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People v. Liberg

OPINION FILED DECEMBER 10, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOHN LIBERG, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. Charles R. Norgle, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Defendant was convicted of attempt (murder) (two counts), armed violence (two counts), residential burglary, aggravated battery and unlawful use of weapons. He was sentenced to concurrent terms of eight years' imprisonment for each count of attempt (murder), each count of armed violence, and residential burglary; five years for aggravated battery; and 364 days for unlawful use of weapons. Defendant has appealed contending that the jury should have been informed of the consequences of a verdict of not guilty by reason of insanity during voir dire or in an instruction; the evidence was insufficient to prove his sanity beyond a reasonable doubt; lay witnesses were improperly permitted to give their opinions of defendant's sanity when an adequate foundation had not been laid; the prosecutor improperly implied defendant's insanity defense was concocted; and certain statements made by defendant should have been suppressed because the police obtained them by violating defendant's rights under the fourth and fifth amendments to the United States Constitution. We affirm.

Initially we will address defendant's contention that the State failed to prove beyond a reasonable doubt that he was sane at the time of the March 15, 1983, incident. Defendant's psychiatrist, Dr. Marvin Ziporyn, testified that defendant suffered from a major depressive episode and could not conform his conduct to the requirements of the law on that date. The State's psychiatrist, Dr. Jonathan Kelly, initially diagnosed defendant as suffering from a major depression, changed his opinion subsequently on the basis of additional information, and at trial testified that in his opinion defendant could conform his conduct to the requirements of the law on March 15, 1983. Defendant's psychologist, Dr. Martin Scripp, diagnosed defendant's condition as a dythymic reaction or depression and was of the opinion defendant could not conform his conduct to the requirements of the law on March 15, 1983. The State's psychologist, Dr. Eileen Thatcher, diagnosed defendant primarily as a malingerer and was of the opinion he could conform his conduct to the requirements of the law on March 15, 1983. In addition, three lay witnesses were of the opinion defendant could conform his conduct to the requirements of the law.

• 1 Defendant argues that Dr. Kelly's testimony was insufficient to establish defendant's sanity because Dr. Kelly had initially diagnosed a mental disorder but had subsequently changed his mind. It is significant that at no point did Dr. Kelly ever testify that he had at any time been of the opinion defendant was not sane on March 15, 1983. Defendant also argues Dr. Thatcher's testimony could not be believed because her diagnosis differed from that of the other three experts and because she testified there is no way to measure a person's mental condition in the past using psychological tests. Such conflicts were for the jury to consider. (People v. Grice (1984), 121 Ill. App.3d 567, 568-69, 459 N.E.2d 1122, 1123-24.) The evidence presented by the State was, if believed by the jury, sufficient to establish defendant's sanity beyond a reasonable doubt. Therefore, the jury's determination that defendant was sane must be upheld. People v. Newbury (1972), 53 Ill.2d 228, 236.

Defendant also contends the jury, during voir dire and in an instruction, should have been informed that a verdict of not guilty by reason of insanity would result in commitment proceedings being brought against him. Whether this information should have been given during voir dire or in an instruction will be considered separately, because each context involves different considerations.

• 2 Defendant argues that the jury should have been educated during voir dire as to the consequences of a verdict of not guilty by reason of insanity. However, the law is clearly contrary to defendant's position. The only legitimate purpose of voir dire is to assure the selection of an impartial jury, a purpose which does not include preeducation of the jury. (People v. Teague (1982), 108 Ill. App.3d 891, 894, 439 N.E.2d 1066, 1068-69. See 87 Ill.2d R. 431; 94 Ill.2d R. 234.) The trial court permitted the prospective jurors to be examined with respect to any biases they might have against the insanity defense, which was all that was necessary and all that was proper to assure the selection of a jury which was impartial on the issue of defendant's sanity. People v. Pitts (1982), 104 Ill. App.3d 451, 457, 432 N.E.2d 1062, 1067.

• 3 The other aspect of defendant's argument that the jury should have been informed that a verdict of not guilty by reason of insanity would result in commitment proceedings against defendant is his contention that the jury should have been instructed to this effect. However, trial defense counsel never submitted such an instruction on defendant's behalf. A trial court has no obligation to instruct a jury on its own motion except on such subjects as the elements of the offense charged, the presumption of innocence and the State's burden of proof. (People v. Parks (1976), 65 Ill.2d 132, 137, 357 N.E.2d 487, 489.) Because the instruction defendant claims should have been given was not requested at the jury instructions conference or submitted to the trial court, and because its subject matter did not fall within these matters, a trial court is required to instruct, on sua sponte if necessary, the issue raised has been waived.

• 4 Defendant argues that trial counsel's failure to submit the instruction regarding the consequences of a verdict of not guilty by reason of insanity was ineffective assistance of counsel. To prevail on this claim, defendant must establish that (1) trial counsel's representation "fell below an objective standard of reasonableness" and (2) there is a reasonable probability — a probability which is sufficient to undermine confidence in the outcome but which need not be proof by a preponderance of the evidence — that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984), 466 U.S. 668, 688, 694, 80 L.Ed.2d 674, 693, 698, 104 S.Ct. 2052, 2065, 2068; People v. Albanese (1984), 104 Ill.2d 504, 525-27.) We dispose of this issue on the ground of lack of sufficient prejudice. Strickland v. Washington (1984), 466 U.S. 668, 697, 80 L.Ed.2d 674, 699, 104 S.Ct. 2052, 2070.

The error defendant alleges trial counsel made was not requesting that the jury be instructed on the consequences of a verdict of not guilty by reason of insanity. Defendant asserts that, without such an instruction, a jury may erroneously believe a defendant found not guilty by reason of insanity will be immediately freed and so be reluctant to render such a verdict. This claim has been rejected on several occasions by the Illinois Appellate Court. (See, e.g., People v. Ford (1983), 118 Ill. App.3d 59, 62-63, 454 N.E.2d 1095, 1097; People v. Parker (1983), 113 Ill. App.3d 321, 329, 447 N.E.2d 457, 463; People v. LaFiura (1981), 92 Ill. App.3d 714, 717-19, 415 N.E.2d 1365, 1367-69; People v. Meeker (1980), 86 Ill. App.3d 162, 170-71, 407 N.E.2d 1058, 1065-66.) We believe that the reasoning of such cases as People v. Meeker (1980), 86 Ill. App.3d 162, 407 N.E.2d 1058, remains sound and decline defendant's invitation to change the law of this State on the basis of the reasoning of the cases he cites from other jurisdictions. Thus, if the instruction had been submitted to the trial court it should have been refused. Consequently, defendant has not established any prejudice as a result of trial defense counsel's alleged error.

• 5 Defendant also contends that his convictions should be reversed because the trial court allowed three lay witnesses to testify as to their opinions of defendant's sanity. It has long been held that:

"[A] non-expert witness who had an opportunity to observe the subject under inquiry may give his opinion as to his mental condition — at the same time stating the facts and circumstances as the basis for the opinion." (People v. Pruszewski (1953), 414 Ill. 409, 413, 111 N.E.2d 313, 315; accord, People v. Patlak (1936), 363 Ill. 40, 1 N.E.2d 228; and People v. Dunigan (1981), 96 Ill. App.3d 799, 421 N.E.2d 1319.)

Whether the witness has testified to sufficient facts and circumstances is a matter within the trial court's discretion, and the trial court's decision in this regard will not be reversed unless it is shown that the court abused its discretion. People v. Kuntz (1977), 52 Ill. App.3d 804, 368 N.E.2d 114.

The three witnesses whose testimony is at issue were Darlene Baldwin and Officers David Day and Lance Oakland. Darlene Baldwin had dated defendant for a year but had broken up with him four to five months before March 15, 1983. She had seen defendant three or four times in that four or five months, the last being February 26, 1983. On March 15, 1983, she spoke with defendant on the telephone but did not see him. Officers Day and Oakland saw defendant after the incident of March 15, 1983. Officer Oakland transported defendant to the police station but did not speak to him. Officer Day had a conversation with him. All three witnesses testified that, in their opinions, defendant could conform his conduct to the requirements of the law on March 15, 1983.

• 6 Each of the three witnesses had an opportunity to observe defendant and the facts and circumstances regarding their observation of and acquaintance with defendant were presented to the jury. That each witness' opportunity to observe defendant may have had certain limitations — that Darlene Baldwin had not seen defendant on a regular basis for a time and only talked with him on the telephone on March 15, 1983; that Officers Oakland and Day did not know defendant previously; and that Officer Oakland never spoke with defendant — was certainly something for the jury to consider in deciding how much weight to ...


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