People v. McBride

• Decision Date: 23 September 1970
• Docket Number: Gen. No. 53922
• Citation: 264 N.E.2d 446,130 Ill.App.2d 201
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James McBRIDE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 446

264 N.E.2d 446

130 Ill.App.2d 201

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James McBRIDE, Defendant-Appellant.

Gen. No. 53922.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 23, 1970.

Patrick T. Murphy, Chicago, for defendant-appellant; Freddy S. Meinfelder, Nancy G. Grossman, of counsel.

Edward V. Hanrahan, Chicago, for plaintiff-appellee; Elmer C. Kissane, Patrick T. Driscoll, Jr., Chicago, of counsel.

LEIGHTON, Justice.

In two separate indictments, defendant was charged with one murder and two armed robberies. After a jury trial, he was convicted of voluntary manslaughter and both robberies. The court imposed concurrent sentences of two to ten years.

In this appeal it is contended that (1), the trial judge erred in not allowing a psychologist (in testimony before the jury), to answer hypothetical questions concerning defendant's sanity; (2), the trial judge erred in refusing to instruct the jury on the subject of sanity; (3), the trial judge erred in giving the jury an instruction defining murder when the evidence could not support a conviction for that offense; (4) the trial judge erroneously instructed the jury on the subject of self-defense; and (5), defendant was prejudiced by final arguments in which the assistant states attorneys made a personal attack on defendant's court-appointed counsel.

On August 27, 1967, at approximately 6:15 A.M., Preston Fox was the night clerk in the Nicollet Hotel in Chicago. Present at the time was a self-described prostitute, Mrs. Helen Barnes, who lived in the hotel and was the maid. Defendant entered the hotel. Moments later, Fox and defendant exchanged words, followed by an altercation in which each man struck the other with his hand. Fox drew a .38 caliber gun from his pocket. The two men struggled for the gun. As they did, Mrs. Barnes stepped into a room nearby. In the struggle, the men moved out of Mrs. Barnes' vision. When they returned within Mrs. Barnes' view, she saw the gun in defendant's right hand. The two men again struggled out of Mrs. Barnes' vision. She heard the gun go off. Mrs. Barnes then heard Fox say, 'You did it.' He fell to the floor and died a short time after from a wound caused by a bullet that entered his left chest.

With Fox's gun in his possession, defendant ran out of the hotel and went six blocks north and west to a filling station at 327 West Chicago Avenue. A taxicab was being checked by the station attendant, Lester Woodruff. Standing nearby was the driver, Randall Ehardt. Using the gun, defendant robbed both men, taking $17.00 from Woodruff and between $6.00 and.$7.00 from Ehardt. Defendant then ordered Woodruff to lie on the ground near some gas pumps. He ordered the cab driver to drive him away. Woodruff heard defendant say, 'I've killed one man and another doesn't make any difference.' After the cab left, Woodruff called the police.

When Ehardt drove from the filling station, defendant, seated in front, held him at gun-point. The cab went a short distance north, then east. He then told Ehardt '(t)hat he wanted to go to the County Hospital Blood Bank.' At one intersection, an illegal left turn by Ehardt (ordered by defendant) attracted a police car. Ehardt attempted to comply with the officers' command to stop; but defendant told him 'to take off.' A short distance away the cab was stopped by a road block. Defendant was forced out, arrested and searched. On his person $23.00 in currency were found. In the cab was found the gun defendant took from Preston Fox. It and a bullet taken from the body of Fox were admitted in evidence. Defendant, through his counsel, stipulated that the bullet was fired by the gun.

In his defense defendant called Doctor Joseph Garvin, a psychologist. His testimony disclosed that more than eleven months after the events in question he examined defendant and subjected him to psychological tests. Doctor Garvin was asked whether he could 'tell the ladies and gentlemen of the jury and the court something about McBride's personality and makeup.' There was no objection. In proceedings outside the jury's presence, the assistant states attorney argued that the question asked Doctor Garvin would have elicited irrelevant evidence. He argued that a question concerning defendant's personality or his personality traits could not raise an issue concerning sanity. After hearing counsel, the trial judge sustained the state's objection. Defendant's attorney requested and was given leave to make an offer of proof by questioning Doctor Garvin outside the presence of the jury.

In answers to questions put to him by defense counsel, the court and the assistant states attorney, Doctor Garvin said that in his opinion defendant, at the time of the offenses charged in the two indictments, was not suffering from any mental disease or mental defect. A hypothetical question was asked Doctor Garvin. Then, before he could answer, he was asked:

THE COURT: Are there enough factors there for you to conclude?

A. There really aren't. We are asking about an act here which could have numerous interpretations, it might indicate that the man was not sane or thinking rationally, but it might indicate many other things, I do not know his purpose or--

MR. MURPHY: Q. By the fact you say there might be this, that and the other thing, would you characterize these thoughts in your own mind as a doubt?

A. I think you could say that, yes, there would be something for further exploration, but I could not come to any conclusion, there is no one conclusion that follows from those facts is the point I want to make.

Q. Doctor, I'm not asking you on the sanity issue at all.

A. Okay, then I would have a doubt, I would have some doubt.

Counsel for the defendant then told the trial judge he wanted the jury to hear Doctor Garvin's answer. There was an objection by the State. The objection was sustained. It is this ruling that forms the basis for defendant's first contention. Defendant argues that the trial judge erred in precluding Doctor Garvin from answering the hypothetical question in testimony before the jury.

This contention is without merit. Doctor Garvin's doubt concerning the sanity of a hypothetical person was not material It would have had no bearing on defendant's sanity at the time of the alleged offenses. It would not have been evidence that as a result of mental disease or mental defect defendant lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law when he committed the offenses charged against him. In contrast with People v. Noble, 42 Ill.2d 425, 248 N.E.2d 96, there was no medical evidence on which the testimony of Doctor Garvin, a psychologist, could rest. Under these circumstances, the trial judge's ruling was correct. Compare People v. Pecora, 107 Ill.App.2d 283, 246 N.E.2d 865.

Defendant's second contention is that the trial judge erred in refusing to give the jury two of his instructions concerning sanity. Defense instruction No. 13:

Every man is presumed sane until this presumption is overcome by evidence sufficient to raise a reasonable doubt of sanity at the time of the crime. The presumption of sanity is overcome by evidence, tending to prove insanity of accused, which is sufficient to raise a reasonable doubt of sanity at time of commission of act for which accused is sought to be held accountable, and when that is done presumption of sanity ceases and prosecution is then required to prove sanity of accused beyond a reasonable doubt, as a necessary element of crime charged (sic) * * *

Instruction No. 14:

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 either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

When these instructions were offered, the State objected on the ground that no evidence raised the issue of defendant's sanity. Defendant's counsel argued that both Lester Woodruff and Randall Ehardt testified that when defendant robbed them, he acted irrationally. Counsel urged that the testimony of the two lay witnesses and that of Doctor Garvin raised the issue of defendant's sanity at the time of the offenses. After hearing argument, the trial judge refused to give the two instructions.

Under our law, '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 either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The terms 'mental disease or mental defect' do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.' Ill.Rev.Stat.1967, ch. 38, sec. 6--2(a)(b). The law presumes all men are sane. People v. Kenzik, 22 Ill.2d 567, 177 N.E.2d 162. Because of this presumption, to raise an issue concerning sanity, there must be some evidence that tends to prove insanity. People v. Munroe, 15 Ill.2d 91, 98, 154 N.E.2d 225. This being so, there must have been such evidence before defendant was entitled to any instruction on...