{ "id": 12142724, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY DUNIGAN, Defendant-Appellant", "name_abbreviation": "People v. Dunigan", "decision_date": "1981-05-22", "docket_number": "No. 79-120", "first_page": "799", "last_page": "829", "citations": [ { "type": "official", "cite": "96 Ill. App. 3d 799" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "400 U.S. 845", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12079297, 12079621, 12079910, 12079742, 12079692, 12079217, 12079346, 12079986, 12079475, 12079826, 12079261, 12079390 ], "opinion_index": 0, "case_paths": [ "/us/400/0845-03", "/us/400/0845-07", "/us/400/0845-11", "/us/400/0845-09", "/us/400/0845-08", "/us/400/0845-01", "/us/400/0845-04", "/us/400/0845-12", "/us/400/0845-06", "/us/400/0845-10", "/us/400/0845-02", "/us/400/0845-05" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "307 N.E.2d 188", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. App. 3d 1006", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2522748 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/1006-01" ] }, { "cite": "45 N.E.2d 849", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "381 Ill. 330", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2559026 ], "opinion_index": 0, "case_paths": [ "/ill/381/0330-01" ] }, { "cite": "395 N.E.2d 1106", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1110" }, { "page": "1110" } ], "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 253", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3175244 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0897-01" ] }, { "cite": "287 N.E.2d 465", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "52 Ill. 2d 170", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395792 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/52/0170-01" ] }, { "cite": "418 U.S. 683", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174416 ], "weight": 3, "pin_cites": [ { "page": "699-700" }, { "page": "1058-59" }, { "page": "3103" } ], "opinion_index": 0, "case_paths": [ "/us/418/0683-01" ] }, { "cite": "476 F.2d 324", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2262228 ], "opinion_index": 0, "case_paths": [ "/f2d/476/0324-01" ] }, { "cite": "388 U.S. 14", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167274 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "23" }, { "page": "1025" }, { "page": "1925" } ], "opinion_index": 0, "case_paths": [ "/us/388/0014-01" ] }, { "cite": "99 S. Ct. 173", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "58 L. Ed. 2d 165", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "439 U.S. 858", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11382786, 11382851, 11382661, 11383078, 11382917, 11382984, 11382601, 11382736, 11382483, 11383187, 11382549, 11382421, 11383127, 11383034 ], "opinion_index": 0, "case_paths": [ "/us/439/0858-07", "/us/439/0858-08", "/us/439/0858-05", "/us/439/0858-12", "/us/439/0858-09", "/us/439/0858-10", "/us/439/0858-04", "/us/439/0858-06", "/us/439/0858-02", "/us/439/0858-14", "/us/439/0858-03", "/us/439/0858-01", "/us/439/0858-13", "/us/439/0858-11" ] }, { "cite": "370 N.E.2d 1111", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 379", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3408739 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0379-01" ] }, { "cite": "328 N.E.2d 608", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 480", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5410617 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0480-01" ] }, { "cite": "91 S. Ct. 90", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "27 L. Ed. 2d 81", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "256 N.E.2d 823", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "827" } ], "opinion_index": 0 }, { "cite": "44 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2889784 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0550-01" ] }, { "cite": "354 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 832", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2964754 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0832-01" ] }, { "cite": "359 N.E.2d 487", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 752", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2895988 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0752-01" ] } ], "analysis": { "cardinality": 2364, "char_count": 75712, "ocr_confidence": 0.904, "pagerank": { "raw": 3.719586435863583e-07, "percentile": 0.8937858925365919 }, "sha256": "19937c0bcd4271ad3cce277e44b7c1bbb8bb6714c6daf4b776c905bb89eceb32", "simhash": "1:aee8d88777c89cc7", "word_count": 12525 }, "last_updated": "2023-07-14T16:31:40.709125+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SULLIVAN, P. J\u201e and MEJDA, J., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY DUNIGAN, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE LORENZ\ndelivered the opinion of the court:\nFollowing a jury trial, defendant was convicted of attempt murder (Ill. Rev. Stat. 1977, ch. 38, pars. 8 \u2014 4,9\u20141), rape (Ill. Rev. Stat. 1977, ch. 38, par. 11 \u2014 1), aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 \u2014 4) and burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19 \u2014 1). He was sentenced to concurrent terms of 6 to 18 years for the attempt murder of Agnes Silverstein, 100 to 300 years for her rape, 3 to 9 years for the aggravated battery of her husband, Leo Silverstein, and 5 to 15 years for the burglary of their apartment.\nDefendant appeals and raises the following issues: (1) whether he was entitled to a substitution of judges after the judge had ex parte communications with government attorneys prior to trial and with the victims of the crime prior to sentencing; (2) whether the trial judge was required to recuse himself from hearing defendant\u2019s motion for substitution of judges; (3) whether the trial court properly restricted his access to intelligence information contained in the Chicago Police Department\u2019s \u201cRed Squad Files\u201d; (4) whether he was denied his constitutional rights to compulsory process and due process of law (U.S. Const., amends. VI, XIV), when the trial court quashed his subpoenas for evidence and denied him a continuance to prepare for his defense; (5) whether the trial court properly ruled that a lay witness could not render an opinion as to the existence of defendant\u2019s mental illness or defect; (6) whether the trial court erred in ruling that a lay witness could not offer an opinion as to defendant\u2019s sanity based upon observations 10 and 16 months after the crime; (7) whether the evidence at trial was sufficient to raise a reasonable doubt as to defendant\u2019s sanity and therefore justify the tender of an insanity instruction to the jury; (8) whether the jury was properly instructed on the \u201cautomatism\u201d defense; (9) whether the trial court correctly found a lay witness incompetent to testify concerning defendant\u2019s ability to \u201cformulate a conscious objective\u201d and to perform \u201cconscious volitional acts\u201d; (10) whether the jury was properly instructed on defendant\u2019s theories of defense; (11) whether the trial court\u2019s oral directions to the court reporter to strike and to the jury to disregard evidence of defendant\u2019s sanity were required to be in writing; (12) whether the trial court erred in denying defendant\u2019s motion for a mistrial in response to certain notes from the jury during their deliberations; (13) whether defendant\u2019s sentence for rape is excessive. The relevant facts follow.\nOn Christmas morning, 1970, at about 11:30 a.m., Robert McPhet-erain, a doorman at the John Hancock Building in Chicago, was on duty. He noticed a black man enter the lobby and approach the \u201cmarquee.\u201d The man wore a black \u201cZorro\u201d hat, a black three-quarter length coat, a black vest, dark pants, black boots and wire rimmed glasses. He had a \u201cfine\u201d moustache and facial hair in the area of his chin. At trial, McPheterain identified a picture of defendant as the man he saw that morning.\nThe man examined the building directory for about 15 minutes, then dialed a number on one of the building phones. When McPheterain approached him, he requested entry to deliver a telegram to apartment 6808, the \u201cEthnic Press.\u201d McPheterain called the occupant of that apartment and was told not to admit the man unless he produced a telegram. The man fumbled through a small black book, but could not find the telegram, stating that he had apparently left it outside in the car. The doorman watched the man as he left the lobby and walked west on Delaware to Michigan, south on Michigan to Chestnut and then east toward Seneca. McPheterain testified that he knew this man was not the regular messenger for this building.\nLater, at about 1 that afternoon, Leo Silverstein and his wife Agnes returned from Holy Name Cathedral to 860 N. De Witt, Chicago. They took the elevator to their apartment on the 19th floor. As they reached their apartment they were accosted by a black man carrying a black leather coat over his arm and wearing a large black hat. The Silversteins both identified this man in court as the defendant. He put a gun to the back of Leo Silverstein\u2019s head, and said \u201cIf you make any noise I\u2019m going to kill you both.\u201d He then forced them into their apartment and closed the door, attached the chain, and removed his hat and glasses.\nAt gunpoint, he ordered them into the bedroom where he closed the door and pulled the shade. He ordered them to strip. Agnes Silverstein pleaded with the man to leave them alone. He told her husband to make her \u201cshut up\u201d or he would blow his head off and \u201cput the brains\u201d in front of her. He then hit her husband over the left eye. Then, he ordered him to lie on the floor on his stomach, and he tied his legs and his hands behind his back. As he was doing so, Agnes Silverstein attempted to grab the gun which had been placed on the bed. They struggled, but the assailant gained control of the weapon. He ordered her to lie down and he tied her hands together. As she lay a few feet away from her husband, the man raped her, taunting her husband with remarks like, \u201cHow do you feel somebody doing this to your wife, doesn\u2019t it make you sick,\u201d and \u201cdoesn\u2019t this make you want to fight.\u201d\nAfter he finished the rape, he tied her feet together. He then ordered her and her husband to crawl to opposite sides of the bedroom. Then he replaced the bullet clip on his gun with a larger one and threatened to kill a lot of people if they were disturbed. Agnes Silverstein continued to plead for their lives, but stopped when the man told her husband to keep her quiet. He struck her husband with his fist in the mouth and in the groin area.\nThe assailant asked Leo Silverstein his name and occupation. When he told him he was in the real estate business, the man asked why white people lived in high rise buildings and poor black people had to live in areas like Cabrini Green. When he discovered that Agnes Silverstein was German, he said that the only good thing Hitler did was to kill all the Jews. During this time, he spoke to them in a normal, conversational tone, and appeared cool and coherent. Then, the phone rang and he cut the telephone wires. He continued to beat them and pretended to stab Leo Silverstein in the head with a letter opener, but hit him in the chest instead with his fist and the handle.\nHe left and returned to the room several times. On one occasion he returned with roast beef from the kitchen. He ate several pieces of the meat which he cut off with a long knife, saying at the same time how he enjoyed it along with the jello he had found. Later, he came back with a bottle of Scotch. After drinking from the bottle he poured some over the victims. Then, he attempted to suffocate Agnes Silverstein with pillows, but was not successful. He drew swastikas on the bedroom mirror and circles on the door with lipstick and went through the pockets of their clothing, boasting that he had more money than they.\nAt about dusk, after he had been in the apartment for about four hours, he forced his penis into the woman\u2019s mouth. He then raped her again. Later, he punched her in the nose when he heard her talking, and stuffed a gag into her mouth. He tightened the bindings on her hands so that they cut into her flesh. He then rebound her husband\u2019s hands with a lamp cord. After putting on rubber gloves, the assailant wiped off various things in the apartment that he had touched. He also took a knife, grabbed her husband\u2019s penis and \u201cmassaged\u201d it a little. Suddenly, he grabbed the gun and left the room.\nHe chased Agnes Silverstein, who had freed the ties from her feet and run out of the bedroom to the front door. She was unable to detach the chain, however, because her hands were so securely bound. The assailant was unable to pull her back to the bedroom because her husband had shut and locked the bedroom door, broken the window and called for help.\nThe assailant told her he would kill her for this. She pleaded with him, but he shot her in the head behind the left ear. Although she was wounded and bleeding, she crawled to the bedroom, calling her husband and scratching on the bedroom door. He pulled her in, locked the door and cut the ties from her wrists.\nAt about 4:30 p.m. traffic patrolman Roland Harvey heard someone screaming for help. He saw a window shade flapping in a building on the northwest corner of De Witt and Chestnut. He ran to the building, and with the doorman went to apartment 1902 where they gained entry by using the doorman\u2019s pass key. He saw large amounts of blood splattered on the walls and the floor of the apartment. A black hat lay on the floor near the bedroom door. Leo Silverstein was calling for help from the bedroom, but he would not open the door until he recognized the doorman\u2019s voice. When the door was opened they found Agnes and Leo Silverstein naked on the floor. There was a pool of blood near her head and her husband was also bleeding from the head. After he gave Officer Harvey a description of the offender, the Silversteins were taken to the hospital in an ambulance.\nAt about 6 a.m. the following day, Michael Motch, an area resident, noticed something \u201cglittering\u201d, in an areaway between his building at 65 E. Oak Street and the adjoining building. He saw a 9-millimeter Browning automatic pistol with a long bullet clip lying under pieces of plywood. He turned the gun over to the police. Their investigation revealed that it was registered to defendant. A firearm expert\u2019s examination of this gun revealed that the loaded weapon\u2019s magazine carried 9 hollow-point bullets and one fully jacketed bullet. The bullet recovered from the Silverstein\u2019s apartment was a hollow-point bullet. However, it was too mutilated to determine whether it was fired from the recovered pistol. A cartridge casing recovered at the apartment, however, was found to have been fired from defendant\u2019s gun. None of the fingerprints found at the apartment matched those of defendant. Along with the fired bullet and cartridge casing, police recovered several knives, an ammunition clip, a small black notebook, a black hat, glasses and a black leather coat.\nSubsequently, Leo Silverstein positively identified a picture of defendant from a number of photographs shown to him by the police. A warrant issued for defendant\u2019s arrest, but the police were unable to find him.\nOn July 12, 1976, Kurt Jensen, a police officer in Copenhagen, Denmark, arrested defendant there for having over-stayed his three-months visa. Defendant, who was using a Canadian passport under the name of \u201cLark Daniel Anderson\u201d was deported to the United States and turned over to local authorities.\nOn August 9, 1976, both victims viewed a six man lineup and immediately recognized defendant as the person who had assaulted them.\nThe following evidence was introduced on defendant\u2019s behalf.\nPatricia Brown met defendant in New York City in August or September of 1971 and knew him as \u201cBilly Hinton.\u201d They had an \u201cemotional\u201d relationship and she was \u201cin love\u201d with him. During this relationship she testified that defendant complained of severe headaches, and would fall asleep afterwards for long periods of time. Defendant later told her that he did not remember anything that happened during the headaches. He neither took medication nor saw a doctor for these headaches.\nOne evening in October of 1971, she had defendant and some friends over for dinner. He was particularly quiet that night and did not eat. After dinner, she found that defendant, who insisted upon doing the dishes, had swept everything off the kitchen table including the dishes, with his hand. When she screamed at him and asked what he was doing, he responded by screaming and banging his head against the wall. He then slept for 12 to 14 hours, and later only remembered the headaches.\nIn the spring of 1972, during a four-day sleepless period, defendant told her that he feared for her life and that the mob would \u201cget\u201d him. He also expounded on the evils of dope pushers. After these four days he slept for a long time after experiencing a headache. Defendant claimed that he only remembered the headaches. During their relationship, he was secretive about his past and never informed her of his wife and children. Defendant told her that he was a writer, and that he was running from \u201cthe mob\u201d.\nDiane Pratt, an urban planner for the city of Chicago, testified that she met defendant late in 1968. At that time, he was lecturing with the Black Panther Party at Barat College in Lake Forest, Illinois. She was not romantically involved with defendant. After the deaths of Fred Hampton and Mark Clark, defendant\u2019s behavior changed. He started asking friends to sample his food and drink before him because the government was putting \u201cdope\u201d in them.\nEarly in December of 1970, she and defendant were at a party following a rally at a hospital at which defendant had given a speech requesting medical supplies. Shortly after the party started, he began to address the people at the party as if they were the hospital staff. When the people teased him, he called them greedy doctors and dope peddlers. Although defendant seemed coherent, his behavior was \u201ctotally out of context with the situation.\u201d Later, he seemed to be in pain. Biting on a handkerchief, he told her that he was having a headache. After sleeping, defendant had no recollection of the \u201cspeech\u201d he had given at the party.\nAbout two weeks later, Pratt met defendant at the Tap Root Pub with some other friends for dinner. He refused to accompany her inside, fearing \u201cpolice spies\u201d. When she tried to persuade him to go in, he uncharacteristically jerked away very harshly. In her opinion, he had \u201ca breakdown of some sort\u201d and seemed \u201ccrazy and very disoriented.\u201d She thought he was insane and unable to conform his conduct to the requirements of the law.\nDefendant testified in his own behalf. He was born in Chicago, and lived in the Cabrini Green housing project with his family from the time he was 10 years old. He was an honor student at Waller High School and was not involved in gang activities. At the age of 14, his mother lost her eyesight, and he stayed home quite a bit to care for her and the children while his father worked.\nIn 1961 or 1963, defendant felt in jeopardy because of his race. His family would drive to Mississippi in the summer, and when they stopped at gas stations, his father\u2019s demeanor would change. Defendant was confused by this behavior at first, but later determined that people were different in Mississippi and that his father\u2019s actions were for his safety.\nWhen he was about 19, he met the woman who was to become his wife. She became pregnant and they married against his family\u2019s wishes, since he felt that men should not abandon women. He quit school during his senior year of high school to get a job. Subsequently, he re-enrolled in school, passed the G.E.D test and worked for the Chicago Committee on Urban Opportunity. He enrolled in a work-study program at Northeastern University and worked as a cameraman.\nShortly after he joined the Black Panther Party in November of 1968, defendant and his wife agreed to separate for the safety of the family, and to move the children into his mother-in-law\u2019s house. He testified that he had some \u201cinteresting encounters\u201d with the police around this time, including an incident that happened while walking from the subway with his wife. He was stopped by an unmarked squad car, handcuffed, placed in the car and then released a few blocks away.\nDefendant was indicted with 16 other Black Panther members in the spring of 1969. He \u201cwasn\u2019t clear\u201d about the charges and was forced to go \u201cunderground\u201d to avoid the police. At this time, defendant was \u201cCaptain of Security\u201d of the Black Panther Party, a position he shared with William O\u2019Neal. It was defendant\u2019s duty to protect the lives of the members of the central staff.\nWhen he surfaced in May of 1970, he learned that his wife had become a heroin addict. The rules of the Black Panther Party were that drugs and intoxicants were forbidden. He shared this belief and fought against drugs and drug dealing in the community. At this time, the Party had split into two factions, a militant group headed by O\u2019Neal, and a reformist group which was working with the \u201cbreakfast for children\u201d programs and with a medical center. Defendant was a member of the latter faction despite recruitment efforts by O\u2019Neal to join the violent group. In about July of 1970, he purchased a 9-millimeter Browning automatic handgun to protect himself and his family from the police. During this period, O\u2019Neal told defendant that drug dealers should be \u201chit\u201d and gave him addresses where they lived. O\u2019Neal pointed out to him the building at 860 N. De Witt and the Hancock Building, but did not mention apartment 1902, the Silversteins\u2019 home. Since he had his wife \u201cto deal with\u201d and duties with the Party, defendant did nothing with O\u2019Neal\u2019s information.\nDuring December of 1970, defendant learned that his wife had contracted hepatitis from an unclean hypodermic needle, and placed her in the hospital. He did not visit her there because it was \u201cnot safe\u201d. Later, he learned that she died of an overdose of barbituates. He thought that he discovered her death on December 24,1970, but did not go to her funeral or wake.\nDefendant corroborated the testimony of Diane Pratt and Patricia Brown concerning his loss of memory after the incidents they described. He also did not remember being at the Silversteins\u2019 apartment and did not know whether he committed the acts with which he was charged. He only recalled being at a party Christmas day and having a \u201cmigraine.\u201d After Christmas, he stayed for several months in a basement apartment where \u201cMad Peter\u201d lived. He was told about the incident in question when he lived in the apartment \u201con Willow, west of Sheffield.\u201d Two or three months after Christmas of 1970, defendant left Chicago using the names \u201cBobby Hinton\u201d and \u201cLark Daniel Anderson.\u201d\nFather Joachim Martorano, a former pastor of St. Dominick\u2019s Church located in the Cabrini Green area, testified that he knew defendant when he worked there from 1963 to 1973. Defendant\u2019s reputation for truthfulness in the community was good and he was respected and dependable. He saw defendant every few weeks in 1970, and found that his character \u201clent to being that of an arbitrator.\u201d\nStipulations\nIt was stipulated that defendant was 29 at the time of trial; that his wife died at 8:50 p.m. on December 23, 1970, and that her death certificate admitted into evidence listed the immediate cause of death as \u201chepatitis, being insufficiency due to or as a consequence of hepatitis due to or as a consequence of barbituate intoxication self-induced.\u201d It was further stipulated that William O\u2019Neal was an informant placed in the Black Panther Party during 1968 to 1970.\nFurther relevant facts are incorporated into the discussion of the issues raised on appeal.\nOpinion\nDefendant first contends that the trial court erred in denying his motion for substitution of judges. The basis of this contention is that the trial judge should have recused himself after allegedly (1) participating in certain ex parte hearings prior to trial, and (2) socializing with the complainants between the jury\u2019s verdict and the sentencing hearing.\nOn February 1, 1978, defendant filed a motion for substitution of judges under section 114 \u2014 5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114 \u2014 5(c)), and further moved that the hearing on the motion be before another judge, since the trial judge would be called by the movant as a witness. The court denied defendant\u2019s second request, electing to preside at the hearing on the motion.\nDefendant\u2019s motion and supporting affidavit by one of his attorneys, James Young, set out that on January 6, 1978, his attorneys had subpoenaed the United States Attorney\u2019s Office and the Federal Bureau of Investigation for the production of William O\u2019Neal, a former F.B.I. infofmant who was then a relocated Federal witness. During the week of January 16, 1978, Young received notice that the U. S. Attorney would move to quash the subpoenas in accordance with a memorandum of law attached to the motion. However, no memorandum was enclosed with the notice of motion, and none was in the court file.\nAt about 9:30 a.m. on January 24,1978, when the attorney entered the chambers of the trial judge assigned to his client\u2019s case, he found Lorna Propes, the Assistant State\u2019s Attorney assigned to the case, John Gubbins, Assistant U. S. Attorney, and A. F. Di Lorenzo, an F.B.I. agent, in the room with the judge. Upon his entry into the chambers, the group\u2019s conversation abruptly ceased. Young informed Gubbins that the public defender\u2019s office had not received nor did the court file contain the memorandum of law referred to in his notice of special appearance. Gubbins tendered to counsel a copy of the memorandum, stating that it was the government\u2019s copy and that there were no other copies available for him or for his co-counsel. Young observed the trial judge reading a copy of the same memorandum.\nAt the hearing on the motion, Assistant State\u2019s Attorney Propes testified that Gubbins and Di Lorenzo came to her office on the morning in question and they proceeded to the chambers of the trial judge. After she introduced them to the judge, Gubbins handed a memorandum to him. Shortly thereafter, defense counsel entered the room.\nGubbins testified that minutes after he arrived at the chambers, he discovered that the judge had not received a copy of his memorandum with the appended applicable Federal regulations governing the testimony of Federal witnesses. Gubbins apologized, explaining that the copies had been mailed but not \u201crouted\u201d to the judge or the State\u2019s Attorney\u2019s Office. He tendered to the judge one of his few remaining copies. As the judge started reading the memorandum, defendant\u2019s attorneys walked in. At this point, Gubbins and the others had been in the chambers for about five minutes. According to both Gubbins and Di Lorenzo, the merits of the case were never discussed with the judge.\nYoung testified that he had previously received notice that a memorandum would be forthcoming concerning the motion to quash the subpoena, but that he had not received it. He did not contact the State\u2019s Attorney\u2019s Office or the U. S. Attorney\u2019s Office to ask for it. Young conceded that he had no personal knowledge of the contents of any conversation prior to entering the chambers, only that one had ceased when he arrived.\nThe trial judge, declining to formally testify, stated for the record that there were no ex parte communications and no discussions of the merits of the case. As was the custom in his courtroom, the trial judge offered coffee to Gubbins and Di Lorenzo after being introduced to them. The trial judge did not read the memorandum tendered to him because he had insufficient time to do so. Finding that defendant\u2019s motion was dilatory and based on conjecture, the trial judge denied the motion on the grounds that he was not biased.\nIllinois Supreme Court Rule 61 provides as follows:\n\u201cEx parte communications. Except as permitted by law, a judge should not permit private or ex parte interviews, arguments or communications designed to influence his judicial action in any case, either civil or criminal.\nA judge should not accept in any case briefs, documents or written communications intended or calculated to influence his action unless the contents are promptly made known to all parties.\u201d Ill. Rev. Stat. 1977, ch. 110A, par. 61(c) (16).\nDefendant relies upon this provision to support his claim that the trial judge improperly participated in a private interview with the government attorneys and accepted documents from them that were not promptly disclosed to his attorneys. Because of this alleged misconduct, defendant asserts that the trial court erred in denying his motion for substitution of judges.\nA defendant moving for substitution of judges for cause has the burden of showing prejudice which would disqualify the judge. (People v. Winchell (1977), 45 Ill. App. 3d 752, 359 N.E.2d 487.) We believe that defendant has not met this burden under the facts of this case. First, according to the uncontroverted testimony at the hearing, there were no pretrial discussions between the trial judge and the others concerning the merits of the case. Defense counsel\u2019s suppositions that such a conversation had occurred prior to his arrival at the judge\u2019s chambers are not sufficient to warrant the judge\u2019s recusal. Moreover, we find that the memorandum was not secretly furnished to the trial judge in an effort to influence his actions. It was only through an administrative mishap that the defense counsel did not originally receive a copy of the memorandum. Gubbins had given Young notice that the memorandum would be filed, and tendered him a copy immediately upon discovering that he had not received one. Apparently, the trial judge began to peruse the memorandum handed him by Gubbins, but had no time to fully read its contents. However, regardless of whether the trial judge read the memorandum in part or in its entirety before defendant\u2019s attorneys arrived, its contents were not discussed and no efforts were made to conceal it from defendant or his attorneys. In short, defendant suffered no prejudice simply because the memorandum reached the judge\u2019s hands moments before his attorney received a copy. We now turn to the second incident allegedly requiring the trial court\u2019s recusal.\nPrior to sentencing, defendant moved that the trial judge withdraw from any further proceedings in the case. The basis for this request was that the judge had \u201cjoined socially\u201d with the victims of the crime on March 17, 1978, at a local tavern after a verdict had been reached. The trial court\u2019s recollection of the evening of March 17, however, sheds a different light on defendant\u2019s allegations. According to the judge, he stopped briefly at a local tavern at the invitation of one of the Assistant State\u2019s Attorneys after the return of the jury\u2019s verdict. While having a \u201ctomato juice\u201d the victims, Leo and Agnes Silverstein, stopped at his table for a few moments, discussed \u201cgeneralities\u201d and then left. The judge did not know that the Silversteins would be at the tavern that evening, and stated that he did not discuss defendant\u2019s sentence or the outcome of the case with them or with anyone else. One of the Assistant State\u2019s Attorneys also present verified that nothing was discussed concerning sentencing or the merits of the case.\nDefendant asserts that the trial court\u2019s action in \u201csocializing\u201d with the victims indicated his bias toward defendant and mandated his recusal from the sentencing procedures.\nA judge must make every effort to avoid the appearance of impropriety during his activities that may reflect on his judicial conduct. Supreme Court Rule 61(c) (23) plainly states:\n\u201cSocial relations. A judge should be particularly careful to avoid any action that tends reasonably to arouse the suspicion that his social or business relations or friendships influence his judicial conduct.\u201d (Ill. Rev. Stat. 1977, ch. 110A, par. 61(c)(23).)\nPrivate communications with the public concerning a case are impermissible, since a defendant is unable to rebut information obtained from members of the public and considered by the judge. (People v. Sumner (1976), 40 Ill. App. 3d 832, 354 N.E.2d 18.) In this case, however, there was no evidence that the trial court considered or received any information from the victims at their brief, unplanned encounter. The question then becomes whether the trial judge was required to recuse himself by virtue of the meeting itself, in the absence of evidence that the case was discussed.\nIn People v. Hicks (1970), 44 Ill. 2d 550, 256 N.E.2d 823, cert. denied (1970), 400 U.S. 845, 27 L. Ed. 2d 81, 91 S. Ct. 90, a person intended to be called by the prosecution as a \u201clife and death\u201d witness in defendant\u2019s murder trial went to the judge\u2019s chambers on her own volition and requested to sit in the front of the courtroom for a suppression hearing. Prior to this occurrence, the person had voiced objections to a delay when a continuance had been granted defendant, and expressed doubt that justice would be served. This person was not called by the prosecution to testify at trial. Defendant\u2019s motion for a substitution of judges on the grounds that the judge was unduly \u201cfamiliar\u201d with, and \u201cintimidated\u201d by, the prospective witness was denied.\nThe Illinois Supreme Court in Hicks held that the judge\u2019s conversation with the person (who was also alleged to be a relative of the homicide victim) did not supply cause for his disqualification or give rise to the probability of unfairness which might affect the trial. The court stated:\n\u201cTo say that any involuntary meeting or conversation, no matter how trivial, gives rise to cause for disqualification would present too easy a weapon with which to harass the administration of criminal justice and to obtain a substitution of judges.\u201d Hicks, 44 Ill. 2d 550, 557, 256 N.E.2d 823, 827.\nWe likewise believe that the involuntary meeting that occurred between the judge and the victims of the crime did not, in itself, disqualify him from presiding at the sentencing hearing. Our review of the record reveals no malice directed toward defendant by the trial judge as a result of his contact with the Silversteins, and it is unlikely that this single event resulted in such an increased level of emotional involvement as to make prejudice likely and disqualification necessary.\nWithout citation to any published opinions, defendant contends that the trial court erred in refusing to appoint another judge to hear the motion for substitution of judges at the time of the first motion. Basically, defendant argues that he was deprived of the right to a fair and impartial hearing in that the judge\u2019s version of the incident that transpired in his chambers prior to trial was not made under oath and subject to cross-examination. Pointing to discrepancies in the judge\u2019s statement and the testimony of Gubbins concerning the judge\u2019s knowledge of the memorandum\u2019s contents, defendant states that this \u201csharply disputed\u201d incident had to be resolved by another judge.\nAt the time of trial, the statute governing the requirements for the substitution of judges \u201cfor cause\u201d provided in part, that, \u201cUpon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.\u201d (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 114 \u2014 5(c).) The reason for this rule is that the court itself is in the best position to determine whether it may be prejudiced against the defendant. (People v. Campbell (1975), 28 Ill. App. 3d 480, 328 N.E.2d 608.) Here, the trial judge determined that he was not prejudiced and had no preconceived notions about defendant, and properly denied his request for another judge to preside at the hearing. Furthermore, we find the discrepancies between Gubbins\u2019 and the trial judge\u2019s statement regarding the reading of the memorandum to be of no consequence. Simply stated, there is no prohibition against the reading of such a document in the momentary absence of all parties, especially since a copy was promptly turned over to defense counsel, and no conversation was had as to its merits. Therefore, we reject defendant\u2019s contention since we know of no authority requiring that such information be tendered to defense counsel and the trial judge at precisely the same time.\nDefendant next contends that the trial court erred in denying his motion for production of the \u201cRed Squad Files\u201d of the Chicago Police Department which dealt with surveillance of the Black Panther Party, of which defendant was a member.\nOn December 27, 1977, defendant filed a pro se discovery motion requesting a \u201ccomplete investigation of and full disclosure of all materials pertaining to him and his activities while associated with the Black Panther Party,\u201d along with \u201cother materials pertaining to his exercise of his First Amendment rights which are contained in the * \u00b0 * so called \u2018Red Squad Files.\u2019 \u201d Defendant asserted that these files were relevant since they might contain information regarding his whereabouts on the night of the crime. The trial court ordered the State to determine whether the files existed, and to turn them over to defendant if relevant. If the State found the evidence irrelevant, an in camera determination would be made by the trial court.\nOn December 29, 1977, after a public defender was appointed to represent defendant, the request for discovery was renewed. In discussing the \u201cRed Squad Files,\u201d one of the prosecutors stated that the files were then subject to a protective order issued in Federal court, and that access to them was severely limited. Nevertheless, the State pledged to attempt to arrange an inspection of the files, even though it did not plan to use any evidence from them.\nOn January 3, 1978, the State indicated that they had reviewed the files and found a statement about the warrant for defendant\u2019s arrest to be the only applicable mention of defendant; there was no information regarding surveillance of defendant, and nothing relating to his activities on the day of the crime. Three days later, the State reiterated this position, adding that defense counsel would be permitted the same opportunity to view those files.\nOn February 17, 1978, defendant stated that the files were relevant since they bolstered his claim of harassment as a Black Panther Party member, and that this constituted one of the \u201cforces\u201d which led to his insanity. The trial court made an in camera inspection and found the files to have neither materiality nor relevancy to any possible defense, and denied defendant\u2019s motion to have the contents disseminated.\nDefendant now maintains that the trial court erroneously denied him access to the files in violation of Supreme Court Rule412(i), which states:\n\u201cDenial of disclosure. The court may deny disclosure authorized under this rule and Rule 413 if it finds that there is substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from such disclosure which outweighs any usefulness of the disclosure to counsel.\u201d (Ill. Rev. Stat. 1977, ch. 110A, par. 412(i).)\nDefendant argues that the trial court made no finding that disclosure would bring about one of the abovementioned occurrences and that the court therefore was without authority to employ the in camera inspection.\nObviously, defendant\u2019s argument is without merit since it presupposes that the material in question was \u201cdisclosure authorized under this rule,\u201d and was somehow relevant to his defense. Defendant did not sustain his burden of showing relevance or materiality at the trial court and offers no new grounds on appeal. As earlier stated, the trial court specifically found the files irrelevant to any of the possible theories of his defense. Defendant is entitled to material which tends to negate his guilt as to the offense charged, and to evidence material to the preparation of his case not covered by the rules. (Ill. Rev. Stat. 1977, ch. 110A, par. 412(c), (h).) In order to make this determination the trial judge was implicitly authorized to conduct the in camera inspection of the material in question. (People v. Clark (1977), 55 Ill. App. 3d 379, 370 N.E.2d 1111, cert. denied (1978), 439 U.S. 858, 58 L. Ed. 2d 165, 99 S. Ct. 173.) The court had no duty to state reasons for denying disclosure for one of the reasons under Rule 412 when such disclosure was never \u201cauthorized\u201d under the rule in the first instance. Therefore, defendant\u2019s request for disclosure of the \u201cRed Squad Files\u201d was properly denied.\nDefendant next contends that the trial court, in quashing his subpoena to produce William O\u2019Neal and various documents, along with denying him a continuance to obtain certain information under the Freedom of Information Act, deprived him of his constitutional rights to compulsory process and due process of law. (U.S. Const., amends. VI, XIV.) We reject this contention.\nOn December 29, 1977, defendant requested the current address of O\u2019Neal, the Federal agent, \u201cwho was active in the Black Panther\u2019s at this period.\u201d Defendant also maintained that O\u2019Neal was an informant. The State represented that O\u2019Neal was neither an informant nor a prosecution witness in the case and that no evidence would be adduced from any informants in defendant\u2019s trial. When requested by the trial court to explain the relevance of O\u2019Neal\u2019s testimony in \u201cnonconclusionary terms,\u201d defense counsel stated that O\u2019Neal resided with defendant and had \u201caccess to great amounts of the defendant\u2019s personal goods and property.\u201d Another reason offered for his required presence was that he was an \u201cagent provocateur\u201d of the Federal Government and could provide information as to his activities with the Black Panthers and his communications with the Federal Government. The trial court, noting that O\u2019Neal was under Federal, not State control, found that defendant had not established a sufficient factual premise to produce the witness.\nSubsequently, defendant renewed his request for O\u2019Neal\u2019s presence on the grounds that he could testify to certain \u201cindices\u201d of his behavior, since defendant had no recollection of the events surrounding the crime. As a government agent, O\u2019Neal would allegedly have more credibility than others called on defendant\u2019s behalf. The trial court found that the witness had no connection with the State, was not listed in any police reports, and denied the request for his production.\nDefendant issued subpoenas to the United States Attorney and to special agents of the F.B.I. demanding the production of O\u2019Neal. In arguing that the subpoenas should be quashed, Assistant U. S. Attorney Gubbins mentioned that the Federal Rules prevented testimony or disclosure of Federal files unless the Attorney General approved that disclosure. The trial judge quashed the subpoenas, ruling that defendant\u2019s assertion that O\u2019Neal would be a more credible witness than others was speculative.\nOn February 8, 1978, Gubbins offered to submit interrogatories to O\u2019Neal in the event that he might contact the U. S. Attorney\u2019s office. This offer was made in an effort to aid the court in determining the materiality of O\u2019Neal\u2019s testimony. O\u2019Neal was not, according to Gubbins, in the control of his office. In addition, Gubbins stated that O\u2019Neal could not attend court because he had \u201ca number of threats on his life.\u201d Defendant rejected this offer, demanding O\u2019Neal\u2019s presence in court. Further attempting to secure O\u2019Neal\u2019s presence, defendant subpoenaed Marlon Johnson, former Chicago Area Director of the F.B.I., William Beane, of the F.B.I., and Thomas Sullivan, U. S. Attorney, and requested all materials concerning surveillance of the Black Panther Party dealing with O\u2019Neal and defendant. He also requested a stay in the proceedings since his request for information similar to the subpoenaed material under the Freedom of Information Act would be complied with in four to six months. This request was denied by the trial court.\nOn March 15, 1978, a hearing was held on a motion to quash the subpoenas. The trial court quashed the Johnson subpoena because he was no longer an F.B.I. agent and had no access to any documents. The Beane and Sullivan subpoenas were likewise quashed, the trial court finding that each had no authority to turn over the documents.\nA court violates an accused person\u2019s right to compulsory process and to fundamental fairness at his trial when it denies him the ability \u201cto put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.\u201d (Washington v. Texas (1967), 388 U.S. 14, 23, 18 L. Ed. 2d 1019, 1025, 87 S. Ct. 1920, 1925.) However, unless the witness denied to the defendant could have provided relevant and material testimony for his defense, there is no constitutional violation. United States v. De Stefano (7th Cir. 1973), 476 F.2d 324.\nWe find no constitutional violation by the trial court in denying the production of O\u2019Neal. Defendant never provided a factual premise establishing the witness\u2019 relevancy or materiality. The record shows that O\u2019Neal simply had no connection with the case. As to defendant\u2019s beliefs that the witness might have offered observations of defendant\u2019s bizarre behavior that would support an insanity defense, we find that this belief is based on conjecture, since defendant had no recollection of these events or by whom they were witnessed. Further, defendant made no showing that these observations may have occurred on or near the day of the crime. In addition to the grounds already discussed, defendant suggested that O\u2019Neal\u2019s testimony would be relevant because it could: (1) provide information about defendant\u2019s flight which might negate circumstantial evidence of defendant\u2019s guilt; (2) establish that he supplied defendant\u2019s wife with drugs which resulted in her death by overdose; and (3) show that O\u2019Neal encouraged defendant to \u201chit\u201d drug dealers living in the victim\u2019s building. Each of these grounds provides no support for the production of O\u2019Neal. First, the record does not support defendant\u2019s vague assertion that O\u2019Neal could provide evidence surrounding defendant\u2019s flight. Second, the unsupported allegations with regard to supplying drugs to defendant\u2019s wife, even if true, were irrelevant to defendant\u2019s sanity since he was unaware of them at the time of the crimes. Third, there was no evidence that O\u2019Neal told defendant that the victims were drug dealers. Therefore, O\u2019Neal\u2019s production was not warranted. The trial court also properly ruled that the defense could not argue to the jury that O\u2019Neal had crucial exculpatory knowledge and had been associated with and had received money from the Federal Government. The stipulation informing the jury that O\u2019Neal had been an F.B.I. informant working with the Black Panther Party sufficiently explained his peripheral ties to the case.\nDefendant claims that the trial court made a contradictory finding since it \u201cconceded\u201d that O\u2019Neal\u2019s testimony would be relevant, yet found that he need not be produced.\nAfter viewing the passage cited by defendant in support thereof, we believe that the trial court was merely rejecting defendant\u2019s theory that O\u2019Neal\u2019s testimony was admissible solely on grounds that it would be \u201cmore credible\u201d than that of others. The court repeatedly indicated that O\u2019Neal\u2019s testimony was inadmissible on relevancy grounds, and never conceded that it would be proper.\nTurning to defendant\u2019s related request for materials concerning surveillance of the Black Panther Party and defendant, we find that the trial court correctly quashed the subpoenas.\nA subpoena for documents will be quashed if the requesting party fails to show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general \u201cfishing expedition\u201d. United States v. Nixon (1974), 418 U.S. 683, 699-700, 41 L. Ed. 2d 1039, 1058-59, 94 S. Ct. 3090, 3103.\nDefendant did not succeed in showing that the government\u2019s files would contain evidence relevant to his defense. Compliance with defendant\u2019s subpoena would have required the voluminous production of irrelevant evidence dealing with activities of the Black Panther Party having no connection whatsoever with defendant or the crime in question. Defendant\u2019s speculation that these files would aid his defense amounted to nothing more than a general \u201cfishing expedition.\u201d Furthermore, defendant\u2019s allegations of \u201charrassment\u201d contributing to his mental condition could have been proven by his testimony or by that of other Black Panther Party members. We also find that the urgency of defendant\u2019s request for these files and for the production of O\u2019Neal is belied by his rejection of the offer of the U. S. Attorney\u2019s Office to submit interrogatories to O\u2019Neal to discover the materiality of his testimony, and by his failure to accept their offer of Federal documents relating to defendant with \u201cthird party\u201d information deleted.\nDefendant\u2019s remaining contention along these lines deals with the trial court\u2019s denial of his four- to six-month continuance to seek information under the Freedom of Information Act similar to the subpoenaed information. A brief review of the procedural history of this case is appropriate.\nThe crimes for which defendant was convicted occurred on December 25, 1970. A finding of probable cause was rendered on August 12, 1976, following defendant\u2019s deportation to the U. S. from Copenhagen. After 10 court appearances, defendant elected to appear pro se on March 31, 1977, and the public defender was appointed to assist in an advisory capacity. On December 27, 1977, the State requested a trial date, noting that defendant, who had been in custody for a year and a half, was not ready for trial. At this point, pursuant to defendant\u2019s request, the public defender was appointed to represent him.\nOn February 8, 1978, defendant requested a stay in the proceedings for four to six months until the Federal Government complied with his freedom of information request. The trial court denied this request. Subsequently, defendant\u2019s requests for a stay in the State supreme court and Federal district court were also denied.\nGranting a continuance to permit the preparation of a case rests within the trial court\u2019s discretion and will not be disturbed on review unless this discretion is abused. (People v. Hayes (1972), 52 Ill. 2d 170, 287 N.E.2d 465; People v. Smith (1980), 88 Ill. App. 3d 897, 410 N.E.2d 973.) In making this determination, the trial court may review the history of the case (see People v. Hobbs (1975), 35 Ill. App. 3d 29, 340 N.E.2d 601) and consider the diligence shown by the moving party. (Ill. Rev. Stat. 1977, ch. 38, par. 114 \u2014 4(e).) Furthermore, the denial of a continuance does not constitute error unless it has embarrassed defendant in the preparation of his case and has thereby prejudiced him. People v. Sedlacko (1978), 65 Ill. App. 3d 659, 382 N.E.2d 363.\nWe find that the trial court did not abuse its discretion in this case. At the time of the request for the stay, defendant had been in custody for about one and one half years. Defendant, despite admonishments from the trial court, insisted upon representing himself for nine months. Before this time, he had been represented by several attorneys for about six months. Defendant only asked for discovery in December of 1977, when the trial court indicated a desire to set a trial date. His attorney from the public defender\u2019s office had been appointed in an advisory capacity for about 10 months when the stay was requested. Given the long history of delays in this case, we believe that defendant had ample time to prepare his defense. No purpose would have been served by postponing the proceedings for a lengthy period. Furthermore, we have already decided that defendant failed in his burden to show that the requested information was relevant or material to his defense. Therefore, he suffered no harm in the denial of his request for a continuance or stay to obtain the desired documents.\nDefendant next contends that one of his witnesses, a lay person, was improperly precluded by the trial court from rendering an opinion as to whether defendant suffered from a mental illness or defect in December of 1970.\nDiane Pratt, an urban planner and an acquaintance of defendant, testified at trial as to certain observations of defendant during their two-year friendship. During direct examination, she was asked the following question by defense counsel: \u201cIn your opinion, at that time was he suffering from a mental illness or defect?\u201d The prosecutor\u2019s objection to the question was sustained.\nIt is well established that a non-expert witness who has had an opportunity to observe the subject under inquiry may give an opinion as to defendant\u2019s sanity \u2014 at the same time stating the facts and circumstances as the basis for the opinion. (People v. Pruszewski (1953), 414 Ill. 409, 111 N.E.2d 313; People v. Patlak (1936), 363 Ill. 40, 1 N.E.2d 228.) However, the question posed by defense counsel in this case was objectionable since it exceeded the ambit of merely seeking a lay witness\u2019 opinion concerning defendant\u2019s sanity. In People v. Lechner (1976), 35 Ill. App. 3d 1033, 342 N.E.2d 820, the court found a similar question objectionable, stating: \u201cNot only was this a leading question, but in order for a witness to give an accurate response, a certain level of medical knowledge and familiarity with psychiatric terminology would be required.\u201d (Lechner, 35 Ill. App. 3d 1033, 1040, 342 N.E.2d 820, 825.) The witness here possessed no such medical knowledge. Moreover, the witness was allowed to testify to the incidents occurring during her contacts with defendant that provided the basis for her opinion as to his mental condition. She also opined that defendant was unable to conform his conduct to the requirements of the law. Therefore, the absence of the opinion drawn from such testimony is immaterial. See People v. Kuntz (1977), 52 Ill. App. 3d 804, 368 N.E.2d 114.\nDefendant further contends that the trial court erred in excluding the testimony of another lay witness, Patricia Brown, concerning her opinion of his sanity.\nWithout detailing the particular testimony, we note that Brown testified to observation of defendant concerning events that occurred in October of 1971 (when defendant claimed headaches and threw dishes on the floor) and in spring of 1972 (when defendant expressed fears that the \u201cmob\u201d was after him). These incidents transpired approximately 10 and 16 months, respectively, after the crime.\nThe insanity of a person either before or after the commission of a crime cannot excuse the crime; only insanity existing at the very time of the crime can excuse the same. (People v. Count (1969), 106 Ill. App. 2d 258, 246 N.E.2d 91.) In People v. Yates (1978), 65 Ill. App. 3d 319, 382 N.E.2d 505, the court held that a doctor\u2019s trial testimony concerning his examination of decedent was not probative of his mental condition at the time of the offense. The examination was taken six months prior to her death and was therefore too remote in time from the occurrence. The court in Yates relied upon People v. Davidson (1967), 82 Ill. App. 2d 245, 249, 225 N.E.2d 727, where it was held that a psychiatric examination of defendant performed about four months after the occurrence \u2014 \u201clong after the homicide\u201d \u2014 could not, by itself, be a proper basis for the doctor\u2019s opinion as to defendant\u2019s condition on the day of the crime. Whether or not sufficient facts and circumstances have been testified to by a lay witness to serve as a foundation for that witness\u2019 opinion of the accused\u2019s sanity is primarily a question for the trial court to determine, and a reviewing court will not reverse this determination unless there has been an abuse of discretion. People v. Lechner (1976), 35 Ill. App. 3d 1033, 342 N.E.2d 820.\nIn the present case, we cannot say that the trial court abused its discretion in refusing to permit Patricia Brown to give an opinion as to defendant\u2019s sanity when her observations of him took place long after the offenses. The court properly ruled that the events were too remote in time to be relevant to defendant\u2019s mental condition in December of 1970.\nDefendant next contends that the trial court erred in refusing to instruct the jury on the insanity defense.\nAll persons are presumed to be sane. (People v. Smothers (1973), 55 Ill. 2d 172, 302 N.E.2d 324.) The exculpating defense of insanity is an affirmative defense. (Ill. Rev. Stat. 1977, ch. 38, par. 6 \u2014 2.) An affirmative defense, according to statute, must be raised by defendant through the presentation of \u201csome evidence\u201d unless prosecutional evidence has first called it into issue. (Ill. Rev. Stat. 1977, ch. 38, par. 3 \u2014 2.) Our supreme court has interpreted \u201csome evidence\u201d under the insanity defense to be evidence which raises a reasonable doubt concerning the accused\u2019s sanity. (People v. Redmond (1974), 59 Ill. 2d 328, 320 N.E.2d 321.) If evidence is presented sufficient to create a reasonable doubt of sanity, the burden shifts to the State to prove beyond a reasonable doubt that the accused was legally sane at the time the offense was committed. (People v. Martin (1980), 87 Ill. App. 3d 77, 409 N.E.2d 114.) The Criminal Code of 1961 provides the following definition of insanity:\n\u201c(a) A 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.\n(b) The terms \u2018mental disease of mental defect\u2019 do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.\u201d Ill. Rev. Stat. 1977, ch. 38, par. 6 \u2014 2.\nGiven this background, we must review the record to determine if evidence sufficient to raise a reasonable doubt as to defendant\u2019s sanity was presented which required the submission of this issue to the jury.\nDefendant first argues that the \u201cbizarre\u201d nature of the incident itself provided sufficient evidence to allow the jury to determine the insanity issue. Briefly, he asserts that his actions at the scene of the crime sufficiently manifested conduct indicative of his unsound mind. We disagree.\nIn our opinion, defendant\u2019s actions shortly before, during, and after the commission of the crimes reveal a planned, deliberate scheme that was performed in an effort to avoid apprehension. Such behavior, of course, has particular relevance to a defendant\u2019s sanity. (People v. Spears (1978), 63 Ill. App. 3d 510, 380 N.E.2d 423.) Initially, defendant employed deception when attempting to gain entrance to apartments in the John Hancock Building. After entering the lobby, he looked at the directory, dialed a number on the lobby telephone, and told the doorman that he had a telegram to deliver. When asked to produce the telegram, defendant feigned surprise and departed, claiming that he left it in the car. Leaving the building, he changed directions several times, apparently realizing that the doorman was watching him.\nLater, when he confronted the victims outside their apartment, he pointed his previously concealed weapon at them, threatened to kill them if they made any noise and forced them into the apartment, closing and locking the door behind him. He then ordered them into the bedroom where he not only closed the door, but pulled the shades.\nAfter forcing the two to strip, defendant bound them and raped Agnes Silverstein while taunting her husband. He separated the victims, and continually threatened, taunted and beat them throughout the afternoon. During the incident, he poured Scotch on them and boasted about how he enjoyed the food he had taken from their kitchen. To avoid detection, and prevent their escape, he tied their bonds tighter, cut the telephone wire, and wiped everything he had touched while wearing rubber gloves that he had brought with him.\nDefendant fled only upon hearing Leo Silverstein break a window and call for help after Agnes Silverstein was shot. He discarded his gun a few blocks away.\nAccording to both victims, defendant appeared to be cool and coherent during the incident. For example, when he spoke to them he did so quietly, so that one victim could not hear the conversation between defendant and the other.\nBased upon this scenario, we hold that a reasonable doubt of defendant\u2019s sanity was not raised by the evidence introduced by the State surrounding the commission of the crime. Although defendant\u2019s conduct was extremely heinous and could be deemed \u201cbizarre,\u201d one could characterize almost any crime of violence as \u201cbizarre.\u201d The evidence surrounding the crime was insufficient to raise a reasonable doubt as to sanity. See People v. Jackson (1978), 57 Ill. App. 3d 809, 373 N.F.2d 583.\nDefendant asserts that the testimony of Diane Pratt and Patricia Brown sufficiently placed the question of his sanity within the province of the jury.\nAs to Brown, we have previously decided that her observations were properly found by the trial court to be too remote to be relevant. We therefore turn to the testimony of Pratt.\nPratt testified that in late 1969, defendant\u2019s behavior changed. Suddenly, defendant felt that the government was trying to poison his food. He therefore had other people sample it before eating. At a party in early December 1970, he delivered a speech addressing the guests there as if he were speaking to the hospital staff to whom he had earlier spoken. Later that evening, he claimed a headache and bit on a handkerchief in pain. He fell asleep, but upon awakening stated that he recalled nothing of the incident.\nAbout two weeks later, defendant refused to accompany Pratt into the Tap Boot Pub, saying he feared police spies. He roughly jerked away from her when she tried to persuade him to go inside. In her opinion, defendant was insane and unable to conform his conduct to the requirements of the law. According to her testimony, he had a \u201cbreakdown of some sort\u201d and seemed \u201ccrazy and very disoriented.\u201d\nDefendant testified to his memory loss on those occasions and added that he did not remember what had happened on the day of the crime. However, no medical evidence was offered as to his mental condition on the day of the crimes.\nWe do not believe that evidence offered on defendant\u2019s behalf raised a reasonable doubt concerning his sanity. Testimony that a defendant\u2019s conduct was disturbing or \u201cbizarre\u201d falls short of portraying a serious mental condition or a substantial history of mental illness. (People v. Varnado (1978), 66 Ill. App. 3d 413, 384 N.E.2d 37.) Also, evidence of idiosyncratic behavior, irresponsible conduct, unrealistic judgments or the commission of atrocious crimes does not alone justify a reasonable doubt of sanity. (See People v. Harrington (1974), 22 Ill. App. 3d 938, 317 N.E.2d 161.) More specifically, it has been held that testimony that people were \u201cout to get\u201d defendant and that he experienced periods of memory loss does not properly present the question of his sanity to the jury. (People v. Rivera (1972), 7 Ill. App. 3d 983, 987, 289 N.E.2d 36, 39, cert. denied (1973), 412 U.S. 907, 36 L. Ed. 2d 973, 93 S. Ct. 2300.) Pratt\u2019s testimony, while illustrating antisocial behavior on defendant\u2019s part, does not speak to his conduct on the day of the crime. In addition, defendant\u2019s self-serving assertions of memory losses and severe headaches need not be believed. (See People v. Jackson (1976), 42 Ill. App. 3d 919, 356 N.E.2d 979.) Therefore, we find that the evidence offered by defendant was insufficient to overcome the presumption of sanity, and the refusal of the trial court to instruct the jury on the affirmative defense of insanity was not error.\nFinally, we reject defendant\u2019s argument that the jury indicated to the trial court that it felt defendant was inane by virtue of a note it sent to the court during deliberations. The note stated, \u201cWas there any testimony to indicate that the defendant sought help re: his physical and/or mental state (either before or after December 25, 1970)?\u201d We cannot speculate that this note represented that a member of the jury felt that defendant was insane at the time of the offenses. It could have merely indicated a juror\u2019s curiosity with regard to defendant\u2019s alleged headaches. Patricia Brown\u2019s testimony established that he sought no medical aid for these headaches. In any event, our inquiry is directed to whether sufficient evidence was presented to mandate the tender of the insanity instruction to the jury. Since we have found the trial court\u2019s ruling was correct as a matter of law, the jury\u2019s conjecture as to irrelevant matters need not be considered.\nDefendant next contends that the trial court erred in refusing to properly instruct the jury on the defense of automatism and also in improperly restricting the testimony of a defense witness concerning this defense.\nDefense counsel indicated in opening statements that defendant would rely on the defenses of insanity and \u201cstate of mind.\u201d At the instructions conference, defendant submitted the following instruction:\n\u201cA person is not guilty of an offense unless with respect to each element described by the instruction defining the offense he acted while having one of the mental states described below:\n(A) That the person acted intentionally.\n(B) That the person knows or acted knowingly.\n(C) That the person is reckless or acted recklessly.\u201d\nThe trial court rejected this instruction as well as a similar one defining the various mental states. The court also refused the following defense instruction:\n\u201cA person intends or acts intentionally, or with intent or with intent to accomplish a result or engage in conduct described by the instruction defining the offense when his conscious objective or purpose is to accomplish that result or engage in that conduct.\nA person is not guilty of an offense unless he has one of the mental states of either intent, knowledge or recklessness.\u201d\nThe court, however, did tender to the jury upon defendant\u2019s request this instruction:\n\u201cA material element of every crime is a voluntary act.\u201d\nOur supreme court has found that an automatism defense is available to a defendant who lacks the volition to control or prevent involuntary acts \u2014 those bodily movements which are not controlled by the conscious mind. (People v. Grant (1978), 71 Ill.2d 551, 377 N.E.2d 4.) Such involuntary acts may include those committed \u201cduring convulsions, sleep, unconsciousness, hypnosis or seizures.\u201d (71 Ill.2d 551, 558, 377 N.E.2d 4, 8.) In Grant, defendant argued for the first time on appeal that the jury could not have determined that he possessed the requisite volition for criminal responsibility without having been informed of the defense of involuntary conduct through the Illinois Pattern Jury Instruction stating that, \u201cA material element of every crime is a voluntary act.\u201d (IPI Criminal No. 4.14 (1968).) The court found that the insanity instruction tendered to the jury adequately drew their attention to the evidence regarding the defendant\u2019s ability to control or prevent his conduct. Therefore, the tender of instruction No. 4.14 was not required since it would not have framed the evidence more plainly. Whether the defendant\u2019s epileptic seizures (which allegedly led to his assault of a police officer) could be characterized as a mental disease or defect for the purpose of the insanity defense was never at issue. Consequently, the court held that the failure of the trial court to sua sponte instruct the jury on the defense of involuntary conduct was not error.\nDefendant\u2019s claim to an automatism instruction was likewise rejected in People v. Wirth (1979), 77 Ill. App. 3d 253, 395 N.E.2d 1106. There, defendant tendered a non-IPI instruction raising the issue of automatism in an effort to prove that his conduct resulting in his prosecution for burglary was involuntary. The trial court gave the jury the same instruction requested by defendant on appeal in Grant (IPI Criminal No. 4.14) defining a voluntary act. At trial, defendant had offered expert testimony from a psychiatrist by way of hypothetical question that the hypothetical person \u201cprobably did have an acute organic brain syndrome\u201d and could \u201cconceivably\u201d have been suffering from hypoglycemia at the time of the occurrence. He also might have been suffering \u201cfrom acute emotional disturbance\u201d and was markedly intoxicated. (77 Ill. App. 3d 253, 258, 395 N.E.2d 1106, 1110.) In rejecting defendant\u2019s contention that his specific automatism instruction was merited, the court ruled that there was no evidence at trial that defendant\u2019s hypoglycemia might or could have caused involuntary criminal behavior. The court stated:\n\u201cIn the instant case, the defendant had no disease and his only problem was one of voluntary intoxication 0 9 * [T]here is no actual evidence of any organic impairment of defendant at any time. The defendant\u2019s evidence consists simply of hypothetical speculation by a psychiatrist, clearly different from specific and positive testimony.\u201d Wirth, 77 Ill. App. 3d 253, 258, 395 N.E.2d 1106, 1110.\nThe supreme court in Grant apparently recognized that IPI Criminal No. 4.14 is .a proper instruction if the evidence supports the automatism defense. Wirth expanded upon Grant by finding that an automatism instruction need only be given when defendant offers evidence of his organic impairment which leads to involuntary criminal behavior.\nIn the instant case, the court tendered to the jury the instruction implicitly found by the court in Grant to properly describe the automatism defense even though defendant here, as in Wirth, offered no psychiatric testimony of organic impairment rendering his conduct on the day in question involuntary. Therefore, we find that the trial court did not err in rejecting the non-IPI instructions offered by defendant on his theory of the case.\nDefendant complains that Diane Pratt, one of the defense witnesses, was improperly restricted from responding to defense counsel\u2019s questions as to whether defendant was able to either \u201cformulate a conscious objective in regard to his behavior,\u201d or to engage in \u201cconscious volitional actions\u201d during the incidents she had observed. The prosecutor\u2019s objections to these questions were sustained by the trial court on the grounds that she was not qualified to answer them.\nPratt, a lay witness, was allowed to testify as to her observations of defendant\u2019s conduct. We believe that the trial court properly ruled that she was not competent to give an opinion concerning defendant\u2019s ability to formulate intent or to speculate about his thought processes. In People v. Jackson (1976), 42 Ill. App. 3d 919, 356 N.E.2d 979, defendant sought to raise the defense of insanity in answer to the State\u2019s charge of burglary. He relied upon a psychiatrist\u2019s testimony based on an examination of defendant months after the crime. There was evidence that defendant suffered brain damage from an earlier accident and could be expected to have headaches, dizzy spells and blackout spells. Defendant told the psychiatrist that he had a headache while sitting on the steps of the burglarized building, and next remembered that he was inside when the police had arrived. The doctor testified that if defendant had a blackout, he would have operated on an \u201cautomated basis\u201d and would not have been able to \u201cconsciously judge or evaluate what he was doing.\u201d (42 Ill. App. 3d 919, 920, 356 N.E.2d 979, 981.) He could not state with a reasonable degree of medical certainty whether this happened to defendant or if defendant told him the truth.about the blackout. The only way he could have been certain whether defendant was experiencing a blackout \u201cwas to have observed him at that time or by receiving information from some professional person equipped to judge a blackout who did observe him.\u201d (42 Ill. App. 3d 919, 921, 356 N.E.2d 979, 981.) Certainly, if the qualified psychiatrist in Jackson was not able to testify as to whether defendant was experiencing a blackout and was in an automated condition, the witness here, who had no medical training, was unable to give such an opinion. She simply was not qualified to do so.\nDefendant contends that the trial court, in refusing his requested jury instructions, left the jury with no issue to decide. Our previous discussion shows that the insanity instruction was properly refused. Additionally, the jury was appropriately instructed on the involuntary conduct defense even though evidence justifying it was meager.\nDefendant also contends that the trial court improperly instructed the jury orally, and not in writing, to disregard any evidence of defendant\u2019s insanity.\nPrior to closing arguments, the trial judge stated to the jury: \u201cthe court instructs the court reporter to strike and the jury to disregard any questions and answers of any witness as to the question of sanity.\u201d\nIt is undisputed that jury instructions in criminal cases must be in writing. (Ill. Rev. Stat. 1977, ch. 110A, par. 451(c); Ill. Rev. Stat. 1977, ch. 110, par. 67(1).) Not every direction to the jury, however, is to be considered an \u201cinstruction\u201d requiring written form. (See, e.g., People v. Bydalek (1942), 381 Ill. 330, 45 N.E.2d 849, where court\u2019s oral communication to the jury as to the form of verdict to be used held not to be error.) The oral \u201cinstruction\u201d complained of in this case was not an \u201cinstruction\u201d within the contemplation of the abovementioned statutes, but was merely an evidentiary ruling in the form of an admonishment. This admonishment was not given immediately after the testimony of each witness, since the court determined that the insanity instruction was not warranted only after all defense witnesses had testified. Regardless, we find that defendant suffered no prejudice from this oral direction since he would not have benefited if it was, indeed, given to the jury in writing.\nDefendant next contends that the trial court erred in denying defendant\u2019s motion for a mistrial made after the jury sent out three notes during their deliberations indicating that they were \u201chopelessly confused\u201d about the issues and instruction given them.\nThe jury\u2019s first note read as follows:\n\u201cPlease advise us of what stipulation was stated by the Judge in regards to the testimony, re: Defendant\u2019s sanity stated this a.m., 3/17/78.\u201d\nThe court replied to this message by informing the jury that there was no stipulation and that the court had \u201cinstructed the court reporter to strike and the jury to disregard all witness\u2019 testimony as to their opinion as to sanity.\u201d\nAccording to defendant, this direction contradicted the court\u2019s earlier admonishment to \u201cthe court reporter to strike and the jury to disregard any questions and answers of any witness as to the question of sanity.\u201d Defendant\u2019s brief states: \u201cWith these two instructions, was the jury to disregard all evidence of insanity as first instructed, or only evidence of opinions?\u201d\nIn our view, these directions were not contradictory. The judge\u2019s second command merely reiterated what was earlier stated to them in slightly different verbiage. Since the second response clarified the court\u2019s previous message \u2014 to disregard evidence of sanity \u2014 (since the issue had already been determined as a matter of law), there was no error in giving this response.\nThe second note stated:\n\u201cWas there any testimony to indicate that the defendant sought help re: his physical and/or mental state (either before or after December 25,1970)?\u201d\nThe trial court\u2019s response was: \u201cYou have all the evidence, continue to deliberate.\u201d\nInitially, we note that this response was suggested by defendant\u2019s attorneys. When defendant\u2019s attorney acquiesces in or encourages the court to respond to a jury\u2019s question, defendant cannot assert that the court abused its discretion. (People v. Callahan (1974), 16 Ill. App. 3d 1006, 307 N.E.2d 188.) In addition, we have previously stated that this inquiry may have indicated the jury\u2019s desire for clarification of testimony rather than their confusion, since there was testimony that defendant sought no \u201chelp\u201d for his headaches or problems with amnesia. These questions may have also indicated that the jury was considering the automatism defense and defendant\u2019s \u201cphysical and/or mental state,\u201d and how this affected the voluntariness of his conduct. Therefore, the court\u2019s response was proper.\nThe third note read as follows:\n\u201cAlthough we have a definition of conduct, we find no reference of the word conduct in any of the instructions. Please elaborate.\u201d\nAttached to the note was the previously tendered instructions stating: \u201cWhen I use the word conduct, I mean an act or series of acts and the accompanying mental state.\u201d Defendant moved for a mistrial on grounds that the jury was totally confused and that they had received inadequate instruction on the defense theory of the case. The judge told the jury: \u201cYou have the law and instructions, you continue to deliberate.\u201d\nOnce again, we note that the instruction was given to the jury at defendant\u2019s request, even after the court had properly denied his instruction containing the word \u201cconduct.\u201d Therefore, he is estopped from now claiming that the instruction should not have been given. The jury was adequately instructed on defendant\u2019s theory of the case, and a further instruction elaborating on the word \u201cconduct\u201d would only have misled them. Accordingly, the trial court did not err in instructing the jury to continue in their deliberations.\nDefendant\u2019s final issue on appeal is that his sentence of 100 to 300 years for the offense of rape is excessive, and indicates a lack of judicial impartiality.\nSentencing is a function of the trial court. We will not disturb the sentence given defendant by the trial court unless there has been an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In our opinion, defendant\u2019s sentence for rape was properly based upon the factors offered in aggravation and mitigation. Defendant, who had previously been convicted of battery, raped Agnes Silverstein twice on Christmas Day, 1970, while taunting her husband. Both were subjected to hours of physical and mental torture. His conduct was accurately described by the trial court as \u201cvicious, cold and calculating.\u201d The record reveals no instances where the trial judge exhibited a lack of judicial impartiality. For these reasons, there was no abuse of discretion.\nThe evidence in this case overwhelmingly supports defendant\u2019s conviction for the brutal crimes he committed over 11 years ago. Defendant not only fled this country to escape prosecution, but, upon his forced return engaged in dilatory tactics to forestall his trial, unduly burdening the administration of criminal justice. Nevertheless, he was afforded a fair trial by the State, the trial court, and the 12 members of the community who sat in his judgment. We believe that defendant\u2019s rights to due process of law were not violated in this case, and have no reason to disturb the jury\u2019s verdict or the sentence imposed by the trial court.\nAccordingly, the judgment of the circuit court is affirmed.\nAffirmed.\nSULLIVAN, P. J\u201e and MEJDA, J., concur.", "type": "majority", "author": "Mr. JUSTICE LORENZ" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (John M. Kalnins and John Thomas Moran, Assistant Public Defenders, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Marcia B. Orr and Iris E. Sholder, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY DUNIGAN, Defendant-Appellant.\nFirst District (5th Division)\nNo. 79-120\nOpinion filed May 22, 1981.\nRehearing denied June 26, 1981.\nJames J. Doherty, Public Defender, of Chicago (John M. Kalnins and John Thomas Moran, Assistant Public Defenders, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Marcia B. Orr and Iris E. Sholder, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0799-01", "first_page_order": 821, "last_page_order": 851 }