People v. Hulitt

Case Date: 10/26/2005
Court: 1st District Appellate
Docket No: 1-04-0291 Rel

THIRD DIVISION
October 26, 2005

No. 1-04-0291

THE PEOPLE OF THE STATE OF ILLINOIS,

                                 Plaintiff-Appellee,

v.

CALANDRA HULITT,

                                Defendant-Appellant.


)
)
)
)
)
)
)
)
)
)
)
)
 

 

 

Appeal from the
Circuit Court of
Cook County

No. 99 CR 16597


Honorable
Bertina E. Lampkin,
Judge Presiding.

 

 

JUSTICE KARNEZIS delivered the opinion of the court:

After a jury found defendant Calandra Hulitt guilty of the first degree murder ofher daughter Moneka Powell, the circuit court sentenced her to 30 years' imprisonment. The court denied defendant's posttrial motion for a new trial and defendant appeals,arguing that the court erred in barring defendant from presenting expert testimony thatdefendant suffered from postpartum depression at the time of the offense. We affirm.

Two-and-a-half-year old Moneka died in the early morning of July 7, 1999. Defendant had delivered her third child, Moneka's brother, six days prior and wanted toget some rest, but Moneka was keeping her awake. In order to keep Moneka quiet andto "teach her a lesson," defendant tied Moneka's hands and feet together, stuffed asock in her mouth and wrapped tape around her mouth and neck. Moneka suffocatedto death. Defendant admitted causing Moneka's death. The State charged defendantwith two counts of first degree murder: acting with intent to kill or cause great bodilyharm in violation of section 9-1(a)(1) of the Illinois Criminal Code of 1961 (the Code)(720 ILCS 5/9-1(a)(1) (West 1998)) and acting with the knowledge that her acts createda strong probability of death or great bodily harm in violation of section 9-1(a)(2) of theCode (720 ILCS 5/9-1(a)(2) (West 1998)).

Prior to trial, defendant disclosed her intention to call Dr. Robert Smith, apsychologist, as a witness during her case in chief. Some three years after Moneka'sdeath, Dr. Smith interviewed defendant, assorted relatives and Charles Powell(Powell), Moneka's father and defendant's former live-in boyfriend, regardingdefendant's mental and physical condition at the time of the offense. Dr. Smithdetermined that, although defendant was not legally insane at the time of the offense,she did suffer from "a mental disease, Postpartum Depression," at the time. It was hisopinion that, "as a result of her mental illness, she lacked the ability to cope with thestress of parenting three children and she was unable to appreciate the danger of heractions toward Moneka on the night of the offense."

On the basis of Dr. Smith's opinion, the State moved to bar defendant frompresenting a defense of diminished capacity and/or postpartum depression sinceneither is a recognized defense in the State of Illinois. Defendant responded that shedid not intend to raise an insanity defense nor ask for a guilty but mentally ill instructionbut, rather, intended to raise a reasonable doubt defense. She asserted that Dr.Smith's testimony related to defendant's state of mind at the time of the offense andwas intended to show that defendant acted recklessly, in violation of the involuntarymanslaughter statute (720 ILCS 5/9-3(a) (West 1998)), rather than intentionally orknowingly in violation of the first degree murder statute.

After hearing argument, the court determined that defendant was impermissiblytrying to resurrect, through Dr. Smith's testimony, a section of the insanity defensestatute struck by the legislature. At the time of defendant's offense, the insanity statuteprovided that "[a] person is not criminally responsible for conduct if at the time of suchconduct, as a result of mental disease or mental defect, he lacks substantial capacity toappreciate the criminality of his conduct." 720 ILCS 5/6-2(a) (West 1998). Prior toAugust 20, 1995, the statute provided a defense where, as a result of mental disease ordefect, a person lacked "substantial capacity either to appreciate the criminality of hisconduct or to conform his conduct to the requirements of law." (Emphasis added.) 720ILCS 5/6-2(a) (West 1994). The court found that Dr. Smith's opinion made it sound asif defendant was unable to appreciate the criminality of her conduct even though shewas not insane and held that defendant should not have the right to bring before thejury "something that's not an affirmative defense as if it's an affirmative defense."

The court also found that defendant's postpartum depression was not relevant tothe issue of intent. Given defendant's circumstances at the time of the offense, thecourt determined that "anyone with any sense" could understand that she would bedepressed and psychological evidence was not necessary to show that she wasdepressed. The court further noted that Dr. Smith had not opined that defendant'spostpartum depression negated her ability to form the intent to kill. The court grantedthe State's motion to bar a diminished capacity and/or postpartum depression defenseand did not allow Dr. Smith to testify.

At trial, the State presented the testimony of numerous witnesses regarding thecircumstances of Moneka's death and the investigation thereof, as well as defendant'ssigned statement admitting that she caused Moneka's death and describing thecircumstances leading thereto. Defendant presented no evidence. Following closingargument, the court instructed the jury regarding the first degree murder charges. Overthe State's objection, the court also gave the jury an instruction regarding involuntarymanslaughter, finding some evidence presented that defendant's conduct was reckless. The jury found defendant guilty of first degree murder. The court denied defendant'smotion for a new trial. At sentencing, the State asked for the death penalty but thecourt sentenced defendant to 30 years' imprisonment.

Defendant now appeals her conviction, arguing solely that the court committedreversible error when it granted the State's motion in limine to exclude Dr. Smith'stestimony regarding defendant's mental state and the effect of her postpartumdepression on her mental state. We review the court's grant of the motion in limine andits decision to bar Dr. Smith's testimony under the abuse of discretion standard. Kimblev. Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 408, 830 N.E.2d 814, 822 (2005). Accordingly, we will not reverse the court's ruling unless it is arbitrary, fanciful orunreasonable or no reasonable person could take the same view as the court or thecourt applied an impermissible legal standard. Kimble, 358 Ill. App. 3d at 408, 830N.E.2d at 822.

Defendant asserts that, contrary to the court's finding, Dr. Smith's opinion wasnot an effort to revive the former insanity definition nor an attempt to claim diminishedcapacity, which she acknowledges is not a recognized defense in Illinois. Rather,defendant urges that she sought to present Dr. Smith's testimony in order to supporther theory of the case that, "while she did perform the acts which caused her daughterMoneka's death, she lacked the mental state required for a murder conviction, and infact had acted with the less culpable mental state of recklessness." In other words,defendant argues that her theory of the case is a defense based on the statutoryelements of the offense rather than an affirmative defense based on insanity ordiminished capacity. However, as the court found, an impermissible affirmativedefense is exactly what Dr. Smith's testimony would raise.

" 'The question of [a] defendant's state of mind at the time of the crime [is] aquestion of fact to be determined by the jury.' " People v Raines, 354 Ill. App. 3d 209,220, 820 N.E.2d 592, 601 (2004), quoting People v. Pertz, 242 Ill. App. 3d 864, 903,610 N.E.2d 1321, 1346 (1993). " 'Mental states, such as the intent to kill or to causegreat bodily harm, are not commonly established by direct evidence and may beinferred from the character of the defendant's conduct and the circumstancessurrounding the commission of the offense.' " Raines, 354 Ill. App. 3d at 220, 820N.E.2d at 601, quoting People v. Adams, 308 Ill.App.3d 995, 1006, 721 N.E.2d 1182,1190 (1999).

The admissibility of psychiatric evidence regarding a defendant's intent or lackthereof, the ultimate issue in a murder prosecution, depends on whether the expert is totestify " 'to facts requiring scientific knowledge not within the common knowledge of thejury.' " People v. Denson, 250 Ill. App. 3d 269, 281, 619 N.E.2d 878, 886 (1993),quoting People v. Ambro, 153 Ill. App. 3d 1, 8, 505 N.E.2d 381, 385 (1987), overruledin part on other grounds in People v. Chevalier, 131 Ill. 2d 66, 544 N.E.2d 942 (1989). Unless a subject is difficult to comprehend and understand, expert opinions may not beadmitted on matters of common knowledge. Denson, 250 Ill. App. 3d at 281, 619N.E.2d at 886, quoting Ambro, 153 Ill. App. 3d at 8, 505 N.E.2d at 385. Here,defendant's circumstances at the time of the murder were such that a jury would bemore than capable of determining, based on their common knowledge, that defendantwas depressed and/or overwhelmed at the time and whether she acted recklessly,rather than knowingly or intentionally, as a result.

The evidence showed that more than a year prior to Moneka's death, defendantsuggested that the then 1 1/2-year-old child be sent to foster care because she had abad attitude. At the time of Moneka's death, defendant lived in a small, dirty,unfurnished apartment, with the unemployed Powell, their three children, including thesix-day-old newborn, Powell's mother and brother. The entire family slept on blanketson the floor, relied on takeout meals because there was no gas with which to cook,received only defendant's public assistance and Powell's mother's wages from workingat Burger King as income and was soon to be evicted. Defendant was in pain from therecent delivery, was taking pain medication and was often alone with the children whilethe other adults went to work or to look for a job or an apartment. It does not require anexpert to explain that defendant may have been depressed and had trouble coping withthree children. It does not require an expert to explain that defendant was, toparaphrase defense counsel's closing argument, "desperate in tragic circumstances"and unable to take care of one child, let alone three. The court did not err in barringDr. Smith's testimony on that basis.

Further, "recklessness is not a state of mind which requires expert testimony." Pertz, 242 Ill. App. 3d at 902, 610 N.E.2d at 1346. Rather, it is a determination wellwithin a jury's common knowledge and thus it is for a jury, not an expert psychologist, todetermine whether defendant appreciated the risk involved when she tied Moneka up,put a sock in her mouth and taped her mouth shut. Pertz, 242 Ill. App. 3d at 902-03,610 N.E.2d at 1346. Moreover, notwithstanding defendant's argument to the contrary,Dr. Smith would not be able to testify as to defendant's state of mind at the time of theoffense because he was not with her nor did he observe her when she performed heractions. Pertz, 242 Ill. App. 3d at 902, 610 N.E.2d at 1346. Instead, he would only beable to testify to an opinion formed some three years after the offense rather than frompersonal observation at or near the time of the offense.

Defendant's assertion is that Dr. Smith's testimony bore directly on whetherdefendant's actions were intentional and/or knowing or were simply the recklessmisconduct of a sick woman. The basic difference between involuntary manslaughterand first degree murder is the mental state that accompanies the conduct resulting inthe victim's death, involuntary manslaughter requiring a less culpable mental state thanfirst degree murder. People v. DiVincenzo, 183 Ill. 2d 239, 249, 700 N.E.2d 981, 987(1998). Under sections 9-1(a)(1) and 9-1(a)(2) of the Criminal Code, a defendantcommits first degree murder when she intentionally kills an individual without lawfuljustification or does so knowing that her acts create a strong probability of death orgreat bodily harm. 720 ILCS 5/9-1(a)(1), (a)(2) (West 1998). In contrast, a defendantcommits involuntary manslaughter when she performs acts that are likely to causedeath or great bodily harm to another and performs these acts recklessly. 720 ILCS5/9-3(a) (West 1998); DiVincenzo, 183 Ill. 2d at 250, 700 N.E.2d at 987.

"A person is reckless or acts recklessly, when he consciously disregards asubstantial and unjustifiable risk that circumstances exist or that a result will follow,described by the statute defining the offense; and such disregard constitutes a grossdeviation from the standard of care which a reasonable person would exercise in thesituation." (Emphasis added.) 720 ILCS 5/4-6 (West 1998). In general, therefore, adefendant acts recklessly when she is aware that her conduct might result in death orgreat bodily harm, although that result is not substantially certain to occur, andconsciously disregards that risk. People v. Moore, 358 Ill. App. 3d 683, 688, 832N.E.2d 431, 436 (2005); DiVincenzo, 183 Ill. 2d at 250, 700 N.E.2d at 987. Dr. Smith'sopinion does not state that defendant did any such thing, that she consciouslydisregarded the risk to Moneka when she tied her up, stuffed a sock in her mouth andtaped her mouth shut. Instead, his opinion appears to state the exact opposite.

Dr. Smith opined that defendant, as a result of mental illness, "was unable toappreciate the danger of her actions toward Moneka on the night of the offense." Ineffect, it was his opinion that defendant was unable to form a conscious awareness ofthe danger of her actions. Where there is no conscious awareness of a danger, therecan be no "conscious disregard" of that danger, of the strong probability that death orgreat bodily harm will result to Moneka if the actions are taken. In other words, wherethere is no such awareness, there can be no reckless conduct.

Moreover, where there is no such awareness, there can be no intentionalexploitation of that danger in order that death or great bodily harm result nor knowledgethat the actions are practically certain to result in death or great bodily harm. Recklessconduct may generally involve a lesser degree of risk than conduct that creates astrong probability of death or great bodily harm (DiVincenzo, 183 Ill. 2d at 250, 700N.E.2d at 987), but the three states of mind, intentional, knowing and reckless, have incommon a conscious awareness that a risk, and a concomitant result, exists, either anintended (720 ILCS 5/4-4 (West 1998)) or "practically certain" (720 ILCS 5/4-5(b)(West 1998)) result, as in first degree murder, or "a substantial and unjustifiable risk * ** that a result will follow" (720 ILCS 5/4-6 (West 1998)), as in involuntary manslaughter. If there is no conscious awareness of a risk and attendant result, there can be noculpable state of mind for either first degree murder or involuntary manslaughter.

Dr. Smith's testimony would, indeed, bear directly on the ultimate question ofdefendant's mental state, whether defendant had any conscious awareness of the risksattendant to her actions. However, by eliminating the possibility that defendant wasconsciously aware of what could happen when she bound and gagged Moneka, Dr.Smith's testimony would impermissibly eliminate any possibility of the jurorsdetermining for themselves whether defendant intentionally, knowingly or recklesslykilled Moneka.

Dr. Smith's opinion, in fact, sounds more like a statement of diminished capacitythan of recklessness. The doctrine of diminished capacity, also known as the doctrineof diminished or partial responsibility, allows a defendant to offer evidence of hermental condition in relation to her capacity to form the mens rea or intent required forcommission of the charged offense. 21 Am. Jur. 2d Criminal Law