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05/22/87 the People of the State of v. Michael J. Gerrior

May 22, 1987





508 N.E.2d 1119, 155 Ill. App. 3d 949, 108 Ill. Dec. 542 1987.IL.666

Appeal from the Circuit Court of Du Page County; the Hon. John J. Bowman, Judge, presiding.


JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT and NASH, JJ., concur.


Defendant, Michael Gerrior, was charged by indictment with committing the offenses of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a)), unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10-3(a)), and armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2). The case proceeded to a jury trial on the armed robbery charge only, and defendant was found guilty of the lesser-included offense of robbery. The jury was unable to decide on a verdict on the armed robbery charge. Defendant was subsequently sentenced on the robbery conviction to a 7-year term of imprisonment.

Defendant raises three issues on appeal: (1) whether the trial court erred in refusing his tendered instruction on the defense of involuntary intoxication; (2) whether the trial court erred in giving the State's instruction No. 8, Illinois Pattern Jury Instructions, Criminal, No. 3.06 -- 3.07 (2d ed. 1981), on statements by a defendant; and (3) whether defendant was deprived of the effective assistance of counsel.

At trial, defendant was identified by several witnesses as the person who robbed an employee working at a checkout register at the Hostess Thrift Store in Downers Grove, Illinois, on March 29, 1985. He pointed a gun at the employee, and, when he left, a knife was seen in his back pocket. Immediately after the robbery, at about 11 a.m., defendant went into a tailor shop down the street from the Hostess Thrift Store and purchased a jacket. Defendant then left in a taxicab. He was seen getting into the cab by police, who arrived in response to the robbery nearby, and was subsequently arrested. A plastic gun and a butter knife were found by police about 150 feet west of the thrift store, and a pile of wadded money totaling $97 was recovered from the front pants pocket of the defendant. Several witnesses testified that they smelled the odor of alcohol on defendant's breath, and the taxicab driver and one policeman believed defendant appeared to be intoxicated.

Defendant testified that he was an alcoholic at the time of this incident and that he was taking Antabuse, a drug that will cause a violent physical reaction if taken when he has consumed alcohol. He also was taking medication for pain relating to a work-related injury. He was staying at the Downers Grove Motel on March 29, 1985. He believed that he took Antabuse one or two nights before the incident and, on the morning of March 29, took medication for pain. He then purchased two pints of vodka, which he consumed that morning. He left the motel and recalled walking around town, but he did not remember anything else until waking up in the county jail.

Defendant's physician, Dr. Joseph L. Giacchino, testified that he has been treating defendant since 1984 for a work-related injury. Defendant was taking Antabuse at that time for his alcoholism problem, and Giacchino prescribed pain medication for the injuries and continued the Antabuse for defendant's alcohol problem. A patient on Antabuse who consumes alcohol will have a violent reaction causing confusion, nausea, vomiting, and diarrhea. One of the medications he prescribed for defendant, Serax, will also cause a severe reaction when taken with Antabuse and alcohol. He had written prescriptions in 1984 and 1985 for defendant to take Serax, Tranxene, and Fiorinal with codeine. He was of the opinion that a person taking Antabuse and one or more of the pain medications together with the consumption of alcohol will have an extreme reaction which would cause him to do bizarre things he would not normally do and he would not remember. He believed defendant was having such a reaction at the time of the incident. He had told defendant of the adverse reaction which would be caused by the effects of the medications and Antabuse if taken with alcohol.

In rebuttal, the State produced testimony that the Downers Grove Motel was located next to the Hostess Thrift Store and that no liquor bottles or medicines were found in defendant's motel room when searched later in the day on March 29. Further, there was testimony that when questioned following his arrest, defendant denied committing the robbery, being in the thrift store, and owning or possessing a gun.

Defendant's first contention is that the trial court erred when it refused his tendered instruction on the defense of involuntary intoxication. He maintains that there was evidence in the record that he consumed alcohol while using Antabuse and legally prescribed painkillers which caused a psychotic reaction, making him intoxicated unintentionally and involuntarily. He further argues that, under the circumstances present here, he did not become voluntarily intoxicated and that the involuntary intoxication defense should apply to him as one who became accidentally intoxicated after taking legally prescribed medication for alleviation of pain. In essence, defendant states that the defense of involuntary intoxication, which is available if the intoxication is caused by some outside influence of some other person, should be available here to a patient who is forced by the outside influence of pain into taking legally prescribed medicine.

The affirmative defense of involuntary intoxication is provided for by statute in section 6 -- 3 of the Criminal Code of 1961 and, in pertinent part applicable hereto, provides:

"A person who is in an intoxicated or drugged condition is criminally responsible for conduct ...

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