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People v. Johnson

Court of Appeals of Illinois, First District, Fourth Division

March 30, 2018

ROBIN JOHNSON, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 08 CR 14022 Honorable Thomas V. Gainer Jr., Judge Presiding.

          JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Gordon concurred in the judgment and opinion.



         ¶ 1 Defendant, Robin Johnson, was convicted in a jury trial of the first degree murder of Chicago Police Officer Richard Francis, disarming Officer Francis, and aggravated discharge of a firearm toward another Chicago police officer, for which she received sentences of, respectively, mandatory natural life, four years' imprisonment, and 15 years' imprisonment. In this appeal, defendant raises several challenges to the judgment. Defendant alleges that the trial court violated her constitutional right to present a defense when it barred proposed expert and lay testimony that she contends establishes that she was in a postictal, or post-seizure, state at the time of the offense. Defendant also argues that the trial court erred in refusing to instruct the jury on involuntary manslaughter and in not allowing defense counsel to impeach a defense witness about the State having provided the witness with housing prior to her testifying at trial. Finally, defendant contends that her mandatory natural life sentence is unconstitutional.[1]

¶ 2 The record shows that defendant was charged by indictment with four counts of first degree murder of a peace officer, eight counts of attempted murder, four counts of aggravated discharge of a firearm, and disarming a peace officer, arising from a July 2, 2008, incident that occurred after Officer Francis was called to investigate a disturbance on a Chicago Transit Authority (CTA) bus. Prior to trial, defendant submitted an answer to the State's motion for pretrial discovery that suggested that defendant would "rely on the State's inability to prove its case beyond a reasonable doubt." Defendant also indicated that she was contemplating asserting the affirmative defense of insanity.

         ¶ 3 On October 16, 2013, the day before jury selection was set to commence, defendant filed a motion to allow her "to present the defenses and supporting evidence that (1) she did not act intentionally or knowingly as required under the charged statutes and (2) she did not perform a voluntary act as required by the criminal code." The defense indicated that it "had investigated the possibility of presenting an insanity defense" and believed that the insanity defense would be "a weak and ineffective defense." However, counsel believed that defendant had "a strong defense" based on her "not possess[ing] the mental state necessary to commit first degree murder" and "not perform[ing] a voluntary act." Counsel further stated an intent to call Dr. Stephan Schuele to testify that defendant suffers from epileptic seizures and that she was "in a postictal or post-seizure state at the time that" the officer was shot. Dr. Schuele would further testify that defendant "was not capable of forming the necessary mental state to commit first degree murder" and that her medical condition "created a confused state such that [defendant] was not performing voluntary acts." Defendant also claimed that her condition, which resulted from "a seizure and postictal state, could lead a jury to conclude that she acted recklessly and therefore committed the offense of involuntary manslaughter rather than first degree murder."

         ¶ 4 On October 16, 2013, the State filed a motion in limine to exclude defendant's proposed expert testimony in the absence of an insanity defense. The State argued that where defendant was not presenting an insanity defense, the proposed testimony was irrelevant and amounted to "an improper attempt to resurrect the now-defunct defense of diminished capacity." The State further asserted that "the proposed testimony on the issue of epilepsy, would serve only to confuse the jury and to invade the province of the jury."

         ¶ 5 On October 17, 2013, the court held a pretrial hearing for the court to hear Dr. Schuele's proposed testimony and consider its admissibility at trial. Dr. Schuele testified that he was a neurophysiologist and epileptologist at Northwestern University and Northwestern Medical Faculty Foundation (Foundation). Dr. Schuele further testified that he was "the section head for the Epilepsy Section" at the Foundation, and the Medical Director of the Neurological Testing Center at Northwestern Memorial Hospital. In 2010, Dr. Schuele was asked to evaluate defendant. In evaluating her, Dr. Schuele interviewed defendant and her family members and relied on a neuropsychological report prepared by Dr. Robert Hanlon, the fire department incident report, the police case report, the indictment, the video surveillance footage of the incident, and defendant's prior hospitalization records.

         ¶ 6 Dr. Schuele explained that epilepsy is "a tendency of the brain to have unprovoked, recurrent seizures, epileptic seizures" and that it was "basically defined as having had at least two unprovoked epileptic seizures." Dr. Schuele stated that a person could have epileptic seizures without having epilepsy when the seizures were "provoked." He stated that provoking factors could include a "variety of medical conditions, " including renal failure, liver failure, dehydration after, for example, running a marathon or substance abuse. Dr. Schuele testified that he did not diagnose defendant with epilepsy because he was not able to determine whether her seizures were provoked or unprovoked. He was "confident to say that she has epileptic seizures, " but noted that defendant had certain risk factors for provoked seizures. Specifically, Dr. Schuele stated that if defendant had provoked seizures, they would have been caused by her chronic drug use, alcohol use, or alcohol withdrawal. Dr. Schuele also stated that he looked at defendant's EEG records, which were normal, but explained that about 20% of people with epilepsy will have normal EEGs.

         ¶ 7 Dr. Schuele further explained that a "postictal period" referred to "the fact that directly following a seizure most patients are confused for a certain period of time." This period normally lasts between 10 and 30 minutes; however, some patients with frequent seizures, or a cluster of seizures, "go into a prolonged confusional, delusional state." Dr. Schuele stated that this was "basically a prolongation of the acute postictal state, " in which people are tired, confused, disoriented, and, in some cases, agitated or violent. Dr. Schuele described this as "postictal psychosis, " where a person has "one or two or several days" where he or she exhibits "paranoid and delusional and bizarre behavior." Dr. Schuele testified that a person can "walk and *** function to a certain degree, but they *** have psychotic symptoms where they [have] irrational or erratic or bizarre behavior."

         ¶ 8 Dr. Schuele noted that defendant was hospitalized on June 29, 2008, three days before the incident, and that there was a handwritten note in the record that she had been "postictal" the day before and was "[n]ow feeling better." Dr. Schuele testified that, from defendant's history and the descriptions he had been given, he believed that it was "reasonable to assume that [defendant] was in a postictal state" on July 2, 2008, and that, at the time of the incident, defendant "showed signs of erratic behavior consistent with an acute confusional state."

         ¶ 9 The doctor also explained that the symptoms of a postictal period could "wax and wane" and that "people who are delirious or postictal have moments where they make clear statements and other moments where they make very incoherent or out of context statements." He also stated that he could not "exclude that during these three days she would have the intention to go to the bathroom or she had the intention to eat something or do something intentional" but stated that the surveillance video of the incident gave him "information of how erratic she was at the moment of the incident." Dr. Schuele specifically characterized the video as showing that when defendant was on the bus, she engaged in a motion mimicking putting money in the fare box, when she did not actually do so, and that she was walking behind one of the bus passengers with her arms bent. Dr. Schuele also relied on reports that the bus passenger asked defendant why she was following her, and defendant responded, "[Y]ou made me this way."

         ¶ 10 Dr. Schuele further explained that a person

"in a delirious state has actions which are volitional and actions which are erratic. *** [W]e are not talking about a patient who is comatose and unresponsive and where things are black and white. We're talking about a situation where obviously every step a person does is a volitional act because, otherwise, we wouldn't walk. *** So, yes, obviously, she does many volitional things. She does-it is my opinion as well that she does many erratic things."

         ¶ 11 When asked whether Dr. Schuele could tell which parts of the sequence of events were volitional and which were erratic, the doctor responded:

"I think you can probably judge erratic behavior as good [sic] as I can. You know, it's erratic to mimic putting money in the fare thing. *** [I]t is erratic to walk behind someone with your arms bent and walking back and forth. *** It is erratic to answer questions of why do you follow me with, like, you made me this way. That is paranoid and delusional."

         Dr. Schuele clarified, however, that when he used the words "paranoid and delusional, " he was describing the postictal state, not making a psychiatric diagnosis, and that a doctor "obviously do[es]n't make a psychiatric diagnosis just because someone *** was confused after a seizure."

         ¶ 12 Dr. Schuele stated that it was his understanding that "movements are volitional" and that "holding something, pulling a trigger" and pointing a gun at someone, were "volitional act[s]." However, Dr. Schuele stated that he believed that defendant did not "understand[ ] the situation" and that she was "paranoid and *** fe[lt] threatened to an irrational degree."

         ¶ 13 When asked about whether he knew from witness accounts that Officer Francis did not get up or move after the initial gunshot, Dr. Schuele responded, "If I remember the video, the video, obviously, doesn't show much. The video on that part, there's a lot of obstruction." Dr. Schuele was also asked whether he recalled that defendant was "accused of hiding behind a car and shooting in the direction of other officers after she shot and killed Officer Franc[i]s, " and responded that he "d[id]n't remember that detail."

         ¶ 14 At the conclusion of Dr. Schuele's testimony, the court indicated that it would have a ruling in the morning before jury selection.

         ¶ 15 The next morning, the court began by noting that, typically, "a defendant's state of mind is a question of fact to be determined by the jury" and that it "may be inferred from the character of the defendant's conduct and the circumstances surrounding the commission of the offense." The court continued:

"The admissibility of expert testimony regarding a defendant's intent or lack thereof which is the ultimate issue in a murder prosecution depends on whether the expert is to testify to facts requiring scientific knowledge not within the common knowledge of the jury.
Dr. Schuele's testimony in this case is not being offered in support of the affirmative defense of insanity. It's being offered only on the issue of her intent, and it comes under the rubric of a reasonable doubt argument. ***
But expert testimony cannot and must not confuse the jury or invade the province of the jury in determining the ultimate issues. ***
Dr. Schuele described what he called the postictal phase which occurs after the seizures. ***
In this state, the person could appear paranoid and delusional, but according to Dr. Schuele, would also be capable of performing voluntary acts such as pointing a gun at someone, shooting that person, hiding behind a vehicle, and firing a weapon at other police officers who arrived on the scene while protecting herself.
Dr. Schuele testified that there was no psychiatric or psychological diagnosis made that the defendant suffered from paranoia or delusional thinking[.]
Dr. Schuele testified that while she may have been confused and agitated as a result of her postictal state, she was capable of engaging in voluntary acts such as I have described, aiming a gun at a victim, shooting the victim, protecting herself, and then shooting at other police officers.
In this Court's opinion, this testimony would only serve to confuse the jury on the ultimate issue in the case since the doctor is saying two things. She's in this confused and agitated state, but she's also capable of engaging in volitional acts. To allow anger, agitation, confusion, erratic behavior which result in the defendant's long history of alcoholism and substance abuse to rise to the level of mental disease or defect would make voluntary intoxication a defense to criminal conduct, and Illinois does not recognize voluntary intoxication as a defense.
This testimony that's being offered is more akin to the diminished capacity defense[.]
Dr. Schuele's testimony that the defendant was in a postictal state of agitation and aggression but still capable of volitional acts would only confuse the jury on an issue which is theirs [sic] to decide."

         ¶ 16 After ruling, the State also indicated that it "would be objecting" to the defense presenting evidence through lay opinions given by family members and paramedics that defendant suffered from seizures. Defense counsel responded that the defense would not be asking about their opinions of whether defendant was suffering from a seizure, but that the defense should be able to call these witnesses to testify regarding the "facts of what they observed." The court ruled that defendant did not have a right to "ask them opinions about postictal states and such. But I believe you have a right to call witnesses to testify to her behavior."

         ¶ 17 On October 21, 2013, the State sought to clarify the trial court's ruling by filing a motion in limine seeking to prevent the defense from providing evidence of "defendant's medical and mental history as it is not relevant to any issue before the court." The State asserted that any evidence "of the defendant's mental health in the form of prior seizures, confusion, medication or current medical diagnoses are not relevant absent an insanity defense." The State argued that it was "obvious that the defense [wa]s trying to circumvent their burden" of proving insanity, and that the defense's "attempts to call her family, paramedics, and doctors" were only relevant to a nonexistent diminished capacity defense. The State asked that the evidence "be excluded as it remains irrelevant, in no way assists the jury and would instead serve to confuse the jury while deliberating the issues in the case." The State also explained that some of the evidence that defendant sought to admit constituted hearsay, was speculative, or was "too remote to be relevant."

         ¶ 18 In ruling on the State's motion in limine, the court explained that its prior ruling

"was that the jury should be able to determine [the voluntariness of] the acts, all the acts of the defendant and her acts at the time she encountered the police officer, and no expert testimony was necessary ***.
The evidence that this woman suffers from epilepsy, had suffered from epilepsy in the past and had involved herself in seizure-type behavior in the past is not relevant to the issue of whether or not she was committing a voluntary act on the night in question."

         ¶ 19 The court noted that Dr. Schuele testified that defendant was "capable of committing voluntary acts" and concluded that

"all this epilepsy evidence is only going to confuse the jury. It's excludable under 403. It's really not relevant to what happened. ***
This type of evidence, all of it, the daughters, the boyfriend, the paramedics, and the doctors, is going to mislead the jury. The jury is going to have to make up its mind from what it hears from the witnesses, *** and *** what they see in the ...

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