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01/14/87 the People of the State of v. Joshua Fierer

January 14, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOSHUA FIERER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

503 N.E.2d 594, 151 Ill. App. 3d 649, 104 Ill. Dec. 879 1987.IL.25

Appeal from the Circuit Court of Tazewell County; the Hon. Richard E. Eagleton, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. SCOTT, P.J., concurs. JUSTICE HEIPLE, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

Defendant, Joshua Fierer, was charged in a five-count information with the murder of his wife in violation of section 9-1 of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 9-1). Following a jury trial, Fierer was found guilty but mentally ill on the charge of murder in accord with section 115-4(j) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115-4(j)). Fierer was sentenced to a 30-year term of imprisonment on count I of the information, with judgment deferred on the remaining four counts.

Fierer and his wife were married in 1959. In January 1984, the couple agreed to a divorce and Fierer filed the petition. In December 1984, the couple met at the family home to divide the marital property. Also present in the home that day were the court-appointed guardian ad litem for the children and two movers. None of the visitors in the house saw the events that took place, but when one of them heard a commotion in the other room, he ran in to see Fierer kneeling over his ex-wife, his elbows moving rapidly, and blood on the closet wall. The witness was unable to physically remove Fierer from over the body and when he hit Fierer over the head with a record carrying case, there was no reaction. Fierer later stated that he had gone to the kitchen for a garbage bag, and when he returned he knelt down next to his ex-wife, who was kneeling in the closet. The next thing he noticed was a knife coming at him. The last thing that Fierer remembered was grabbing the knife by the blade and trying to wrestle it from his ex-wife.

There was no question that Fierer committed the acts that resulted in the death of his wife, rather the issues raised by the parties on appeal arise from alleged improprieties in the evidence admitted and the court's submission to the jury of the guilty but mentally ill verdict alternative. Fierer contends that the GBMI verdict violated his due process rights under both the Illinois and Federal constitutions, that it was not warranted by the evidence, and that even if warranted by the evidence, the instruction as given was not in accord with Illinois law. Fierer's contentions in regard to the evidence admitted are (1) that the trial court erroneously admitted 15 gruesome and bloody slides of the victim's body, and (2) that the State should not have been permitted to cross-examine Fierer about the discovery of potassium cyanide and secobarbital in the trunk of his car or the newspaper article discovered in his bedroom. For the following reasons, we find that the defendant is entitled to a new trial. I. The GBMI Verdict

During closing arguments, both counsel for the State and counsel for the defendant made statements that the verdict of GBMI was not warranted by the evidence. That this created a conflict in the minds of the jurors is strongly supported by the record and the dialogue that occurred between the Judge and the jury when the jury questioned the Judge as to what verdict forms they were allowed to use and a statement made by the jury foreperson "that we couldn't use" one of the verdicts. This statement, as Fierer points out in his brief, related to the "agreement" by the parties that the GBMI verdict was not warranted by the evidence in this case.

Initially, we address Fierer's contention that the GBMI verdict violates his due process rights under the Illinois and Federal constitutions. Fierer contends that "[a]uthorizing a jury to find a defendant guilty but mentally ill' deprives an accused of liberty without due process of law because it introduces into the jury's fact-finding task a consideration that is wholly extraneous to the jury's function and that diverts the jury's attention from its primary duty." This is not the first time that the constitutionality of the guilty-but-mentally-ill statute has been challenged.

In People v. DeWit (1984), 123 Ill. App. 3d 723, 463 N.E.2d 742, the defendant contended that the GBMI verdict promotes jury confusion and encourages a finding of GBMI as a compromise. The defendant argued that the distinction between legal insanity and mental illness is likely to be incomprehensible to the average juror since the definitions overlap and are poorly conceptualized. The DeWit court reiterated the well-established principle that to survive a challenge of denial of due process, a statute may not be so vague that men of common intelligence must necessarily guess at its meaning. The statute must also provide sufficiently definite standards of law-enforcement officials and triers of fact so that its application does not depend merely on their private conceptions. The court went on to hold that section 115 -- 4(j) expresses its requirements in simple and clear language and that the definition of mental illness provides meaningful standards for a jury to make the required findings. (123 Ill. App. 3d 723, 735-36, 463 N.E.2d 742, 750.) Although plainly and simply stated by the DeWit court, we find it necessary to note that it remains to be seen, and only experience will show, whether a jury can formulate a clear and understandable conceptualization of the distinction between legal insanity and mental illness when reaching a verdict of GBMI.

Although we uphold the constitutionality of the statute, we find that the inaccuracy of its presentation to the jurors and the remarks of counsel during closing argument, which remained unclarified by the court in its exchange with the jury foreperson, are the aspects in this case which lead to our Conclusion to remand this case for a new trial. Fierer contends that the remarks of both counsel during closing arguments lead to the Conclusion that some type of "deal" was reached and that the GBMI verdict was unwarranted by the evidence and, therefore, inapplicable in this case. We would agree if this was a decision to be made by the attorneys. However, the statute specifically states that "[w]hen the affirmative defense of insanity has been presented during the trial, the court, where warranted by the evidence, shall also provide the jury with a special verdict form of guilty but mentally ill." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 115-4(j).) The statute is clear that this is a function of the trial court and not a decision to be made by the attorneys. Unfortunately, the trial court did not clarify this matter with the jury, which was confused by the comments of counsel that such a verdict was inapplicable to the present case. If the trial court had told the jury that counsels' closing arguments were simply their last opportunity to address them and not a statement of the applicable law of the case, there was a possibility that this confusion would have been avoided. Although it is within the discretion of the trial court to submit this special verdict to the jury when it determines that it is warranted by the evidence, we would place the following caveat on reaching such a determination. When neither party propounds the submission of the GBMI verdict form, and in fact each opposes the giving of such an instruction, the trial court must exercise great care in tendering this special verdict form to the jury. As in this case, when neither party is of the opinion that the GBMI verdict is warranted by the evidence, a substantial basis must exist for its submission to the jury.

Even if this confusion had been avoided, the verdict form, as presented to the jury, inaccurately stated the law in such a way that an invalid determination was inevitable. Although the State claims that Fierer has waived this issue on appeal by not objecting to the instruction or raising it in his post-trial motion, we find that this falls within the boundaries of the plain-error doctrine. Although the failure to object to a jury instruction generally constitutes a waiver (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331), where the errors are so grave as to affect the defendant's right to a fair and impartial trial, the plain-error doctrine set forth in Supreme Court Rule 451 (c) (87 Ill. 2d R. 451(c)), provides for an exception to the rule that a party may not assert an error if he has permitted an erroneous instruction to reach the jury (People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861). Thus, under the plain-error doctrine, we will consider the alleged error.

The first error with the instructions deals with the burden of proof stated by the trial court. At trial, the court informed the jury that they could return a verdict of guilty but mentally ill if they found: (1) that beyond a reasonable doubt, the defendant had committed the offense, (2) that by a preponderance of the evidence, the defendant was sane at the time of the commission of the offense, and (3) that beyond a reasonable doubt, the defendant was mentally ill at the time of the commission of the offense. Put simply, this misstates the applicable burden of proof. Section 115-4(j) clearly states that "such special verdict [of GBMI] requires a unanimous finding by the jury beyond a reasonable doubt that the defendant committed the acts charged and that the defendant was not legally insane at the time of the commission of those acts but that he was mentally ill at such time. (Ill. Rev. Stat. 1985, ch. 38, par. 115-4(j).) The ...


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