People v. Kando (397 Ill. App. 3d 165, 2009)

JUSTICE JOSEPH GORDON

delivered the opinion of the court:

I. NATURE OF THE CASE

Defendant, Amir Kando, was arrested and charged with aggravated battery and attempted murder of his neighbor, Jason Burley. At his bench trial, defendant raised the insanity defense pursuant to section 6—2 of the Criminal Code of 1961 (Code) (720 ILCS 5/6—2 (West 2004)). The trial court found defendant guilty but mentally ill and subsequently sentenced him to 15 years’ imprisonment. On appeal, defendant makes several contentions. He first argues that his conviction should be reversed because the trial court’s finding of guilty but mentally ill was against the manifest weight of the evidence. In the alternative, defendant contends that his cause should be remanded for a new trial because he was denied his right to due process when the trial court failed to correctly recall and consider testimony by several witnesses, whose testimony was crucial to defendant’s insanity defense, and where it instead relied on matters that were not part of the record. Defendant also asserts that he was denied his constitutional right to effective assistance of counsel, where counsel: (1) failed to properly handle his insanity defense by failing to impeach two of the State’s key witnesses, and (2) failed to object to a discovery violation by the State. Defendant finally contends that even if his conviction is affirmed, we should nevertheless remand for a new sentencing hearing because the trial court abused its discretion when it sentenced him to 15 years’ imprisonment, a sentence nine years above the statutory minimum. For the reasons set forth below, we reverse.

II. BACKGROUND

We begin by noting the relevant procedural history and the facts set forth in the record before us. On July 23, 2005, defendant was arrested in his residence at 5215 North Sawyer Avenue in Chicago, for committing an aggravated battery against the victim, Jason Burley. The arrest report prepared by Chicago police officers Hamid and Eberlynn states that defendant was placed into custody “after he stabbed his neighbor [Burley] over an argument about ‘Jesus is black.’ ” The arrest report farther states that defendant “admitted to stabbing” the victim and that he “suffers from ‘schizophrenic bipolar anxiety.’ ”

Pursuant to his arrest, defendant was subsequently charged with one count of attempted first degree murder (720 ILCS 5/8—4, 9—1(a)(1) (West 2002)) and three counts of aggravated battery (720 ILCS 5/12—4(a), (b)(1) (West 2002)).

1. First Fitness Hearing

On November 18, 2005, a fitness hearing was held to help determine defendant’s fitness to stand trial. At that hearing, the parties stipulated that if called to testify Dr. Dawna Gutzman, an expert forensic clinical psychiatrist employed by the Forensic Clinical Services of the circuit court of Cook County, would testify that pursuant to a court order she examined defendant on October 20, 2005, solely in order to determine his fitness to stand trial, and concluded, to a reasonable degree of scientific certainty, that defendant was unable to stand trial, “due to acute symptoms of severe psychiatric disorders,” i.e., schizoaffective disorder, bipolar type. If called to testify, Dr. Gutzman would farther state that it was her opinion that should defendant receive appropriate psychiatric treatment, i.e., be placed in a secured psychiatric facility, he could be restored to fitness within the statutorily authorized period of one year.

The parties stipulated to Dr. Gutzman’s entire report regarding defendant’s fitness to stand trial. Although this report was prepared by Dr. Gutzman in her evaluation of defendant’s fitness to stand trial, it was largely reiterated by Dr. Gutzman in her testimony at trial and was also relied upon by Dr. Nadkarni in rendering his opinion on defendant’s sanity in his testimony at defendant’s trial. This report reveals that in determining whether defendant was fit to stand trial, Dr. Gutzman first reviewed numerous documents pertaining to defendant, including: (1) defendant’s medication profile from Cermak Health Services, i.e., the hospital of the Cook County jail (hereinafter referred to as the “prison hospital”), where defendant was evaluated immediately upon his arrest; (2) defendant’s psychiatric records from Chicago Read Mental Health Center; (3) defendant’s school transcripts; (4) defendant’s psycho-social history report (including input from the defendant’s family) prepared by a social worker employed by the Forensic Clinical Services of the circuit court; and (5) the police reports regarding the incident and leading up to the criminal charges brought against defendant.

These records reveal, as discussed in Dr. Gutzman’s report, that defendant is 34 years old, that he was born in Iraq, but moved to the United States at an unidentified age, where he attended and graduated high school. The records further reveal that defendant has never worked because of his mental illness but, rather, receives disability checks.

Dr. Gutzman’s report further reveals that in determining defendant’s fitness to stand trial, she performed a 45-minute clinical evaluation of defendant. In her report, Dr. Gutzman noted that as of the date of that examination, defendant was being prescribed and was taking several psychotropic medications daily, including: 20 milligrams of Paxil once a day, 500 milligrams of Depakote twice a day, 30 milligrams of Navane twice a day, 10 milligrams of Zyprexa once a day; and 1 milligram of Ativan three times a day. Dr. Gutzman reported that during the evaluation defendant appeared to be appropriately groomed, cooperative, maintaining appropriate eye contact during the interview. According to Dr. Gutzman’s report, defendant’s speech was of normal rate and volume, and he exhibited no motor abnormalities except that his face “was masked.” Defendant’s mood was somewhat anxious and his affect constricted. Although defendant’s thought processes were coherent and generally goal oriented, he had difficulty understanding or orienting to the passage of time. Moreover, although defendant’s concentration was adequate, defendant exhibited impairment of his long-term memory. In her report, Dr. Gutzman further observed that although defendant’s impulse control was intact, his reasoning was illogical, his judgment was impaired, and his insight was poor.

According to Dr. Gutzman’s report, her evaluation of defendant, three months after his arrest, revealed that defendant could not appreciate the charges being brought against him. Specifically, Dr. Gutzman’s report reveals that when asked what he was being charged with, defendant responded that he did not know. Defendant could further not state whether he was being charged with a felony or a misdemeanor, nor could he explain the difference between the two. When asked what he was accused of doing, however, defendant responded, “hitting someone with a knife.” Defendant could not recall the date of the incident, but stated that he had been in jail “a couple of years,” even though he had been incarcerated for only three months. When asked how he ended up in jail, defendant indicated, “I don’t know, they picked me up, I guess.” When asked to explain why he was picked up, defendant stated “because I stabbed him.”

Dr. Gutzman’s report further revealed that defendant could not understand the purpose of a trial or appreciate the role of different courtroom personnel. Specifically, Dr. Gutzman reported that when asked to explain the purpose of a trial, defendant first indicated that he did not know, but then on further prompting went on to state, “you go to [the] Supreme Court.” Similarly, defendant could not explain the meaning of the words evidence or testimony, but did describe a witness as “someone who watches you did something bad.” Defendant could not explain the role of the State’s Attorney at trial, but stated that a public defender’s role is to “defend the person, the witness,” and that the judge’s role is “to see if something has been done wrong or right.” When questioned about the meaning of the term “guilty,” defendant stated that it means “someone that was in a crime picture.” He stated that “guilty” means “someone who did a crime,” and that “innocent” means “the person that didn’t do the crime.” Defendant further indicated that he did not know what would happen to him if he were found guilty or not guilty.

Dr. Gutzman’s report also revealed that when asked to explain the meaning of the term “defendant,” defendant stated “the person that I tried to lock up for 1000 years. Satan, he goes by the name Jason, but he is Satan.” As shall be discussed in more detail in the context of Dr. Gutzman’s testimony at defendant’s trial, defendant then told Dr. Gutzman that for about two weeks prior to this incident, he had been receiving messages from Jesus telling him that he was the “Angel in human form on earth and that he should kill and lock up Satan for 1000 years.” Defendant told Dr. Gutzman that he “tried to lock up [Satan] for 1000 years” so that Satan would not “deceive the nations,” and that he tried to do so by hitting Satan with a knife, but that he ultimately did not succeed. Defendant stated that when he failed to lock up Satan, he went to his room, where he “wore the shirt that Jesus gave to [him],” a shirt that was given to him in 1993 “when [he] [w]as in Swedish Covenant Hospital.” Defendant then changed course and told Dr. Gutzman that he wore that same shirt “before the fight” and that he did not know what he did once he returned to his room.

Dr. Gutzman’s report also revealed that defendant told her that the victim was his neighbor, that he did not always know that Jason was Satan, but rather that “just instantly it came.” Defendant explained that he knew that Jason was Satan because “he would talk things weird,” “he smelled like Satan,” and “he looked like Satan.” When Dr. Gutzman asked defendant whether the arresting officers understood that Jason was Satan, he responded, “they didn’t believe me.”

During the clinical evaluation, defendant also told Dr. Gutzman that in the past he has received different types of messages from Jesus, i.e., that he will be married soon. Defendant explained that he has heard “a big echo voice,” instructing him “you gonna do this today, you gonna do that today,” but that he is not certain whether this is Jesus speaking to him. When asked whether the voice tells him to hurt others or fight with them, defendant responded in the affirmative and explained that he has responded to these commands by fighting with others. When asked why he is supposed to fight, defendant responded, “for the Glory of God.”

Dr. Gutzman’s report further reveals that when questioned regarding any current symptoms of his mental illness, defendant complained of having great difficulty sleeping and feeling “down, depressed, worried and angry.” Defendant also reported that he suffers from “anxiety, delusions, paranoias, schizophrenia, all of them coming together, they’re squeezing my head.” When asked to describe his delusions, defendant first indicated that he could not, but then stated, “I’m seeing Satan. All Satanic people, Satanic workers, they’re all Demons.”

With respect to defendant’s past psychiatric and medical history, Dr. Gutzman’s report reveals that when asked whether he has had a history of seizures or any concussions or head injuries defendant stated, “they beat me up,” and then explained that “they” referred to “Satan, Demons,” and that the beating occurred two or three years ago. Defendant also stated that his mental health treatment began in 1989 and that he will “never forget that hellish day.” Since then, he has been hospitalized between 17 to 25 times and has made two suicide attempts. The first suicide attempt occurred when defendant attempted to “pluck out [his] eye,” in response to a Bible verse that commands, “if your eye causes you to sin, pluck it out and throw it away.” The second occurred during one of his hospitalizations, when he took a very hot shower “so [his] brain [would] melt away, die fast.”

Based on the aforementioned clinical evaluation of defendant, in her report, Dr. Gutzman concluded that defendant was unfit to stand trial as a result of his schizoaffective disorder, bipolar type. Based on this report, stipulated to by the parties at defendant’s first fitness hearing, on November 18, 2005, the trial court found defendant unfit to stand trial and remanded him for treatment.

2. Second Fitness Hearing

One year later, on November 13, 2006, a second fitness hearing was held. At that hearing, Dr. Gutzman testified that pursuant to a court order she again examined defendant on October 19, 2006, to determine whether he was fit to stand trial, and that it was her opinion to a reasonable degree of scientific certainty that defendant was now fit while on medication. We note that, at this time, Dr. Gutzman also evaluated defendant to determine whether he was legally sane at the time of the commission of the offense and that she concluded to a reasonable degree of scientific certainty that he was legally insane. Dr. Gutzman did not testify with respect to this opinion at defendant’s second fitness hearing.

During defendant’s second fitness hearing, Dr. Gutzman testified that her opinion that defendant was fit to stand trial was based on a clinical interview that she performed on October 19, 2006, as well as her review of the following pertinent records: (1) her first clinical interview of defendant which took place on October 20, 2005; (2) defendant’s medical records from the prison hospital, Chicago Read Mental Health Center, and Chester Medical Health Center; (3) defendant’s high school and community college transcripts; (4) defendant’s psycho-social history report; and (5) the police reports of the incident.

Dr. Gutzman specifically testified that defendant understood the charges against him, the pleas and penalties associated with his case, the nature of the proceedings, and the roles of different courtroom personnel. Defendant could also recall events and recount them and was capable of behaving appropriately in the courtroom, as well as assisting his attorney in preparing his defense.

Dr. Gutzman also testified that defendant suffers from schizoaffective disorder, bipolar type, for which he is currently being treated with the following medication: (1) 125 milligrams of clozapine in the morning and 200 milligrams at bedtime; (2) 750 milligrams of Depakote twice daily; and (3) 20 milligrams of Paxil at bedtime. Dr. Gutzman averred that these medications would not interfere with defendant’s fitness to stand trial.

Based on Dr. Gutzman’s uncontradicted testimony, the trial court found defendant fit to stand trial with medication. Defendant subsequently waived his right to a jury and proceeded with a bench trial.

3. Bench Trial

At defendant’s bench trial, defendant did not dispute his involvement in the commission of the facts with which he was charged. Rather, he raised the affirmative defense of insanity, contending that during the commission of the offense he was incapable of appreciating the criminality of his conduct.

a. State’s Case-in-Chief

In its case-in-chief, the State offered no psychiatric or other expert testimony. Instead, the State relied on four lay persons, including the victim, who witnessed the events prior to, during, and immediately following the crime.

The victim, Jason Burley, first testified that he is a 37-year-old commercial truck driver and that in July 2005, he lived with his grandmother and his parents, Jerome and Joanne Nelson, on the second floor of a six-unit apartment complex located at 5217 North Sawyer Avenue in Chicago. Burley acknowledged that defendant was his neighbor and that he lived on the first floor of the apartment complex with his family, but explained that prior to the incident, the two of them never had much contact, except for occasionally saying “Hello” to each other in the hallway.

Burley then described the events that took place on July 23, 2005. He testified that at about 10 p.m. on that date, he was sitting on a manhole cover, on the common back stairwell of the building, smoking a cigarette, when he saw defendant walk out of the rear entrance, pass in front of him, and walk around the corner of the building. Burley averred that at this point, he was neither startled nor felt uncomfortable by defendant’s presence, as he recognized defendant as his neighbor.

Burley testified, however, that only about 20 seconds later, he felt someone grab him around the neck from behind and that he saw a blade on the left side of his neck. Burley immediately grabbed the knife with his left hand to protect himself, slicing his left ring finger and leaving a superficial cut on the right side of his neck. Burley attempted to hold onto the knife, but his attacker came around to the front and stabbed him twice in the chest. Burley testified that it was only then that he actually recognized defendant as his attacker. Burley then grabbed defendant’s wrists, raised them above defendant’s head and pushed defendant backwards, forcing both of them to fall to the ground. After both men got up, Burley called for help and heard his mother shouting in response.

Burley observed defendant running toward the door to the stairwell, so he ran in the opposite direction toward the parking garage at the back of the building. Burley testified, however, that he then realized that his mother might try to come down the stairs to find out what was going on, and that she might run into defendant, so he quickly turned back. As he was running into the bottom door of the stairwell, Burley ran into his father, Jerome Nelson. Burley told his father what happened. Burley’s mother came down the stairs a short while later, and after hearing what happened, instructed Burley to come up the stairs. Burley could not walk up the stairs and therefore waited at the bottom of the stairwell for his mother to call an ambulance.

The police and the ambulance arrived soon thereafter and Burley was transported to Illinois Masonic Hospital. Burley testified that as a result of the attack he suffered the following injuries: (1) a superficial knife wound on his neck; (2) a severed left ring finger at the base; (3) a defensive wound on the interior part of his left elbow; (4) a wound on his chest, which collapsed his left lung and severed his right ventricle outflow track (which connects the right ventricle to the right atrium of the heart); and (5) a wound near his belly button. As a result of his injuries he underwent surgery and remained hospitalized for six days.

Burley also testified that immediately prior to and during the attack he never spoke to defendant, never threatened him in any way, nor said anything to defendant as defendant was walking out of the rear building entryway. In fact, Burley averred that prior to this incident he “never had any problems” with defendant at all.

Burley finally identified several photographs of the apartment complex where the incident occurred, a photograph of the area to which defendant ran following the attack and a photograph of the area to which Burley ran to get away from defendant. Burley also identified the knife used by defendant during the attack.

Defense counsel conducted no cross-examination of Burley, and the State called its next witness, Jerome Nelson. Nelson testified that in July 2005, he had been living with his wife, his mother-in-law, and his stepson, Jason Burley, at 5217 North Sawyer Avenue for about three years. Nelson acknowledged that he was familiar with defendant, who was their neighbor and who lived in the adjoining building with his family, but explained that prior to this incident, he never talked to defendant outside of a casual “Hello” in the hallway.

Nelson stated that at about 10:10 p.m. on July 23, 2005, he was sitting in the living room, when he heard his wife screaming for him because “something had happened” to his stepson, Burley. Nelson explained that minutes before that Burley had gone outside to smoke and his wife had proceeded to the kitchen. Nelson stated that after hearing his wife, he exited the apartment and ran down the building’s back stairs to try and locate Burley. As he reached the first-floor landing, Nelson ran into defendant, who had blood on his clothes and was clutching a bag to his chest. When Nelson asked defendant what had happened, defendant responded, “Jason [Burley] stabbed me,” and then proceeded to push Nelson out of the way so that he could enter his own apartment.

Nelson testified that he then turned around and observed Burley staggering through the rear entrance, holding his chest. Burley told Nelson that defendant stabbed him. Burley also told Nelson that as defendant stabbed him, defendant had yelled that “he [defendant] was Shiite.” While Burley’s mother called 911, Nelson knocked on defendant’s door, in an attempt to find out what happened. Although Nelson persisted in knocking, no one opened the door.

According to Nelson, soon thereafter, two police officers arrived at the scene and they proceeded to knock on the door. At this point, defendant and his mother opened the door and stood in the doorway. Nelson testified that he heard the officers ask defendant to explain what had happened, and defendant respond, “he stabbed me.” According to Nelson, the officers then entered defendant’s apartment and proceeded to the kitchen. Once in the kitchen, the police officers asked defendant where the knife was, and Nelson observed defendant first point to a pantry room, and then he led the officer to the knife. Nelson stated that defendant then told the officers that he stabbed Burley because Burley had told him Jesus was black and Jesus then told defendant to stab or kill Burley. Defendant then began to ramble that Burley is the devil and Satan. Nelson testified that at this point, the paramedics arrived and that he therefore left the officers to be with his stepson.

On cross-examination, Nelson admitted that his testimony on direct examination that, immediately after the incident, Burley had said to him “he [the victim] stabbed me,” was elicited for the first time at trial, two years after the occurrence. Burley admitted that he never told any of the officers at the scene of the crime that defendant had said that Burley stabbed him. Nelson further acknowledged that after the incident, he went to the police station, where he spoke to Lieutenant Carillo, and a female detective, but that he again failed to mention that defendant had said that Burley stabbed him. Instead, Nelson acknowledged that at that time he told police that defendant had said that Burley was a demon and that this was why defendant stabbed him.

Officer Anil Hamid next testified that at approximately 10:15 p.m., on July 23, 2005, he responded to a call of a man being stabbed at 5217 North Sawyer Avenue. Once at the scene, Officer Hamid went directly to the backyard, where he observed a man lying on the grass, bleeding from what appeared to be stab wounds. Officer Hamid soon learned that this was the victim, Jason Burley. He also encountered the victim’s mother and was directed to the first floor of the apartment building where the alleged offender lived. Together with Sergeant Eberlynn, Officer Hamid proceeded to the first-floor landing, where he encountered Nelson. Officer Hamid knocked on defendant’s door, which was immediately opened by defendant and his mother. Officer Hamid testified that defendant was “hysterical” and started shouting that “he [Burley] jumped on me; I stabbed him; he jumped on me.”

Officer Hamid asked defendant where he put the knife, and defendant directed him to a pantry door, saying, “it’s behind the door.” From that pantry, Sergeant Eberlynn recovered a long kitchen knife which appeared to have blood on it. Defendant then stated that the victim was Satan and that he said that Jesus was black so defendant had to stab him.

Officer Hamid testified that defendant was then placed into custody and taken to the police station. He further identified photographs of defendant’s front door and the pantry, as well as the knife that was recovered from the pantry.

Defense counsel conducted no cross-examination of the witness, and the State proceeded by way of a stipulation. The parties agreed that if called to testify, Detective Carillo would state that shortly after 10:15 p.m., on July 23, 2005, he responded to the scene of the incident at 5217 North Sawyer Avenue. The parties agreed that Detective Carillo would testify that, together with Detective Delifant, he interviewed defendant at the police station soon after the incident. Specifically, Detective Carillo would state that at approximately 2:03 a.m. on July 24, 2005, in his presence, Detective Delifant advised defendant of his Miranda rights, and defendant verbally indicated that he understood those rights, wished to waive them and speak to the detectives.

According to Detective Carillo’s stipulated testimony, during the interview, defendant told the detectives that three days prior to the incident, Jesus came to him in a dream and told him to kill the victim, who was Satan, in order to bring peace to the world. Defendant also told the officers that approximately IV2 weeks prior to the incident, the victim had told him that Jesus was black. Defendant further stated that after sporadically talking to the victim throughout the night, he removed a knife from the kitchen and walked out into the yard. He told detectives that he attacked the victim, stabbing him an unknown amount of times. Defendant also told the detectives that he felt that he had failed Jesus because he did not kill his neighbor. Defendant also stated that the victim did not have a weapon and had not attacked him.

It was further stipulated that Detective Carillo would testify that during the interview, defendant stated that as a result of the incident he wore shorts with stripes and a shirt which became bloody and which he removed so as not to scare his mother. The parties agreed that if called to testify, Detective Carillo would identify a photograph of defendant’s bedroom, where the bloody clothing was found in plain view on the floor. He would explain that when he entered the apartment, defendant’s mother pointed out defendant’s medication and showed him defendant’s room, where he found a pair of boxer shorts and a T-shirt that had red stains on it.

b. Defendant’s Case-in-Chief

After the State rested, the defense proceeded with its case-in-chief by calling two state-employed expert forensic psychiatrists, who both opined that defendant was legally insane at the time of the incident.

i. Dr. Gutzman

Dr. Gutzman, who was qualified as an expert in forensic psychiatry, testified that she is a forensic psychiatrist with Forensic Clinical Services of the circuit court of Cook County and that she has examined defendant twice pursuant to court orders: (1) the first time on October 20, 2005, three months after the stabbing, solely to determine defendant’s fitness to stand trial and (2) the second time on October 19, 2006, in order to determine both defendant’s fitness to stand trial, as well as his ability to appreciate the criminality of his conduct at the time of the offense.

Dr. Gutzman first testified with respect to her October 20, 2005, examination of defendant for purposes of determining his fitness to stand trial. She testified consistent with the report she prepared for the trial judge at defendant’s first fitness hearing, which report, as already noted above, was stipulated to by the parties at that hearing and relied upon by the trial judge to initially find defendant unfit to stand trial. At trial Dr. Gutzman acknowledged that during this, her first, evaluation of defendant, only three months after his arrest, she made no diagnosis regarding defendant’s sanity, since the focus was on his fitness to stand trial. However, she testified that certain details of that evaluation were relevant to defendant’s state of mind at the time of the crime and established that defendant was “definitely psychotic” at the time of the incident.

Specifically, Dr. Gutzman testified that when first evaluating defendant on October 20, 2005, she spoke to defendant regarding the incident and defendant told her that he tried to “lock [Satan] up for 1000 years until Satan will be released from his prison so he won’t deceive the nations no more.” When asked whether he had been able to lock up Satan, defendant responded in the negative, explaining, “[w]e struggled. I fight it. I couldn’t lock him up. I hit him with a knife but I couldn’t lock him up.” When asked what he did after he hit Satan with a knife, defendant responded, “I went in my room and I wore the shirt that Jesus gave to me.” Defendant explained that he received the shirt from Jesus in 1993, “when I [w]as in Swedish Covenant Hospital.” When asked how he knew that the shirt was from Jesus, defendant responded, “because his hands were like this” and then proceeded to demonstrate by raising his arms out in front of him and allowing his hands to droop toward the floor. Immediately thereafter, without any prompting, defendant corrected himself, stating that in fact he “wore the shirt before the fight.” When Dr. Gutzman then asked defendant to explain once again what he did after he went to his room, defendant responded that he did not know.

Dr. Gutzman proceeded to question defendant about his relationship with the victim. She first asked defendant when he realized that Jason was Satan, and defendant responded, “the last weeks of (pause) as soon as he would talk to me, he would talk things weird.” Defendant further stated, “he smelled like Satan. He looked like Satan.” When Dr. Gutzman repeated her question, asking defendant again when he actually realized Jason was Satan, defendant indicated that he could not recall. Dr. Gutzman inquired how long defendant had known the victim before he realized that he was Satan, and defendant responded, “he’s my neighbor.” Defendant then stated that he did not always know Jason was Satan but, rather, that “just instantly it came. I didn’t realize it always.” Defendant was also asked whether the arresting officers understood that Jason was Satan, and he responded, “they didn’t believe me.”

Dr. Gutzman also asked defendant when he decided that he needed to lock up Satan. Defendant responded “that day when I did that, I can’t remember exactly.” Defendant then told Dr. Gutzman that he had been receiving messages from Jesus that he should lock Satan up, stating “Jesus would come up to me every night and say I love you, you are my son. You’re going to kill Satan, You’re going to lock him up for 1000 years so he won’t go out deceiving the nations.” Defendant continued to explain “I’m the Angel that came down from the sky to lock up Satan. I’m the angel but in a human form.” When Dr. Gutzman asked defendant how long he had been receiving messages from Jesus to lock up Satan, defendant stated, “for about two weeks.”

Dr. Gutzman next testified regarding her second clinical evaluation of defendant on October 19, 2006. She testified that the interview lasted approximately 25 minutes and that as a result of this interview she was of the opinion to a reasonable degree of scientific certainty that defendant was fit to stand trial while on medication, but that at the time of the commission of the offense he would have been legally insane, i.e., unable to comprehend the criminality of his actions as a result of his schizoaffective disorder, bipolar type.

Dr. Gutzman described schizoaffective disorder as a chronic severe psychiatric disorder characterized by a person having psychotic symptoms such as delusions, hallucinations, disorganized thought processes, and bizarre behavior. She explained that patients with this disorder basically suffer all the same symptoms as patients with schizophrenia, as diagnosed by Dr. Nadkarni, but in addition suffer mood disturbances, i.e., either depression (including symptoms such as sadness, inability to sleep, loss of appetite, etc.) or mania (including symptoms such as talkativeness, physical restlessness, racing of the mind, etc.). Dr. Gutzman stated that during her interview of defendant she personally observed defendant’s delusional beliefs as well as his disorganized thought processes and bizarre behavior. When questioned regarding the difference in the diagnosis she and Dr. Nadkarni had rendered, she explained that the issue was not relevant to defendant’s sanity at the time of the offense, because both diagnoses were very severe psychotic disorders.

Dr. Gutzman further testified that in coming to her conclusion that defendant was legally insane at the time of the commission of the offense she reviewed, inter alia, voluminous medical records, which revealed that over the years, defendant required recurring psychiatric hospitalizations. According to Dr. Gutzman, these records revealed that defendant was first hospitalized in October 23, 1998, at Read Mental Health Center, after having experienced visual hallucinations (such as seeing angels beating on bad people and covering their mouths to keep them quiet), as well as auditory hallucinations (such as hearing voices coming from the computer and television, and Jesus telling him that he will make peace on earth for the next 1,000 years and Satan will be locked up in chains). The records further revealed that during his hospitalization at Read Mental Health Center defendant destroyed a television set because he felt that Satan was inside the electronic equipment.

Dr. Gutzman further testified that defendant was again admitted and treated at Read Mental Health Center on June 23, 1999, until his discharge on April 17, 2000. Defendant was admitted because he had failed to take his medication and struck a patient at Rush North Shore Hospital believing that she was Satan. The discharge summary from this hospitalization revealed a provisional diagnosis of paranoid schizophrenia and a discharge notice of schizoaffective disorder, manic type. Defendant was again admitted to Read Mental Health Center on May 22, 2000, after “being assaultive to his mother and brother,” expressing paranoia and delusions about them being possessed by demons. After exhibiting aggressive behavior at Read Mental Health Center, including physically attacking peers because he believed that they were demons, defendant was transferred to a more secure facility, the Chester Mental Health Center, on July 22, 2000. After being stabilized, defendant was returned to Read Mental Health Center on February 6, 2002, and discharged about a month later on March 14, 2002. Defendant’s discharge sheet indicated a diagnosis of chronic paranoid schizophrenia.

Dr. Gutzman stated that she also reviewed the medical records from the prison hospital, where defendant was admitted immediately upon his arrest. These medical records stated a diagnosis of schizoaffective disorder and revealed the intake psychologist’s notes stating, “patient appears to be paranoid and to have acted out on delusions.” The records from the prison hospital further revealed that at the time of his admission, defendant told the psychologist that he saw “demons and Satan today,” that he stabbed a person he believed was Satan and that he said, “I have delusions.” When questioned what significance she would give to this last statement, Dr. Gutzman responded that she would have to make a conjecture as that statement is made outside of any context in the medical report. She stated that it was most likely that at that point defendant was being questioned about his mental illness and that, having been hospitalized multiple times, he was describing symptoms that he had heard from numerous doctors before.

Dr. Gutzman further averred that she also reviewed records from Chester Mental Health Center, where defendant was hospitalized for a year after being found unfit to stand trial. While at Chester Mental Health Center defendant was treated with clozapine, Depakote and Paxil, and had been stabilized so as not to exhibit or express any delusional beliefs. Dr. Gutzman concurred with Dr. Nadkarni that clozapine is a potent drug “of last resort” used to treat delusions, hallucinations, disorganized thought process and bizarre behavior. She explained that Clozaril is a drug of last resort because although it is very effective in treating psychosis, it has potentially serious life-threatening side effects, i.e., causing the bone marrow to stop producing blood cells, resulting in death. Consequently, any patient treated with Clozaril must have his blood drawn every two weeks to check the blood count, and the drug supplying company will not provide the hospital a dosage until the blood results are in. Dr. Gutzman explained that as a result of this procedure, there are times when defendant misses a dose, either because of a problem with obtaining the drug from the company or because of a court date, not because he is non-compliant. According to Dr. Gutzman, records from Chester Mental Health Center revealed that defendant had experienced the aforementioned difficulties with obtaining Clozaril, and that every time he missed a dose his behavior rapidly deteriorated, with defendant immediately beginning to exhibit symptoms of his psychosis, including heavy praying, and potentially becoming aggressive.

Dr. Gutzman also stated that she found no evidence that defendant had been malingering his symptoms. She specifically explained that in reviewing defendant’s voluminous medical history, she encountered no report by any psychiatrist or psychologist indicating that defendant had been malingering.

Dr. Gutzman next testified that in coming to her conclusion that defendant was unable to appreciate the criminality of his actions, she also reviewed defendant’s psycho-social history prepared by social worker Jean Bostcik. According to Dr. Gutzman, defendant’s family informed Bostick that defendant had a history of auditory and visual hallucinations and that at the time of the incident defendant had been seeing his psychiatrist, Dr. Reeves. Defendant’s family also informed Bostick that two to three months prior to the incident Dr. Reeves had reduced defendant’s medication and that they were concerned because lowering of the dosages had preceded defendant’s prior hospitalizations at Read Mental Health Center.

Dr. Gutzman stated that she also reviewed the police reports of the incident, and opined that defendant made what she would consider “delusional statements” when he spoke to police. According to Dr. Gutzman, those statements were consistent, i.e., very similar to or the same as those statements defendant had made many times in the past when he was ill, and which were documented as “hyper-religious delusions.” Dr. Gutzman stated that she found nothing inconsistent in the fact that after stabbing the victim defendant took the knife with him back to his apartment. She explained that the fact that defendant did not attempt to discard the knife outside the apartment or otherwise conceal it explains that he did not think that he had done anything wrong. She elaborated that it was reasonable to presume that defendant was not trying to hide the knife when he put it inside the pantry because that would be a place where a knife would belong. Moreover, Dr. Gutzman stated that defendant never denied stabbing the victim because he believed that Jesus had given him the task of killing Satan and he believed that the victim was Satan and that he failed to kill him. Dr. Gutzman further averred that the fact that defendant changed his clothing right after the stabbing was consistent with his delusionally produced behavior and all part of one delusional episode. She stated that this was especially true in light of the fact that defendant admitted to police that he took his bloody clothing off, saying he did so because he did not want to frighten his mother. Finally, Dr. Gutzman stated that there was nothing inconsistent in the fact that defendant locked himself in his apartment and refused to open the door to Nelson until the police arrived. She stated that although she cannot state exactly why a person who is psychotic would do something like that, “because it is hard for a sane person to interpret the behavior of a psychotic one,” it is a fair assumption that defendant acted in such a way because he was still afraid of Satan, whom he had just encountered and struggled with.

Dr. Gutzman was next asked whether if she were told that, during the incident while stabbing the victim, defendant yelled out four to six times, “Shia, Shia, Shia,” or “God, God, God,” she would find that inconsistent with her determination that defendant was legally insane at the time of the commission of the offense, and she responded in the negative. Dr. Gutzman explained that if a patient believes he is on a mission from God, yelling out his name during the carrying out of that mission would be consistent with the delusion.

On cross-examination, Dr. Gutzman first admitted that she did not perform or order any tests for malingering on defendant, although she could have ordered a psychologist to perform such a test.

She further acknowledged that a person who has a mental illness could at the same time be legally sane at the time of an incident and that, in order to determine his sanity, it would be important to look at the particular date and time when the incident in question occurred. Dr. Gutzman then admitted that she never spoke to the victim, his family or the police officers involved in the matter. However, she explained that when evaluating the sanity of defendants, it is not standard practice, and she does not regularly interview either the victim or the police officers involved in the incident. Dr. Gutzman further stated that, although in evaluating defendant she did attempt to obtain psychiatric records from Dr. Reeves, defendant’s treating psychiatrist at the time of the commission of the offense, she never in fact received those records.

Dr. Gutzman also admitted on cross-examination that during her first interview of defendant, three months after the commission of the crime, her sole goal was to determine his fitness to stand trial, i.e., his ability to understand the trial process, the charges against him, and the relevant roles of courtroom personnel, and that, accordingly, she did not further question defendant about the details of the incident more than already described during direct examination.

Dr. Gutzman similarly conceded that during her second interview of defendant about a year after the incident, defendant expressed remorse for what he had done and told her that “it was all delusions.” Dr. Gutzman acknowledged that on this occasion, she did not ask defendant to describe any further the events of the incident than she already had done. Specifically, she never directly asked defendant why he locked the door after stabbing the victim or why he put the knife in the pantry.

Dr. Gutzman was next cross-examined about defendant’s statement, “I stabbed him, he jumped on me,” and denied that this was a statement of self-defense, stating that it was an explanation of the sequence of events. When questioned whether her opinion regarding defendant’s ability to understand the criminality of his conduct would change if she had been aware that, prior to running into his apartment, defendant had bumped into Nelson and told him “Jason [the victim] stabbed me,” Dr. Gutzman responded in the negative. She explained that in determining whether someone was legally sane during the commission of an offense it is inappropriate to take one statement out of context; rather, one must look at the entire picture. She averred that any such statement by defendant would not be indicative of defendant’s attempt to intentionally lie, especially since the police reports reveal that defendant interchangeably used “Jason” and “Satan” to refer to the victim. According to Dr. Gutzman, when saying “Jason stabbed me,” defendant would have essentially been saying, “Satan stabbed me.”

ii. Dr. Nadkarni

Defendant’s second expert witness, Dr. Nadkarni, was qualified as an expert in the field of forensic psychiatry and proceeded to testify that he is a staff forensic psychiatrist with the Forensic Clinical Services of the circuit court of Cook County and that, pursuant to a court order, he examined defendant on January 5, 2007, in order to render a second opinion as to defendant’s sanity at the time of the offense. Dr. Nadkarni concluded to a reasonable degree of scientific certainty that at the time of the commission of the offense, defendant was legally insane, as he was suffering from an acute exacerbation of paranoid-type schizophrenia.

Dr. Nadkarni testified that in coming to this conclusion, he performed a clinical evaluation of defendant and reviewed voluminous records pertaining to defendant. These records included: (1) Dr. Gutzman’s psychiatric evaluations, summaries and diagnosis of defendant performed on October 20, 2005, approximately 3 months after defendant’s arrest, and on October 19, 2006, about 15 months after defendant’s arrest; (2) defendant’s social history prepared by social worker Janine Bostick of the Forensic Clinical Services on October 12, 2005; (3) extensive police reports and documentation pertaining to defendant’s arrest; (4) defendant’s prior criminal history; (5) defendant’s statement to police given approximately five hours after the incident; (6) defendant’s educational record; (7) defendant’s prior as well as current medication profiles and (8) defendant’s medical records from Chester Mental Health Center dated 2006, from the prison hospital dated 2005, and from Chicago Read Mental Health Center for the period between 1998 to 2002.

Dr. Nadkarni testified that the aforementioned records revealed that defendant has a long history of chronic mental illness, beginning in 1989, when he was hospitalized in Ravenswood Hospital, after reporting “panic attacks *** [and thinking he] had a disease,” and was treated with Trilafon, desipramine and Xanax. Since then, defendant has been under the care of Dr. Robert Reeves, receiving ongoing psychiatric treatment on a biweekly basis. Defendant has been treated with a wide range of psychotropic medications, including Valium, Librium, Marplan, Seroquel, Risperdal, Zoloft, Prozac, Klonopin, lithium and Tegretol. Dr. Nadkarni testified that the records further reveal that after his first episode at Ravenswood Hospital, defendant has required more than 20 inpatient psychiatric hospitalizations at such facilities as Rush North Shore, Swedish Covenant, Glen Oaks, St. Elizabeth and Illinois Masonic Hospitals. Defendant was also hospitalized at least seven times by the Illinois Department of Mental Health, at such facilities as Chicago Read Health Center and Chester Mental Health Center.

The records reviewed by Dr. Nadkarni further revealed that immediately upon his arrest in this case, defendant received a preliminary mental health screening by doctors at the prison hospital. These professionals noted that the patient “appears to be paranoid and having acted on delusion. Insight is fair; impulse control is poor; judgment is poor.” According to Dr. Nadkarni, after the initial screening defendant was hospitalized in the inpatient psychiatric unit of the prison hospital, where he was treated for an unspecified psychotic disorder versus schizoaffective disorder, which is a sczhiophrenic spectrum primary psychotic illness. During this time, defendant was reported as being

“highly religiously preoccupied, unable to sit still and exhibiting psychomotor agitation and restlessness, which means he was pacing and was also highly emotionally charged. [Defendant] also was complaining of anxiety and experiencing hallucinations with Satanic themes.”

Dr. Nadkarni explained that the records from the prison hospital further revealed that after “extensive treatment with psychotropic medications” for about one week, defendant was deemed stable enough to be discharged to the residential treatment unit of the hospital. However, due to an increase in disorganized thinking and behavior, about a month after his arrest, defendant again required admission to the inpatient psychiatric unit.

Dr. Nadkarni explained that the records that he reviewed revealed that between March 2006 and October 2006, defendant was hospitalized at Chester Mental Health Center, after the circuit court found him unfit to stand trial on the current charge due to “severe psychosis and assaultive behavior.”

Dr. Nadkarni further testified that in determining defendant’s sanity at the time of offense, apart from reviewing records, he also performed a clinical evaluation of defendant which lasted approximately 45 minutes. Dr. Nadkarni noted that defendant appeared to be older than his stated age, that his Department of Corrections (DOC) khaki uniform appeared somewhat sloppy and wrinkled, that he was mildly malodorous, and that his grooming and hygiene were fair. Defendant was cooperative and maintained a pleasant and polite albeit somewhat anxious demeanor throughout the evaluation. According to Dr. Nadkarni, defendant’s eye contact was largely fixed, intense and unblinking. He did not demonstrate psychomotor agitation or retardation, although he appeared somewhat restless, shifting position in his seat. Defendant’s affect was constricted in range and intensity, tense-appearing, minimally reactive, but stable. His speech was somewhat rapid with mild pressure, machinelike and robotic but generally articulate. His thought process was goal directed, logical and linear. Defendant’s thought content was free of current overt delusions, even though he admitted to continued intermittent referential and religious ideations, but stated “but I’m not scared anymore.” Based on defendant’s fund of knowledge and rapidity of responses, Dr. Nadkarni estimated his intelligence to be at least above average.

Dr. Nadkarni testified that at the time of his clinical interview with defendant, defendant was being treated with Paxil, Depakote and Clozaril. He explained that Clozaril is a potent antipsychotic medication that is used as a fourth or fifth line of medication because it involves extensive patient monitoring. Dr. Nadkarni opined that patients who are given Clozaril are generally individuals who are responding either poorly to other psychotropic medications and/or their illness is so severe that they need “what essentially amounts to a heavy gun type of medication.”

Dr. Nadkarni next testified about the substance of his clinical interview with defendant. He stated that he began his evaluation by asking defendant to provide him with his own account of the events leading up to his arrest on July 23, 2005. Defendant told Dr. Nadkarni that he was “phasing out” his Zyprexa medication because he had heard that Zyprexa causes diabetes and pancreatitis. Defendant reported that he had been under the care of Dr. Robert Reeves, his outpatient psychiatrist located at Sheridan and Foster Avenues, and that he had been seeing Dr. Reeves for many years due to “schizophrenic, delusion, paranoia, anxiety.” Defendant reported that he ceased taking Zyprexa approximately one to two months prior to the incident on advice of Dr. Reeves, who recommended that defendant switch to Ability, another antipsychotic medication. Defendant told Dr. Nadkarni that he took Ability, as well as Navane (a mood stabilizer) and Depakote (an antidepressant) regularly as prescribed and that he was compliant with such treatment on the day of the incident.

Dr. Nadkarni testified that defendant’s statement about switching medication was corroborated by defendant’s family, who told the Forensic Clinical Services’ social worker that they expressed concern to defendant’s psychiatrist after defendant was given Ability, instead of Zyprexa, because they noticed that defendant was again becoming more religiously preoccupied and out of touch with reality, and they were concerned about his mental state.

Referring to his notes of the interview with defendant, Dr. Nadkarni next testified that defendant related the following version of events describing the incident:

“I had a friend of mine. We were smoking cigarettes. He went back home. That day I gave him a ride back. I seen, Jason, the victim. I looked at his teeth. I saw a gap. I thought he was Satan, like Madonna. God was telling me to echo I was an angel come from the sky. I had keys to the abyss. I could lock him up. I wanted to lock him up with my shoe laces that Jesus gave me. Jason was sitting on a sewer. I wanted to hold him from the back, stick him by the neck. He grabbed my hand. I fall down. I cut my elbow. We were fighting for the knife. He pulls it toward him. I got nervous. I failed the mission and God would punish me. He was Satan. When he would ask me when he would find a righteous girl and say that Jesus is black, I would lock him up for a thousand years. I go to my room. I cry because I didn’t lock up Satan. My mother was crying. My brother was sad. The police were coming. I heard the sirens. They come. They ask for the knife. I gave them the kitchen knife. They arrested me.”

When asked whether he had been experiencing any unusual mental phenomena around the time of the incident, defendant stated he felt depressed, and that for several months he had been “crying myself to sleep,” that he was hyperphagic, feeling worthless and useless and having guilty ruminations. Defendant also reported that he was experiencing auditory hallucinations during increasingly intense prayer at night and that he heard the voice of God saying, “do it, lock him up.” Defendant told Dr. Nadkarni that he was experiencing what Dr. Nadkarni identified as referential and paranoid delusions of a highly religious nature, specifically reporting that he felt the television set was telling him to “fight Satan.”

Defendant denied experiencing any manic symptoms or suicidal ideation at the time of the incident or having any overt homicidal ideation except in context of the delusional preoccupation. However, defendant reported two prior suicide attempts: (1) at Glenn Oaks Hospital, where he attempted to “explode [his] brain” by sitting under a hot shower because he “thought [he] was the Antichrist,” and (2) on a different occasion when he attempted to pluck his eye out in response to a biblical passage. Defendant denied the use of drugs or alcohol during the time of the incident.

When questioned about his mental illness, defendant reported a long history of auditory hallucinations of “echoes of religious figures” accompanied by severe hyper-religious preoccupation and delusional ideation, “praying a lot,” as well as paranoia. Defendant also reported hearing voices from the television and radio. He stated that his psychosis improves, however, “once [he] take[s] [his] meds.” When questioned about his mood, defendant provided what Dr. Nadkarni classified as a history of manic episodes lasting several days, manifested by feeling “up and being popular,” with grandiose thoughts, jumbled and rapid speech and thought process, and little need for sleep, followed by several major depressive episodes, manifested by severe tearfulness and isolation, the feelings of worthlessness and guilt, hopelessness and severely decreased concentration.

Based on the aforementioned records and clinical interview, Dr. Nadkarni diagnosed defendant with schizophrenic chronic paranoid-type disorder and opined that as a result of his illness at the time of the incident defendant was highly religiously preoccupied and psychotic, so as not to be able to appreciate the criminality of his conduct.

Dr. Nadkarni testified that his conclusion is supported by the voluminous records he reviewed prior to interviewing defendant, including police reports, defendant’s social history and medical records. Specifically, Dr. Nadkarni first testified that the police reports of the incident and arrest supported the conclusion that defendant was legally insane at the time of the crime. Dr. Nadkarni explained that he reviewed the police documentation “very carefully” because one of the criteria that is relevant in determining whether a patient truly suffers from a delusion at the time of the commission of the crime is the consistency of the story that he provides to multiple examiners or the police. According to Dr. Nadkarni, the police reports revealed that when the police arrived, Nelson informed them that he heard the offender state that the victim said Jesus was black and that the victim was a demon so defendant stabbed him and had to kill him. Dr. Nadkarni further stated that the reports revealed that in his statement to police defendant had said that: (1) “Jesus told him in a dream three days ago to kill the victim who is Satan in order to bring peace to the world”; (2) the victim had told defendant Jesus was black approximately 1 to IV2 weeks before the incident; (3) defendant felt that he had failed Jesus because he did not kill his neighbor; (4) defendant stated that his shirt had blood on it so he hid it so as not to scare his mother; and (5) defendant stated he wore shorts with stripes. According to Dr. Nadkarni, the aforementioned police reports were consistent with and supported his conclusion that defendant suffers from a diagnosable primary psychotic mental illness that was “active at the time of the alleged incident,” so as to prohibit defendant from being able to appreciate the criminality of his conduct.

Dr. Nadkarni also testified that from his interview with defendant, he could not detect any malingering, i.e., feigning or exaggerating symptoms, on the part of defendant. He further testified that in all of the reports he reviewed, defendant has never been diagnosed with malingering his symptoms.

Dr. Nadkarni testified that in coming to his conclusion that defendant was legally insane at the time of the incident, he also considered information provided by defendant’s family in the social history compiled by the Forensic Clinical Services’ social worker, as well as medical reports, which both revealed a pattern in defendant’s psychosis. The family reported that defendant’s psychosis exhibits as hyper-religiosity, namely, that on such occasions defendant increases the amount, frequency and intensity of his praying and that he becomes very preoccupied with religion and with matters of God and Satan. The family explained that on such occasions, defendant talks about God and Satan and appears to be internally stimulated by them. The family also reported that defendant experienced auditory and visual hallucinations with religious themes, including Jesus, as well as that he exhibited grandiose or self-inflated or elevated delusions of being an angel or a special messenger of God.

According to Dr. Nadkarni this is corroborated by numerous inpatient hospital records that reveal that when defendant becomes ill, he becomes very religious, starts to pray a lot and to develop delusions about people being Satan, and about him being sent to either cleanse the world or some variation of that theme. For example, during several of his hospitalizations at Chicago Read Mental Health Center between 1998 and 2002, defendant has exhibited hyper-religious delusions and auditory and visual hallucinations of a religious type, as well as “impulsive, paranoid, [and] unpredictable” behavior. The records from Read Mental Health Center further reveal that when he becomes acutely ill, defendant exhibits pressured speech and destroys or attempts to destroy electronic equipment, including television sets, radios, and computers due to auditory hallucinations, i.e., voices he hears coming from that equipment.

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