Appeal from the Circuit Court of Lake County; the Hon. Robert
K. McQueen, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant Sheldon Jaffe was convicted of the murder of Patricia Dean (Pat) and the attempted murder of Ghazi Dean (Ghazi). On appeal, defendant asserts he was not proven guilty of murder and attempted murder beyond a reasonable doubt, he was deprived of his constitutional right to the effective assistance of counsel, the trial court improperly instructed the jury on a witness' mental history, the trial court improperly restricted the cross-examination of Ghazi, defendant's sentence was not entered in compliance with the requirements of the habitual criminal act, and the judgment order incorrectly states defendant was convicted of two counts of murder. For the reasons expressed in this opinion, we affirm defendant's murder conviction but reverse his attempted murder conviction and remand for a new trial.
Defendant was charged with the murder of Pat and the attempted murder of her husband Ghazi. At trial, Lake County Deputy Sheriff William Bobrowski testified he was dispatched by radio on June 30, 1983, at 12:30 a.m. to a residence with the address of 310 Park Avenue, Wildwood. A reddish-orange Chevy Nova was parked in the driveway. Ghazi met Bobrowski at the front door and told Bobrowski to hurry into the bedroom because Pat was bleeding to death. There, Bobrowski observed a profuse bleeding wound in the victim's head. Pat was taken to the hospital, where she died later of the gunshot wound.
After returning to the living room, Bobrowski noticed on the floor a black-powder-type revolver, a folding knife with the blade open, a camouflaged military-style hat, and a blood stain. Ghazi had some minor scrapes and small lacerations on his hands and arms. Bobrowski observed a bullet hole in the hall closet, a bullet hole in the television set in the living room next to the front door and a bullet hole in the headboard to the bed in the victim's bedroom. The investigation revealed that bullet continued through the exterior wall of the house and through the neighbor's fence.
Detective Ray Lamprich testified that although both the knife and the gun found in the Dean living room were dusted for fingerprints, neither provided suitable prints for comparison purposes. Lamprich observed no signs of forced entry into the residence.
The testimony of Ghazi and defendant presented two very different versions of the events surrounding Pat's death. Ghazi testified that he married Pat in 1979 and lived with Pat and her two daughters first at Pat's home in Gages Lake, and later in February 1983, the family moved to the Park Avenue residence in Wildwood. Defendant lived with the Deans from 1982 until June 26, 1983. He was asked to move because defendant came home drunk every night.
On the morning on June 29, 1983, defendant came to the Dean residence to inquire about repayment of $200 defendant had loaned to Pat several weeks earlier. Defendant left and returned to the Dean residence between 5 p.m. and 6 p.m. and again demanded the $200. After Ghazi assured defendant that Pat would pay him, defendant left. Later that evening after Pat was asleep, Ghazi took Dilatin, Lithium and Valium prescribed by his doctor, locked the door and went to bed. Ghazi took these drugs to prevent further damage to his brain, which was injured in a truck accident. Ghazi was awakened with Pat saying, "No, Monty. No, no Monty". Monty was defendant's nickname. Ghazi heard one shot, and then another and observed defendant holding the barrel of the gun toward him. Leaping up, Ghazi grabbed the gun and another shot was fired. Ghazi and defendant wrestled into the hallway and eventually into the living room. When defendant reached for a knife in a sheath, Ghazi grabbed defendant by the throat, wrestled him to the ground and jumped on top of him. Ghazi beat defendant until defendant was unconscious.
After calling for an ambulance and the police, Ghazi returned to the living room and observed that defendant was gone. While waiting for the police to arrive, Ghazi went into the bathroom, wiped blood from his body with paper towels which he deposited in the bathroom garbage can, vomited, and then got dressed. As part of defendant's case in chief, Ghazi admitted he and Pat argued frequently and admitted he had on previous occasions struck his wife. He also stated everyone knew Pat was "a bitch" about money.
Defendant testified he first met Pat in 1979 at a work release center where both he and Pat were confined. While living with the Deans at both the Gages Lake and Wildwood residences, defendant witnessed numerous arguments between Pat and Ghazi and heard Pat and Ghazi discussing setting fire to the Gages Lake residence, which ultimately did burn to the ground on February 9, 1983. Defendant admitted he had argued with Pat about the $200 loan, but stated Pat and he had agreed to repayment of the loan on July 5, 1983.
Defendant offered testimony on the events surrounding Pat's murder. After drinking some beer at his mother's house on June 29, 1983, defendant went to the Dean home, left there about 2:30 p.m. and drove to Gages Lake where he drank beer in his car. Running out of beer, he went to the Firehouse Pub in Gages Lake and did not return home to Skokie until 7 p.m. From Skokie, he called Ghazi and asked if he wanted to meet him at the Firehouse Pub. Ghazi declined, and defendant then received permission from Ghazi to stay at the Dean residence that night. He left Skokie at 10 or 10:15 p.m. and drove to the Firehouse Pub. Once there, he drank beer, played pool with Rich Tokarz, and cashed a check. Because he didn't feel well, he drove his car one block from the Firehouse Pub and took a nap for 20-30 minutes. At approximately 12 to 12:15 a.m., he then walked back to the Firehouse Pub, leaving his army fatigue hat in his car, and cashed another check at the Firehouse Pub. He walked back to his car and then drove to the Dean residence. Arriving at 12:30 a.m., he knocked on the front door and hearing no response, turned the handle, opened the front door and confronted Ghazi in the living room. Ghazi was naked, was "kind of wild-eyed," was holding a pistol in his right hand and said to defendant, "Okay, fucker." Defendant lunged for the gun, and during the ensuing struggle, the gun discharged three times. as a result of either being struck by a bullet or Ghazi, defendant was knocked unconscious. Awakening after several minutes, defendant jumped up off the floor, fled down the street, and spent the rest of the night under an evergreen tree one block from the Dean residence. The next morning, he looked for but did not see his car, so he walked to a Foremost Liquor Store and asked the manager, Les Card, to call a cab for him. He then was driven to Skokie, where he was arrested by Lake County sheriff's officers.
Numerous other witnesses testified, and their testimony will be recounted as necessary to resolution of the issues presented. At the conclusion of the trial, the jury returned verdicts of guilty on the charges of murder, attempted murder, aggravated battery, armed violence and home invasion. The trial court vacated the aggravated battery, armed violence and home invasion convictions as lesser included offenses and merged the two counts of murder. Defendant was sentenced to two concurrent terms of natural life imprisonment. On December 19, 1983, defendant filed a post-trial motion, the trial court denied that motion, and defendant filed his notice of appeal.
• 1 Defendant first asserts that he was not proven guilty beyond a reasonable doubt of the murder of Pat and the attempted murder of Ghazi. The function of the trier of fact is to determine the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill.2d 296, 298.) Where the evidence is conflicting, a court of review will not substitute its judgment for that of the trier of fact. (63 Ill.2d 296, 298-99.) A conflict in the evidence does not establish a reasonable doubt, and a jury verdict based on substantial and credible evidence is not rendered reversible by the fact that other evidence was introduced which might, if believed, have resulted in a different verdict. (People v. Kelly (1956), 8 Ill.2d 604, 615, cert. denied (1957), 353 U.S. 966, 1 L.Ed.2d 915, 77 S.Ct. 1050.) Only where the record leaves the reviewing court with a grave and substantial doubt of guilt should the conviction be reversed. People v. Lindsey (1979), 73 Ill. App.3d 436, 392 N.E.2d 278.
• 2 Our review of the evidence convinces us that the evidence is not so improbable or unsatisfactory as to raise a reasonable doubt of defendant's guilt. The record contains substantial evidence that defendant was angry with Pat about her refusal to repay the $200 loan. According to Denise Lund and James Giovenco, both of whom knew the Deans and defendant and lived fairly near the Dean residence, defendant and Pat fought over the loan during the two-week period preceding her death. Tracy Anderson, who lived with the Deans for a period of time, testified she received a telephone call from defendant on June 29, 1983, in which defendant stated he and Pat had been fighting and that he could not remain friends with Pat. Richard Tokarz stated he spoke with defendant at the Firehouse Pub at approximately 11 p.m. on June 29, 1983, and that defendant told him then that he was angry with Pat and was going to drop Ghazi and Pat from his automobile insurance policy the next day. Defendant himself admitted that several weeks prior to the murder, the Deans and he had agreed that he should move out of the Dean household. Defendant also was aware that although Pat refused to pay defendant, she had more than enough money in the bank to repay the debt. Denise Lund testified that on the day prior to the murder Ghazi was trying to get defendant to make amends with Pat. From this testimony, the jury could have found that defendant had a motive to murder Pat.
The jury could also have disbelieved defendant's explanation of the events on June 29, 1983. His version was that at approximately 10:15 p.m. on that evening he left his mother's residence in Skokie and drove to the Firehouse Pub in Gages Lake. After playing pool with Richard Tokarz and drinking beer, he left the pub and drove one block away, parked the car and "caught a catnap." After 20 or 30 minutes, he awoke and walked back to the pub, leaving his hat in his car, cashed a check for $5 and paid for a beer. He then walked back to his car and drove to Pat's residence. Following the fight with Ghazi, he ran down the block and spent the night underneath an evergreen tree. The next morning he looked for his car, did not see it, and then walked to the Foremost Liquor Store where he called a taxi. Defendant denied returning to the pub after the fight with Ghazi and denied calling James Giovenco after midnight at the hospital where Giovenco was a patient.
The testimony of other witnesses contradicted defendant's version. Both Tokarz and Beverly Douglas, owner of the Firehouse Pub, testified defendant was at the bar about 11 or 11:10 p.m. on June 29, 1983. However, both also testified defendant returned to the pub after midnight. Tokarz stated he saw defendant in the pub at approximately 12:40 or 12:50 a.m. and "[h]e seemed like he was in a hurry." Douglas was even more definite that defendant entered the pub at 12:45 a.m. on June 30, 1983. She recalled the time because her bartender asked to work until 2 a.m. and Douglas came down to the bar from her upstairs apartment to determine if enough customers were there to warrant extending the bartender's shift. As soon as she entered the bar, defendant came in without his hat. Defendant was "uptight" and asked for a beer. Defendant cashed a check with Douglas for $5 and had a hard time writing out the check because his hands were shaking. Defendant used a telephone twice and then left the bar at 1:20 a.m. James Giovenco testified that while a patient at St. Joseph's Hospital, he received a telephone call from defendant in the early morning of June 30, 1983, in which defendant told Giovenco that he was sorry he wasn't going to be able to see Giovenco anymore. From these facts, the jury could have disbelieved defendant's version that he did not return to the pub after the incident, but rather hid behind the tree all night. The conflicting testimony permitted the jury to conclude that defendant was not being truthful regarding the events of June 29-30, 1983.
The jury also could have considered the different versions of the incident offered by defendant to various individuals as impairing defendant's credibility. According to Les Card, manager of the Foremost Liquor Store in Wildwood, defendant came into the store after 6 a.m. on June 30, 1983, looking like he had been in a bad fight. Defendant explained his condition by stating he had been involved in a fight outside of a bar in Gages Lake. Ralph Schwartz, a detective in the Lake County sheriff's office, testified he was involved in taking defendant into custody in Skokie on the morning of June 30, 1983. Defendant told him and Detective Lamprich that he did not have any recollection of shooting Pat, that he was an alcoholic who suffered blackouts, and that he remembered leaving Skokie on June 29, and returning on June 30, but remembered nothing in between those times. Later on June 30, defendant told Nurse Collette Rolling at the Lake County jail that he couldn't remember how he received his injuries because he blacked out. However, in his testimony at trial, defendant was able to remember all the events which transpired on June 29-30, 1983. The jury could have inferred that defendant's different statements regarding his recollection of the events on the night of the murder rendered his testimony unworthy of belief.
• 3 Defendant's reasonable doubt argument is predicated almost entirely on attacking the credibility of Ghazi. Although emphasized by defendant, we do not find significant the inconsistent testimony on whether Ghazi went to the hospital in the ambulance with his wife. Also, any conflict between Ghazi's testimony that brain matter splattered around the room and the paramedic's testimony that he did not observe any brain matter is not significant because the jury could have concluded that the blood splattered on the wall of the bedroom was mistaken by Ghazi to be brain matter. Defendant raises certain inconsistencies between Ghazi's testimony and that of Kenneth Sweetwood, Ghazi's next-door neighbor. However, according to Charles Fagan, detective of the Lake County sheriff's department, Kenneth Sweetwood, on the morning of the incident, did not tell Fagan that he heard a woman's voice say "No, don't" prior to the first gunshot and did not tell Fagan that he heard a conversation regarding insurance money. Therefore, the jury could have disbelieved the trial testimony of Kenneth Sweetwood based upon his failure to offer this information to Fagan during the investigation on the morning of the murder.
Defendant emphasizes that Ghazi cannot be believed because of his brain injury. Dr. Ronald Baron, a psychiatrist, testified he examined Ghazi on May 24, 1982, and May 23, 1983, in connection with Ghazi's social security disability hearing. As a result of a 1980 truck accident, Ghazi suffered from a chronic organic brain syndrome. Ghazi's symptoms included "irritability, headaches which awakened him from a sound sleep, nervousness, episodes of violence, noise intolerance, intolerance to heat, and decreased tolerance to alcohol." He experienced seizures resulting from the accident for which he was prescribed Dilantin. Prior to Baron's examination, Ghazi had experienced rage attacks and had struck Pat and one of his stepchildren. Additionally, Ghazi suffered a memory deficiency as a result of the accident resulting in an inability to remember the specific details of an event, but he was capable of remembering major events and the names of people with whom he commonly was in contact. Baron testified his diagnosis of Ghazi conflicted with that of another doctor, who had concluded that Ghazi's ability to think was impaired to a lesser extent. From this testimony, the jury could have concluded that Ghazi was able to accurately recall the major events on June 29-30, 1983, despite his potential for confusing the particular details of that night. Ghazi's brain injury does not undermine his credibility sufficiently to raise a grave and substantial doubt of defendant's guilt.
Defendant also emphasizes the inconsistencies between Ghazi's testimony that he vomited in the toilet and threw bloodied paper towels in the bathroom trash can after his fight with defendant and Bobrowski's testimony that in his investigation of the bathroom he found no bloodied paper towels in the bathroom garbage can and found no evidence of vomiting in the bathroom. The jury could have inferred that Bobrowski found no evidence of vomit because Ghazi flushed the toilet. While Ghazi's testimony that he threw the towels in the garbage can is inconsistent with Bobrowski's search of the bathroom, the jury could have concluded this inconsistency was insignificant in light of the inconsistencies in defendant's version of the events on June ...