                                    2019 IL App (1st) 172250
                                          No. 1-17-2250
                                 Order filed September 12, 2019
                                                                                     Fourth Division
______________________________________________________________________________

                                    IN THE
                        APPELLATE COURT OF ILLINOIS
                                FIRST DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,                          )   Appeal from the
                                                              )   Circuit Court of
          Plaintiff-Appellee                                  )   Cook County
                                                              )
     v.                                                       )   No. 12C6-60795
                                                              )
WENDELL S. FRAZIER,                                           )   Honorable
                                                              )   Allen Murphy,
          Defendant-Appellant.                                )   Judge Presiding.



          JUSTICE BURKE delivered the judgment of the court, with opinion.
          Justices Gordon and Reyes concurred in the judgment and opinion

                                           OPINION

¶1        Defendant, Wendell S. Frazier, was charged with attempted first degree murder,

aggravated discharge of a firearm, and aggravated unlawful use of a weapon (AUUW) after he

fired several gunshots at a vehicle being driven by Ryan McGhee on June 27, 2012. Prior to trial,

defendant indicated that he intended to rely on section 7-1 of the Criminal Code of 2012 (720

ILCS 5/7-1 (West 2012)) in that he was justified in the use of force in defending himself.

Defendant, a military veteran who did two tours of active duty in Iraq, sought to introduce the

testimony of several healthcare providers, including a retained clinical psychiatrist, to establish

his defense that at the time of the incident, he was suffering from combat-related post-traumatic
No. 1-17-2250

stress disorder (PTSD). The State filed a motion in limine to bar defendant’s clinical

psychologist from testifying as to defendant’s mental state at the time of the incident. The court

ruled that the clinical psychologist could testify but precluded the expert from testifying that “it

was the [PTSD] that caused [defendant] to act this way” because that was a question for the trier

of fact.

¶2         At trial, McGhee testified as to his version of the incident, and defendant testified

extensively regarding his experiences in Iraq and his version of the incident. Defendant also

presented the testimony of his former therapist at the United States Department of Veteran

Affairs (VA), a clinical psychologist for the VA, and an expert clinical psychologist in the field

of PTSD diagnoses. The court found defendant guilty of aggravated discharge of a firearm but

not guilty of attempted first degree murder. 1 After the court denied defendant’s motion for a new

trial, defendant filed this appeal.

¶3         On appeal, defendant contends that the court erred in precluding his expert from

testifying on the “ultimate issue” of the case, i.e., whether his PTSD “caused” him to arm himself

in his vehicle and fire his gun at McGhee’s vehicle. Defendant further contends that the court

erred in “substituting” its own lay opinion for that of the expert testimony on whether his

conduct was consistent with his PTSD and that the court erred in failing to consider evidence that

defendant subjectively believed that he was in imminent danger during the incident with

McGhee. For the reasons that follow, we affirm the judgment of the circuit court.

¶4                                            I. BACKGROUND

¶5                                                 A. Pretrial



           1
               The State nol-prossed the AUUW charges before trial.

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¶6     Prior to trial, in response to the State’s charges, defendant raised self-defense as an

affirmative defense. Defendant identified Dr. Joan Anzia as a potential witness and indicated that

defendant had already turned over Dr. Anzia’s written expert opinion in discovery. The State

filed a motion in limine to bar defendant’s use of psychiatric evidence or opinion testimony. The

State contended that because the expert was not with defendant at the time of the incident, the

expert would not be able to provide an opinion as to defendant’s mental state at the time. In

response, defendant filed a memorandum in which he contended that his PTSD was relevant to

explain his perception of the events and why he shot at McGhee’s vehicle.

¶7     Following a hearing on the State’s motion, the court found that Dr. Anzia could testify

but that she would be “very limited in what [she] can say.” The court found that Dr. Anzia could

testify regarding the diagnosis of PTSD and how it affects someone’s behavior because that

knowledge was not common to the layperson. The court found that the Dr. Anzia’s opinion,

however, “that it was the [PTSD] that caused [defendant] to act this way” was a question for the

trier of fact. “In other words, the doctor can testify *** what [PTSD] is, what affects [sic] it may

have on an individual. That [defendant] has been evaluated, and that he suffers from [PTSD].

**** But I believe it is beyond the scope of the experts to give the opinion that in this particular

instance it was the [PTSD] that caused [defendant] to act the way that he did.”

¶8                                            B. Trial

¶9     At trial, both McGhee and defendant presented largely similar accounts of what occurred

on June 27, 2012, with a few distinctions. McGhee was driving on Michigan City Road toward

Calumet City when he stopped at a stop light and started texting on his phone. He heard several

horn blasts from the vehicle behind him and realized that the light had turned green. He

proceeded into the intersection, and the honking vehicle behind him driven by defendant


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No. 1-17-2250

accelerated, went into oncoming traffic, and passed McGhee’s vehicle. After defendant passed

McGhee, he repeatedly applied his brakes directly in front of McGhee’s vehicle, and McGhee

was forced to apply his brakes to avoid rear-ending defendant’s vehicle. At trial, this was

referred to as “brake-checking.” Defendant testified that he was brake-checking McGhee because

McGhee was following him too closely and he was attempting to create some distance between

their vehicles.

¶ 10    Defendant “brake-checked” McGhee four or five times, and McGhee yelled at defendant

through his vehicle window. As the two vehicles neared the intersection with Pulaski Road,

defendant pulled onto the shoulder of Michigan City Road. Defendant testified that as McGhee

started to drive past defendant’s stopped vehicle, he could not see McGhee’s hands and he saw

McGhee make a movement. Defendant thought McGhee might be reaching for a gun, so

defendant pulled out a pistol and repeatedly fired toward McGhee, hitting his vehicle. Defendant

then continued driving on Michigan City Road. McGhee attempted to follow defendant, but his

vehicle had a flat tire and could not keep up with defendant. McGhee flagged down a police

officer and gave him a description of defendant and the vehicle.

¶ 11    Within 30 minutes of the shots being fired, McGhee saw defendant’s vehicle and pointed

it out to the police officer. After police stopped the vehicle, McGhee saw a woman in the vehicle

and another man who was not defendant. The following day, defendant turned himself into the

police, and McGhee identified defendant in a lineup. Defendant testified that after shooting at

McGhee’s vehicle, he gave the gun to his mother because “[i]t felt like it was gone be [sic]

destruction.”

¶ 12    Defendant also testified extensively regarding his experiences in the military, including

his two tours of combat in Iraq and his struggles since his return. Defendant testified that while


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he was in Iraq, he served as a rear gunner for a convoy. It was his responsibility to protect the

convoy from threats, particularly enemy vehicles. If an enemy vehicle approached the convoy,

protocol mandated that defendant would first yell “stop!” at the vehicle and shine a green light at

it. If the vehicle did not stop, defendant would then fire warning shots into the ground. If the

vehicle ignored the warning shots, defendant would “kill” the vehicle by shooting out the

vehicle’s engine and tires.

¶ 13   Defendant also testified about two incidents that occurred shortly before the shooting in

this case. Defendant testified that two weeks before the shooting, he was driving home when his

vehicle was hit by random gunfire. A few days before the shooting, defendant was driving on

95th Street and Stony Island Avenue when he pulled up alongside another vehicle. Defendant

called out to the driver of the other vehicle, and the driver pointed a gun at him. Defendant

testified that he felt scared and started carrying a gun on his person after that incident.

¶ 14   Tenisha Fennie testified that she was defendant’s clinical social worker and therapist

from the VA program. She evaluated defendant on a few separate occasions and recommended

that defendant undergo a psychiatric evaluation and attend follow-up appointments.

¶ 15   Dr. John Mundt, defendant’s treating clinical psychologist from the VA, testified

regarding the treatment that defendant received. Dr. Mundt believed that defendant had

symptoms of PTSD and, although defendant had improved through therapy, he still needed

additional treatment. Dr. Mundt testified that vehicles were a “huge stressor” for defendant given

his experience in Iraq and that symptoms vary from “veteran to veteran.” Dr. Mundt testified that

given his relationship with defendant, he “absolutely” did not think he could be a “neutral,

objective expert.”




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¶ 16   Defendant’s retained expert, Dr. Anzia, was qualified at trial as an expert in the field of

psychiatry, specifically in the diagnosis of PTSD. Dr. Anzia described the process for diagnosing

PTSD, how it is defined, and what symptoms someone suffering from PTSD may present. In

evaluating defendant, Dr. Anzia noted that he exhibited multiple symptoms in the

“hypervigilance and hyperarousal cluster,” meaning that he would set a perimeter when he was

in public places and avoided public spaces. She also noted that driving and vehicles were big

triggers for his PTSD.

¶ 17   Dr. Anzia testified that defendant suffered from PTSD and had a mild traumatic brain

injury. Over the State’s objection, Dr. Anzia testified that defendant’s decision to carry a firearm

in his car and the events on June 27, 2012, “were both consistent with and expectable

consequences considering [defendant’s] combat PTSD.” Dr. Anzia testified that the incident at

Stony Island Avenue a few days before the shooting in this case “ramped up” his symptoms and

that is when he put a handgun in his car. After the shooting, Dr. Anzia opined that defendant

experienced “dissociation” because defendant’s girlfriend reported that defendant’s eyes looked

frozen and he was speaking like a robot. Dr. Anzia testified that during a dissociative episode, a

person would have an altered mental state and not act as a reasonable person.

¶ 18   In rebuttal, the State presented the testimony of Calumet City police officer Mitch Growe

who observed defendant’s interview with an assistant state’s attorney (ASA) at the police station.

He noted that defendant never stated during the interview that he felt threatened by McGhee, that

he believed McGhee had a gun, or that he could not see McGhee’s hands.

¶ 19   Following closing argument, the trial court recounted the evidence presented regarding

the incident on June 27, 2012. The court noted that defendant braked “very hard” in an attempt to

cause McGhee to rear-end his vehicle. The court also found that McGhee’s actions were


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consistent with him being unarmed at the time of the incident. The court recounted defendant’s

testimony regarding his service in the United States military. The court found that based on Dr.

Anzia’s testimony, there was no doubt that defendant suffered from PTSD. The court determined

that the issue presented therefore was whether defendant’s PTSD prevented him from

formulating a criminal intent or whether the PTSD caused him to reasonably believe that he

needed to act in self defense.

¶ 20   The court found that defendant’s PTSD was not a defense in this case. The court

concluded that defendant voluntarily armed himself because of the two incidents he noted in his

testimony and that he did not arm himself because he was “reliving events of past military

service.” The court also found that defendant’s actions on June 27, 2012, were not consistent

with his PTSD. The court noted that in Iraq defendant was responsible for keeping enemy

vehicles away from the convoy. “So the question is why in the world would you brake check

another vehicle to draw him closer to your car which had the potential to cause a car accident.”

The court found that Dr. Anzia testified that vehicles were a trigger for defendant and that based

on her testimony, his hypervigilance would dictate that he would want to keep McGhee’s vehicle

as far away from him as possible and not draw him in by brake-checking.

¶ 21   The court found that defendant’s brake-checking of McGhee was circumstantial evidence

that defendant was looking for a confrontation. The court noted that defendant did not indicate

that he interpreted McGhee’s vehicle to be an enemy vehicle and defendant did not indicate in

his statement to the ASA that he was “reliving a combat situation.” The court further found that

defendant’s actions after the shooting were not consistent with a self-defense claim attributed to

his PTSD. The court noted that the first thing defendant did when he got home after the incident




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No. 1-17-2250

was call his mother and get rid of the gun, which the court found was evidence of consciousness

of guilt.

¶ 22    The court found, however, that defendant was not guilty of attempted first degree murder

because the evidence did not indicate that defendant had intent to kill. The court noted

defendant’s proficiency and expertise with using firearms and observed that the bullets in this

case were aimed toward the front of McGhee’s vehicle and the tires. Nonetheless, the court

found that there was “very compelling” evidence to support the charge of aggravated discharge

of a firearm and concluded that the State had proved defendant guilty of that charge beyond a

reasonable doubt. The court also found that the State had proved beyond a reasonable doubt that

defendant was not acting in self-defense and had no subjective belief that McGhee posed any

imminent threat of use of force against defendant. The court subsequently sentenced defendant to

24 months’ probation. Defendant now appeals.

¶ 23                                     II. ANALYSIS

¶ 24    On appeal, defendant contends that the court erred in precluding his expert from

testifying that his PTSD “caused” him to arm himself in his vehicle and fire his gun at McGhee’s

vehicle. Defendant further contends that the court erred in “substituting” its own lay opinion for

that of the expert testimony on the effect of his PTSD and that the court erred in failing to

consider evidence that defendant subjectively believed that he was in imminent danger during

the incident with McGhee.

¶ 25                                 A. Standard of Review

¶ 26    Initially, defendant contends that the preclusion of Dr. Anzia’s testimony regarding the

ultimate issue in the case and the court’s rejection of the expert’s testimony is somehow

accorded the de novo standard of review. Defendant claims that the court’s ruling on this issue

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No. 1-17-2250

was a legal error and the de novo standard of review applies where the issue raised is purely

legal. However, it is well settled that the admission of evidence is reviewed under an abuse of

discretion standard. People v. Becker, 239 Ill. 2d 215, 234 (2010) (citing Snelson v. Kamm, 204

Ill. 2d 1, 24 (2003)). This same standard applies even with regard to the trial court’s decision of

whether to admit expert testimony. Id. An abuse of discretion occurs where the trial court’s

decision is arbitrary, fanciful, or unreasonable or where no reasonable person would agree with

the position adopted by the trial court. Becker, 239 Ill. 2d at 234.

¶ 27   The remainder of defendant’s contentions appear to challenge the sufficiency of the

evidence presented to prove him guilty beyond a reasonable doubt and to defeat his claim of self-

defense. When considering a challenge to a criminal conviction based upon the sufficiency of the

evidence, we determine “ ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Sutherland, 223 Ill. 2d 187, 242

(2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard recognizes the

responsibility of the trier of fact to determine the credibility of the witnesses and the weight to be

given their testimony, to resolve any conflicts and inconsistencies in the evidence, and to draw

reasonable inferences therefrom. Sutherland, 223 Ill. 2d at 242.

¶ 28                            B. Dr. Anzia’s Excluded Testimony

¶ 29   Defendant first contends that the court erred in precluding Dr. Anzia from testifying on

the “ultimate issue” of the case, i.e., that defendant’s PTSD caused him to carry a gun and to

shoot at McGhee’s vehicle. Defendant asserts that it is uncontested that he suffers from PTSD

and that Illinois law permits experts to testify on the ultimate issue of the case. Defendant

maintains that his PTSD was central to his assertion of self-defense and the trial court’s decision


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No. 1-17-2250

to restrict Dr. Anzia’s testimony was a violation of defendant’s constitutional due process rights.

Defendant also contends that the court erred in limiting his own testimony regarding his

experiences in Iraq and the circumstances that led to his PTSD.

¶ 30   Here, in limiting Dr. Anzia’s testimony, the court found that it was beyond the scope of

the expert to give the opinion that in this instance it was defendant’s PTSD that caused him to act

the way that he did. The court found that this “ultimate conclusion” would be left to the trier of

fact. Defendant is correct, however, that an expert may testify to an ultimate fact or issue in the

case. Jacobs v. Yellow Cab Affiliation, Inc., 2017 IL App (1st) 151107, ¶ 105 (citing Zavala v.

Powermatic, Inc., 167 Ill. 2d 542, 543 (1995)). This testimony would not impermissibly tread on

the fact finder’s role because the fact finder is not required to accept the expert’s conclusion. Id.

¶ 31   Despite the trial court’s ruling, however, during Dr. Anzia’s testimony, defense counsel

asked her about her opinions regarding the affect of defendant’s PTSD. Over the State’s

objection, Dr. Anzia testified “that [defendant’s] decision to carry a firearm in his car and the

subsequent events on June 27, 2012 *** were both consistent with and expectable consequences

considering [defendant’s] combat PTSD.” The court overruled the State’s objections and stated

that it would give Dr. Anzia’s testimony “the appropriate weight.” Dr. Anzia then testified

extensively about PTSD itself, how defendant’s experience in the military caused him to suffer

from PTSD, and how PTSD manifests itself in certain behaviors, both in general and specifically

with regard to defendant. What the court precluded Dr. Anzia from testifying about, and what

defendant takes issue with here, is that defendant’s PTSD caused him to carry a gun in his

vehicle and caused him to shoot at McGhee’s vehicle. Despite not using this exact language,

however, Dr. Anzia testified that these actions were “consistent with and expectable

consequences” of defendant’s PTSD.


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¶ 32    Later in Dr. Anzia’s testimony, however, the trial court sustained the State’s objection

when Dr. Anzia testified to that opinion again. The court stated that Dr. Anzia could not testify

as to decisions that defendant made on the night of the incident because it was outside of her

expertise. The court found that defendant’s intent was an “ultimate issue” for the trier of fact to

determine. The court also noted that defendant had previously testified regarding why he carried

the gun with him in his vehicle. We find that the court’s ruling on this issue is supported by

Illinois law.

¶ 33    “The question of [a] defendant’s state of mind at the time of the crime [is] a question of

fact to be determined by the [trier of fact].” (Internal quotation marks omitted.) People v. Hulitt,

361 Ill. App. 3d 634, 637-38 (2005) (quoting People v. Raines, 354 Ill. App. 3d 209, 220

(2004)). An expert witness who was not present with a defendant while he or she commits a

crime is incapable of opining that said defendant acted with a specific mental state. See Hulitt,

361 Ill. App. 3d at 639 (an expert not present during the commission of a crime “would only be

able to testify to an opinion formed some three years after the offense rather than from personal

observation at or near the time of the offense”); People v. Pertz, 242 Ill. App. 3d 864, 902 (1993)

(because the expert did not observe the defendant on the night of the victim’s murder, “it would

have been impossible for him to opine with a reasonable degree of medical and psychiatric

certainty” whether the defendant acted intentionally). Rather, as the trial court found, allowing

expert testimony regarding defendant’s mental state at the time of the offense would “usurp[ ]

the province of the [trier of fact].” Pertz, 242 Ill. App. 3d at 903. Therefore, although Dr. Anzia’s

testimony would speak directly on the question of defendant’s mental state, it would

“impermissibly eliminate any possibility of the [trier of fact] determining for [itself] whether

defendant [acted] intentionally, knowingly, or recklessly.” Hulitt, 361 Ill. App. 3d at 640. Thus,


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No. 1-17-2250

while an expert may testify as to the ultimate issue in the case, as the supreme court noted in

Zavala, our case law is clear that an expert may not testify about a defendant’s mental state at the

time of the offense where the expert was not present to evaluate defendant at the time or shortly

thereafter. Rather, this is a question for the trier of fact, and an expert’s opinion that defendant

acted with a particular mental state at the time of the offense would usurp the trier of fact’s role.

¶ 34    We find this court’s holding in Hulitt relevant to our discussion here. In Hulitt, the trial

court granted the State’s motion in limine barring testimony from a psychologist as to the

defendant’s mental capacity at the time of the offense. Id. at 636. Defendant sought to introduce

testimony from the psychologist that at the time of the offense, defendant was suffering from

postpartum depression and that “ ‘as a result of her mental illness, she lacked the ability to cope

with the stress of parenting three children and she was unable to appreciate the danger of her

actions toward [the victim] on the night of the offense.’ ” Id. On appeal, the defendant contended

that the court erred in excluding the psychologist’s testimony regarding her mental state and the

effect of her postpartum depression on her mental state. Id. at 637. Defendant contended that she

sought to introduce the psychologist’s testimony to show that she did not have the requisite

intent to commit first degree murder. Id. This court found that the psychologist’s testimony that

defendant sought to introduce “sound[ed] more like a statement of diminished capacity than of

recklessness.” Id. at 640. The court held that because diminished capacity was not a defense

available in Illinois, the trial court did not abuse its discretion in barring that evidence. Id. The

court further found that because the expert had not evaluated defendant until three years after the

incident, the expert would be unable to testify regarding defendant’s mental state at the time of

the offense. Id. at 639.




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¶ 35   We find that the same principles apply here. Before the trial court and in his brief before

this court, defendant presented his defense as a self-defense, “justification” defense. As

discussed, infra, however, defendant’s contentions fall short of establishing this defense. Rather,

like the defendant in Hulitt, defendant’s arguments here are more appropriately viewed as an

attempt to assert a diminished capacity defense. Diminished capacity is an affirmative defense

that permits a “ ‘legally sane defendant to present evidence of mental illness to negate the

specific intent required to commit a particular crime.’ ” People v. Johnson, 2018 IL App (1st)

140725, ¶ 63 (quoting Metrish v. Lancaster, 569 U.S. 351, 351 (2013)); see also Black’s Law

Dictionary 199 (7th ed. 1999) (defining “diminished capacity” as “An impaired mental

condition—short of insanity—that is caused by intoxication, trauma, or disease and that prevents

the person from having the mental state necessary to be held responsible for a crime.”). As this

court noted in Hulitt, “[t]he doctrine of diminished capacity, also known as the doctrine of

diminished or partial responsibility, allows a defendant to offer evidence of her mental condition

in relation to her capacity to form the mens rea or intent required for commission of the charged

offense. [Citation.]” Hulitt, 361 Ill. App. 3d at 640. It is well-established, however, that the

affirmative defense of diminished capacity is not recognized in Illinois. Id. at 641.

¶ 36   Essentially, defendant contends that he sought to have Dr. Anzia testify that because he

had PTSD, he could not form the necessary mens rea to commit aggravated discharge of a

firearm, i.e., his PTSD “caused” him to carry a gun and shoot at McGhee’s vehicle. As noted,

however, “[a]n expert may not give an opinion supporting the doctrine of diminished mental

capacity because *** that doctrine is not recognized in Illinois.” Johnson, 2018 IL App (1st)

140725, ¶ 70 (citing Hulitt, 361 Ill. App. 3d at 641). Thus, the court properly excluded Dr.




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Anzia’s testimony that defendant’s PTSD “caused” him to carry a gun and shoot at McGhee’s

vehicle.

¶ 37   We further find that the court’s ruling did not violate defendant’s constitutional right to

present a defense. Both defendant and Dr. Anzia testified extensively regarding his PTSD and

how it affects him. Defendant also presented extensive testimony from Dr. Mundt regarding his

PTSD. Defendant argues that the court improperly prevented him from adequately testifying

regarding his time in Iraq and in two separate footnotes indicates that the defense prepared nearly

a dozen additional exhibits and was prepared to ask defendant to describe specifically the

experiences defendant had in Iraq that led to his PTSD. However, in reviewing the testimony of

defendant, we observe that defendant testified extensively regarding his military training, his

living conditions, his assignments in the military, and the traumatic incidents that occurred while

he was deployed. Defendant testified for nearly 100 pages of trial transcript. Crucially, nowhere

in defendant’s testimony did he suggest that his decision to carry a gun or shoot at McGhee’s

vehicle were somehow related to his PTSD. Moreover, although defendant makes references to

exhibits, no offer of proof was given, and as a result, we cannot say that the trial court abused its

discretion limiting defendant’s testimony.

       “[A] party claiming he has not been given the opportunity to prove his case must provide

       a reviewing court with an adequate offer of proof of what the excluded evidence would

       have been. [Citation.] In the absence of an offer of proof, the issue of whether evidence

       was improperly excluded will be deemed waived.” Chicago Park District v. Richardson,

       220 Ill. App. 3d 696, 701-02 (1991).

As discussed, infra, defendant’s defense failed not because his or his expert’s testimony was

improperly limited but because he failed to sufficiently establish a legally recognizable defense


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to the charged offense. As such, we find that the trial court did not abuse its discretion in limiting

Dr. Anzia’s testimony.

¶ 38                           C. Defendant’s Claim of Self-Defense

¶ 39   Defendant next contends that the court erred in “substitut[ing]” its own opinions

regarding PTSD for that of a qualified, unrebutted expert. Defendant asserts that the court’s

holding demonstrated its misunderstanding of how defendant’s PTSD changed his perception of

risk and how the court ignored the testimony of both Dr. Anzia and Dr. Mundt that defendant’s

actions were consistent with his PTSD. Defendant maintains that the court’s “independent[ ]”

determination that defendant’s actions were not the result of his PTSD was reversible error

where that finding was in contrast to the unrebutted expert testimony.

¶ 40   As noted, supra, although defendant classifies his defense as a justification self-defense

defense, the essence of his defense is a diminished capacity defense. As discussed, such a

defense is not recognized in Illinois. Examining defendant’s defense as a justification defense, as

he presented it, reveals that the trial court did not err in finding him guilty of the charged offense.

In order to establish that defendant was justified in the use of force in acting in self-defense,

defendant must demonstrate that (1) unlawful force was threatened against him, (2) defendant

was not the initial aggressor, (3) the danger of harm was imminent, (4) the use of force was

necessary, (5) defendant subjectively believed a danger existed that required the use of force, and

(6) defendant’s beliefs were objectively reasonable. People v. Lee, 213 Ill. 2d 218, 225 (2004);

see also 720 ILCS 5/7-1(a) (West 2016) (“A person is justified in the use of force against another

when and to the extent that he reasonably believes that such conduct is necessary to defend

himself or another against such other’s imminent use of unlawful force.”). Once defendant raises

the affirmative defense of self-defense, “the State has the burden of proving beyond a reasonable


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No. 1-17-2250

doubt that the defendant did not act in self-defense, in addition to proving the elements of the

charged offense.” Lee, 213 Ill. 2d at 224. If the State negates any one of the elements of

defendant’s claim, defendant’s claim must fail. Id. at 225.

¶ 41   Viewing the evidence in a light most favorable to the State (id.), we find that the court

did not err in rejecting defendant’s self-defense claim. At trial, McGhee testified that defendant

repeatedly brake-checked him after McGhee was inattentive at a green light. Defendant then

pulled to the side of the road and shot at McGhee’s vehicle. Thus, it is clear that defendant was

the initial aggressor, and because the State negated one element of defendant’s self-defense

claim, the claim must fail. Defendant argues, however, that the court improperly accepted

McGhee’s definition of brake-checking, stopping the vehicle abruptly in order to cause a

collision, but should have accepted defendant’s definition—tapping his brakes to discourage

McGhee from tailgating him. This question, however, is one of credibility of the witnesses. As

noted, the credibility of the witnesses and the weight to be given their testimony is a question for

the trier of fact. Sutherland, 223 Ill. 2d at 242. Here, defendant and McGhee gave differing

descriptions of what defendant’s “brake-checking” entailed. The trial court clearly accepted

McGhee’s definition of that term, finding that “the defendant’s actions in driving his vehicle ***

were not consistent with [PTSD] *** why in the world would you brake check another vehicle to

draw him closer to your car which had the potential to cause a car accident. That makes no sense

to me.” On review, we will not substitute our judgment for that of the trier of fact where the

evidence is merely conflicting. People v. Columbo, 118 Ill. App. 3d 882, 979-80 (1983) (citing

People v. Manion, 67 Ill. 2d 564, 578 (1977), and People v. Foster, 76 Ill. 2d 365, 373 (1979)).

¶ 42   Defendant contends, however, that because of his PTSD, he subjectively believed that

McGhee was reaching for a gun and acted in self-defense when he shot at McGhee’s vehicle. As


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discussed, however, defendant’s subjective belief that force was necessary is just one of the

elements of his self-defense claim. The court’s finding that defendant was the initial aggressor

was sufficient to defeat his claim. In addition, defendant initially testified that he believed

McGhee had a weapon because he could not see his hands and McGhee “made a move.”

Defendant later testified, however, in response to the court’s own questioning, that as McGhee

drove past him while defendant was stopped on the side of the road, he saw McGhee had one

hand on his steering wheel and his head and other arm were hanging outside of his driver’s side

window. This again raises a credibility determination as to whether defendant subjectively

believed that he was in danger and required to use force that was within the prerogative of the

trier of fact to resolve. Sutherland, 223 Ill. 2d at 242. The court’s ruling suggests that it did not

accept defendant’s testimony that he believed McGhee was reaching for a gun because he could

not see his hands. The court found that McGhee’s actions were consistent with him being

unarmed, and we will not substitute our judgment for that of the trier of fact unless the proof is

so unsatisfactory that a reasonable doubt of guilt appears. People v. Berland, 74 Ill. 2d 286, 305-

06 (1978). We do not find this to be such a case.

¶ 43   Defendant maintains, however, that the court improperly believed that in order for

defendant’s PTSD to be a factor in the incident, defendant must have believed that he was

transported back to Iraq and was “reliving” the experience. Defendant also asserts that the court

misunderstood Dr. Anzia’s explanation of defendant’s “hypervigilance” and mistakenly found

that defendant’s actions after the shooting were indicative of guilt despite Dr. Anzia’s testimony

that defendant was in a dissociative episode.

¶ 44    Defendant is correct that the court found that defendant had armed himself on the night

of the incident because of the incident a few days before the shooting where a person pointed a


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gun at defendant and not because he was “reliving events of past military service.” The court

further noted that defendant did not tell the ASA in his statement that he was “reliving a combat

situation.” In finding defendant guilty of aggravated discharge of a firearm, however, the court

found that defendant’s self-defense claim must fail because the state adequately proved that

defendant did not subjectively believe that McGhee posed any imminent threat of force against

him. The court’s comments regarding defendant’s PTSD thus illustrate its disbelief of

defendant’s testimony that he was not the initial aggressor and that he believed McGhee had a

gun. As noted, the trial court was not required to accept defendant’s and Dr. Anzia’s

explanations for the events. Indeed, in denying defendant’s motion for a new trial, the court

noted that it viewed defendant’s actions as a “case of road rage” and recognized that it was

“allowed to dismiss Dr. Anzia’s evidence and testimony in this case.” The court did not believe

that defendant’s PTSD was at all relevant to his actions.

¶ 45    In essence, the question before the trial court was whose version of the events was more

credible. Defendant attempts to frame the issue as whether or not his PTSD “caused” him to arm

himself and shoot at McGhee; however, this again resembles a diminished capacity defense,

which is not recognized in Illinois. Essentially, the court credited McGhee’s testimony that

defendant was the initial aggressor and that McGhee was unarmed. The court found that

defendant’s actions were not consistent with his PTSD, that defendant was the initial aggressor,

and that defendant did not subjectively believe that he needed to use force to protect himself

from an imminent threat of force. Accordingly, the court found that defendant’s self-defense

claim must fail. We find no basis to disturb that ruling and accordingly affirm the judgment of

the trial court.

¶ 46                                   III. CONCLUSION


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No. 1-17-2250

¶ 47   For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 48   Affirmed.




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No. 1-17-2250


                                 No. 1-17-2250


Cite as:                 People v. Frazier, 2019 IL App (1st) 172250


Decision Under Review:   Appeal from the Circuit Court of Cook County, No. 12C6-
                         60795; the Hon. Allen Murphy, Judge, presiding.



Attorneys                Michael A. Scodro, Marc R. Kadish, Vincent Connelly, Natalie
for                      Kissinger, and Chandra Critchelow, of Mayer Brown LLP, of
Appellant:               Chicago, for appellant.



Attorneys                Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for                      Spellberg, Annette Collins, and Brian A. Levitsky, Assistant
Appellee:                State’s Attorneys, of counsel), for the People.




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