People v. McCumber , 132 Ill. App. 3d 339 ( 1985 )

JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Roberta M. McCumber, was charged in a multicount indictment with murder, concealment of a homicidal death and obstructing justice. The indictment essentially alleged that the defendant shot and killed Jeffrey Williams and concealed his body. Following a change of venue from Peoria County to Du Page County, the cause proceeded to trial before a jury, which returned a verdict finding the defendant guilty but mentally ill, of voluntary manslaughter, concealment of a homicidal death and obstructing justice. A sentencing hearing was held, following which the defendant was sentenced to imprisonment for a term of 10 years for manslaughter and a consecutive three-year term for concealment. On appeal of the conviction and sentencing, the defendant urges that numerous errors occurred in circuit court proceedings.

The defendant met the decedent, Jeffrey Williams, in May 1976. For 2V2 years prior to May 19, 1983, they had lived together, and during that time, according to evidence adduced at trial, Williams had physically abused the defendant on hundreds of occasions. According to the defendant, May 19, 1983, was another of those occasions. On that date, Williams drove to St. Francis Hospital, where the defendant was just getting off work. As the defendant entered Williams’ car for a ride home, she noticed that Williams had been drinking and was angry. Upon arriving at the Peoria apartment they shared, Williams showed the defendant a gun he was carrying and began demanding that the defendant make certain changes in her life. The argument escalated as Williams choked the defendant and struck her on the head and legs. The defendant picked up the gun, and as Williams pushed her toward the bed in the apartment, the gun fired, striking Williams.

The defendant, trained as a nurse’s aide, felt for Williams’ pulse, and after three fast beats, there was nothing. Yet, loud gurgling noises continued to come from the body. The defendant, wanting the noise to stop, fired a second shot in Williams’ head. The defendant’s attempts to move the body were unsuccessful, it being too heavy, so she removed the legs from the torso, using a hatchet, a saw and surgical scissors. She then deposited the torso in a field of tall grass in nearby Woodford County, while she placed the legs in a plastic bag, and the bag in a dumpster at the Glenbrook Apartments.

On May 23, 1983, Williams’ body was discovered, and a police investigation followed which led to the arrest of the defendant. At the trial which followed, the defendant presented the testimony of two experts, Dr. Ziporyn, a psychiatrist, and Dr. Legan, a clinical psychologist, both of whom believed that the defendant was suffering from a mental disease and at the time of Williams’ shooting, she was unable to conform her conduct to the requirements of the law. The jury, apparently rejecting this testimony in part, found the defendant guilty, but mentally ill, of voluntary manslaughter, concealment and obstructing justice.

The defendant alleges that numerous errors occurred in the trial in the circuit court which require a reversal of the verdicts reached by the jury. First, she asserts that the State failed to prove beyond a reasonable doubt that she was sane at the time of the alleged offenses. The jury heard the testimony of Dr. Ziporyn and Dr. Legan to the effect that the defendant was suffering from a mental disease and was unable to conform her conduct to the requirements of the law. It also heard testimony from Dr. Chapman, a psychiatrist, and Dr. Colen, a psychiatrist, which disputed the conclusion that the defendant was unable to conform her conduct to the requirements of the law. Finally, the jury heard the testimony of Jan Seroka, a unit clerk of St. Francis Hospital, who observed that the defendant seemed completely normal at work at the time of the offense and thereafter. The determination of the defendant’s sanity will not be disturbed unless it is so palpably erroneous as to indicate that it was based on prejudice or passion. (People v. Martin (1980), 87 Ill. App. 3d 77, 409 N.E.2d 114; People v. Kuhn (1979), 68 Ill. App. 3d 59, 385 N.E.2d 388.) In weighing the question of the defendant’s sanity, the trier of fact must consider the totality of the evidence, lay and expert, and is not required by law to accept the opinions of psychiatrists concerning the defendant’s sanity. (People v. Moore (1980), 89 Ill. App. 3d 202, 411 N.E.2d 579.) We do not agree with the defendant that, given the lay and expert testimony presented at trial, the jury’s determination of sanity was palpably erroneous.

The defendánt also asserts that error occurred when she was cross-examined at trial by the prosecutor concerning statements she made about the homicide during a court-ordered psychiatric examination. According to the defendant, this questioning violated her constitutional right against self-incrimination, as well as her statutory rights under section 115 — 6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 115 — 6). We note, however, that the cross-examination was objected to by defendant’s attorney, the objection was sustained, and the jury was ordered to disregard the questions and responses. Under such circumstances, even where the defendant’s constitutional rights are involved, it is generally held that the judge’s instruction to the jury to disregard is sufficient to dispel any error which occurred. (People v. Richardson (1978), 61 Ill. App. 3d 718, 377 N.E.2d 1235; People v. Jackson (1974), 23 Ill. App. 3d 945, 320 N.E.2d 591.) While the parties have cited considerable authority on the issue of whether the cross-examination was in fact error, we find it unnecessary to reach this issue, because if error occurred, it was cured.

One of the themes of the prosecution’s theory of the case concerned the defendant’s alleged fabrication of her insanity defense based upon a character in a television soap opera. In pursuing that theme, the prosecution was allowed, over defendant’s objection, to ask a defense psychiatrist his opinion about the sanity of the hypothetical television character. At the time the questioning took place, certain facts recited in the hypothetical question were not yet in evidence. The defendant relies on

“[t]he general rule [which] seems to be that a hypothetical question asked of an expert witness may not include facts which are not in evidence before the trier of fact.” (People v. Muniz (1964), 31 Ill. 2d 130,137,198 N.E.2d 855, 859.)

This general rule is not absolute. The trial court may, at its discretion, allow facts to be included in hypothetical questions even if the facts are not yet in evidence if there is an assurance by counsel that such facts will later be established. (Coriell v. Industrial Com. (1980), 83 Ill. 2d 105, 413 N.E.2d 1279.) We do not find an abuse of the trial court’s discretion in the instant case, and having reviewed the record, we find the facts presented by the prosecutor in rebuttal to be sufficiently identical to the facts recited in the hypothetical question such that the hypothetical question was supported by the evidence. In asking the hypothetical question of the defendant’s witness, Dr. Ziporyn, the prosecutor was attempting to establish that the doctor was too quick to give his expert medical opinion as to an individual’s sanity. We agree with the circuit court that for such a limited purpose, the question was proper. The question did riot exceed the broad scope of inquiry which is allowed in cross-examination of an expert witness. People v. Martinez (1980), 86 Ill. App. 3d 486, 408 N.E.2d 358; People v. Crawford Distributing Co. (1978), 65 Ill. App. 3d 790, 382 N.E.2d 1223.

In his closing remarks, the prosecutor made improper remarks in attacking the integrity of the defendant’s expert witnesses and misleading remarks concerning the qualification of a psychologist to render an opinion of the issue of sanity, concerning the burden of proof and concerning the required findings for a verdict of guilty but mentally ill. None of these improper and misleading remarks were objected to by the defendant. Nevertheless, the defendant now suggests that the prosecutor’s conduct constituted reversible error. Where the prosecutor’s improper conduct occurs without objection, it will only become the basis for reversal if it rises to the level of plain error. That standard is not met unless the conduct constitutes a material factor in the conviction. (People v. Brown (1981), 100 Ill. App. 3d 57, 426 N.E.2d 575.) In determining the materiality of the prosecutor’s conduct, we must consider it in the context of the entire case. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59.) Such conduct can be improper, inexcusable and unprofessional, yet not plain error. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59.) We find this to be the case under the instant facts. The improper remarks, while inflammatory, found some basis in the evidence, and the misleading remarks were corrected when the trial judge properly charged the jury before it began its deliberations. Improper, inexcusable and unprofessional conduct on the part of the prosecutor must not be cavalierly approved, but where, as here, it was not objected to, and did not constitute a material factor in the conviction, it is not plain error.

The defendant objected to the special verdict form proffered by the prosecution and delivered by the trial court. The form purported to provide a differentiation between the verdict of not guilty by reason of insanity and the verdict of guilty but mentally ill. The instruction on the form read as follows:

“You will also receive ten (10) special forms of verdict. As to each charge you will be provided with both a ‘not guilty, by reason of insanity’ and ‘guilty, but mentally ill’ form of verdict.

A special verdict of not guilty by reason of insanity may be returned instead of a general verdict but such special verdict requires a finding by the jury that the defendant committed the acts charged but at the time of the commission of those acts the defendant was insane.

A special verdict of guilty but mentally ill may be returned instead of a general verdict but such special verdict requires a finding by the jury beyond a reasonable doubt that the defendant committed the acts charged and that the defendant was not legally insane at the time of the commission of those acts but that she was mentally ill at such time.”

Defendant’s objection to this instruction, in contrast to the alternate instruction which she offered but which was rejected by the circuit court, is that the instruction “requires a finding *** that defendant was insane.” The defendant contends that this language places the burden of proving insanity on the defendant. In other instructions to the jury, the circuit court made it unmistakably clear that the burden of proof on the issue of the defendant’s sanity rested with the prosecution. This instruction, taken with the fact that the instruction objected to was merely intended to provide a differentiation between the insanity verdict and the guilty but mentally ill verdict, were sufficient to advise the jury as to the prosecution’s burden. (People v. Gold (1967), 38 Ill. 2d 510, 232 N.E.2d 702; People v. Eckles (1980), 83 Ill. App. 3d 292, 404 N.E.2d 358.) There was no real possibility that the jury could have been confused by this instruction.

Having carefully reviewed the record, the oral and written briefs of counsel and the authorities cited therein, we find no error occurred at the trial of this cause in the circuit court. Accordingly, the verdicts of the jury, and the convictions entered on those verdicts, are affirmed. Following the defendant’s conviction, a hearing was held to determine the defendant’s sentence. We cannot say that no error occurred in that proceeding.

At the sentencing hearing, the trial judge stated:

“In considering the presentence investigation report, it is very very important in this particular case, maybe not to the criminal conduct or criminal activities of the defendant, but as to her moral conduct, character previous to the time of the incident and up to now at the present time. As to what value she places on a human life, the presentence investigation report indicates that this is a criminal activity. It indicates three abortions in three years. Taking this in conjunction with the particular evidence at the trial and taking of the life of Jeffrey Williams under the circumstances which occurred in this case, what value may I ask does she place on human life? Are those things likely to occur? [Sic.]”

In Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, the United States Supreme Court held the fundamental right to privacy guaranteed by the constitution encompasses a woman’s decision to have an abortion. The lawful exercise of one’s constitutional rights is not, and must not be, a factor in aggravation or mitigation in determining a criminal sentence. (People v. Moriarty (1962), 25 Ill. 2d 565, 185 N.E.2d 688.) Where it is clear, as in the instant case, that the sentencing judge has imposed a harsher sentence because the defendant lawfully exercised her constitutional rights, we are compelled to reverse the sentence and remand the cause for a new sentencing hearing. People v. Moriarty (1962), 25 Ill. 2d 565,185 N.E.2d 688.

In accordance with the views previously set forth, and in reliance on the authorities cited, we affirm the verdict reached by the jury, but we reverse the sentence imposed, and we remand the matter to the circuit court of Peoria County for a new sentencing hearing, conducted by a judge other than the one who imposed the sentence in the instant case. It is difficult to escape the conclusion that the severity of the sentence imposed upon the defendant resulted from the views of the sentencing judge on abortion. We direct that the judge at the new sentencing hearing shall be assisted in his determination with a sentencing report which omits any reference to the defendant’s lawful exercise of her constitutional rights and which complies in all other respects with statutory requirements for such reports.

Affirmed in part; reversed in part; remanded.