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06/04/96 PEOPLE STATE ILLINOIS v. GREGORY MCMILLEN

June 4, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GREGORY MCMILLEN, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, CRIMINAL DIVISION. THE HONORABLE THEMIS N. KARNEZIS, JUDGE PRESIDING.

The Honorable Justice Scariano delivered the opinion of the court: DiVito and Burke, JJ., concur.

The opinion of the court was delivered by: Scariano

The Honorable Justice SCARIANO delivered the opinion of the court:

On June 26, 1992, while incarcerated in Cook County jail awaiting sentencing on a burglary charge, Gregory McMillen ("defendant") confessed to the murder of three women: Lollicy Vivirit, who is referred to as the victim in this opinion, Vivian Bramlet, and Tania Davis.

Detective Michael Kill of the Chicago Police Department testified at trial that on June 24, 1992, he learned that defendant's cellmate telephoned the police to inform them that at defendant's request, he called to let them know that his cellmate wanted to discuss certain murders he had committed. An interview with defendant was arranged, and after receiving his Miranda warnings, he signed various forms wherein he waived his right to an attorney, and in which he stated that he was awaiting sentencing on a charge of burglary, that he agreed to cooperate truthfully with the State's Attorney's office, and he acknowledged that in return, the State agreed to bring his cooperation to the attention of the court where his burglary case was pending.

Regarding the murder at issue, Kill stated that defendant confessed that in March, 1984, at 7200 South Dorchester in Chicago, he met a young girl while she was walking to school, and she was wearing a tan jacket. In his confession, defendant stated that the victim was a sophomore at South Shore High School who lived at 6800 South Dorchester, and who wanted to go to college to be a nurse; defendant thought she was sixteen or seventeen years-old. He claimed that they became romantically involved after they had gone to a restaurant for breakfast, and since he did not have money for a motel, he took her to an abandoned building on the northwest corner of 72nd and Bennett, where they went into the basement and engaged in sexual intercourse, during which he became violent and grabbed a small chain from the floor and strangled her until he believed she was dead.

He then dragged her body to the corner of the basement and partially covered it with a couch. As he was turning to leave, he heard her moan, so he picked up a piece of masonry with which he struck her on the skull. He told Kill that he took off his shirt because it was covered with blood, and then left the building, taking the victim's jacket with him. On one occasion, he returned to the scene and noticed that her remains were still there, and although he went back to the building several times thereafter, he did not go inside.

After he confessed, defendant identified the victim from her photo. Kill subsequently learned that she lived at 68th and Dorchester, was a sophomore at South Shore High School, disappeared on March 14, 1984, and that she fit the physical description of the body found at 1858 East 72nd Street. Defendant's signed confession was published to the jury.

Notwithstanding defendant's claim that he was insane at the time he killed the victim, the jury found him guilty of murder and the trial court sentenced him to life imprisonment. This appeal followed.

After defendant raised a question as to whether he was fit for trial, two hearings to determine that issue were held. Under the law, a defendant is presumed to be fit for trial, but is unfit, "if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense." 725 ILCS 5/104-10 (West 1993). "An individual is fit to stand trial even though he is mentally disturbed or defective and requires psychological treatment." People v. Moore, 159 Ill. App. 3d 850, 855, 513 N.E.2d 24, 111 Ill. Dec. 778 (1987); appeal denied, 117 Ill. 2d 550, 517 N.E.2d 1092 (1987). Generally, "when a bona fide doubt of the defendant's fitness [for trial] has been raised, the burden of proving that the defendant is fit by a preponderance of the evidence and the burden of going forward with the evidence are on the State." 725 ILCS 5/104-11(c) (West 1993). It is well established that "the credibility and weight to be given psychiatric testimony are for the trier of fact", and the ultimate issue as to fitness is for the trial court, and not the experts. People v. Bilyew, 73 Ill. 2d 294, 302, 383 N.E.2d 212, 22 Ill. Dec. 736 (1978). Further, the trial court's finding will not be reversed on appeal unless the judge clearly abused his discretion. People v. Brown, 252 Ill. App. 3d 377, 382, 625 N.E.2d 100, 192 Ill. Dec. 140 (1993).

In the case at bar, Dr. Henry Conroe, testifying on behalf of defendant, opined that he was not fit for trial because he suffered from factitious disorder with psychological symptoms, and although he understood the role of his attorney, the State's attorney, and the judge, he could not cooperate with his attorney because he was unable to distinguish fact from fantasy. In contrast, Dr. Albert Stipes testified for the State that regardless of whether defendant was malingering or suffered factitious disorder, he was fit for trial and was "aware of what's going on and can control his behavior". Dr. John Murray, also testifying for the State, opined that defendant was fit for trial, and that he was malingering. Because there existed ample credible evidence that defendant was fit for trial, and because it is for the trial court to determine the credibility of conflicting psychiatric testimony, we conclude it was not an abuse of discretion to hold that defendant was fit for trial.

Before trial, defendant notified the court that he intended to assert that he was not guilty, invoking the defense of insanity. "A person is not criminally responsible for [his] conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." 40 ILCS 5/6-2(a) (West 1993). The burden is on the defendant to prove by a preponderance of the evidence that he is legally insane. People v. Johnson, 146 Ill. 2d 109, 128, 585 N.E.2d 78, 165 Ill. Dec. 682 (1991); cert. denied, 506 U.S. 834, 121 L. Ed. 2d 65, 113 S. Ct. 106 (1992).

Defendant alleges that his right to a fair trial was violated because, while presenting its case against him, the State elicited highly prejudicial evidence of other crimes he allegedly committed. The State contends that this issue is waived because defendant failed to raise it in his post-trial motion with specificity, citing People v. Towns, 157 Ill. 2d 90, 100, 623 N.E.2d 269, 191 Ill. Dec. 24 (1993)(In order to preserve an issue for appeal, it must be both objected to at the time of the alleged error and set out with specificity in a post-trial motion) cert. denied, U.S. , 128 L. Ed. 2d 678, 114 S. Ct. 2122 (1994); and People v. Ayala, 208 Ill. App. 3d 586, 594-95, 567 N.E.2d 450, 153 Ill. Dec. 492 (1990). However, to ameliorate the severity of the waiver rule, Supreme Court Rule 615(a)(134 Ill. 2d R. 615) allows the reviewing court to consider "an error which deprived the defendant of a fair and impartial trial or any substantial error which occurs in cases where the evidence is closely balanced". People v. Gonzalez, 238 Ill. App. 3d 303, 314, 606 N.E.2d 304, 179 Ill. Dec. 472 (1992); citing People v. Schmidt, 168 Ill. App. 3d 873, 522 N.E.2d 1317, 119 Ill. Dec. 458 (1988), appeal denied, 122 Ill. 2d 589, 530 N.E.2d 259 (1988). We believe that this is a case in which the rule should be invoked.

Defendant specifically argues that evidence which the State elicited regarding a burglary, his confession to the murder of Tania Davis, and his confession to the murder of Vivian Bramlet should not have been ...


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