Appeal from the Circuit Court of Cook County; the Hon. Thomas
R. Fitzgerald, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
A jury found defendant, Cornell Moore, guilty of rape, deviate sexual assault and robbery. (Ill. Rev. Stat. 1983, ch. 38, pars. 11-1(a), 11-3(a), 18-1(a).) He was sentenced to concurrent terms of natural-life imprisonment as an habitual offender for rape and deviate sexual assault and a concurrent seven-year sentence for robbery. Ill. Rev. Stat. 1983, ch. 38, pars. 33B-1, 1005-5-3(c)(6), 18-1(b).
Defendant appeals contending that: (1) the circuit court erred in refusing to issue tendered instructions on the affirmative defense of insanity after defendant had raised the issue of his sanity at trial; (2) he was denied effective assistance of counsel; and (3) the circuit court erred in denying his request for a psychiatric examination.
At about 6:15 a.m. on Sunday, April 1, 1984, the victim, a pedestrian, was approached by a black man wearing rust colored coat and pants. The man moved directly into her path; she attempted to go around him; he again moved, so that his right hand, in his pocket, touched her stomach, and his left hand grabbed her wrist; he nudged her with his right, pocketed hand, and said "don't start no shit it won't be no shit or else I'll blow your mother fucking brains out." He then forced her into an alley behind the Woodlawn health clinic and robbed her of money and jewelry. He had a beard and mustache, and she later identified defendant as the man.
Defendant then took her down the alley to a basement, forced her to take off her pants and underpants and face the wall, had her bend over and inserted his penis in her rectum. The victim then said, "don't hurt me," and defendant withdrew his penis. He next had her lie on her back, covered her face with her pants and then inserted his penis into her vagina. Finally, he had her kneel on her hands and knees and he then put his penis once again in her vagina and ejaculated.
Defendant then dressed and told his victim to dress also. He ordered her to "stay for fifteen or twenty minutes, or else I'll blow your mother fucking brains out." He left, and the victim left five minutes later and found a police car two blocks away. She described the rapist to the police and the description was transmitted to other police in the area. Defendant was seen by police a few blocks from the basement and was caught following a brief chase. Defendant had money and jewelry in his pockets when arrested, and he was identified by his victim as her rapist. The victim also described the jewelry of which defendant had robbed her and subsequently identified some of the jewelry seized from defendant as the stolen jewelry. She was taken to Billings Memorial Hospital and examined by a physician who found rectal abrasions indicating recent anal trauma. Microanalysis showed spermatozoa in both rectal and vaginal samples taken from the victim, her underpants and the pants of defendant.
Following the presentation of evidence at trial, and prior to closing arguments and the charging of the jury, defendant moved to reopen the defense case in order to allow him to testify. After being cautioned by the court and against the advice of counsel, defendant testified, primarily attempting to assert his need for psychiatric help. His motion for psychiatric evaluation was denied. The defense then submitted insanity instructions which were refused by the court.
The trial continued and defendant was subsequently found guilty and sentenced as an habitual offender to concurrent terms of natural-life imprisonment for rape and deviate sexual assault and a concurrent seven-year term for robbery. (Ill. Rev. Stat. 1983, ch. 38, pars. 33B-1, 1005-5-3(c)(6), 18-1(b).) He had previously pleaded guilty to rape, robbery and attempted robbery on April 4, 1975; rape and robbery on April 29, 1975; and rape and robbery on June 16, 1978. This appeal follows.
• 1 Defendant initially contends that he properly raised the affirmative defense of his insanity at the time that he allegedly committed the offenses charged.
In Illinois defendant's insanity at the time of the alleged offense is an affirmative defense. (Ill. Rev. Stat. 1983, ch. 38, par. 3-2.) Since all men are presumed sane (People v. Silagy (1984), 101 Ill.2d 147, 168, 461 N.E.2d 415, cert. denied (1984), 469 U.S. 873, 83 L.Ed.2d 156, 105 S.Ct. 227; People v. Redmond (1974), 59 Ill.2d 328, 338, 320 N.E.2d 321; People v. Smothers (1973), 55 Ill.2d 172, 174, 302 N.E.2d 324), defendant bears the burden of raising the defense (People v. Kashney (1986), 111 Ill.2d 454, 464, 490 N.E.2d 688; People v. Silagy (1984), 101 Ill.2d 147, 461 N.E.2d 415). Until recently, the State thereafter bore the burden of proving beyond a reasonable doubt that defendant was sane at the time of allegedly committing the crime. (101 Ill.2d 147, 461 N.E.2d 415; People v. Redmond (1974), 59 Ill.2d 328, 320 N.E.2d 321.) In essence, defendant's sanity, once legitimately put in issue, became another element of the charged offense which had to be proved beyond a reasonable doubt. People v. Glenn (1985), 137 Ill. App.3d 803, 806-07, 484 N.E.2d 1204, appeal denied (1986), 111 Ill.2d 573.
In 1983, however, the General Assembly changed the burden of proof and the burden of proving the insanity defense. (Pub. Act 83-288.) Effective January 1, 1984, the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 3-2, 6-2) provided:
* * * Affirmative defense. * * * If the affirmative defense of insanity is raised, the defendant bears the burden of proving by a preponderance of evidence his insanity at the time of the offense."
(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his ...