Opinion filed February 13, 2015 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-12-0741 v. ) Circuit No. 10-CF-2658 ) RODERICK TADEMY, ) The Honorable ) Sarah F. Jones, Defendant-Appellant. ) Judge, presiding. _____________________________________________________________________________

JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justices Holdridge and Wright concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 The defendant, Roderick Tademy, appeals his conviction for attempted first degree

murder, aggravated battery with a firearm, and aggravated battery of a child for shooting his

12-year-old son in the head.

¶2 FACTS

¶3 The defendant was charged by indictment with attempted first degree murder, aggravated

battery with a firearm, and aggravated battery of a child for shooting his 12-year old son, O.T., in

the head. The defendant was found fit to stand trial, and the case proceeded to a jury trial. ¶4 Antoinette Tademy, the defendant’s wife, testified that on December 20, 2010, she was at

home with the defendant, their twin five-year old daughters, and O.T. Antoinette testified that

the defendant had started drinking alcohol at around 7 a.m. on that day. By late afternoon, he

had drunk a half of a large bottle of vodka, some beer, and some wine coolers, but Antoinette did

not notice signs of intoxication. Later in the day, she decided to take the kids to the mall, so she

went into her room to get dressed. O.T. was sitting in the living room, and the twins were eating

dinner in the kitchen. Antoinette heard a loud clap, and then the defendant came into the

bedroom, pointing a gun at her. She testified that he seemed abnormal and that he was angry and

disconnected. The defendant asked her how she could let O.T. molest one of the twins. She told

him that was not true. The defendant tried to hit Antoinette in the head with the gun, and she ran

out of the bedroom toward the kitchen door.

¶5 Antoinette called out to O.T. to run away, but the defendant said that O.T. was dead.

Antoinette went into the living room, where she saw O.T. sitting on the couch with a gunshot

wound to the head. Antoinette testified that she called 911 and at that point the defendant

“snapped out of it” and went to get a towel. Antoinette described it as the defendant coming

back to normalcy. The defendant said that he was sorry and that he was losing his mind.

Antoinette testified that the defendant had been acting abnormally, on and off, for about 3 1/2

years, but she only noticed that abnormal behavior when he was drinking. She testified that the

more he drank, the more delusions he seemed to have.

¶6 The defendant presented an insanity defense, offering the testimony of Dr. Bruce

Frumkin, a clinical psychologist. Dr. Frumkin evaluated the defendant on two dates, for a total

of about 5 ½ hours. He did clinical interviews, administered several psychological tests,

reviewed the defendant’s interrogation, reviewed the reports and notes of the State’s witness, Dr.

Randi Zoot, and reviewed various Department of Correction, jail and police reports. In response

-2- to a question on cross-examination by the State, Dr. Frumkin testified that it was his

understanding that the defendant was diagnosed at the jail with some sort of depression due to an

adjustment disorder at the jail. According to Dr. Frumkin, the defendant suffered from

schizophrenia, chronic paranoid type. Dr. Frumkin opined that it was extremely unlikely that the

defendant's psychotic behaviors were caused by alcohol abuse. In fact, he opined that the

alcohol had nothing to do with the defendant's delusional behavior. In his opinion, the defendant

was insane at the time of shooting, in that the defendant did not appreciate the criminality of his

actions when he shot his son in the head.

¶7 The State called Dr. Zoot, a clinical psychologist, as a rebuttal witness. She reviewed

police reports, the videotape of the interrogation, the records from the county jail, and the

medical records. She also met with the defendant on two occasions, and she was the doctor that

found that the defendant was fit to stand trial. Zoot diagnosed the defendant with depression

with psychotic features, and alcohol abuse, but found that he was sane when he shot his son. She

found nothing unusual or outstanding about the defendant’s affect, and she found his responses

to be appropriate. Dr. Zoot opined that the defendant had some mental issues and suffered from

some delusions, but he was not insane because he appreciated the criminality of his conduct. Dr.

Zoot testified that she reviewed the records from the jail to see if the defendant had any

treatment, what his presentation was like at the jail, and what the jail evaluations showed. She

testified that the jail psychiatrist had diagnosed the defendant with adjustment disorder with a

depressed mood.

¶8 During closing arguments, the State went through all of the elements of the three offenses

that the defendant was charged with and the evidence relevant to each element. The State also

discussed the defendant's defense of insanity, or whether he was mentally ill, and the evidence

relevant to the mental issue. Specifically, the State discussed the testimony of Drs. Zoot and

-3- Frumkin, some of the physical evidence, and Antoinette's testimony. Defense counsel then made

his closing argument, highlighting some of the evidence, and also discussing the testimony of

both doctors. In rebuttal, the State argued that the defendant failed to meet his burden of proving

that he was insane and focused on the evidence that showed that the defendant appreciated the

criminality of his actions. In particular, the State argued that the defendant had a loaded gun on

his person in his home, and he was feeling disrespected by and angry at O.T., but he was

carrying on normal tasks of everyday life by playing video games and making dinner for the

twins. In addition, after shooting O.T., the defendant turned his rage to Antoinette and

threatened her with the same gun. Then, the defendant told Antoinette that O.T. was dead. The

State then argued the inferences that could be made from the defendant leaving the residence

before the police arrived. As its last point in this argument, the State argued that the defendant

was evaluated when he got to the jail and the jail psychiatrist found nothing wrong with him.

¶9 The jury was given verdict forms stating guilty, not guilty, guilty but mentally ill, and not

guilty by reason of insanity. The jury found the defendant guilty of all charges. The defendant

was sentenced to 50 years for attempted first degree murder, 50 years for aggravated battery of a

child, and 30 years for aggravated battery with a firearm, all to run concurrently.

¶ 10 ANALYSIS

¶ 11 The defendant argues that the evidence demonstrated that he suffered from paranoid

schizophrenia, which left him unable to appreciate the criminality of his actions. Thus, he argues

that the jury’s finding that he was sane was against the manifest weight of the evidence.

¶ 12 Under section 6-2(a) of the Criminal Code of 1961, a person is not criminally liable for

his conduct if, at the time of such conduct, as a result of a mental disease or defect, he lacks the

substantial capacity to appreciate the criminality of his conduct. 720 ILCS 5/6-2(a) (West 2010).

Insanity is an affirmative defense, so the defendant bears the burden of proving it by clear and

-4- convincing evidence. 720 ILCS 5/6-2(e) (West 2010); People v. Kando,

(2009). However, the State retains the burden of proving defendant guilty of the charged

offense beyond a reasonable doubt.

. The question of a defendant's sanity and mental

illness are questions of fact, and the fact finder's determination on these issues will not be

disturbed unless contrary to the manifest weight of the evidence. People v. Urdiales,

(2007).

¶ 13 It is the function of the trier of fact to assess the credibility of the witnesses and the

weight to be given to their testimony. People v. McCullum,

(2008).

This rule also applies to expert opinions.

The fact finder is free to accept the opinion of one

expert witness over another. Kando,

. The defendant argues that the

opinion of the State’s expert was entitled to less weight because she did not perform any

psychological testing and she “unduly relied” on the diagnosis of the jail psychiatrist. However,

a review of the record indicates that she felt she could assess the defendant’s intelligence and

psychological testing was not necessary. As for the jail psychology records, Zoot testified that

she considered them along with the other information available to her. Many of the facts were

not in dispute; the jury was provided with two expert opinions that reached opposite conclusions,

along with lay testimony regarding the defendant’s actions. It was free to accept the opinion of

the State’s expert that the defendant appreciated the criminality of his actions. As such, the

jury’s finding that the defendant was sane was not against the manifest weight of the evidence. 1

¶ 14 The defendant contends that his sixth amendment right to confront witnesses was violated

when Drs. Zoot and Frumkin referred to medical records from the jail and the doctors who

1 The defendant argues that there was no other reason for the shooting, so he must have been insane to shoot his son in the head. However, the commission of an incomprehensible crime is not in itself evidence of insanity. People v. Lono,

(1973) (citing People v. Robinson,

(1961)).

-5- created those records did not testify. The defendant acknowledges that the issue was not raised

in the trial court, nor in a posttrial motion, but asks for plain error review. Alternatively, the

defendant argues that his counsel was ineffective for failing to raise the issue. The State

contends that there was no error in that Drs. Zoot and Frumkin both properly relied on the

records to form the basis of their opinions regarding the defendant’s mental state.

¶ 15 The sixth amendment guarantees all defendants the right to be confronted with the

witnesses against him. U.S. Const., amend. VI. When testimonial statements are offered into

evidence, the sixth amendment requires that the witnesses be unavailable and that the defendant

have had a prior opportunity to cross-examine that witness. Crawford v. Washington,

(2004). In determining whether a report is testimonial, the Illinois Supreme Court

applies a primary purpose test, asking whether the report was prepared for the primary purpose

of accusing a targeted individual or for the primary purpose of providing evidence in a criminal

case. People v. Leach,

. Typically, we review de novo a defendant's

claim that his sixth amendment right to confront a witness against him was violated because it

presents a question of law. Id. ¶ 64. However, since the issue was not properly preserved, we

review for plain error.

¶ 16 The first step in a plain error analysis is to determine whether a "plain error" occurred.

People v. Piatkowski,

(2007). The word "plain" in this context "is

synonymous with 'clear' and is the equivalent of 'obvious.' "

at 565 n.2. If the reviewing

court determines that the trial court committed a clear or obvious (or "plain") error, it proceeds to

the second step in the analysis, which is to determine whether the error is reversible. Our

supreme court has made clear that plain errors are reversible only when (1) "the evidence is so

closely balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error," or (2) the error is "so serious that it affected the

-6- fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of

the closeness of the evidence."

; People v. Herron,

(2005).

¶ 17 The confrontation clause does not bar the admission of testimonial statements that are

admitted for purposes other than proving the truth of the matter asserted. People v. Williams,

(2010), aff'd sub nom. Williams v. Illinois, — U.S. —,

(2012). An out-of-court statement is hearsay if it is “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Ill. R. Evid. 801(c) (eff. Jan. 1, 2011); Leach,

. The

defendant argues that the jail psychiatrist’s diagnosis, “adjustment disorder with depressed

mood,” was offered substantively for its truth. However, Illinois Rule of Evidence 703 (eff. Jan.

1, 2011) permits an expert to base an opinion on facts or data not in evidence. See People v.

Lovejoy,

(2009) (a medical examiner’s testimony regarding a toxicologist

report was not admitted for the truth of the matter asserted but, rather, introduced to show the

steps the expert took in rendering his opinion); People v. Pasch,

(1992) (an

expert can testify as to nontestifying experts' findings and conclusions as support for his own

findings).

¶ 18 Both experts testified that they reviewed the jail records. In response to a question on

cross-examination by the State, Dr. Frumkin testified that it was his understanding that the

defendant was diagnosed with some sort of depression due to an adjustment disorder at the jail.

Dr. Zoot testified that she reviewed the records from the jail to see if the defendant had any

treatment, what his presentation was like at the jail, and what the jail evaluations showed. She

indicated that the records that were important to her were that the jail psychiatrist had diagnosed

the defendant with adjustment disorder with a depressed mood and that there were no records of

any symptoms of a significant mental disorder. Thus, the State argues that the jail psychiatrist’s

-7- diagnosis was not offered for the truth of the matter asserted, but offered to show the facts and

conclusions underlying the experts’ opinions. We agree. However, the State referred to the jail

psychiatrist in its closing, saying that the defendant was evaluated and never diagnosed with

anything. Thus, it appears that even if the testimony was initially not offered as substantive

evidence, it was argued as such by the State, which would be reversible error if the evidence is

closely balanced. 2

¶ 19 As stated above, to establish plain error under the first prong, the defendant must

demonstrate prejudicial error, i.e., there was error and the evidence was so closely balanced that

the error threatened to tip the scales of justice against him. Herron,

. The

defendant argues that the evidence was closely balanced because there was essentially a

credibility contest between the two experts. The State argues that Dr. Frumkin’s testimony was

incredible, because he testified that alcohol had nothing to do with the defendant’s actions, and

Frumkin never connected the delusional thinking with the defendant’s inability to appreciate the

criminality of the shooting.

¶ 20 Cases based solely on a credibility dispute have been found to be closely balanced.

People v. Naylor,

(2008); see also People v. Lundell,

(1989) (evidence of insanity was closely balanced when the experts agreed that the defendant

suffered from a mental disorder, but disagreed regarding whether the defendant was insane at the

time of the crime). However, in this case, there was lay testimony from the defendant’s wife

regarding the defendant’s alcohol use and his actions on the day of the shooting, which tended to

2 Since we find that the doctors’ reference to the jail psychiatrist’s diagnosis was not hearsay, but rather offered as the basis for their findings, the improper reference to the jail psychiatrist in the State’s rebuttal argument was not an error so serious that it affected the fairness of the defendant’s trial. See People v. Herron,

(2005) (to prevail under the second prong of the plain error analysis, the defendant must show a serious error that caused a severe threat to the fairness of the trial and challenged the integrity of the judicial process).

-8- corroborate the testimony of Dr. Zoot. “[A] reviewing court must undertake a commonsense

analysis of all the evidence in context when reviewing a claim under the first prong of the plain

error doctrine.” People v. Belknap,

. This case was not just a credibility

contest, and considering all of the evidence of the defendant’s sanity, and the testimony

regarding the defendant’s drinking habits, we find that the evidence was not closely balanced.

Since the evidence on that issue was not closely balanced, the State’s reference to the jail

psychiatrist’s diagnosis was not plain error.

¶ 21 In the alternative, the defendant argues that his trial counsel was ineffective for failing to

object to the admission of the nontestifying psychiatrist’s opinion. We review claims of

ineffective assistance of counsel under the standards set forth in Strickland v. Washington: a

defendant must show his counsel’s representation fell below an objective standard of

reasonableness and that the performance prejudiced the defense of the case. Strickland v.

Washington,

(1984). Since we have concluded that the references to the jail

psychiatrist’s diagnosis were properly offered to show the facts and conclusions underlying the

experts’ opinions, the single reference by the State to the fact that the defendant was diagnosed

with nothing at the jail was not sufficient to establish prejudice under Strickland. See People v.

Albanese,

(1984) (to show prejudice, the defendant must show a reasonable

probability that, but for counsel’s error, the result of the proceeding would have been different).

¶ 22 The defendant argues that the trial court erred in not admonishing the jury regarding the

principle that the defendant’s decision not to testify could not be held against him. A review of

the record indicates that the trial court failed to ask potential jurors whether they understood and

accepted the fourth principle of Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), that the

defendant’s failure to testify cannot be held against him. The defendant argues that this error is

reversible under the plain error doctrine because the evidence was closely balanced. The State

-9- acknowledges the error, but argues that it was not reversible error because the evidence was not

closely balanced. As we have already found that the evidence was not closely balanced, we find

that the trial court’s failure to ask the jurors whether they understood and accepted the fourth

Rule 431(b) principle was not reversible error.

¶ 23 The defendant argues, and the State concedes, since we are upholding the attempted first

degree murder conviction, the aggravated battery with a firearm and aggravated battery of a child

convictions should be vacated under one-act, one-crime principles. See People v. Sullivan,

(convictions for less serious offenses must be vacated because multiple

convictions are improper if they are based on the same physical act).

¶ 24 CONCLUSION

¶ 25 The attempted first degree murder conviction is affirmed, and the convictions for

aggravated battery with a firearm and aggravated battery of a child are vacated.

¶ 26 Affirmed in part and vacated in part.

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