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02/10/89 the People of the State of v. Daniel Clemons

February 10, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DANIEL CLEMONS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 676, 179 Ill. App. 3d 667, 128 Ill. Dec. 494 1989.IL.176

Appeal from the Circuit Court of Lake County; the Hon. William D. Block, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. UNVERZAGT, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Daniel Clemons, was charged by indictment with three counts of murder and one count of armed robbery. A jury rejected his insanity defense and found him guilty but mentally ill of two counts of murder and one count of armed robbery, but not guilty of murder during the course of armed robbery. Defendant received a concurrent sentence of an extended term of 80 years' imprisonment for murder and an extended term of 60 years' imprisonment for armed robbery.

Defendant raises four issues on appeal: (1) whether placing the burden on defendant to prove his insanity by a preponderance of the evidence unconstitutionally shifts the burden of proof to defendant; (2) whether defendant was proved guilty beyond a reasonable doubt of armed robbery where defendant's original intent was murder and only after he inflicted deadly blows upon his victim did he decide to take a dollar; (3) whether defendant's extended-term sentence of 80 years' imprisonment for murder should be reduced; (4) whether defendant's extended-term sentence of 60 years' imprisonment for armed robbery must be reduced where it was not the most serious offense for which he was convicted. We affirm.

During trial, defendant's tape recorded statement to the police in which he admitted killing his father was played to the jury. That statement revealed the following: On May 8, 1986, defendant waited in his father's house for his father to come home. When his father arrived, defendant hit him over the head twice with a hammer and then stabbed him in the stomach. Defendant then left the house and went to a bar and had a beer. He returned to the house to get some food stamps and found the knife he had left in his father's stomach lying on the floor. Defendant stated that he thought his father could still be alive so he covered his father with a blanket and hit him over the head with a sledge hammer. Then defendant returned to the bar where he phoned his sister to request that she go to their father's house to turn off the stove, which resulted in the discovery of the body.

Defendant also admitted to taking a dollar from his father's wallet at some point during one of the beatings. Defendant's statement does not make clear whether he took the dollar immediately after the first beating or if he took the dollar after returning to the house from the bar. In one part of his statement, defendant said he told his father he was going to get some money out of him after he first started hitting him. He also states, however, that he took the dollar after he returned from the bar.

Testifying for the defense, Dr. Leo Goldman, a psychiatrist, testified defendant was probably schizophrenic and might also suffer from organic brain disease. He stated defendant had a low IQ of 70 that would affect his ability to cope with schizophrenia. Goldman concluded defendant was not able to appreciate the criminality of his conduct when he killed his father. Dr. Marshall Silverstein, a clinical psychologist, testified defendant was unable to conform his behavior to the requirements of the law on May 8, 1986. In rebuttal, the State called Dr. Henry Lahmeyer, a psychiatrist, who testified that none of the defendant's mental problems interfered with his ability to understand the criminality of his actions.

Defendant first contends that section 6-2(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 6-2(e)) unconstitutionally shifts the burden of proof to a defendant to prove by a preponderance of the evidence that he is insane. This court recently rejected this argument in People v. McDarrah (1988), 175 Ill. App. 3d 284, 294, pointing out that several decisions of our courts, as well as the United States Supreme Court in Leland v. Oregon (1952), 343 U.S. 790, 96 L. Ed. 1302, 72 S. Ct. 1002, have recognized the constitutionality of placing the burden of proof on defendant to prove insanity by a preponderance of the evidence.

McDarrah also rejected a contention similar to defendant's in this case that Leland is distinguished because the jury in that case was instructed to consider the defendant's evidence on insanity with all the other evidence in regard to defendant's ability to premeditate, form a purpose, to deliberate, act wilfully, and act maliciously. (McDarrah, 175 Ill. App. 3d at 295.) As in McDarrah, the defendant here contends that the absence of an instruction similar to the one in Leland denied defendant due process since the jury was instructed pursuant to section 6-2(e) that it could not consider whether defendant met his burden of proving insanity until it first determined that the State proved defendant guilty beyond a reasonable doubt (Ill. Rev. Stat. 1985, ch. 38, par 6-2(e)). The court's rejection of this argument, quoted below, is dispositive:

"Although section 6-2(e) precluded the jury from considering whether defendant sustained his burden of proving insanity until it first determined whether the State sustained its burden of proving all of the elements of the offense, nothing in that statute or in the instructions given in this case precluded the jury from using defendant's evidence to find one of the State's elements (i.e., mens rea) missing. (See Ill. Rev. Stat. 1985, ch. 38, par. 6-2(e).) . . . Accordingly, we hold that section 6-2(e), placing the burden of proving insanity on defendant and requiring that the jury be instructed to first determine whether the State met its burden of proving defendant guilty beyond a reasonable doubt before considering whether defendant sustained his burden of proving insanity, is constitutional." (Emphasis in original.) McDarrah, 175 Ill. App. 3d at 295.

Defendant next contends that the evidence does not support his conviction of armed robbery for taking a dollar from the victim because his use of force against the victim was for the purpose of murder, not robbery. A person commits robbery "when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force." (Ill. Rev. Stat. 1985, ch. 38, par. 18-1(a).) Armed robbery ...


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