People v. Larsen

• Decision Date: 15 March 1977
• Docket Number: No. 60714,60714
• Citation: 361 N.E.2d 713,47 Ill.App.3d 9,5 Ill.Dec. 390
• Parties: , 5 Ill.Dec. 390 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond Scott LARSEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 713

361 N.E.2d 713 47 Ill.App.3d 9, 5 Ill.Dec. 390 PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Raymond Scott LARSEN, Defendant-Appellant. No. 60714. Appellate Court of Illinois, First District, Second Division. March 15, 1977.

[47 Ill.App.3d 11]

Page 715

[5 Ill.Dec. 392] James J. Doherty, Public Defender, Cook County, Chicago, for defendant-appellant; Richard D. Kharas, Asst. Public Defender, of counsel.

Bernard Carey, State's Atty., Cook County, Chicago, for plaintiff-appellee; Laurence J. Bolon, Nicholas A. DeJohn, Asst. State's Attys., and Patrick T. Driscoll, Jr., Sp. Asst. State's Atty., of counsel.

DOWNING, Presiding Justice.

Raymond Scott Larsen (hereafter defendant) was charged with the offense of murder. (Criminal Code of 1961, section 9--1; Ill.Rev.Stat.1971, ch. 38, par. 9--1.) Following a bench trial, defendant was found guilty as charged and was sentenced to a penitentiary term of from 100 to 300 years. From this conviction defendant appeals.

The major issue presented for review is whether defendant is entitled, upon his request, to the presence of counsel at a court-ordered pretrial psychiatric examination. The psychiatrist was designated by the state for the purpose of ascertaining defendant's sanity or insanity at the time of the offense where defendant, under discovery requirement, had notified [47 Ill.App.3d 12] the state that he intended to rely upon that affirmative defense at trial.

Pursuant to Supreme Court Rule 413(d) (Ill.Rev.Stat.1971, ch. 110A, par. 413(d)), the state filed a written pretrial motion for disclosure by defendant of the defense or defenses upon which defendant intended to rely at trial; in response, defendant notified the state that he intended to rely upon the defense of insanity at the time of the offense. Thereupon, pursuant to a provision of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1971, ch. 38, par. 115--6), the state moved to require defendant to undergo a psychiatric examination by a psychiatrist designated by the state, and the trial court allowed the motion. Defendant then requested that his counsel be present at the said examination, which request was refused.

Defendant contends that he was entitled to the presence of counsel at the said examination: (1) in order to protect his fifth amendment privilege against self-incrimination; (2) because the examination is a critical stage of the criminal proceeding under the sixth amendment; and (3) because Supreme Court Rule 413(b) (Ill.Rev.Stat.1971, ch. 110A, par. 413(b)) provides that counsel shall have the right to be present at physical or medical inspections of defendant's body. Defendant also contends that, in further violation of Supreme Court Rule 413(b), he was not properly notified of the said psychiatric examination; that the state failed to prove him Sane at the time of the offense beyond a reasonable doubt; and that his sentence was excessive.

Page 716

[5 Ill.Dec. 393] The state's case-in-chief established the following facts. On May 12, 1972, defendant was released from the Joliet Branch of the Illinois State Penitentiary on a three-day furlough for good behavior as an inmate of that institution. On May 17, 1972, Francis Casolari (hereafter decedent), age 16, went fishing after school in a forest preserve area known as Schiller Woods. His parents became concerned when decedent did not return home for dinner. The police were notified on that evening that the boy was missing. An exhaustive search of the Schiller Woods area was made. Decedent's dead body was found there by the police in the early morning hours of May 18, 1972.

At approximately 4:00 a.m. the next day, in another part of Schiller Woods, the police stopped a car operated by defendant, in which his brother, Gary Larsen, and a young woman were passengers. In open view, in the console area of the vehicle, the police observed a rifle, a hand pellet gun, and two containers of pellets. The individuals were placed in custody and taken to the police station. The weapons were subsequently established by the crime laboratory as being the ones which fired the twenty-three to twenty-five rounds of ammunition which killed decedent.

At the police station, defendant made an oral confession to an Assistant State's Attorney and several police officers. Defendant stated that he [47 Ill.App.3d 13] drove out alone to Schiller Woods on May 17, 1972. It was just before dark. Defendant parked his car in a parking area and removed the two weapons he had in the car. He then walked along a bridle path adjoining the Des Plaines River. He was looking for something to shoot when he observed decedent fishing from the river bank approximately 50 feet away. Defendant fired the rifle and shot decedent in the abdomen. Decedent fell, groaning and screaming. Defendant continued to fire until he was silent. Defendant then dragged the body into some shrubbery. He began to disrobe it, but became apprehensive when he heard people approaching. Defendant then ran to his car and left the area. He was not under the influence of alcohol or drugs at the time of the killing.

Defendant conceded at trial that he did the acts which caused the death of decedent. He raised only the affirmative defense of insanity at the time of the offense. ¹

Three lay witnesses were called on behalf of defendant: Darlene Jacobek, defendant's half-sister; Gary Larsen, his brother; and Grace Romagnoli, his maternal grandmother. Collectively, these witnesses testified as to the unsavory atmosphere in which defendant grew up. Jack Larsen, defendant's father, was a drunkard and ex-convict. He repeatedly threatened and beat defendant's mother, Nellie Larsen, and the children. From time to time, defendant stayed with his grandmother for a few days or weeks because 'he couldn't live at home'. Defendant, as a boy, lived in fear of his father. The family moved often because Jack was continually switching jobs, with varying periods of unemployment between jobs. At one point, Nellie and the three children left Jack to live with Mrs. Romagnoli. Jack threatened to kill her if she didn't return. Nellie and the children moved back. When defendant was 15 and his brother Gary was 13, they both moved in with their grandmother permanently. Their sister Darlene had previously done the same thing. When Nellie died on May 17, 1966, exactly six years before decedent's murder, defendant was severely affected. At the funeral, Jack accused him of causing his mother's death by always getting into trouble.

In addition, Gary testified that defendant began using drugs, including LSD heroin, and amphetamines, at the age of 11 or 12.

Page 717

[5 Ill.Dec. 394] When Gary saw [47 Ill.App.3d 14] defendant a few days after defendant had been released from the penitentiary in May of 1972, defendant had barbiturates in his possession and appeared to have taken some. Defendant was mumbling and laughing to himself, and did not appear to know what he was doing.

Defendant also called as an expert medical witness, Dr. Marvin Ziporyn, a psychiatrist. Ziporyn testified that he examined defendant on July 1, 1973 at the Cook County Jail. (Defendant had filed a motion for this examination and the motion had been allowed.) An evaluation of defendant's mental status was made by observing his physical mannerisms, tone of voice, gestures, and by a question and answer discussion. Prior to the examination, the witness was informed of the crime charged and that defendant had had difficulties with his father. Some of defendant's penal records were also made available to the witness.

Ziporyn made the general diagnosis that defendant was suffering from an organic brain syndrome associated with cerebral trauma. Defendant's condition was characterized as a post-traumatic personality disorder, defined as a change of personality which is a result of damage to the central nervous system. The witness further noted certain psychodynamic factors (defined as psychological factors in an individual which motivate that individual to behave in any of several different directions) which he found operative in defendant: (1) the presence of a severe castration anxiety; (2) the presence of a supreme degree of hostility and anger; (3) the presence of a pervasive depression; and (4) the presence of an addictive personality. The witness placed great importance on defendant's strong attachment to his deceased mother as the source of behavioral symptoms manifested after her death.

In response to a hypothetical question which described the background and behavior in evidence concerning defendant, Ziporyn testified that in his opinion the hypothetical man was suffering from a mental defect at the date of the killing. Although the hypothetical man had the capacity to appreciate the criminality of his conduct, the defect caused him to lack substantial capacity to conform his conduct to the requirements of the law.

On cross-examination, the witness related a conversation he had had on August 15, 1973 with the two Assistant State's Attorneys who tried the case below. In that conversation, Ziporyn told the prosecutors that defendant would have been able to conform his conduct to the requirements of the law in the absence of drug usage.

The witness further stated on cross-examination that he did not utilize any psychological tests, did not administer an electroencephalogram, did not have defendant examined by a neurologist, and did not administer any sodium pentothal to minimize falsity and malingering. On redirect [47 Ill.App.3d 15] examination, Ziporyn stated that there was no need for supportive testing or an electroencephalogram; the clinical material was so definitive that defendant was insane on May 17, 1972 that no substantiation was required.

In rebuttal, the State presented two lay witnesses and one expert medical witness to show that defendant had the capacity to conform his conduct at the time of the offense to the requirements of the...