Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Collins, Judge, presiding.
JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 16, 1985.
A jury found the defendant, Michael Brady, guilty of the murder of Joseph Wellner. He was sentenced to 20 years' imprisonment. On appeal, the defendant contends for reversal that: (1) the evidence failed to establish his guilt of murder beyond a reasonable doubt; (2) the trial judge erred in admitting into evidence (a) the defendant's prior criminal activity, (b) a psychiatrist's testimony which impugned the defendant's credibility, (c) testimony that the defendant was informed of his Miranda rights upon his arrest; (3) the defendant was irreparably prejudiced by a police officer's volunteered testimony that the defendant was involved in narcotics; (4) the prosecutor's closing argument was prejudicial; (5) the evidence supported a finding of manslaughter; (6) the trial judge erred in refusing to instruct the jury on involuntary manslaughter; and (7) the trial court erred in its insanity instruction. We affirm.
The evidence at trial was uncontradicted that at about 11:30 p.m. on January 22, 1982, in Chicago, in the kitchen of the first-floor apartment of Doris Rutledge, the defendant shot Joseph Wellner in the back of his head and killed him. Immediately prior to the shooting, Ed McGallo, the boyfriend of Doris Rutledge, was asleep on the living room couch. Rose Rutledge, Doris Rutledge's daughter, who was engaged to Wellner, was asleep in the bedroom. Doris Rutledge, her son John Rutledge, Wellner and the defendant were sitting and talking at the kitchen table. The defendant stood up and went into the bedroom where Rose Rutledge was sleeping. The defendant called out Rose's name and then left the bedroom with a gun. The defendant aimed the gun at the back of Wellner's head and without uttering a word, fired a shot into Wellner's head from a distance of about five or six feet. Wellner fell to the floor, mortally wounded.
Rose Rutledge was awakened by the noise of the gunshot. She sat up in bed and saw the defendant holding the gun and Wellner on the kitchen floor, bleeding from his head. The defendant again entered Rose's bedroom and stated that he shot Wellner because Wellner was trying to kill him. The defendant told Rose to tell her mother and brother that he would shoot them if they did not come out of the other bedroom where they had taken refuge. Rose pleaded with the defendant to give her the gun, which he did. Doris and John Rutledge then came out of the bedroom. The defendant told them to watch the television and to "act naturally."
Later, when there was a knock at the door, the defendant told Rose to clean up the floor and ordered John to move Wellner's body into a bedroom. The defendant told Rose to leave with him and instructed John to bury Wellner's body in the basement.
Rose and the defendant left the apartment and got in the defendant's car, which the defendant drove on the Dan Ryan Expressway to his home on the city's south side. During the ride, the defendant emptied the gun and threw the bullets out the car window.
When they arrived at the defendant's apartment, the defendant put the gun under a mattress and took a shower. Later, he gave Rose a pair of pajamas and told her to put them on and to go into the bedroom and lie in the bed. The phone rang. Rose answered it and recognized Julius Bagnelle's voice. The defendant informed Bagnelle that he had shot the deceased, that he was not hiding and that if he went to jail, Bagnelle knew what to do. After the phone conversation, the defendant told Rose that he was going to have sex with her. The police then arrived and arrested the defendant.
Defendant first contends that he was not proven guilty of murder beyond a reasonable doubt because there was insufficient evidence that he acted knowingly and with the intent to kill. Murder is defined in section 9-1(a) of the Illinois Criminal Code as follows:
"A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than voluntary manslaughter." Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a).
Defendant does not dispute that the evidence established that he shot Wellner. In fact, the defendant so testified. He further testified, however, that he did not know why he shot Wellner, that he did not knowingly or intentionally shoot Wellner and that he was not legally responsible for the shooting because he was under the influence of drugs and was unable to conform his conduct to the requirements of the law or to appreciate the criminality of his conduct. Defendant's contention is premised on his testimony at trial that he ingested PCP and cocaine prior to the shooting, and on the opinion testimony of a defense witness, Dr. John Adams, that the defendant was under the influence of drugs when he shot Wellner.
• 1 There was additional testimony, however, by the State's witnesses, Rose, John and Doris Rutledge, that there was nothing unusual about the defendant after the shooting, that the defendant walked down the icy stairs without difficulty and without the use of the handrail when he left the apartment with Rose, and that the defendant, again without any difficulty, drove his car on the Dan Ryan Expressway to his home on the south side of the city. This testimony, coupled with the previously mentioned facts of the shooting, was presented to the jury for its determination as to whether defendant acted knowingly or with the intent to kill. There was ample evidence to support the jury's verdict. The verdict therefore will not be disturbed.
Defendant contends that he was under the influence of drugs when he fired the gun and that he therefore could not have had the mental capacity to form the requisite intent to kill Wellner. From the evidence presented, this argument must be rejected. In addition to the aforementioned testimony that the defendant acted normally before and after the shooting, John and Doris Rutledge denied that the defendant had used drugs prior to the shooting. Furthermore, the defendant was arrested approximately four hours after the shooting and the arresting officer testified that the defendant walked and spoke with no difficulty. In his opinion, the defendant was not under the influence of drugs when he was arrested.
It is provided in section 6-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 6-3):
"A person who is in an intoxicated or drugged condition is criminally responsible for his conduct unless such a condition either:
(a) Negatives the existence of a mental state which is an element of the offense; or
(b) Is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."
• 2 By the defendant's own testimony, his drug use was voluntary. For that reason, there was no issue presented as to whether the defendant had the capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, as stated in section (b) above. The question, therefore, was whether under section (a) the defendant's drugged condition negated his intent to kill. The defendant argues that because of his drugged condition, he lacked the mental capacity to form the requisite intent to kill. This question was for the jury's determination. (People v. Jones (1977), 56 Ill. App.3d 600, 605, 371 N.E.2d 1150.) The weight to be given the testimony relating to intoxication and inferences to be drawn therefrom also are peculiarly within the province of the trier of fact. (People v. Gross (1977), 52 Ill. App.3d 765, 771, 367 N.E.2d 1028.) The jury resolved these questions adversely to the defendant and its decision will not be disturbed.
• 3 The defendant next contends that he was denied a fair trial by the court's admission of the testimony of the State's medical expert witness, Dr. Gilbert Bogen, who stated that the defendant was arrested for burglary at the age of 13 and that he was charged with auto theft 20 years prior to trial. This testimony was improper and should not have been admitted. We reject the State's contention that this testimony of the defendant's arrest for burglary and charge for auto theft was proper because it supported the doctor's diagnosis that defendant had an antisocial personality. We likewise reject the State's contention that defendant failed to properly preserve this issue for review.
Upon the presentation of the complained of testimony, the following occurred:
"[Defense Counsel]: Objection, your Honor, move for a objection, your Honor. May I have a side-bar?
THE COURT: I'll ask the jurors to excuse for a moment. I'm going to excuse the jury. You may ...