NO. 4-03-0343

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In November 2002, a jury found defendant, Daniel E.Raines, guilty of three counts of first degree murder (720 ILCS5/9-1(a)(1), (2) (West 2000)). Defendant was sentenced to death. In December 2002, defendant filed a posttrial motion, arguing thetrial court erred when it barred expert testimony regardingdefendant's state of mind at the time of the murder. The courtdenied the motion, and defendant filed his appeal on December 24,2002, with the Supreme Court of Illinois. Thereafter, on January10, 2003, then-Governor George Ryan commuted defendant's deathsentence to a sentence of imprisonment for natural life. Byorder dated April 8, 2003, the Supreme Court of Illinois transferred defendant's appeal to this court. We affirm.

I. BACKGROUND

In June 2001, defendant was charged by information withthree counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2)(West 2000)), alleging defendant shot Vermilion County deputysheriff Myron Deckard while Deckard was performing his officialduties and transporting defendant to the Vermilion County jail.

On September 25, 2002, defendant filed a supplementaldiscovery disclosure, indicating his intent to call Dr. RuthKuncel, a licensed clinical psychologist, as a witness. Dr.Kuncel's psychological report was attached to the disclosure. Dr. Kuncel's report stated she interviewed defendant, reviewed alitany of documents, and administered 12 tests (Wechsler AdultIntelligence Scale-III, Trailmaking A and B, major portions ofthe Delis-Kaplin Executive Function System, Stroop Color and WordTest, Figure Recall subtest of the Repeatable Battery for theAssessment of Neurological Status, Brown ADD Scales, ValidityIndicator Profile, the Minnesota Multiphasic PersonalityInventory-2, 16PF- Fifth Edition, Rorschach, ThematicApperception Test, and the Rotter Incomplete Sentence Blank,Adult).

According to the clinical-observations/mental-statussection of the report, Dr. Kuncel found as follows:

"[Defendant] was alert and oriented,with no obvious motor deficits observable tocasual observation. He exhibited thecapacity to attend and concentrate in anormal manner. [Defendant] was sociallyappropriate with [Dr. Kuncel] throughout theevaluation. [Defendant] was observed indisagreement with jail personnel, but hisbehavior was within normal limits. [Defendant] presented with no obvious memoryor language deficits to casual observation. No misperceptions were observed or reported. While appearing to be of at least averagegeneral intelligence, his thinking style wasnotable for its linearity and inflexibility. That is, he seemed to go from 'A' to 'B' withlimited capacity for entertaining alternativehypotheses, causative relationships, orconsequences.

[Defendant] presented as anxious, shy,reactive, energetic, and depressed, withmodest social skills, although covering hisdiscomfort variously with a veneer ofexcessive emotional control and/or somebravado. For example, his face can becomparatively expressionless and he may speakwith comparatively flat affect and minimalinflection[,] when, on closer observation, heis quite upset."

Further, according to the report, the shooting was theresult of incidents that happened earlier on the day of June 5,2001. On that day, defendant appeared in the trial court on arevoked-license charge. While there, he was told of anoutstanding warrant in Vermilion County. Unable to post bond,defendant was being transferred to Vermilion County. Deckard wasthe officer transporting defendant. According to the report,during the drive to Vermilion County, defendant

"concluded that if he reached Danville, hewould be kept in jail there for asufficiently long period of time [duringwhich] that he would lose everything. [Defendant] needed to get out of [the squad]car and go home so he would not lose hisfamily life. *** [Defendant] slipped out ofthe restraints[,] and the encounter with theofficer followed."

The report further stated that after "the encounter," defendanthitchhiked a ride and then took a taxicab before he reached thehome of his ex-wife. Once there, defendant drank some beer,spent time with his ex-wife, and then walked to the policedepartment in the middle of the night to report the incident.

Dr. Kuncel's report concluded as follows:

"[Defendant]'s purpose in exiting thepolice car, consistent with his perception ofhis circumstances, his psychological makeup,and his cognitive style, was to go home andkeep his personal affairs in order with nodesire to do serious harm to the policeofficer. Subsequently, in the dark and rain,still focused on his initial goal, whileconsciously frightened, anxious,physiologically distressed, and in a highstate of autonomic arousal, at least in part,in response to the officer's reporteddischarge of the pistol, [defendant] pulledthe trigger of the gun."

Dr. Kuncel's conclusion was based on her findings that defendantwas "prone to be insecure, emotionally needy, shy, anxious, andsocially ill at ease." Dr. Kuncel further opined that defendantpossessed "a self-contained, rigid, concrete, and goal-directedthinking style that generally impedes his ability to thinkabstractly or flexibly in unstructured situations, leaving him*** often unaware of the possible consequences of his actions orof how others might interpret said [actions]."

On September 27, 2002, the State filed a motion inlimine seeking to bar Dr. Kuncel's testimony, arguing (1)defendant provided no notice of his intent to put forth a defenseof insanity, intoxication, or other mental disease and (2) Dr.Kuncel's opinion that defendant did not intend to shoot Deckardshould not be allowed into evidence as expert testimony.

On October 17, 2002, a hearing was held on the State'smotion in limine. Upon direct examination by the State, Dr.Kuncel testified that, given her understanding of the terms,defendant had a mental disease or defect. Upon furtherquestioning, Dr. Kuncel stated that defendant possessed "deficitsin his thinking abilities." Dr. Kuncel did not find evidence ofschizophrenia or evidence to support a legal insanity defense. Dr. Kuncel determined defendant possessed a high-averageintelligence, and Dr. Kuncel found defendant's memory intact.

Upon questioning by the State about her interview ofdefendant as detailed in her report, Dr. Kuncel stated that shespoke with defendant about his state of mind when he hit Deckardwith the baton, struggled with Deckard, and then shot him. Dr.Kuncel and defendant also discussed how defendant felt when hepulled the trigger. When asked by the State to identify thedetails of that part of the interview in the report, Dr. Kuncelresponded that it was contained in her one-sentence summary, "Heslipped out of the restraints[,] and the encounter with theofficer followed." Dr. Kuncel felt the statement providedsufficient detail for the purposes of the report.

During cross-examination by defense counsel, Dr. Kuncelread into the record the conclusion from her report, opining thatdefendant did not intend to shoot Deckard. Dr. Kuncel furthertestified about defendant's mental deficits, consistent with thefindings in her report.

On redirect, Dr. Kuncel agreed that the essence of heropinion was that defendant "didn't mean *** to hurt [Deckard]because he didn't really think through what he was doing." Dr.Kuncel further testified that when defendant shot Deckard, "hismind was a garble[.] *** It was all blurred together." Dr.Kuncel admitted that her opinion that defendant's mind was"garbled" was her interpretation of defendant's explanation ofthe shooting. Defendant's actual explanation to Dr. Kuncel forwhy he shot Deckard was essentially, "I don't know whathappened."

By docket entry dated October 18, 2002, the trial courtgranted the State's motion in limine, barring Dr. Kuncel fromtestifying to defendant's state of mind at the time of theshooting. The court found such testimony would not be ofassistance to the jury because it concerned matters of commonknowledge. In response to a motion to clarify, the court statedthat it would allow Dr. Kuncel to testify to "the psychologicaltests she conducted, her conclusions regarding *** defendant'sthought process and personality type[,] and her conclusionsregarding how persons with those characteristics would thinkunder stressful situations."

At trial, the State presented a certified copy from theVermilion County circuit court, indicating defendant'soutstanding warrant was for failure to appear for a trafficcitation for the offense of driving with a revoked license. TheState then called Wilbur Moore, a retired afternoon jailer forthe Montgomery County sheriff's department, who testified that hewas on duty the evening of June 5, 2001, when Deckard arrived totransfer defendant to Danville. Defendant was in handcuffs and arestraint belt.

Orville Miller, an inmate in the Montgomery County jail on June 5, 2001, testified that he was present when defendant wasbeing prepared for transfer to Vermilion County. Miller hearddefendant complain to Deckard that the handcuffs were too tightand cutting off his circulation. Miller testified that Deckardthen loosened the handcuffs. Miller stated that after Deckardadjusted the handcuffs, they were very loose.

Jeremy Litz also testified for the State. Litz statedthat at approximately 11 p.m. on June 5, 2001, defendant knockedon the door of his residence. Litz's residence is located inrural Macon County between Argenta and Cisco. Defendant toldLitz he needed to get to Carlinville because his wife was givingbirth and his brother had left him without a ride after the twogot into a fight. Litz told defendant he would not take him allthe way to Carlinville, but he agreed to take him to a truckstop, the Oasis, a few miles away from the house. Litz stateddefendant seemed nervous but not upset. During the ride to thetruck stop, they talked about hunting, and defendant offered Litza 9-millimeter pistol if Litz would agree to take him all the wayto Carlinville. Litz declined and dropped defendant off at theOasis.

Annabelle Long, who resides near Route 48 in ruralMacon County, testified that at approximately midnight on June 5,2001, defendant rang the doorbell at her home. Long answered thedoor and then awakened her husband before talking further todefendant. Defendant was not upset or emotional. Defendantwanted to go to Carlinville because his wife was in labor, and heasked Long to drive him as far as Springfield. Long declined,but she offered to call a taxicab to take him, and Long gavedefendant $60 to pay for the ride. Long was unaware defendanthad thrown a gun into her bushes until the police searched heryard the next morning.

Ryan Fuoss, an Illinois State Police trooper, testifiedthat at approximately 5 a.m. on June 6, 2001, he was informed bySergeant Kirsten Nash that a man had confessed to killing anofficer on Interstate 72 near the rest area. Fuoss wasdispatched to attempt to locate Deckard's car. Fuoss locatedDeckard's car and checked to see if Deckard was still alive. Finding no pulse, Fuoss returned to his squad car and notifieddispatch of the situation. Fuoss and another officer thensecured the area. Fuoss also searched the area and discovered arestraint belt.

Illinois State Police special agent Mark Peytontestified that he found both a Glock handgun and a gun magazinein the bushes at the Long residence. Illinois State Police crimeinvestigator Michael Trummel testified that he retrieved theGlock .40-caliber handgun in the bushes located at 3381 BoydRoad, which is the Longs' residence. Sean Carson, manager of RayO'Herron's Company Police Supply Equipment, testified thatDeckard purchased a Glock .40-caliber handgun on February 21,1991, with serial number RZ409, which matched the serial numberof the gun retrieved at the Long residence.

Sabrina Raines, defendant's ex-wife, also testified forthe State. According to Sabrina, she attempted to secure the$300 needed to post defendant's bond for the outstandingVermilion County warrant, but she was unsuccessful. Before goingto work at 4 p.m. on June 5, 2001, Sabrina told defendant she hadnot secured the $300. Sabrina further told defendant she wouldfind a way to post bond either that night or early the nextmorning.

After returning from work that night, defendant calledSabrina at approximately 12:38 a.m. on June 6, 2001, and askedher to pick him up at the Shell station at the Interstate 55Carlinville exit. Sabrina refused, but she agreed to meetdefendant at a motel in Carlinville. Sabrina met defendant andgave him money to pay the extra fare the taxicab charged forbringing defendant beyond Springfield and to Carlinville. Sabrina and defendant went to Sabrina's home, where defendantdrank three beers and the two had sexual intercourse. Sabrinanoticed defendant's heart was racing, and she asked defendantwhat was wrong. Defendant initially said nothing but then toldher of the events earlier in the night. Sabrina stated shebecame hysterical and told him he should turn himself in to thepolice. Defendant then took two beers and left the house. Defendant called Sabrina later that morning and told her he wasat the Macoupin County jail.

Mary Wong, an Illinois State Police forensic scientist,testified that she found unique and consistent particlescharacteristic of gunshot residue in the sample taken fromdefendant's left hand. Wong concluded that defendant dischargeda firearm, came in contact with a primer gunshot-residue-relateditem, or his left hand was in the vicinity of a dischargedfirearm. Wong also tested the shirt defendant was wearing on thenight of June 5, 2001, and concluded that the shirt was in thevicinity of a discharged firearm.

Dr. Travis Lee Hindman, a physician pathologistspecializing in forensic pathology, testified for the State. Dr.Hindman testified that, based upon his training and the autopsy,Deckard died from brain trauma due to a gunshot wound to the lefttemporal region.

Carlinville police office Christopher Lee Rogerstestified that on the morning of June 6, 2001, defendant toldRogers of the incident with Deckard. According to Rogers,defendant stated he was in the process of being transported toVermilion County when he decided he did not want to go back toprison. Defendant was also angry that Deckard would not let himsmoke in the car. Defendant stated that he pushed the handcuffsup to his elbow area and maneuvered the restraint belt so that hecould extend his arms far enough to reach Deckard's baton. Defendant then struck Deckard in the head. Following a struggle,defendant told Rogers that "he pointed the gun at [Deckard's]head and shot him." Defendant further told Rogers that he walkedto the nearest farmhouse, threw the magazine under one bush, andthrew the handgun under another bush in the front yard of thehome. Rogers's testimony was corroborated by Carlinville policeofficer Kevin Naugle and Macoupin County deputy sheriff GaryEwin. The State then rested.

Defendant called Dr. Kuncel to testify, who testifiedabout the tests she administered to defendant and the mentaldefects or deficits each test is designed to identify. Dr.Kuncel testified, consistent with her report, that defendant isshy, anxious, prone to feel "put upon," and defendant does notfeel good about himself. Dr. Kuncel found the mentaldeficiencies were of a "substantial magnitude" in defendant'spersonality. Dr. Kuncel explained that the deficiencies resultedin defendant having difficulty entertaining alternatives andlooking at consequences. Dr. Kuncel testified that defendantpossessed an A to B tunnel-vision quality to his thinking anddefendant had a limited ability to organize and understandunstructured situations. Dr. Kuncel further testified that inindividuals with personality and thinking deficits likedefendant's, stress further decreases that person's thinkingprocess and ability to consider alternatives and consequences. Therefore, that person's reaction in a high-level stresssituation is magnified, creating "an even greater sense of fear,panic, [and] emotional reaction," which can result in a loss ofconscious control. Finally, Dr. Kuncel testified that personswith defendant's personality and thinking deficiencies are "morelikely to react with ineffective, inefficient, inappropriate,inadequate responses that are not under conscious control" whensubjected to a stressful situation.

On cross-examination, Dr. Kuncel testified that, in heropinion, defendant's mental deficits constituted a mental"disease." However, Dr. Kuncel did not specify what that mentaldisease was. Dr. Kuncel stated defendant possessed an average tohigh-average intelligence quotient.

Defendant testified on his own behalf. Defendanttestified about difficulties growing up with his mother and step-father, who had five children from a previous marriage. Defendant did not feel like part of the family. When defendantmarried his ex-wife, Sabrina, he felt like part of a family. Defendant was especially close to Sabrina's daughter, Caley. Defendant worked for Plumber Construction and owned a mobilehome, cars, and pets. Defendant was paying all of his bills andmaking payments on his debts.

Defendant testified that in August 2000, he experiencedlegal problems. Defendant moved from one part of Carlinville toanother, and, as required, defendant notified his parole agentwithin 24 hours. However, defendant's move was seen as a paroleviolation, and defendant spent approximately 60 days in theDepartment of Corrections. Following a hearing before the paroleboard, defendant was cleared of any parole violation. Afterdefendant's release, he and Sabrina experienced marital problems,defendant nearly lost his home, bills piled up, and defendantlost his job.

In the spring of 2001, defendant learned that Sabrinawas seeing another man. Defendant left Carlinville and spent amonth in Danville with friends "partying." Defendant returned toCarlinville because of concern for Caley. Defendant moved backin with Sabrina, who had moved in with her mother. Defendant gota job and was making arrangements to move the family into a home. On May 28 or 29, 2001, defendant learned that Sabrina obtained adivorce from defendant.

On June 5, 2001, defendant appeared in trial court inHillsboro for driving on a revoked license and driving withoutproof of insurance. Sabrina drove defendant to court that day. While there, defendant was told that he had an outstandingwarrant in Vermilion County and would be taken to the jail afterhis appearance before the judge that day. Defendant needed $300to post bond, and Sabrina was to make arrangements to pay it. However, Sabrina did not post his bond, and defendant wasfrustrated. At approximately 9 p.m., Deckard arrived totransport defendant to Vermilion County. Prior to beingtransferred, defendant changed into his own clothes and washandcuffed. Defendant complained of the handcuffs being tootight, and the officer loosened the handcuffs.

After getting in the car, Deckard set his gun on thedashboard of the car. As they were traveling north on Interstate55, they passed the Carlinville exit, and defendant was thinkingabout how "Sabrina never did come bond me out[,] and I was goingto jail, I was going to lose my job, everything I just worked toregain." Defendant testified he "decided I was going to gohome."

Defendant testified he looked around the squad car andsaw Deckard's baton standing on end between the two front seats. Defendant thought he could use the baton to "knock [Deckard] outand let the car crash and get out and go." Defendant did notthink about the consequences of his plan. Defendant pushed thehandcuffs far up on his arm and unbuckled his restraint belt. Deckard turned on the light in the car at one point and askeddefendant what he was doing. Defendant told Deckard, "nothing,"and that was the end of that incident.

Defendant testified that he grabbed the baton andbrought it into the backseat, where he stood it up between hisfeet and legs. Defendant then waited "to get the courage" to hitDeckard. Defendant waited until it was raining very hard, and hemade sure there were no headlights coming toward the car orcoming from behind the car. Feeling they were in a remote area,defendant swung the baton, which hit the headrest and thenbounced and hit Deckard in the head. Deckard was not knockedunconscious. Deckard reached for defendant in the backseat, anda struggle followed. Defendant then "slipped" in between thefront seats and grabbed the steering wheel, all while continuingto struggle with Deckard. The car slid through the grass androlled before stopping.

Defendant and Deckard continued to struggle. Defendantnoticed the driver's side front car window was gone, and hedecided to exit through it because he "wasn't getting no where"in his struggle with Deckard. Defendant exited the car throughthe window and started to stand up when he noticed Deckardleaning forward to grab something from the floorboard of the car. Defendant saw the object come out of the window and determined itwas a gun. Defendant, still in handcuffs, leaned over and pushedthe gun against the side of the car, saying, "I quit, I'm done,I'm done." While defendant had his hands around Deckard's hand,which was holding the gun, the gun discharged. Defendant grippedhis hands, pulled backward, and ended up holding the gun.

Defendant stated that he then told Deckard to give himthe keys to remove the handcuffs and Deckard started to comply. According to defendant, Deckard then reached across his body, anddefendant believed Deckard was reaching for a can of Mace. Defendant told Deckard to stop, but Deckard reached again. Defendant decided he would reach into the car and get the keyshimself. Defendant reached in the car, and Deckard grabbed hishand. Defendant was trying to pull himself back out of the car,and Deckard was trying to hold on to him. Defendant againbelieved Deckard was going to spray him with Mace, so "[a]s I waspulling the rest of the way back outside the car, I fired thegun."

Defendant testified that he had the gun pointed inDeckard's general direction but he never meant to fire the gun. After shooting Deckard, defendant reached into the car andretrieved the keys to the handcuffs. As defendant was trying toremove the handcuffs, he noticed the brake lights on the car wereon. Defendant reached into the car and removed Deckard's footfrom the brake pedal. Defendant then walked toward theinterstate. While walking, defendant removed and discarded thehandcuffs and restraint belt.

Defendant stated that he approached a house with lightson and asked the occupant, Litz, to give him a ride toSpringfield. Litz told defendant he would not drive him toSpringfield, but Litz did agree to give him a ride to a truckstop down the road. From the Oasis, defendant walked alongInterstate 72 to another home where defendant saw lights. Whenhe reached that home, he threw the gun into one flower bed andthe magazine into another. Defendant knocked on the door andasked the resident for a ride to Springfield. The couple livingin the home, the Longs, did not want to drive defendant toSpringfield, but they called a taxicab to take defendant. Whenthe taxi arrived, the couple gave defendant $60 to pay for theride. Defendant told both Litz and the Longs that he needed theride because he had been in a car with his brother, who left himwhen defendant got out of the car to use the bathroom.

Defendant took the taxi to a motel in Carlinville,where Sabrina met him. Sabrina gave defendant $40 to pay for theextra distance the taxi drove beyond Springfield to Carlinville. Defendant and Sabrina went to the apartment of Sabrina's mother,where Sabrina was living at the time. At the apartment,defendant drank at least three beers before he went to bed. Defendant and Sabrina had sexual intercourse. Later, defendanttold Sabrina what he had done and stated that he needed to turnhimself in to the police.

Defendant took two more beers and left the apartment towalk to the police station. Defendant arrived at the policestation around 3:30 a.m. and told the dispatcher that he neededto report an incident. Defendant waited approximately 20 minutesbefore speaking to two Carlinville police officers. Defendanttold the officers he struck and shot an officer while beingtransported to Danville. Defendant also reported the incident toState Police Sergeant Langhiem when he arrived at the policestation.

On cross-examination, defendant testified that beforewalking away from the car, defendant retrieved his wallet,cigarettes, and lighter. Defendant admitted telling Litz that hehad a pregnant wife who was about to give birth to convince Litzto give him a ride to the truck stop. Defendant furtheracknowledged that he did not ask Litz, the Longs, the taxidriver, or Sabrina to call an ambulance to check on Deckard.

In rebuttal, the State introduced certified copies ofdefendant's previous convictions for unlawful possession of aweapon by a felon, disorderly conduct, driving with a revokedlicense with a prior conviction for same, theft over $300,unlawful restraint, and aggravated battery.

The jury found defendant guilty and further found theexistence of statutory aggravating factors to support impositionof the death penalty.

In December 2002, defendant filed a posttrial motion,arguing the trial court erred when it barred Dr. Kuncel'stestimony regarding defendant's state of mind at the time of theshooting. The court denied defendant's motion, and this appealfollowed.

II. ANALYSIS

A. Standard of Review

"The decision whether to admit expert testimony,including the expert's qualifications and whether the testimonywill assist the trier of fact in understanding the evidence,rests within the sound discretion of the trial court." People v.Reatherford, 345 Ill. App. 3d 327, 341, 802 N.E.2d 340, 353(2003), citing Kleiss v. Cassida, 297 Ill. App. 3d 165, 174, 696N.E.2d 1271, 1277 (1998). "The trial court's decision on theadmissibility of an expert's opinion will not be reversed onappeal unless 'the error was prejudicial or the result of thetrial was materially affected.'" Reatherford, 345 Ill. App. 3dat 341, 802 N.E.2d at 353, quoting Turner v. Williams, 326 Ill.App. 3d 541, 553, 762 N.E.2d 70, 81 (2001).

B. The Trial Court Did Not Err In Excluding
Dr. Kuncel's Testimony Regarding Defendant's Mental State

Defendant argues the trial court erred when it grantedthe State's motion in limine barring Dr. Kuncel's testimony thatdefendant did not intend to shoot the victim. We disagree.

To convict defendant of first degree murder, the Statewas required to prove beyond a reasonable doubt at least one ofthe following: defendant (1) intended to kill or do great bodilyharm to Deckard, (2) knew his acts would cause death or greatbodily harm to Deckard, or (3) knew his acts created a strongprobability of death or great bodily harm to Deckard. See 720ILCS 5/9-1(a)(1), (a)(2) (West 2000). At trial, defendantattempted to present testimony from Dr. Kuncel to establish thathe did not intend to kill Deckard, an ultimate issue in the case. "[A] witness, whether expert or lay, may provide anopinion on the ultimate issue in a case. [Citation.] This is sobecause the trier of fact is not required to accept thewitness'[s] conclusion and, therefore, such testimony cannot besaid to usurp the province of the jury." People v. Terrell, 185Ill. 2d 467, 496-97, 708 N.E.2d 309, 324 (1998), citingRichardson v. Chapman, 175 Ill. 2d 98, 107-08, 676 N.E.2d 621,625 (1997). Nonetheless, it is proper to allow expert testimonyonly where such testimony is needed to explain matters beyond thecommon knowledge of ordinary persons, and the testimony will helpthe fact finder in reaching a conclusion. People v. Wood, 341Ill. App. 3d 599, 608, 793 N.E.2d 91, 100 (2003), citing Peoplev. Gilliam, 172 Ill. 2d 484, 513, 670 N.E.2d 606, 619 (1996). Therefore, "expert testimony is not admissible on matters ofcommon knowledge unless the subject is difficult to understandand explain." Gilliam, 172 Ill. 2d at 513, 670 N.E.2d at 619,citing Hernandez v. Power Construction Co., 73 Ill. 2d 90, 98-99,382 N.E.2d 1201, 1205 (1978).

The trial court barred Dr. Kuncel from testifying todefendant's state of mind when he shot Deckard, findingdefendant's state of mind was a matter of common knowledge. Onappeal, defendant does not argue that Dr. Kuncel's testimony wasnecessary to explain matters beyond the common knowledge ofordinary persons. Rather, defendant argues that his state ofmind at the time of the crime was relevant to the issue ofwhether he intended to kill Deckard, and therefore, Dr. Kuncel'stestimony would have assisted the jury.

"The question of [a] defendant's state of mind at thetime of the crime [is] a question of fact to be determined by thejury." People v. Pertz, 242 Ill. App. 3d 864, 903, 610 N.E.2d1321, 1346 (1993), citing People v. Elder, 219 Ill. App. 3d 223,225, 579 N.E.2d 420, 421 (1991). "Mental states, such as theintent to kill or to cause great bodily harm, are not commonlyestablished by direct evidence and may be inferred from thecharacter of the defendant's conduct and the circumstancessurrounding the commission of the offense." People v. Adams, 308Ill. App. 3d 995, 1006, 721 N.E.2d 1182, 1190 (1999), citingPeople v. Summers, 202 Ill. App. 3d 1, 10, 559 N.E.2d 1133, 1138(1990).

The trial court's bar of Dr. Kuncel's specifictestimony that defendant did not intend to shoot was not an abuseof discretion. Dr. Kuncel's testimony was not offered in supportof any asserted defense by defendant, e.g., insanity, anddefendant did not argue that the testimony was necessary toexplain evidence beyond the common knowledge of the jury. Therefore, the court correctly barred Dr. Kuncel's testimonyregarding defendant's state of mind at the time of the crime. Consequently, however, we fail to see the relevance of any of Dr.Kuncel's testimony and question whether the court should haveallowed Dr. Kuncel's testimony at all. Regardless, the court didnot abuse its discretion.

In reaching our decision, we reject the FifthDistrict's holding in People v. Strader, 278 Ill. App. 3d 876,663 N.E.2d 511 (1996). In Strader, the State charged thedefendant with first degree murder (720 ILCS 5/9-1 (West 1992)). The defendant asserted as a mitigating factor that he was actingunder "'a sudden and intense passion resulting from seriousprovocation,'" which, if proved, could result in a finding ofsecond degree murder. Strader, 278 Ill. App. 3d at 878, 663N.E.2d at 512, quoting 720 ILCS 5/9-2(a)(1) (West 1992). Attrial, the defendant attempted to introduce the expert testimonyof a psychologist, who would have testified that, based upon thedefendant's background, psychological makeup, and intoxication atthe time of the crime, the defendant acted out of a sudden andintense passion. Strader, 278 Ill. App. 3d at 881, 663 N.E.2d at514. The trial court completely barred the psychologist'stestimony, relying on Strader, 278 Ill. App. 3d at 882, 663N.E.2d at 514, and Elder, 219 Ill. App. 3d 223, 579 N.E.2d 420.

On appeal, the Fifth District Appellate Court found thetrial court erred in barring the psychologist's testimony. Inreaching its decision, the Strader court misstated the State'sand the defendant's burdens under the second degree murderstatute.

The Strader court correctly cited the second degreemurder statute, which stated as follows:

"'(a) A person commits the offense ofsecond degree murder when he commits theoffense of first degree murder *** and ***the following mitigating factor[] [is]present:

(1) At the time of the killinghe is acting under a sudden andintense passion resulting fromserious provocation by theindividual killed ***[.]

* * *

(b) Serious provocation is conductsufficient to excite an intense passion in areasonable person.

(c) When a defendant is on trial forfirst degree murder and evidence of *** themitigating factor[ ] *** has been presented,the burden of proof is on the defendant toprove *** [the] mitigating factor by apreponderance of the evidence before thedefendant can be found guilty of seconddegree murder. However, the burden of proofremains on the State to prove beyond areasonable doubt each of the elements offirst degree murder and, when appropriatelyraised, the absence of circumstances at thetime of the killing that would justify orexonerate the killing ***.'" Strader, 278Ill. App. 3d at 881-82, 663 N.E.2d at 514,quoting 720 ILCS 5/9-2 (West 1992).

Interpreting the statute, the Strader court found that thedefendant had "the initial burden to prove *** that he wasprovoked into a sudden and intense passion by the person killed." (Emphasis added.) Strader, 278 Ill. App. 3d at 882, 663 N.E.2dat 515. The Strader court further found, however, that "[i]f thedefense is 'appropriately raised,' then the burden shifts back tothe State to prove beyond a reasonable doubt the absence of aprovocation sufficient to incite such intense passion or othercircumstances which would justify a second[]degree murderverdict. 720 ILCS 5/9-2 (West 1992)." (Emphasis added.) Strader, 278 Ill. App. 3d at 882, 663 N.E.2d at 515. Thisinterpretation of the statute is erroneous.

However, contrary to Strader, the second degree murderstatute does not shift the burden back to the State to prove thelack of "sudden and intense passion resulting from seriousprovocation." 720 ILCS 5/9-2(a)(I) (West 1992). Rather, thestatute emphasizes the State's burden to prove all the elementsof first degree murder, even when the defendant asserts a seconddegree murder defense. See 720 ILCS 5/9-2(c) (West 1992). Whilethe statute does shift the burden of proof to the State to prove,if appropriately raised, the "absence of circumstances at thetime of the killing that would justify or exonerate the killing"(720 ILCS 519-2(c) (West 1992)) (i.e., the absence of self-defense), the defendant in Strader did not raise self-defense. Therefore, the Strader court's shifting of the burden to theState to prove the absence of "'sudden and intense passionresulting from serious provocation'" (Strader, 278 Ill. App. 3dat 881, 663 N.E. 2d at 514, quoting 720 ILCS 5/9-2(a)(1) (West1992)) is a misinterpretation of the second degree murderstatute.

The Strader court then found that the psychologist'stestimony was directly relevant to the defendant's defense thathe was acting under a sudden and intense passion at the time ofthe crime, and therefore, the trial court erred in completelybarring the psychologist's testimony. Strader, 278 Ill. App. 3dat 881, 663 N.E.2d at 514. Nonetheless, the Strader court laterconcluded that the error was harmless in light of theoverwhelming evidence of guilt and because, "even if [thepsychologist] had testified and the jury had believed everythinghe said, there was no evidence of any provocation which the lawrecognizes as reasonable and adequate." Strader, 278 Ill. App.3d at 885, 663 N.E.2d at 517.

We find these two conclusions to be legallyinconsistent. According to Strader, the trial court erred inbarring the psychologist's testimony regarding sudden and intensepassion, even though the Strader court found no evidence ofserious provocation. Yet, "sudden and intense passion" and"serious provocation" are both elements the defendant had theburden to prove under the second degree murder statute. Lackingany proof of provocation, we fail to see what relevance thepsychologist's testimony would have provided to the jury. Forthese reasons, we decline to follow Strader.

Additionally, we distinguish People v. Free, 94 Ill. 2d378, 447 N.E.2d 218 (1983), cited by defendant in support of hisargument that psychological testimony should be allowed toestablish defendant could not act intentionally at the time ofthe crime. In Free, the defendant sought to have the trial courtinstruct the jury on toxic psychosis in support of his defensesof insanity and voluntary intoxication. Free, 94 Ill. 2d at 403,447 N.E.2d at 230. The defendant argued that on the night of thecrime, he consumed beer, smoked a marijuana cigarette, and smokeda mint leaf soaked in phencyclidine compound (PCP). Free, 94Ill. 2d at 404, 447 N.E.2d at 230. The defendant argued that asa result of his use of PCP, he had no recollection of the eventsthat occurred around the time of the crime and he was unable toact intentionally.

At trial, the State presented expert testimony from awitness who was both a psychologist and psychopharmacologist("one who specializes in the study of the effects of drugs onbehavior and usually is trained in psychology, pharmacology,medicine, neurology, chemistry, and related disciplines"). Free,94 Ill. 2d at 410-11, 447 N.E.2d at 233-34. The trial courtlimited the expert's testimony to whether the defendant had theability to act intentionally at the time of the crime while underthe influence of PCP. Free, 94 Ill. 2d at 409, 447 N.E.2d at233. On appeal, the Free court found the jurors had a limitedunderstanding of PCP and its effects on the user, and therefore,the expert's testimony was necessary for matters beyond thecommon knowledge or experience of the jurors. Free, 94 Ill. 2dat 411, 447 N.E.2d at 234. Therefore, the Free court found thetrial court properly admitted the expert's testimony.

In the instant case, defendant was not under theinfluence of any hallucinogenic drug, and the trial courtspecifically found that Dr. Kuncel's testimony was not necessaryto explain matters beyond the common understanding and knowledgeof the jury. Therefore, we find Free distinguishable and declineto apply it to the facts here.

III. CONCLUSION

The trial court did not abuse its discretion bygranting the State's motion in limine barring Dr. Kuncel fromtestifying to defendant's state of mind at the time of theshooting.

Affirmed.

STEIGMANN and APPLETON, JJ., concur.