                                               SECOND DIVISION
                                               November 21, 2006




No. 1-05-1898

THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
     Plaintiff-Appellee,                  )    Cook County.
                                          )
          v.                              )
                                          )
MARCUS DWIGHT,                            )    Honorable
                                          )    Paul J. Nealis,
     Defendant-Appellant.                 )    Judge Presiding.


     PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

     The jury heard evidence that on November 20, 2000, the

defendant Marcus Dwight robbed Bertha Gonzalez at gunpoint.    He

took her cell phone, phone charger, and work identification card.

The jury found the defendant guilty of armed robbery and the

trial court sentenced him to 10 years in prison.    Dwight does not

deny he committed the armed robbery.    The issues he raises in

this appeal have to do with the trial court’s refusal to instruct

the jury on the defense of insanity.

     We find the instructions should have been given.    For that

reason, we reverse the defendant’s conviction and remand this

cause for a new trial.

FACTS

                            Voir Dire

     Before jury selection defense counsel requested that the
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trial judge ask potential jury members whether they had any

history or experience in their families of psychological illness

or treatment.   Defense counsel agreed to two follow-up questions

suggested by the trial judge: (1) "would that influence your

opinion one way or the other as to any testimony that you may

receive from a psychiatrist or a psychologist?" and (2) "the

Defense in this case is raising the issue of insanity; would that

pose any problems?"   The State requested the following question:

"Do You believe that a person can have a mental illness or

disorder and still be guilty of a crime as charged?"    Defense

counsel told the court he had no objection to the State's

question.   The judge asked the question of every juror impaneled.

The judge never asked jurors if the insanity defense would pose

any problems for them, but he did ask the other question proposed

by defense counsel.

                         Trial Testimony

     At trial, Bertha Gonzalez testified that on November 20,

2000, she was sitting in her parked van when a red car pulled up

alongside her car and parked.   Defendant got out of the car,

approached her van, and stood next to the driver’s side window.

She rolled down the window about four inches.    Defendant asked

her where 13th Street was, and she told him.    Defendant looked

around inside her car.   He said, "Ma’am, I don’t want to hurt


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you, but I want you to give me something."      Gonzalez said,

"What?"    Defendant repeated the statement.    Gonzalez said, "Well,

what do you want?"    Gonzalez asked defendant if he wanted an Avon

book, and he said no.    Defendant then asked Gonzalez to be his

girlfriend and asked her to engage in a sex act.      Gonzalez said

no.    Defendant said he didn’t want to hurt her, but that he had a

gun.    He then pulled a gun from his pocket.    He pointed the gun

at Gonzalez and held it so that only she could see it.

       Defendant said he didn’t want to hurt her and asked her for

her cell phone.    She gave the phone to him.    Defendant then asked

for her cell phone charger.    She gave him the charger.    Defendant

then asked her for her picture time card, which she used for

work.    The card was visible underneath the radio.    Gonzalez told

defendant the card was not a credit card but a time card.        He

said he just wanted something with her picture on it.      She gave

him the card.    Defendant then said he wanted a kiss.    Gonzalez

told him no.    Defendant left.

       Gonzalez also testified that after giving defendant

directions he said, "What do you have for me?"      She asked him

what he meant.    He asked her if she had any money, and she said

she didn’t have any.    She said the defendant did not take her

purse or credit cards.    Her purse was next to her and not in view

of the defendant.


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     Gonzalez reported the crime to the police and identified

defendant in a photo array and a lineup.    The State introduced

evidence that a fingerprint impression taken from Gonzalez’s car

window matched defendant’s fingerprint samples.

     Shalonda Dwight, defendant’s wife, testified that at the

time of the offense she was dating the defendant and saw him on a

daily basis.   In October 2000, she noticed changes in defendant’s

demeanor and temperament that lasted for a couple months.      He

became very paranoid, anxious, and frantic.    He spoke loudly and

cursed frequently.   Before that time, he was laid-back and

relaxed.    Defendant exhibited paranoia by looking out the windows

and asking who was on the phone or at the door.    Defendant was

not sleeping at night.   Sometimes at night he would go outside

and watch TV in the car.    He usually was a neat and clean person,

but his appearance changed.

     Annie Dwight, defendant’s mother, testified defendant

exhibited significant changes in his behavior in October 2000.

He seemed very depressed.    He told her he needed to see a doctor.

He was sleeping only one or two hours a night for three or four

days at a time.   He was playing loud music, drinking, and waking

up the neighbors at 3 a.m.    He became very paranoid.   He told his

parents the FBI was trying to kill him.    He thought the sound of

a car backfiring was the CIA shooting at him.    He told his


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parents he was God and hit his bedroom door with his fist until

his fist bled.

     The State made a motion to exclude Dr. James Corcoran, a

forensic psychiatrist, from testifying because he could not opine

whether defendant was insane at the time of the offense.      Defense

counsel told the court Dr. Corcoran would testify that it was

more likely than not the defendant was insane at the time of the

offense.    The court allowed Dr. Corcoran to testify but reserved

its ruling on the insanity instruction until after trial.

     Dr. Corcoran testified he evaluated the defendant on June 1,

2003, and June 16, 2004.    Dr. Corcoran said defendant’s symptoms

as reported by defendant’s girlfriend and mother were consistent

with bipolar or manic depressive illness.    The description of the

offense in the police report contributed to Dr. Corcoran’s

diagnosis because hypersexuality is a common symptom of an

unmedicated bipolar disorder.

     On October 26, 2000, the defendant’s mother took him to see

Dr. Ruben Nichols.    He saw Dr. Nichols again on November 3 and

November 9, 2000.    Dr. Nichols diagnosed defendant with

situational anxiety and put him on a work restriction.      Dr.

Nichols referred him to Dr. Love, a psychiatrist.    Dr. Love

evaluated the defendant on four occasions in January and February

2001.   Dr. Love stated defendant was displaying a progressively


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depressed mood, agitation, an angry, hostile affect, and paranoid

delusional thinking.    Dr. Love diagnosed defendant with paranoid

delusional disorder and major depression with recurrent psychotic

features.    The defendant declined anti-psychotic medication and a

referral for inpatient treatment.

     The defendant told Dr. Corcoran he was unable to recall the

incident of November 20, 2000.    He recalled being told by his

mother that he had a court date in Indiana and driving around in

his car.    He remembered receiving a call that the police were

looking for him, but he did not know why.    Dr. Corcoran said a

person with unmedicated bipolar disorder may have memory problems

because of racing thoughts.    Dr. Corcoran believed defendant

created an alibi or was malingering in his report to Dr. Henry.

The defendant also may have been experiencing a residual paranoia

even though he was on medication at that time.

     Dr. Corcoran concluded defendant was suffering from bipolar

effective disorder, a severe psychiatric illness, at the time of

the offense.    He said he could not give a formal opinion

regarding whether defendant was legally insane at the time of the

crime because the defendant could not say what was going on in

his mind at the time of the incident.    Dr. Corcoran could not

state an opinion on defendant’s sanity to a reasonable degree of

medical and scientific certainty.


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     On cross-examination, Dr. Corcoran testified he had read Dr.

Henry’s report in which defendant described in detail his

activities on November 20, 2000.       The State read the report to

the jury, but the report was not admitted into evidence.

     The State called Dr. Jonathan Kelly, a psychiatrist employed

by Forensic Clinical Services for the Circuit Court of Cook

County, as a rebuttal witness.    Dr. Kelly said he interviewed the

defendant on June 1, 2004.    He took over the case from Dr. Henry.

The defendant told Dr. Kelly he did not recall what happened on

November 20, 2000, or what had happened during the two prior

months.   However, defendant’s answers to some questions showed he

had some memory.   Dr. Kelly said the most logical explanation was

that defendant was malingering, i.e., fabricating a psychological

or physical symptom to avoid criminal prosecution.       Dr. Kelly did

not observe any medical or psychiatric reason that would explain

the memory loss.   He diagnosed defendant with bipolar disorder,

in remission with medications, and a history of alcohol and

cannabis abuse.

     Dr. Kelly said a person may have bipolar disorder but not be

legally insane.    He said most people with bipolar disorder do not

commit criminal offenses.    Dr. Kelly’s opinion, within a

reasonable degree of medical and psychiatric certainty, was that

defendant was legally sane at the time of the offense.       The


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following factors supported his opinion: (1) defendant had no

psychotic symptoms at the time of the offense that prevented him

from knowing what he was doing was wrong; (2) he had a non-

psychotic motive for the crime--obtaining money or possessions

from the victim; (3) the criminal behavior was goal-oriented,

organized and not bizarre; (4) the behavior reflected prior

planning in that defendant was armed with a handgun; (5)

defendant pointed a gun at the victim while demanding money,

showing criminal intent; (6) defendant’s flight from the crime

scene, failure to surrender himself to the police, and disposal

of the gun showed knowledge of the wrongfulness of his conduct;

(7) defendant did not require psychiatric hospitalization at the

time of the offense; and (8) at the time of the offense,

defendant was not homicidal or suicidal and was able to provide

for his own physical needs.

     On cross-examination, Dr. Kelly admitted defendant’s

mother’s description of defendant’s behavior in October and

November 2000 was consistent with a manic episode, and the

mother’s reported observations could be seen as psychotic

symptoms.   He said defendant told him he had suicidal thoughts in

October 2000 and had played Russian roulette by placing a gun to

his head then shooting at the wall.   Dr. Kelly said he did not

think there was sufficient information to say defendant qualified


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for a manic episode every day in October and November.   In Dr.

Kelly’s interview with the defendant, the defendant "indicated he

did not have symptoms, psychotic symptoms in particular, that

interfered with his knowledge of what he was doing was wrong or

against the law."

     During the jury instructions conference, the court denied an

insanity instructions.    The court found, based on the evidence,

no reasonable man could find the defendant was insane at the time

of the offense.   The court allowed an instruction and a verdict

form for the jury to find defendant guilty but mentally ill.

     The jury returned a general verdict of guilty and did not

find defendant guilty but mentally ill.   The court sentenced

defendant to 10 years in prison.

DECISION

I. Insanity Instruction

     Defendant contends he was denied a fair trial when the court

refused his request for jury instructions on insanity.   The trial

court refused to allow the instructions because defendant had the

“burden to prove by clear and convincing evidence that [he] was

insane at the time of the offense and no such proof was presented

as to that.”

     A defendant is legally insane under Illinois law if, “as a

result of mental disease or mental defect, he lacks substantial


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capacity to appreciate the criminality of his conduct.”    720 ILCS

5/6-2(a) (West 2004).    The law presumes that all persons are

sane.    People v. Williams, 201 Ill. App. 3d 207, 558 N.E.2d 1258

(1990).    But the presumption serves no useful purpose when the

issue of a defendant’s sanity is clearly raised.    People v.

Childs, 51 Ill. 2d 247, 256-58, 281 N.E.2d 631 (1972).    It is the

defendant’s burden “to prove by clear and convincing evidence

that the defendant is not guilty by reason of insanity.”    720

ILCS 5/6-2(e) (West 2004).

     Insanity is an affirmative defense.    720 ILCS 5/6-4 (West

2004).    To raise any affirmative defense, the defendant must

present “some evidence” of the defense.    720 ILCS 5/3-2(a) (West

2004).    Courts have interpreted the “some evidence” standard to

be “enough evidence so that, if believed, it would be sufficient

for a reasonable jury to find in [the defendant’s] favor.”

People v. Jordan, 247 Ill. App. 3d 75, 92, 616 N.E.2d 1265 (1993)

(defense of justification); see also People v. Everette, 141 Ill.

2d 147, 157, 565 N.E.2d 1295 (1990) (self-defense), People v.

Cord, 258 Ill. App. 3d 188, 192, 630 N.E.2d 173 (1994) (defense

of necessity).

     Courts consider the standard of proof when deciding whether

an insanity instruction must be given.    For example, in People v.

Moore, the court held a defendant is entitled to instructions on


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insanity “only if there is sufficient evidence to support a

jury’s finding of insanity by a preponderance of the evidence.”

147 Ill. App. 3d 881, 886, 498 N.E.2d 701 (1986); see also People

v. Williams, 235 Ill. App. 3d 638, 648, 601 N.E.2d 1070 (1992)

(“[d]efendant is entitled to instructions on insanity only where

a jury’s finding of insanity would be supported by a

preponderance of the evidence”).      At the time Moore and Williams

were decided, the standard of proof for an insanity defense was

“preponderance of the evidence.”      See Moore, 147 Ill. App. 3d at

884-85, citing Ill. Rev. Stat. 1983, ch. 38, pars. 3-2, 6-2.

That standard changed before the events of this case took place.

In 1995, the legislature changed a defendant’s burden of proof

for an insanity defense to “clear and convincing evidence.”     720

ILCS 5/6-2 (e) (West 2004).

     The federal statute defining the affirmative defense of

insanity is very similar to the Illinois statute.      The Insanity

Defense Reform Act of 1984 provides:

            "(a) Affirmative defense.--It is an

            affirmative defense to a prosecution under

            any Federal statute that, at the time of the

            commission of the acts constituting the

            offense, the defendant, as a result of a

            severe mental disease or defect, was unable


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            to appreciate the nature and quality or the

            wrongfulness of his acts.     Mental disease or

            defect does not otherwise constitute a

            defense.

            (b) Burden of proof.--The Defendant has the

            burden of proving the defense of insanity by

            clear and convincing evidence."     18 U.S.C. §

            17 (1984).

     The United States Court of Appeals for the 11th Circuit

held, under this insanity statute, “a federal criminal defendant

is due a jury instruction on insanity when the evidence would

allow a reasonable jury to find that insanity has been shown with

convincing clarity.”       United States v. Owens, 854 F.2d 432, 435

(11th Cir. 1988).      “The trial judge must construe the evidence

most favorably to the defendant.”        Owens, 854 F.2d at 436.

     In a determination of defendant’s sanity, a trier of fact

may reject all expert testimony and base its determination solely

on lay testimony.      People v. West, 231 Ill. App. 3d 646, 650-51,

596 N.E.2d 740 (1992).      Of particular relevance are observations

by lay witnesses made shortly before or after the crime was

committed.    West, 231 Ill. App. 3d at 651.     Other relevant

factors include the defendant’s plan for the crime and methods to

prevent detection.       People v. Gilmore, 273 Ill. App. 3d 996,


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1000, 653 N.E.2d 58 (1995).   A defendant’s unusual behavior or

bizarre or delusional statements do not compel a finding of

insanity, and a defendant may suffer from a mental illness

without being legally insane.   Gilmore, 273 Ill. App. 3d at 1000.

     The State contends the defendant did not meet his burden of

presenting sufficient evidence for insanity instructions because

no witness testified that at the time of the offense defendant

lacked substantial capacity to appreciate the criminality of his

conduct.

     We find no authority to support the proposition that a

defense witness has to say the defendant, due to mental illness

or disease, lacked the substantial capacity to appreciate the

criminality of his conduct when he committed the offense.    In

People v. Smothers, 55 Ill. 2d 172, 175, 302 N.E.2d 324 (1973),

our supreme court held the failure of a witness to express an

opinion on defendant’s sanity does not decide the issue of

whether defendant has raised the affirmative defense.   Where

there is sufficient evidence based on the testimony and

observations of the witnesses to support the defense, the absence

of opinion evidence is immaterial.   Smothers, 55 Ill. 2d at 175.

Neither psychiatric testimony nor medical or lay opinion is

necessary to give the instructions if the evidence itself reveals

serious mental defects or a substantial history of mental


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illness.    People v. Childs, 51 Ill. 2d 247, 257, 281 N.E.2d 631

(1972); People v. Lono, 11 Ill. App. 3d 443, 448, 297 N.E.2d 349

(1973).

     In fact, in the federal courts, witnesses, whether expert or

lay, are prohibited from testifying to the ultimate issue of a

defendant’s "mental state or condition constituting an element of

the crime charged or a defense thereto.     Such ultimate issues are

matters for the trier of fact alone."     Fed. R. Evid. 704(b).

     The issue we must determine is whether a reasonable jury,

hearing the testimony presented by the defense witnesses, could

find by clear and convincing evidence that the defendant, due to

his mental illness, lacked substantial capacity to appreciate the

criminality of his conduct at the time of the crime.

     What did the jury hear?     At or near the time of the crime

the defendant’s behavior had changed markedly.     His appearance

became unkempt, not neat and clean as he had been.     He spoke

loudly and cursed a great deal.     He was paranoid, anxious, and

frantic.    He was depressed.   He watched TV in his car.   He told

members of his family the FBI was trying to kill him and the CIA

was shooting at him.    He said he was God--and hit a door until

his fist bled.    Then there are the bizarre facts of the offense.

     No medical witness opined that defendant was insane at the

time of the crime, but each ascribed a mental illness to the


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defendant.    Dr. Corcoran found the defendant suffered from a

bipolar effective disorder or a manic depressive illness.    He

referred to it as a "severe psychiatric disease."    Dr. Love’s

findings of February 2001 were testified to.    They described the

defendant as having a paranoid delusional disorder and major

depression with recurrent psychotic features.    Dr. Kelly, the

State’s witness, relying on a June 1, 2004, interview, about

three-and-one-half years after the offense, described the

defendant as having a bipolar disorder in remission with

medication.    On cross-examination, Dr. Kelly agreed Mrs. Dwight’s

reported observations could be seen as psychotic symptoms.

     Our review of the decisions does not disclose any bright

line that establishes the occasion for giving the insanity

defense instructions.    It remains a matter for the exercise of

judicial discretion.    See People v. Douglas, 362 Ill. App. 3d 65,

76, 839 N.E.2d 1039 (2005) (A trial court’s refusal to issue a

specific jury instruction is reviewed under an abuse of

discretion standard).    We can say the trial court must look for

the presence of evidence that supports the instructions, avoiding

the temptation to make judgments about the weight of it.

     We find there was adequate evidence to place the issue of

defendant’s sanity before the jury.    The jury was free to accept

it or reject it, but it had to be properly instructed.    Juries,


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not judges, weigh the evidence.    Failure to instruct was

reversible error and it requires that this cause be remanded for

a new trial.

II. Other Issues

     Because other issues raised by the defendant either fall by

the wayside on remand or have little merit we see no need for

extended discussion.

     We do make these observations, applicable on remand,

assuming the testimony will be substantially similar to that of

the first trial:

     (1) The trial should allow questions of potential jurors

directed to their attitude concerning the insanity defense.   The

question of whether the insanity defense would pose problems for

the jury should be asked in some form, but can be more carefully

tailored to fit the case.   See People v. Stack, 112 Ill. 2d 301,

313, 493 N.E.2d 339 (1986) (The insanity defense remains a

subject of intense controversy, known to be subject to bias or

prejudice); People v. Gregg, 315 Ill. App. 3d 59, 732 N.E.2d 1152

(2000).

     (2) We see nothing wrong with the trial court asking

potential jurors, on remand, whether they "believe that a person

can have a mental illness or disorder and still be guilty of a

crime as charged."


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     (3) We will not speculate on the contents of defense

counsel’s discussions with Dr. Corcoran, other than to say we

find nothing in the record that persuades us counsel did not

understand the legal standards for the presence of insanity.

     (4) The trial court should, on request of counsel, instruct

the jury that testimony about the contents of reports not

admitted into evidence may be considered only for the purpose of

weighing the expert witness’s credibility or lack of it.

CONCLUSION

     We reverse defendant’s conviction for armed robbery due to

the trial court’s failure to instruct the jury on the defense of

insanity.    Because the evidence is sufficient to support a

finding of guilty, we remand this cause for a new trial.

     Reversed and remanded.

     HOFFMAN, and HALL, JJ., concur.




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