                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. McMillen, 2011 IL App (1st) 100366




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     GREGORY McMILLEN, Defendant-Appellant.


District & No.              First District, Fourth Division
                            Docket No. 1-10-0366


Rule 23 Order filed         September 30, 3011
Rule 23 Order
withdrawn                   November 4, 2011
Opinion filed               November 17, 2011


Held                        The trial court properly dismissed defendant’s pro se postconviction
(Note: This syllabus        petition alleging that he was denied his right to present evidence that the
constitutes no part of      involuntary intoxication defense applied because he was suffering from
the opinion of the court    the unknown adverse effects of prescription medication and cocaine,
but has been prepared       since Illinois law does not allow the involuntary intoxication defense
by the Reporter of          where an individual voluntarily ingested an illegal drug.
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, No. 92-CR-16121; the
Review                      Hon. James B. Linn, Judge, presiding.


Judgment                    Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Karl H. Mundt, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary
                           P. Needham, and Stacia D. Weber, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE STERBA delivered the judgment of the court, with opinion.
                           Presiding Justice Lavin and Justice Pucinski concurred in the judgment
                           and opinion.



                                             OPINION

¶1          On November 20, 1994, defendant Gregory McMillen was convicted of first degree
        murder of Vivian Bramlett and sentenced to a 40-year prison term. On direct appeal, this
        court affirmed his conviction. People v. McMillen, No. 1-94-4414 (1996) (unpublished order
        under Supreme Court Rule 23). On December 28, 2009, defendant filed a pro se
        postconviction petition (petition). The trial court dismissed defendant’s petition on January
        12, 2010, finding the issues raised were “wholly without merit.” Defendant appeals the trial
        court’s dismissal of his petition. On appeal, defendant claims that he was denied his
        constitutional right to present a complete defense because at the time of the offense, he was
        suffering from the unknown adverse effects of prescription medication and cocaine. Thus,
        defendant claims that the involuntary intoxication defense applies to his case and he should
        be granted a new trial where he can raise that defense. For the reasons that follow, we affirm
        the trial court’s judgment.


¶2                                          Background
¶3          On June 15, 1986, defendant murdered Vivian Bramlett. Six years later, on June 26,
        1992, defendant made a statement to Detectives Michael Kill and James Dwyer confessing
        to the murder. In the statement, defendant told police that on the day of the murder, he and
        Vivian had gone through more than an “eight ball” of cocaine together. While smoking the
        cocaine, he noticed Vivian placed eight bags of the drug in her shoe. Defendant believed
        Vivian and another man were going to smoke the cocaine together and then have sex. At
        around 10:30 p.m., defendant drove Vivian to the railroad tracks by 77th and Woodlawn, an
        area he referred to as their “hiding place.” He then confronted Vivian about the cocaine she
        took and an argument ensued. After discovering cocaine in Vivian’s shoe, defendant hit her
        nine times. He stated he hit Vivian hard every time. After hitting her, defendant ran away
        thinking she was unconscious, but he returned a short time later. Upon his return, Vivian had

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     regained consciousness, but before she could get to her feet, defendant threw a heavy rock
     at her, causing her death. Shortly after his confession, the State charged defendant with two
     counts of first degree murder.
¶4        Prior to his trial, defendant submitted to multiple psychological exams at the Psychiatric
     Institute to determine his fitness to stand trial. Dr. John P. Murray sent a memorandum to the
     trial judge stating that defendant was fit to stand trial. Additionally, Dr. Marcos, Dr. Kaplan,
     and Dr. Reefman all issued reports stating that defendant was fit to stand trial. The trial court
     also conducted two hearings to determine defendant’s fitness. At both hearings, the
     defendant was found to be fit for trial.
¶5       At trial, Dr. Stone testified as an expert witness on defendant’s behalf. Dr. Stone testified
     that defendant was suffering from a combination of paranoid schizophrenia, borderline
     personality disorder and cocaine dependence. He also stated that at the time of the murder,
     he did not believe defendant could control his behavior. Dr. Stone testified that defendant
     had been prescribed the following medication: (1) Thorazine, an antipsychotic and a
     tranquilizer, prescribed on and off since defendant was 14 years old; (2) Haldol, an
     antipsychotic with a tranquilizing effect, prescribed in 1983; (3) Dilantin prescribed in
     approximately 1986; and (4) Sinequan, which is among the most sedating of antidepressants,
     prescribed at various times. Dr. Stone also testified that he had no ability to know if
     defendant was on these drugs at the time of the murder, but he believed that defendant’s
     behavior that day was triggered by a “drug initiated paranoia” caused by cocaine use.
¶6       The State presented Dr. Albert Stipes as an expert witness. Dr. Stipes testified that he did
     not believe defendant was a paranoid schizophrenic, but that defendant suffered from a
     disorder known as malingering, which caused him to feign symptoms of schizophrenia. Dr.
     Stipes also testified that defendant suffered from antisocial personality disorder, which is
     characterized by a lack of empathy for others, poor impulse control, and habitual criminal
     behavior. After multiple examinations, Dr. Stipes concluded that defendant was sane at the
     time of the murder in June of 1986.
¶7       After the State rested, defendant took the stand and testified that he knew Vivian, but was
     unsure whether he killed her. Defendant also testified that he told the police that he needed
     help. During redirect examination, defendant testified that he was currently taking
     medication, including Thorazine, Sinequan, and Dilantin, and that at the time of the murder
     he had smoked cocaine. Defendant made no mention about whether he was taking
     medication at the time of the murder.
¶8       Assistant State’s Attorney Mike Rogers testified during rebuttal that defendant did not
     say he wanted help for his problems at the time of his initial statement. Furthermore, he
     noted that defendant made no emotional outbursts during the initial statement.
¶9       On November 20, 1994, at the conclusion of his bench trial, defendant was found guilty
     of first degree murder. Defendant appealed his conviction. On appeal, this court rejected
     defendant’s claim of insanity, noting the offense was committed in a manner calculated to
     avoid detection and that defendant himself brought the crime to the attention of the


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       authorities. This court affirmed the trial court’s judgment.
¶ 10       On December 28, 2009, defendant filed a pro se postconviction petition. In his petition,
       defendant alleged that at the time of the murder, he experienced unwarned and unexpected
       adverse side effects of prescription medication and cocaine. Defendant argued that he should
       be allowed to retroactively raise the involuntary intoxication defense. The trial court
       dismissed his claim at the first stage of the postconviction proceedings, finding his claims
       were “wholly without merit.” Defendant timely filed this appeal.


¶ 11                                          Analysis
¶ 12        The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)) provides
       a procedural mechanism by which any person imprisoned in the penitentiary may assert that
       there was a substantial denial of a federal or state constitutional right in the proceeding that
       resulted in his or her conviction. 725 ILCS 5/122-1(a) (West 2004); People v. Harris, 224
       Ill. 2d 115, 124 (2007). A postconviction proceeding is limited to “constitutional matters that
       have not been, nor could they have been, previously adjudicated.” Harris, 224 Ill. 2d at 124.
¶ 13       Postconviction proceedings may consist of up to three stages in noncapital penalty cases.
       People v. Pendleton, 223 Ill. 2d 458, 471-72 (2006). The instant case involves a first-stage
       summary dismissal of a postconviction petition. At the first stage, a petition cannot be
       dismissed unless it is frivolous and patently without merit. People v. Hodges, 234 Ill. 2d 1,
       10 (2009). A petition will be deemed frivolous and patently without merit when the
       allegations in the petition, taken as true and liberally construed, have no basis either in law
       or in fact. Id. This court reviews the trial court’s ruling of a first-stage postconviction
       petition, adopting a de novo standard of review. Id. at 9.
¶ 14       The statute at issue is this appeal states in relevant part:
              “§ 6-3. Intoxicated or drugged condition. A person who is in an intoxicated or
           drugged condition is criminally responsible for conduct unless such condition either:
               ***
               (b) Is involuntarily produced and deprives him of substantial capacity either to
           appreciate the criminality of his conduct or to conform his conduct to the requirements
           of law.” 720 ILCS 5/6-3 (West 1994).
¶ 15        Defendant’s petition alleges that his constitutionally protected rights were violated
       because he was not able to present evidence supporting an involuntary intoxication defense
       at trial. At the time of defendant’s trial in 1994, the involuntary intoxication defense was only
       available if an individual’s intoxication was the result of some external influence, such as
       trick, artifice, or force. People v. Rogers, 123 Ill. 2d 487, 508 (1988). Thus, defendant could
       not raise the involuntary intoxication defense at the time of his trial because he made no
       allegations that external influences gave rise to his alleged involuntary intoxication. In 2006,
       the Illinois Supreme Court in People v. Hari, 218 Ill. 2d 275, 292 (2006), expanded the scope


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       of the defense by holding that involuntary intoxication also applies to individuals suffering
       from unexpected and unwarned adverse side effects of prescription medication.
¶ 16       Defendant claims that the Illinois Supreme Court’s ruling in Hari created a new
       substantive rule that should apply retroactively on collateral appeal. Defendant maintains that
       he should be granted a new trial in order to raise the affirmative defense of involuntary
       intoxication due to unwarned and unexpected adverse side effects of his prescription
       medication and cocaine use.
¶ 17       The State responds that the Hari decision announced a procedural rule, which should not
       be applied retroactively. The State contends defendant’s claims of involuntary intoxication
       at the time of the murder are completely rebutted by the record because the defendant was
       voluntarily ingesting cocaine at the time of the offense.
¶ 18       Our task on appeal is to determine whether defendant’s petition raises a sufficient claim
       of a substantial denial of a constitutional right that resulted in his conviction. To make that
       determination, we will consider whether defendant’s legal and factual claims are indisputably
       meritless, and we will do so without regard to the temporal reach of Hari. Since defendant
       raises a claim that he did not have a meaningful opportunity to present a complete defense,
       this court deems it necessary to only consider his constitutional claim to determine whether
       his petition should proceed to the second stage of postconviction proceedings. As such, we
       now turn to consider defendant’s claim raised in his petition.
¶ 19       The Act provides that the allegations raised in a postconviction petition must be liberally
       construed and taken as true. Hodges, 234 Ill. 2d at 10. Defendant alleges in his petition and
       brief that at the time of the offense, he was involuntarily intoxicated as the result of ingesting
       the prescription medications Thorazine, Haldol, Dilantin, and Sinequan, along with the
       illegal substance crack cocaine. Taking these facts as true, at the time of the offense,
       defendant had ingested some mixture of psychotropic prescription medication, along with
       an illegal substance.
¶ 20       The “intoxicated or drugged condition” statute states:
               “A person who is in an intoxicated or drugged condition is criminally responsible for
           conduct unless such condition is involuntarily produced and deprives him of substantial
           capacity either to appreciate the criminality of his conduct or to conform his conduct to
           the requirements of law.” (Emphasis added.) 720 ILCS 5/6-3 (West 2004).
       The statute’s express language and purposeful use of the term “involuntarily” indicates that
       an individual who is in a voluntary “drugged condition” may not invoke the involuntary
       intoxication defense.
¶ 21       Involuntary actions are commonly defined as actions “ ‘springing from accident or
       impulse rather than conscious exercise of the will’ ” and “ ‘[n]ot resulting from a free and
       unrestrained choice; not subject to control by the will.’ ” Hari, 218 Ill. 2d at 292 (quoting
       Webster’s Third New International Dictionary 1191 (1993), and Black’s Law Dictionary 833
       (7th ed. 1999)). Here, defendant testified that he smoked crack cocaine on the day of the


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       offense. Defendant did not testify that his ingestion of cocaine was the result of something
       other than his conscious choice or free will. Therefore, his ingestion of cocaine cannot be
       classified as “involuntary” under the plain meaning of the term.
¶ 22        Illinois case law supports a conclusion that the knowing, or voluntary, ingestion of
       cocaine or other illegal drugs precludes the use of the involuntary intoxication defense. In
       People v. Rogers, 123 Ill. 2d 487, 508 (1988), the Illinois Supreme Court held that a
       defendant who had multiple drug addictions and ingested drugs acted voluntarily. In People
       v. Downey, 162 Ill. App. 3d 322, 335 (1987), this court held that defendant’s admitted
       cocaine addiction did not render his actions involuntary. This court in People v. Gerrior, 155
       Ill. App. 3d 949, 953 (1987), held that the defendant who knew about the nature of
       prescribed medication he was taking, and was told of the potential extreme reaction when
       taken with alcohol, was voluntarily intoxicated. The People v. Larry, 144 Ill. App. 3d 669,
       677 (1986), court held that the defendant who smoked marijuana after witnessing another
       person put white powder on it was voluntarily intoxicated. This court in People v. Walker,
       33 Ill. App. 3d 681, 687-88 (1975), held that the defendant who received pills containing
       Seconal, a tranquillizing drug, from his brother and who consumed alcohol while taking the
       pills acted voluntarily.
¶ 23       Defendant’s ingestion of prescription medication does not render his case distinguishable
       from the cases cited above because in all of those cases, the use of illegal drugs or
       consumption of alcohol was involved, as it was here. Defendant’s case, however, is
       distinguishable from Hari because the defendant there did not voluntarily ingest any illegal
       substance. Hari, 218 Ill. 2d at 293. The Illinois Supreme Court’s narrow holding in Hari
       allowed the defendant to raise the involuntary intoxication defense because he presented
       some evidence at trial that he suffered from unwarned and unknown adverse side effects
       caused by a combination of prescribed medication and an over-the-counter medication. Id.
       at 280, 293. Thus, the Hari holding does not support the proposition that mixing prescription
       medication with illegal drugs gives rise to the involuntary intoxication defense.
¶ 24       Defendant relies on the Fourth District’s holding in People v. Alberts, 383 Ill. App. 3d
       374 (2008), to support his position that the involuntary intoxication defense applies to his
       case. While Alberts is not binding on this court, we may consider its holding as persuasive
       authority. People ex rel. Birkett v. City of Chicago, 292 Ill. App. 3d 745, 753 (1997). Similar
       to Hari, the defendant in Alberts claimed he was suffering from the unwarned and unknown
       adverse side effects of prescription medication. Alberts, 383 Ill. App. 3d at 380. There is no
       indication in Alberts that the defendant consumed any illegal drugs at the time of his offense,
       but the defendant did consume some quantity of prescribed psychotropic medication. Id. at
       384. Thus, because Alberts does not involve the consumption of illegal drugs, it is also
       clearly distinguishable from the case at bar.
¶ 25       Defendant raises two reasons why his voluntary use of illegal drugs does not
       automatically foreclose the involuntary intoxication defense. First, defendant claims that
       Hari overruled the Rogers, Downey, Gerrior, Walker and Larry cases and, consequently, the
       involuntary intoxication defense may be raised in cases where the defendant voluntarily


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       ingests illegal drugs. We, however, do not consider this argument persuasive. The Hari
       decision held, “To the extent that Rogers, Downey, Gerrior, Walker and Larry can be read
       as excluding the unexpected and unwarned adverse side effects from medication taken on
       doctor’s orders from the plain meaning of ‘involuntarily produced,’ they are overruled.”
       Hari, 218 Ill. 2d at 294. Thus, those cases were overruled on narrow grounds based only on
       the definition of “involuntarily produced” as it relates to “prescription medication.” Id. The
       Illinois Supreme Court noted that those cases relied on the involuntary intoxication standard
       set forth in a predecessor statute that allowed the defense only where intoxication was
       induced by some trick, artifice, or force. Id. The supreme court’s limited overruling of those
       cases clarified that involuntariness is not limited to situations where a trick, artifice, or force
       was involved and that the unexpected and unwarned adverse effects from medication taken
       on doctor’s orders may be included in the definition of “involuntarily produced.” Id. Thus,
       the supreme court in Hari did not overrule Rogers, Downey, Gerrior, Walker, and Larry with
       respect to their holdings that a defendant who knowingly ingests an illegal substance cannot
       raise the involuntary intoxication defense.
¶ 26       Second, defendant claims that the Fifth District’s decision in People v. Brumfield, 72 Ill.
       App. 3d 107 (1979), demonstrates that the involuntary intoxication defense is not
       automatically barred where illegal drugs are voluntarily ingested. We disagree. In Brumfield,
       the defendant argued he should be allowed to present evidence at trial that he was
       involuntarily intoxicated at the time of his offense due to his voluntary ingestion of
       marijuana, which unbeknownst to him, was laced with “angel dust.” Id. at 111. Subsequently,
       the defendant consumed alcohol and claimed that the combined effects of these drugs led to
       his involuntary acts. Id. The trial court, refusing to allow the defendant to present this
       evidence at trial, granted the State’s motion in limine. Id. The appellate court reversed and
       held that “the trial court’s order granting the State’s motion in limine before the admission
       of any evidence deprived the defendant of his fundamental right to defend himself in a
       criminal trial.” Id. at 113. The Brumfield court noted that the parties and the trial court
       proceeded upon the faulty assumption that the defendant’s initial offer of proof governed the
       efficacy of the involuntary intoxication defense. Id. at 112. The court did not hold, however,
       that the defense would ultimately be available at trial, only that the defense could not be
       barred based on the defendant’s initial offer of proof before any evidence had been presented.
       Id. at 112. As a result, the Brumfield holding involves a different issue than that presented
       in the instant case.
¶ 27       Moreover, the facts underlying the legal theory in Hari are distinguishable from the case
       at bar. The defendant in Hari presented specific evidence demonstrating that he was suffering
       from unwarned and unknown side effects resulting from the mixture of prescription
       medication and over-the-counter medicine. Hari, 218 Ill. 2d at 295. The defendant’s doctor
       in Hari never warned him of the possible adverse side effects of mixing his prescription
       Zoloft with the over-the-counter medication Tylenol PM. Id. at 288. Also, in Hari, the
       defendant had only been taking his medication for six days at the time of his offense. Id. at
       283.
¶ 28       Here, we must take as true at this initial stage defendant’s claim that he was not warned

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       by a physician of the adverse side effects that may result from taking four prescription
       medications and ingesting an “eight ball” of cocaine. Any potential adverse effects that
       resulted, however, may not be considered unknown and, in fact, are so obvious that a warning
       need not be made by a physician. Excessive cocaine use alone is commonly known to
       produce adverse side effects. Thus, it is common knowledge that adverse side effects may
       result when cocaine is used along with four other prescription medications. Additionally,
       defendant claims that he was on some combination of prescription medication for at least six
       months. This prolonged use and exposure to the prescription medication also raise doubt
       concerning his claim that any adverse side effects of the prescription medication were
       unknown.
¶ 29       In sum, defendant’s petition lacks an arguable basis in law or fact because it is based on
       an indisputably meritless legal theory. Illinois law does not allow the involuntary intoxication
       defense where an individual voluntarily ingested an illegal drug. Defendant’s petition fails
       to demonstrate a constitutional infirmity that would necessitate relief under the Act.
       Accordingly, we affirm the trial court’s judgment that defendant’s claims are patently
       without merit.


¶ 30      Affirmed.




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