Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed." (People v. Precup (1978), 73 Ill. 2d 7, 16-17, 382 N.E.2d 227, 231.)
APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
530 N.E.2d 698, 175 Ill. App. 3d 970, 125 Ill. Dec. 540 1988.IL.1622
Appeal from the Circuit Court of Lake County; the Hon. Lawrence D. Inglis, Judge, presiding.
PRESIDING JUSTICE LINDBERG delivered the opinion of the court. WOODWARD, J., concurs. JUSTICE REINHARD, Dissenting in part.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG
Defendant contends that (1) he was not proved guilty beyond a reasonable doubt, (2) he was improperly convicted of multiple offenses based upon a single physical act, (3) he was denied a fair trial by improper remarks during the State's closing argument, and (4) his sentence was based upon improper factors and was excessive. We affirm in part, vacate in part, and remand for resentencing.
The State's evidence tended to establish that at 4:30 a.m. on March 11, 1986, Kathleen Garland was at work as a radio dispatcher for the Round Lake police department. Officer Philipp Scarlette of the Round Lake Heights police department arrived to work on a report.
Defendant, who had snow on his hair and jacket, entered the police station and complained to Garland that he had been beaten. Because all of her department's officers were out on calls, Garland asked Scarlette to check on defendant. Scarlette led defendant from the front lobby, through a security door, and into a hallway.
Scarlette asked defendant to take his right hand out of his pocket. Defendant did so, producing a .22 caliber semiautomatic pistol. He pointed the pistol at Scarlette's face. According to Scarlette, defendant said he was going to kill Scarlette, that he wanted Scarlette to kneel, and that he wanted Scarlette's weapon. According to Garland, defendant said, "I'm going to put one between your eyes." Scarlette grabbed the gun and pushed it up. The gun discharged and the bullet went through Scarlette's finger.
The two men separated. Defendant ran through the lobby, out the front door, and headed south. Scarlette fired two shots through the window next to the front door, followed defendant through that door, and fired two more shots at defendant. After the last shot, defendant fell down.
Scarlette approached cautiously and heard defendant moaning. He did not at first understand defendant, but later understood defendant to say he wanted to die. Other officers arrived, some of whom testified that they saw and heard defendant sobbing and asking an officer to kill him. Defendant also asked why he was still there. One of the officers, who rolled defendant over to check him for injuries, detected a moderately strong odor of alcohol on defendant's breath.
Later, after he had been placed in a cell, defendant said, "God said you guys were supposed to take care of me. Why am I still here?" About an hour later, defendant appeared to be considerably calmer than when he was arrested. Defendant then asked where his car was and whether he had been arrested for driving under the influence.
Forty-one rounds of .22 caliber ammunition were found in defendant's pants pocket. A forensics expert tested the pistol defendant had used. It was a double-action pistol, which when cocked had a trigger pull of 5 to 5 1/2 pounds and when uncocked had a trigger pull of 16 1/2 to 17 pounds. When the expert received the weapon, there was a discharged cartridge under the firing pin. It had what appeared to be a double strike mark on it. However, on test shells the expert had fired only once, similar double strike marks appeared. The expert had no opinion as to whether the trigger had been pulled twice while the discharged cartridge was under the firing pin.
Defendant raised a voluntary intoxication defense. (Ill. Rev. Stat. 1985, ch. 38, par. 6-3(a).) Defendant's evidence tended to establish that after his 1983 divorce and the loss of custody of his daughter, Melissa, he began drinking alcohol heavily. Defendant had experienced several alcohol-related blackouts since that time.
Defendant bought the handgun, his first, in order to commit suicide. He had once gone so far as to cock the pistol and have it next to him, but when he thought about Melissa he broke down crying and could not go through with it. In the two weeks prior to the incident at bar, defendant made statements his mother interpreted as indicating he was going to kill himself and said to a friend that he wanted to shoot himself with the pistol.
The day before the shooting, defendant played pool and drank beer and shots of whiskey in the afternoon. He went to the Golden Country, where he sang and played country music. There, he started drinking beer but switched to Black Russians. While defendant could not recall how many drinks he had, the total bill for it came to about $30 and drinks cost about $1.75 or $2 apiece. Defendant left at about the 2 a.m. closing time, and he recalled his girlfriend, Martha Jones, driving them home. He did not recall them stopping at his parents' home, as Jones testified they did. Defendant did not remember the rest of that early morning, including Scarlette and the shooting, due to a blackout. The next thing he recalled was waking up on the floor of the jail. He testified that he had not intended to harm anyone that night.
Dr. Sharon Strauss testified as an expert in clinical psychology. She gave him a battery of tests and interviewed him. In her opinion, based on the tests, defendant was very truthful in his answers.
Defendant is borderline mentally retarded. He was also suffering from depression with psychotic features and was an alcoholic. Defendant had left school in the eighth grade, by which time he had already developed his depression. He started drinking at around 15 years of age, very early becoming an alcoholic. He has been an alcoholic since that time, with a period of remission during his marriage. When his wife left him, he returned to alcohol. He drank pretty steadily up to the time of the shooting incident. Since that time, he had been trying very hard to stay off of alcohol, at which he had been doing a very good job.
Defendant was suicidal. He had been prevented from killing himself by his desire to spare Melissa the stigma of having a father who had committed suicide. In Strauss' opinion, defendant's actions on March 11, 1986, had been taken to provoke the police into killing him, which to him would have been preferable for his daughter to his killing himself.
In response to both direct and cross-examination, Strauss gave several opinions with respect to defendant's mental state at the time of the shooting. On direct examination by the defense, she testified:
"Q. Doctor, based upon all the evaluations, and the foregoing testing that you had with George Hurt, do you have a professional opinion whether or not George could have intended to harm anyone on the night in question?
A. I don't believe he could.
Q. What is that based upon, Doctor?
A. George's personality profile shows him to be a very passive individual. He's just the opposite of the criminal type of personality that we frequently see in these kinds of cases.
One of the reasons that he's depressed is because he holds his anger inward, turns it inward towards himself, and hates himself rather than other people. He cannot mobilize his anger at all, that's why he's suicidal.
Q. Doctor, do you have an opinion, based upon all of the foregoing, whether or not George Hurt could appreciate the criminality of his actions on the night in question?
Q. What is that opinion, Doctor?
A. I believe he could not appreciate the criminality of his acts on the ...