{ "id": 3318333, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE VARNADO, Defendant-Appellant", "name_abbreviation": "People v. Varnado", "decision_date": "1978-10-31", "docket_number": "No. 77-137", "first_page": "413", "last_page": "420", "citations": [ { "type": "official", "cite": "66 Ill. App. 3d 413" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "207 N.E.2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2841109 ], "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0441-01" ] }, { "cite": "201 N.E.2d 425", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "31 Ill. 2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2834223 ], "year": 1965, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0236-01" ] }, { "cite": "35 Ill. 2d 208", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5379439 ], "year": 1964, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0208-01" ] }, { "cite": "350 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 984", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2803821 ], "pin_cites": [ { "page": "994" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0984-01" ] }, { "cite": "356 N.E.2d 1274", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2725295 ], "weight": 2, "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0283-01" ] }, { "cite": "366 N.E.2d 950", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 751", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3387200 ], "pin_cites": [ { "page": "754" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0751-01" ] }, { "cite": "346 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 615", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2716700 ], "pin_cites": [ { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0615-01" ] }, { "cite": "364 N.E.2d 506", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 485", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5638725 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0485-01" ] }, { "cite": "296 N.E.2d 48", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 112", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2929333 ], "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0112-01" ] }, { "cite": "317 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill. App. 3d 938", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2943903 ], "pin_cites": [ { "page": "945" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/22/0938-01" ] }, { "cite": "373 N.E.2d 583", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3422167 ], "year": 1974, "pin_cites": [ { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0809-01" ] }, { "cite": "308 N.E.2d 261", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 746", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2509277 ], "pin_cites": [ { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0746-01" ] }, { "cite": "333 N.E.2d 36", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 1044", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621410 ], "year": 1974, "pin_cites": [ { "page": "1048" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/1044-01" ] }, { "cite": "350 N.E.2d 326", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 373", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5382103 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0373-01" ] }, { "cite": "320 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "59 Ill. 2d 328", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2957947 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/59/0328-01" ] } ], "analysis": { "cardinality": 815, "char_count": 16671, "ocr_confidence": 0.892, "pagerank": { "raw": 1.730397813651887e-07, "percentile": 0.7053019307303244 }, "sha256": "599dd9919d9f94ba7c87408d097e88d8c495873322418860437c515087e9a953", "simhash": "1:b2b2a9846544afe5", "word_count": 2721 }, "last_updated": "2023-07-14T21:04:20.946597+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE VARNADO, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE PERLIN\ndelivered the opinion of the court:\nDefendant, Eugene Varnado, in a bench trial was found guilty of the murder of Hazel Durham and was sentenced to serve from 25 to 50 years in the Illinois State Penitentiary. Defendant appeals.\nThe issues presented for review are (1) whether the State proved beyond a reasonable doubt that defendant was sane at the time of the commission of the offense and (2) whether the trial court\u2019s decision to exclude evidence contained in a letter written by defendant to his mother was an abuse of discretion.\nWe affirm.\nThe following facts were adduced by stipulation: In early September 1972 the victim, Hazel Durham, leased a room to the defendant, Eugene Varnado. Defendant\u2019s whereabouts were thereafter unknown until he was arrested in San Francisco on September 24, 1972. At approximately 10:30 p.m. on September 14, 1972, Max Terrell, another tenant of Mrs. Durham, found a set of the landlady\u2019s keys under a blanket on the bed in his room. Terrell noticed Mrs. Durham\u2019s car was not parked outside, and he assumed she was not at home. Before leaving for work the next morning, Terrell noticed Mrs. Durham\u2019s car was still missing. On his way to work he tried to reach Mrs. Durham by telephone to ask about the keys but found her line continuously busy. Fearing that something was amiss, Terrell called police. He then met two Chicago police officers, Stack and Cunningham, at Mrs. Durham\u2019s home. They discovered Mrs. Durham\u2019s body in the living room, and it appeared that her throat had been slashed. The room was in disarray, and a television set, stereo equipment, a camera and various other items belonging to the victim were missing.\nOn September 22, 1972, the victim\u2019s car was discovered abandoned in St. Louis, Missouri. Mrs. Durham\u2019s television set, stereo equipment and camera were retrieved from the vehicle along with a suitcase and briefcase containing defendant\u2019s name.\nOn September 24, 1972, investigators Sykes and Crump of the Chicago Police Department were informed by defendant\u2019s mother, Mrs. Varnado, that defendant was in San Francisco. Mrs. Varnado told police that defendant had asked her to purchase a prepaid airline ticket from San Francisco to Chicago for him under the name of Charles White. Defendant was arrested as he attempted to board the plane in San Francisco. At the San Francisco police station defendant gave a lengthy tape recorded statement detailing the murder and his subsequent flight from the scene to avoid capture by police. On October 1, 1972, Officers McCabe and Kenny of the Chicago Police Department transported defendant and defendant\u2019s taped confession back to Chicago.\nAfter the State presented its case, defendant raised the affirmative defense of insanity. Dr. Kelleher, Director of the Psychiatric Institute of the circuit court of Cook County, testified on defendant\u2019s behalf. Dr. Kelleher examined defendant on three separate occasions totaling four hours: March 15,1974, and April 1,1975, to determine defendant\u2019s fitness to stand trial, and July 23, 1975, to determine defendant\u2019s mental state.\nDr. Kelleher concluded that on the date of the murder defendant was suffering from a mental illness to such an extent that he was unable to appreciate the criminality of his behavior and was unable to conform his behavior to the requirements of the law. In reaching his conclusions, Dr. Kelleher relied on his examinations of the accused, discussions with defendant\u2019s mother, various psychological tests given to defendant, the report of another psychiatrist, Dr. Malek, the police report and defendant\u2019s confession given to the San Francisco police.\nDr. Kelleher stated that defendant belonged to the Black Muslim organization, but that his ideas on the religion were fanatical and \u201cmixed with delusions.\u201d The doctor termed defendant\u2019s illness a \u201cparanoid type of psychosis\u201d in that defendant was suffering from delusions and \u201cpossibly hallucinations of persecutory nature.\u201d The doctor also stated that defendant acted under the false belief that his landlady was extremely harmful to him. Dr. Kelleher concluded that because of these delusions, defendant was \u201cforced to kill Mrs. Durham,\u201d but the doctor acknowledged that the fact that defendant told the San Franciso police that he contemplated for ten minutes whether or not to kill Mrs. Durham was inconsistent with the doctor\u2019s theory that defendant was \u201cforced\u201d to commit murder. Dr. Kelleher also acknowledged that defendant\u2019s flight from the scene after placing the victim\u2019s keys in Terrell\u2019s room could be interpreted as defendant\u2019s desire to avoid capture and to shift suspicion to another person.\nDr. Bernard Rubin, a psychiatrist, psychoanalyst and law professor at Northwestern University Law School, testified in rebuttal that he examined defendant on October 8, 1975. Dr. Rubin concluded that although defendant suffered from a mental illness at the time of the offense, the illness did not preclude defendant from appreciating the criminality of his conduct or conforming his conduct to the requirements of the law. Dr. Rubin based his conclusions on his examination of defendant, his reading the reports of Doctors Kelleher, Malek and Schlensky of the Psychiatric Institute of Cook County, psychological reports on defendant, the police report and on defendant\u2019s confession.\nDr. Rubin determined that defendant did not suffer from any hallucinations. He stated that although defendant may have suffered from a delusion at the time he attacked Mrs. Durham, it was not a \u201ccompelling delusion\u201d which would deprive him of control over his behavior. Defendant planned much of his activity and had the capacity to determine his actions.\nOfficer Russell Ahlgrim of the San Francisco Police Department testified that he conversed with defendant and observed his demeanor. It was his opinion that defendant was not suffering from a mental disease on September 24, 1972. The officer expressed his opinion based on his experience as a mental health officer for 4% years and his two years in the Navy as a supervisor over corpsmen working in the mental ward at Bethesda Naval Hospital.\nSan Francisco police officer Donald Hanson testified that he was present when defendant made his tape recorded confession. It was his opinion that on September 24,1972, defendant appeared \u201clucid, rational, in control of his faculties,\u201d and that defendant could appreciate the criminality of his conduct.\nJohn McCabe, the Chicago police officer assigned to transport defendant back to Chicago, testified that while aboard the plane defendant told McCabe that he placed items belonging to Mrs. Durham in Max Terrell\u2019s room in order to shift the blame for the murder upon Terrell. Officer McCabe also testified that in his opinion defendant on October 1, 1972, was not mentally ill, and defendant could conform his conduct to the requirements of the law.\nMrs. Varnado testified that two or three days after September 12, 1972, defendant telephoned her and asked how she was feeling. When Mrs. Varnado told her son that she was ill, he stated, \u201cWell, that\u2019s good, that\u2019s good.\u201d Defendant also telephoned his mother on September 24, 1972, and admitted killing Mrs. Durham. Defendant told his mother, \u201cI was ordered by God to do it,\u201d and \u201cNo, mama, I can\u2019t give myself up. Because I am at war, and you have to understand that.\u201d Mrs. Varnado stated that she received a letter from defendant dated October 4, 1972. When defense counsel sought to introduce the letter into evidence, the court ruled the letter should be excluded because there had been a violation of the discovery rules.\nMrs. Varnado stated that during September 1972 defendant\u2019s behavior was \u201cstrange\u201d and \u201cdisturbing,\u201d and she did not think \u201che knew what he was doing.\u201d She also expressed the opinion that defendant was suffering from a \u201cmental illness\u201d at the time of the murder.\nAt the conclusion of the evidence the court directed the prosecutor and defense counsel to prepare written legal memoranda on the issue of defendant\u2019s sanity. The court determined defendant was sane beyond reasonable doubt at the time of the murder, and that defendant was guilty of murder.\nI\nDefendant contends the State failed to prove beyond a reasonable doubt that he was sane at the time of the commission of the crime. It is a general rule that all men are presumed sane, but when evidence raises a doubt as to a defendant\u2019s sanity at the time an offense is committed, the affirmative defense of insanity is placed in issue. (People v. Redmond (1974), 59 Ill. 2d 328, 320 N.E.2d 321.) Once the defense is raised, the presumption of sanity ceases, and the State must establish defendant\u2019s sanity beyond a reasonable doubt. People v. Ellis (5th Dist. 1976), 39 Ill. App. 3d 373, 350 N.E.2d 326.\nDefendant asserts that the expert testimony of Dr. Kelleher was sufficient to raise reasonable doubt as to defendant\u2019s sanity at the time of the offense. Dr. Kelleher concluded defendant was suffering from a mental illness to such an extent that he was unable to appreciate the criminality of his behavior or to conform his conduct to the requirements of the law. Section 6 \u2014 2(a) of the Criminal Code of 1961 provides:\n\u201cA person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.\u201d (Ill. Rev. Stat. 1975, ch. 38, par. 6 \u2014 2(a).)\nDr. Kelleher stated that defendant suffered from \u201cauditory hallucinations\u201d which caused defendant to believe that God told him that Mrs. Durham was harmful to him, thereby \u201cforcing\u201d defendant to kill her. However, Dr. Kelleher admitted that the fact defendant waited in the victim\u2019s room for ten minutes contemplating whether or not to kill her was inconsistent with his own theory. On cross-examination Dr. Kelleher acknowledged that the fact that defendant placed the victim\u2019s keys in another tenant\u2019s room could be interpreted as a desire by defendant to shift suspicion to the other tenant. Dr. Kelleher also acknowledged that defendant\u2019s flight from the murder scene could indicate that defendant knew the murder was wrong.\nWeight to be given an expert\u2019s opinion is to be measured in part on factual details which he marshals in support of his opinion. (People v. Greenfield (4th Dist. 1975), 30 Ill. App. 3d 1044,1048,333 N.E.2d 36.) The court was not obliged, as a matter of law, to accept the opinion of Dr. Kelleher that defendant was insane. People v. Banks (1st Dist. 1974), 17 Ill. App. 3d 746, 755, 308 N.E.2d 261.\nDefendant also contends that the testimony of Mrs. Varnado was sufficient to raise a reasonable doubt of defendant\u2019s sanity. Mrs. Varnado testified that she spoke with defendant two or three days after the killing, that defendant acted \u201cstrange\u201d and his conduct was very \u201cdisturbing\u201d to her. Testimony that a defendant\u2019s conduct was \u201cdisturbing\u201d or \u201cbizarre\u201d falls far short of portraying a serious mental condition or a substantial history of mental illness. (People v. Jackson (1st Dist. 1978), 57 Ill. App. 3d 809, 815, 373 N.E.2d 583.) Also, evidence of idiosyncratic behavior, irresponsible conduct, unrealistic judgments or the commission of atrocious crimes does not alone justify reasonable doubt of sanity. People v. Harrington (2d Dist. 1974), 22 Ill. App. 3d 938, 945, 317 N.E.2d 161.\nDefendant asserts the police officers\u2019 testimony that defendant exhibited rational conduct should not have been considered by the court. He cites defendant\u2019s adoption of the name \u201cMohammed Allah\u201d as convincing evidence of defendant\u2019s irrational behavior. Defendant alleges it was error for the court not to take judicial notice of the fact that when defendant referred to himself as \u201cMr. Allah,\u201d he was referring to himself as \u201cMr. God.\u201d The record reflects defendant never requested the court to judicially note that \u201cAllah\u201d in Arabic is the functional equivalent of the word \u201cGod.\u201d A party desiring to have a fact judicially noticed should bring the matter to the attention of the trial court on the record. A court is not required to take judicial notice without a proper request to do so. (People v. Clifton (3d Dist. 1973), 11 Ill. App. 3d 112, 114,296 N.E.2d 48.) Whether by using his adopted name defendant meant to refer to himself as \u201cGod\u201d is pure speculation and thus it appears not an appropriate subject for judicial notice.\nThe court\u2019s determination that the State proved defendant sane beyond a reasonable doubt was not against the manifest weight of the evidence. A reviewing court will not disturb the court\u2019s finding of sanity unless it was so manifestly against the weight of the evidence as to indicate the finding was based on passion or prejudice. People v. Rennert (1st Dist. 1977), 49 Ill. App. 3d 485, 364 N.E.2d 506.\nII\nDefendant contends the trial court abused its discretion in rejecting defendant\u2019s exhibit No. 3, a letter dated October 4,1972, allegedly written by defendant to his mother. Defense counsel sought to introduce the letter into evidence during the surrebuttal portion of defendant\u2019s case. The court ruled defendant\u2019s exhibit No. 3 should be excluded on the grounds that defendant failed to comply with the State\u2019s request for discovery under the Supreme Court Rules. Under Supreme Court Rule 415(b) (Ill. Rev. Stat. 1975, ch. 110A, par. 415(b)) both the prosecutor and defense counsel have a continuing duty to disclose discoverable material if it comes to the attention of either party after pretrial discovery has been completed. (People v. Shegog (3d Dist. 1976), 37 Ill. App. 3d 615, 618,346 N.E.2d 208.) Under Supreme Court Rule 415(g)(i) (Ill. Rev. Stat. 1975, ch. 110A, par. 415(g) (i)) the trial court is authorized to exclude evidence for failure to comply with a discovery rule. People v. Douthit (5th Dist. 1977), 51 Ill. App. 3d 751, 754, 366 N.E.2d 950.\nDefendant cites People v. Rayford (5th Dist. 1976), 43 Ill. App. 3d 283, 356 N.E.2d 1274, to support his contention that the court\u2019s ruling that the letter should be excluded was an abuse of discretion. In Rayford defense counsel informed the prosecutor and the court immediately after he became aware of the existence of a witness. The court in Rayford concluded that under such circumstances, defense counsel\u2019s conduct fell \u201cfar short of the flagrant violation which might justify the use of such a drastic measure as exclusion.\u201d 43 Ill. App. 3d 283, 287.\nIn the instant case the record reflects that Mrs. Vamado had defendant\u2019s letter in her possession for almost three years, and defense counsel had knowledge of the letter\u2019s existence at least one week before he sought its introduction. Despite this knowledge, defense counsel never informed the prosecutor or the court of the letter\u2019s existence. Under the circumstances in this case, the trial court did not abuse its discretion in rejecting defendant\u2019s last minute attempt to introduce evidence which was never made available to the prosecution. People v. Middleton (1st Dist. 1976), 38 Ill. App. 3d 984, 994, 350 N.E.2d 223.\nFurthermore, defendant\u2019s failure to raise the issue in a written motion for a new trial constitutes a waiver of that issue, and it cannot be urged as a ground for reversal on review. (People v. Le May (1966), 35 Ill. 2d 208, 212, 220 N.E.184; People v. Touhy (1964), 31 Ill. 2d 236, 240, 201 N.E.2d 425.) Since defendant did not raise the issue of the court\u2019s ruling that defendant\u2019s exhibit No. 3 should be excluded in his written post-trial motion, it is deemed waived. See People v. Irwin (1965), 32 Ill. 2d 441, 443, 207 N.E.2d 76.\nFor the foregoing reasons we find no reversible error.\nAffirmed.\nSTAMOS, P. J., and BROWN, J., concur.\nPrior to Dr. Kelleher's examinations, defendant was examined on numerous occasions in 1973 by the staff at the Psychiatric Institute. Defendant remained in Cook County Jail throughout the period of these examinations.\nDr. Malek was on the staff of Dr. Kelleher at the Psychiatric Institute in 1973. Dr. Malek\u2019s conclusions as to the nature of defendant\u2019s mental disease differed from those of Dr. Kelleher. The record does not disclose, however, Dr. Malek\u2019s opinion as to defendant\u2019s fitness to stand trial.", "type": "majority", "author": "Mr. JUSTICE PERLIN" } ], "attorneys": [ "Cornelius E. Toole, of Chicago, for appellant.", "Rernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Kenneth T. McCurry, and Margaret K. Stanton, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE VARNADO, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 77-137\nOpinion filed October 31, 1978.\nCornelius E. Toole, of Chicago, for appellant.\nRernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Kenneth T. McCurry, and Margaret K. Stanton, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0413-01", "first_page_order": 435, "last_page_order": 442 }