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People v. Burnett

Court of Appeals of Illinois, First District, Sixth Division

December 30, 2016

HERMAN BURNETT, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 08 CR 5530 Honorable Maura Slattery Boyle, Judge Presiding.

          JUSTICE DELORT delivered the judgment of the court with opinion. Justices Cunningham and Rochford concurred in the judgment.



         ¶ 1 A jury found defendant Herman Burnett guilty of first degree murder and vehicular hijacking. The trial court imposed consecutive sentences of 50 years' imprisonment for first degree murder and six-years' imprisonment for vehicular hijacking. On direct appeal, defendant raises numerous claims. We reverse and remand this case for a new trial. We find the trial court committed error when it refused to instruct the jury as to an insanity defense, and on remand defendant should be allowed to voir dire the jury regarding insanity, and present relevant admissible evidence as to the defense.

         ¶ 2 BACKGROUND

         ¶ 3 On February 26, 2008, defendant entered a minivan parked at a gas station located at 95th and State Streets in Chicago. The original driver, Eric Holmes, had left the minivan with the keys inside and the engine running. Defendant began to drive out of the parking lot. Holmes ran alongside and caught up to the van, announced that the van belonged to him, and jumped onto the outside of the vehicle. Defendant drove onto the Dan Ryan Expressway, while Holmes attempted to enter the van through the passenger-side door. Defendant veered through a number of lanes and crashed the van into a concrete barrier wall. The collision fatally injured Holmes.

         ¶ 4 The State charged defendant by indictment with five counts of first degree murder, three of which were premised upon a separate charge of vehicular hijacking. The State also charged defendant with possession of a stolen motor vehicle (PSMV) and burglary. The State entered a nolle prosequi on one of the murder charges and the charges for PSMV and burglary.

         ¶ 5 During pretrial proceedings, defense counsel requested that defendant be examined for fitness to stand trial on multiple occasions. On January 22, 2010, the trial court ordered Forensic Clinical Services (FCS) of the circuit court of Cook County to examine defendant for fitness to stand trial and fitness to stand trial with medication.

         ¶ 6 In a letter dated April 6, 2010, Dr. Fidel Echevarria, an FCS staff psychiatrist, found defendant mentally fit to stand trial with medication. Dr. Echevarria determined that defendant verbalized understanding of the charges, the nature and purpose of the court proceedings against him, and the roles of various courtroom personnel.

         ¶ 7 At a May 11, 2010 fitness hearing, Dr. Echevarria testified that defendant told him that he previously had been diagnosed with depression, bipolar disorder, and schizophrenia. Dr. Echevarria had a significant amount of records from defendant because he had evaluated him before on a different charge for fitness in another case. At the time of the evaluation in this case, defendant was taking an antidepressant medication, Sertraline, and an antipsychotic medication, Risperdal. Dr. Echevarria stated that in his medical opinion, defendant was mentally fit to stand trial with medication. On cross-examination, Dr. Echevarria testified defendant's medical history showed he experienced auditory or visual hallucinations. The trial court found defendant fit to stand trial with medication on May 17, 2010, stating that whether defendant had taken medication at the time of the incident was "an issue for another day."

         ¶ 8 On October 19, 2010, defense counsel requested another evaluation to determine defendant's fitness to stand trial and sanity at the time of the offense. After a second evaluation, Dr. Echevarria determined defendant was fit to stand trial with medication, but deferred submitting a formal opinion regarding defendant's sanity due to an incomplete data base. On April 8, 2011, Dr. Echevarria submitted a report finding defendant was legally sane at the time of the offense, which stated that "[t]here were neither subjectively reported nor objectively documented symptoms of a mental disease and/or defect at the time of the offense which would have impaired Mr. Burnett's appreciation of the alleged criminality of his conduct." In addition to Dr. Echevarria's findings, Dr. Christofer Cooper, an FCS licensed clinical psychologist, conducted two independent psychological evaluations addressing defendant's sanity. Dr. Cooper also found defendant legally sane at the time of the offense.

         ¶ 9 At a hearing on September 29, 2011, defense counsel expressed concern after having met with defendant twice in one week, stating "[w]e have not had a conversation where my client I believe was lucid and coherent and understood what I was saying to him." She stated that defendant was "in no position to help me prepare a defense in his case" and that he was regressing. The trial court granted defense counsel's request for another fitness evaluation by an independent psychiatrist, Dr. Roni Seltzberg.

         ¶ 10 On February 13, 2013, Dr. Seltzberg submitted a report to defense counsel finding that defendant was not mentally fit to stand trial. Dr. Seltzberg stated that defendant "demonstrated a very significant psychotic thought disorder of both form and content, was frequently unable to responsively communicate, instead answering tangentially, reflecting delusional preoccupations, auditory hallucinations and distorted reality testing." According to Dr. Seltzberg, "[w]ith appropriate psychiatric intervention in a secure forensic facility, there is a reasonable probability of his attaining fitness for trial within the statutory period of one year." Due to defendant's mental status at the time of her evaluation, Dr. Seltzberg deferred her opinion regarding his sanity at the time of the offense.

         ¶ 11 At a March 13, 2013 hearing, the State requested an outside expert to evaluate defendant. The trial court denied the State's request and ordered FCS to conduct a reevalution of defendant. Dr. Seltzberg submitted an updated opinion on April 22, 2013, finding defendant fit to stand trial with medication.

         ¶ 12 On April 25, 2013, the parties stipulated to the parties' expert reports regarding defendant's fitness to stand trial with medication. The trial court stated that it also had an opportunity to observe defendant. The court stated defendant "does answer questions appropriately" and that "based on the medical determination, as well as the observations of the Court and the stipulation by and between the parties, Mr. Burnett is fit to stand trial with medication."

         ¶ 13 Defendant filed an amended answer to discovery giving notice that he was asserting the affirmative defenses of insanity and self-defense on September 11, 2013. He also filed a motion to suppress statements that he made to law enforcement officials after he crashed the van. Defendant argued that due to his psychological condition, he was incapable and unable to appreciate the full meaning of his Miranda rights. In addition, defendant stated that after he was taken into custody, he had not taken any of his medication, which he was supposed to take twice daily. Defendant was in custody for over nine hours before law enforcement officials first spoke to him. He asserted that he was under the influence of crack cocaine and marijuana at the time of his arrest. He also argued that he had previously been found unfit to stand trial and had been hospitalized in many facilities over the past 15 years.

         ¶ 14 On September 13, 2011, the trial court heard argument on defendant's motion and the State's motion in limine, which sought to prohibit defendant from presenting evidence of his mental health history and from introducing and commenting in argument on any of his hearsay statements. In support of the State's motion, Illinois State Police (ISP) Special Agent Krista Thien testified on direct examination that she was working with her partner, Special Agent Renee Phillips, on February 26, 2008. She received a call to investigate a possible reckless homicide incident on the Dan Ryan Expressway. Before questioning defendant, Special Agent Thien spoke to several witnesses who gave their own accounts of the incident. At 2:30 a.m. the following morning, Special Agents Thien and Phillips advised defendant of his Miranda rights. Defendant signed and initialed a preprinted waiver form indicating he understood his Miranda rights. They began to interview and continued questioning him over the course of the next 22 hours.

         ¶ 15 When defendant first began speaking to Special Agent Thien, he voluntarily stated that he was not the driver of the van. Defendant did not appear to be in any physical distress and did not request medical attention. Special Agent Phillips attempted to clarify defendant's name because he had originally told law enforcement officials that he was Jamie Sampson. Defendant told Special Agent Thien his address, age, place of birth, and where he went to school. He also told her that he paid $4 to the victim for a ride. Then he stated that he was "NGRI [not guilty by reason of insanity]." He described his mental health history and the medications he needed to take. Special Agent Thien told defendant that a witness saw him driving the van. Defendant continued to deny that he was the driver. He refused to take a polygraph test. An hour after the interview began, defendant stated "he want[ed] to have a couple of his rights." The agents stood up to leave the room, but defendant continued to talk. Defendant insisted that the agents record his story in writing. Shortly thereafter, defendant stopped talking and the agents left the room.

         ¶ 16 Special Agents Thien and Phillips returned the following evening and asked defendant if he wanted to talk. Initially, he refused, but changed his mind 10 minutes later. They readvised defendant of his Miranda rights and he indicated that he understood that he previously signed the waiver form. Defendant told the agents that he "wanted to get it over with" and that he did not want to talk "too much, " but continued the interview. Defendant repeated that he was "NGRI" and asked the agents if they were his attorneys. Defendant maintained that he was not the driver of the van. He told the agents that "he wants his rights, " but did not clarify which right he wanted. He refused to provide the agents with a buccal swab. They questioned defendant regarding a bald spot on his head because a witness recalled that the person driving the van had a bald spot. The agents took photographs of the top of defendant's head. The agents stopped the interview at 10:08 p.m. Special Agent Thien testified that she never doubted defendant's mental capacity to answer her questions.

         ¶ 17 On cross-examination, Special Agent Thien stated that her partner had indicated that she had difficulty understanding defendant during the interview. Defendant mentioned his "medicine place" and psychiatrist in Joliet and Elgin. He told the special agents that he suffered from schizophrenia and bipolarity, which he described as "[w]hen one part of your, uh, important part of you, know, comprehends the fullness of stuff." Defendant continued to describe his mental illness as "what make you, uh, I'm sorry, as in memory bank of something. If one of them is shortened, if you shortened them, one of your things, then that meant that. And I've shortened up so much." Neither of the special agents stopped the interview to get more information regarding defendant's mental health history or obtain his medications. Defendant indicated that he had taken his medication before he was taken into custody.

         ¶ 18 When Special Agent Thien confronted defendant with witnesses' statements that he had been driving the van, he told her "Y'all should have lots of people saw me driving, like Big Foot at McCormick Place. Rosemont Horizon, they ran me off. Then I drove, but nobody saw me driving. Oh, two people had seen me driving, and plus, I know who was driving." When the special agents continued to question defendant about whether he was driving, he responded, "I lit up a cigarette, 'cause this is such a crisis, and you don't like crisis and stuff so, " and "[y]ou're trying to come down on me. Then don't crack down on me so hard 'cause I got in the passenger side and usually people be -- we had the keys. We don't understand the rest." The special agents did not ask defendant questions to clarify his reference to "we" or "crisis." Defendant insisted three other people were in the van.

         ¶ 19 Several hours later, the special agents returned and continued to question defendant after advising him again about his Miranda rights. Defendant responded, "I don't want to talk about it too much." When defendant told the special agents he was "NTRI" and "went to court, " Special Agent Phillips asked him whether he thought he was insane. Defendant told the special agents, "that's what the hospital told me, um, and I'm not that much insane but something bad just happened. It was excellent. Yeah, I just woke up." When questioned further about whether a bad accident occurred, defendant responded, "Nah, I don't know too much what happened, because what happened, I was just mix it to you, and what are ...

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