The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable James D. Egan Judge Presiding.
On August 31, 1994, defendant delivered 1,964 grams of cocaine to an undercover police officer in exchange for $4,500. He was arrested and charged with delivery of a controlled substance. At trial, defendant raised the defense of insanity. Following a jury trial, David Gregg, was found guilty of delivery of a controlled substance greater than 900 grams of cocaine. The trial court sentenced defendant to 16 years in the Illinois Department of Corrections. On appeal, defendant contends: (1) the trial court erred in denying defense counsel's request for the court to inform the jury during voir dire of the defendant's burden of proof for an insanity defense; (2) the trial court improperly denied defendant's motion for a mistrial based on the State's purposeful subterfuge; (3) the trial court erred in allowing the second paragraph of Illinois Pattern Jury Instructions, Criminal, No. 24-25.01 (2d ed. 1981) to be submitted; (4) the trial court erred in not sustaining defendant's objection to the opinion of the State's expert as to the issue of defendant's sanity or insanity; and (5) the trial court abused its discretion in denying defendant's motion to reduce his sentence. We reverse and remand for a new trial.
Prior to the jury selection, the State filed a motion in limine to exclude the affirmative
defense of insanity from being presented by the defense. The State argued that the reports from Dr. Larry Heinrich and Dr. Marvin Schwarz did not provide the factual predicate to establish that a good-faith affirmative defense existed. In response, defense counsel stated that the State had the reports in its possession for approximately three years and that the motion in limine had been filed on the eve of jury selection. Defense counsel further pointed out that an additional report by Dr. Schwarz was prepared in 1998, which explained his 1995 report and established the requisite factual predicate for the defense of insanity. In the 1998 report, Dr. Schwarz indicated that he would testify to the fact that defendant suffered from insanity at the time of the commission of the crime. The trial court denied the State's motion in limine.
During voir dire, a potential juror asked defense counsel whether the standard upon which she should base her opinion of the credibility of the expert witnesses was beyond a reasonable doubt. Defense counsel requested a side bar and asked the trial court to inform the potential jurors that the burden of proof for a defendant raising an insanity defense is proof by a preponderance of the evidence. The trial court denied the request and stated that the jurors would be instructed as to the defendant's burden at the close of the trial.
At the close of the voir dire, the trial court informed the jurors that a defendant is presumed innocent of the charge against him and that the State has the burden of proving the guilt of the defendant beyond a reasonable doubt. The trial court made no mention of the fact that under the applicable law the defendant had the burden of proof of insanity by a preponderance of the evidence for purposes of a not guilty by reason of insanity verdict. 720 ILCS 5/3-2(b), 6-2(e) (West 1994).
The trial court also instructed the jury on voir dire that the defendant is not required to prove his innocence nor is he required to present any evidence on his own behalf but, rather, that he may simply rely on his presumption of innocence. Finally, the trial court asked the potential jurors whether they understood the burden of proof involved in a criminal case and whether they would be able to return a verdict of not guilty if they determined that the State had not met its burden of proof beyond a reasonable.
At trial, defendant raised the defense of insanity. During the State's case in chief, Detective Sebesta testified about his investigation and the arrest of Todd Rogers. This arrest ultimately led Detective Sebesta to Chicago and to the defendant. Todd Rogers testified that he had previously purchased cocaine from defendant in May 1994 and that defendant was one of his sources for obtaining cocaine.
In July 1994, before defendant was arrested, Detective David Sebesta, an undercover police officer, purchased cocaine from Todd Rogers on two occasions. Rogers was arrested on July 19, 1994 and agreed to cooperate with the police in investigating other cocaine-related crimes. He informed the police that defendant was one of his sources and that he had met defendant in May 1994, in Chicago, when he purchased cocaine from him.
As part of his agreement to cooperate with the police, Rogers phoned defendant in July 1994 and arranged to purchase two kilos of cocaine from him. Ten to twelve of the conversations that Rogers had with defendant were tape-recorded by the police. Rogers and defendant arranged to meet in Chicago, on August 31, 1994. Detective Sebesta and Rogers drove to Chicago where Detective Sebesta dropped Rogers off at a McDonald's restaurant. Rogers was then picked up by Officer Zeman, an undercover Illinois State Police officer, and was driven to defendant's house.
On August 31, 1994, Carmen Ritacco delivered a white bucket containing two kilos of cocaine to defendant's house. Officer Garcia watched as Ritacco parked his car in front of defendant's house. Defendant came out of the house, walked to the passenger side door, bent down and spoke to Ritacco. Ritacco then handed defendant a white painters bucket containing the cocaine and drove off. Defendant walked back into his house.
When Rogers and Officer Zeman arrived at defendant's house, Officer Zeman waited in the car while Rogers went into defendant's house to inspect the cocaine. Inside the house, Rogers met with defendant and inspected the cocaine. The cocaine had been wrapped in plastic and duct tape and placed in a white painters bucket. Defendant told Rogers that the cocaine was very good and that it was the same type that Rogers had purchased from defendant previously. After reconfirming that the price of the cocaine was $4,500, Rogers went back outside to get the money from Officer Zeman. However, Officer Zeman was reluctant to hand the money over to Rogers.
Instead, defendant walked out to Officer Zeman's car, carrying the white bucket of cocaine. Defendant then got into Officer Zeman's car and Officer Zeman looked in the bucket. He cut open one of the packages and confirmed that it was cocaine. After examining the cocaine, Officer Zeman got out of the car and went to retrieve the money in the truck of the car. While Officer Zeman stood at the truck of the car, Chicago police officers arrived and arrested defendant.
Defendant presented testimony from Dr. Marvin Schwarz, a psychiatrist and attorney. Dr. Schwartz testified that he examined defendant in May 1995 and that he reviewed reports from Dr. Heinrich and other doctors who examined defendant. The purpose of the evaluation was to determine defendant's sanity at the time of the commission of the criminal acts from May 1994 through August 1994.
Dr. Schwartz stated that, following a car accident in 1992, defendant was unable to deal with his injuries and was unable to function. He diagnosed defendant as having major depression with psychotic features. He further stated that defendant's psychotic-like features contributed to his criminal activity because there was a breakdown of defendant's controls and his sense of values. As a result of this breakdown, defendant lacked the capacity to conform his conduct to the requirements of the law. Dr. Schwartz concluded that although defendant appreciated the criminality of his conduct, defendant was, nonetheless, legally insane at the time of his criminal activity. In his opinion, defendant lacked the capacity to conform his conduct to the requirements of the law as a result of a mental disease or defect.
On cross-examination, the State asked Dr. Schwartz questions regarding the supplemental report he prepared in October 1998. In his report dated August 1995, Dr. Schwartz did not state that he found defendant to be psychotic or that defendant was legally insane. However, in the 1998 report, Dr. Schwartz stated that defendant met the psychiatric criteria for legal insanity. Defense counsel objected to the State's use of the 1998 document during cross-examination and moved the trial court for a mistrial. In argument to the trial court, defense counsel explained that it was his belief that the supplemental report was prepared at the request of the State with the understanding that the State would not proceed with its motion in limine if Dr. Schwartz clarified that he was prepared to testify that defendant met the legal definition of insanity. Defense counsel further argued that the State used subterfuge to get the defendant to produce the supplemental document.
The State responded that it had never asked for a clarification of the witness' testimony but, rather, that it had informed defense counsel that the witness' testimony was insufficient as a matter of law to establish the defense of insanity. The State further indicated that defense counsel was told that, if he had some other proffer, he could proceed with that. After hearing argument from both sides, the trial court denied defendant's motion for a mistrial.
In rebuttal, the State called Dr. Roni Seltzberg, a forensic psychiatrist, to testify. Dr. Seltzberg interviewed defendant on January 27, 1998, for the purpose of rendering an opinion regarding defendant's mental state or sanity at the time of the commission of the crime. Dr. Seltzberg testified that, at the time of the offense, defendant was not suffering from a severe mental illness that would have resulted in his lacking substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law. She concluded that defendant was legally sane at the time he committed the offense. Dr. Seltzberg further stated that her opinion was entirely different from Dr. Schwartz's in that she did not find that defendant was legally insane at the time of the commission of the offenses or that he had ever been psychotic or delusional.
Following the testimony of the witnesses, the jury found defendant guilty of delivery of a controlled substance greater than 900 grams of cocaine. After hearing and considering arguments in both aggravation and mitigation, the trial court sentenced defendant to 16 years in the Illinois Department of Corrections.