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People v. Hari

January 5, 2005

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DAVID A. HARI, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Ford County No. 02CF14. Honorable Donald D. Bernardi, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

In February 2002, the State charged defendant, David A. Hari, with single counts of first degree murder and attempt (first degree murder). In November 2002, a jury found defendant guilty. In January 2003, the trial court sentenced defendant to 48 years' imprisonment on the murder count and imposed a consecutive 25-year prison term on the attempt count.

[9]     On appeal, defendant argues (1) the trial court erred in refusing to instruct the jury on the defense of involuntary intoxication, (2) the State failed to correct false testimony of defendant's former cell mate and defendant was unable to cross-examine the cell mate about his motive to lie, and (3) the State's rebuttal evidence deprived defendant of a fair trial. We affirm.

I. BACKGROUND

In February 2002, the State charged defendant by information (later amended in September 2002) with the offense of first degree murder (720 ILCS 5/9-1(a)(1) (West 2002)), alleging he, without lawful justification and with the intent to kill or do great bodily harm to Jeff Thomas, shot Thomas causing his death. The State also charged defendant with attempt (first degree murder) (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2002)), alleging he, with the intent to commit first degree murder, performed a substantial step toward the commission of that offense in that without lawful justification and with the intent to kill Lisa Hari, shot her with a .22-caliber weapon. Defendant pleaded not guilty.

In November 2002, defendant's jury trial commenced. Doug Livingston testified he lived across the street from Lisa. On February 10, 2002, he "heard a couple of gunshots go off" and observed a person lying in the middle of the road. He identified the man as Jeff Thomas, who was dressed in his "dress blues." Livingston then went to Lisa's house, and upon entering the foyer, he saw blood on the floor, the steps, and "on the side wall as you go up the steps." He then encountered Lisa and saw that she had been wounded.

Travis Brown, a police officer with the City of Paxton, testified he received a dispatch concerning a domestic disturbance between defendant and Lisa on January 12, 2002. On February 10, 2002, Officer Brown stated he received a dispatch of a shooting around 6 p.m. Upon arrival at the scene, he noticed a man in a Navy uniform lying on the ground in "a pool of blood." He then entered the residence and came upon Lisa, who "was not coherent enough to speak."

Randy Kinzinger, the police chief of the Village of Roberts, testified he waited across the street from the residence of defendant's mother, Carol Hari, at around 7 p.m. on the date of the shootings. At approximately 9 p.m., defendant arrived in his white truck, and Kinzinger arrested him. In Kinzinger's squad car on the way to the sheriff's office, defendant asked what this was all about. During this time, defendant did not stumble, stagger, or have difficulty walking. Kinzinger stated defendant's speech was normal and he did not slur, mumble, or have difficulty in conversing with him.

Lisa Hari testified she filed for divorce in January 2002 from her 13-year marriage to defendant. They had two children. During the latter part of 2001, Lisa became involved with Jeff Thomas. Jeff told his wife he was having an affair, and Lisa told defendant she wanted a divorce. On January 12, 2002, Lisa and defendant had an argument, and he "restrained [her] and would not let [her] leave," so she called the police. Defendant moved out on January 13, 2002, and he took his belongings, including his rifle. A couple of weeks later, Lisa discov-ered a package of photographs was missing. The pictures included some of her in her nightgown and of her and Jeff. She later learned defendant had shown the pictures to Jeff's wife. Jeff moved in, and they changed the locks on the doors because she was "scared" of defendant. Besides Lisa and Jeff, the only others who had keys included her parents; her son, Zack; and her neighbor, Doreen Hendricks.

On February 10, 2002, Lisa had a telephone conversation with defendant concerning the boys' church activity that evening. She returned home between 4:30 and 5 p.m. She received a call from Jeff, and he stated he would arrive at the house around 6 p.m. She then returned a phone call to her brother but heard a noise in the basement that sounded "like when [defendant] would cock the gun." While still on the phone, Lisa went downstairs to check on the noise. She walked around the basement and saw defendant "coming out with a gun." She told her brother, "oh, my God, he is here." Defendant then "started firing," and she "ran to try to get away." She testified she next remembered waking up in the hospital with gunshot wounds to her head, arm, and upper hip.

Zack Hari, defendant's 12-year-old son, testified defendant drove him and his brother to church around 5 p.m. on February 10. He stated his dad had no trouble driving his truck or difficulty in talking with him. At the church, defendant gave him "a real tight hug, tighter than usual[,] and he left."

Dr. Violette Hnilica, a forensic pathologist, testified she performed an autopsy on Jeff Thomas. She described four gunshot wounds in the mid-right trunk, the left buttock, the left forearm, and near the neck with the bullet severing his carotid artery. She determined the cause of death to be from multiple gunshot wounds.

Tracy Parker testified he was incarcerated at the time of trial in the Ford County correctional center. He had convictions for aggravated battery (1992), burglary (1994 and 2000), and arson (1994). While serving a sentence on a federal charge of possession of firearms by a felon, Parker was charged with the offense of conspiracy to escape. He pleaded guilty in October 2002 and anticipated being sentenced in January 2003. Parker and defendant were cell mates in the Ford County jail for seven weeks. After a few weeks, defendant started talking about his case. He told Parker about the pictures of his wife taken by Jeff and was "pretty mad about it." Defendant then got his .22-caliber rifle out of a gun cabinet and hid it in a basement utility room. On the weekend of the shooting, defendant told Parker, he went over to the house and waited for Lisa and Jeff to come home. Defendant told him he borrowed a key from the neighbor and made a copy of it to get in. Defendant stated he shot Jeff and then shot Lisa.

On cross-examination, Parker stated he pleaded guilty to the conspiracy-to-escape charge and less than two days later approached the correctional authorities regarding information about defendant's case. Parker stated he could not receive a downward departure from his federal sentence because defendant's trial was a state case. Parker testified it could not "help [him] in either way." He had no expectation of receiving anything for his appearance at the trial.

Doreen Hendricks testified she lived next door to the Haris' house. In January 2002, Lisa had the locks changed on her house and gave a spare key to Hendricks, which she kept on the television in the living room. Later, Zack came to her house and asked to use the spare key to retrieve some homework from his house. He then returned the key. After that incident and before the shooting, defendant went to Hendricks's house to visit. She went to the kitchen to make coffee, and they talked at the table. Defendant left and returned "about an hour" later. He apologized to her and opened his hand, revealing the spare key to Lisa's house.

The defense called Gerald Gerrard as a witness. He became acquainted with defendant as the foreman of the lumber yard where defendant worked. After defendant's separation, Gerrard stated he "didn't seem like himself." John Zander, the manager of the lumber yard, testified defendant "was kind of down" and tired after his separation.

Carol Hari, defendant's mother, testified defendant came to live with her in early January 2002. Over time, defendant "became silent," did not sleep well, and lost 17 pounds. On February 10, 2002, defendant complained of a stomachache and took some over-the-counter medication. She also observed defendant taking the prescribed drug Zoloft. After he started taking the Zoloft, he was "restless," "tired," and "more depressed." She testified her son's depression "was worsening."

Dr. Robert Mitrione, a psychiatrist, testified he conducted an examination of defendant and reviewed available medical records. He stated Dr. David Hagan determined defendant suffered from depression in February 2002 and prescribed the antidepressant Zoloft. Dr. Mitrione stated Zoloft belongs to a class of drugs known as selective serotonin reuptake inhibitors. Serotonin cells have been associated with increased violence, hostility, depression, and worry. Zoloft is a chemical used to increase serotonin with the purpose of lessening the potential for violence. Dr. Mitrione testified adverse reactions occur most frequently when the medication is first taken or when the dosage has been changed. Defendant had been on Zoloft for six days on February 10, 2002. Dr. Mitrione stated medical literature has reported acts of violence and suicide at the same stage of Zoloft intake.

Citing the Diagnostic and Statistical Manual IV, Dr. Mitrione stated the symptoms and observations made by Dr. Hagan were consistent with the diagnosis of major depression. In looking at the Physician's Desk Reference and a Zoloft package insert, Dr. Mitrione determined defendant suffered from side effects on February 10, 2002, including agitation, abdominal discomfort, fatigue, somnolence, confusion, malaise, and depression among other things. He also stated defendant was taking Tylenol PM to help him sleep. Dr. Mitrione testified defendant displayed symptoms of akathisia, a movement disorder that is "like an itch that can't be scratched." He opined defendant experienced jaw clinching and tremulousness after consuming the Zoloft and the Tylenol PM.

Based on his entire investigation, Dr. Mitrione diagnosed defendant with major depression, alcohol dependence, history of cannabis dependence and adverse reaction, taking on an involuntary basis a combination of Benedryl and Zoloft, and a probable paranoid-personality disorder. He stated involuntary Zoloft intoxication means a "toxic reaction" and a person suffering from it would not stagger, have slurred speech or demonstrate an inability to walk a straight line. Based on defendant's major depression, Dr. Mitrione opined defendant lacked substantial capacity to conform his behavior to appreciate the crimi-nality of his act as a result of the involuntary Zoloft intoxication and his drug condition. On cross-examination, Dr. Mitrione stated he was not certain whether it was the Zoloft or the Benedryl or some combi-nation thereof that caused the involuntary intoxication.

Defendant exercised his constitutional right not to testify. See U.S. Const., amend. V. In its rebuttal, the State called Dr. Hagan, defendant's family physician. On February 4, 2002, defendant indicated his concern about possible depression, lack of sleep, increased alcohol use, and poor concentration at work. Dr. Hagan found defendant was under "significant stress" and prescribed Zoloft. He stated the "PM" part of Tylenol PM is the diphenhydramine "but its trade name is Benedryl." In his experience, Dr. Hagan had not come across Zoloft being connected with involuntary intoxication.

Dr. Robert Chapman, a psychiatrist, testified he examined defendant on March 27, 2002, per court order and counsel's letter asking for an evaluation regarding the issue of sanity. In his mental-status examination, Dr. Chapman diagnosed defendant with personality disorder, depressed mood, and social- anxiety disorder. Dr. Chapman opined that on February 10, 2002, defendant was not impaired by any mental disease, defect, or other condition to cause him to lack substantial capacity to appreciate the criminality of his conduct. He stated he had not "formed an opinion regarding his capacity to conform his conduct" to the law because he was asked to do the examination "to fit the Illinois statute for insanity." Although not included in his report, Dr. Chapman stated "there was no mental disease or defect that caused [defendant] to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct *** to the requirements of the law." Dr. Chapman testified defendant's actions on the day of the shootings, witness statements, and his interview with defendant revealed evidence that was "not consistent with any toxic reaction to any medicines or any other substance."

During the jury-instruction conference, defense counsel sought to submit an instruction regarding involuntary intoxication. The trial court denied the requested instruction. Following closing arguments, the jury found defendant guilty of first degree murder and attempt (first degree murder).

In December 2002, defendant filed a motion for judgment of acquittal or for a new trial, which the trial court denied in January 2003. The court sentenced defendant to 48 years in prison on the murder count and a consecutive term of 25 years on the attempt (first degree murder) count. In February 2003, defendant filed a motion to reconsider, which the court denied. This appeal followed.

II. ANALYSIS

A. Jury Instructions

Defendant argues the trial court erred in refusing to instruct the jury on his defense of involuntary intoxication. We agree, but we find the error harmless.

"A defendant is entitled to an instruction on his theory of the case if some foundation exists for the instruction in the evidence." People v. Probst, 344 Ill. App. 3d 378, 385, 800 N.E.2d 834, 842 (2003). If some basis in the evidence for such an instruction exists, a trial court abuses its discretion in refusing to give ...


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