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People v. Cundiff

June 07, 2001


Appeal from the Circuit Court of Williamson County. No. 98-CF-125 Honorable John Speroni, Judge, presiding.

The opinion of the court was delivered by: Justice Hopkins

A jury found David Cundiff (defendant) guilty but mentally ill of the offense of attempted first-degree murder of a peace officer (720 ILCS 5/8-4(a), 9-1(a), 9-1(b)(1) (West 1998)). The jury also found defendant guilty but mentally ill of attempted first-degree murder and of armed violence; however, the trial court vacated these convictions. The trial court sentenced defendant to 30 years' incarceration on his conviction for attempted first-degree murder of a peace officer. Defendant appeals, contending that the State failed to prove he was guilty beyond a reasonable doubt; that he was denied the effective assistance of counsel, as trial counsel failed to assert other affirmative defenses consistent with his defense of not guilty by reason of insanity; that evidence presented by the State was prejudicial and inflammatory, thereby denying him a fair trial; that the trial court erred in not sentencing him pursuant to the provisions of section 104-26 of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-26 (West 1998)); and that he is entitled to a new sentencing hearing, as the amended statute (720 ILCS 5/8-4(c) (West 1998)) under which he was sentenced was declared unconstitutional. We affirm.


Defendant stabbed Scott Houston, the police chief of Crainville, with a knife on March 16, 1998. On April 1, 1998, after a hearing, defendant was found unfit to stand trial. On September 3, 1998, defendant was restored to fitness and found fit to stand trial. A trial began and four jurors were selected when defendant was again determined to be unfit to stand trial. On March 1, 1999, following another fitness hearing, defendant was found fit to stand trial. Defendant was tried in April 1999 and found guilty of attempted first-degree murder of a peace officer.


The facts of the crime, as adduced at the trial, are as follows. Defendant, who was 58 years old at the time of the incident, suffers from a mental illness-schizophrenia, paranoid type. Defendant has been in and out of mental institutions since 1971. For several years prior to March 16, 1998, defendant had not taken his medication for his mental illness.

Defendant lived in a mobile home on the property of his mother, Geraldine Smith. On March 16, 1998, when construction workers came to Smith's home to work, defendant threatened the construction workers. Both defendant and the construction workers contacted the authorities. As a result, Houston went to Smith's home to investigate.

Houston arrived at Smith's residence about 1:45 that afternoon. Defendant was standing outside waving a lighted flashlight. Houston told defendant why he was there. Defendant told Houston to get off his property or he would kill Houston. When Houston asked defendant how he would do that, defendant pulled out a pocket knife and opened the blade.

Houston went into Smith's home and talked to her. Smith told Houston that defendant needed treatment for his mental illness. Houston called the Williamson County sheriff's department, and the sheriff's office advised Houston to arrest defendant and to bring him in for a mental evaluation.

Houston went outside and slowly approached defendant, trying to calm defendant down. Defendant still had the flashlight and the open knife in his hands. Houston asked defendant to put down the flashlight and knife and to come into the house so that they could talk with his mother, but defendant did not do so. When Houston got within four feet of defendant, defendant lunged at him, swinging the flashlight at Houston's head. Houston grabbed defendant and wrestled him to the ground. While Houston tried to secure defendant, defendant stabbed Houston in the inner thigh of his left leg. Defendant twisted the knife in Houston's leg. Houston took defendant's hand, with the knife still in it, and pulled it from his leg. Defendant pulled his hand loose from Houston and slashed Houston's chest, slicing Houston's shirt and ballistic vest.

Houston got the knife from defendant, placed the knife in his pocket, and handcuffed defendant. Houston used his pack radio to call for assistance and an ambulance for himself. Two Carterville police officers arrived, followed by the ambulance. The ambulance took Houston to Carbondale Memorial Hospital, where Houston underwent surgery to his leg. At the trial, Houston identified his bloody pants, slashed shirt, and ballistic vest.

Orien Drew, an officer for the Carterville police department, testified that he went to Smith's home in response to Houston's call for assistance. Houston told Drew that defendant had stabbed him, and Houston gave Drew the knife. According to Drew, defendant said, "I didn't cut him that fucking bad."

Drew took defendant to the Williamson County jail in his squad car. Several officers removed defendant from the squad car at the jail, as defendant refused to cooperate. Drew, along with Officer Eric Frattini, then went to Carbondale Memorial Hospital. When Drew and Frattini returned to the jail, Drew spoke to defendant. Defendant told Drew that he called the Carterville police, and he asked Drew why the Carterville police had not come to his residence.

Frattini, an investigator for the Williamson County sheriff's department, testified that he met Drew's squad car at the jail. Frattini described defendant as uncooperative and belligerent. Frattini corroborated that he and Drew went to the hospital and retrieved Houston's clothing. Frattini identified Houston's pants, shirt, and ballistic vest as the clothing he retrieved on March 16, 1998.

At this time, the assistant State's Attorney stated as follows: "[I]n light of the fact that Scott Houston has testified that there's some blood on [his clothes], I would like the jury to be able to see them better. Since they didn't see them, I'd like to be able to hold them up for them to see them without them having to touch them so there's no risk of any kind of health threat." Defense counsel stated he had no objection to the prosecutor's proposed actions. Dr. David Clutts testified that he surgically repaired Houston's wound on March 16, 1998. Dr. Clutts explained that Houston's wound was potentially life-threatening, as the wound was about a quarter of an inch from the femoral artery, a major artery in the leg. Dr. Clutts also stated that a person normally has 10 units of blood but that Houston had lost three to four units of blood.

Dr. Robert Marsh, a clinical psychologist, testified that he knows the standard for legal insanity. Dr. Marsh examined defendant in September 1998 to determine if defendant was legally insane at the time of the incident. Dr. Marsh reviewed police reports, interviewed defendant's mother and uncle and Houston, and reviewed defendant's treatment records from the Marion Veteran's Administration Hospital (VA Hospital) and Chester Mental Health Center (Chester). Dr. Marsh tried to interview defendant on three occasions; however, defendant refused to talk to him on the third occasion.

Dr. Marsh stated that defendant's treatment records establish that defendant suffers from schizophrenia to varying degrees, depending on defendant's medication compliance, and that defendant's symptoms include paranoia. Dr. Marsh tried to determine which symptoms of schizophrenia defendant was suffering from on March 16, 1998, by considering others' observations of defendant at the time and by structuring the questions he asked defendant so that they might reflect defendant's symptoms.

Dr. Marsh concluded from his examination that defendant's mental illness was minor to moderate at the time of the incident. Dr. Marsh based his opinion on defendant's statement to Dr. Marsh that he was afraid that the construction workers would overcharge his mother when defendant could perhaps do the work for less money. Defendant did not express a physical fear of the construction workers. Also, defendant indicated that when Houston arrived, defendant knew that Houston was a police officer and that Houston was not going to hurt him. Dr. Marsh found that defendant's memory was clear on events that occurred before Houston arrived at Smith's home and after he was transported in the police car but that his memory was less clear for the time between the two events. Defendant described the incident with Houston as "a little ruckus."

Dr. Marsh told defendant that he had been asked to determine whether defendant's mental illness had anything to do with the incident. According to Dr. Marsh, defendant replied: "You know it did. *** I thought sure that mental illness would have caused what I did." When Dr. Marsh told defendant that he was not sure that defendant's mental illness had caused the incident, defendant told Dr. Marsh that he did not think Dr. Marsh knew what mental illness was. According to Dr. Marsh, defendant also said, "What do I need *** to tell you to show you that [the mental illness] did[?]"

Because defendant indicated to Dr. Marsh that defendant believed that Houston came to help him, Dr. Marsh did not think that defendant incorporated Houston into any delusional thinking. Dr. Marsh explained that the fact that defendant suffers from paranoid schizophrenia alone does not equate to insanity. It was Dr. Marsh's opinion that defendant was sane at the time of the incident with Officer Houston.

On cross-examination, Dr. Marsh admitted that defendant had been taking psychotropic medication for his mental illness for several months before Dr. Marsh interviewed defendant and that the medication would improve defendant's thought disorder; however, Dr. Marsh stated that he took this fact into account in forming his opinion. Defendant told Dr. Marsh that his symptoms on March 16, 1998, were that he was experiencing "some degree of a blue light in one eye" and that ...

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