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THIRD DIVISION

May 1, 2002

JUSTICE WOLFSON delivered the opinion of the court:

Between December 1993 and May 1995, defendant Harry McDonaldlived in a second floor apartment at 5941 West North Avenue inChicago. He lived alone, in apartment #204. He was in hisforties and had long suffered from paranoid schizophrenia.

On May 6, 1995, the defendant set fire to a third floorapartment, #303, in his building. Eric West, Hardell Preston,and their three young children, Erica, Eric Jr., and Edonya,lived in that third floor apartment. Vera Holmes lived inanother apartment on the third floor.

The defendant was charged with four counts of first degreemurder for the deaths of Vera Holmes, Erica West, Edonya West,and Eric West, Jr., and one count of aggravated arson. A jurylater found the defendant guilty but mentally ill of the fourcounts of first degree murder and of the one count of aggravatedarson.

Following the jury trial, the trial judge sentenced thedefendant to life in prison without the possibility of parole foreach of the four first degree murder convictions and to aconsecutive term of thirty years in prison for the aggravatedarson conviction.

On appeal, the defendant contends (1) the jury'sdetermination he was sane was against the manifest weight of theevidence. He also contends the trial court abused its discretionwhen it (2) denied his request to give his diaries to the juryduring its deliberation; (3) limited his cross-examination of theState's expert, forensic psychiatrist Dr. Albert Stipes; (4)denied his request for second degree murder instructions; (5)denied his request for a non-IPI instruction recognizing theconsequence of a verdict of not guilty by reason of insanity; and(6) refused to allow him to argue last -- in a rebuttal closingargument -- the issue of his sanity.

We affirm.

FACTS

The State's evidence at trial showed the defendant set fireto Eric West's apartment on May 6, 1995, because of a growinganimosity between him and Eric, and because he suffered from adelusion that demons disguised as people, including Eric and hisfamily, were stalking him, breaking into his apartment, andtrying to kill him.

Specifically, nine months earlier, on August 17, 1994, thedefendant got into a fight with Eric near the entrance to theirapartment building. After that fight, the defendant intended touse a shotgun to kill Eric.

The defendant failed to buy a shotgun, however. Hisapplication for a firearm owner's identification card was denied. So the defendant decided to use fire to kill Eric.

On February 15, 1995, the defendant and Eric got intoanother fight. During that fight, the defendant repeatedlystabbed Eric with a homemade knife -- a broomstick handle with anail driven into it. He stabbed Eric in his back and head.

Hardell Preston saw the defendant attack Eric and tried topull Eric away from the defendant. After some time, Eric wasable to break away from the defendant and escape through thefront door of the building.

Later that night, the police arrested the defendant forattacking Eric. The defendant was charged with battery and thecase against him was set for trial. Eric and Hardell werescheduled to testify.

While in custody, the defendant tried to file a complaintagainst Eric. According to the defendant, the police refused toaccept his complaint. As a result, the defendant decided to burnhis whole apartment building. This way, he could kill Eric andeveryone else in the building. He later decided, however, not toburn down the entire building. He did not think he could acquireenough gasoline to burn it all.

During the days between February 15, 1995, and April 4,1995, the defendant went to the Chicago Public Library andresearched how to use and control gasoline. He wanted to learnhow to burn the building. Apparently, he did. After midnight onApril 4, 1995, the defendant bought over two gallons of gasoline.

The defendant put the gasoline in a plastic container andtook it home. When he returned to his apartment with thegasoline, he kept his window open and a fan running to clear thegasoline fumes. He was afraid the gasoline would catch firebefore he had a chance to use it.

Eventually, the defendant had to transfer the gasoline to alarger 2.5-gallon plastic bottle -- the plastic container and thelid on the container softened. He then placed the plastic bottleinto a 5-gallon plastic "Open Pit" barbeque sauce bucket. He gotthe bucket from the garbage of Joe's Barbecue -- a localrestaurant located next to his building.

In the days before setting apartment #303 on fire, thedefendant made some preparations. Specifically, he withdrewmoney from his bank account, over $8,000, he packed a bag withsome of his personal items, and he grabbed some matches.

At 4:00 a.m., on May 6, 1995, the defendant carried hismoney, bags, matches, and the bucket of gasoline up the stairs toapartment #303 -- Eric's apartment. The defendant chose thattime because he thought that at four in the morning Eric would beasleep in his apartment.

Eric was not in the apartment. Eric had just left. He wentto Joe's Barbecue to help clean up and make a little money. Joe's Barbecue closed at 4:00 a.m.

Hardell and her three children were in the apartment,however. Hardell was lying on the couch watching television. Her three children were sleeping. Apartment #303 was a studio,so Hardell and her children were in the same room: Erica, agefour, was sleeping on the couch and was closest to the front doorof the apartment; Edonya, age three, was sleeping on anothercouch next to Hardell; and Eric Jr., age two, was sleeping nextto his mother, that is, with Hardell.

Just minutes after Eric left for Joe's Barbecue, thedefendant banged on the front door to apartment #303. Hardellyelled out, but there was no response. She then went into thebathroom and partially closed the bathroom door.

The defendant broke the apartment door open. He emptied thegasoline from the 2.5-gallon plastic bottle, which he had in the"Open Pit" bucket, into the apartment. He poured the gasoline insuch a way that the gasoline spread all over the floor of theapartment.

The defendant then lit one match. The gasoline did notcatch fire. He lit a second match. The gasoline still did notcatch fire. Finally, he lit a third match, and the gasolineignited.

When the gasoline ignited, fire swept across the floor ofthe apartment and leapt to the ceiling. The fire engulfed thewhole room. "It was like the sun in the apartment," saidHardell.

As the flames spread through the apartment, the childrenwoke up and started to scream. Erica tried to run out the frontdoor, but the defendant pushed her back into the apartment andclosed the front door. Hardell fully opened the bathroom door tosee if she could reach her children.

Erica saw her mother and tried to run to her. Because ofthe intense heat of the fire -- between 1,800 and 2,000 degreesFahrenheit -- Erica was unable to reach her mother. And Hardellwas unable to rescue her. Hardell was unable to rescue any ofher children.

Feeling helpless, Hardell jumped out of the bathroom windowto the rooftop of a one-story building next to the apartmentbuilding. When she landed on the rooftop, she broke her wristand elbow. From the rooftop, Hardell yelled for someone to helpher children. She could hear them screaming from within theapartment.

The children were not saved from the fire. They died in theapartment and were burned beyond recognition.

As the fire spread throughout the building, other residentsof the building jumped out of their windows or were rescued byfirefighters. Vera Holmes was one of those residents. She alsolived on the third floor of the apartment building.

To avoid the fire and smoke that engulfed her apartment,Vera climbed out of her window and straddled the window ledge. Firefighter Darien Thomas and several other firefighters from theChicago fire department tried to rescue Vera. However, she fellfrom the ledge and landed on firefighter Thomas. Because of thecombination of her fall and carbon monoxide intoxication (sheinhaled too much smoke and soot from the fire), Vera died fromher injuries.

After setting fire to Eric's apartment, the defendant fled. He gathered his suitcase and the "Open Pit" bucket -- he left the2.5-gallon plastic bottle in Eric's apartment -- and left theapartment building through the front door.

The defendant ran to the rear of the building. He went intoan alley and threw the "Open Pit" bucket into a garbagecontainer. Officer Barry Eichner of the Chicago PoliceDepartment recovered the "Open Pit" bucket and three plasticcigarette lighters from that garbage container. A latentfingerprint on the "Open Pit" bucket matched the defendant'smiddle finger on his left hand.

After throwing away the "Open Pit" bucket, the defendantwalked to the Greyhound bus station. There, he bought a busticket to California. He used a fake name to buy the ticket.

The defendant did not go to California. Instead, he boughtbus tickets for several different places. He estimated he spentabout $1,000 on bus tickets.

From May 6, 1995, to June 10, 1995, the police tried tolocate the defendant. During that time, the defendant missed hismonthly appointments at Mt. Sinai hospital. He had been treatedthere on an outpatient basis since 1989 for paranoidschizophrenia. His missed appointments at Mt. Sinai were thefirst he had missed in over five years, having attended allprevious 67 appointments.

On May 8, 1995, Chicago police detective Jerome Bogucki wentto the defendant's apartment. He found the defendant's apartmentdoor open. When he looked in, the detective saw an open closetwith 5-gallon "Open Pit" barbecue sauce buckets on the shelves.

On May 9, 1995, a search warrant was issued for thedefendant's apartment. Detective Bogucki and other detectivessearched the defendant's apartment. In addition to the "OpenPit" buckets, the detective recovered a number of spiral bindernotebooks with writing in them that detailed the defendant'sdelusions, advertisements from the Yellow Pages with handwritingon the back, 3-ring binders, a manila folder, homemade weaponsmade from wooden spikes, electrical timers, electrical wire, a.22 rifle, and parts for another .22 rifle.

On June 10, 1995, Chicago police arrested the defendant. When he was arrested, he held a bus ticket for travel departingfrom Miami, Florida, on June 7, 1995, and arriving in Chicago,Illinois, on June 9, 1995. The name on the ticket was "JoeDoss."

In the four years leading up to the defendant's trial, threedoctors examined him: Dr. Heinrich, a psychologist retained bythe defendant; Dr. Obolsky, a psychiatrist also retained by thedefendant; and Dr. Stipes, a psychiatrist employed by ForensicClinical Services of the Cook County Circuit Court.

At the defendant's trial, all three doctors testified asexpert witnesses regarding the issue of his sanity at the time heset fire to apartment #303. All three doctors agreed: (1) thedefendant suffered from paranoid schizophrenia; (2) the defendantwas suffering from paranoid schizophrenia on May 5 and May 6,1995, and had suffered from it for many years; and (3) thedefendant was delusional on May 5 and May 6, 1995.

Both Dr. Heinrich and Dr. Obolsky reached the opinion thedefendant was insane at the time he set fire to Eric West'sapartment because his mental illness and his delusions deprivedhim of the substantial capacity to appreciate the criminality ofhis conduct, or to conform his conduct to the requirements of thelaw.

Specifically, Dr. Heinrich and Dr. Obolsky believed thedefendant's paranoid schizophrenia caused him to think he was thetarget of a universal conspiracy in which God, the Devil, and allof mankind, including the police and judges, conspired to destroyhim. The defendant believed he was left with no choice otherthan to try to eliminate his foremost and easily identifiableconspirators: Eric West and his family.

Dr. Stipes, however, reached the opposite conclusion. Heopined the defendant was sane.

Dr. Stipes believed the defendant's notebooks reflectedplanning and organization of his crime, an important factor toconsider in determining a person's sanity, said Dr. Stipes. Dr.Stipes also believed the defendant's flight from the scene of thefire evinced not only planning and organization, but alsoconsciousness of guilt -- another important factor to consider indetermining a person's sanity.

Dr. Stipes concluded that in light of the defendant's Mt.Sinai records closest in time to the fire and the interviews hehad with him, the defendant's planning of the fire, his motives,and his attempts to avoid detection showed he was legally sanewhen he set fire to Eric West's apartment, killing the fourvictims.

At the close of all of the evidence, the trial courtconducted an instructions conference and an exhibits conference. First, in the instructions conference, the defendant objected toany guilty but mentally ill instructions or verdicts. Thedefendant objected to the guilty verdict forms because theevidence did not support "unalloyed guilty verdicts." The trialcourt overruled the defendant's objections and submitted theinstructions to the jury.

Second, in the instructions conference, the defendantoffered instructions on second degree murder, predicated on hisgenuinely held, but unreasonable belief he needed to defendhimself from death or a forcible felony. The defendant offeredcompanion instructions on reasonable belief and justified use offorce, necessity, and self-defense. The trial court denied themall.

Finally, in the instructions conference, the defendantoffered a non-IPI instruction on the consequences of a verdict ofnot guilty by reason of insanity. This also was denied.

In the exhibits conference, the defendant requested hisnotebooks taken from his apartment be given to the jury. TheState objected and the trial court sustained the objection. Thetrial court said the blow-ups of various pages from the notebooksthe experts testified to would go back to the jury only if thejury asked for them. The court added it would reconsider itsruling on the notebooks if the jury were to ask for them. Thejury never requested either the blow-ups or the notebooks.

Before closing arguments, the defendant also asked the courtto give him final rebuttal argument, since he had the burden ofproof on the issue of his sanity. The trial court refused. After the State's argument, the defendant waived his closingargument.

The defendant now appeals his convictions for first degreemurder and aggravated arson.

DECISION

SANITY

At the time the defendant committed the offenses, section 6-2 of the Criminal Code of 1961 said a defendant may not beconvicted if "at the time of such conduct, as a result of mentaldisease or mental defect, he lack[ed] substantial capacity eitherto appreciate the criminality of his conduct or to conform hisconduct to the requirements of the law." 720 ILCS 5/6 2(a) (West1994).

In Illinois, all defendants are presumed to be sane. Peoplev. Williams, 265 Ill. App. 3d 283, 289, 638 N.E.2d 345 (1994). The burden is on the defendant to prove insanity by apreponderance of the evidence. 720 ILCS 5/6 2(e) (West 1994). That is, the defendant must prove that it was more likely thannot that he was insane when he committed the murder. See Peoplev. Moore, 147 Ill. App. 3d 881, 886, 498 N.E.2d 701 (1986).

Whether a defendant was sane at the time of a crime isgenerally a question of fact. People v. Martin, 166 Ill. App. 3d428, 433, 519 N.E.2d 1085 (1988). The trier of fact may acceptthe testimony of one expert over that of another as long as theaccepted opinion is based on a credible diagnosis. People v.Tylkowski, 171 Ill. App. 3d 93, 100, 524 N.E.2d 1112 (1988). Wewill not reverse the trier of fact's determination of thedefendant's sanity unless it is contrary to the manifest weightof the evidence. People v. Thurman, 223 Ill. App. 3d 196, 201,584 N.E.2d 1069 (1991); see also People v. Wilhoite, 228 Ill.App. 3d 12, 20, 592 N.E.2d 48 (1991).

The defendant contends the jury's decision he was sane atthe time he set fire to apartment #303 is against the manifestweight of the evidence. Specifically, the defendant contends Dr.Heinrich's and Dr. Obolsky's opinions he was insane at the timeof the crime were amply supported by (1) the defendant'snotebooks; (2) interviews with the defendant; (3) relevant policereports; (4) the defendant's statements to the police and to anAssistant State's Attorney; and (5) the defendant's medicalrecords. The jury erred in finding him guilty but mentally illrather then legally insane, says the defendant.

The State responds the jury was within its province as fact-finder to reject the conclusions of Dr. Heinrich and Dr. Obolsky. The jury can rest its finding the defendant was not insane solelyon the testimony of Dr. Stipes. He supported his opinion withthe same information Dr. Heinrich and Dr. Obolsky did, says theState. We agree.

A jury, in making its determination, is free to accept theopinion of one expert witness over another (People v. Moore, 147Ill. App. 3d 881, 886, 498 N.E.2d 701 (1986)), or accept part andreject part of each expert's testimony (People v. McCleary, 208Ill. App. 3d 466, 478-79, 567 N.E.2d 434 (1990). The relativeweight to be given an expert witness' opinion "is measured by thereasons given for the conclusion and the factual detailssupporting it." Wilhoite, 228 Ill. App. 3d at 20-21.

We do not find grounds to reverse the jury's decision. Although the expert testimony conflicted, the jury was under noobligation to accept Dr. Heinrich's and Dr. Obolsky's conclusionsover Dr. Stipes' conclusions. See Williams, 265 Ill. App. 3d at289.

The defendant relies on People v. Baker, 253 Ill. App. 3d15, 625 N.E.2d 719 (1993). In Baker, we held the trial court'sfindings were against the manifest weight of the evidence wherethere was "no basis" to reject the testimony of four expertwitnesses for the defense, three of whom -- including Dr. Stipes-- were employed by the circuit court of Cook County PsychiatricInstitute and were designated by the trial court to examine thedefendant. Baker, 253 Ill. App. 3d at 29-30. No expertstestified on behalf of the State. We found the lay evidencetilting toward the State tenuous in light of the unimpeachedtestimony and conclusions of the experts. Baker, 253 Ill. App.3d at 28-31.

This case is not like Baker. Here, each expert testified heconsidered all the available information on the defendant'scondition. As the State's rebuttal witness, Dr. Stipes simplydisagreed with Dr. Heinrich's and Dr. Obolsky's conclusions. Thedefendant did not hire Dr. Stipes to examine him and then providean opinion at trial. See Baker, 253 Ill. App. 3d at 30.

"It is in a situation just such as this, when it is notentirely clear who is correct, that deference to the judgment ofthe trial court is most appropriate. 'That the witnesses reacheddifferent medical conclusions based upon the same foundationalevidence does not mean defendant sustained his burden of proof orthat the State failed to carry its burden. * * * Thecontradictory expert opinion presented the trial judge with aclassic question of fact.' " People v. Hill, 297 Ill. App. 3d500, 518, 697 N.E.2d 316 (1998), quoting People v. Sojak, 273Ill. App. 3d 579, 588, 652 N.E.2d 1061 (1995).

We find the jury's rejection of the defendant's insanitydefense was not against the manifest weight of the evidence.

DIARIES

The defendant contends the trial court should have allowedhis request to give the jury his diaries during deliberations. We disagree.

The decision whether to allow jurors to take exhibits intothe jury room is left to the sound discretion of the trial court. People v. Hunley, 313 Ill. App. 3d 16, 37-38, 728 N.E.2d 1183(2000). We will not reverse that decision unless there is anabuse of discretion to the prejudice of the defendant. Hunley,313 Ill. App. 3d at 37-38; see also People v. Williams; 97 Ill.2d 252, 292, 454 N.E.2d 220 (1983).

The situation here is similar to that in People v. Glenn,233 Ill. App. 3d 666, 599 N.E.2d 1220 (19921), and People v.Panzer, 73 Ill. App. 3d 1, 391 N.E.2d 467 (1979).

In Glenn, we held the trial court did not abuse itsdiscretion in refusing to allow defense exhibits to go to juryroom where both parties' experts reviewed exhibits in formulatingtheir insanity opinions and the defendant was allowed to displayexhibits to the jury during closing argument. 233 Ill. App. 3dat 686.

In Panzer, we held the trial court did not abuse itsdiscretion in refusing to allow a defendant's statement to go tothe jury where the statement was admitted into evidence and wasread to the jury. The trial court determined undue emphasiswould be placed on one piece of evidence: the defendant'sstatement. 73 Ill. App. 3d at 8-9.

Here, the defendant's diaries contained information that washelpful to both the defense -- as evidence of his delusions --and the State -- as evidence of motive, planning, andorganization of his crime. As such, the jury heard extensivetestimony and analysis regarding the contents of the diaries fromDr. Heinrich, Dr. Obolsky, and Dr. Stipes, and heard how thoseentries influenced their opinions regarding the defendant'ssanity at the time of the offense. We note the jury made norequest to have the diaries during its deliberation process.

Based on the record, we find the trial court did not abuseits discretion by refusing to allow the defendant's diaries to goback to the jury during deliberations. See Hunley, 313 Ill. App.3d at 37-38 (failure to admit transcript of defendant's 911 callinto evidence and to send it back to the jury duringdeliberations was not an abuse of discretion where jurors had thebenefit of using the transcript while the tape recording of callwas played in court, and where the jurors made no request to usethe transcript during their deliberations).

CROSS-EXAMINATION

The defendant contends the trial court's decision to bar himfrom asking Dr. Stipes certain questions on cross-examinationdenied him his constitutional right to confront witnesses andpresent a defense. U.S. Const. amends. VI, XIV; Ill. Const.1970, art. I,