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Laws-info.com » Cases » Illinois » 4th District Appellate » 2005 » People v. Hari
People v. Hari
State: Illinois
Court: 4th District Appellate
Docket No: 4-03-0130 Rel
Case Date: 01/05/2005

NO. 4-03-0130

IN THE APPELLATE COURT

OF ILLINOIS
 

FOURTH DISTRICT
 
THE PEOPLE OF THE STATE OF ILLINOIS,
                         Plaintiff-Appellee,
                         v.
DAVID A. HARI,
                         Defendant-Appellant.
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Appeal from
Circuit Court of
Ford County
No. 02CF14

Honorable
Donald D. Bernardi,
Judge Presiding.


JUSTICE TURNER delivered the opinion of the court:

In February 2002, the State charged defendant, David A.Hari, with single counts of first degree murder and attempt(first degree murder). In November 2002, a jury found defendantguilty. In January 2003, the trial court sentenced defendant to48 years' imprisonment on the murder count and imposed a consecutive 25-year prison term on the attempt count.

On appeal, defendant argues (1) the trial court erredin refusing to instruct the jury on the defense of involuntaryintoxication, (2) the State failed to correct false testimony ofdefendant's former cell mate and defendant was unable to cross-examine the cell mate about his motive to lie, and (3) theState's rebuttal evidence deprived defendant of a fair trial. Weaffirm.

I. BACKGROUND

In February 2002, the State charged defendant byinformation (later amended in September 2002) with the offense offirst degree murder (720 ILCS 5/9-1(a)(1) (West 2002)), alleginghe, without lawful justification and with the intent to kill ordo great bodily harm to Jeff Thomas, shot Thomas causing hisdeath. The State also charged defendant with attempt (firstdegree murder) (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2002)),alleging he, with the intent to commit first degree murder,performed a substantial step toward the commission of thatoffense in that without lawful justification and with the intentto kill Lisa Hari, shot her with a .22-caliber weapon. Defendantpleaded not guilty.

In November 2002, defendant's jury trial commenced. Doug Livingston testified he lived across the street from Lisa. On February 10, 2002, he "heard a couple of gunshots go off" andobserved a person lying in the middle of the road. He identifiedthe man as Jeff Thomas, who was dressed in his "dress blues." Livingston then went to Lisa's house, and upon entering thefoyer, he saw blood on the floor, the steps, and "on the sidewall as you go up the steps." He then encountered Lisa and sawthat she had been wounded.

Travis Brown, a police officer with the City of Paxton,testified he received a dispatch concerning a domestic disturbance between defendant and Lisa on January 12, 2002. On February 10, 2002, Officer Brown stated he received a dispatch of ashooting around 6 p.m. Upon arrival at the scene, he noticed aman in a Navy uniform lying on the ground in "a pool of blood." He then entered the residence and came upon Lisa, who "was notcoherent enough to speak."

Randy Kinzinger, the police chief of the Village ofRoberts, testified he waited across the street from the residenceof defendant's mother, Carol Hari, at around 7 p.m. on the dateof the shootings. At approximately 9 p.m., defendant arrived inhis white truck, and Kinzinger arrested him. In Kinzinger'ssquad car on the way to the sheriff's office, defendant askedwhat this was all about. During this time, defendant did notstumble, stagger, or have difficulty walking. Kinzinger stateddefendant's speech was normal and he did not slur, mumble, orhave difficulty in conversing with him.

Lisa Hari testified she filed for divorce in January2002 from her 13-year marriage to defendant. They had twochildren. During the latter part of 2001, Lisa became involvedwith Jeff Thomas. Jeff told his wife he was having an affair,and Lisa told defendant she wanted a divorce. On January 12,2002, Lisa and defendant had an argument, and he "restrained[her] and would not let [her] leave," so she called the police. Defendant moved out on January 13, 2002, and he took his belongings, including his rifle. A couple of weeks later, Lisa discovered a package of photographs was missing. The pictures includedsome of her in her nightgown and of her and Jeff. She laterlearned defendant had shown the pictures to Jeff's wife. Jeffmoved in, and they changed the locks on the doors because she was"scared" of defendant. Besides Lisa and Jeff, the only otherswho had keys included her parents; her son, Zack; and her neighbor, Doreen Hendricks.

On February 10, 2002, Lisa had a telephone conversationwith defendant concerning the boys' church activity that evening. She returned home between 4:30 and 5 p.m. She received a callfrom Jeff, and he stated he would arrive at the house around 6p.m. She then returned a phone call to her brother but heard anoise in the basement that sounded "like when [defendant] wouldcock the gun." While still on the phone, Lisa went downstairs tocheck on the noise. She walked around the basement and sawdefendant "coming out with a gun." She told her brother, "oh, myGod, he is here." Defendant then "started firing," and she "ranto try to get away." She testified she next remembered waking upin the hospital with gunshot wounds to her head, arm, and upperhip.

Zack Hari, defendant's 12-year-old son, testifieddefendant drove him and his brother to church around 5 p.m. onFebruary 10. He stated his dad had no trouble driving his truckor difficulty in talking with him. At the church, defendant gavehim "a real tight hug, tighter than usual[,] and he left."

Dr. Violette Hnilica, a forensic pathologist, testifiedshe performed an autopsy on Jeff Thomas. She described fourgunshot wounds in the mid-right trunk, the left buttock, the leftforearm, and near the neck with the bullet severing his carotidartery. She determined the cause of death to be from multiplegunshot wounds.

Tracy Parker testified he was incarcerated at the timeof trial in the Ford County correctional center. He had convictions for aggravated battery (1992), burglary (1994 and 2000),and arson (1994). While serving a sentence on a federal chargeof possession of firearms by a felon, Parker was charged with theoffense of conspiracy to escape. He pleaded guilty in October2002 and anticipated being sentenced in January 2003. Parker anddefendant were cell mates in the Ford County jail for sevenweeks. After a few weeks, defendant started talking about hiscase. He told Parker about the pictures of his wife taken byJeff and was "pretty mad about it." Defendant then got his .22-caliber rifle out of a gun cabinet and hid it in a basementutility room. On the weekend of the shooting, defendant toldParker, he went over to the house and waited for Lisa and Jeff tocome home. Defendant told him he borrowed a key from the neighbor and made a copy of it to get in. Defendant stated he shotJeff and then shot Lisa.

On cross-examination, Parker stated he pleaded guiltyto the conspiracy-to-escape charge and less than two days laterapproached the correctional authorities regarding informationabout defendant's case. Parker stated he could not receive adownward departure from his federal sentence because defendant'strial was a state case. Parker testified it could not "help[him] in either way." He had no expectation of receiving anything for his appearance at the trial.

Doreen Hendricks testified she lived next door to theHaris' house. In January 2002, Lisa had the locks changed on herhouse and gave a spare key to Hendricks, which she kept on thetelevision in the living room. Later, Zack came to her house andasked to use the spare key to retrieve some homework from hishouse. He then returned the key. After that incident and beforethe shooting, defendant went to Hendricks's house to visit. Shewent to the kitchen to make coffee, and they talked at the table. Defendant left and returned "about an hour" later. He apologizedto her and opened his hand, revealing the spare key to Lisa'shouse.

The defense called Gerald Gerrard as a witness. Hebecame acquainted with defendant as the foreman of the lumberyard where defendant worked. After defendant's separation,Gerrard stated he "didn't seem like himself." John Zander, themanager of the lumber yard, testified defendant "was kind ofdown" and tired after his separation.

Carol Hari, defendant's mother, testified defendantcame to live with her in early January 2002. Over time, defendant "became silent," did not sleep well, and lost 17 pounds. OnFebruary 10, 2002, defendant complained of a stomachache and tooksome over-the-counter medication. She also observed defendanttaking the prescribed drug Zoloft. After he started taking theZoloft, he was "restless," "tired," and "more depressed." Shetestified her son's depression "was worsening."

Dr. Robert Mitrione, a psychiatrist, testified heconducted an examination of defendant and reviewed availablemedical records. He stated Dr. David Hagan determined defendantsuffered from depression in February 2002 and prescribed theantidepressant Zoloft. Dr. Mitrione stated Zoloft belongs to aclass of drugs known as selective serotonin reuptake inhibitors. Serotonin cells have been associated with increased violence,hostility, depression, and worry. Zoloft is a chemical used toincrease serotonin with the purpose of lessening the potentialfor violence. Dr. Mitrione testified adverse reactions occurmost frequently when the medication is first taken or when thedosage has been changed. Defendant had been on Zoloft for sixdays on February 10, 2002. Dr. Mitrione stated medical literature has reported acts of violence and suicide at the same stageof Zoloft intake.

Citing the Diagnostic and Statistical Manual IV, Dr.Mitrione stated the symptoms and observations made by Dr. Haganwere consistent with the diagnosis of major depression. Inlooking at the Physician's Desk Reference and a Zoloft packageinsert, Dr. Mitrione determined defendant suffered from sideeffects on February 10, 2002, including agitation, abdominaldiscomfort, fatigue, somnolence, confusion, malaise, and depression among other things. He also stated defendant was takingTylenol PM to help him sleep. Dr. Mitrione testified defendantdisplayed symptoms of akathisia, a movement disorder that is"like an itch that can't be scratched." He opined defendantexperienced jaw clinching and tremulousness after consuming theZoloft and the Tylenol PM.

Based on his entire investigation, Dr. Mitrione diagnosed defendant with major depression, alcohol dependence,history of cannabis dependence and adverse reaction, taking on aninvoluntary basis a combination of Benedryl and Zoloft, and aprobable paranoid-personality disorder. He stated involuntaryZoloft intoxication means a "toxic reaction" and a person suffering from it would not stagger, have slurred speech or demonstratean inability to walk a straight line. Based on defendant's majordepression, Dr. Mitrione opined defendant lacked substantialcapacity to conform his behavior to appreciate the criminality ofhis act as a result of the involuntary Zoloft intoxication andhis drug condition. On cross-examination, Dr. Mitrione stated hewas not certain whether it was the Zoloft or the Benedryl or somecombination thereof that caused the involuntary intoxication.

Defendant exercised his constitutional right not totestify. See U.S. Const., amend. V. In its rebuttal, the Statecalled Dr. Hagan, defendant's family physician. On February 4,2002, defendant indicated his concern about possible depression,lack of sleep, increased alcohol use, and poor concentration atwork. Dr. Hagan found defendant was under "significant stress"and prescribed Zoloft. He stated the "PM" part of Tylenol PM isthe diphenhydramine "but its trade name is Benedryl." In hisexperience, Dr. Hagan had not come across Zoloft being connectedwith involuntary intoxication.

Dr. Robert Chapman, a psychiatrist, testified heexamined defendant on March 27, 2002, per court order and counsel's letter asking for an evaluation regarding the issue ofsanity. In his mental-status examination, Dr. Chapman diagnoseddefendant with personality disorder, depressed mood, and social-anxiety disorder. Dr. Chapman opined that on February 10, 2002,defendant was not impaired by any mental disease, defect, orother condition to cause him to lack substantial capacity toappreciate the criminality of his conduct. He stated he had not"formed an opinion regarding his capacity to conform his conduct"to the law because he was asked to do the examination "to fit theIllinois statute for insanity." Although not included in hisreport, Dr. Chapman stated "there was no mental disease or defectthat caused [defendant] to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct ***to the requirements of the law." Dr. Chapman testified defendant's actions on the day of the shootings, witness statements,and his interview with defendant revealed evidence that was "notconsistent with any toxic reaction to any medicines or any othersubstance."

During the jury-instruction conference, defense counselsought to submit an instruction regarding involuntary intoxication. The trial court denied the requested instruction. Following closing arguments, the jury found defendant guilty of firstdegree murder and attempt (first degree murder).

In December 2002, defendant filed a motion for judgmentof acquittal or for a new trial, which the trial court denied inJanuary 2003. The court sentenced defendant to 48 years inprison on the murder count and a consecutive term of 25 years onthe attempt (first degree murder) count. In February 2003,defendant filed a motion to reconsider, which the court denied. This appeal followed.

II. ANALYSIS

A. Jury Instructions

Defendant argues the trial court erred in refusing toinstruct the jury on his defense of involuntary intoxication. Weagree, but we find the error harmless.

"A defendant is entitled to an instruction on histheory of the case if some foundation exists for the instructionin the evidence." People v. Probst, 344 Ill. App. 3d 378, 385,800 N.E.2d 834, 842 (2003). If some basis in the evidence forsuch an instruction exists, a trial court abuses its discretionin refusing to give the instruction. People v. Kirchner, 194Ill. 2d 502, 556, 743 N.E.2d 94, 122 (2000).

In the case sub judice, Dr. Mitrione, based on areasonable degree of medical and psychiatric certainty, opineddefendant suffered from involuntary Zoloft intoxication, causinghim to lack substantial capacity to appreciate the criminality ofhis acts and to conform his conduct to the requirements of thelaw. Defense counsel submitted jury instructions on involuntaryintoxication. The trial court found the issue of intoxicationwas raised by defendant's evidence and by Dr. Mitrione's testimony. However, the court refused to give the instruction basedon the law in Illinois; that being, the intoxication must becaused by fraud, trickery, or deceit to be involuntary.

Section 6-3 of the Criminal Code of 1961 (CriminalCode) (720 ILCS 5/6-3 (West 2002)) states:

"A person who is in an intoxicated ordrugged condition is criminally responsiblefor conduct unless such condition is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law."

In looking at involuntary intoxication, our supremecourt has stated the General Assembly "was contemplating intoxication induced by some external influence such as trick, artifice[,] or force." People v. Rogers, 123 Ill. 2d 487, 508, 528N.E.2d 667, 677 (1988), citing People v. Downey, 162 Ill. App. 3d322, 515 N.E.2d 362 (1987), People v. Larry, 144 Ill. App. 3d669, 494 N.E.2d 1212 (1986), and People v. Walker, 33 Ill. App.3d 681, 338 N.E.2d 449 (1975). "The term 'involuntarily produced' in the context of section 6-3[] has been interpreted torefer to the mechanical act of ingesting the drug, not to thewilling and intelligent assumption of the possible harmfulconsequences of taking the drug." Downey, 162 Ill. App. 3d at335, 515 N.E.2d at 370. "Ignorance can be a source ofinvoluntariness only if it is a result of trickery, fraud, ordeceit." People v. Gerrior, 155 Ill. App. 3d 949, 953, 508N.E.2d 1119, 1122 (1987).

Notwithstanding the previous case law, defendant arguesintoxication caused by an unexpected adverse reaction to medication prescribed by a physician falls within the ordinary meaningof the term "involuntarily produced." The First District hasstated there do not appear to be any Illinois cases addressingthe issue of whether alleged intoxication resulting from prescription medication is "'involuntarily produced'" within themeaning of the statute. People v. Smith, 231 Ill. App. 3d 584,593, 596 N.E.2d 669, 675 (1992). As this matter is a case offirst impression, we must determine whether evidence of anadverse reaction to lawfully prescribed medication amounts to acondition that is "involuntarily produced" thereby requiring aninstruction to be given to the jury.

Statutory construction is a matter of law, and ourreview of the issue is de novo. People v. Slover, 323 Ill. App.3d 620, 623, 753 N.E.2d 554, 557 (2001). The cardinal rule ofstatutory construction is to ascertain and give effect to thelegislative intent. Krohe v. City of Bloomington, 329 Ill. App.3d 1133, 1135, 769 N.E.2d 551, 553 (2002). When the statutorylanguage is clear and unambiguous, it will be given effectwithout resort to the other tools of statutory construction. Segers v. Industrial Comm'n, 191 Ill. 2d 421, 431, 732 N.E.2d488, 494 (2000). However, when the language is ambiguous, courtsmay resort to extrinsic aids of statutory construction. AllstateInsurance Co. v. Menards, Inc., 202 Ill. 2d 586, 591, 782 N.E.2d258, 261 (2002). Here, the term "involuntarily produced" is notdefined by the Criminal Code, nor does section 6-3 refer tofraud, trickery, or deceit. Thus, we will look to extrinsic aidsof statutory construction to determine whether the term encompasses the issue presented before us.

"The practice of relieving one of criminal responsibility for offenses committedwhile in a state of involuntary intoxicationextends back to the earliest days of thecommon law. Involuntary intoxication, itappears, was first recognized as that causedby the unskillfulness of a physician or bythe contrivance of one's enemies." P.Hassman, Annotation, When Intoxication DeemedInvoluntary so as to Constitute a Defense toCriminal Charge, 73 A.L.R. 3d 195(2)(a), at199-200 (1976).

In terms of intoxication by prescription medication, a patient isentitled to assume a physician would not prescribe anintoxicating dose. Perkins v. United States, 228 F. 408, 415(4th Cir. 1915). "Intoxication is considered involuntary if itis a product of innocent mistake, duress, or medicalprescription." (Emphasis in original.) 2 J. Decker, IllinoisCriminal Law

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