THIRD DIVISION
October 15, 2008
No. 1-05-3260
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 02 CR 29731
)
BRIAN McCULLUM, ) Honorable Evelyn B. Clay,
) Judge Presiding.
Defendant-Appellant. )
PRESIDING JUSTICE MURPHY delivered the opinion of the court:
Following a bench trial, defendant, Brian McCullum, was found guilty of first degree
murder but mentally ill (720 ILCS 5/9-1(a)(1), 6-2(c) (West 2004)) for the November 1, 2002,
shooting death of Mario Davey. The victim was shot five times by defendant while working as a
security guard at the White Castle restaurant located at 1550 East 79th Street, Chicago, Illinois.
Defendant was sentenced to 45 years’ imprisonment for first degree murder (730 ILCS 5/5-8-
1(a)(1)(a) (West 2004)). This appeal followed the trial court’s denial of defendant’s posttrial
motions.
Defendant does not dispute the trial court’s finding that he shot the victim, but asserts
several other issues on appeal. Defendant’s primary contention is that the trial court’s finding
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that defendant was mentally ill but not insane at the time of the murder was against the manifest
weight of the evidence. Defendant also asserts that he was denied a fair trial by the misstatement
of evidence during closing argument and the trial court’s consideration of inadmissible evidence
and incorrect facts. Defendant next contends that the State violated its obligation to provide the
defense with a specific statement as to the substance of a rebuttal witness’s testimony.
Defendant argues that he suffered from ineffective assistance counsel related to the handling of
the insanity issue. Defendant also contends that the trial court improperly found him fit to be
sentenced and that he is entitled to one additional day of sentence credit. For the following
reasons, we affirm the verdict of the trial court and order modification of the mittimus.
I. BACKGROUND
Pursuant to a February 5, 2003, consolidated referral order of the trial court, defendant
was evaluated by a psychiatrist with forensic clinical services of the circuit court of Cook
County, Illinois (Forensic Clinical Services), to determine his sanity and fitness to stand trial. In
an unsigned letter to the trial court, dated March 24, 2003, from Dr. Jonathan Kelly, a staff
forensic psychiatrist, defendant was found fit to stand trial following an evaluation on March 18,
2003. Kelly indicated that defendant understood the nature and purpose of the legal proceedings
and the consequences he faced and that he would be able to assist in his defense. Defendant
informed Kelly that he was not receiving psychotropic medication, but he refused to give consent
to allow Kelly to obtain his medication profile from Cermak Hospital. Kelly did not provide any
opinion about sanity because defendant asserted his fifth amendment right and refused to discuss
the shooting.
The trial court entered a second consolidated referral order on March 25, 2003, ordering
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Forensic Clinical Services to evaluate defendant as to his fitness to stand trial with or without
medication, his sanity, and his ability to understand Miranda. On April 30, 2003, Dr. Fidel
Echevarria examined defendant to render a second opinion. Based on his clinical interview and
review of medical records, Echevarria opined that defendant was unfit to stand trial and subject
to involuntary hospitalization. Echevarria stated that defendant was unable to assist counsel due
to his preoccupation with paranoid and persecutory delusions. Defendant continued to refuse to
sign a release of information and Echevarria was unable to render an opinion as to sanity;
however, given defendant’s significant psychotic processing, poor insight and history of
violence, Echevarria opined that defendant was subject to involuntary hospitalization.
Following yet another court order, Echevarria examined defendant again on August 29,
2003. On September 4, 2003, Echevarria opined that defendant was fit to stand trial with
medication. Echevarria stated that he had yet to be provided defendant’s medical and psychiatric
records from around the time of the shooting and could not render an opinion as to defendant’s
sanity at that time. Following another examination on January 6, 2004, Echevarria issued
another opinion letter on January 8, 2004, again opining that defendant was fit to stand trial with
medication. Echevarria also opined that, based on defendant’s psychiatric history of manifesting
psychotic thought processing and behaviors and that he was noncompliant with medication
treatment, he was legally insane at the time of the shooting.
Also, on January 8, 2004, the trial court entered a referral order for a second opinion on
defendant’s sanity. On May 3, 2004, Dr. Roni L. Seltzberg rendered her opinion regarding
defendant’s mental state at the time of the shooting. Based upon evaluations of defendant on
February 13, 2004, and April 22, 2004, and a review of medical records, Seltzberg opined that
defendant was legally insane at the time of the shooting as a result of an acute exacerbation of
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defendant’s schizophrenic disorder.
The State then sought a third opinion regarding defendant’s sanity by a doctor of its
choosing, Dr. Stafford Henry. The trial court denied the State’s request, but then granted its
motion to reconsider and allowed the State to proceed with a third opinion. Dr. Henry’s opinion
is not of record and he was not called as a witness.
At trial, the State presented testimony of several witnesses to detail the events that led to
the fatal shooting of the victim and defendant’s flight and capture. Two restaurant employees
and two restaurant patrons testified to the events at the restaurant. Defendant arrived at the
restaurant around 12:30 a.m. and someone bought him a coffee, which he had refilled several
times. Defendant did not exhibit any odd behaviors until the shooting. Despite disheveled hair,
defendant appeared well-kempt, and his clothes, a dark jacket and dark pants, were clean.
Defendant quietly kept to himself and drank his coffee.
Shortly before the shooting, defendant stood near the soda machine and then walked to
the second exit of the restaurant and stood looking outside for about five minutes. Defendant
then walked toward the victim and pulled out and fired a handgun at the victim. The victim
raised his hands in the air as the first shot missed him and hit a window and then tried to get his
own gun out of his holster. Defendant moved closer to the victim and fired the handgun several
more times from a distance of four or five feet from the victim. Defendant then quickly walked
out of the restaurant and ran across the street, through a parking lot east toward Stony Island.
In addition to this testimony, video footage from the interior and exterior security cameras
of the restaurant was published at trial. The footage corroborated the testimony outlined above.
Defendant is shown waiting in line for coffee and sitting down at a table to drink his coffee
between 3:35 a.m. and 3:45 a.m. While defendant sat, the victim moved in and out of the view
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of the camera. At about 3:50 a.m. defendant got up from his seat, walked to the window and
drank his coffee with his back to the counter. At about 3:54 a.m. defendant walked back across
the restaurant toward the victim and shot the victim. Defendant then ran out of the restaurant,
knocking a garbage can over as he exited. The footage from the outside camera showed
defendant leaving the restaurant and running across the parking lot.
One of the witnesses drove off to find a squad car to report the shooting. Responding to a
flash message of the shooting, responding officers saw defendant running eastbound on East 74th
Street, toward Stony Island and holding his midsection. Defendant ran to a gated mosque and
attempted to scale the fence when the police officers approached him, drew their weapons and
ordered defendant to the ground. Defendant complied with the officers, but as he was
handcuffed, a revolver fell from defendant’s midsection to the ground. Defendant kicked the
revolver underneath the fence and into the adjacent parking lot. Defendant appeared to
understand the situation and who the officers were. The revolver was recovered from the parking
lot and tested by the police.
Defendant presented the testimony of Dr. Seltzburg in his defense. Seltzberg testified
that she saw defendant in 1998 upon a referral resulting from a misdemeanor assault charge.
Seltzberg opined that defendant had a psychotic disorder and prescribed antipsychotic
medication. Seltzberg next saw defendant on February 13, 2004, and April 22, 2004.
Seltzberg testified that prior to the evaluation on February 13, 2004, she reviewed
numerous documents, including: defendant’s medication profile that indicated he was prescribed
antipsychotics; Dr. Echevarria’s reports that indicated defendant was fit to stand trial with
medication but legally insane at the time of the shooting; the police report of the shooting;
comments from defendant’s father that a gun had been stolen from his home, defendant had been
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diagnosed with paranoid schizophrenia when he was discharged from the military in 1987, and
that he was noncompliant with his medications; a report that defendant was discharged by the
United States Marine Corps because of mental illness and was currently on disability; and the
video surveillance footage from the restaurant. After the first evaluation in 2004, Seltzberg
reviewed additional documents, including: Veterans Administration (VA) Hospital records from
1984 that indicated defendant was delusional and had auditory hallucinations and that defendant
had been admitted to the hospital in 1993, 1996, and 1998; McNeal Hospital records indicating
defendant was admitted in July 2001 and diagnosed with paranoid schizophrenia; additional
records that indicated defendant was noncompliant with medications and had become religiously
preoccupied; and emergency room records from August 2001 where defendant had been brought
in for walking in the middle of the street, paranoid, delusional, and religiously preoccupied.
Seltzberg testified that she also reviewed records from August and October 2002 that indicated
defendant had been taking his medication and was doing well as late as October 24 and 28, 2002,
when he was treated for a respiratory infection and hemorrhoids, but was not found certifiable by
the VA psychiatrist.
Seltzberg also reviewed records from November 4, 2002, and February, March, and April
2003. These records indicated that defendant was exhibiting paranoid behavior and having
auditory hallucinations. Treater impressions from this time period ranged from schizophrenia to
major depressive disorder with psychotic features. Seltzberg indicated that one psychologist,
likely a Dr. Mionette,1 made a note that she felt that defendant could be malingering. Seltzberg
1
The spelling of “Mionette” in the record was done phonetically in two different spellings
and, for purposes of this opinion, we will utilize this spelling.
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stated that this was likely based on presentation and not a diagnosis. This was not introduced
into evidence as an opinion and Dr. Mionette did not testify. Defendant was sent to the general
hospital population initially, though he was later administered antipsychotic medications and
continued to complain of auditory hallucinations. The records from 2003 indicated that
defendant had refused to take his medications, threatened others, required restraints and was
eventually forcibly administered medications.
Seltzberg testified that during her February 2004 evaluation, defendant claimed that he
was given a shot of poison by the military. Seltzberg opined that defendant was not compliant
with his medications because he did not have a good insight regarding his illness. In April 2004,
defendant told Seltzberg that he had not been taking his medication at the time of the shooting
because it made him drowsy. Seltzberg testified that defendant said he felt threatened by a man
with a tattoo so he climbed through a window of his father’s house to steal his father’s revolver
for protection.
Defendant said that he stopped at the White Castle on the night of the shooting on his
way to a meeting at the mosque. Defendant claimed that he had never been to the restaurant
before despite the police report noting that he had recently been kicked out of the restaurant.
Defendant told Seltzberg that he felt sleepy even though he was drinking coffee and that he saw
signaling between the victim and the restaurant employees. Thinking they had put something in
his coffee, defendant said he felt threatened, shot the victim in the head and ran to the mosque.
Seltzberg testified that she diagnosed defendant with schizophrenic chronic paranoid type
and concluded that he was legally insane at the time of the shooting. She based her opinion on
the evidence of schizophrenia that he was acutely psychotic at the time, and his prior history of
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violent behavior. Also, important to her diagnosis was defendant’s lack of motive. Seltzberg
testified that her opinion would not change even if she were informed that defendant had been
punched by the security guard who kicked him off the property.
Seltzberg testified that she found no evidence of malingering, instead finding that
defendant attempted to minimize or deny any psychotic behavior. Seltzberg testified that even
though defendant was symptomatic and delusional at the time of the shooting, his behavior
would not necessarily have been bizarre or erratic and agreed that he appeared to be acting
normally on the security video.
On rebuttal, the State presented the testimony of Melvin Mickens, a City of Chicago
police officer who also worked as a security guard, and Larry McCullum, defendant’s father.
Mickens testified that on October 28, 2002, he worked as a security guard at the White Castle
from 10:00 p.m. to 6:00 a.m. Mickens testified that when he arrived that night he told defendant
he could not beg for money by the entrance and that he would have to leave. A few minutes
later, Mickens saw that defendant had remained by the entrance so he went outside and punched
defendant in the face, grabbed him by the throat and slammed his head against the brick wall.
Defendant then left the area.
Mickens admitted that he did not record this incident in writing or inform the assistant
State’s Attorney about the incident until a couple months before trial. Mickens testified that he
did inform the investigating detectives that he saw defendant at the restaurant on October 28,
2002, and asked him to leave because he was begging for money. Mickens did not inform the
detectives that he had punched defendant.
Defendant’s father testified that the gun in evidence looked like his gun. He testified that
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on October 28, 2002, defendant had entered his home while he was at church. After he learned
that defendant might have stolen his gun, he noticed that his gun was missing.
Following closing arguments, the trial court entered its verdict of guilty but mentally ill.
The trial court specifically found: that Seltzberg testified that defendant was in remission in
August 2002 and taking his medication; that defendant went to the emergency room on October
24, 2002, and a psychiatrist found him not certifiable; that defendant was again treated at the
hospital on October 28, 2002, and there was no indication of psychiatric disorder or illness at that
time; and that on November 4, 2002, defendant was diagnosed with a major depressive disorder
with psychiatric features and that he was malingering. The trial court found that the close
proximity of these dates to the incident and the evidence at trial indicated that defendant was not
insane at the time.
The trial court found that the evidence indicated that defendant planned the shooting in
revenge. The trial court stated that Mickens beat defendant and kicked him off the property. In
response, defendant broke into his father’s home and stole his father’s revolver. Days later,
defendant armed himself with the revolver, returned to the restaurant and waited quietly for an
opportunity to shoot the victim. The trial court noted that the security video and testimony
showed that before the shooting defendant got up, walked around the restaurant and looked out
the vestibule and exit. Furthermore, the trial court noted that defendant immediately fled after
the shooting and as he was apprehended, kicked the gun away from the police.
Defendant filed several posttrial motions to vacate the trial court’s finding of guilty but
mentally ill and for a new trial. Defendant also argued that Mickens’ inconsistent testimony did
not support the verdict. The trial court denied defendant’s argument that the verdict was against
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the manifest weight of the evidence.
Defendant also filed a motion to vacate the verdict based on newly discovered evidence.
Defense counsel was informed after trial that defendant was hospitalized on October 28, 2002,
With his motion, defendant submitted copies of a medical record and “EMS” report that
indicated defendant was transported via ambulance to St. James Hospital in Chicago Heights,
Illinois, at 9:59 p.m. and admitted to the hospital at 10:33 p.m. on that date. Accordingly,
defendant argued that this showed that he was not at the restaurant at the time that Mickens
claimed and that no motive existed as the State argued. The trial court denied the motion,
finding that the State overwhelmingly proved its case.
At defendant’s sentencing hearing, the trial court heard further argument on defendant’s
motion for a new trial. Defense counsel attempted to argue that Dr. Henry, the State’s own
doctor requested for a third opinion on sanity, also opined that defendant was legally insane at
the time of the shooting. The trial court stated that this evidence was not presented at trial and
upheld its denial of defendant’s motion. Following argument on aggravation and mitigation,
defendant spoke to the trial court. Defendant made a long speech that included claims that he
was injected with a mind-altering substance by the Marine Corps, he never had contact with
Mickens, and he believed that drugs had been added to his coffee on the night of the shooting.
Defendant received a sentence of 45 years’ imprisonment for first degree murder with 1,049
days’ credit for time served. Defendant does not dispute that he shot and killed the victim, but
now appeals his conviction sentence.
II. ANALYSIS
A. Determination of Sanity
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Defendant argues that the trial court erred in finding that he was mentally ill but not
insane at the time of the shooting. In Illinois, a person is not criminally responsible for conduct
if, at the time of the conduct, he suffered from mental disease or defect, such that he lacked
substantial capacity to appreciate the criminality of that conduct. 720 ILCS 5/6-2(a) (West
2004). Where a defendant raises the affirmative defense of insanity, he bears the burden of
proving by clear and convincing evidence that he is not guilty by reason of insanity, while the
State retains the burden of proving guilt beyond a reasonable doubt. 720 ILCS 5/6-2(e) (West
2004). Where a defendant fails to prove his insanity but has proven that he is mentally ill and the
State has proven his guilt beyond a reasonable doubt, the trial court may find the defendant guilty
but mentally ill. 725 ILCS 5/115-3(c) (West 2004).
The questions of a defendant’s sanity and mental illness are questions of fact, and the fact
finder’s resolution of these questions will not be disturbed unless contrary to the manifest weight
of the evidence. People v. Urdiales, 225 Ill. 2d 354, 428 (2007), citing People v. Johnson, 146
Ill. 2d 109, 128-29 (1991). As the defendant bears the burden of proof, the State does not need to
present expert testimony on the issue of sanity but may rely purely on facts in evidence and the
inferences that follow from those facts. People v. Gilmore, 273 Ill. App. 3d 996, 1000 (1995).
Bizarre behavior or delusional statements do not compel an insanity finding as a defendant may
suffer mental illness without being legally insane. Gilmore, 273 Ill. App. 3d at 1000.
It is the function of the trier of fact to assess the credibility of witnesses, the weight given
to their testimony, and the inferences to be drawn from the evidence. People v. Cox, 377 Ill.
App. 3d 690, 697 (2007). The trier of fact is in the best position to view a witness while he or
she is being questioned and may believe as much, or as little, of any witness’s testimony as it
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sees fit. People v. Mejia, 247 Ill. App. 3d 55, 62 (1993). This rule also applies to expert
opinions on sanity, and the weight of such an opinion is to be determined by the reasons given
and the facts supporting the opinion. People v. West, 231 Ill. App. 3d 646, 650 (1992). Expert
testimony may be entirely rejected by the trier of fact if he or she concludes a defendant was sane
based on factors such as: whether lay testimony is based on observations made shortly before or
after the crime; the existence of a plan for the crime; and methods undertaken by the defendant to
prevent detection. West, 231 Ill. App. 3d at 651.
In this case, defendant’s argument, which the dissent adopts, is that the trial court’s
decision to ignore the uncontroverted expert opinions of Drs. Seltzberg and Echevarria was
against the manifest weight of the evidence. Defendant argues that the inconsistent and
impeached testimony of Mickens further supports reversal because the trial court specifically
relied on this testimony in finding that defendant acted in revenge. Defendant asserts that when
this improper evidence is removed, the only evidence remaining is wholly consistent with
Seltzberg’s opinion that defendant was insane and that he acted in line with his insane delusions.
As our case law outlined above makes clear, the trial court is the fact finder, that must
determine the credibility of witnesses and assess the weight afforded to their testimony and the
evidence at trial. For reversal, it is not sufficient that there is evidence to support defendant’s
argument or even that, were we the trier of fact, we would have found clear and convincing proof
of insanity. The standard by which we must review the trial court’s denial of defendant’s
affirmative defense is whether its decision was against the manifest weight of the evidence. We
will not substitute our judgment for the trial court’s regarding the weight of the evidence, the
credibility of the witnesses, or the inferences to be drawn from the evidence.
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We agree with the State that Gilmore and West are instructive. In Gilmore, the defendant
was found in the basement of a home she had broken into alongside property she had stolen from
the house. Upon discovery, the resident searched his house for an intruder and then boarded up
the window that the defendant had broken to enter the basement. When he later found the
defendant, she was lying under a blanket in the basement near the broken window. The resident
took the defendant upstairs and called the police, and when he asked the defendant why she
broke in, she responded that she was homeless and had nowhere else to go. Gilmore, 273 Ill.
App. 3d at 997-98.
At trial, the defendant presented the testimony of two doctors who opined that she was
legally insane at the time of the burglary. One psychiatrist examined the defendant on two
occasions while the other doctor examined defendant only once. All of these evaluations were
conducted several months after the incident. Both psychiatrists reviewed the defendant’s
psychiatric records and the police report of the incident. Gilmore, 273 Ill. App. 3d at 998-1000.
Weighing the expert opinions, the lay testimony and evidence, the trial court found
defendant sane but mentally ill. The trial court opined that the lay testimony and circumstances
of the case refuted the opinions of the psychiatrists. The trial court reasoned that neither doctor
could substantiate his or her basis for finding that the defendant was not malingering. The
doctors also failed to address that one basis for their insanity opinion, that the defendant did not
flee, was foreclosed by the resident’s boarding of the broken window. The defendant’s lack of
delusional response to the resident’s query after being caught was also cited as support for a
finding of guilty but mentally ill. Gilmore, 273 Ill. App. 3d at 1000. This court affirmed the trial
court, holding that, upon these facts, the trial court’s finding was not against the manifest weight
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of the evidence. Gilmore, 273 Ill. App. 3d at 1001.
In West, the defendant was found guilty but mentally ill on charges of attempted
aggravated criminal sexual assault, attempted criminal sexual assault, aggravated kidnapping and
aggravated battery. West, 231 Ill. App. 3d at 647. The trial court in West also came to this
finding over the opinions of two psychiatrists who evaluated the defendant several months after
the incident and found him legally insane at the time of the incident. West, 231 Ill. App. 3d at
648-50. The trial court found that the testimony of the victim, a witness and the arresting police
officer indicated that the defendant had a plan to assault the victim, took her to a secluded area to
prevent detection and fled when the victim was able to scream for help. Furthermore, each of the
witnesses testified that the defendant appeared normal, coherent and remorseful before, during,
and after the attack. West, 231 Ill. App. 3d at 651.
Despite defendant’s protestations that Mickens’ testimony and the evidence supporting
the alleged motive was either improper or incredible, the trial court based its decision primarily
on the testimony and evidence of defendant’s condition immediately surrounding the shooting.
The trial court concluded that this evidence outweighed Seltzberg’s opinion, which was
formulated 15 to 17 months after the shooting. The trial court stated that the evidence provided
further support for its conclusion that the medical records indicated defendant was sane as it
showed that defendant contemplated and planned the shooting in revenge.
In support, the trial court noted that despite living in a shelter at the time, defendant
returned to the White Castle that he had been kicked out of and where Mickens had beaten him.
Defendant had broken into his father’s home, stole his father’s revolver, and returned to the
White Castle. The trial court noted that the security video and testimony showed that defendant
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waited quietly for an opportunity to shoot the victim. Before the shooting, defendant got up,
walked around the restaurant and looked out the vestibule and exit. Furthermore, the trial court
noted that defendant immediately fled after the shooting and kicked the gun away from the police
as he was apprehended.
It is true, as defendant contends, that these facts do not evidence meaningful interactions
between the witnesses and defendant as in Gilmore and West. Defendant also notes that, unlike
in West, in this case there was no evidence that defendant was read his Miranda rights or that he
understood his rights. It is also true that defendant did shoot the victim in plain sight unlike the
defendant in West who took his victim into a secluded area to conceal the crime. However, the
facts of this case are more applicable to these cases than defendant maintains.
The testimony of the restaurant employees and patrons, in addition to the security video
footage, gave the trial court several corroborating impressions of defendant’s behavior. While
there was no real interaction prior to the shooting, the witnesses recalled defendant’s behavior for
a long period of time and the police officers testified that when he was arrested, defendant
appeared to understand the situation. Further, defendant attempted to conceal his involvement in
the crime by kicking the revolver under the fence away from the arresting officers.
What is more important, and what makes this case stronger for the State than those in
Gilmore and West, are the medical records in evidence from defendant’s care both before and
after the incident. As noted above, Seltzberg testified that defendant was in remission in August
2002 and taking his medication. The evidence showed that defendant went to the emergency
room on October 24, 2002, and a psychiatrist found him not certifiable. He was at the hospital
again on October 28, 2002, and there was no indication of psychiatric disorder or illness at that
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time. Finally, after the shooting, on November 4, 2002, defendant was diagnosed with a major
depressive disorder with psychiatric features. There also was an indication that he might be
malingering and was placed in the general hospital population. The trial court found that the
close proximity of these dates to the incident and the evidence at trial indicated that defendant
was not insane at the time.
There is no dispute that defendant is mentally ill and had been diagnosed with mental
illness well before the shooting. In fact, this case is admittedly close and difficult as there was
support at trial that a finding that defendant was legally insane at the time of the shooting would
be reasonable. However, that is not the question that we must answer. There also was support
for a finding of guilty but mentally ill. Like in Gilmore and West, the medical experts examined
defendant several months after the incident and several witnesses testified to defendant’s
behavior and actions. Furthermore, unlike Gilmore and West, in this case there also was
significant medical documentation of defendant’s mental and physical state leading up to, and
immediately after, the shooting. We cannot say that the trial court’s holding was unreasonable,
arbitrary or unsupported by the evidence. Accordingly, we affirm the trial court’s denial of
defendant’s affirmative defense.
B. Right to a Fair Trial
Defendant next argues that he was denied his right to a fair trial because of prosecutorial
misconduct and the trial court’s use of inadmissible evidence and erroneous conclusions in
finding that defendant was sane at the time of the shooting. Defendant asserts that the State
argued, without evidentiary basis, that defendant was “gaming” the system, that a doctor opined
defendant was malingering, and that the State misstated the evidence to argue that defendant
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acted in revenge. Defendant claims that the trial court then rested its opinion on this
inadmissible evidence and improper conclusions, also resulting in a violation to his right to a fair
trial.
The State argues that the failure to make a timely objection and renew it in a posttrial
motion operates as a waiver of the right to argue that issue on appeal. People v. Enoch, 122 Ill.
2d 176, 187 (1988). The State asserts that both of these issues were waived for purposes of
review as defendant failed to preserve them. Defendant admits that these issues were not
properly preserved. However, defendant asserts that this court should review these issues as
plain error pursuant to Illinois Supreme Court Rule 615(a). 134 Ill. 2d R. 615(a). Nonpreserved
errors may be reviewed on appeal if the evidence is closely balanced or where the errors are of
such a magnitude that defendant was denied a fair and impartial trial and remedying the error is
required to preserve the integrity of the judicial process. People v. Johnson, 208 Ill. 2d 53, 64
(2004). Because the evidence was close and defendant’s allegations implicate the constitutional
protections of a fair trial and a right to confront witnesses, we consider each issue under plain
error review.
1. Prosecutorial Misconduct
In reviewing allegations of prosecutorial misconduct, this court must consider the
arguments of both the prosecutor and the defense in their entirety and place the allegations of
improper comments in context. People v. Evans, 209 Ill. 2d 194, 225-26 (2004). The
prosecution has the right to comment on the evidence presented at trial and draw all reasonable
inferences deducible therefrom. People v. Simms, 192 Ill. 2d 348, 396 (2000). The prosecution
may also respond to comments made by defense counsel. People v. Abadia, 328 Ill. App. 3d
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669, 678 (2001). It is well settled that prosecutors enjoy wide latitude in closing arguments and
that the scope of permissible argument rests within the sound discretion of the trial court. People
v. Griffin, 368 Ill. App. 3d 369, 376 (2006). Any improper comments or remarks made by a
prosecutor in closing arguments are not reversible error unless they are a material factor in the
conviction or cause substantial prejudice to the accused. People v. Sutton, 316 Ill. App. 3d 874,
893 (2000).
Defendant argues that, faced with no expert testimony to counter the opinion of Dr.
Seltzberg, the State misstated the evidence to try and discredit her opinion. Defendant contends
that the State argued, without evidentiary basis, that: defendant was experienced at “gaming” the
system; Dr. Mionette, who saw defendant just days after the shooting, opined that he was
malingering, and defendant returned to the restaurant after stealing the gun in response to being
beaten by Mickens. Defendant argues that the trial court’s findings demonstrate that it accepted
these unsupported claims as facts and he was denied a fair trial as a result. Defendant concludes
that the State’s cavalier attitude toward these representations is especially inappropriate in light
of the recent line of cases where our supreme court has reaffirmed its “intolerance of
prosecutorial misconduct.” People v. Wheeler, 226 Ill. 2d 92, 122 (2007); see also People v.
Johnson, 208 Ill. 2d 53 (2003); People v. Nelson, 193 Ill. 2d 216 (2000); People v. Blue, 189 Ill.
2d 99 (2000).
We are certainly mindful of these cases and note that this court has also expressed serious
concerns with the aggressive and cavalier attitude that some prosecutors deem necessary to
adopt. While we agree the State’s presentation of its case was deficient in some areas, the
behavior of the prosecutor in this case did not rise to the level of a persistent and pervasive
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pattern of misconduct so egregious to warrant a new trial as exhibited in the line of cases above.
The trial court heard all of the testimony and reviewed the evidence. The trial court therefore
was able to assign weight to testimony as it saw fit, and we operate under the rebuttable
presumption that the trial court relies only on proper argument and evidence in making its
decision. People v. Gilbert, 68 Ill. 2d 252, 258-59 (1977).
Based on the entire record and the trial court’s holding, the prosecutor’s argument did not
exceed the bounds of proper argument. First, the State’s comment that defendant was “gaming”
the system was brief and not repeated. Further, the trial court did not cite this argument as
support for finding defendant legally sane.
With respect to the trial court’s statement that the medical records reviewed by Seltzberg
included a “finding” by Dr. Mionette that defendant was malingering on November 4, 2002,
defendant claims that Seltzberg only testified that defendant was not diagnosed with malingering
but that it was based on presentation. Seltzberg continued that defendant minimizes any
psychotic disorders, but he may have been acutely psychotic on November 4, 2002, because he
did not minimize his symptoms. The State then sought clarification and asked whether Dr.
Mionette indicated that defendant was malingering and Seltzberg responded:
“DR. SELTZBERG: I can only answer that by saying anyone that might
have seen him initially might probably would not have had his records, and he
might have seen him initially might probably would not have had his records, and
he might not have described what his history was, so the suggestion or the
impressions or diagnosis of malingering, you would base only on the initial
presentation and the doctor’s initial thoughts just maybe.”
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Seltzberg testified that she was not present for these evaluations and that she did not
know what records were reviewed. Seltzberg added that she was uncertain if it was Dr. Mionette
that made that notation. Whether or not it was Mionette or another doctor, Seltzberg’s testimony
supports an inference that a doctor made a “finding” that defendant was malingering. The State
argued that Dr. Mionette said defendant was malingering and the trial court noted that Mionette
made a “finding” that defendant was malingering. There was not an improper argument that this
was a definitive diagnosis, just that, in addition to the other medial records from around the time
of the shooting, this finding or statement, whatever term is applied, supported the conclusion that
defendant was legally sane at the time of the shooting.
Defendant finally argues that the inferences argued by the State regarding the gun that
defendant stole from his father and Mickens’ testimony are clearly wrong based on opposite
inferences. While the dates from testimony and evidence do not align, especially considering the
newly discovered evidence of defendant’s ambulance transport and treatment, the trial court
heard the testimony of the witnesses and was able to assign weight to each piece of evidence.
The State argued the testimony presented at trial. Importantly, the trial court specifically held,
and reiterated during posttrial proceedings, that it found defendant sane at the time of the
shooting based on the medical records from immediately before and after the shooting.
Accordingly, even if these comments were in error, they were not a material factor in the trial
court’s holding and defendant did not suffer substantial prejudice.
2. Trial Court’s Use of Inadmissible Evidence and Erroneous Conclusions
Defendant’s second argument that his right to a fair trial was violated follows from above.
Defendant contends that the trial court rejected Seltzberg’s opinion because it found there was no
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indication that defendant was experiencing acute psychiatric impairment around the time of the
shooting and that defendant had planned the shooting to exact revenge for the beating.
Defendant asserts that these conclusions were based on inadmissible evidence or were contrary to
the evidence.
Defendant argues that the trial court’s conclusions that defendant was not symptomatic at
the time of the shooting were based on faulty readings of the medical records from October and
November 2002. The trial court concluded that the fact that the psychiatric hospital evaluated
defendant on October 24, 2002, and he was deemed not certifiable was evidence of his sanity.
Defendant maintains that the simple fact that he was sent for a psychiatric evaluation when
seeking treatment of a respiratory infection requires a conclusion that he was symptomatic.
Further he argues that the fact he was not certifiable only shows that he was not an imminent
danger to himself or others and was not proof of his sanity. Likewise, the failure to note any
psychotic presentation during his treatment for hemorrhoids on October 28, 2002, also is
unreasonable to support a sanity finding.
Finally, defendant argues that the trial court’s citation to the malingering finding by Dr.
Mionette was inappropriate because it was hearsay and inadmissible. Seltzberg testified that the
medical records she reviewed, and relied upon, indicated that a finding was made that defendant
might be malingering. The trial court recounted details from the records from each of these dates
to reject Seltzberg’s opinion. The records were not substantive evidence, but were testified to by
Seltzberg in how she formed her opinion. With respect to the records from before the shooting,
the record does not indicate why defendant was evaluated by the psychiatric department or
whether it was routine because of his medical history. The fact remains that he was found not
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certifiable and that no notation of any presentation of mental illness was made in these records.
We agree that the evidence was closely balanced, but that does not lead to the conclusion that the
trial court was clearly erroneous in making its conclusions.
Defendant also argues that the trial court erred in determining that defendant planned the
shooting, because there were inconsistencies in Mickens’ testimony and the State failed to prove
when the gun was actually stolen. As we have noted above, the trial court rested its opinion on
the medical records and only cited to the other evidence as additional support for its finding. We
also have noted that there were holes in this string of evidence provided; however, that does not
require reversal in this case as the trial court did not rest on this evidence. Furthermore, as the
trial court stated in posttrial proceedings, the timeline was irrelevant as the fact would remain
that defendant stole the gun, the trial court found that defendant was kicked off the restaurant
property, and defendant subsequently returned to the restaurant with the gun and methodically
shot the victim. While the facts as originally presented are stronger than this version, it cannot be
said that the trial court rested on these erroneous facts.
C. State’s Disclosure of Rebuttal Witness Testimony
Defendant next contends that the State violated its obligation under Supreme Court Rule
412(a) to provide the defense with a specific statement as to the substance of the testimony that
Melvin Mickens was to provide in rebuttal. 188 Ill. 2d R. 412(a). Defendant argues that the
testimony by Mickens was a total surprise to defense counsel and that he was prejudiced because
it was an integral factor in the trial court’s reasoning. The State responds, and we agree, that
defendant waived this issue.
The State again argues, and defendant admits, that this issue was not objected to at trial,
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no continuance was sought to investigate Mickens, and the issue was not raised in his posttrial
motion. We agree with the State that defendant waived this issue at trial. However, defendant
asserts that this issue should also be reviewed as plain error pursuant to Illinois Supreme Court
Rule 615(a). 134 Ill. 2d R. 615(a).
While we disagree with the State’s assertion that it did not violate Rule 412(a), we agree
that defendant has failed to show that his right to a fair trial was prejudiced by the error. People
v. Galindo, 95 Ill. App. 3d 927, 932-33 (1981). Despite the State’s reading of Rule 412(a), the
plain language of the rule requires the State to disclose the identity of rebuttal witnesses and a
specific statement as to the substance of the testimony of the witnesses. 188 Ill. 2d R. 412(a).
Case law recognizes that the identity or specific testimony of rebuttal witnesses may not be
known until a defendant presents his case, and, therefore, the proper procedure is for the State to
provide this information when the intention is formed. This requirement properly serves the goal
of discovery to eliminate surprises and unfairness and afford an opposing party the opportunity to
investigate. Galindo, 95 Ill. App. 3d at 932. Whether a discovery violation warrants mandate for
a new trial depends on the closeness of the evidence, the strength of the undisclosed evidence,
and the likelihood that prior notice could have helped the defense discredit the evidence. People
v. Weaver, 92 Ill. 2d 545, 560 (1982).
In this case, Mickens was properly disclosed as a potential witness by the State pursuant
to Rule 412. The record indicates that a supplemental police report was presented and defendant
was aware of this report. The report indicated Mickens had stated that he had ordered a person,
who may have been defendant, to leave the entrance of the White Castle on October 28, 2002;
however, there was no information regarding any beating or force used against defendant. There
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was no further disclosure concerning rebuttal witnesses.
This clearly violates the goal of discovery to eliminate surprises and unfairness.
However, the goal of affording an opportunity to investigate was served, as the State argues, by
the disclosure of Mickens as a possible witness and the supplemental police report that indicated
he may have kicked defendant out of the White Castle three days before the shooting.
Furthermore, defense counsel could have sought a continuance when Mickens was presented to
fully investigate him and his possible testimony.
More important, as the State points out, the trial court considered this argument when
raised within defendant’s argument based on newly discovered evidence. The trial court
reiterated that it based its determination of defendant’s sanity on the medical reports directly
surrounding the incident and the testimony and video evidence provided regarding the shooting.
The trial court stated that Mickens’ testimony went to motive and it was immaterial to the finding
of sanity. As described above, the trial court finding was not against the manifest weight of the
evidence and whether Mickens’ testimony was excluded or discredited would not alter the sanity
determination. Accordingly, defendant has not shown prejudice and a new trial is not warranted.
D. Ineffective Assistance of Counsel
Next, defendant asserts that he suffered from ineffective assistance of trial counsel.
Defendant argues that defense counsel was ineffective for her failure to present additional
evidence of defendant’s legal insanity and for her failure to impeach Mickens. In addition,
defendant argues that defense counsel failed to notice that the trial court and the State both
inferred, contrary to the evidence, that defendant stole the gun before the alleged beating.
On appeal, this court reviews such claims under the two-pronged test set forth in
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Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068
(1984), which our supreme court recognized in People v. Albanese, 104 Ill. 2d 504, 526-27
(1984). Under Strickland, to determine whether there has been a violation of the defendant's
sixth amendment right to effective assistance of counsel, the defendant must show: (1) that his
counsel's "representation fell below an objective standard of reasonableness"; and (2) that there is
a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068;
People v. Shatner, 174 Ill. 2d 133, 144 (1996). If such a claim can be disposed of on the ground
that the defendant did not suffer sufficient prejudice, the court need not consider the first prong.
People v. Pacheco, 281 Ill. App. 3d 179, 183 (1996), citing People v. Eddmonds, 143 Ill. 2d 501,
512 (1991).
Trial counsel has the right to make ultimate decisions with respect to trial strategy and
tactics and these decisions are ordinarily not reviewable. People v. Adams, 338 Ill. App. 3d 471,
477 (2003). If we do review an attorney’s actions, we must show great deference to the
attorney’s decisions as there is a strong presumption that an attorney has acted adequately.
Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. A defendant is entitled to
competent, not perfect, representation. People v. Palmer, 162 Ill. 2d 465, 475-76 (1994). The
fact that an attorney undertook poor strategy or that another attorney would have handled the
situation differently does not in itself render the representation ineffective or inadequate.
Palmer, 162 Ill. 2d at 476.
As we noted above, and the dissent has also ably covered, defense counsel presented a
quality case on behalf of defendant. We held above that, based on a review of the medical
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history immediately surrounding the shooting, a reasonable person could conclude that defendant
was sane at the time of the shooting. An additional expert who reviewed the same evidence and
also evaluated defendant over a year after the shooting occurred would not overcome the trial
court’s findings. Furthermore, as stated above, the trial court did not rest its opinion on Mickens’
testimony or any alleged inference contrary to the evidence. The trial court reiterated this in
denying defendant’s motion to reconsider. Accordingly, while counsel may have committed
some errors in trial strategy or tactics, it cannot be said that defendant suffered sufficient
prejudice that the result of the proceeding would have been different and we deny his claim of
ineffective assistance of counsel.
E. Defendant’s Fitness for Sentencing
Defendant argues that the trial court erred in finding defendant fit to be sentenced and,
despite the failure to object at trial or raise the issue in a posttrial issue, this court should review
this issue as plain error. See 134 Ill. 2d R. 615(a). Defendant contends that his rambling 11-page
monologue during his sentencing hearing presented a bona fide issue of his fitness for
sentencing. He contends that when a bona fide issue of fitness exists, the trial court has a duty to
hold a fitness hearing. People v. Guttierez, 271 Ill. App. 3d 301, 304 (1995).
Fitness for trial is a fundamental right; therefore, when this issue is waived as in this case,
review under the plain error doctrine is proper. People v. Meyers, 367 Ill. App. 3d 402, 409
(2006). While the trial court has a duty to order a fitness hearing if it determines a bona fide
issue of fitness exists, that determination rests within the discretion of the trial court. Meyers,
367 Ill. App. 3d at 409. If a reviewing court determines the trial court has made an error on this
issue, it may, only upon a review of the entire record, determine that the error was harmless
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beyond a reasonable doubt. People v. Contorno, 322 Ill. App. 3d 177, 180 (2001).
We agree with the State that no error occurred in this case and, even if such an error had
occurred, it was harmless beyond a reasonable doubt. As detailed above, defendant underwent
numerous evaluations to determine his fitness for trial, ultimately resulting in a finding that he
was fit for trial with medication in February 2004. The trial was completed in November 2004
and the sentencing hearing was conducted in September 2005.
Defense counsel did not request another fitness hearing or raise this concern before
sentencing. Defense counsel reiterated defendant’s request to be found innocent by reason of
insanity after his 11-page monologue and argued that his “speech speaks for itself” and asked for
leniency. The factors relevant to whether this constitutes a bona fide doubt as to defendants
fitness are (1) the defendant’s demeanor and rationality at trial; (2) counsel’s statements
concerning defendant’s competence; and (3) any prior medical determinations of fitness. People
v. Hanson, 212 Ill. 2d 212, 223 (2004).
The record indicates that, for the first issue, only the rationality of portions of defendant’s
speech during the sentencing hearing are in question. Defendant’s statement was rambling and
fell into areas of what appear to be delusional thoughts. While it could be considered a sign that
he lacked fitness, it also could be viewed as in line with the trial court’s early finding that he was
guilty but mentally ill. For the second factor, defense counsel did not raise any new concerns
during the hearing, but stood only on defendant’s statement as proof itself that he was not sane.
Finally, the prior medical opinion presented before trial found defendant fit with medication. It
cannot be said that the trial court abused its discretion in determining defendant’s sentence and
not ordering a new fitness hearing.
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Furthermore, as noted by the State, the trial court considered all aggravating and
mitigating factors and handed down the minimum sentence. In fact, the trial court noted
defendant’s mental illness and hope of rehabilitation as mitigating factors. Accordingly, any
alleged error would be harmless as defendant could not achieve a better result than the minimum
sentence.
F. Sentence Credit
Finally, defendant argues, and the State concedes, that the mittimus incorrectly states that
defendant is entitled to 1,049 days’ credit for time served as of September 16, 2005. The correct
calculation was that defendant was entitled to 1,050 days. This court has the authority pursuant
to Supreme Court Rule 615(b)(1) to directly order the clerk of the circuit court to make the
necessary corrections to the mittimus. 134 Ill. 2d R. 615(b)(1); People v. Williams, 368 Ill. App.
3d 616, 626 (2006). Accordingly, this court directs the clerk to amend the mittimus to reflect
1,050 days’ credit for time served as of September 16, 2005.
III. CONCLUSION
For the foregoing reasons, we affirm the decision of the trial court. The mittimus shall be
corrected to reflect 1,050 days’ credit for time served by defendant as of September 16, 2005.
Affirmed, and mittimus corrected.
CAMPBELL, J., concurs.
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JUSTICE NEVILLE, dissenting:
The State's evidence established that defendant fatally shot the victim. The defendant's
psychiatrists testified and opined, one during the pretrial proceedings and the other during the trial,
that the defendant was insane at the time of the shooting and that he lacked substantial capacity to
appreciate the criminality of his actions. The State did not present a psychiatrist or any other
evidence, during its case in chief or its rebuttal, that rebutted the defendant's evidence of insanity;
therefore, the defendant proved by clear and convincing evidence that he was insane at the time of
the murder. Accordingly, I respectfully dissent because the defendant proved that he was insane at
the time of the murder.
THE PRETRIAL PROCEEDINGS
In order to determine if the trial court's finding, that the defendant was not insane (did not
appreciate the criminality of his conduct) at the time of the murder but was guilty and suffering from
a mental illness (did appreciate the criminality of his conduct), was against the manifest weight of
the evidence, we must examine the evidence introduced at the trial. On May 2, 2003, Dr. Fidel
Echevarria, a staff psychiatrist from Forensic Clinical Services,2 opined that the defendant was unfit
to stand trial and that the defendant was suffering from significant psychotic processing and was
subject to involuntary hospitalization. The trial court relied on Dr. Echevarria’s first unfitness
2
Forensic Clinical Services is one of the circuit court of Cook County’s 13 non-judicial
offices. It (1) provides comprehensive and diagnostic clinical services to the court and related
agencies under the court's jurisdiction, (2) employs psychiatric, psychological and social service
methods in the delivery of clinical services, (3) submits clinical opinions and recommendations
to the court, and (4) provides expert witness testimony where mandated.
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opinion. On September 4, 2003, Dr. Echevarria opined that the defendant was fit to stand trial with
medication. The trial court relied on Dr. Echevarria’s second fitness opinion and found the
defendant fit to stand trial with medication.
On January 8, 2004, Dr. Echevarria opined that the defendant was legally insane at the time
of the alleged offense. The opinion was based on “the documented evidence that the defendant was
manifesting psychotic thought processing and behaviors at about the time of his arrest.” Dr.
Echevarria further opined that, given the defendant’s “psychiatric history and the fact that the
defendant was noncompliant with medication treatment, it is more likely than not that at the time of
the alleged incident, the defendant would not have had capacity to appreciate the criminality of his
alleged actions due to the presence of psychotic thoughts which directed his behavior.” Finally, the
trial court refused to rely on Dr. Echevarria's opinion that the defendant was insane at the time of the
offense.
The State asked the trial court for a second opinion, and the judge ordered Forensic Clinical
Services to reexamine the defendant and express an opinion on his sanity at the time of the offense.
On May 3, 2004, Dr. Roni Seltzberg, a staff psychiatrist from Forensic Clinical Services, opined that
the defendant was legally insane at the time of the alleged offense.
After Dr. Echevarria and Dr. Seltzberg opined that the defendant was insane at the time of
the offense, the State requested that Dr. Henry, the third psychiatrist from Forensic Clinical Services,
evaluate the defendant’s sanity at the time of the offense. The trial court granted the State's request,
but the doctor never testified at the trial.3
3
At sentencing, defendant's counsel stated that Dr. Henry opined that the defendant was
insane at the time of the offense.
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THE STATE’S CASE
The State called two White Castle employees and two restaurant patrons to testify about the
events surrounding the shooting. The State’s witnesses testified that the defendant walked up to the
victim, shot him numerous times, and fled the restaurant. In addition, Tommy Marsh, one of the
patrons, testified that he did not see the defendant engage in any bizarre behavior. Officer Joseph
Carroll, one of the arresting officers, testified that the defendant did not show any confusion as to
who the officers were. Officer Daniel O’Connor, one of the officers who was present when the
defendant was brought back to the restaurant, testified that he did not notice the defendant engage
in any bizarre behavior. The State also played the White Castle security tape. According to Detective
Lazzara, the defendant got up and stood by the door facing the street. Approximately five minutes
later, the defendant moved from the entrance, stood near the security guard, and began walking and
shooting. Finally, the defendant exited the restaurant and ran across the parking lot.
THE DEFENDANT’S CASE
Dr. Seltzberg testified that, at the time of trial, she had worked full time at the Forensic
Clinical Services as a forensic psychiatrist for 12 years. The first time she saw the defendant was
in 1998 when he was referred for an evaluation on a misdemeanor assault charges. Dr. Seltzberg
opined that the defendant had a psychotic disorder and was prescribed an antipsychotic medication.
The second time she saw the defendant was on February 13, 2004, and then on April 22,
2004. Prior to her February 13, 2004, evaluation, she reviewed a number of defendant’s documents:
(1) a 1997 arrest report that indicated defendant had paranoid ideas and delusions and indicated that
the defendant was discharged from the United States Marines because of a mental illness; (2) her
previous report from1998; (3) the medication profile from Cermak Health Services stating that the
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defendant was prescribed antipsychotic medication; (4) Dr. Echevarria’s reports in which he opined
that the defendant was fit with medication to stand trial but was insane at the time of the offense; (5)
the police reports from the instant shooting; and (6) a police report alleging that the defendant might
have been the person who was asked to leave the restaurant prior to the shooting.
After meeting with defendant on February 13, 2004, Dr. Seltzberg reviewed the Veterans
Administration (VA) Hospital records from 1984 which indicated that the defendant was delusional
and believed that the Central Intelligence Agency and Federal Bureau of Investigation were trying
to sabotage him and that he had auditory hallucinations. She also reviewed reports indicating that
the defendant was admitted to the hospital in 1993, 1996, and 1998. Dr. Seltzberg reviewed the
McNeal Hospital records which indicated that the defendant was in the hospital from July 18 until
July 26, 2001, and diagnosed with paranoid schizophrenia. After the defendant was released from
McNeal Hospital, he was transferred to the VA for outpatient treatment. The VA records noted that
defendant stopped taking his medications. Therefore, the defendant was prescribed antipsychotic
medications and released.
Dr. Seltzberg also testified that she reviewed the August 2002 VA records, which indicated
that the defendant had been absent for three months but was taking his medication and doing well.
The doctor also noted that “for years” the defendant did not comply with treatment and only became
compliant when he was in trouble with the law. However, Dr. Seltzberg testified that the VA records
indicated that the defendant went into remission with "Alansopin"4 an antipsychotic agent.
Dr. Seltzberg testified that during her meeting with the defendant on April 22, 2004, she
asked the defendant to talk about the incident leading to his arrest. The defendant said he had not
4
"Alansopin" is the phonetic spelling of the drug.
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been taking his medication because it made him drowsy. The defendant also told Dr. Seltzberg that,
after he felt threatened by a man with a tattoo, he climbed through a window at his father’s house
and took a gun for protection. On the day of the shooting, he began to feel sleepy as he drank his
coffee at the White Castle. The defendant reported that he observed the security guard and the
employees “signaling” and thought they had done something to his coffee. The defendant felt
threatened because the security guard had a gun, and he shot the guard in the head. The defendant
ran toward the mosque for asylum and kicked the gun so the police would not get it.
Dr. Seltzberg diagnosed the defendant as chronic paranoid schizophrenic. She testified that
there was no evidence of malingering; in fact, the defendant tried to minimize or deny any psychotic
behaviors. She opined that the defendant was legally insane at the time of his offense because his
prior history was consistent with violent and aggressive behavior, that there was evidence of
schizophrenia, and that he was acutely psychotic at the time of the incident.
THE STATE'S REBUTTAL
The State called Melvin Mickens, a Chicago police officer who also worked as a security
guard, and Larry McCullum, the defendant’s father, in rebuttal.
ANALYSIS
In Illinois, “[a] person is not criminally responsible for conduct if at the time of such conduct,
as a result of mental disease or mental defect, he lacks substantial capacity to appreciate the
criminality of his conduct.” 720 ILCS 5/6-2(a) (West 2002). A person who was not insane at the
time of the commission of the criminal offense, but was suffering from a mental illness, may be
found guilty but mentally ill. 720 ILCS 5/6-2(c) (West 2002). In the Criminal Code “mentally ill”
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means
“a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the
commission of the offense and which impaired that person's judgment, but not to the extent that he
is unable to appreciate the wrongfulness of his behavior.” 720 ILCS 5/6-2(d) (West 2002). When
the defendant asserts the affirmative defense of insanity, the court may find the defendant guilty but
mentally ill if the court finds: (1) that the State has proved beyond a reasonable doubt that the
defendant is guilty of the offense charged; (2) that the defendant has failed to prove his insanity; and
(3) that the defendant has proved by a preponderance of the evidence that he was mentally ill at the
time of the offense. 725 ILCS 5/115-3(c) (West 2002). The defendant must prove by clear and
convincing evidence that he is not guilty by reason of insanity. 720 ILCS 5/6-2(e) (West 2002).
In this case, the trial court found that the defendant failed to prove his insanity, by clear and
convincing evidence, as required by section 115-3(c) of the Code of Criminal Procedure of 1963.
725 ILCS 5/115-3(c) (West 2002). A fact finder’s resolution of the issue of the defendant’s sanity
at the time of the offense will not be disturbed on appeal unless it is contrary to the manifest weight
of the evidence. People v. Urdiales, 225 Ill. 2d 354, 428 (2007), citing People v. Johnson, 146 Ill.
2d 109, 128-29 (1991). A finding is against the manifest weight of the evidence if the opposite
conclusion is clearly evident or if the finding is unreasonable, arbitrary, or not based on the evidence
presented. People v. Deleon, 227 Ill. 2d 322, 332 (2008), citing In re D.F., 201 Ill. 2d 476, 498
(2002).
After reviewing the State's case in chief, the defendant’s case, and the State's rebuttal, it is
clear that this is not a case (1) where there is substantial disagreement among the testifying experts
(see People v. Baker, 253 Ill. App. 3d 15, 28 (1993), citing People v. Williams, 201 Ill. App. 3d 207,
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216-17 (1990)), (2) where Dr. Seltzberg’s opinion suffered from a failure to consider relevant
authorities or information concerning the defendant (see Baker, 253 Ill. App. 3d at 28, citing
Williams, 201 Ill. App. 3d at 218), or (3) where Dr. Seltzberg ignored information that was contrary
to her opinion (Baker, 253 Ill. App. 3d at 28, citing People v. Jackson, 170 Ill. App. 3d 77 (1987)).
Indeed, Dr. Seltzberg’s opinion that the defendant was insane at the time of the murder was
supported by Dr. Echevarria, who testified during the pretrial proceedings. It should be noted that
both psychiatrists were employed by the Cook County Forensic Clinical Services office, that they
examined the defendant pursuant to court order, and that their opinions were based upon a
reasonable degree of medical certainty. See Baker, 253 Ill. App. 3d at 28 (noting that the experts
were bolstered by the fact that they were employed by the psychiatric institute). I note that the trial
court judge qualified Dr. Seltzberg as a medical expert, relied on Dr. Seltzberg’s opinion that
defendant was a chronic paranoid schizophrenic, and then, although the medical expert’s testimony
was unrebutted and there was no medical evidence in the record to support the court’s conclusion,
rejected Dr. Seltzberg's opinion that defendant was insane at the time of the murder and lacked
substantial capacity to appreciate the criminality of his conduct. See People v. Wilhoite, 228 Ill. App.
3d 12, 28 (1991), quoting People v. Arndt, 86 Ill. App. 3d 744, 749 (1980) (“ ‘it does not seem that
the [trial] court questioned the credibility of the psychiatrists, but rather that it drew different
conclusions than they did.’ ”); see also People v. Garcia, 156 Ill. App. 3d 417, 424 (1987); Baker,
253 Ill. App. 3d at 28.
The trial court's finding (1) that defendant was not insane, and (2) that defendant did not lack
substantial capacity at the time of the murder to appreciate the criminality of his conduct is contrary
to the following evidence: (1) Dr. Seltzberg's unrebutted testimony and defendant's medical records,
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which established that the defendant's psychosis went into remission with an antipsychotic
medication; (2) Dr. Seltzberg's unrebutted testimony that defendant told her he had not been taking
his medication; and (3) Dr. Seltzberg's unrebutted testimony that defendant was insane on October
31, 2002. I believe that the psychiatrist's unrebutted testimony and the medical records established
beyond a reasonable doubt that the defendant was insane at the time of the murder and that the
defendant lacked the substantial capacity to appreciate the criminality of his conduct. I submit, given
the unrebutted testimony from the psychiatrist, that the defendant proved by clear and convincing
evidence that he was not guilty by reason of insanity. Therefore, the trial judge’s finding that the
defendant was mentally ill and appreciated the criminality of his behavior was against the manifest
weight of the evidence because the finding was not based on any medical evidence in the record.
CONCLUSION
In conclusion, in order for the trial court to find the defendant guilty but mentally ill, section
115-3 of the Code of Criminal Procedure required the trial court to find that the defendant failed to
prove his insanity. 725 ILCS 5/115-3 (West 2002). Dr. Seltzberg's opinion testimony that the
defendant was insane at the time of the murder was unrebutted, therefore, the defendant proved his
insanity with his medical records and with Dr. Seltzberg's clear and convincing unrebutted testimony.
Because the defendant proved his insanity, the trial court's findings, that the defendant was mentally
ill and appreciated the criminality of his conduct, were against the manifest weight of the evidence.
Accordingly, I would (1) reverse the judgment of the trial court, and (2) remand the case to the trial
court with directions (a) to enter a judgment of not guilty by reason of insanity, and (b) to hold a
hearing, pursuant to the Mental Health and Developmental Disabilities Code 405 ILCS 5/1-100 et
seq. (West 2002), to determine whether the defendant is subject to involuntary admission. 725 ILCS
-36-
1-05-3260
Please Use5/115-3(b) (West 2002).
Following
Form:
REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
Complete
TITLE
of Case THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
BRIAN McCULLUM,
Defendant-Appellant.
Docket No.
COURT
Opinion No. 1-05-3260
Filed
Appellate Court of Illinois
First District, FOURTH Division
JUSTICES October 15, 2008
(Give month, day and year)
PRESIDING JUSTICE MURPHY delivered the opinion of the court:
Campbell, J., concur [s]
APPEAL from Neville, J.,
the Circuit
Ct. of Cook dissent[s]
Cty;
The Hon.
________,
Judge Lower Court and Trial Judge(s) in form indicated in the margin:
Presiding.
The Honorable Evelyn B. Clay , Judge Presiding.
For
APPELLANTS,
John Doe,
of Chicago.
For
APPELLEES, Indicate if attorney represents APPELLANTS or APPELLEES and include
Smith and attorneys of counsel. Indicate the word NONE if not represented.
Smith of Attorneys for Appellant: Michael J. Pelletier, Deputy Defender
Chicago, Patrick E. Cassidy, Appellate Defender
Joseph 203 N. La Salle Street, 24th Floor,
Brown, (of
Counsel) Chicago, IL 60601
Phone: (312) 814-5472
Also add
attorneys Attorneys for Appellee: Richard A. Devine, Cook County State’s
for third- Attorney
party
appellants James E. Fitzgerald, Peter Fischer,
or Assistant State’s Attorneys, Of Counsel
appellees. Room 309, Richard J. Daley Center,
Chicago, IL 60602
-37-
1-05-3260
Phone: (312) 603-1880
(USE REVERSE SIDE IF NEEDED)
-38-