Appeal from the Circuit Court of Kane County; the Hon. Joseph
M. McCarthy, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, Herschel Glenn, Jr., was charged with murdering James Wright and with raping and murdering Lillian Final in an indictment returned by a Kane County grand jury. The charges relating to Final were dismissed because Cook, rather than Kane, County was the proper venue to try those charges. (Ill. Rev. Stat. 1981, ch. 38, par. 1-6(a).) Following a jury trial, defendant was found guilty of murder and sentenced to a seventy year term of imprisonment. Defendant appeals contending that the prosecutor's elicitation of certain testimony improperly infringed on defendant's rights to remain silent and to counsel; that the trial court erroneously refused to instruct the jury on the defense of insanity; and that statements by the trial court and the prosecutor regarding the relevance of defendant's state of mind at the time of the offense denied defendant a fair trial. We affirm.
It is only necessary to recite the most significant of the great body of evidence admitted at trial prior to discussing the issues raised. Wright and Final were together the evening of May 7, and the early morning of May 8, 1982. About 2:40 a.m. an Elgin police officer saw Wright's empty vehicle with its interior lights on in Lord's Park. An examination about a half hour later revealed that the keys were in the ignition and both Wright's wallet and Final's purse were inside the vehicle.
At about 3:45 a.m. Charles Freemon and Scott Burns saw defendant standing over a body on Massey Road near Route 25. They also read the license plate number on the automobile defendant subsequently drove away in, and it was later determined that the number was for an automobile registered in defendant's name.
The body was James Wright's. He had been shot seven times, including three times in the head. Ballistics tests showed that the projectiles recovered from Wright's body had been fired from a five-shot .38-caliber revolver which was seized during a search of defendant's apartment. Thirteen feet from Wright's body the police found a wallet containing an identification card of defendant and defendant's Elgin police department badge.
At 9:30 a.m. police were informed that Lillian Final's nude body had been discovered at the Stewart-Warner building near Elgin. She had been shot five times and projectiles found near the building as well as those recovered from her body had all been fired from the same .38-caliber revolver used to kill Wright. Tests conducted on a swab taken of Final's vagina indicated the presence of semen which could have come from defendant but could not have come from Wright. Pubic hairs found in defendant's undershorts and his automobile were consistent with Final's but not with Wright's or defendant's. Blood on defendant's jeans and sportcoat could have come from Wright but not from Final or defendant.
We choose to discuss the issues in a different order from that used by the parties. Whether the jury should have been instructed on insanity will be discussed first; whether statements by the trial court and prosecutor on the relevance of defendant's state of mind denied defendant a fair trial will be discussed second; and whether the prosecutor's elicitation of certain testimony improperly infringed on defendant's rights to remain silent and to counsel will be discussed last.
Defendant contends the jury should have been instructed on the defense of insanity.
"The well-established rule in Illinois is that once a defendant introduces evidence which, if believed, would create a reasonable doubt as to whether, at the time of the alleged crime, `as a result of a mental disease or mental defect,' the defendant possessed `substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law' (Ill. Rev. Stat. 1971, ch. 38, par. 6-2), the burden shifts to the State to prove beyond a reasonable doubt that the defendant possessed the requisite mental capacity at the time of the alleged crime. (People v. Redmond (1974), 59 Ill.2d 328, 336-38.)" (People v. Foster (1979), 76 Ill.2d 365, 378-79, 392 N.E.2d 6, 12.)
Defendant's position is that the evidence at trial, particularly the testimony of his parents and of Dr. Orest Mryszuk, raised a reasonable doubt as to his sanity at the time of the offense. We disagree.
The gist of defendant's parents' testimony was that, after defendant's February 1982 hospitalization for carbon monoxide poisoning, he was changed in some respects. According to his mother, he seemed anxious and irritable and did not communicate with her as often as he had previously. His father testified defendant did not visit him as often as before.
Dr. Mryszuk was an internist who treated defendant for carbon monoxide poisoning in February and early March 1982. Less than a month after the offense, Dr. Mryszuk responded to a letter about defendant from Elgin Police Captain Harold Phortmiller. Dr. Mryszuk wrote, inter alia:
"After consultation with a psychiatrist, our conclusions are the following:
1. The possibility exists of a pre-existing organic brain syndrome, which could have progressed, secondary to the toxic effect of the carbon monoxide poisoning; and possible subsequential alcoholic abuse and/or ...