People v. Stack

• Decision Date: 15 March 1993
• Docket Number: No. 1-87-2212,1-87-2212
• Citation: 244 Ill.App.3d 166,613 N.E.2d 1175
• Parties: , 184 Ill.Dec. 583 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard STACK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1175

613 N.E.2d 1175

244 Ill.App.3d 166, 184 Ill.Dec. 583

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard STACK, Defendant-Appellant.

No. 1-87-2212.

Appellate Court of Illinois,

First District, First Division.

March 15, 1993.

Randolph N. Stone, Public Defender of Cook County, Chicago (Stephen L. Richards, Asst. Public Defender, of counsel), for defendant-appellant.

Jack O'Malley, Cook County State's Atty., Chicago (Renee Goldfarb, Carol L. Gaines, Janet C. Mahoney, Michele I. Lavin, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice BUCKLEY delivered the opinion of the court:

In People v. Stack (1984), 128 Ill.App.3d 611, 83 Ill.Dec. 832, 470 N.E.2d 1252 (Stack I), this court reversed and remanded on various grounds defendant Richard Stack's convictions and concurrent natural life sentences imposed for the brutal murders of his wife and infant son. Our supreme court affirmed in part the opinion of this court in People v. Stack (1986), 112 Ill.2d 301, 97 Ill.Dec. 676, 493 N.E.2d 339 (Stack II), and remanded the case for retrial. The circuit court held a second jury trial which resulted in defendant being found guilty again. Because we believe the State has denied defendant a fair trial a second time, we reverse and remand for a new trial.

For purposes of brevity, we adopt, with one major exception discussed below, the recitation of facts given by this court in Stack I. While no witnesses' testimony will be the same in two different trials, and while witnesses testified in this case which did not testify in Stack I, the recitation of facts in Stack I is sufficiently similar for purposes of this appeal.

The exception we note is the testimony of John Bohr, whom the State called during its rebuttal case. Bohr did not testify at defendant's first trial. We summarize his testimony as follows:

According to Bohr, while imprisoned at the Maynard Psychiatric Unit of the Illinois Department of Corrections on charges of violation of probation, theft and aggravated battery, he and defendant had daily conversations regarding the deaths of defendant's wife and infant son. Defendant informed Bohr on how to go about acting insane so as to get a not-guilty-by-reason-of-insanity (NGRI) verdict. Defendant told Bohr that Bohr should walk along and talk aloud as if he were talking to someone who was not there, tell the doctors that he (Bohr) sees devils and demons coming out of people and also to stand in the yard singing to himself. On more than one occasion, defendant told him that his plan was to get a NGRI verdict, then go to Chester Mental Health Facility and start acting normal so he could be released.

Bohr testified that before the murders, defendant's wife was nagging defendant about drinking too much and his inability to hold a job. Defendant told Bohr he just exploded and stabbed his wife to death with either a broom or pool stick and threw his son against the wall because he got in the way. Defendant told Bohr he knew he was in trouble so he went to the window where he yelled to the police that he had been waiting and had just killed his wife and child. After leaving Maynard, Bohr wrote a letter to then Cook County State's Attorney Richard M. Daley and repeated in the letter the conversations he had with defendant.

I.

We first address defendant's contention that the State failed to rebut his insanity defense by proof beyond a reasonable doubt. In Stack I, we rejected defendant's sufficiency argument on the ground that the evidence presented a classic question of fact to be resolved by a jury after a fair trial. As noted, the evidence the State presented to counter defendant's insanity defense in the two trials was substantially the same; Bohr's testimony only made the State's case stronger. Accordingly, we again hold that the evidence presented in the second trial raised a question of fact which the jury was entitled to resolve against defendant.

II.

We next address whether defendant was denied a fair trial when, according to defendant, the prosecution repeatedly told the jury that defendant would be "automatically released" and "free to kill again" if the jury returned a NGRI verdict. Defendant's claim of prosecutorial error is predicated upon the following discourse during the State's rebuttal argument:

"MR. DI BENNEDETTO [Assistant State's Attorney]: John Bohr. What did he tell you about this guy? He told you that this is what the defendant said. He's going to go back, get found not guilty by reason of insanity, go to Chester, and get out. That's what the defendant said.

MR. KUNZ [Defense attorney]: Objection.

MR. DI BENNEDETTO: He's going to take the pool cues--

THE COURT: Overruled. The jury heard the testimony.

MR. DI BENNEDETTO: He's going to take these pool cues right out of here and go chalk up another one.

MR. KULL [Defense attorney]: Objection.

MR. DI BENNEDETTO: That's the chance you have to take--

MR. KULL: Objection.

THE COURT: Sustained.

MR. DI BENNEDETTO: From a guy like this.

THE COURT: Sustained, counsel.

* * * * * *

MR. DI BENNEDETTO: Ladies and gentlemen, you have to end the mission because the mission isn't over for Mr. Stack, and the mission that he's on won't be over until he does what he told Bohr. He beats case by not guilty by reason of insanity, and he gets out the door after going to Chester.

MR. KULL: Objection.

THE COURT: Sustained.

MR. DI BENNEDETTO: That's his mission.

THE COURT: Sustained. The jury will be instructed to disregard the last comment.

MR. DI BENNEDETTO: Ladies and gentlemen, that's the mission that he laid out in that penitentiary. The only way you can stop that mission, the only way that you can win is not to let him win. He cannot beat this case. He could conform his conduct. He knew what he was doing. That's clear from the evidence. You can't let him win. The consequences are too severe."

The trial ended on this note.

We first address how our opinion in Stack I implicates our present analysis of the above comments. In Stack I, this court cited as error the prosecutor's repeated statement during closing argument that "society would 'have to live with' " defendant if the jury allowed him to escape responsibility. Defendant there contended that the statements misled the jury into believing that if he was acquitted for reasons of insanity, he would be returned immediately to society.

Relying on People v. Wilson (1983), 120 Ill.App.3d 950, 76 Ill.Dec. 427, 458 N.E.2d 1081, we ruled over a dissent that the complained of remarks were error. This ruling was not affected by the supreme court's opinion in Stack II and, accordingly, became the law of the case. (See Stack, 112 Ill.2d at 314, 97 Ill.Dec. at 682, 493 N.E.2d at 345.) In this appeal, defendant contends that notwithstanding this court's ruling in Stack I, the prosecution violated the law of the case by repeating the comments.

We believe the law of the case doctrine has limited application to the comments in question in light of Bohr's testimony. Under the doctrine, where the evidence on a subsequent appeal is the same as that on the first or prior appeal, or substantially so, the adjudications of the prior appeal become the law of the case. (People v. Lyles (1990), 208 Ill.App.3d 370, 376, 153 Ill.Dec. 438, 442, 567 N.E.2d 396, 400.) We believe Bohr's testimony, which was not present in Stack I, requires that we distinguish Stack I and independently assess whether the prosecutorial comments in question constituted improper comment on the consequences of a NGRI verdict.

Although we distinguish Stack I on account of Bohr's testimony, we nevertheless hold that the State has again improperly commented on the consequences of a NGRI verdict. Contrary to the State's belief, Bohr's testimony did not give the prosecution a license to arouse fear in the minds of jurors that defendant could in fact walk the streets again if his "mission" were to succeed. Bohr's testimony was only relevant on the issue of defendant's sanity at the time of the crime. (See Ill.Rev.Stat.1979, ch. 38, par. 6-2 ("A person is not criminally responsible for conduct if at the time of such conduct * * *.").) To this end, the prosecution had every right to make the most of this testimony insofar as it related to defendant's sanity at the time of the murders. We believe the prosecution went well beyond this parameter, however, and instead used Bohr's testimony to hammer home the idea that only the jury's guilty verdict stood between defendant being free to kill again and being incarcerated. These types of comments could only play on an insanity jury's inherent fear that their verdict might set a dangerous man free.

To support our holding, we again cite People v. Wilson (1983), 120 Ill.App.3d 950, 960, 76 Ill.Dec. 427, 434, 458 N.E.2d 1081, 1088. Wilson prohibits prosecutorial comments which convey, implicitly or explicitly, that a jury's NGRI verdict may result in a defendant's release. See also People v. Alerte (1983), 120 Ill.App.3d 962, 76 Ill.Dec. 452, 458 N.E.2d 1106; People v. Brown (1982), 104 Ill.App.3d 1110, 60 Ill.Dec. 843, 433 N.E.2d 1081; cf. People v. Etten (1975), 29 Ill.App.3d 842, 847, 331 N.E.2d 270, 274-75, cert. denied (1976), 425 U.S. 994, 96 S.Ct. 2207, 48 L.Ed.2d 818; People v. Hering (1975), 27 Ill.App.3d 936, 944-45, 327 N.E.2d 583, 590-91.

Contrary to the State's assertion, the Wilson line of cases, which includes our prior ruling in Stack I, are nevertheless persuasive despite the fact that the prosecution here did not comment that defendant would be automatically released upon rendition of a NGRI verdict. The State claims that because the prosecutor only told the jury that defendant could be set free sometime down the road rather than right away, the prejudicial nature of the comments is lessened. We disagree as this purported distinction ignores the fact that the prosecutor clearly planted the seed that a NGRI verdict could set defendant free.

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