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09/22/88 the People of the State of v. Joshua Fierer

September 22, 1988





529 N.E.2d 972, 124 Ill. 2d 176, 124 Ill. Dec. 855 1988.IL.1407

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Tazewell County, the Hon. Richard E. Eagleton, Judge, presiding.


JUSTICE RYAN delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.


The defendant, Dr. Joshua Fierer, was charged in a five-count information with the murder of his wife. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1.) Following a jury trial in the circuit court of Tazewell County, the defendant was found guilty but mentally ill (Ill. Rev. Stat. 1985, ch. 38, par. 115-4(j)), and was sentenced to a 30-year term of imprisonment. The appellate court reversed the defendant's conviction on a number of grounds and remanded for a new trial. (151 Ill. App. 3d 649.) We granted the State's petition for leave to appeal (107 Ill. 2d R. 315).

The defendant and his wife, Mary, were married in 1959. They lived in Morton, Illinois, with their four children. From all accounts, the marriage was a happy one until Mary's mother died in February 1981. Thereafter, Mary's behavior began to change dramatically. She sought counseling from the rabbi of the temple she and the defendant attended. This led to a sexual liaison with the rabbi that began in October 1981 and continued until June 1982. The defendant learned of the affair from the rabbi at that time, and Mary confessed it to him in late 1982 or early 1983.

During this time period, Mary was employed by Exclusive Home Products, a company engaged in the sale of household goods. Many of her meetings with the rabbi occurred when she was ostensibly on business trips related to her employment. It eventually came to light that she had never sold any products, but had falsified purchase orders so it would appear that she had. The defendant eventually paid a $2,000 obligation to the company for the fraudulent sales. Also during this period, Mary was secretly renting a house in Peoria. She also converted to her own use checks that were to be deposited in their children's trust accounts, and ran up uncharacteristically large bills for clothing and personal items. A $3,000 judgment was also entered against her for damage done to the Peoria house.

In June 1981, the Fierers began seeing a marriage counselor. These visits continued until March of 1983, when Mary refused to participate further. In June of that year, she was hospitalized for an overdose of drugs and alcohol. A second similar episode occurred within 10 days of her release from the hospital.

The couple ultimately agreed to a divorce, and the defendant filed a petition in January 1984. The proceedings were initially amicable, but Mary later took a more hostile position, initiating an action to bar the defendant from the family home. In May of that year she moved out of the house, taking the youngest child with her. The next youngest joined her later, and the two elder children elected to remain with their father. Mary interfered with visitation with the younger children until she was enjoined from doing so in September 1984. The defendant also came to learn that despite Mary's statements that the children in her custody were continuing to be reared in the Jewish faith, she was actually taking them to a fundamentalist Christian church.

Against this backdrop, we turn to the events of December 6, 1984. The Fierers had agreed to meet that morning at the family home to divide their property. John Brady, the children's guardian ad litem, was present at the home, as well as two workers from a moving company. The moving process proceeded harmoniously until about 10:30 a.m., when Mary left, stating that she was returning to her home to obtain some boxes. She returned 20 to 45 minutes later. Although she had removed her coat earlier, this time Mary declined the defendant's offer to hang it up.

Shortly after Mary returned, Brady went to make a call on the kitchen telephone. He then heard a "commotion" from one of the bedrooms, followed by a woman's voice screaming for help. When he went to the bedroom, he saw the defendant on top of Mary in the doorway of a closet. The defendant's arms were moving rapidly and there was blood on the wall of the closet. Brady, who is 6 feet 7 inches tall, attempted to pull the defendant away, but was unable to do so. He then took a record-carrying case and hit the defendant in the head with some force, but even this blow elicited no reaction. Brady ran from the house seeking help, and the movers went into the bedroom. One attempted to pull the defendant by the belt and shoulders, but was unable to move him. The other mover found a baseball bat and used it to strike the defendant on the collarbone. The blow had little effect.

By the time the first police officers arrived, the defendant was lying on the floor on top of his wife's body. He did not respond to verbal orders and had to be carried to the hallway. When medical personnel arrived, the defendant was placed in an ambulance. The technicians applied various forms of painful stimuli, attempting to elicit a reaction from the defendant, but he did not respond. One of the technicians described the defendant as "disoriented," and testified that his eyes did not react normally to light.

The defendant testified that he and his wife had gone into the bedroom to sort items of property. He went into the kitchen for a garbage bag, and when he returned he knelt down next to his wife, who was kneeling in the closet. The next thing he noticed was a knife coming at him. The last thing he remembered was grabbing the knife by the blade and trying to wrestle it from his wife. The defendant had knife wounds on his hands about which testimony differed. An expert for the defense described the wounds as defensive, while the State's witness testified that they were more likely to have been caused by slippage of the defendant's hand from the handle onto the blade of the knife. Mary suffered 27 stab wounds and died from the resulting loss of blood.

The defendant's defense was based upon a combination of self-defense and insanity. His basic theory was that Mary had instigated the fatal struggle by attacking him with a knife, and that his violent response was the result of a sudden impulse that he was unable to control. Two psychiatrists testified for the defense that the defendant experienced an "isolated explosive disorder," which, as the name suggests, involves sudden, impulsive, violent conduct which is alien to one's normal behavior. For the State, an expert testified that the defendant suffered from a "chronic depressive disorder," which would not be considered a mental disease or defect within the meaning of insanity. After hearing all the evidence, the jury returned a verdict of guilty but mentally ill of the offense of murder. As noted, that conviction was over-turned by the appellate court, and we granted the State's petition for leave to appeal.

The defendant's broadest claim, one which was rejected by the appellate court, is that the guilty but mentally ill verdict, on its face, is an unconstitutional denial of due process, because it interjects irrelevant, misleading elements into the determination of guilt or innocence. (Ill. Rev. Stat. 1985, ch. 38, par. 115-4(j).) We find it unnecessary to resolve that question, however. Because we agree with the appellate court that errors occurred in the presentation of and instruction on the GBMI and insanity verdicts, we need not reach the constitutional issue in order to conclude that the defendant must be granted a new trial.

The first such error involved jury instructions on the burden of proof for the GBMI and insanity verdicts. In order to adequately address this issue, a brief overview of the Illinois GBMI and insanity statutes is in order.

The statute authorizing the GBMI special verdict was enacted in 1981. (Pub. Act 82-553, eff. Sept. 17, 1981; Ill. Rev. Stat. 1981, ch. 38, par. 115-4(j).) With regard to the elements and burden of proof of GBMI, the statute has provided, since its enactment, as follows:

"When 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, as to each offense charged and shall separately instruct the jury that a special verdict of guilty but mentally ill may be returned instead of a general verdict, but that such special verdict 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 ...

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