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10/06/88 the People of the State of v. Edward Mcdarrah

October 6, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EDWARD MCDARRAH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

529 N.E.2d 808, 175 Ill. App. 3d 284, 124 Ill. Dec. 827 1988.IL.1511

Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. DUNN and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, Edward T. McDarrah, was found guilty by a jury in the circuit court of Du Page County of two counts of home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12-11(a)(2)), and one count each of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a)(4)), aggravated kidnaping (Ill. Rev. Stat. 1985, ch. 38, par. 10-2(a)(3)), kidnaping (Ill. Rev. Stat. 1985, ch. 38, par. 10-1(a)(1)), and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(10)). Defendant asserted an insanity defense at trial. The trial court entered judgment on the verdicts and, following a sentencing hearing in which the State presented evidence that defendant qualified as a habitual offender under the Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, par. 33B-1 et seq.), sentenced defendant to concurrent terms of natural life imprisonment on the home invasion and aggravated criminal sexual assault convictions, 30 years' imprisonment on the aggravated kidnaping conviction, and 10 years' imprisonment on the aggravated battery conviction. The court found that defendant's conviction for kidnaping was a lesser included offense of his conviction for aggravated kidnaping and did not sentence him on the kidnaping conviction. Defendant's post-trial motion was denied, and this appeal ensued.

The following issues are raised on appeal: (1) whether the trial court erred in failing to qualify a defense witness as an expert for purposes of rendering an opinion on defendant's mental state and in subsequently refusing to permit that witness to give a lay opinion on defendant's mental state; (2) whether the Illinois statute requiring defendant to prove the defense of insanity by a preponderance of the evidence and further requiring the jury to be instructed that it must find defendant guilty beyond a reasonable doubt before considering whether defendant met his burden of proving insanity violates defendant's right to due process; (3) whether the trial court erred in refusing to allow defendant to speak last in closing arguments; (4) whether the trial court erred in failing to give on its own motion an instruction of guilty but mentally ill; (5) whether the Habitual Criminal Act under which defendant was sentenced is unconstitutional; (6) whether defendant can properly be convicted of both aggravated criminal sexual assault and aggravated kidnaping where the offenses are aggravated by each other; and (7) whether defendant can properly be convicted of two counts of home invasion where he entered only one dwelling.

We affirm in part, vacate in part, and remand this cause for sentencing on the kidnaping conviction.

Defendant and the principal victim, Marlene Lindemann, lived together for the majority of 1985 in Marlene's home. According to Marlene, defendant was an excessive drinker and there was pressure from both parties' families that the couple end their relationship. As a result of that pressure, defendant moved out of Marlene's home at her request sometime at the end of February 1986. The couple continued their relationship for a brief period until Marlene told defendant that she was seeing other men.

On May 4, 1986, Marlene was at her home with her two children and her mother, Cecilia Lindemann. At approximately 3 a.m., Marlene thought she heard her doorbell, but upon investigation found no one there and returned to bed. Approximately one-half hour later, the doorbell rang again, and Marlene went to the telephone in the kitchen to call the police. At that moment, defendant "crashed" through a sliding glass door in the kitchen and ordered Marlene to hang up the telephone. Cecilia Lindemann entered the kitchen and asked Marlene if she was okay. Defendant advised her that he just came to talk. Defendant ordered Marlene into the living room and Cecilia and Marlene's children into their bedrooms. Once in the living room, defendant and Marlene began to talk. At some point defendant attempted to strike Marlene, but missed and hit the wall instead. Cecilia subsequently entered the living room and told defendant not to hit Marlene. Defendant struck Marlene in the face and also struck Cecilia. A struggle ensued during which defendant struck both women again. Defendant then took Marlene by force to his car, which was parked on a neighboring street.

Upon reaching defendant's car, defendant forced Marlene into the backseat and instructed her to lie on the floor. Defendant's brother appeared and attempted to stop defendant from driving away, but was not successful. After driving for a brief period, defendant stopped the car and tied Marlene's hands behind her back. Defendant resumed driving, and Marlene pleaded with him to take her home. Defendant stopped the car a second time, exited for a few minutes, and continued driving. When defendant stopped the car a third time, he allowed Marlene to exit, untied her hands, and permitted her to relieve herself in a field. He then instructed Marlene to return to the car, stating that the police would arrive shortly and that she should be flattered that he would do something like this for her.

Marlene returned to the backseat of the car, and defendant instructed her to remove her clothes. Defendant entered the backseat, unzipped his trousers, and instructed Marlene to rub his penis and place it in her mouth and vagina. Defendant was unable to ejaculate and instructed her to again place his penis in her mouth. Defendant finally ejaculated after getting on top of Marlene. Defendant then took Marlene to the home of her sister and released her. According to Marlene, defendant did not appear to be intoxicated at the time of these incidents.

Defendant was arrested at approximately 7 a.m. after being observed on foot near a Glendale Heights restaurant. At the time of his arrest, defendant's speech was not slurred, he did not stagger, and he did not appear to be intoxicated or under the influence of drugs. Defendant was charged by indictment with two counts of home invasion, two counts of aggravated criminal sexual assault, and one count each of aggravated kidnaping, kidnaping, and aggravated battery.

At trial, defendant's sister testified that defendant became very depressed and experienced extreme mood swings after Marlene terminated their relationship. She further testified that defendant was obsessed with reconciling with Marlene and became withdrawn when told that she was seeing other men.

Caroline Clements was called to testify on defendant's behalf as an expert witness on defendant's mental state. Clements received a master's degree in clinical psychology from Northwestern University in June 1986, and was a Ph. D. candidate at that institution. Clements had previously served in three internships, each of a one-year duration, at Evanston Hospital, Illinois Masonic Medical Center, and the Illinois State Psychiatric Institute. Clements testified that as a result of her internships and subsequent employment as a clinical psychologist with the Illinois State Psychiatric Institute, she had psychologically tested and diagnosed "thousands" of people. Clements also testified that she instructed courses in psychopathology at Northwestern University, and authored chapters on depression for several books as well as an article for the American Psychological Association. On cross-examination, Clements admitted that she was not a registered clinical psychologist in the State of Illinois and did not possess the requisite six years of active practice for that designation. Clements testified that she had five years of supervised experience. Clements further stated that she conducted a 3 1/2-hour interview with defendant in July 1986, approximately one month after receiving her master's degree, had never examined a criminal defendant before, had never testified in a criminal trial, and had never been qualified as an expert in psychology or psychiatry by any Judge. After defendant tendered Clements as an expert witness, the court ruled that she was not qualified to give an expert opinion on defendant's mental state and could not give such an opinion as a lay witness. However, the court did permit her to testify regarding the results of psychological tests performed on defendant. Clements characterized defendant as someone who regards women as objects, is delusional, and who believes that he can magically communicate with women through his thoughts. Clements stated that at the time of the interview, defendant was suffering from a mixed personality disturbance comprised of antisocial and passive-aggressive behaviors. He was also experiencing delusions of jealousy and thought broadcasting. Clements testified on cross-examination that defendant was not psychotic, that he was oriented, that his general mental processes were intact, and that his memory was not impaired. Clements further stated that defendant was of normal intelligence, was not hallucinating, and did not appear to be suicidal. Clements also testified that defendant lied to her on several occasions and showed signs of "convenient amnesia."

Dr. Werner Tuteur testified as a rebuttal witness for the State. Dr. Tuteur was qualified as an expert in the field of psychiatry. Dr. Tuteur examined defendant and evaluated the incident report, interview reports, medical records, and Clements' report. According to Dr. Tuteur, defendant showed no signs of psychosis and was able to both appreciate the criminality of his conduct and conform his conduct to the law on May 4, 1986. Dr. Tuteur opined that defendant was sane at the time he ...


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