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November 9, 1995


In the Circuit Court of Cook County. Honorable Michael B. Getty & John D. Brady, Judges Presiding.

Released for Publication December 21, 1995. Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice Zwick delivered the opinion of the court: McNAMARA, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Zwick

JUSTICE ZWICK delivered the opinion of the court:

Defendant, Gordon Vernon, appeals from a judgment entered by the circuit court of Cook County following a jury verdict of guilty on charges of attempt first degree murder, aggravated battery with a firearm and aggravated battery. The trial court sentenced defendant to a term of 20 years incarceration. Defendant also appeals a subsequent order dismissing his petition for post-conviction relief. We consolidated both appeals. We address the question of whether sections 3-2(b) and 6-2(e) of the Illinois Criminal Code of 1961, placing the burden of proving insanity by a preponderance of the evidence upon the defendant, violated defendant's constitutional right to equal protection. We also review the question of whether defendant's petition for postconviction relief was frivolous and patently without merit.

The facts of this case can be briefly stated. Defendant was charged with shooting his former girlfriend, Sandra Bennett, outside her residence on December 4, 1990. Bennett had recently broken off their relationship and had secured a court order of protection against the defendant. On the day of the shooting, defendant approached Bennett's car on foot as she sat in the driver's seat of her vehicle. Defendant began telling her that he wanted a "second chance." When Bennett told the defendant that their relationship was over, defendant shot her several times, telling her that she "would never do this to anyone again."

At trial, defendant asserted the defense of insanity and presented the testimony of his sister, Orleans Faibvre. Faibvre testified that defendant was "not normal" following his breakup with Bennett. Faibvre said that she attempted to get defendant to see a psychiatrist, but that he failed to keep any of the appointments she had made for him. Defendant would not eat or bathe himself. He would sit for long periods of time in a dark room, alone. He told Faibvre that he "had nothing to live for."

The jury heard conflicting expert testimony regarding the issue of defendant's sanity. Psychiatrist Carmon Dunigan testified that he believed defendant was insane at the time of the shooting. Dr. Dunigan noted that the defendant was severely depressed with psychotic features, paranoid, anorexic, insomniatic and suicidal. The prosecution's expert witness, Dr. Gerson Kaplan, disagreed with Dunigan's opinion, stating that there was no evidence that the defendant waspsychotic. Dr. Kaplan admitted defendant may have had a depressive disorder at the time of the shooting, but stated that it did not rise to the level of insanity.

Prior to deliberations, the jury was instructed with Illinois Pattern Jury Instruction No. 2.03B, which stated, in pertinent part:

"The defense of insanity has been presented during the trial. The burden of proof is on the defendant to prove by a preponderance of the evidence that the defendant is not guilty by reason of insanity. However, the burden remains on the State to prove beyond a reasonable doubt each of the elements of each of the offenses charged." (Illinois Pattern Jury Instructions, Criminal, No. 2.03B (3d ed. 1992).)

This instruction was based upon the requirements of section 3-2(b) and section 6-2(e) of the Code. 720 ILCS 5/6-2(e), 5/3-2(b) (West 1992)).

Defendant first argues that the provisions of section 3-2(b) and 6-2(e) of the Code are unconstitutional in that they violate equal protection. (U.S. Const., amend XIV; Ill. Const. 1970, art.I, sec. 2.) Specifically, he argues that these provisions impermissibly discriminate against defendants who raise the insanity defense because other provisions of the Code which deal with affirmative defenses do not require the defendant to meet a similar burden of proof.

Section 3-2(b) of the Code states in pertinent part: "If the issue involved in an affirmative defense, other than insanity, is raised [by the defendant] then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense. If the affirmative defense of insanity is raised, the defendant bears ...

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