                                                                                THIRD DIVISION
                                                                                 October 15, 2008




No. 1-05-3260




THE PEOPLE OF THE STATE OF ILLINOIS,                  )      Appeal from the Circuit Court
                                                      )      of Cook County.
                       Plaintiff-Appellee,            )
                                                      )
v.                                                    )      No. 02 CR 29731
                                                      )
BRIAN McCULLUM,                                       )      Honorable Evelyn B. Clay,
                                                      )      Judge Presiding.
                       Defendant-Appellant.           )




       PRESIDING JUSTICE MURPHY delivered the opinion of the court:

       Following a bench trial, defendant, Brian McCullum, was found guilty of first degree

murder but mentally ill (720 ILCS 5/9-1(a)(1), 6-2(c) (West 2004)) for the November 1, 2002,

shooting death of Mario Davey. The victim was shot five times by defendant while working as a

security guard at the White Castle restaurant located at 1550 East 79th Street, Chicago, Illinois.

Defendant was sentenced to 45 years’ imprisonment for first degree murder (730 ILCS 5/5-8-

1(a)(1)(a) (West 2004)). This appeal followed the trial court’s denial of defendant’s posttrial

motions.

       Defendant does not dispute the trial court’s finding that he shot the victim, but asserts

several other issues on appeal. Defendant’s primary contention is that the trial court’s finding
1-05-3260

that defendant was mentally ill but not insane at the time of the murder was against the manifest

weight of the evidence. Defendant also asserts that he was denied a fair trial by the misstatement

of evidence during closing argument and the trial court’s consideration of inadmissible evidence

and incorrect facts. Defendant next contends that the State violated its obligation to provide the

defense with a specific statement as to the substance of a rebuttal witness’s testimony.

Defendant argues that he suffered from ineffective assistance counsel related to the handling of

the insanity issue. Defendant also contends that the trial court improperly found him fit to be

sentenced and that he is entitled to one additional day of sentence credit. For the following

reasons, we affirm the verdict of the trial court and order modification of the mittimus.

                                        I. BACKGROUND

       Pursuant to a February 5, 2003, consolidated referral order of the trial court, defendant

was evaluated by a psychiatrist with forensic clinical services of the circuit court of Cook

County, Illinois (Forensic Clinical Services), to determine his sanity and fitness to stand trial. In

an unsigned letter to the trial court, dated March 24, 2003, from Dr. Jonathan Kelly, a staff

forensic psychiatrist, defendant was found fit to stand trial following an evaluation on March 18,

2003. Kelly indicated that defendant understood the nature and purpose of the legal proceedings

and the consequences he faced and that he would be able to assist in his defense. Defendant

informed Kelly that he was not receiving psychotropic medication, but he refused to give consent

to allow Kelly to obtain his medication profile from Cermak Hospital. Kelly did not provide any

opinion about sanity because defendant asserted his fifth amendment right and refused to discuss

the shooting.

       The trial court entered a second consolidated referral order on March 25, 2003, ordering


                                                 -2-
1-05-3260

Forensic Clinical Services to evaluate defendant as to his fitness to stand trial with or without

medication, his sanity, and his ability to understand Miranda. On April 30, 2003, Dr. Fidel

Echevarria examined defendant to render a second opinion. Based on his clinical interview and

review of medical records, Echevarria opined that defendant was unfit to stand trial and subject

to involuntary hospitalization. Echevarria stated that defendant was unable to assist counsel due

to his preoccupation with paranoid and persecutory delusions. Defendant continued to refuse to

sign a release of information and Echevarria was unable to render an opinion as to sanity;

however, given defendant’s significant psychotic processing, poor insight and history of

violence, Echevarria opined that defendant was subject to involuntary hospitalization.

       Following yet another court order, Echevarria examined defendant again on August 29,

2003. On September 4, 2003, Echevarria opined that defendant was fit to stand trial with

medication. Echevarria stated that he had yet to be provided defendant’s medical and psychiatric

records from around the time of the shooting and could not render an opinion as to defendant’s

sanity at that time. Following another examination on January 6, 2004, Echevarria issued

another opinion letter on January 8, 2004, again opining that defendant was fit to stand trial with

medication. Echevarria also opined that, based on defendant’s psychiatric history of manifesting

psychotic thought processing and behaviors and that he was noncompliant with medication

treatment, he was legally insane at the time of the shooting.

       Also, on January 8, 2004, the trial court entered a referral order for a second opinion on

defendant’s sanity. On May 3, 2004, Dr. Roni L. Seltzberg rendered her opinion regarding

defendant’s mental state at the time of the shooting. Based upon evaluations of defendant on

February 13, 2004, and April 22, 2004, and a review of medical records, Seltzberg opined that

defendant was legally insane at the time of the shooting as a result of an acute exacerbation of

                                                 -3-
1-05-3260

defendant’s schizophrenic disorder.

       The State then sought a third opinion regarding defendant’s sanity by a doctor of its

choosing, Dr. Stafford Henry. The trial court denied the State’s request, but then granted its

motion to reconsider and allowed the State to proceed with a third opinion. Dr. Henry’s opinion

is not of record and he was not called as a witness.

       At trial, the State presented testimony of several witnesses to detail the events that led to

the fatal shooting of the victim and defendant’s flight and capture. Two restaurant employees

and two restaurant patrons testified to the events at the restaurant. Defendant arrived at the

restaurant around 12:30 a.m. and someone bought him a coffee, which he had refilled several

times. Defendant did not exhibit any odd behaviors until the shooting. Despite disheveled hair,

defendant appeared well-kempt, and his clothes, a dark jacket and dark pants, were clean.

Defendant quietly kept to himself and drank his coffee.

       Shortly before the shooting, defendant stood near the soda machine and then walked to

the second exit of the restaurant and stood looking outside for about five minutes. Defendant

then walked toward the victim and pulled out and fired a handgun at the victim. The victim

raised his hands in the air as the first shot missed him and hit a window and then tried to get his

own gun out of his holster. Defendant moved closer to the victim and fired the handgun several

more times from a distance of four or five feet from the victim. Defendant then quickly walked

out of the restaurant and ran across the street, through a parking lot east toward Stony Island.

       In addition to this testimony, video footage from the interior and exterior security cameras

of the restaurant was published at trial. The footage corroborated the testimony outlined above.

Defendant is shown waiting in line for coffee and sitting down at a table to drink his coffee

between 3:35 a.m. and 3:45 a.m. While defendant sat, the victim moved in and out of the view

                                                 -4-
1-05-3260

of the camera. At about 3:50 a.m. defendant got up from his seat, walked to the window and

drank his coffee with his back to the counter. At about 3:54 a.m. defendant walked back across

the restaurant toward the victim and shot the victim. Defendant then ran out of the restaurant,

knocking a garbage can over as he exited. The footage from the outside camera showed

defendant leaving the restaurant and running across the parking lot.

       One of the witnesses drove off to find a squad car to report the shooting. Responding to a

flash message of the shooting, responding officers saw defendant running eastbound on East 74th

Street, toward Stony Island and holding his midsection. Defendant ran to a gated mosque and

attempted to scale the fence when the police officers approached him, drew their weapons and

ordered defendant to the ground. Defendant complied with the officers, but as he was

handcuffed, a revolver fell from defendant’s midsection to the ground. Defendant kicked the

revolver underneath the fence and into the adjacent parking lot. Defendant appeared to

understand the situation and who the officers were. The revolver was recovered from the parking

lot and tested by the police.

       Defendant presented the testimony of Dr. Seltzburg in his defense. Seltzberg testified

that she saw defendant in 1998 upon a referral resulting from a misdemeanor assault charge.

Seltzberg opined that defendant had a psychotic disorder and prescribed antipsychotic

medication. Seltzberg next saw defendant on February 13, 2004, and April 22, 2004.

       Seltzberg testified that prior to the evaluation on February 13, 2004, she reviewed

numerous documents, including: defendant’s medication profile that indicated he was prescribed

antipsychotics; Dr. Echevarria’s reports that indicated defendant was fit to stand trial with

medication but legally insane at the time of the shooting; the police report of the shooting;

comments from defendant’s father that a gun had been stolen from his home, defendant had been

                                                 -5-
1-05-3260

diagnosed with paranoid schizophrenia when he was discharged from the military in 1987, and

that he was noncompliant with his medications; a report that defendant was discharged by the

United States Marine Corps because of mental illness and was currently on disability; and the

video surveillance footage from the restaurant. After the first evaluation in 2004, Seltzberg

reviewed additional documents, including: Veterans Administration (VA) Hospital records from

1984 that indicated defendant was delusional and had auditory hallucinations and that defendant

had been admitted to the hospital in 1993, 1996, and 1998; McNeal Hospital records indicating

defendant was admitted in July 2001 and diagnosed with paranoid schizophrenia; additional

records that indicated defendant was noncompliant with medications and had become religiously

preoccupied; and emergency room records from August 2001 where defendant had been brought

in for walking in the middle of the street, paranoid, delusional, and religiously preoccupied.

Seltzberg testified that she also reviewed records from August and October 2002 that indicated

defendant had been taking his medication and was doing well as late as October 24 and 28, 2002,

when he was treated for a respiratory infection and hemorrhoids, but was not found certifiable by

the VA psychiatrist.

       Seltzberg also reviewed records from November 4, 2002, and February, March, and April

2003. These records indicated that defendant was exhibiting paranoid behavior and having

auditory hallucinations. Treater impressions from this time period ranged from schizophrenia to

major depressive disorder with psychotic features. Seltzberg indicated that one psychologist,

likely a Dr. Mionette,1 made a note that she felt that defendant could be malingering. Seltzberg


       1
           The spelling of “Mionette” in the record was done phonetically in two different spellings

and, for purposes of this opinion, we will utilize this spelling.


                                                  -6-
1-05-3260

stated that this was likely based on presentation and not a diagnosis. This was not introduced

into evidence as an opinion and Dr. Mionette did not testify. Defendant was sent to the general

hospital population initially, though he was later administered antipsychotic medications and

continued to complain of auditory hallucinations. The records from 2003 indicated that

defendant had refused to take his medications, threatened others, required restraints and was

eventually forcibly administered medications.

       Seltzberg testified that during her February 2004 evaluation, defendant claimed that he

was given a shot of poison by the military. Seltzberg opined that defendant was not compliant

with his medications because he did not have a good insight regarding his illness. In April 2004,

defendant told Seltzberg that he had not been taking his medication at the time of the shooting

because it made him drowsy. Seltzberg testified that defendant said he felt threatened by a man

with a tattoo so he climbed through a window of his father’s house to steal his father’s revolver

for protection.

       Defendant said that he stopped at the White Castle on the night of the shooting on his

way to a meeting at the mosque. Defendant claimed that he had never been to the restaurant

before despite the police report noting that he had recently been kicked out of the restaurant.

Defendant told Seltzberg that he felt sleepy even though he was drinking coffee and that he saw

signaling between the victim and the restaurant employees. Thinking they had put something in

his coffee, defendant said he felt threatened, shot the victim in the head and ran to the mosque.

       Seltzberg testified that she diagnosed defendant with schizophrenic chronic paranoid type

and concluded that he was legally insane at the time of the shooting. She based her opinion on

the evidence of schizophrenia that he was acutely psychotic at the time, and his prior history of




                                                -7-
1-05-3260

violent behavior. Also, important to her diagnosis was defendant’s lack of motive. Seltzberg

testified that her opinion would not change even if she were informed that defendant had been

punched by the security guard who kicked him off the property.

       Seltzberg testified that she found no evidence of malingering, instead finding that

defendant attempted to minimize or deny any psychotic behavior. Seltzberg testified that even

though defendant was symptomatic and delusional at the time of the shooting, his behavior

would not necessarily have been bizarre or erratic and agreed that he appeared to be acting

normally on the security video.

       On rebuttal, the State presented the testimony of Melvin Mickens, a City of Chicago

police officer who also worked as a security guard, and Larry McCullum, defendant’s father.

Mickens testified that on October 28, 2002, he worked as a security guard at the White Castle

from 10:00 p.m. to 6:00 a.m. Mickens testified that when he arrived that night he told defendant

he could not beg for money by the entrance and that he would have to leave. A few minutes

later, Mickens saw that defendant had remained by the entrance so he went outside and punched

defendant in the face, grabbed him by the throat and slammed his head against the brick wall.

Defendant then left the area.

       Mickens admitted that he did not record this incident in writing or inform the assistant

State’s Attorney about the incident until a couple months before trial. Mickens testified that he

did inform the investigating detectives that he saw defendant at the restaurant on October 28,

2002, and asked him to leave because he was begging for money. Mickens did not inform the

detectives that he had punched defendant.

       Defendant’s father testified that the gun in evidence looked like his gun. He testified that




                                                -8-
1-05-3260

on October 28, 2002, defendant had entered his home while he was at church. After he learned

that defendant might have stolen his gun, he noticed that his gun was missing.

       Following closing arguments, the trial court entered its verdict of guilty but mentally ill.

The trial court specifically found: that Seltzberg testified that defendant was in remission in

August 2002 and taking his medication; that defendant went to the emergency room on October

24, 2002, and a psychiatrist found him not certifiable; that defendant was again treated at the

hospital on October 28, 2002, and there was no indication of psychiatric disorder or illness at that

time; and that on November 4, 2002, defendant was diagnosed with a major depressive disorder

with psychiatric features and that he was malingering. The trial court found that the close

proximity of these dates to the incident and the evidence at trial indicated that defendant was not

insane at the time.

       The trial court found that the evidence indicated that defendant planned the shooting in

revenge. The trial court stated that Mickens beat defendant and kicked him off the property. In

response, defendant broke into his father’s home and stole his father’s revolver. Days later,

defendant armed himself with the revolver, returned to the restaurant and waited quietly for an

opportunity to shoot the victim. The trial court noted that the security video and testimony

showed that before the shooting defendant got up, walked around the restaurant and looked out

the vestibule and exit. Furthermore, the trial court noted that defendant immediately fled after

the shooting and as he was apprehended, kicked the gun away from the police.

       Defendant filed several posttrial motions to vacate the trial court’s finding of guilty but

mentally ill and for a new trial. Defendant also argued that Mickens’ inconsistent testimony did

not support the verdict. The trial court denied defendant’s argument that the verdict was against




                                                 -9-
1-05-3260

the manifest weight of the evidence.

       Defendant also filed a motion to vacate the verdict based on newly discovered evidence.

Defense counsel was informed after trial that defendant was hospitalized on October 28, 2002,

With his motion, defendant submitted copies of a medical record and “EMS” report that

indicated defendant was transported via ambulance to St. James Hospital in Chicago Heights,

Illinois, at 9:59 p.m. and admitted to the hospital at 10:33 p.m. on that date. Accordingly,

defendant argued that this showed that he was not at the restaurant at the time that Mickens

claimed and that no motive existed as the State argued. The trial court denied the motion,

finding that the State overwhelmingly proved its case.

       At defendant’s sentencing hearing, the trial court heard further argument on defendant’s

motion for a new trial. Defense counsel attempted to argue that Dr. Henry, the State’s own

doctor requested for a third opinion on sanity, also opined that defendant was legally insane at

the time of the shooting. The trial court stated that this evidence was not presented at trial and

upheld its denial of defendant’s motion. Following argument on aggravation and mitigation,

defendant spoke to the trial court. Defendant made a long speech that included claims that he

was injected with a mind-altering substance by the Marine Corps, he never had contact with

Mickens, and he believed that drugs had been added to his coffee on the night of the shooting.

Defendant received a sentence of 45 years’ imprisonment for first degree murder with 1,049

days’ credit for time served. Defendant does not dispute that he shot and killed the victim, but

now appeals his conviction sentence.

                                          II. ANALYSIS

                                    A. Determination of Sanity




                                                -10-
1-05-3260

       Defendant argues that the trial court erred in finding that he was mentally ill but not

insane at the time of the shooting. In Illinois, a person is not criminally responsible for conduct

if, at the time of the conduct, he suffered from mental disease or defect, such that he lacked

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

2004). Where a defendant raises the affirmative defense of insanity, he bears the burden of

proving by clear and convincing evidence that he is not guilty by reason of insanity, while the

State retains the burden of proving guilt beyond a reasonable doubt. 720 ILCS 5/6-2(e) (West

2004). Where a defendant fails to prove his insanity but has proven that he is mentally ill and the

State has proven his guilt beyond a reasonable doubt, the trial court may find the defendant guilty

but mentally ill. 725 ILCS 5/115-3(c) (West 2004).

       The questions of a defendant’s sanity and mental illness are questions of fact, and the fact

finder’s resolution of these questions will not be disturbed unless contrary to the manifest weight

of the evidence. People v. Urdiales, 225 Ill. 2d 354, 428 (2007), citing People v. Johnson, 146

Ill. 2d 109, 128-29 (1991). As the defendant bears the burden of proof, the State does not need to

present expert testimony on the issue of sanity but may rely purely on facts in evidence and the

inferences that follow from those facts. People v. Gilmore, 273 Ill. App. 3d 996, 1000 (1995).

Bizarre behavior or delusional statements do not compel an insanity finding as a defendant may

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

       It is the function of the trier of fact to assess the credibility of witnesses, the weight given

to their testimony, and the inferences to be drawn from the evidence. People v. Cox, 377 Ill.

App. 3d 690, 697 (2007). The trier of fact is in the best position to view a witness while he or

she is being questioned and may believe as much, or as little, of any witness’s testimony as it




                                                 -11-
1-05-3260

sees fit. People v. Mejia, 247 Ill. App. 3d 55, 62 (1993). This rule also applies to expert

opinions on sanity, and the weight of such an opinion is to be determined by the reasons given

and the facts supporting the opinion. People v. West, 231 Ill. App. 3d 646, 650 (1992). Expert

testimony may be entirely rejected by the trier of fact if he or she concludes a defendant was sane

based on factors such as: whether lay testimony is based on observations made shortly before or

after the crime; the existence of a plan for the crime; and methods undertaken by the defendant to

prevent detection. West, 231 Ill. App. 3d at 651.

       In this case, defendant’s argument, which the dissent adopts, is that the trial court’s

decision to ignore the uncontroverted expert opinions of Drs. Seltzberg and Echevarria was

against the manifest weight of the evidence. Defendant argues that the inconsistent and

impeached testimony of Mickens further supports reversal because the trial court specifically

relied on this testimony in finding that defendant acted in revenge. Defendant asserts that when

this improper evidence is removed, the only evidence remaining is wholly consistent with

Seltzberg’s opinion that defendant was insane and that he acted in line with his insane delusions.

       As our case law outlined above makes clear, the trial court is the fact finder, that must

determine the credibility of witnesses and assess the weight afforded to their testimony and the

evidence at trial. For reversal, it is not sufficient that there is evidence to support defendant’s

argument or even that, were we the trier of fact, we would have found clear and convincing proof

of insanity. The standard by which we must review the trial court’s denial of defendant’s

affirmative defense is whether its decision was against the manifest weight of the evidence. We

will not substitute our judgment for the trial court’s regarding the weight of the evidence, the

credibility of the witnesses, or the inferences to be drawn from the evidence.




                                                 -12-
1-05-3260

       We agree with the State that Gilmore and West are instructive. In Gilmore, the defendant

was found in the basement of a home she had broken into alongside property she had stolen from

the house. Upon discovery, the resident searched his house for an intruder and then boarded up

the window that the defendant had broken to enter the basement. When he later found the

defendant, she was lying under a blanket in the basement near the broken window. The resident

took the defendant upstairs and called the police, and when he asked the defendant why she

broke in, she responded that she was homeless and had nowhere else to go. Gilmore, 273 Ill.

App. 3d at 997-98.

       At trial, the defendant presented the testimony of two doctors who opined that she was

legally insane at the time of the burglary. One psychiatrist examined the defendant on two

occasions while the other doctor examined defendant only once. All of these evaluations were

conducted several months after the incident. Both psychiatrists reviewed the defendant’s

psychiatric records and the police report of the incident. Gilmore, 273 Ill. App. 3d at 998-1000.

       Weighing the expert opinions, the lay testimony and evidence, the trial court found

defendant sane but mentally ill. The trial court opined that the lay testimony and circumstances

of the case refuted the opinions of the psychiatrists. The trial court reasoned that neither doctor

could substantiate his or her basis for finding that the defendant was not malingering. The

doctors also failed to address that one basis for their insanity opinion, that the defendant did not

flee, was foreclosed by the resident’s boarding of the broken window. The defendant’s lack of

delusional response to the resident’s query after being caught was also cited as support for a

finding of guilty but mentally ill. Gilmore, 273 Ill. App. 3d at 1000. This court affirmed the trial

court, holding that, upon these facts, the trial court’s finding was not against the manifest weight




                                                -13-
1-05-3260

of the evidence. Gilmore, 273 Ill. App. 3d at 1001.

       In West, the defendant was found guilty but mentally ill on charges of attempted

aggravated criminal sexual assault, attempted criminal sexual assault, aggravated kidnapping and

aggravated battery. West, 231 Ill. App. 3d at 647. The trial court in West also came to this

finding over the opinions of two psychiatrists who evaluated the defendant several months after

the incident and found him legally insane at the time of the incident. West, 231 Ill. App. 3d at

648-50. The trial court found that the testimony of the victim, a witness and the arresting police

officer indicated that the defendant had a plan to assault the victim, took her to a secluded area to

prevent detection and fled when the victim was able to scream for help. Furthermore, each of the

witnesses testified that the defendant appeared normal, coherent and remorseful before, during,

and after the attack. West, 231 Ill. App. 3d at 651.

       Despite defendant’s protestations that Mickens’ testimony and the evidence supporting

the alleged motive was either improper or incredible, the trial court based its decision primarily

on the testimony and evidence of defendant’s condition immediately surrounding the shooting.

The trial court concluded that this evidence outweighed Seltzberg’s opinion, which was

formulated 15 to 17 months after the shooting. The trial court stated that the evidence provided

further support for its conclusion that the medical records indicated defendant was sane as it

showed that defendant contemplated and planned the shooting in revenge.

       In support, the trial court noted that despite living in a shelter at the time, defendant

returned to the White Castle that he had been kicked out of and where Mickens had beaten him.

Defendant had broken into his father’s home, stole his father’s revolver, and returned to the

White Castle. The trial court noted that the security video and testimony showed that defendant




                                                -14-
1-05-3260

waited quietly for an opportunity to shoot the victim. Before the shooting, defendant got up,

walked around the restaurant and looked out the vestibule and exit. Furthermore, the trial court

noted that defendant immediately fled after the shooting and kicked the gun away from the police

as he was apprehended.

       It is true, as defendant contends, that these facts do not evidence meaningful interactions

between the witnesses and defendant as in Gilmore and West. Defendant also notes that, unlike

in West, in this case there was no evidence that defendant was read his Miranda rights or that he

understood his rights. It is also true that defendant did shoot the victim in plain sight unlike the

defendant in West who took his victim into a secluded area to conceal the crime. However, the

facts of this case are more applicable to these cases than defendant maintains.

       The testimony of the restaurant employees and patrons, in addition to the security video

footage, gave the trial court several corroborating impressions of defendant’s behavior. While

there was no real interaction prior to the shooting, the witnesses recalled defendant’s behavior for

a long period of time and the police officers testified that when he was arrested, defendant

appeared to understand the situation. Further, defendant attempted to conceal his involvement in

the crime by kicking the revolver under the fence away from the arresting officers.

       What is more important, and what makes this case stronger for the State than those in

Gilmore and West, are the medical records in evidence from defendant’s care both before and

after the incident. As noted above, Seltzberg testified that defendant was in remission in August

2002 and taking his medication. The evidence showed that defendant went to the emergency

room on October 24, 2002, and a psychiatrist found him not certifiable. He was at the hospital

again on October 28, 2002, and there was no indication of psychiatric disorder or illness at that




                                                -15-
1-05-3260

time. Finally, after the shooting, on November 4, 2002, defendant was diagnosed with a major

depressive disorder with psychiatric features. There also was an indication that he might be

malingering and was placed in the general hospital population. The trial court found that the

close proximity of these dates to the incident and the evidence at trial indicated that defendant

was not insane at the time.

       There is no dispute that defendant is mentally ill and had been diagnosed with mental

illness well before the shooting. In fact, this case is admittedly close and difficult as there was

support at trial that a finding that defendant was legally insane at the time of the shooting would

be reasonable. However, that is not the question that we must answer. There also was support

for a finding of guilty but mentally ill. Like in Gilmore and West, the medical experts examined

defendant several months after the incident and several witnesses testified to defendant’s

behavior and actions. Furthermore, unlike Gilmore and West, in this case there also was

significant medical documentation of defendant’s mental and physical state leading up to, and

immediately after, the shooting. We cannot say that the trial court’s holding was unreasonable,

arbitrary or unsupported by the evidence. Accordingly, we affirm the trial court’s denial of

defendant’s affirmative defense.

                                      B. Right to a Fair Trial

       Defendant next argues that he was denied his right to a fair trial because of prosecutorial

misconduct and the trial court’s use of inadmissible evidence and erroneous conclusions in

finding that defendant was sane at the time of the shooting. Defendant asserts that the State

argued, without evidentiary basis, that defendant was “gaming” the system, that a doctor opined

defendant was malingering, and that the State misstated the evidence to argue that defendant




                                                 -16-
1-05-3260

acted in revenge. Defendant claims that the trial court then rested its opinion on this

inadmissible evidence and improper conclusions, also resulting in a violation to his right to a fair

trial.

         The State argues that the failure to make a timely objection and renew it in a posttrial

motion operates as a waiver of the right to argue that issue on appeal. People v. Enoch, 122 Ill.

2d 176, 187 (1988). The State asserts that both of these issues were waived for purposes of

review as defendant failed to preserve them. Defendant admits that these issues were not

properly preserved. However, defendant asserts that this court should review these issues as

plain error pursuant to Illinois Supreme Court Rule 615(a). 134 Ill. 2d R. 615(a). Nonpreserved

errors may be reviewed on appeal if the evidence is closely balanced or where the errors are of

such a magnitude that defendant was denied a fair and impartial trial and remedying the error is

required to preserve the integrity of the judicial process. People v. Johnson, 208 Ill. 2d 53, 64

(2004). Because the evidence was close and defendant’s allegations implicate the constitutional

protections of a fair trial and a right to confront witnesses, we consider each issue under plain

error review.

                                    1. Prosecutorial Misconduct

         In reviewing allegations of prosecutorial misconduct, this court must consider the

arguments of both the prosecutor and the defense in their entirety and place the allegations of

improper comments in context. People v. Evans, 209 Ill. 2d 194, 225-26 (2004). The

prosecution has the right to comment on the evidence presented at trial and draw all reasonable

inferences deducible therefrom. People v. Simms, 192 Ill. 2d 348, 396 (2000). The prosecution

may also respond to comments made by defense counsel. People v. Abadia, 328 Ill. App. 3d




                                                 -17-
1-05-3260

669, 678 (2001). It is well settled that prosecutors enjoy wide latitude in closing arguments and

that the scope of permissible argument rests within the sound discretion of the trial court. People

v. Griffin, 368 Ill. App. 3d 369, 376 (2006). Any improper comments or remarks made by a

prosecutor in closing arguments are not reversible error unless they are a material factor in the

conviction or cause substantial prejudice to the accused. People v. Sutton, 316 Ill. App. 3d 874,

893 (2000).

       Defendant argues that, faced with no expert testimony to counter the opinion of Dr.

Seltzberg, the State misstated the evidence to try and discredit her opinion. Defendant contends

that the State argued, without evidentiary basis, that: defendant was experienced at “gaming” the

system; Dr. Mionette, who saw defendant just days after the shooting, opined that he was

malingering, and defendant returned to the restaurant after stealing the gun in response to being

beaten by Mickens. Defendant argues that the trial court’s findings demonstrate that it accepted

these unsupported claims as facts and he was denied a fair trial as a result. Defendant concludes

that the State’s cavalier attitude toward these representations is especially inappropriate in light

of the recent line of cases where our supreme court has reaffirmed its “intolerance of

prosecutorial misconduct.” People v. Wheeler, 226 Ill. 2d 92, 122 (2007); see also People v.

Johnson, 208 Ill. 2d 53 (2003); People v. Nelson, 193 Ill. 2d 216 (2000); People v. Blue, 189 Ill.

2d 99 (2000).

       We are certainly mindful of these cases and note that this court has also expressed serious

concerns with the aggressive and cavalier attitude that some prosecutors deem necessary to

adopt. While we agree the State’s presentation of its case was deficient in some areas, the

behavior of the prosecutor in this case did not rise to the level of a persistent and pervasive




                                                 -18-
1-05-3260

pattern of misconduct so egregious to warrant a new trial as exhibited in the line of cases above.

The trial court heard all of the testimony and reviewed the evidence. The trial court therefore

was able to assign weight to testimony as it saw fit, and we operate under the rebuttable

presumption that the trial court relies only on proper argument and evidence in making its

decision. People v. Gilbert, 68 Ill. 2d 252, 258-59 (1977).

       Based on the entire record and the trial court’s holding, the prosecutor’s argument did not

exceed the bounds of proper argument. First, the State’s comment that defendant was “gaming”

the system was brief and not repeated. Further, the trial court did not cite this argument as

support for finding defendant legally sane.

       With respect to the trial court’s statement that the medical records reviewed by Seltzberg

included a “finding” by Dr. Mionette that defendant was malingering on November 4, 2002,

defendant claims that Seltzberg only testified that defendant was not diagnosed with malingering

but that it was based on presentation. Seltzberg continued that defendant minimizes any

psychotic disorders, but he may have been acutely psychotic on November 4, 2002, because he

did not minimize his symptoms. The State then sought clarification and asked whether Dr.

Mionette indicated that defendant was malingering and Seltzberg responded:

               “DR. SELTZBERG: I can only answer that by saying anyone that might

       have seen him initially might probably would not have had his records, and he

       might have seen him initially might probably would not have had his records, and

       he might not have described what his history was, so the suggestion or the

       impressions or diagnosis of malingering, you would base only on the initial

       presentation and the doctor’s initial thoughts just maybe.”




                                                -19-
1-05-3260

       Seltzberg testified that she was not present for these evaluations and that she did not

know what records were reviewed. Seltzberg added that she was uncertain if it was Dr. Mionette

that made that notation. Whether or not it was Mionette or another doctor, Seltzberg’s testimony

supports an inference that a doctor made a “finding” that defendant was malingering. The State

argued that Dr. Mionette said defendant was malingering and the trial court noted that Mionette

made a “finding” that defendant was malingering. There was not an improper argument that this

was a definitive diagnosis, just that, in addition to the other medial records from around the time

of the shooting, this finding or statement, whatever term is applied, supported the conclusion that

defendant was legally sane at the time of the shooting.

       Defendant finally argues that the inferences argued by the State regarding the gun that

defendant stole from his father and Mickens’ testimony are clearly wrong based on opposite

inferences. While the dates from testimony and evidence do not align, especially considering the

newly discovered evidence of defendant’s ambulance transport and treatment, the trial court

heard the testimony of the witnesses and was able to assign weight to each piece of evidence.

The State argued the testimony presented at trial. Importantly, the trial court specifically held,

and reiterated during posttrial proceedings, that it found defendant sane at the time of the

shooting based on the medical records from immediately before and after the shooting.

Accordingly, even if these comments were in error, they were not a material factor in the trial

court’s holding and defendant did not suffer substantial prejudice.

            2. Trial Court’s Use of Inadmissible Evidence and Erroneous Conclusions

       Defendant’s second argument that his right to a fair trial was violated follows from above.

Defendant contends that the trial court rejected Seltzberg’s opinion because it found there was no




                                                -20-
1-05-3260

indication that defendant was experiencing acute psychiatric impairment around the time of the

shooting and that defendant had planned the shooting to exact revenge for the beating.

Defendant asserts that these conclusions were based on inadmissible evidence or were contrary to

the evidence.

       Defendant argues that the trial court’s conclusions that defendant was not symptomatic at

the time of the shooting were based on faulty readings of the medical records from October and

November 2002. The trial court concluded that the fact that the psychiatric hospital evaluated

defendant on October 24, 2002, and he was deemed not certifiable was evidence of his sanity.

Defendant maintains that the simple fact that he was sent for a psychiatric evaluation when

seeking treatment of a respiratory infection requires a conclusion that he was symptomatic.

Further he argues that the fact he was not certifiable only shows that he was not an imminent

danger to himself or others and was not proof of his sanity. Likewise, the failure to note any

psychotic presentation during his treatment for hemorrhoids on October 28, 2002, also is

unreasonable to support a sanity finding.

       Finally, defendant argues that the trial court’s citation to the malingering finding by Dr.

Mionette was inappropriate because it was hearsay and inadmissible. Seltzberg testified that the

medical records she reviewed, and relied upon, indicated that a finding was made that defendant

might be malingering. The trial court recounted details from the records from each of these dates

to reject Seltzberg’s opinion. The records were not substantive evidence, but were testified to by

Seltzberg in how she formed her opinion. With respect to the records from before the shooting,

the record does not indicate why defendant was evaluated by the psychiatric department or

whether it was routine because of his medical history. The fact remains that he was found not




                                               -21-
1-05-3260

certifiable and that no notation of any presentation of mental illness was made in these records.

We agree that the evidence was closely balanced, but that does not lead to the conclusion that the

trial court was clearly erroneous in making its conclusions.

        Defendant also argues that the trial court erred in determining that defendant planned the

shooting, because there were inconsistencies in Mickens’ testimony and the State failed to prove

when the gun was actually stolen. As we have noted above, the trial court rested its opinion on

the medical records and only cited to the other evidence as additional support for its finding. We

also have noted that there were holes in this string of evidence provided; however, that does not

require reversal in this case as the trial court did not rest on this evidence. Furthermore, as the

trial court stated in posttrial proceedings, the timeline was irrelevant as the fact would remain

that defendant stole the gun, the trial court found that defendant was kicked off the restaurant

property, and defendant subsequently returned to the restaurant with the gun and methodically

shot the victim. While the facts as originally presented are stronger than this version, it cannot be

said that the trial court rested on these erroneous facts.

                       C. State’s Disclosure of Rebuttal Witness Testimony

        Defendant next contends that the State violated its obligation under Supreme Court Rule

412(a) to provide the defense with a specific statement as to the substance of the testimony that

Melvin Mickens was to provide in rebuttal. 188 Ill. 2d R. 412(a). Defendant argues that the

testimony by Mickens was a total surprise to defense counsel and that he was prejudiced because

it was an integral factor in the trial court’s reasoning. The State responds, and we agree, that

defendant waived this issue.

        The State again argues, and defendant admits, that this issue was not objected to at trial,




                                                 -22-
1-05-3260

no continuance was sought to investigate Mickens, and the issue was not raised in his posttrial

motion. We agree with the State that defendant waived this issue at trial. However, defendant

asserts that this issue should also be reviewed as plain error pursuant to Illinois Supreme Court

Rule 615(a). 134 Ill. 2d R. 615(a).

       While we disagree with the State’s assertion that it did not violate Rule 412(a), we agree

that defendant has failed to show that his right to a fair trial was prejudiced by the error. People

v. Galindo, 95 Ill. App. 3d 927, 932-33 (1981). Despite the State’s reading of Rule 412(a), the

plain language of the rule requires the State to disclose the identity of rebuttal witnesses and a

specific statement as to the substance of the testimony of the witnesses. 188 Ill. 2d R. 412(a).

Case law recognizes that the identity or specific testimony of rebuttal witnesses may not be

known until a defendant presents his case, and, therefore, the proper procedure is for the State to

provide this information when the intention is formed. This requirement properly serves the goal

of discovery to eliminate surprises and unfairness and afford an opposing party the opportunity to

investigate. Galindo, 95 Ill. App. 3d at 932. Whether a discovery violation warrants mandate for

a new trial depends on the closeness of the evidence, the strength of the undisclosed evidence,

and the likelihood that prior notice could have helped the defense discredit the evidence. People

v. Weaver, 92 Ill. 2d 545, 560 (1982).

       In this case, Mickens was properly disclosed as a potential witness by the State pursuant

to Rule 412. The record indicates that a supplemental police report was presented and defendant

was aware of this report. The report indicated Mickens had stated that he had ordered a person,

who may have been defendant, to leave the entrance of the White Castle on October 28, 2002;

however, there was no information regarding any beating or force used against defendant. There




                                                -23-
1-05-3260

was no further disclosure concerning rebuttal witnesses.

       This clearly violates the goal of discovery to eliminate surprises and unfairness.

However, the goal of affording an opportunity to investigate was served, as the State argues, by

the disclosure of Mickens as a possible witness and the supplemental police report that indicated

he may have kicked defendant out of the White Castle three days before the shooting.

Furthermore, defense counsel could have sought a continuance when Mickens was presented to

fully investigate him and his possible testimony.

       More important, as the State points out, the trial court considered this argument when

raised within defendant’s argument based on newly discovered evidence. The trial court

reiterated that it based its determination of defendant’s sanity on the medical reports directly

surrounding the incident and the testimony and video evidence provided regarding the shooting.

The trial court stated that Mickens’ testimony went to motive and it was immaterial to the finding

of sanity. As described above, the trial court finding was not against the manifest weight of the

evidence and whether Mickens’ testimony was excluded or discredited would not alter the sanity

determination. Accordingly, defendant has not shown prejudice and a new trial is not warranted.

                               D. Ineffective Assistance of Counsel

       Next, defendant asserts that he suffered from ineffective assistance of trial counsel.

Defendant argues that defense counsel was ineffective for her failure to present additional

evidence of defendant’s legal insanity and for her failure to impeach Mickens. In addition,

defendant argues that defense counsel failed to notice that the trial court and the State both

inferred, contrary to the evidence, that defendant stole the gun before the alleged beating.

       On appeal, this court reviews such claims under the two-pronged test set forth in




                                                -24-
1-05-3260

Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068

(1984), which our supreme court recognized in People v. Albanese, 104 Ill. 2d 504, 526-27

(1984). Under Strickland, to determine whether there has been a violation of the defendant's

sixth amendment right to effective assistance of counsel, the defendant must show: (1) that his

counsel's "representation fell below an objective standard of reasonableness"; and (2) that there is

a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068;

People v. Shatner, 174 Ill. 2d 133, 144 (1996). If such a claim can be disposed of on the ground

that the defendant did not suffer sufficient prejudice, the court need not consider the first prong.

People v. Pacheco, 281 Ill. App. 3d 179, 183 (1996), citing People v. Eddmonds, 143 Ill. 2d 501,

512 (1991).

       Trial counsel has the right to make ultimate decisions with respect to trial strategy and

tactics and these decisions are ordinarily not reviewable. People v. Adams, 338 Ill. App. 3d 471,

477 (2003). If we do review an attorney’s actions, we must show great deference to the

attorney’s decisions as there is a strong presumption that an attorney has acted adequately.

Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. A defendant is entitled to

competent, not perfect, representation. People v. Palmer, 162 Ill. 2d 465, 475-76 (1994). The

fact that an attorney undertook poor strategy or that another attorney would have handled the

situation differently does not in itself render the representation ineffective or inadequate.

Palmer, 162 Ill. 2d at 476.

       As we noted above, and the dissent has also ably covered, defense counsel presented a

quality case on behalf of defendant. We held above that, based on a review of the medical




                                                 -25-
1-05-3260

history immediately surrounding the shooting, a reasonable person could conclude that defendant

was sane at the time of the shooting. An additional expert who reviewed the same evidence and

also evaluated defendant over a year after the shooting occurred would not overcome the trial

court’s findings. Furthermore, as stated above, the trial court did not rest its opinion on Mickens’

testimony or any alleged inference contrary to the evidence. The trial court reiterated this in

denying defendant’s motion to reconsider. Accordingly, while counsel may have committed

some errors in trial strategy or tactics, it cannot be said that defendant suffered sufficient

prejudice that the result of the proceeding would have been different and we deny his claim of

ineffective assistance of counsel.

                                E. Defendant’s Fitness for Sentencing

        Defendant argues that the trial court erred in finding defendant fit to be sentenced and,

despite the failure to object at trial or raise the issue in a posttrial issue, this court should review

this issue as plain error. See 134 Ill. 2d R. 615(a). Defendant contends that his rambling 11-page

monologue during his sentencing hearing presented a bona fide issue of his fitness for

sentencing. He contends that when a bona fide issue of fitness exists, the trial court has a duty to

hold a fitness hearing. People v. Guttierez, 271 Ill. App. 3d 301, 304 (1995).

        Fitness for trial is a fundamental right; therefore, when this issue is waived as in this case,

review under the plain error doctrine is proper. People v. Meyers, 367 Ill. App. 3d 402, 409

(2006). While the trial court has a duty to order a fitness hearing if it determines a bona fide

issue of fitness exists, that determination rests within the discretion of the trial court. Meyers,

367 Ill. App. 3d at 409. If a reviewing court determines the trial court has made an error on this

issue, it may, only upon a review of the entire record, determine that the error was harmless




                                                  -26-
1-05-3260

beyond a reasonable doubt. People v. Contorno, 322 Ill. App. 3d 177, 180 (2001).

       We agree with the State that no error occurred in this case and, even if such an error had

occurred, it was harmless beyond a reasonable doubt. As detailed above, defendant underwent

numerous evaluations to determine his fitness for trial, ultimately resulting in a finding that he

was fit for trial with medication in February 2004. The trial was completed in November 2004

and the sentencing hearing was conducted in September 2005.

       Defense counsel did not request another fitness hearing or raise this concern before

sentencing. Defense counsel reiterated defendant’s request to be found innocent by reason of

insanity after his 11-page monologue and argued that his “speech speaks for itself” and asked for

leniency. The factors relevant to whether this constitutes a bona fide doubt as to defendants

fitness are (1) the defendant’s demeanor and rationality at trial; (2) counsel’s statements

concerning defendant’s competence; and (3) any prior medical determinations of fitness. People

v. Hanson, 212 Ill. 2d 212, 223 (2004).

       The record indicates that, for the first issue, only the rationality of portions of defendant’s

speech during the sentencing hearing are in question. Defendant’s statement was rambling and

fell into areas of what appear to be delusional thoughts. While it could be considered a sign that

he lacked fitness, it also could be viewed as in line with the trial court’s early finding that he was

guilty but mentally ill. For the second factor, defense counsel did not raise any new concerns

during the hearing, but stood only on defendant’s statement as proof itself that he was not sane.

Finally, the prior medical opinion presented before trial found defendant fit with medication. It

cannot be said that the trial court abused its discretion in determining defendant’s sentence and

not ordering a new fitness hearing.




                                                 -27-
1-05-3260

       Furthermore, as noted by the State, the trial court considered all aggravating and

mitigating factors and handed down the minimum sentence. In fact, the trial court noted

defendant’s mental illness and hope of rehabilitation as mitigating factors. Accordingly, any

alleged error would be harmless as defendant could not achieve a better result than the minimum

sentence.

                                        F. Sentence Credit

       Finally, defendant argues, and the State concedes, that the mittimus incorrectly states that

defendant is entitled to 1,049 days’ credit for time served as of September 16, 2005. The correct

calculation was that defendant was entitled to 1,050 days. This court has the authority pursuant

to Supreme Court Rule 615(b)(1) to directly order the clerk of the circuit court to make the

necessary corrections to the mittimus. 134 Ill. 2d R. 615(b)(1); People v. Williams, 368 Ill. App.

3d 616, 626 (2006). Accordingly, this court directs the clerk to amend the mittimus to reflect

1,050 days’ credit for time served as of September 16, 2005.

                                       III. CONCLUSION

       For the foregoing reasons, we affirm the decision of the trial court. The mittimus shall be

corrected to reflect 1,050 days’ credit for time served by defendant as of September 16, 2005.

       Affirmed, and mittimus corrected.

       CAMPBELL, J., concurs.




                                               -28-
1-05-3260

JUSTICE NEVILLE, dissenting:

       The State's evidence established that defendant fatally shot the victim. The defendant's

psychiatrists testified and opined, one during the pretrial proceedings and the other during the trial,

that the defendant was insane at the time of the shooting and that he lacked substantial capacity to

appreciate the criminality of his actions. The State did not present a psychiatrist or any other

evidence, during its case in chief or its rebuttal, that rebutted the defendant's evidence of insanity;

therefore, the defendant proved by clear and convincing evidence that he was insane at the time of

the murder. Accordingly, I respectfully dissent because the defendant proved that he was insane at

the time of the murder.

                                THE PRETRIAL PROCEEDINGS

       In order to determine if the trial court's finding, that the defendant was not insane (did not

appreciate the criminality of his conduct) at the time of the murder but was guilty and suffering from

a mental illness (did appreciate the criminality of his conduct), was against the manifest weight of

the evidence, we must examine the evidence introduced at the trial. On May 2, 2003, Dr. Fidel

Echevarria, a staff psychiatrist from Forensic Clinical Services,2 opined that the defendant was unfit

to stand trial and that the defendant was suffering from significant psychotic processing and was

subject to involuntary hospitalization. The trial court relied on Dr. Echevarria’s first unfitness



       2
           Forensic Clinical Services is one of the circuit court of Cook County’s 13 non-judicial

offices. It (1) provides comprehensive and diagnostic clinical services to the court and related

agencies under the court's jurisdiction, (2) employs psychiatric, psychological and social service

methods in the delivery of clinical services, (3) submits clinical opinions and recommendations

to the court, and (4) provides expert witness testimony where mandated.

                                                 -29-
1-05-3260

opinion. On September 4, 2003, Dr. Echevarria opined that the defendant was fit to stand trial with

medication. The trial court relied on Dr. Echevarria’s second fitness opinion and found the

defendant fit to stand trial with medication.

        On January 8, 2004, Dr. Echevarria opined that the defendant was legally insane at the time

of the alleged offense. The opinion was based on “the documented evidence that the defendant was

manifesting psychotic thought processing and behaviors at about the time of his arrest.” Dr.

Echevarria further opined that, given the defendant’s “psychiatric history and the fact that the

defendant was noncompliant with medication treatment, it is more likely than not that at the time of

the alleged incident, the defendant would not have had capacity to appreciate the criminality of his

alleged actions due to the presence of psychotic thoughts which directed his behavior.” Finally, the

trial court refused to rely on Dr. Echevarria's opinion that the defendant was insane at the time of the

offense.

        The State asked the trial court for a second opinion, and the judge ordered Forensic Clinical

Services to reexamine the defendant and express an opinion on his sanity at the time of the offense.

On May 3, 2004, Dr. Roni Seltzberg, a staff psychiatrist from Forensic Clinical Services, opined that

the defendant was legally insane at the time of the alleged offense.

        After Dr. Echevarria and Dr. Seltzberg opined that the defendant was insane at the time of

the offense, the State requested that Dr. Henry, the third psychiatrist from Forensic Clinical Services,

evaluate the defendant’s sanity at the time of the offense. The trial court granted the State's request,

but the doctor never testified at the trial.3



        3
            At sentencing, defendant's counsel stated that Dr. Henry opined that the defendant was

insane at the time of the offense.

                                                 -30-
1-05-3260

                                      THE STATE’S CASE

       The State called two White Castle employees and two restaurant patrons to testify about the

events surrounding the shooting. The State’s witnesses testified that the defendant walked up to the

victim, shot him numerous times, and fled the restaurant. In addition, Tommy Marsh, one of the

patrons, testified that he did not see the defendant engage in any bizarre behavior. Officer Joseph

Carroll, one of the arresting officers, testified that the defendant did not show any confusion as to

who the officers were. Officer Daniel O’Connor, one of the officers who was present when the

defendant was brought back to the restaurant, testified that he did not notice the defendant engage

in any bizarre behavior. The State also played the White Castle security tape. According to Detective

Lazzara, the defendant got up and stood by the door facing the street. Approximately five minutes

later, the defendant moved from the entrance, stood near the security guard, and began walking and

shooting. Finally, the defendant exited the restaurant and ran across the parking lot.

                                   THE DEFENDANT’S CASE

       Dr. Seltzberg testified that, at the time of trial, she had worked full time at the Forensic

Clinical Services as a forensic psychiatrist for 12 years. The first time she saw the defendant was

in 1998 when he was referred for an evaluation on a misdemeanor assault charges. Dr. Seltzberg

opined that the defendant had a psychotic disorder and was prescribed an antipsychotic medication.

       The second time she saw the defendant was on February 13, 2004, and then on April 22,

2004. Prior to her February 13, 2004, evaluation, she reviewed a number of defendant’s documents:

(1) a 1997 arrest report that indicated defendant had paranoid ideas and delusions and indicated that

the defendant was discharged from the United States Marines because of a mental illness; (2) her

previous report from1998; (3) the medication profile from Cermak Health Services stating that the




                                                -31-
1-05-3260

defendant was prescribed antipsychotic medication; (4) Dr. Echevarria’s reports in which he opined

that the defendant was fit with medication to stand trial but was insane at the time of the offense; (5)

the police reports from the instant shooting; and (6) a police report alleging that the defendant might

have been the person who was asked to leave the restaurant prior to the shooting.

       After meeting with defendant on February 13, 2004, Dr. Seltzberg reviewed the Veterans

Administration (VA) Hospital records from 1984 which indicated that the defendant was delusional

and believed that the Central Intelligence Agency and Federal Bureau of Investigation were trying

to sabotage him and that he had auditory hallucinations. She also reviewed reports indicating that

the defendant was admitted to the hospital in 1993, 1996, and 1998. Dr. Seltzberg reviewed the

McNeal Hospital records which indicated that the defendant was in the hospital from July 18 until

July 26, 2001, and diagnosed with paranoid schizophrenia. After the defendant was released from

McNeal Hospital, he was transferred to the VA for outpatient treatment. The VA records noted that

defendant stopped taking his medications. Therefore, the defendant was prescribed antipsychotic

medications and released.

       Dr. Seltzberg also testified that she reviewed the August 2002 VA records, which indicated

that the defendant had been absent for three months but was taking his medication and doing well.

The doctor also noted that “for years” the defendant did not comply with treatment and only became

compliant when he was in trouble with the law. However, Dr. Seltzberg testified that the VA records

indicated that the defendant went into remission with "Alansopin"4 an antipsychotic agent.

       Dr. Seltzberg testified that during her meeting with the defendant on April 22, 2004, she

asked the defendant to talk about the incident leading to his arrest. The defendant said he had not



       4
           "Alansopin" is the phonetic spelling of the drug.

                                                 -32-
1-05-3260

been taking his medication because it made him drowsy. The defendant also told Dr. Seltzberg that,

after he felt threatened by a man with a tattoo, he climbed through a window at his father’s house

and took a gun for protection. On the day of the shooting, he began to feel sleepy as he drank his

coffee at the White Castle. The defendant reported that he observed the security guard and the

employees “signaling” and thought they had done something to his coffee. The defendant felt

threatened because the security guard had a gun, and he shot the guard in the head. The defendant

ran toward the mosque for asylum and kicked the gun so the police would not get it.

       Dr. Seltzberg diagnosed the defendant as chronic paranoid schizophrenic. She testified that

there was no evidence of malingering; in fact, the defendant tried to minimize or deny any psychotic

behaviors. She opined that the defendant was legally insane at the time of his offense because his

prior history was consistent with violent and aggressive behavior, that there was evidence of

schizophrenia, and that he was acutely psychotic at the time of the incident.



                                    THE STATE'S REBUTTAL

       The State called Melvin Mickens, a Chicago police officer who also worked as a security

guard, and Larry McCullum, the defendant’s father, in rebuttal.

                                             ANALYSIS

       In Illinois, “[a] person is not criminally responsible for conduct if at the time of such conduct,

as a result of mental disease or mental defect, he lacks substantial capacity to appreciate the

criminality of his conduct.” 720 ILCS 5/6-2(a) (West 2002). A person who was not insane at the

time of the commission of the criminal offense, but was suffering from a mental illness, may be

found guilty but mentally ill. 720 ILCS 5/6-2(c) (West 2002). In the Criminal Code “mentally ill”




                                                 -33-
1-05-3260

means

“a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the

commission of the offense and which impaired that person's judgment, but not to the extent that he

is unable to appreciate the wrongfulness of his behavior.” 720 ILCS 5/6-2(d) (West 2002). When

the defendant asserts the affirmative defense of insanity, the court may find the defendant guilty but

mentally ill if the court finds: (1) that the State has proved beyond a reasonable doubt that the

defendant is guilty of the offense charged; (2) that the defendant has failed to prove his insanity; and

(3) that the defendant has proved by a preponderance of the evidence that he was mentally ill at the

time of the offense. 725 ILCS 5/115-3(c) (West 2002). The defendant must prove by clear and

convincing evidence that he is not guilty by reason of insanity. 720 ILCS 5/6-2(e) (West 2002).

          In this case, the trial court found that the defendant failed to prove his insanity, by clear and

convincing evidence, as required by section 115-3(c) of the Code of Criminal Procedure of 1963.

725 ILCS 5/115-3(c) (West 2002). A fact finder’s resolution of the issue of the defendant’s sanity

at the time of the offense will not be disturbed on appeal unless it is contrary to the manifest weight

of the evidence. People v. Urdiales, 225 Ill. 2d 354, 428 (2007), citing People v. Johnson, 146 Ill.

2d 109, 128-29 (1991). A finding is against the manifest weight of the evidence if the opposite

conclusion is clearly evident or if the finding is unreasonable, arbitrary, or not based on the evidence

presented. People v. Deleon, 227 Ill. 2d 322, 332 (2008), citing In re D.F., 201 Ill. 2d 476, 498

(2002).

          After reviewing the State's case in chief, the defendant’s case, and the State's rebuttal, it is

clear that this is not a case (1) where there is substantial disagreement among the testifying experts

(see People v. Baker, 253 Ill. App. 3d 15, 28 (1993), citing People v. Williams, 201 Ill. App. 3d 207,




                                                    -34-
1-05-3260

216-17 (1990)), (2) where Dr. Seltzberg’s opinion suffered from a failure to consider relevant

authorities or information concerning the defendant (see Baker, 253 Ill. App. 3d at 28, citing

Williams, 201 Ill. App. 3d at 218), or (3) where Dr. Seltzberg ignored information that was contrary

to her opinion (Baker, 253 Ill. App. 3d at 28, citing People v. Jackson, 170 Ill. App. 3d 77 (1987)).

Indeed, Dr. Seltzberg’s opinion that the defendant was insane at the time of the murder was

supported by Dr. Echevarria, who testified during the pretrial proceedings. It should be noted that

both psychiatrists were employed by the Cook County Forensic Clinical Services office, that they

examined the defendant pursuant to court order, and that their opinions were based upon a

reasonable degree of medical certainty. See Baker, 253 Ill. App. 3d at 28 (noting that the experts

were bolstered by the fact that they were employed by the psychiatric institute). I note that the trial

court judge qualified Dr. Seltzberg as a medical expert, relied on Dr. Seltzberg’s opinion that

defendant was a chronic paranoid schizophrenic, and then, although the medical expert’s testimony

was unrebutted and there was no medical evidence in the record to support the court’s conclusion,

rejected Dr. Seltzberg's opinion that defendant was insane at the time of the murder and lacked

substantial capacity to appreciate the criminality of his conduct. See People v. Wilhoite, 228 Ill. App.

3d 12, 28 (1991), quoting People v. Arndt, 86 Ill. App. 3d 744, 749 (1980) (“ ‘it does not seem that

the [trial] court questioned the credibility of the psychiatrists, but rather that it drew different

conclusions than they did.’ ”); see also People v. Garcia, 156 Ill. App. 3d 417, 424 (1987); Baker,

253 Ill. App. 3d at 28.

       The trial court's finding (1) that defendant was not insane, and (2) that defendant did not lack

substantial capacity at the time of the murder to appreciate the criminality of his conduct is contrary

to the following evidence: (1) Dr. Seltzberg's unrebutted testimony and defendant's medical records,




                                                 -35-
1-05-3260

which established that the defendant's psychosis went into remission with an antipsychotic

medication; (2) Dr. Seltzberg's unrebutted testimony that defendant told her he had not been taking

his medication; and (3) Dr. Seltzberg's unrebutted testimony that defendant was insane on October

31, 2002. I believe that the psychiatrist's unrebutted testimony and the medical records established

beyond a reasonable doubt that the defendant was insane at the time of the murder and that the

defendant lacked the substantial capacity to appreciate the criminality of his conduct. I submit, given

the unrebutted testimony from the psychiatrist, that the defendant proved by clear and convincing

evidence that he was not guilty by reason of insanity. Therefore, the trial judge’s finding that the

defendant was mentally ill and appreciated the criminality of his behavior was against the manifest

weight of the evidence because the finding was not based on any medical evidence in the record.

                                           CONCLUSION

       In conclusion, in order for the trial court to find the defendant guilty but mentally ill, section

115-3 of the Code of Criminal Procedure required the trial court to find that the defendant failed to

prove his insanity. 725 ILCS 5/115-3 (West 2002). Dr. Seltzberg's opinion testimony that the

defendant was insane at the time of the murder was unrebutted, therefore, the defendant proved his

insanity with his medical records and with Dr. Seltzberg's clear and convincing unrebutted testimony.

Because the defendant proved his insanity, the trial court's findings, that the defendant was mentally

ill and appreciated the criminality of his conduct, were against the manifest weight of the evidence.

Accordingly, I would (1) reverse the judgment of the trial court, and (2) remand the case to the trial

court with directions (a) to enter a judgment of not guilty by reason of insanity, and (b) to hold a

hearing, pursuant to the Mental Health and Developmental Disabilities Code 405 ILCS 5/1-100 et

seq. (West 2002), to determine whether the defendant is subject to involuntary admission. 725 ILCS




                                                 -36-
          1-05-3260

Please Use5/115-3(b)   (West 2002).
Following
Form:
                             REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
                                   (Front Sheet to be Attached to Each Case)
Complete
TITLE
of Case                THE PEOPLE OF THE STATE OF ILLINOIS,

                                                              Plaintiff-Appellee,

                              v.

                       BRIAN McCULLUM,
                                                              Defendant-Appellant.


Docket No.

COURT


Opinion                                               No. 1-05-3260
Filed
                                              Appellate Court of Illinois
                                            First District, FOURTH Division
JUSTICES                                            October 15, 2008
                                                 (Give month, day and year)


                              PRESIDING   JUSTICE MURPHY delivered the opinion of the court:

                              Campbell, J.,                                                concur [s]

APPEAL from                           Neville, J.,
the Circuit
Ct. of Cook                                                                          dissent[s]
Cty;

The Hon.
________,
Judge                       Lower Court and Trial Judge(s) in form indicated in the margin:
Presiding.
                              The Honorable            Evelyn B. Clay           ,    Judge Presiding.
For
APPELLANTS,
John Doe,
of Chicago.

For
APPELLEES,               Indicate if attorney represents APPELLANTS or APPELLEES and include
Smith and                 attorneys of counsel. Indicate the word NONE if not represented.
Smith of               Attorneys for Appellant:      Michael J. Pelletier, Deputy Defender
Chicago,                                               Patrick E. Cassidy, Appellate Defender
Joseph                                                 203 N. La Salle Street, 24th Floor,
Brown, (of
Counsel)                                               Chicago, IL 60601
                                                       Phone: (312) 814-5472
Also add
attorneys              Attorneys for Appellee:        Richard A. Devine, Cook County State’s
for third-                                            Attorney
party
appellants                                            James E. Fitzgerald, Peter Fischer,
or                                                    Assistant State’s Attorneys, Of Counsel
appellees.                                            Room 309, Richard J. Daley Center,
                                                 Chicago, IL 60602


                                                            -37-
1-05-3260

                    Phone:     (312) 603-1880


            (USE REVERSE SIDE IF NEEDED)




                        -38-
