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03/03/88 the People of the State of v. Michael Wayne Thompson

March 3, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL WAYNE THOMPSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

520 N.E.2d 1146, 166 Ill. App. 3d 909, 117 Ill. Dec. 795 1988.IL.291

Appeal from the Circuit Court of Pike County; the Hon. Cecil J. Burrows, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

This case is now before us for a fourth time. After a jury trial in the circuit court of Pike County, defendant Michael Wayne Thompson was convicted on November 11, 1976, of a murder committed on April 27, 1976, and was subsequently sentenced to an indeterminate term of 50 to 150 years' imprisonment. On appeal, we reversed and remanded for a new fitness hearing and, if defendant was found fit, a new trial. (People v. Thompson (1978), 60 Ill. App. 3d 198, 376 N.E.2d 442.) He was subsequently found fit, tried by jury, again convicted and sentenced on May 9, 1979, to an indeterminate term of 50 to 150 years' imprisonment. We affirmed on direct appeal. People v. Thompson (1980), 80 Ill. App. 3d 1207 (unpublished order under Supreme Court Rule 23).

On March 14, 1983, defendant filed an amended post-conviction petition, which the trial court summarily dismissed. On appeal, we reversed and remanded because of improper summary procedure. (People v. Thompson (1985), 135 Ill. App. 3d 1169 (unpublished order under Supreme Court Rule 23).) After an evidentiary hearing, the circuit court dismissed the petition on March 9, 1987, and the cause is again before us on appeal.

The basic contention of the instant post-conviction petition is that appointed defense counsel at the second trial was incompetent for failure to properly investigate the possibility that defendant might reasonably have been able to defend upon a theory of insanity. The circuit court ruled that incompetency of counsel was not shown, noting that it did not deem the counsel to have been put on notice of a requirement of further inquiry.

On appeal, defendant maintains the record shows that further inquiry should have been made and that such inquiry would likely have revealed the existence of a viable defense of insanity. The State maintains (1) the question of incompetency has been waived by the failure of the defense to raise it on direct appeal, and (2) in any event, the record does not show any reasonable likelihood that further investigation would have revealed a viable insanity defense for defendant. We agree with the State's latter contention and need not consider the waiver issue. We affirm.

At the second trial, defendant admitted to the following chain of events. On the date of the alleged offense, he and Nick Stillman drove to a point in a road in front of the victim's residence. Defendant walked up to the house, met the victim and asked for some gasoline, which the victim refused. As defendant was leaving, the victim shouted to him to stop, and, upon his refusal to do so, the victim fired a shot at him. Defendant fell, and a gun he was carrying fired. Stillman had fired a gun at about the time of the victim's shot. Defendant and Stillman then attempted to refire, but defendant's gun did not discharge. The victim had fallen, and the defendant walked to where the victim lay. Defendant noticed the victim was gasping for breath, so defendant fired at the victim's body to silence him. Defendant and Stillman then ransacked the victim's house. Defendant testified he had been drinking heavily prior to the occurrence.

The following matters concerning defendant's possible insanity at the time of the offense were known to defense counsel at the second jury trial. At the first competency hearing, Dr. Phillip Bornstein testified he had examined defendant for an hour and read from defendant's records. He concluded defendant was a "periodic excessive [drinker having a] possible history of drug abuse." Dr. Bornstein also found defendant to have a personality disorder but said he did not have signs of a severe psychosis. Prior to the second trial, a court-appointed psychiatrist, Richard Newman, testified defendant exhibited no indication of an emotional disorder which would interfere with his ability to participate in his trial or to understand the charges. Dr. Newman did indicate defendant suffered from a personality disorder.

Defendant testified at the hearing on the post-conviction petition that: (1) he enlisted in the Army in 1973; (2) after witnessing a friend killed in a training exercise, he attempted suicide and was subsequently discharged; (3) he reenlisted in 1975 but was soon discharged for medical reasons; (4) he then enlisted in the Navy, but, after being under psychiatric observation and undergoing a test giving rise to a profile called Minnesota Multi-phasic Personality Inventory , he was discharged for psychiatric reasons; and (5) in the two months elapsing between the Navy discharge and the killing of the victim, he had drunk heavily.

The major thrust of defendant's assertion that his counsel at the second trial acted incompetently came from the testimony of Lowell Williams, a psychiatrist. He testified he had been associated with Dennis Pope, a psychologist who had examined the results of defendant's MMPI tests. Upon receiving evidence that Pope's whereabouts could not be determined, the court permitted Williams to read from a letter by Pope concerning defendant, which had been directed to defendant's counsel at his first trial. The letter concluded:

"In summary the profile suggests that Mr. Thompson may reliably be diagnosed as a Catatonic Schizophrenic with paranoid ideation. At times he has gradiose [ sic ] ideas, and a history of poor personal relationships. He goes through periods of excited motor activity especially after heavy drinking where violence and homicide are possible actions. Thought associations are often disorganized and vague. Tension and anxiety are common features. ...


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