No. 3--08--0366 _________________________________________________________________ Filed July 29, 2010 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 10th Judicial Circuit, ) Tazewell County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 06--CF--285 ) KAREN FRANK-McCARRON, ) Honorable ) Stephen A. Kouri, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________
PRESIDING JUSTICE HOLDRIDGE delivered the opinion of the court: _________________________________________________________________
The defendant, Karen Frank-McCarron, was convicted of first
degree murder (720 ILCS 5/9--1(a)(1) (West 2006)), obstructing
justice (720 ILCS 5/31--4(a) (West 2006)), and concealment of a
homicidal death (720 ILCS 5/9--3.1(a) (West 2006)). The circuit
court sentenced the defendant to 36 years of imprisonment. On
appeal, the defendant argues that: (1) the court erred when it
denied her motion to suppress her inculpatory statements to
police; (2) the defendant was denied a fair trial because she
wore an electronic monitoring device (EMD) during trial; and (3)
the court erred when it found that the defendant failed to prove
she was insane at the time of the murder. We affirm.
FACTS On June 1, 2006, the State charged the defendant with two
counts of first degree murder (720 ILCS 5/9--1(a)(1), (a)(2)
(West 2006)), two counts of obstructing justice (720 ILCS 5/31--
4(a) (West 2006)), and concealment of a homicidal death (720 ILCS
5/9--3.1(a) (West 2006)). The indictment alleged that the
defendant killed her three-year-old daughter, Katie, by holding a
plastic bag over Katie's head, and then attempted to conceal the
circumstances surrounding Katie's death.
The defendant filed a pretrial motion to suppress two
inculpatory statements she made to police within days of Katie's
death. The circuit court denied the motion, finding that the
defendant was not in custody at the time she first confessed and,
therefore, was not entitled to receive warnings pursuant to
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct.
1602 (1966), prior to her first confession.
Evidence and testimony presented at the suppression hearing,
and at trial, revealed the following facts. On May 13, 2006, the
defendant and her mother, Erna Frank, were at the McCarron house
in Morton, Illinois, with the defendant's two daughters, Katie
and two-year-old Emily. The defendant was a pathologist and
spent an hour at work that morning. When she returned, she fed
her daughters. After lunch, the defendant put Emily down for a
nap. Rather than put Katie down for a nap as well, the defendant
decided to take Katie, who had autism, for a car ride to calm her
2 down. Erna testified that it did not appear as if Katie needed
to be calmed down.
The defendant drove Katie to the Frank house, which was near
the McCarron house. Given that Erna was at the McCarron house
and Erna's husband was in Germany, the defendant knew that no one
would be present at the Frank house. The defendant parked inside
the garage, closed the garage door, and took Katie inside the
house. While inside, the defendant suffocated Katie by placing a
white plastic garbage bag over Katie's head.
Approximately 45 minutes to an hour after she left, the
defendant returned with Katie to the McCarron house. The
defendant carried Katie into the house, told Erna that Katie was
sleeping, and carried her upstairs to bed.
The defendant went about her normal activities after she put
Katie in bed around 1 p.m. Sometime during the afternoon, the
defendant's brother, Walter, came to the McCarron house. The
defendant sat in the kitchen with Erna and Walter, who talked to
the defendant about a recent trip they took. While the defendant
did not talk much, neither Erna nor Walter noticed any irrational
behavior or incoherency in the defendant.
At one point, the defendant decided to go to the grocery
store to get ice cream. After getting the ice cream, the
defendant drove back to the Frank house and retrieved the garbage
bag she used to suffocate Katie. The defendant took the bag to a
3 local gas station, where she threw the bag into an outdoor
garbage can.
Around 4 p.m., the defendant said she was going to go
upstairs to check on Katie, as she normally did not nap that
long. The defendant screamed when she went into Katie's room,
and told Erna and Walter that Katie was not breathing.
When the police and paramedics arrived, the defendant told a
police officer that she found Katie not breathing approximately
2½ hours after she put Katie down for a nap. The officer
described the defendant as coherent and conversational. The
defendant and a paramedic attempted unsuccessfully to resuscitate
Katie. The paramedic described the defendant as unusually calm
for the situation. The defendant was quick to respond to
questions and answered in an orderly fashion. Katie was
transported to the hospital, where she was pronounced dead. The
Peoria County deputy coroner testified that, when he spoke with
the defendant at the hospital, the defendant did not try to
embrace Katie and was largely unemotional. Her demeanor was
atypical for a parent whose child had just died.
The defendant's husband, Paul, returned to the McCarron
house from North Carolina around midnight that night. Paul had
moved to North Carolina with Katie approximately 18 to 24 months
prior so Katie could attend a school for autistic children.
Katie had returned to Illinois around May 3, 2006. Paul was in
4 the process of moving back to Illinois at the time of Katie's
death.
When Paul arrived at the house, he and his brother had to
break into the master bedroom and bathroom to find the defendant.
The defendant had penned a suicide note and had taken numerous
Tylenol pills in an apparent suicide attempt. The defendant told
Paul she had killed Katie. She also told her mother that she had
killed Katie. When the police arrived, Paul told Officer Brent
McLean that the defendant had something she wanted to say. After
the defendant did not respond, Paul told McLean that the
defendant said she had killed Katie. The defendant was
transported to the hospital in an ambulance. Her mother and a
police officer accompanied her in the ambulance. The officer did
not ask the defendant any questions. At no point was the
defendant placed in handcuffs or restrained by the police.
Officer McLean asked the defendant some questions at the
hospital in the early morning hours of May 14, 2006. The
defendant told McLean that she told Paul she had killed Katie and
said, "[l]et's leave it at that." McLean left the room and came
back shortly thereafter. McLean asked the defendant where the
garbage bag was, but the defendant did not respond. McLean
repeated the question, and the defendant said, "I know you want
to get evidence on me." She said she wanted to talk to Paul.
5 McLean left the hospital and did not arrange for any police guard
on the defendant's room.
The doctor who treated the defendant on May 14, 2006,
testified that the defendant was lucid and coherent. The doctor
assumed that the defendant was in the medical profession based on
the questions she asked of the doctor and because the defendant
reviewed her medical charts and commented on them. She also
requested to speak with a psychologist. The doctor also stated
that intensive care unit (ICU) patients were typically not
allowed to use a telephone, but he witnessed the defendant use
the telephone outside her room several times between May 14-16.
On May 16, the doctor ordered that the telephone usage stop
because it was distracting other patients.
The record is unclear as to any restrictions placed on the
defendant by the hospital, other than being placed on suicide
watch, although Paul testified that he felt the defendant could
not have left the hospital if she had wanted to. The record does
reflect that friends and family were allowed to visit the
defendant in her ICU room. There was no evidence that the
defendant wanted to leave the hospital, and the police never put
any restrictions on the defendant. The defendant was not placed
under arrest at the hospital until the afternoon of May 16, 2006.
On May 14, 2006, the defendant called a friend in the
afternoon and told her that she had killed Katie and that she was
6 going to confess the next day. She also called Paul's father and
told him that she had suffocated Katie with a plastic bag. Both
telephone call recipients described the defendant as calm.
Also on May 14, two Morton detectives talked to the
defendant in her hospital room. The defendant said she might
need an attorney, and the detectives told her she was not under
arrest and that they just wanted a statement. The defendant said
she did not want to talk. The detectives asked if they could
come back the next day, and the defendant agreed. The detectives
left the hospital.
On May 15, 2006, psychiatrist Sohee Lee was called to talk
to the defendant about the Tylenol overdose. Dr. Lee spoke to
the defendant between approximately 6:45 a.m. and 7:30 a.m. The
defendant told Dr. Lee that she had suffocated Katie with a
plastic bag. She said she was feeling guilty because Katie's
autism had not been improving and because she had killed Katie.
Dr. Lee testified that the defendant showed no signs of delusion
or psychosis.
The evidence indicated that the defendant had a significant
preoccupation, if not obsession, with Katie's autism. Ever since
Katie's diagnosis, the defendant worked tirelessly at researching
and implementing different treatments for Katie's autism. Paul
testified that the defendant was mostly critical of the progress
Katie had made through the various treatments. The defendant
7 felt responsible for Katie's autism, believing it arose as a
result of having Katie vaccinated.
The evidence also indicated that the defendant suffered from
depression. In 2005, she began seeing a psychiatrist to help
with her severe depression. She was placed on several different
medications. She stopped seeing that psychiatrist in early 2006,
when she also stopped taking her antidepressants. In addition,
the defendant stated that she had been having homicidal thoughts
with regard to Katie at various times over the past year. The
defendant testified that she made a brief attempt at suffocating
Katie with a pillow on May 10, 2006, but the incident only lasted
a few seconds.
Around 9 a.m. on May 15, 2006, the Morton detectives, a
representative of the Department of Children and Family Services
(DCFS), and Paul arrived at the hospital. The detectives stated
that Paul wanted to accompany them to the hospital; the
detectives did not ask Paul to assist or be present for the
interview. Susan Grimm, a friend of the defendant, was in the
room. She told Paul that she thought the defendant should have
an attorney present. Paul thanked Grimm and escorted her out of
the room. Inside the room, the defendant had no objection to the
DCFS agent's presence. The detectives told the defendant that
she was not under arrest, nor was she going to be taken to the
police department. An interview commenced in which the defendant
8 confessed to the murder. The evidence indicated that everyone
was calm during the interview, which had a conversational tone.
Before the end of the interview, the police discussed with
the defendant the possibility of doing a second, recorded
interview, because it might be desired by the State's Attorney's
office. The defendant agreed to the second interview. The
detectives originally planned on doing just one interview, but
they neglected to bring a recording device to the first
interview. The State's Attorney's office did in fact request a
recorded interview, and the second interview occurred
approximately one hour after the end of the first interview.
Before the second interview, the defendant was read her Miranda
rights, which she waived.
During the second interview, the defendant stated that the
decision to kill Katie came to her while on the afternoon drive.
She stated that she "just wanted autism out of my life." She
thought she might be able to "cure" Katie by killing her and that
"[m]aybe in Heaven she would be complete." She put the plastic
bag over Katie's head because she "wanted a life without the
autism," and said that, "[t]o get rid of autism I had to kill a
child." She knew that Katie was dead, but, when she arrived back
at the McCarron house, she told Erna that Katie had fallen
asleep. When she devised the plan to dispose of the plastic
9 garbage bag, she thought that she "could get away with [the
crime]."
Testimony indicated that the second interview was
substantially similar in all respects to the first interview.
However, Paul and one of the detectives both testified that the
defendant did not repeat in the second interview a comment she
made in the first interview about her not wanting to leave any
marks on Katie's neck when she suffocated her.
The defendant testified that she believed Katie was freed
from autism when she died. On cross-examination, she described
the events surrounding Katie's death. She explained that she was
standing behind Katie when she placed the bag over her head. She
forced Katie to her knees, and Katie lay down. The defendant
scrunched up the bag around Katie's neck, and Katie stopped
moving after a few minutes. The defendant also admitted that,
when she returned to the McCarron house, she wanted to give the
impression that everything was normal.
The defendant also stated that, when she was sitting in the
kitchen with Erna and Walter, she remembered that she had left
the garbage bag at the Frank house. She thought it would be
better to dispose of the bag at a local gas station, so she told
Erna and Walter she was going to get ice cream. She also
admitted that she knew her attempts at resuscitating Katie would
be futile.
10 On redirect, the defendant stated that she woke up "very,
very suicidal" on May 13, 2006. She felt in turmoil that day as
she fought with suicidal and homicidal thoughts.
Both sides presented expert witnesses with regard to the
insanity defense asserted by the defendant. The defense
presented Dr. Joseph Glenmullen, a psychiatrist who opined that
the defendant suffered from major depressive disorder, recurrent,
in 2005. Glenmullen stated that the defendant was obsessed with
Katie's autism and felt as if she had caused the autism by
getting Katie vaccinated. Glenmullen opined that the defendant's
depression developed into psychotic depression in 2006, as
evidenced by her delusional thoughts such as her statement that
she was killing autism when she killed Katie. Dr. Glenmullen
acknowledged that the psychiatrist the defendant had been seeing
from approximately August 2005 to February 2006 did not observe
any delusional thinking in the defendant.
The State presented Dr. Terry Killian, a psychiatrist who
opined that the defendant suffered from recurrent major
depression. However, Dr. Killian opined that there was no
evidence of psychosis in the defendant. Dr. Killian disagreed
with Dr. Glenmullen's opinion that the defendant suffered from
delusions, stating that the defendant's comment did not fit the
definition of delusion as a "fixed false belief." Also, Dr.
Killian found it significant that the defendant's statements
11 about the autism were usually about how the autism affected her,
rather than Katie.
After the proofs were closed, an issue arose with the fact
that the defendant was wearing an EMD on her ankle, which she had
been ordered to wear as a condition of her bond. Outside the
presence of the jury, the attorneys and the court had a
discussion about the EMD. After the parties speculated on how
long the defendant had been wearing the EMD and whether the jury
could have seen it on her ankle, defense counsel requested that
the court admonish the jury about the EMD. After the discussion,
the court admonished the jury that the defendant was out on bond
and was on electronic home monitoring, but such status did not
affect the presumption of innocence.
The jury found the defendant guilty on all counts. After
the defendant's motion for a new trial was denied, the court
entered judgment of conviction on one count of first degree
murder, one count of obstructing justice, and concealment of a
homicidal death. The court sentenced the defendant to 36 years
of imprisonment. The defendant appealed.
ANALYSIS
I. Whether the Circuit Court Erred When It Denied the
Defendant's Motion to Suppress
First, the defendant argues that the court erred when it
12 police. Specifically, the defendant argues that her first
statement, given at the hospital on May 15, should have been
suppressed because it was obtained without her receiving her
Miranda rights. With regard to the second statement given on May
15, the defendant argues that it should have been suppressed
because it was obtained as the result of a deliberate "question
first, warn later" strategy in violation of her constitutional
rights.
When reviewing a circuit court's ruling on a motion to
suppress, we grant great deference to the court's credibility
determinations and findings of fact, and will disturb those
rulings only if they are against the manifest weight of the
evidence. People v. Slater, 228 Ill. 2d 137, 886 N.E.2d 986
(2008). However, the court's ultimate ruling on a motion to
suppress is subject to de novo review. Slater, 228 Ill. 2d 137,
886 N.E.2d 986. In reaching our decision, we will consider the
testimony presented at the suppression hearing and at trial.
Slater, 228 Ill. 2d 137, 886 N.E.2d 986. Further, we note that
once a defendant challenges the admissibility of a confession
through a motion to suppress, the State has the burden of proving
the confession's voluntariness by a preponderance of the
evidence. 725 ILCS 5/114--11(d) (West 2006); Slater, 228 Ill. 2d
137, 886 N.E.2d 986.
13 A. Whether the Defendant Was in Custody at the Time She Gave Her
First Statement on May 15
It is well-settled that the preinterrogation warnings
required by Miranda, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct.
1602, are unnecessary if the individual sought to be questioned
is not in custody. Slater, 228 Ill. 2d 137, 886 N.E.2d 986. The
determination of whether an individual was in custody is an
objective one, which requires us to look to the particular
circumstances surrounding the encounter and assess whether a
reasonable person in that situation would have felt free to
terminate the encounter and leave. Slater, 228 Ill. 2d 137, 886
N.E.2d 986; see also People v. Carroll, 318 Ill. App. 3d 135, 742
N.E.2d 1247 (2001) (holding that an individual's subjective
belief of whether he or she was in custody is irrelevant to the
objective determination). Factors relevant to our inquiry
include:
"(1) the location, time, length, mood, and mode of the
questioning; (2) the number of police officers present
during the interrogation; (3) the presence or absence of
family and friends of the individual; (4) any indicia of a
formal arrest procedure, such as the show of weapons or
force, physical restraint, booking or fingerprinting; (5)
the manner by which the individual arrived at the place of
questioning; and (6) the age, intelligence, and mental
14 makeup of the accused." Slater, 228 Ill. 2d at 150, 886
N.E.2d at 995.
With regard to the defendant's first statement, the
dispositive question is whether she was in custody at the time
she was questioned in the hospital. "Questioning which occurs in
a hospital does not amount in itself to custodial interrogation."
People v. Bates, 169 Ill. App. 3d 218, 222, 523 N.E.2d 675, 677
(1988); see also People v. Ripplinger, 316 Ill. App. 3d 1261, 739
N.E.2d 71 (2000) (holding that the circumstances surrounding a
defendant who was in the ICU when questioned indicated that the
defendant was not in custody).
We note that the defendant cites to Carroll and argues that
the "most salient factor" bearing on custody in this case is the
fact that the defendant was the sole focus of the police
investigation. In Carroll, the defendant was the focus of a
police investigation after he made an inculpatory statement.
However, the defendant in that case was transported by an
unmarked squad car to a police station, where he was questioned
in an interrogation room. The Carroll court found it significant
under the circumstances that the defendant was the sole focus of
the investigation. The defendant's attempts to analogize her
case to Carroll are of no avail. The fact that the defendant in
this case was the sole focus of the police investigation is not
as relevant as it was for the defendant in Carroll. The
15 circumstances in Carroll evinced a situation much like a
traditional custodial interrogation, which is unlike the
situation in which the instant defendant was questioned.
Further, as the defendant in this case confessed to numerous
people before she gave her statements to police, any
investigatory focus beyond the defendant would have been
counterintuitive. See, e.g., People v. Vasquez, 393 Ill. App. 3d
185, 913 N.E.2d 60 (2009) (recognizing authority that casts doubt
on the importance of a defendant's status as the focus of the
investigation).
The totality of the circumstances as uniquely presented in
this case militates against a finding that the defendant was in
custody at the time she gave her first statement to police in the
hospital. The defendant was transported to the hospital in an
ambulance. She was accompanied by her mother and one police
officer, who did not ask any questions of the defendant. She was
not placed under arrest or otherwise restrained by police.
The defendant was initially taken to the emergency room and
was later moved to an ICU room, where she was placed on suicide
watch. The record is unclear as to any further restrictions
placed upon the defendant by the hospital at that time, but there
is no evidence that the police restrained the defendant in any
way. No guards were placed outside the defendant's room, and no
indicia of formal arrest were present.
16 During the early morning hours after the defendant arrived
at the hospital, Officer McLean asked the defendant a few
questions. There was no indication that McLean pressed the
defendant for answers or otherwise coerced the defendant to
speak. McLean left the hospital after the defendant told him
that she told Paul she had killed Katie and indicated that was
all she wanted to say at that time. Further, when she told other
officers that she did not want to speak with them that day, they
left the hospital. The defendant agreed to allow the officers to
return the next day, and she called a friend and said she was
going to confess the next day.
The first interview at the hospital began around 9 a.m. and
lasted about an hour. Only two detectives were present at the
interview, along with a DCFS agent and Paul. The defendant did
not object to the DCFS agent's presence, and Paul's presence was
not solicited. There was no evidence to suggest that the police
used Paul as a coercive tool. The first interview was
conversational in nature, and there was no evidence to suggest
that the defendant was coerced into answering the detectives'
questions.
The defendant was a 37-year-old pathologist. She was highly
educated and intelligent, and even reviewed her own medical
charts on the day she was admitted to the hospital. While she
was suffering from depression, there was no evidence to suggest
17 that her depression was somehow exploited by the detectives. All
of the individuals who had contact with the defendant around the
time of the murder and suicide attempt described her as calm,
lucid, and coherent.
In light of the aforementioned factors, we conclude that a
reasonable person in the defendant's position would have felt
free to terminate the encounter. The evidence indicates that the
defendant wished to speak to the police about the incident.
Because the evidence supports the court's finding that the
defendant was not in custody at the time she gave her first
statement to police at the hospital, there was no need to give
the defendant Miranda warnings before she gave her statement.
Even if a Miranda violation had occurred in this case, the
admission of the defendant's first statement into evidence would
not have prejudiced the defendant. The defendant made
inculpatory statements to six people before her statements to
police. Given these other confessions, as well as the other
strong evidence of guilt produced at trial, the evidence in this
case was not closely balanced. Accordingly, any error in
admitting the defendant's first statement would have been
harmless. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 113 L.
Ed. 2d 302, 111 S. Ct. 1246 (1991) (holding that the admission of
involuntary confession can be harmless error).
B. Whether the Defendant Was Subjected to a Deliberate
18 ?Question First, Warn Later? Strategy
With regard to the defendant's second statement, before
which she was read her Miranda rights, the defendant claims that
she was subjected to a deliberate ?question first, warn later?
strategy in violation of her constitutional rights.
Under the question first, warn later technique, police
officers elicit an incriminating statement from an individual
without having given Miranda warnings. People v. Lopez, 229 Ill.
2d 322, 892 N.E.2d 1047 (2008). Next, the police read the
individual his or her Miranda warnings, and again obtain an
incriminating statement. Lopez, 229 Ill. 2d 322, 892 N.E.2d
1047. When police deliberately use this technique, the statement
obtained after Miranda warnings were read will be excluded from
evidence, unless some curative measure was taken. Lopez, 229
Ill. 2d 322, 892 N.E.2d 1047.
In this case, the evidence supports the conclusion that the
police did not deliberately use a question first, warn later
technique. In the time after the incident and leading up to the
confession, the police were not forceful in attempting to obtain
a statement from the defendant. The police intended to obtain
just one statement from the defendant. The only reason they
sought and obtained a second statement is because the first
statement was mistakenly not recorded and an assistant State's
Attorney requested that the police obtain a second, recorded
19 statement. There is nothing in the record to indicate that the
police acted to circumvent Miranda's protections. Accordingly,
we hold that no error existed in admitting the defendant's second
statement into evidence.
C. Whether the Defendant's Statements Were Obtained in Violation
of Her Fifth Amendment Right to Counsel
The defendant also argues, in the alternative, that the
court erred when it denied her motion to suppress because her
statements to police were obtained after she invoked her fifth
amendment right to counsel on May 14.
A fifth amendment-based request for counsel is
inconsequential until a defendant is taken into custody. See
People v. Villalobos, 193 Ill. 2d 229, 737 N.E.2d 639 (2000). We
have already held that the defendant was not in custody at the
time she gave her first statement on May 15. Much of the
evidence supporting that holding existed at the time the
defendant stated on May 14 that she might need an attorney. As
previously noted, the defendant had been transported to the
hospital via ambulance, in which she was accompanied by her
mother and a police officer who did not ask her any questions.
At no point was the defendant subjected to any means of formal
arrest. Officer McLean asked the defendant some questions in the
early morning hours of May 14, but left after the defendant
indicated she did not want to continue answering questions. The
20 two detectives questioned the defendant briefly on May 14, but
left after she indicated she did not want to talk. Under these
circumstances, we hold the defendant was not in custody on May 14
at the time she told the two detectives that she might need an
attorney. Because the defendant was not in custody when she said
on May 14 that she might need an attorney, we reject the
defendant's alternative basis for challenging the court's
decision to deny her motion to suppress. See Villalobos, 193
Ill. 2d 229, 737 N.E.2d 639.
II. Whether the Defendant Was Denied a Fair Trial Because She
Wore an EMD During Trial
Second, the defendant argues that she was denied a fair
trial because she wore an EMD on her ankle during trial. The
defendant acknowledges that she has forfeited this argument for
appellate review by failing to raise it in a posttrial motion;
however, she requests this court review the issue for plain
error.
The plain error doctrine permits appellate review of a
forfeited issue when the defendant proves that an error occurred
and that either the evidence is closely balanced or the alleged
error is so substantial that it deprived her of a fair trial.
People v. Herron, 215 Ill. 2d 167, 830 N.E.2d 467 (2005).
Accordingly, we must first determine if error in fact occurred.
Herron, 215 Ill. 2d 167, 830 N.E.2d 467.
21 Generally, EMDs are devices used to monitor the defendant's
presence or nonpresence in his or her home while on electronic
home detention (730 ILCS 5/5--8A--2(A) (West 2006)). A court can
order an individual to wear an EMD as a condition of a bond. 725
ILCS 5/110--10(b)(14) (West 2006). Contrary to statements made
by the defendant in her appellant's brief, the court did not
order the defendant to wear an EMD during trial. Rather, the
defendant had been ordered to wear the EMD as a condition of her
bond, an order firmly within the court's discretion (725 ILCS
5/110--10(b)(14) (West 2006)). Without more, there was no error
in ordering the defendant to wear an EMD as a condition of her
bond.
The defendant attacks the fact that the defendant's EMD
remained on her ankle during trial by making a conclusory
statement that the EMD was analogous to shackles. Even if we
ignore this second forfeiture of the issue (210 Ill. 2d R.
341(h)(7) (arguments in appellate briefs require citation to
authorities relied upon)), the defendant's claim is without
merit. EMDs are not physical restraints like shackles, which a
court can order a defendant to wear at trial when "necessary to
prevent escape, to protect the safety of those in the courtroom,
and to maintain order during trial" (People v. Allen, 222 Ill. 2d
340, 365, 856 N.E.2d 349, 363 (2006)). Further, EMDs do not
interfere with a defendant's ability to participate in her own
22 defense, which is one of the chief concerns with shackles (Allen,
222 Ill. 2d 340, 856 N.E.2d 349).
We recognize that an EMD may be similar to shackles in that
its presence could possibly have a negative impact on the jury's
opinion of the defendant. However, the court addressed these
concerns in an admonishment to the jury. The record reflects
that the defendant's EMD was not addressed until after the proofs
had been closed, when the attorneys and the court discussed the
issue outside the presence of the jury. During the discussion,
defense counsel requested that the court admonish the jury that
the EMD does not affect the presumption of innocence. After the
discussion, the court in fact admonished the jury that the
defendant was out on bond and was on electronic home monitoring,
but such status did not affect the presumption of innocence.
Accordingly, any negative impact an EMD could have on the jury's
opinion of the defendant was not a concern in this case.
For the foregoing reasons, we hold that the defendant has
failed to show that an error occurred when the defendant wore an
EMD at trial. Therefore, we reject the defendant's argument.
III. Whether the Defendant Proved She Was Insane at the Time of
the Murder
Third, the defendant argues that she proved she was insane
at the time of the murder. The defendant claims that the State
did not "adequately rebut" the opinion of her expert that she
23 could not appreciate the criminal nature of her actions at the
time of the murder because she suffered from psychotic
depression.
Section 6--2(a) of the Criminal Code of 1961 provides that
"[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 2006).
The defendant has the burden of proving insanity by clear and
convincing evidence. 720 ILCS 5/6--2(e) (West 2006). We will
not disturb a jury's resolution of an insanity issue unless it is
against the manifest weight of the evidence. People v. Johnson,
146 Ill. 2d 109, 585 N.E.2d 78 (1991).
When assessing a defendant's sanity, the trier of fact is
free to reject all expert testimony and base its conclusion on
lay testimony alone. People v. Dwight, 368 Ill. App. 3d 873, 859
N.E.2d 189 (2006). In this case, Dr. Glenmullen opined that the
defendant suffered from psychotic depression at the time of the
murder. Dr. Glenmullen placed great emphasis on what he believed
were delusional thoughts in the defendant, including the
defendant's statement that she was killing autism when she killed
Katie. Dr. Killian disagreed, opining that the defendant was
neither delusional nor psychotic. The jury was free to reject
Dr. Glenmullen's opinion, even if the State had not presented a
24 contrary expert opinion. See People v. Urdiales, 225 Ill. 2d
354, 871 N.E.2d 669 (2007).
Other relevant considerations in an insanity determination
include: (1) the testimony of lay witnesses who observed the
defendant around the time of the crime; (2) whether the defendant
planned the crime; and (3) whether the defendant attempted to
conceal the crime. Dwight, 368 Ill. App. 3d 873, 859 N.E.2d 189.
"A defendant's unusual behavior or bizarre or delusional
statements do not compel a finding of insanity, and a defendant
may suffer from a mental illness without being legally insane."
Dwight, 368 Ill. App. 3d at 880, 859 N.E.2d at 195.
In this case, the evidence and testimony support the jury's
rejection of the insanity defense. While the defendant testified
that the decision to kill Katie came to her while on the
afternoon drive, the facts evince a calculated plan to kill Katie
and conceal the circumstances surrounding her death. The
defendant drove to the Frank house, where she knew no one would
be home. She pulled into the garage and closed the garage door.
She suffocated Katie with a plastic bag, then placed her body
into the car and drove her back to the McCarron house. The
defendant lied to Erna about Katie being asleep, then placed
Katie into bed to make it appear as if Katie was simply napping.
While acting as if everything was normal, the defendant
remembered the plastic bag at the Frank house and devised a plan
25 to dispose of the bag to conceal evidence of the crime. The
defendant knew she had killed Katie, and she attempted to
convince everyone that Katie had stopped breathing in her sleep.
The defendant even engaged in resuscitation efforts that she knew
would be futile in an attempt to maintain the ruse. Further, all
of the individuals who had contact with the defendant around the
time of the crime described her as calm, lucid, and coherent.
Under these circumstances, we hold that the jury's rejection of
the insanity defense was not against the manifest weight of the
evidence.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Tazewell County is affirmed.
Affirmed.
CARTER, J., concurs
JUSTICE WRIGHT, specially concurring:
I agree with the majority’s analysis on all issues except
the issue related to the electronic monitoring device. I agree
with the majority that this defendant has forfeited the
electronic monitoring device issue and also failed to meet her
burden of proof as to plain error.
Here, the presence of the electronic monitoring device was
brought to the court’s attention after the close of the evidence
and defendant requested a curative instruction for the jury.
26 After receiving the curative instruction, the defense did not
raise the issue in a post trial motion. Consequently, we can
only review this claim of error if defendant can establish plain
error. Since the evidence was not closely balanced and defendant
received a curative instruction to insure the fairness of the
proceedings, I join the majority’s conclusion that plain error
does not exist.
Once the majority determined that no error occurred, I
respectfully suggest that any discussion of whether an
electronic monitoring device “may be similar to shackles” is
unnecessary. Consequently, I agree with the State that this is a
“faux shackling issue.” Therefore, I do not adopt the views of
the majority on this issue beyond the conclusion that the
electronic monitor issue has been forfeited by the defense. For
this reason, I specially concur.