Appeal from the Circuit Court of Cook County; the Hon. John J.
Crowley, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted and sentenced to concurrent terms of 30 years for two counts of armed robbery and a consecutive term of 30 years for armed violence. On appeal, he contends that the trial court erred in (1) denying his motion for a continuance; (2) not allowing him to exercise a peremptory challenge; and (3) refusing to grant a mistrial when the State introduced improper evidence of (a) his prior statements and (b) his prior incarceration.
At trial, the owner and an employee of the Lucky Day Lounge (Lounge) testified that they were at work in the Lounge on December 13, 1979, when defendant entered and ordered a drink. He left approximately 45 minutes later, leaving the glass he had used on the bar. He returned in 15 minutes with a gun in his hand and ordered the employee, Bertha Cornelius, to put the money from the cash registers into a bag. After she complied, defendant ordered the owner, John Neal, to place the money from his pockets into the same bag. Defendant took the bag and started to leave, but stopped to hide the gun under his shirt when he saw police officers standing in front of the Lounge. Immediately after defendant departed, Neal told the officers of the robbery and pointed to defendant, who was still in sight. One of the officers pursued him, and two hours later Neal and Cornelius identified defendant in a lineup. Both also identified him at trial, as did a third witness who was a patron of the Lounge at the time of the robbery. Police evidence technicians established that fingerprints found on the glass used by the offender matched fingerprints taken from defendant at the time of his arrest.
Officer Marshall testified that when he and his partner made a traffic stop in front of the Lounge, he noticed defendant emerge from the Lounge carrying a paper bag and walk west through a vacant lot, and then Neal ran out and told him that defendant had robbed the Lounge. When ordered to halt, defendant began running, and during the pursuit he saw defendant drop the paper bag and a pair of sunglasses. Defendant continued running for a short distance, then turned, dropped to a crouch, and fired three shots. He (Marshall) returned the fire, and defendant began running again, firing two more shots as he ran; neither of them was injured in the incident. He lost sight of defendant, but learned that other officers found him hiding in a nearby apartment. Marshall identified defendant at the apartment and then recovered the paper bag and sunglasses. The bag contained cash and a receipt bearing the name of the Lounge.
Officer Pustay testified that during a search for defendant, he and his partner entered a rear yard of a nearby apartment building where he noticed that the screen door on the third-floor porch had recently been kicked in. They went up to the porch door and entered the apartment after noting that the rear door was also splintered and cracked. Defendant, clad only in underwear, was found in the apartment; he was breathing heavily and appeared to be highly agitated. After Officer Marshall identified him, defendant was placed under arrest, and his clothing was recovered from a bedroom of the apartment. Another officer testified that a weapon with five expended cartridges was found in a hall linen closet.
Dr. Stipes, a psychiatrist employed by the Psychiatric Institute of Cook County, a defense witness, testified that in his opinion defendant was unable to conform his conduct to the law or to appreciate the criminality of his conduct on December 13, 1979. He said that during initial interviews, defendant was confused, disoriented, slow of movement and speech, and showed defects of recent and past memory. Based on these interviews, as well as on psychological tests and the reports of other psychiatrists, he concluded that defendant had suffered from organic brain syndrome since 1976, a disease which is manifested by confusion and illogical thinking. Those symptoms are exacerbated by the consumption of alcohol. Dr. Stipes acknowledged that in his earliest reports, he had stated that the disruption of motor coordination incident to organic brain syndrome made it highly implausible that defendant was physically capable of committing the crimes charged. He further admitted that his opinion was rendered prior to reviewing reports which showed that an EEG taken of defendant was normal; that when he first saw defendant, he had a suspicion that he was faking an illness; and that other psychiatrists and psychologists had indicated in their reports that there was a strong possibility that defendant was malingering. He explained, however, that those reports also stated that there were problems of memory and communication which could be indicative of organic brain syndrome.
Dr. Bogen, another psychiatrist employed by the Psychiatric Institute of Cook County, testified for the State in rebuttal that in his opinion defendant was able to conform his conduct to the requirements of the law and to appreciate the criminality of his acts at the time of the crime. He examined defendant twice after reviewing all available medical and police reports, and determined that he lacked the classic symptoms of organic brain syndrome; i.e., lack of orientation to person, time and place, low intelligence, poor reasoning power and memory, and lack of rational judgment. During interviews, defendant was able to remember and relate past events in detail, and his use of language indicated that he was of normal intelligence. Furthermore, defendant showed an ability to indulge in rather sophisticated abstract reasoning and showed excellent judgment. Dr. Bogen further testified that defendant was malingering; i.e., faking an illness or exaggerating the symptoms of an illness actually present. He noted that there were discrepancies between the objective findings and what defendant claimed was his disability. While defendant asserted that he suffered brain damage as a result of a blow to his head in 1976, and such an injury was possible, the symptoms thereof would have appeared immediately and would have been most prominent during the period immediately following the injury. However, in defendant's case, no symptoms were reported during the year following the injury; in fact, during that time, reports indicated that defendant had a good memory and could engage in abstract reasoning. Moreover, there were numerous inconsistencies in the results reported by different psychiatrists, both in the information defendant was able to provide and in the tasks he was able to perform. Dr. Bogen also testified that defendant was uncooperative in the diagnostic evaluation, which is a further consideration in determining whether he is malingering. He also stated that the reports of five other interviewers also suggested the possibility of malingering, and that the fact defendant ran from the scene, shot at his pursuer, and tried to conceal his involvement were indicative of the ability to appreciate the criminality of his conduct.
Defendant first contends that the trial court abused its discretion in denying his motion for a continuance. On the day trial commenced, defense counsel sought a continuance, explaining that he had not understood that trial was to begin that day, and that another attorney, who had expertise in psychiatric matters, was on vacation and would be unavailable to try the case with him for two weeks. In denying the motion, the trial court noted that the prosecutor had reminded defense counsel of the trial date several days in advance; that all discovery had been completed for a substantial period of time; and that the case had been pending for over two years.
Defendant acknowledges that the decision to grant or deny a continuance was within the sound discretion of the trial court (Ill. Rev. Stat. 1981, ch. 38, par. 114-4(e); People v. Thibudeaux (1981), 98 Ill. App.3d 1105, 424 N.E.2d 1178), and that its determination will not be disturbed on review absent a clear abuse of that discretion (People v. Surgeon (1958), 15 Ill.2d 236, 154 N.E.2d 253); that is, unless it appears that denial of the continuance impeded the accused's preparation of his defense or prejudiced his rights (People v. Petrovic (1981), 102 Ill. App.3d 282, 430 N.E.2d 6). However, he asserts that this criterion is met in the instant case because the trial court's failure to grant the continuance deprived him of his right to effective assistance of counsel. He maintains that trial should have been delayed until co-counsel was available to conduct the examination of the psychiatric witnesses.
Initially, we note that "[t]here is no mechanical test, statutory or other, for determining the point at which the denial of a continuance in order to accelerate the judicial proceedings violates the substantive right of the accused to properly defend." (People v. Lott (1977), 66 Ill.2d 290, 297, 362 N.E.2d 312, 315.) Thus, we must weigh the particular facts and circumstances of the individual case before us in determining whether the trial court has abused its discretion (People v. McEwen (1982), 104 Ill. App.3d 410, 432 N.E.2d 1043); however, we also note that denial of a continuance because of the unavailability or incapacity of counsel has been affirmed where co-counsel was available to adequately try the case (see People v. Miller (1958), 13 Ill.2d 84, 148 N.E.2d 455, cert. denied (1958), 357 U.S. 943, 2 L.Ed.2d 1556, 78 S.Ct. 1394; People v. Davis (1950), 406 Ill. 215, 92 N.E.2d 649; People v. Cates (1982), 111 Ill. App.3d 681, 444 N.E.2d 543; People v. Nobles (1980), 83 Ill. App.3d 711, 404 N.E.2d 330), since courts> are reluctant to find prejudice where defense counsel was prepared and conducted the accused's representation with diligence and skill (People v. La Fiura (1981), 92 Ill. App.3d 714, 415 N.E.2d 1365).
Defendant does not argue that the trial court lacked sufficient reason to seek a prompt resolution of this case. It had been pending for over 2 1/2 years and had been the subject of numerous delays, many of which were occasioned by defendant. Moreover, the court was dealing with a defendant who had been found fit to stand trial after having been declared unfit. It is defendant's position, however, that the desire of the trial court not to further delay the trial should have yielded to his right to effective assistance of counsel.
The key question here, then, is whether defendant received adequate representation. Therefore, although defendant has not raised it as a separate issue, in determining whether the trial court abused its discretion in denying a continuance, we must consider whether defendant was denied the effective assistance of counsel which is guaranteed by the sixth and fourteenth amendments to the United States Constitution. (U.S. Const., amends. VI, XIV; People v. Knippenberg (1977), 66 Ill.2d 276, 362 N.E.2d 681.) In so doing, we are required to consider the totality of the circumstances rather than focusing on isolated incidents (People v. Conley (1983), 118 Ill. App.3d 122, 454 N.E.2d 1107), and determine whether counsel was "actually incompetent as reflected in the performance of his duties as a trial attorney" to the extent that it affected the outcome of the trial (People v. Martin (1983), 112 Ill. App.3d 486, 493, 445 N.E.2d 795, 802).
• 1 Defendant asserts that defense counsel was unprepared to conduct an insanity defense and his performance was therefore ineffective, citing as examples counsel's difficulty in eliciting the opinion of an expert witness; his failure to object to hearsay testimony introduced by the State during cross-examination of an expert witness; and his failure to object to a narrative answer given by the State's expert witness. We have considered each of these matters in the context of counsel's overall ...