been discussed by this court in People v. Dalby (1983), 115 Ill. App.3d 35. In Dalby we adopted the position that applying the statute to prior offenses was not constitutionally impermissible, and we adhere to our position in that case.
We next consider whether the court erred in giving an instruction. The State proceeded on the theory that the defendant was guilty of aggravated battery, but mentally ill at the time of the offense. In light of the theories of the defense and prosecution, the jury received instructions defining insanity, mental illness, self-defense and aggravated battery. Further, the State presented its instruction No. 7 to attempt to convey the elements of the case to the jury. The instruction was given over a defense objection that it was a nonpattern instruction and was not consistent with the law in issue in the case. On appeal, the defendant argues the instruction confused the jury by distorting the burden of proof of insanity. The objection of defense counsel at trial was so vague as to warrant a finding that the objection was not sufficiently specific to inform the trial court of the legal basis for the objection. Thus, this court could hold the point of the objection now argued on appeal was waived. However, in light of the probability that the combination of instructions on insanity and mental illness in future cases will give rise to the issue presented here on appeal, we shall decide the issue.
The instruction No. 7 reads as follows:
"To sustain the charge of Aggravated Battery, the State must prove the following propositions:
First: That the defendant knowingly or intentionally caused bodily harm to Henry C. Washington; and Second: That the defendant used a deadly weapon; and
Third: That the defendant was not justified in using the force which he used; and
Fourth: That the defendant was sane at the time of the offense.
If you find from your consideration of all the evidence that each one of the propositions has been proved beyond a reasonable doubt, and you find, beyond a reasonable doubt, that the defendant was suffering from a mental illness at the time of the occurrence, you should find the defendant guilty but mentally ill.
If you find from your consideration of all the evidence that, first, the defendant knowingly caused bodily harm to Henry C. Washington, second, that the defendant used a deadly weapon, and third, that the defendant was not justified in using the force which he used, but that the defendant was insane at the time of the occurrence, then you should find the defendant not guilty by reason of insanity.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you ...