Find Legal Information

FIRST DIVISION
September 26, 2005

No.1-04-2095

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

Defendant Raymond Bartgen was convicted of two counts of attempted first degree murder and sentenced to six years in prison. Defendant argues on appeal: (1) his conviction must be vacated because the attempt statute was held unconstitutional by our supreme court; and (2) his conviction should be reversed because he was under the influence of prescription antidepressant medication and involuntarily intoxicated at the time he committed the offense. We affirm.

The evidence at defendant's trial showed defendant was a long-time employee of Sloan Valve Company (Sloan). Defendant developed a romantic infatuation with his coworker, Mary Jo Catalano. The feeling was not mutual and, in the spring of 2001, Catalano asked defendant to stop associating with her. Catalano was having an affair with the victim, also a Sloan employee, at the time.

Defendant's coworkers noticed defendant appeared depressed. On August 2, 2001, following the sudden death of defendant's close friend, the director of human resources at Sloan referred defendant to a psychiatrist. The psychiatrist prescribed defendant 20 milligrams per day of Paxil, an antidepressant prescription drug. On August 16, 2001, during a follow-up visit, the psychiatrist increased defendant's daily dosage of Paxil to 30 milligrams.

On August 28, 2001, at around 5:30 a.m., defendant was seen outside the victim's home dressed in army fatigues and an army hat pulled down low on his face. The victim saw defendant as he was leaving his house on his way to work. Defendant walked up to the victim and said he was going to kill him. Defendant then pulled a gun from his pocket and shot the victim several times. The victim ran down the street away from defendant. Defendant got into his car and drove after the victim. Defendant hit the victim with his car and then drove away. The victim's wife found the victim and drove him to the hospital. The victim was released from the hospital later that day.

The police arrived at Sloan to investigate the shooting shortly after 6 a.m. Defendant was in his office when the police arrived. Defendant took the police to see his car, which was damaged and spotted with fresh blood. Defendant told the police the car was in that condition when he got inside it that morning and that he planned to take the car in for repairs. Forensic testing confirmed that the blood found on defendant's car matched the victim's blood.

Defendant presented expert testimony that Paxil is a member of a class of drugs known as selective serotonin reuptake inhibitors (SSRI). SSRIs are associated with toxic side effects that include an increased tendency toward violence, aggression, homicide and suicide. These side effects can be triggered by ingesting an increased dosage of an SSRI drug. Defendant's experts believed defendant was experiencing toxic side effects of Paxil at the time he committed the crime.

The trial court found defendant guilty of two counts of attempted first degree murder. The court found the State, through its case in chief, adequately rebutted defendant's theory that he did not appreciate the criminality of his actions and was unable to conform his conduct to the law due to his ingestion of Paxil. Defendant was sentenced to two concurrent six-year terms in prison. He appeals.

Defendant first argues his convictions must be reversed because the attempt statute was held unconstitutional by our supreme court in People v. Morgan, 203 Ill. 2d 470, 786 N.E.2d 994 (2003), and People v. Moss, 206 Ill. 2d 503, 795 N.E.2d 208 (2003). The issue presents a question of law and is reviewed de novo. See People v. Breedlove, 213 Ill. 2d 509, 512, 821 N.E.2d 1176 (2004) (pure questions of law are reviewed de novo).

Our supreme court in Morgan held the attempt statute (720 ILCS 5/8-4 (West 2000)), as amended by Public Act 91-404 (Pub. Act 91-404,