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11/03/88 the People of the State of v. Kevin Gettings

November 3, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KEVIN GETTINGS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

530 N.E.2d 647, 175 Ill. App. 3d 920, 125 Ill. Dec. 489 1988.IL.1600

Appeal from the Circuit Court of Vermilion County; the Hon. John P. O'Rourke, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Defendant Kevin Gettings appeals his convictions of one count of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4) and one count of armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2). Defendant contends the trial court erred in accepting his waiver of the insanity defense without inquiring as to whether his waiver was intelligent and voluntary. Defendant further argues that the trial court erred in entering judgment on both counts and on battery when only one physical act occurred. As to both issues, we agree.

Defendant was charged on October 20, 1986, by information with aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4) and armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2). Both offenses arose from an incident which occurred in the early morning on October 17, 1986. Defendant beat another man with a wooden stick allegedly because the man had stolen defendant's three-piece suit. The man suffered a fracture to his nose and in the area of his left eye.

On February 18, 1987, on defendant's petition, the trial court ordered a full psychiatric examination of the defendant to determine whether he was competent to stand trial and whether he was legally insane at the time of the incident. The psychiatrist found that defendant suffered from paranoid schizophrenia, chronic organic brain disorder, chronic alcohol and drug abuse, and antisocial personality disorder. Due to these mental defects, the psychiatrist concluded that the defendant was legally insane at the time of the incident. Defendant was found competent to stand trial.

Defendant's jury trial took place on October 8, 1987. Prior to this time, the record reflects that the defendant actively participated with his attorney in various pretrial proceedings. On three occasions, defendant's counsel, at defendant's request, filed motions for a continuance and dismissal of the action. Defendant personally requested copies of court transcripts, a change of venue, appointment of new counsel, and challenged the court record regarding the defendant's bond reduction hearing.

On the day of the defendant's trial, defendant's counsel advised the court in chambers that he had spoken with the defendant at great length about the defense of insanity or diminished capacity and a possible plea of guilty but mentally ill. With regard to all, defendant had "emphatically" instructed his counsel not to pursue them. The court accepted the waiver and proceeded with the trial without further Discussion of the matter.

At the close of the State's evidence, the defense rested without putting on any evidence. Following deliberations, the jury found defendant guilty of battery, aggravated battery, and armed violence. The court entered judgment on all three verdicts and referred the matter to the probation office for a presentence report.

A probation officer conducted a presentence interview with the defendant on October 13, 1987. Defendant told the probation officer that the victim had poisoned him by putting cyanide in a beer he drank at the time of the incident. He further stated that the incident was a "hostage situation" where the others present at the time of the incident were trying to get some money back which defendant had won from them in gambling. Defendant admitted that he punched the victim three times and bruised his cheek but he was told to do it by a gunman pointing a gun at his head. This gunman told defendant if he did not do it, they would kill his child. Defendant also stated that he was working on a masters in sociology with an interest in a doctorate of psychiatry and was working on a thesis on limbiatic behavior.

Defendant also told the probation officer that he had received congressional medals for valor, honor, and bravery; that he is a general in the Army's special general operations; that he received cars from England; that he had been knighted in England and owned a home in St. Joseph, Illinois, worth $2 billion. After investigation, the probation officer determined that defendant had no children or a record of finishing high school and was discharged from the Army after four months of service due to fraudulent entry.

Defendant's motion for a new trial was denied. On December 11, 1987, defendant was sentenced on the armed violence conviction to six years' ...


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