APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
523 N.E.2d 1196, 170 Ill. App. 3d 1, 120 Ill. Dec. 285 1988.IL.719
Appeal from the Circuit Court of Cook County; the Hon. Vincent Bentivenga, Judge, presiding.
JUSTICE STAMOS* delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS
After a jury trial on charges of attempt to commit murder (Ill. Rev. Stat. 1983, ch. 38, par. 8-4), aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4), and armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2), defendant appeals from his conviction and sentence. He raised the defense of insanity; the jury returned a verdict of guilty but mentally ill on each count. Judgment of conviction was entered on the attempted-murder count only, with the other counts merging. Defendant was then sentenced to an extended term of 45 years' imprisonment.
Besides raising constitutional challenges to the guilty-but-mentally-ill verdict, defendant contends that the trial court committed reversible error (1) by denying him a fair trial through erroneous and confusing jury instructions as to whether mental illness might be the predicate for a verdict of not guilty by reason of insanity and (2) by failing to instruct the jury properly as to the three elements of the GBMI verdict.
For the reasons that follow, we reverse and remand. We also consider other issues raised by defendant that may arise on any retrial.
The State's lay witnesses' testimony showed the following: On April 18, 1984 (the offense date), defendant was a kitchen employee of a contract food-service company. The victim, Mary Ann Gappa, was the food-service director.
About six weeks earlier, defendant and employee Patrick Nichols engaged in an argument after Nichols threw a crouton that hit defendant in the face. Gappa warned both men to end their altercation, and they did. At lunch the next day, defendant told employee Albert Johnson that defendant was going to kill Gappa. Defendant made similar statements to Johnson at three other times, most recently a week before the offense date.
On the offense date, defendant received his paycheck from Gappa and told Johnson that he had been cheated of $20 on the check. He then entered Gappa's office and told her that she had cheated him of the $20. She reminded him that his hours had been reduced, gave him his time card, and asked him to compute his hours. Defendant said, "The hell with the time card," tore it up, threw it onto the floor, and called Gappa a "dog bitch." When Gappa asked him whether he would like to repeat himself, he replied that he was going to do more than repeat himself, and he walked out of her office.
Shortly thereafter, defendant removed a folding knife from his pocket but replaced it after being unable to open it. Then defendant, who was shaking, took a serrated bread knife and a butcher knife from a rack, discarded the bread knife as not being sharp enough to cut, and selected a second butcher knife. In each hand, he then held a butcher knife with a 9 1/2-inch blade.
Defendant then proceeded past a co-worker, whom he assured he was not going to hurt, and continued toward Gappa's office while holding the knives in front of him. Overpowering another man, defendant rushed toward Gappa and stabbed her several times, whereupon she tried to protect herself with a chair while she was under her desk. Defendant then began to leave her office, but when he was outside he noticed Gappa trying to arise and close the door. He then reentered her office and resumed stabbing her, this time pulling away from her the chair with which she was trying to protect herself. After leaving one knife buried in her leg, defendant then left Gappa's office and threw down the second knife.
As he left, defendant was heard to say, "I killed that bitch and I am glad," and that he was going to kill a lot of other people because they were messing with him. His walk was normal and calm as he left Gappa's office, although he was shaking his bloody hands. According to Gappa, it was out of character for defendant to attack her. A few minutes after the attack on Gappa, defendant was arrested.
Gappa suffered 13 stab wounds, most of them severe, underwent more than three hours of surgery at Henrotin Hospital, and was an inpatient there for four days.
At trial, defendant called two expert witnesses. One of them, Dr. Melissa Wattenberg, a clinical psychologist at Northwestern Memorial Hospital, had examined defendant soon after the offenses were committed and had diagnosed him as suffering from paranoid-type schizophrenia and being in an acute psychotic state. The other, Dr. Richard Abrams, interviewed defendant in jail for about one hour, which was eight months after the offense date and which was also after Dr. Gilbert Bogen of the Cook County Psychiatric Institute had examined defendant and had found him sane. Bogen was called as a rebuttal witness by the State. In cross-examining the defense witnesses and examining Bogen, the State repeatedly referred to reports of a 1982 Psychiatric Institute examination of defendant. In addition, Abrams testified that, when interviewed, defendant had denied past violence except for saying that three years earlier someone told him he tried to burn a house down.
At the close of defendant's evidence, defense counsel moved to declare unconstitutional the statute (Ill. Rev. Stat. 1983, ch. 38, par. 6-2(e)) requiring defendant to bear the burden of proof on insanity; the motion was denied. In the alternative, defendant moved that, if he had to bear the burden of proof on insanity, he be allowed the final closing argument; that motion was denied. The State's final closing argument was devoted to the question of insanity.
The jury found defendant guilty but mentally ill. Defendant then moved for a new trial, which was denied. The court sentenced defendant to an extended term of 45 years' imprisonment. This appeal followed.
Opinion I. CONSTITUTIONALITY OF GUILTY-BUT-MENTALLY-ILL STATUTES
Defendant makes several constitutional attacks on the statutes *fn1 authorizing a verdict of guilty but mentally ill . However, they have all been considered and rejected in other cases. (E.g., People v. Martin (1988), 166 Ill. App. 3d 428, 519 N.E.2d 1085; People v. Carter (1985), 135 Ill. App. 3d 403, 481 N.E.2d 1012, appeal denied (1985), 111 Ill. 2d 557; People v. Smith (1984), 124 Ill. App. 3d 805, 465 N.E.2d 101, appeal denied (1984), 101 Ill. 2d 575.) Moreover, two Federal cases cited by defendant are distinguishable, since they both involved longer sentences that were imposed either for previously discontinued special-training purposes or merely because a defendant was considered mentally ill, whereas in the case at bar defendant's sentence was not lengthened for the sake either of promised therapy or of ...