                                          2015 IL App (3d) 120741

                               Opinion filed February 13, 2015
     _____________________________________________________________________________

                                                   IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                 A.D., 2015

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 12th Judicial Circuit,
                                                       )       Will County, Illinois.
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-12-0741
            v.                                         )       Circuit No. 10-CF-2658
                                                       )
     RODERICK TADEMY,                                  )       The Honorable
                                                       )       Sarah F. Jones,
            Defendant-Appellant.                       )       Judge, presiding.
     _____________________________________________________________________________

           JUSTICE O'BRIEN delivered the judgment of the court, with opinion.
           Justices Holdridge and Wright concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          The defendant, Roderick Tademy, appeals his conviction for attempted first degree

     murder, aggravated battery with a firearm, and aggravated battery of a child for shooting his

     12-year-old son in the head.

¶2                                                 FACTS

¶3          The defendant was charged by indictment with attempted first degree murder, aggravated

     battery with a firearm, and aggravated battery of a child for shooting his 12-year old son, O.T., in

     the head. The defendant was found fit to stand trial, and the case proceeded to a jury trial.
¶4          Antoinette Tademy, the defendant’s wife, testified that on December 20, 2010, she was at

     home with the defendant, their twin five-year old daughters, and O.T. Antoinette testified that

     the defendant had started drinking alcohol at around 7 a.m. on that day. By late afternoon, he

     had drunk a half of a large bottle of vodka, some beer, and some wine coolers, but Antoinette did

     not notice signs of intoxication. Later in the day, she decided to take the kids to the mall, so she

     went into her room to get dressed. O.T. was sitting in the living room, and the twins were eating

     dinner in the kitchen. Antoinette heard a loud clap, and then the defendant came into the

     bedroom, pointing a gun at her. She testified that he seemed abnormal and that he was angry and

     disconnected. The defendant asked her how she could let O.T. molest one of the twins. She told

     him that was not true. The defendant tried to hit Antoinette in the head with the gun, and she ran

     out of the bedroom toward the kitchen door.

¶5          Antoinette called out to O.T. to run away, but the defendant said that O.T. was dead.

     Antoinette went into the living room, where she saw O.T. sitting on the couch with a gunshot

     wound to the head. Antoinette testified that she called 911 and at that point the defendant

     “snapped out of it” and went to get a towel. Antoinette described it as the defendant coming

     back to normalcy. The defendant said that he was sorry and that he was losing his mind.

     Antoinette testified that the defendant had been acting abnormally, on and off, for about 3 1/2

     years, but she only noticed that abnormal behavior when he was drinking. She testified that the

     more he drank, the more delusions he seemed to have.

¶6          The defendant presented an insanity defense, offering the testimony of Dr. Bruce

     Frumkin, a clinical psychologist. Dr. Frumkin evaluated the defendant on two dates, for a total

     of about 5 ½ hours.      He did clinical interviews, administered several psychological tests,

     reviewed the defendant’s interrogation, reviewed the reports and notes of the State’s witness, Dr.

     Randi Zoot, and reviewed various Department of Correction, jail and police reports. In response

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     to a question on cross-examination by the State, Dr. Frumkin testified that it was his

     understanding that the defendant was diagnosed at the jail with some sort of depression due to an

     adjustment disorder at the jail.     According to Dr. Frumkin, the defendant suffered from

     schizophrenia, chronic paranoid type. Dr. Frumkin opined that it was extremely unlikely that the

     defendant's psychotic behaviors were caused by alcohol abuse. In fact, he opined that the

     alcohol had nothing to do with the defendant's delusional behavior. In his opinion, the defendant

     was insane at the time of shooting, in that the defendant did not appreciate the criminality of his

     actions when he shot his son in the head.

¶7          The State called Dr. Zoot, a clinical psychologist, as a rebuttal witness. She reviewed

     police reports, the videotape of the interrogation, the records from the county jail, and the

     medical records. She also met with the defendant on two occasions, and she was the doctor that

     found that the defendant was fit to stand trial. Zoot diagnosed the defendant with depression

     with psychotic features, and alcohol abuse, but found that he was sane when he shot his son. She

     found nothing unusual or outstanding about the defendant’s affect, and she found his responses

     to be appropriate. Dr. Zoot opined that the defendant had some mental issues and suffered from

     some delusions, but he was not insane because he appreciated the criminality of his conduct. Dr.

     Zoot testified that she reviewed the records from the jail to see if the defendant had any

     treatment, what his presentation was like at the jail, and what the jail evaluations showed. She

     testified that the jail psychiatrist had diagnosed the defendant with adjustment disorder with a

     depressed mood.

¶8          During closing arguments, the State went through all of the elements of the three offenses

     that the defendant was charged with and the evidence relevant to each element. The State also

     discussed the defendant's defense of insanity, or whether he was mentally ill, and the evidence

     relevant to the mental issue. Specifically, the State discussed the testimony of Drs. Zoot and

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       Frumkin, some of the physical evidence, and Antoinette's testimony. Defense counsel then made

       his closing argument, highlighting some of the evidence, and also discussing the testimony of

       both doctors. In rebuttal, the State argued that the defendant failed to meet his burden of proving

       that he was insane and focused on the evidence that showed that the defendant appreciated the

       criminality of his actions. In particular, the State argued that the defendant had a loaded gun on

       his person in his home, and he was feeling disrespected by and angry at O.T., but he was

       carrying on normal tasks of everyday life by playing video games and making dinner for the

       twins.    In addition, after shooting O.T., the defendant turned his rage to Antoinette and

       threatened her with the same gun. Then, the defendant told Antoinette that O.T. was dead. The

       State then argued the inferences that could be made from the defendant leaving the residence

       before the police arrived. As its last point in this argument, the State argued that the defendant

       was evaluated when he got to the jail and the jail psychiatrist found nothing wrong with him.

¶9              The jury was given verdict forms stating guilty, not guilty, guilty but mentally ill, and not

       guilty by reason of insanity. The jury found the defendant guilty of all charges. The defendant

       was sentenced to 50 years for attempted first degree murder, 50 years for aggravated battery of a

       child, and 30 years for aggravated battery with a firearm, all to run concurrently.

¶ 10                                                  ANALYSIS

¶ 11            The defendant argues that the evidence demonstrated that he suffered from paranoid

       schizophrenia, which left him unable to appreciate the criminality of his actions. Thus, he argues

       that the jury’s finding that he was sane was against the manifest weight of the evidence.

¶ 12            Under section 6-2(a) of the Criminal Code of 1961, a person is not criminally liable for

       his conduct if, at the time of such conduct, as a result of a mental disease or defect, he lacks the

       substantial capacity to appreciate the criminality of his conduct. 720 ILCS 5/6-2(a) (West 2010).

       Insanity is an affirmative defense, so the defendant bears the burden of proving it by clear and

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       convincing evidence. 720 ILCS 5/6-2(e) (West 2010); People v. Kando, 397 Ill. App. 3d 165,

       193 (2009). However, the State retains the burden of proving defendant guilty of the charged

       offense beyond a reasonable doubt. Id. at 194. The question of a defendant's sanity and mental

       illness are questions of fact, and the fact finder's determination on these issues will not be

       disturbed unless contrary to the manifest weight of the evidence. People v. Urdiales, 225 Ill. 2d

       354, 428 (2007).

¶ 13          It is the function of the trier of fact to assess the credibility of the witnesses and the

       weight to be given to their testimony. People v. McCullum, 386 Ill. App. 3d 495, 505 (2008).

       This rule also applies to expert opinions. Id. The fact finder is free to accept the opinion of one

       expert witness over another. Kando, 397 Ill. App. 3d at 196. The defendant argues that the

       opinion of the State’s expert was entitled to less weight because she did not perform any

       psychological testing and she “unduly relied” on the diagnosis of the jail psychiatrist. However,

       a review of the record indicates that she felt she could assess the defendant’s intelligence and

       psychological testing was not necessary. As for the jail psychology records, Zoot testified that

       she considered them along with the other information available to her. Many of the facts were

       not in dispute; the jury was provided with two expert opinions that reached opposite conclusions,

       along with lay testimony regarding the defendant’s actions. It was free to accept the opinion of

       the State’s expert that the defendant appreciated the criminality of his actions. As such, the

       jury’s finding that the defendant was sane was not against the manifest weight of the evidence. 1

¶ 14          The defendant contends that his sixth amendment right to confront witnesses was violated

       when Drs. Zoot and Frumkin referred to medical records from the jail and the doctors who


              1
                The defendant argues that there was no other reason for the shooting, so he must have been
              insane to shoot his son in the head. However, the commission of an incomprehensible crime is
              not in itself evidence of insanity. People v. Lono, 11 Ill. App. 3d 443, 449 (1973) (citing People
              v. Robinson, 22 Ill. 2d 162 (1961)).

                                                        -5-
       created those records did not testify. The defendant acknowledges that the issue was not raised

       in the trial court, nor in a posttrial motion, but asks for plain error review. Alternatively, the

       defendant argues that his counsel was ineffective for failing to raise the issue.         The State

       contends that there was no error in that Drs. Zoot and Frumkin both properly relied on the

       records to form the basis of their opinions regarding the defendant’s mental state.

¶ 15          The sixth amendment guarantees all defendants the right to be confronted with the

       witnesses against him. U.S. Const., amend. VI. When testimonial statements are offered into

       evidence, the sixth amendment requires that the witnesses be unavailable and that the defendant

       have had a prior opportunity to cross-examine that witness. Crawford v. Washington, 541 U.S.

       36, 42-43 (2004). In determining whether a report is testimonial, the Illinois Supreme Court

       applies a primary purpose test, asking whether the report was prepared for the primary purpose

       of accusing a targeted individual or for the primary purpose of providing evidence in a criminal

       case. People v. Leach, 2012 IL 111534, ¶ 122. Typically, we review de novo a defendant's

       claim that his sixth amendment right to confront a witness against him was violated because it

       presents a question of law. Id. ¶ 64. However, since the issue was not properly preserved, we

       review for plain error.

¶ 16          The first step in a plain error analysis is to determine whether a "plain error" occurred.

       People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007). The word "plain" in this context "is

       synonymous with 'clear' and is the equivalent of 'obvious.' " Id. at 565 n.2. If the reviewing

       court determines that the trial court committed a clear or obvious (or "plain") error, it proceeds to

       the second step in the analysis, which is to determine whether the error is reversible. Our

       supreme court has made clear that plain errors are reversible only when (1) "the evidence is so

       closely balanced that the error alone threatened to tip the scales of justice against the defendant,

       regardless of the seriousness of the error," or (2) the error is "so serious that it affected the

                                                       -6-
       fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of

       the closeness of the evidence." Id. at 565; People v. Herron, 215 Ill. 2d 167, 178-79 (2005).

¶ 17          The confrontation clause does not bar the admission of testimonial statements that are

       admitted for purposes other than proving the truth of the matter asserted. People v. Williams,

       238 Ill. 2d 125, 142 (2010), aff'd sub nom. Williams v. Illinois, — U.S. —, 132 S. Ct. 2221

       (2012). An out-of-court statement is hearsay if it is “a statement, other than one made by the

       declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

       matter asserted.” Ill. R. Evid. 801(c) (eff. Jan. 1, 2011); Leach, 2012 IL 111534, ¶ 6. The

       defendant argues that the jail psychiatrist’s diagnosis, “adjustment disorder with depressed

       mood,” was offered substantively for its truth. However, Illinois Rule of Evidence 703 (eff. Jan.

       1, 2011) permits an expert to base an opinion on facts or data not in evidence. See People v.

       Lovejoy, 235 Ill. 2d 97, 144 (2009) (a medical examiner’s testimony regarding a toxicologist

       report was not admitted for the truth of the matter asserted but, rather, introduced to show the

       steps the expert took in rendering his opinion); People v. Pasch, 152 Ill. 2d 133, 176 (1992) (an

       expert can testify as to nontestifying experts' findings and conclusions as support for his own

       findings).

¶ 18          Both experts testified that they reviewed the jail records. In response to a question on

       cross-examination by the State, Dr. Frumkin testified that it was his understanding that the

       defendant was diagnosed with some sort of depression due to an adjustment disorder at the jail.

       Dr. Zoot testified that she reviewed the records from the jail to see if the defendant had any

       treatment, what his presentation was like at the jail, and what the jail evaluations showed. She

       indicated that the records that were important to her were that the jail psychiatrist had diagnosed

       the defendant with adjustment disorder with a depressed mood and that there were no records of

       any symptoms of a significant mental disorder. Thus, the State argues that the jail psychiatrist’s

                                                       -7-
       diagnosis was not offered for the truth of the matter asserted, but offered to show the facts and

       conclusions underlying the experts’ opinions. We agree. However, the State referred to the jail

       psychiatrist in its closing, saying that the defendant was evaluated and never diagnosed with

       anything. Thus, it appears that even if the testimony was initially not offered as substantive

       evidence, it was argued as such by the State, which would be reversible error if the evidence is

       closely balanced. 2

¶ 19          As stated above, to establish plain error under the first prong, the defendant must

       demonstrate prejudicial error, i.e., there was error and the evidence was so closely balanced that

       the error threatened to tip the scales of justice against him. Herron, 215 Ill. 2d at 187. The

       defendant argues that the evidence was closely balanced because there was essentially a

       credibility contest between the two experts. The State argues that Dr. Frumkin’s testimony was

       incredible, because he testified that alcohol had nothing to do with the defendant’s actions, and

       Frumkin never connected the delusional thinking with the defendant’s inability to appreciate the

       criminality of the shooting.

¶ 20          Cases based solely on a credibility dispute have been found to be closely balanced.

       People v. Naylor, 229 Ill. 2d 584 (2008); see also People v. Lundell, 182 Ill. App. 3d 417, 420

       (1989) (evidence of insanity was closely balanced when the experts agreed that the defendant

       suffered from a mental disorder, but disagreed regarding whether the defendant was insane at the

       time of the crime). However, in this case, there was lay testimony from the defendant’s wife

       regarding the defendant’s alcohol use and his actions on the day of the shooting, which tended to

              2
                Since we find that the doctors’ reference to the jail psychiatrist’s diagnosis was not hearsay, but
              rather offered as the basis for their findings, the improper reference to the jail psychiatrist in the
              State’s rebuttal argument was not an error so serious that it affected the fairness of the
              defendant’s trial. See People v. Herron, 215 Ill. 2d 167, 187 (2005) (to prevail under the second
              prong of the plain error analysis, the defendant must show a serious error that caused a severe
              threat to the fairness of the trial and challenged the integrity of the judicial process).


                                                          -8-
       corroborate the testimony of Dr. Zoot. “[A] reviewing court must undertake a commonsense

       analysis of all the evidence in context when reviewing a claim under the first prong of the plain

       error doctrine.” People v. Belknap, 2014 IL 117094, ¶ 50. This case was not just a credibility

       contest, and considering all of the evidence of the defendant’s sanity, and the testimony

       regarding the defendant’s drinking habits, we find that the evidence was not closely balanced.

       Since the evidence on that issue was not closely balanced, the State’s reference to the jail

       psychiatrist’s diagnosis was not plain error.

¶ 21          In the alternative, the defendant argues that his trial counsel was ineffective for failing to

       object to the admission of the nontestifying psychiatrist’s opinion.         We review claims of

       ineffective assistance of counsel under the standards set forth in Strickland v. Washington: a

       defendant must show his counsel’s representation fell below an objective standard of

       reasonableness and that the performance prejudiced the defense of the case.            Strickland v.

       Washington, 466 U.S. 668, 687 (1984). Since we have concluded that the references to the jail

       psychiatrist’s diagnosis were properly offered to show the facts and conclusions underlying the

       experts’ opinions, the single reference by the State to the fact that the defendant was diagnosed

       with nothing at the jail was not sufficient to establish prejudice under Strickland. See People v.

       Albanese, 104 Ill. 2d 504, 525 (1984) (to show prejudice, the defendant must show a reasonable

       probability that, but for counsel’s error, the result of the proceeding would have been different).

¶ 22          The defendant argues that the trial court erred in not admonishing the jury regarding the

       principle that the defendant’s decision not to testify could not be held against him. A review of

       the record indicates that the trial court failed to ask potential jurors whether they understood and

       accepted the fourth principle of Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), that the

       defendant’s failure to testify cannot be held against him. The defendant argues that this error is

       reversible under the plain error doctrine because the evidence was closely balanced. The State

                                                       -9-
       acknowledges the error, but argues that it was not reversible error because the evidence was not

       closely balanced. As we have already found that the evidence was not closely balanced, we find

       that the trial court’s failure to ask the jurors whether they understood and accepted the fourth

       Rule 431(b) principle was not reversible error.

¶ 23          The defendant argues, and the State concedes, since we are upholding the attempted first

       degree murder conviction, the aggravated battery with a firearm and aggravated battery of a child

       convictions should be vacated under one-act, one-crime principles. See People v. Sullivan, 2014

       IL App (3d) 120312, ¶ 57 (convictions for less serious offenses must be vacated because multiple

       convictions are improper if they are based on the same physical act).

¶ 24                                        CONCLUSION

¶ 25          The attempted first degree murder conviction is affirmed, and the convictions for

       aggravated battery with a firearm and aggravated battery of a child are vacated.

¶ 26          Affirmed in part and vacated in part.




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