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December 28, 2000

No. 2--98--0321

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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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JUSTICE McLAREN delivered the opinion of the court:

After a jury trial the defendant, Matthew Foley, was foundguilty of predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(2)(A) (West 1996)), residential burglary (720 ILCS 5/19--3 (West 1996)), and home invasion (720 ILCS 5/12-11 (West 1996)). Thedefendant was sentenced to 25 years' imprisonment on the sexualassault count and consecutive 10-year sentences for residentialburglary and home invasion to run concurrently with each other. Thedefendant appealed, and we affirmed defendant's convictions in a Rule23 order filed October 18, 1999. People v. Foley, No. 2--98--0321(1999). Pursuant to an order by our supreme court, we vacate ourprior Rule 23 order and reconsider this cause in light of People v.Ramsey, 192 Ill. 2d 154 (2000). We affirm.

The following facts are taken from the record. G.S., thecomplainant's grandmother, testified that, at about 7:30 a.m. onOctober 16, 1997, while at home, she attempted to make a phone callto get a ride for the complainant, K.S. However, the phone was dead,so G.S. went to the garage to use her car. As she walked toward hercar, G.S. noticed that all four tires of her son's car were flat andthat the phone lines had been cut. G.S. stated that the phone lineshad been repaired that afternoon but were dead again that evening.

While looking out the window of the home that evening, E.W.,G.S.'s son's fiancée, saw a man staring at the house. E.W. turnedout the lights and got a hammer; when she looked again, the man waspacing outside the house. E.W. told G.S. that there was a prowleroutside. G.S. looked outside and saw nothing. She went to bed atabout 9:30 p.m.

G.S. stated that she shared a bed with her granddaughter, K.S.,the complainant, who slept in the nude. At about 11:30 p.m., G.S.awoke when she heard her granddaughter ask in a frightened voice whatwas going on. G.S. saw a man she identified as the defendant with aknife to K.S.'s throat. When G.S. began to cover K.S. with ablanket, the defendant told G.S. to stop or he would cut K.S. Thedefendant told G.S. that she knew what he wanted. G.S. then jumpedout of bed, turned on a light, ran to the bedroom door, and screamedfor help. M.S., the grandmother's son and K.S.'s father, ran intothe room and subdued the defendant. G.S. ran to a neighbor's houseand called the police.

The complainant's father, M.S., testified that he lived withhis mother, G.S., and his daughter, the complainant, K.S. On themorning of October 16, 1997, M.S. saw that his tires were slashed andthe phone lines were cut. When he returned from work at 10:45 thatevening, the lights were off in the house. His fiancée told himabout the man she had seen earlier and what had happened with thephone lines that day. M.S. then saw that the phone lines had beenripped apart again.

M.S. also stated that, at about midnight, he heard his mother(G.S.) scream and he ran to her bedroom, where he saw the defendantholding a knife at his daughter's (K.S.'s) throat. The defendant'spants were unzipped and his pants were down at his knees. M.S.knocked the defendant down, grabbed the knife, and held the defendantuntil the police arrived. Later, M.S. saw that the screen door hadbeen cut.

Belvidere police officer Patrick Gardner, the first officer toarrive at the scene, testified that, when he arrived at the scene,the defendant's jeans were unzipped and down around his knees. Thedefendant was wearing a black stocking cap, a black leather jacket,and green jeans.

According to Officer Gardner, while still in the house, thedefendant was advised of and waived his Miranda rights and statedthat he grabbed K.S.'s "crotch" and "tits." Officer Gardner escortedthe defendant to a patrol car and rode in the backseat of the carfrom the scene to the Belvidere public safety building. During thedrive, the defendant made additional admissions. According toGardner, the defendant stated that, on the morning of October 16,1997, he looked through a window and saw K.S. naked. The defendantalso stated that he wanted to have sex with K.S. and stalked thehouse throughout the day. The defendant also told Gardner that ataround 10 p.m. he stacked 12 boards outside K.S.'s window and climbedthem to peer through the window. The defendant stated that he wasnot able to enter the house through the window, so he cut the screendoor and entered that way. The defendant told the officers that hewent directly into K.S.'s room and placed a knife at her throat. K.S.'s grandmother, G.S., woke and turned on a light when K.S. beganto struggle. The defendant told the grandmother that she knew whatthe defendant wanted and he then grabbed K.S.'s breast and "crotch." The defendant then stated that he placed his finger in K.S.'s vaginaand knew that she was a virgin because "it smelled so good." According to Gardner, the defendant stated that K.S. seemed to be 14or 15 years old and that he knew that it was wrong to commit theseacts. The defendant also stated that he had consumed cocaine earlierthat day.

Belvidere police officer David Dammon testified that he drovethe defendant from the scene to the Belvidere public safety buildingat about 1 a.m. Dammon stated that the defendant stated that he knewhe was in trouble and that he was not going to hurt the "bitch" andhe just wanted to get some money to buy some "rock." According toOfficer Dammon, the defendant did not appear to be under theinfluence of alcohol or drugs.

Belvidere police officer Daniel Smaha testified that he waspresent when the defendant, after again being advised of and againwaiving his Miranda rights, gave an oral statement at the Belviderepublic safety building. The statement was reduced to writing andsigned by the defendant. The defendant stated that, on the day ofthe incident, the defendant walked down K.S.'s street looking intowindows, when he saw K.S., who was nude. The defendant thought thatonly two women lived in the house. He observed the house for awhile,cut the phone wires, left the area, and returned in the late eveninghours. The defendant stated that, after the house lights were off forabout an hour, he cut the screen door and entered the house. Thedefendant stated that he held a knife to K.S.'s throat with his righthand and put his left hand on K.S.'s breast. The grandmother turnedthe light on and asked what the defendant wanted. The defendantstated that the grandmother knew what he wanted and the grandmotherbegan to yell for the police. The defendant also admitted that hestuck his index finger into K.S.'s vagina and that he intended onrobbing the house and having sex with K.S. if no one else was there. The defendant stated that he was high when he broke into the houseand had smoked five to six bags of crack cocaine earlier that day. But Smaha stated that the defendant did not appear to be under theinfluence at the time the defendant gave the oral statement.

Dr. Donald Pearson, a licensed clinical psychologist, testifiedon the defendant's behalf. Dr. Pearson stated that he examined thedefendant for the first time on November 13, 1997. However, Dr.Pearson terminated that session after determining that the defendanthad been overly sedated. Dr. Pearson examined the defendant again onNovember 18, 1997, and the defendant was alert, responsive, andunmedicated, but was also disheveled, unshaven, and wounded on botharms. Dr. Pearson described the wounds as rub and gouge marks. During this second exam, Dr. Pearson conducted 15 tests, whichrevealed that the defendant had aggressiveness and a possible psycho-organic disturbance and that the defendant was not malingering. Thetests also revealed that the defendant suffered from extremedepression, deviant thoughts, periodic and high levels of anxiety,feelings of loneliness and estrangement, a high propensity forneurotic breakdown, and low-average intelligence.

Dr. Pearson also reviewed the defendant's mental health recordsfrom the Department of Corrections, which revealed that, while thedefendant was previously incarcerated in 1996, two Menard staffpsychiatrists diagnosed him with schizophrenia in May 1996. At thattime, the defendant's symptoms included auditory hallucinations inthe form of his late uncle speaking to him. The report alsoindicated that defendant was suicidal and, while on medication,burned and scratched himself and set his pants on fire in response toa hallucination in June 1996. The defendant's medical recordindicated that the defendant's schizophrenia went into partialremission and his self-destructive behavior decreased, but thedefendant refused to take his medication.

The record also contained a June 1997 report by Dr. AngelHereda, a Dixon staff psychiatrist. The defendant told Dr. Heredathat he had a history of auditory hallucinations, which were inremission at the time of the report; explosiveness; increased energy;racing thoughts; a decreased need for rest; and depression. Dr.Hereda and another Dixon staff psychiatrist diagnosed the defendantwith bipolar disorder.

Dr. Pearson also stated that the defendant's mental healthrecord revealed that, after the defendant was discharged from theDepartment of Corrections on September 16, 1997, he went to a mentalhealth facility seeking help, saying he was suicidal. In response,the defendant was given medication, but he did not take it. Subsequently, the defendant left the facility and began abusingalcohol and cocaine. Three or four days after he left the mentalhealth facility, he committed the acts that are the subject of thisappeal.

Based on the examinations, tests, medical records, and policereports, Dr. Pearson opined that the defendant was insane at the timeof the instant offenses. According to Dr. Pearson, the defendant'scondition was affected by certain conditions that rendered hisillness as either active or in remission. While the defendant'sillness is active, he can cognitively acknowledge right and wrong butdoes not appreciate the criminality of his conduct and cannot conformhis behavior to appropriate standards.

Dr. Robert Gordon, a licensed clinical psychologist, testifiedon behalf of the State. Dr. Gordon testified that he examined thedefendant on December 4, 1997, administered intelligence andemotional problem tests, and reviewed the defendant's mental healthrecords. Dr. Gordon opined that the defendant had the capacity toappreciate the criminality of his conduct. Dr. Gordon stated thatthe defendant had borderline intelligence, an alcohol and polydrugdependence in remission, antisocial personality disorder, andadjustment disorder with depressed mood. Dr. Gordon also opined thatthe defendant did not have a major psychiatric disorder and disputedthe diagnosis of bipolar disorder. According to Dr. Gordon, the onlydisorder that could have affected the defendant's ability toappreciate the criminality of his conduct was borderlineintelligence. However, the defendant's intelligence was not so lowas to have a significant effect. Dr. Gordon recognized that thedefendant had a detailed psychiatric history and that, during thetime he was incarcerated from 1995 through 1997, psychiatristssubmitted monthly reports on the defendant's mental health.

The defendant pleaded not guilty by reason of insanity. Thejury was instructed regarding the verdicts of not guilty by reason ofinsanity and guilty but mentally ill.

The trial court instructed the jury as to the then-currentamended form of the insanity defense statute as contained in Public Act 89--404 (Pub. Act 89--404,