People v. Murphy

509 N.E.2d 1323, 157 Ill. App. 3d 115, 109 Ill. Dec. 311, 1987 Ill. App. LEXIS 2687

• Court: Appellate Court of Illinois
• Decided: June 10, 1987
• Docket: 84-1582
• Status: Published

Opinions

JUSTICE WHITE

delivered the opinion of the court:

Defendant James Murphy, charged with the murder of Donald Bolden and having conceded that he committed the homicide, pled not guilty by reason of insanity and, alternatively, that the act was committed in self-defense. At trial, the jury heard the contents of a report of defendant’s social history prepared by the Cook County Psychiatric Institute shortly after the incident; that report contained statements from defendant’s mother indicating that he had quarreled with his family before the incident and that she believed defendant’s actions to be a response to the quarrel, not a result of insanity or an attempt at self-defense. In closing argument, the prosecutor used the mother’s statement as substantive proof that defendant’s actions were caused by rage at the family dispute and were not a result of insanity or an attempt to defend himself. Defendant was found guilty of murder but mentally ill and sentenced to a 30-year prison term. We reverse.

On July 3, 1979, police officers responded to a report of a man with a knife, and en route to the reported address, saw defendant carrying a knife and chasing the victim. By the time an officer had left his squad car and approached the scene on foot, the victim was leaning against a car. As defendant was being disarmed and handcuffed, the victim collapsed; he died of internal bleeding from a single stab wound. Defendant said that the victim had been “picking on” him and had struck him with a baseball bat.

Defendant underwent a series of psychiatric examinations to determine whether he was fit to stand trial. Dr. Robert Reifman, who initially examined defendant, concluded that he was both fit to stand trial and sane at the time of the offense. However, on the basis of subsequent testing by Dr. Marvin Ziporyn which indicated mental retardation and paranoid personality, the court found defendant unfit for trial on January 14, 1981, and placed him in the custody of the Department of Mental Health and Developmental Disabilities. The department provided the court "with updates on defendant’s condition, reporting in April 1981 that defendant remained unfit and in July 1981 that he was still unfit and unlikely to attain fitness by January 1982. However, on September 2, 1981, counsel for both the prosecution and the defense stipulated that two psychiatrists had examined defendant and found him fit for trial, and the court entered a finding of fitness in accord with that stipulation.

At trial, an assistant State’s Attorney questioned psychiatrists for the prosecution and defense about a report of defendant’s social history prepared by a Cook County Psychiatric Institute employee. That report included a conversation with defendant’s mother which allegedly revealed the occurrences immediately before the homicide:

“MR CRONIN [prosecutor]: Have you read that report?

DR. ZIPORYN [defense witness]: This report?

Q. Yes, from Yvonne Stevens.

A. I just read the last paragraph, where she says the defendant is a schizophrenic, paranoid-type, with mild retardation—

Q. There is no question pending. I’m directing your attention to the middle of the first paragraph, after ‘arrest.’ Doctor, are you aware that Mrs. Hill stated about her son on the night that he was arrested: ‘Later patient came home intoxicated. He asked his mother for money. She refused him, and he became very angry and belligerent. His seventeen-year-old sister intervened, told the patient that she was going to get some boys to beat him up. The patient again got a butcher knife and was going to cut his sister. She ran into [a] closet. The mother tried to take the knife from the patient. He knocked her down and ran out of the house with the knife. The mother then had the daughter call the police.’

Are you aware of that?

A. Yes, sir, I was aware of that situation.

Q. Are you aware that she feels — this is the mother talking to Yvonne Stevens — that it was a coincidence that the victim was on the street when the patient ran out of the house angry and upset with the knife. Are you aware of that?

A. Yes.”

Dr. Reifman, testifying for the prosecution, made more general reference to the report in revealing the basis for his determination that defendant was sane.

During closing argument, the prosecution again raised the allegations of the report:

“MR. CRONIN [prosecutor]: Was Donald Bolden in that apartment when he started attacking his mother? Was Donald Bolden in that apartment?

MR. KLING [defense counsel]: I’ll object, there’s no evidence as to what the State is arguing. It was information in a report. There was no testimony in court. It was the basis of opinions. There’s no evidence that that occurred.

THE COURT: Overruled. You may comment on the evidence.

MR. CRONIN: He got mad and grabbed this knife. Did he grab this knife to go out and defend himself? Use your common sense. He grabbed this knife to go out on the street and to wreak havoc.

***

James Murphy was angry and James Murphy was going to use this knife and he didn’t care who he was going to use this knife on, and who did he use it on? Donald Bolden.”

In his summation, Assistant State’s Attorney Locallo made further reference to the statement of defendant’s mother: “You have information from the mother to a psychologist about what really happened on July 3, 1979, we submit. We submit what really happened is he wanted money, he got angry, went after his mother, went after his sister. When he couldn’t get at them, he left with the butcher knife.”

The statements from defendant’s mother about “what really happened” were inadmissible hearsay. Hearsay is an out-of-court statement which is offered to prove the truth of the matter asserted therein and dependent for its value on the credibility of the out-of-court declarant. (People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223.) In the instant case, the unsworn, out-of-court statement of defendant’s mother, who did not testify at trial, was offered as proof that defendant killed the victim not in self-defense or as a result of insanity, but because he was angry and wanted money. The probative value of the mother’s statement is certainly dependent on her credibility, which was not tested by the trier of fact. Indeed this case involves a second level of hearsay, since Yvonne Stevens, who allegedly heard the mother’s statement, also did not testify and thus was yet another out-of-court declarant whose credibility and accuracy in recording the statements of defendant’s mother the trier of fact had no opportunity to judge. Because the jury was allowed to examine neither the mother’s accuracy, in recounting the events before the incident nor the social worker’s accuracy in recording the mother’s statement, that statement was hearsay and its admission was error.

The State contends that our supreme court’s holding in Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, which expressly-adopted Federal Rule of Evidence 703, established the admissibility of statements such as those at issue here. We disagree. Although Wilson did hold that experts may base their opinion testimony on facts not ordinarily admissible, and later decisions have allowed experts to disclose the underlying facts to the jury (People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485), those decisions stress that the facts must be of a type reasonably relied upon by experts in the field: “[T]he key element in applying Federal Rule 703 is whether the information upon which the expert bases his opinion is of a type that is reliable.” Wilson v. Clark (1981), 84 Ill. 2d 186, 193, 417 N.E.2d 1322. The Wilson court ruled that hospital records, because of their inherent reliability and their common use as reference materials by medical experts, need not be authenticated by each person who played a part in their creation.

We find no basis for equating hospital records with the statements at issue in the instant case. Unlike hospital records, which are presumed to be routine, professional reports of objective data, the declarations of defendant’s mother were singular, subjective interpretations of defendant’s actions and mental state. This is the kind of inherently unreliable testimony that the hearsay rule was designed to exclude; therefore, we are unable to call such testimony sufficiently reliable to qualify for the hearsay exception of Wilson. Without the necessary showing of reliability, this court has ruled such testimony inadmissible. (People v. Maisonet (1985), 138 Ill. App. 3d 716, 719, 486 N.E.2d 277.) We consider the same result to be appropriate here. In addition, we question the State’s reliance upon Wilson under the particular circumstances of the case at bar: the declarations whose admission the State defends were read in detail by the prosecution during cross-examination of an expert witness who indicated that he had not relied upon them in making his diagnosis. Wilson and its progeny create a hearsay exception for reliable data that experts have used to reach their conclusions, but we doubt that this exception can be invoked by prosecutors who wish to introduce data that have not formed the basis of expert opinion.

Even should we accept the State’s assertion that the statement of defendant’s mother was admissible as the basis of expert opinion, we believe that the prosecution made improper use of that statement during closing argument. In People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659, this court warned that facts admitted as the basis of expert opinion could not be presented to the jury as substantive evidence of the underlying assertions:

“[I]t should be noted that prosecutors have recently begun to take improper advantage of the admissibility of such evidence by ostensibly offering it for the limited purpose, and, once it is admitted, making impermissible use thereof in closing argument [citation], and we would warn that this conduct is improper and, in flagrant cases, may lead to reversal [citation]. If the State indeed intends to use it for the limited purpose permitted, the prosecutor should confine his arguments to that purpose, and any improper use should not be tolerated.” (124 Ill. App. 3d 516, 530-31, 464 N.E.2d 659.)

In that case, the defendant’s conviction was not reversed because “there was only a single improper reference to which the trial court sustained defendant’s objection and further admonished the jury that the content of the conversation *** was not in evidence and was not to be considered by them.” (124 Ill. App. 3d 516, 531, 464 N.E.2d 659.) In the instant case, however, the trial court overruled defendant’s objection and told the prosecutor that he could “comment on the evidence.” The jury then heard two additional references to the mother’s statement. We believe this to be the kind of flagrantly improper argument mentioned in Hunter. Since the trial court added to the suggestion that the mother’s statement was evidence that could be considered by the jury, and since the statement was mentioned at least three times by the prosecution, the grounds for affirming the trial court’s decision in that case are absent here.

The State correctly argues that defendant failed to preserve for review the issues concerning his mother’s declaration by failing to object when the statement was first introduced at trial and by failing to include either the introduction or subsequent use of the statement in his motion for new trial. However, according to Supreme Court Rule 615(a) (87 Ill. 2d 615(a)), we may consider such issues if they affect substantial rights in criminal cases. It is appropriate to do so in cases where the evidence is closely balanced or in cases where the magnitude of the error denies the accused a fair and impartial trial. (People v. Maisonet (1985), 138 Ill. App. 3d 716, 719, 486 N.E.2d 277.) Such a situation is presented in the instant case. Given defendant’s troubled mental history, the conflicting reports of the psychiatrists who examined him before trial, and the agreement on the part of all that defendant did suffer from a mental defect, we think it clear that the evidence presented to the jury a close question of whether to reach a verdict of guilty but mentally ill or not guilty by reason of insanity. In such a close case, the prejudicial effect of a contradiction of defendant’s story by his own mother cannot be ignored. We therefore hold that the introduction and later substantive use of the mother’s out-of-court statement requires reversal of defendant’s conviction despite the failure to preserve the issues for review.

Because it is likely to be raised at retrial, we address an additional issue argued by defendant. At trial, a State psychiatrist twice testified that he had found defendant to be sane at the time of the offense because after his arrest, he had remained silent when informed of his right to do so. A copy of the rights read to defendant at the time of his arrest was submitted to the jury over defense objection. This was error. Our supreme court, following the United States Supreme Court precedent of Wainwright v. Greenfield (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634, has ruled that a criminal defendant’s invocation of his constitutional right to remain silent after his arrest cannot be introduced as evidence rebutting his claim of insanity. (People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485; People v. Stack (1986), 112 Ill. 2d 301, 493 N.E.2d 339.) Such evidence should not have been introduced in the case at bar.

For the foregoing reasons, we reverse defendant’s murder conviction and remand the cause to the circuit court for retrial.

Reversed and remanded.

RIZZI, J., concurs.