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06/30/95 PEOPLE STATE ILLINOIS v. DEBORAH GILMORE

June 30, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DEBORAH GILMORE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Matthew J. Moran, Judge Presiding.

The Honorable Justice O'brien delivered the opinion of the court: Cahill, J. concurs, Theis, J. dissents.

The opinion of the court was delivered by: O'brien

JUSTICE O'BRIEN delivered the opinion of the court:

Following a bench trial, defendant Deborah Gilmore was found guilty but mentally ill of residential burglary. She was sentenced to four years in the Department of Corrections with a recommendation that she receive treatment from the Illinois Department of Mental Health and Developmental Disabilities. On appeal, defendant contends that she was not proven guilty beyond a reasonable doubt. We affirm.

About 11:45 a.m. on November 25, 1992, Zachary Jones arrived at his Chicago residence. He entered the basement, saw no one and nothing unusual, noticed a window facing the backyard was broken and then, went outside the house. There, he saw a piece of wood by the window and called the police.

The police arrived, inspected the premises and left. After they left, Jones returned to the basement and boarded the window to keep out the cold air. Upon entering a storage room, he saw "a mess" on the floor near the furnace and a cake his wife had baked for Thanksgiving. He described the "mess" as human excrement.

Jones went upstairs to get something to clean it. When he returned, he saw it had been cleaned. Then, he noticed defendant lying near the furnace with a blanket over her. Jones also found some shoes, a watch, a wallet and some coins on top of the blanket near her. She was not sleeping. Jones grabbed her by the arm, took her upstairs and called the police.

Before the police arrived, Jones asked defendant why she broke in, and she answered, "She was homeless. Didn't have anyplace togo." It was later determined that the wallet belonged to his mother-in-law and was normally kept in her bedroom.

At trial, the defense presented two court-appointed expert witnesses, Dr. Roni Seltzberg and Dr. Albert Stipes. The prosecution stipulated to the qualifications of both psychiatrists as expert witnesses concerning the issue of sanity.

Dr. Seltzberg testified that she examined defendant on two occasions (February 23, 1993 and March 24, 1993). Prior to these examinations, she reviewed defendant's extensive medical records which dated to the mid-seventies and involved multiple psychiatric hospitalizations and evaluations over the years. After each examination, it was her opinion that defendant was suffering from a chronic psychotic disorder known as schizophrenia. Dr. Seltzberg opined that "because of her mental disease she [defendant] was unable to appreciate the criminality and unable to conform her conduct to the requirements of the law based on that mental illness." Dr. Seltzberg stated that to a reasonable degree of medical and psychiatric certainty defendant was mentally ill and legally insane at the time of the alleged offense.

Dr. Seltzberg stated that at the time of her interviews defendant understood she was in custody and was facing punishment as a result of her actions on this occasion. Dr. Seltzberg stated that although it was possible defendant could have been malingering, she did not believe defendant was doing so or defendant would have exaggerated psychotic symptomatology. In this case, defendant denied hallucinations and delusions. Dr. Seltzberg stated that fleeing the scene of the crime or concealing herself under the blanket would be factors to consider as to whether defendant was insane or malingering. Dr. Seltzberg, however, did not believe defendant was malingering because at the time she had the opportunity to leave through the window she had allegedly entered, she did not leave.

Dr. Stipes examined defendant on April 22, 1993. Prior to this examination, he reviewed her prior psychiatric records, the police reports and Dr. Seltzberg's report on defendant. Following the examination, Dr. Stipes opined that defendant had schizophrenia, undifferentiated type, and that because of this disease she lacked the substantial capacity to appreciate the criminality of her conduct. He further opined that at the time of the offense she was legally insane.

Dr. Stipes determined defendant was not malingering, although she was found hiding under a blanket in the basement near a furnace. Dr. Stipes told the court that it did not affect his opinion in this case that the escape route where she was apprehended had been boarded to prevent her exit or that the stolen items were from different locations in the home. Dr. Stipes stated that the fact that stolen items were found would indicate an attempt to commit the offense of theft if in fact they were stolen. Dr. Stipes stated that he did not know if that was her intention since in his opinion she was psychotic at the time and she could have any type of reason for gathering the items.

The court concluded, based upon the uncontradicted testimony, that defendant was suffering from a mental disease or defect. It determined the issue to be whether defendant lacked the substantial capacity to appreciate the criminality of her conduct and to conform her conduct with the law as required by Illinois statutes. The court found that "the testimony of the two doctors must ...


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