People v. Elam

                               NO. 5-95-0405

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, )  Appeal from the 
                                     )  Circuit Court of 
     Plaintiff-Appellee,             )  Pope County.
                                     )  
v.                                   )  No. 94-CF-10
                                     )
GARY D. ELAM,                        )  Honorable
                                     )  Donald Lowery,
     Defendant-Appellant.            )  Judge, presiding.  
_________________________________________________________________

     JUSTICE GOLDENHERSH delivered the opinion of the court:
     Following a bench trial, defendant, Gary D. Elam, was found
guilty but mentally ill of home invasion, attempted kidnaping, and
aggravated criminal sexual assault.  Defendant was sentenced to the
Illinois Department of Corrections for a term of 20 years' 
incarceration for home invasion, to be served concurrently with a
term of 15 years' incarceration for attempted kidnaping, and these
terms were ordered to be served consecutively to a term of 20
years' incarceration for aggravated criminal sexual assault. 
Defendant appeals, contending that (1) trial counsel was
ineffective in presenting the defense of guilty but mentally ill
and (2) consecutive terms of imprisonment totaling 40 years were
excessive in light of defendant's criminal and mental histories and
rehabilitation potential.  We affirm.
                                     I
     On May 23, 1994, defendant was charged by amended information
with committing a home invasion in violation of section 12-11(a)(1)
of the Criminal Code of 1961 (720 ILCS 5/12-11(a)(1) (West 1992)),
armed violence (720 ILCS 5/33A-2 (West 1992)), aggravated criminal
sexual assault (720 ILCS 5/12-14(a)(1) (West 1992)), residential
burglary (720 ILCS 5/19-3(a) (West 1992)), attempted kidnaping (720
ILCS 5/8-4(a) (West 1992)), and battery (720 ILCS 5/12-3(a)(2)
(West 1992)).
     The event giving rise to these charges occurred on April 29,
1994, when defendant unlawfully entered the home of Tonya Towns,
displayed a knife, and sexually assaulted her.
     Towns testified that on April 29, 1994, she returned home
after 7 a.m., having worked a night shift at a nursing home.  Upon
returning home, Towns bathed, set her alarm clock, and went to bed
attired in some underpants.  She fell asleep.  Some time later,
someone entered her home.  Towns thought it was her mother, who was
coming to pick up some keys.  Towns later discovered that it was
defendant who had entered her home.  Towns testified that she had
never seen defendant prior to the day of the incident.  Defendant
wore jeans, a T-shirt, a bandanna, and a belt with a brown case for
a knife.
     Defendant tried to pull the bedsheet down, but Towns held on
to the sheet, asking defendant what he wanted.  He informed Towns
that he would not hurt her if she were calm but if she fought him,
he would kill her.  At that point, defendant began hitting Towns
and pulled the sheet down.  Defendant straddled Towns while still
hitting her.  Towns testified that she heard the sound of a snap
being released and saw defendant lay down a knife.  Towns opined
that it was a hunting knife about 12 inches long.  Towns stated
that defendant laid the knife down as he knelt to kiss her breast. 
Towns pushed a pillow or a part of the bedspread over the knife.
     Subsequently, Towns's vision became blurred from defendant's
blows to her head, so she stopped fighting and defendant removed
her underpants.  Towns told defendant she was menstruating. 
Defendant removed the tampon.  Towns again began to struggle with
defendant as he pulled her off the bed, turned her sideways on the
bed, and unzipped his pants.  Defendant tried to insert his penis
into Towns's vagina.  When his penis made contact with her vagina,
she scratched him and started fighting with defendant.  Defendant
fought with Towns on the bed and then got up and told Towns that
she was going with him for a couple of days.  Defendant threw a
pair of jeans and a sweatshirt at Towns, and she put them on. 
Defendant allowed Towns to wash her face and, restraining her by
the neck and waist, led her through the trailer to the outside
steps.  As they stepped outside, Towns asked defendant to permit
her to go back in to get her purse.  Upon her return, Towns broke
free from defendant and swung her purse at him.  Defendant grabbed
Towns around the waist, lifting her up as he attempted to force her
into the car.  Towns kept kicking the car door shut.  Defendant
then took Towns back inside the trailer and began hitting her,
telling her he had warned her of what would happen if she fought
back.
     At that point, Towns's mother, Bernadette Irvan, came to the
trailer.  Irvan testified that she heard her daughter screaming and
crying.  She saw defendant on top of Towns, choking and hitting
her.  Towns was struggling to break free from defendant.  Irvan
tried to grab defendant's arms, attempting to separate Towns from
defendant.  Defendant shoved Irvan and told her to get out because
it was none of her business.  Irvan and Towns continued to struggle
with defendant.  Towns eventually broke free.  Defendant fled from
the residence and left in his car.  Irvan described the car as a
greenish-gray sedan with an antenna for a radio or CB.  Irvan tried
to read the license plate number on defendant's car and called the
Pope County Sheriff.
     Bobby Hahn, a neighbor, observed a bluish-gray Chevrolet
Cavalier car leaving Towns's driveway on the morning of the attack. 
Hahn was able to see the driver as the man backed out of the
driveway.  At trial, Hahn identified defendant as that man.
     Illinois State Police Trooper Terry Rochford investigated the
April 29, 1994, incident at Towns's residence.  Rochford
interviewed Towns and recovered physical evidence at the scene,
which included a brown electrical cord, a tampon, a knife, a
bandanna, a pillowcase, sheets, and a comforter.  Forensic reports
indicated that one red cotton fiber found on the bottom sheet
possibly originated from defendant's red underwear.
     The police began pursuit of defendant around 1:20 p.m. on the
day of the incident.  The pursuit lasted about 10 minutes. 
Defendant's car was stopped at a roadblock.  Defendant was placed
under arrest and given Miranda warnings (see Miranda v. Arizona,
384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)).  Defendant
was then taken to the Pope County Sheriff's Office and questioned.
     Illinois State Police Special Agent Craig Short interviewed
defendant.  Short testified that defendant stated that he awoke at
3 a.m. on Friday, April 29, 1994.  Defendant watched television for
a while and then went for a drive.  While driving east on One Horse
Gap Lake Road, defendant encountered a white female driving a white
pickup truck.  Defendant turned around and followed the truck to
Towns's residence.  Defendant watched Towns enter the trailer. 
Defendant drove by, turned around, and returned, pulling into the
driveway behind Towns's truck.  Defendant entered the trailer
through an unlocked door and walked through the kitchen, past the
bathroom, and into the bedroom, where he found Towns lying in bed. 
Defendant told the investigators that he remembered the woman
awakening and asking who he was and what he was doing there.
Defendant remembered fighting with Towns and Irvan but did not
recall sexually assaulting Towns.  Defendant accurately described
the exterior and interior of Towns's residence.  Defendant admitted
to having a knife with him upon entering Towns's residence.  During
the interview, defendant was wearing a belt with an empty knife
holder.
     Dr. Michael Althoff, a psychologist, testified as an expert
witness for defendant.  Dr. Althoff evaluated defendant as to his
mental state at the time of the offense.  Based upon interviews
with defendant, relatives, and jail personnel, as well as a review
of medical records, notes from defendant, and police reports, Dr.
Althoff diagnosed defendant as suffering from bipolar disorder, a
severe mental illness.  Dr. Althoff concluded that defendant was
not insane at the time of the incident but, rather, defendant fit
the legal definition of guilty but mentally ill.  Dr. Althoff
stated that in stressful conditions individuals with bipolar
disorder commonly experience memory lapses.  Because defendant
could not recall his involvement in behavior related to the
offense, Dr. Althoff was unable to determine defendant's intent at
the time of the incident.  Dr. Althoff opined that without the
presence of a major mental illness and some significant stressors
in his life, defendant would not have engaged in the behavior that
became this offense.
     During the bench trial, defendant cross-examined Towns,
attempting to elicit that defendant did not make sexual contact
with the victim.  Defense counsel was able to elicit from Towns
that she never saw defendant with an erection and that she was
unable to determine if he had an erection.  Defense counsel, during
closing argument, contended that the evidence before the court did
not support either the armed violence count or the aggravated
criminal sexual assault count beyond a reasonable doubt.  Defense
counsel insisted:
     "The evidence before the Court in reference to all the counts
     in the informations, except for two, is certainly
     overwhelming, and the two counts I want to briefly address the
     Court [sic] is [sic] the armed violence count and the
     aggravated criminal sexual assault count, because I think
     beyond a reasonable doubt the evidence does not support the
     contention that Gary Elam's penis came in contact with the
     victim's vagina.  I want to refer the Court's attention to my
     cross[-]examination of her[,] which certainly flushed out the
     details of why she thought his penis had come in contact with
     her vagina, because she said his hands were on my legs, but I
     asked her the question, [`][I]s it possible some other part of
     his body, like his hands or his hips or some other part of his
     body had touched you there and you thought it was his
     penis[?'], because she testified she never saw that he had a
     hard-on and she never felt that he had a hard-on--or an
     erection--and she said, `[W]ell, his hands were on my legs,'
     and that was the only thing she said.  She said he unzipped
     his pants and he never took his pants off, and I submit to the
     Court[,] given the fact that that is such an important element
     in these two counts, that the State has not met its burden of
     proof to show beyond a reasonable doubt that that's definitely
     what happened.  I will just make that argument to the Court
     because it could have been the side of his pants, the edge of
     his zipper area that was touching her there instead of his
     penis because she did not see it."
     Defense counsel concluded by urging the court to consider
defendant's mental illness in arriving at a judgment in the case,
stating:
     "[W]e would ask you to look at the overwhelming evidence on
     our side of the case about the state of mind this man had and
     the control he had over his faculties, and [we] would [ask you
     to] find that he was suffering from a substantial disorder of
     thought, mood or behavior which afflicted him at the time of
     the commission of the offense, which impaired his judgement,
     but not to the extent that he was unable to appreciate the
     wrongfulness of his behavior because I think what the evidence
     shows overwhelmingly from both sides of the coin is that Gary
     Elam, but for the fact that he suffers from this mental
     disorder, and but for the fact that he was suffering from this
     disorder on April 29th, 1994, would never have done anything
     like this.  It was his illness that affected his ability to do
     the right thing, not to the extent that he didn't know right
     from wrong, but certainly led him down the path to do
     something that he would not have normally done, and,
     therefore, he is guilty but mentally ill, and that is why I am
     asking this Court to enter a judgement of not guilty of the
     two counts that I commented on, which were the armed violence
     count, which is Count Two, and the aggravated criminal sexual
     assault count, which is Count Three.  Certainly the State's
     case has shown an attempt at that offense, but not a
     commission of it, and [we ask] that [for] any counts the Court
     finds him guilty on, that [sic] he be found guilty but
     mentally ill."
     At the close of all the evidence, the court found defendant
guilty but mentally ill on all counts.  The court sentenced
defendant to 20 years' incarceration for home invasion, to be
served concurrently with a term of 15 years' incarceration for
attempted kidnaping.  The court further sentenced defendant to a
term of 20 years' incarceration for aggravated criminal sexual
assault, to be served consecutively.  Defendant's motion to reduce
sentence was denied.  Defendant appeals.
                                    II
     Defendant maintains he was denied the effective assistance of
counsel because trial counsel's theory of defense was to present
evidence and argument that defendant was guilty of all charges but
suffered from a mental disorder.  Trial counsel presented testimony
from three witnesses, all of whom testified regarding defendant's
mental illness.  Defendant further insists that Dr. Althoff,
defendant's expert witness, made statements during direct
examination that conceded defendant's guilt.  Likewise, trial
counsel, in his closing argument, abdicated defendant's innocence
by stating to the court, "We are not disagreeing that Gary Elam
committed a number of different crimes ***."  Defendant argues that
because counsel conceded defendant's guilt, trial counsel was
ineffective and defendant's convictions must be reversed.  We
disagree.
     A defendant asserting the ineffective assistance of counsel
must show (1) that his counsel's performance "`fell below an
objective standard of reasonableness'" and (2) that "`there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.'" 
People v. Hattery, 109 Ill. 2d 449, 461, 488 N.E.2d 513, 517
(1985), quoting Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2065 (1984).  However, there are
some circumstances where the two-part test set forth in Strickland
need not be applied.  In Hattery, our supreme court stated, "Where
`counsel entirely fails to subject the prosecution's case to
meaningful adversarial testing, then there has been a denial of
Sixth Amendment rights that makes the adversary process itself
presumptively unreliable.'"  Hattery, 109 Ill. 2d  at 461, 488 N.E.2d  at 518, quoting United States v. Cronic, 466 U.S. 648, 659,
80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047 (1984).  However, it
is not per se ineffective assistance of counsel "whenever the
defense attorney concedes his client's guilt to offenses in which
there is overwhelming evidence of guilt but fails to show on the
record consent by defendant."  People v. Johnson, 128 Ill. 2d 253,
269, 538 N.E.2d 1118, 1124 (1989).  "In situations where there is
overwhelming evidence of guilt and no defense, if counsel contests
all charges, he is liable to lose credibility with the trier of
fact when it comes to charges where a legitimate defense exists." 
128 Ill. 2d  at 270, 538 N.E.2d  at 1125.
     In light of the facts in this case, we believe that defense
counsel's representation subjected the State's case to meaningful
adversarial testing.  Likewise, counsel did not unequivocally
abdicate defendant's innocence to the State's charges or concede
all of the elements of home invasion, residential burglary,
attempted kidnaping, armed violence, aggravated criminal sexual
assault, and battery.  Counsel, during trial and closing argument,
asserted a theory of innocence with respect to two of the charges
against defendant, namely, armed violence and aggravated criminal
sexual assault.  Counsel, during cross-examination of Towns,
attempted to elicit details about defendant's alleged
nonthreatening display of the knife and the alleged criminal sexual
assault to show that the elements of these offenses had not been
established beyond a reasonable doubt.  Similarly, during closing
argument, counsel, referring to Towns's cross-examination
testimony, maintained that the State did not meet its burden of
proof because the evidence did not support, beyond a reasonable
doubt, the armed violence and aggravated criminal sexual assault
counts.  Clearly, defense counsel's strategy does not indicate a
wholesale abandonment of defendant's defense.
     Further, defense counsel did not unequivocally concede all
elements of the remaining counts of home invasion, residential
burglary, attempted kidnaping, and battery but rather acknowledged
that the evidence was overwhelming that defendant committed these
acts.  "When faced with overwhelming evidence, counsel faces a
difficult task."  People v. Guest, 166 Ill. 2d 381, 396, 655 N.E.2d 873, 880 (1995).  Here, had counsel contested all charges, he would
have lost credibility with the trier of fact when it came to the
armed violence and criminal sexual assault charges where a
legitimate defense could be asserted.  Johnson, 128 Ill. 2d  at 270,
538 N.E.2d  at 1125.  Rather than lose credibility by contesting the
remaining charges in which there was overwhelming evidence of
defendant's guilt and no valid defense, counsel opted to ask the
court for the entry of a judgment of guilty but mentally ill.  We
find  that although defense counsel conceded defendant's guilt for
home invasion, residential burglary, attempted kidnaping, and
battery, counsel did not concede guilt for armed violence and
criminal sexual assault.  Therefore, defense counsel did not
entirely fail to subject the prosecution's case to meaningful
adversarial testing.
                                    III
     Because we conclude that defense counsel subjected the State's
case to meaningful adversarial testing, we now apply the Strickland
test to determine if counsel's representation was ineffective. 
"Claims of ineffective assistance of counsel may be disposed of on
the ground that the defendant suffered no prejudice from the
claimed errors, without deciding the first prong, whether the
errors were serious enough to constitute less than reasonably
effective assistance."  Johnson, 128 Ill. 2d  at 271, 538 N.E.2d  at
1125.  Under Strickland's second prong, the defendant must show
that "there is a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting guilt." 
Strickland, 466 U.S.  at 695, 80 L. Ed. 2d  at 698, 104 S. Ct.  at
2068-69.
     Defendant claims that counsel committed error in presenting a
guilty but mentally ill defense in the context of a trial. 
Defendant asserts that he could not be found guilty but mentally
ill after a trial because he did not raise an insanity defense. 
Defendant further argues that mental illness is not an affirmative
defense, unlike insanity, and that defense counsel's guilty but
mentally ill defense at trial amounted to an attempt to enter a
blind guilty plea.  We disagree.
     On November 7, 1994, defendant filed a motion for the County
of Pope to pay for expert witnesses, and in the motion defendant
stated that he intended to raise the insanity defense and sought
payment of professional costs for defendant's psychological
evaluation.  On November 18, 1994, the trial court entered an order
approving payment for professional services and testimony.  The
order stated that defendant intended to assert an insanity defense
and that the psychological evaluation was necessary for the
presentation of that defense.  The record clearly shows that
defense counsel intended to present an insanity defense.
     After evaluating defendant, reviewing his medical and
psychological histories, and interviewing family members and
others, Dr. Althoff concluded that defendant was not legally insane
at the time he committed the offenses.  Instead, Dr. Althoff
diagnosed defendant as suffering from bipolar disorder, a severe
mental illness.  Dr. Althoff testified that memory lapses are
common among persons with bipolar disorder and that defendant had
experienced such a memory lapse with respect to his involvement in
the offenses at issue here.  Defendant's memory lapse prevented Dr.
Althoff from determining defendant's intent at the time of the
crime.  Therefore, Dr. Althoff concluded that defendant fit the
category of guilty but mentally ill.
     Defendant contends that the question of his insanity remains
unresolved and that defense counsel should have sought a second
opinion to determine whether insanity might exist.  Defendant
insists that defense counsel's failure to obtain a second medical
opinion is akin to ineffectiveness claims based on the failure to
investigate.  A defense counsel's failure to investigate and
discover witnesses favorable to the defendant may constitute
ineffective assistance.  People v. Lewis, 97 Ill. App. 3d 982, 990,
423 N.E.2d 1157, 1164 (1981).  However, it must be shown "not only
that counsel's action amounted to incompetence, but also that
defendant was substantially prejudiced as a result of the
particular action, without which the result probably would have
been different."  97 Ill. App. 3d at 990, 423 N.E.2d  at 1164.  In
light of defendant's prior diagnosis of bipolar disorder and his
extensive medical history with this illness, defendant has failed
to present any evidence to demonstrate how a second medical opinion
would have changed the outcome here.  We decline to speculate as to
the nature and impact of this omitted evidence.  Such speculation
cannot be a basis for a showing of ineffective representation.  97
Ill. App. 3d at 990, 423 N.E.2d  at 1164.  Further, defendant has
failed to demonstrate how he was prejudiced by the omission of such
expert testimony.  Defense counsel is not required to manufacture
a defense where no valid defense exists.  People v. Flores, 245
Ill. App. 3d 149, 157, 613 N.E.2d 1372, 1378 (1993).  Accordingly,
we cannot conclude to a reasonable probability that a second
expert's testimony concerning defendant's insanity at the time he
committed the offenses would have led the court to a different
result respecting defendant's guilt.
                                    IV
     Lastly, defendant contends that in light of his criminal and
mental health histories and rehabilitation potential, the court
abused its discretion when it sentenced him to 20 years'
incarceration for home invasion and 15 years' incarceration for
attempted kidnaping, to be served concurrently, and 20 years'
incarceration for aggravated criminal sexual assault to be served
consecutively.  Defendant claims that a total of 40 years'
incarceration is excessive and that the trial court sentenced
defendant to "what was in effect first degree murder time." 
Defendant complains that the trial court failed to adequately
consider that defendant suffers from bipolar disorder, a severe
mental illness, and that defendant's only criminal history involves
two nonviolent offenses.  Defendant maintains that the court failed
to balance these considerations with testimonies that defendant is
stable and law-abiding while following his medical regime. 
Defendant further asserts that the court's sentence reflects a
failure to consider defendant's sincere plea of remorse for his
actions.  We disagree.
     The imposition of a sentence is a matter of the trial court's
discretion.  People v. Lintz, 245 Ill. App. 3d 658, 668, 615 N.E.2d 366, 372 (1993).  When a sentence falls within the statutory limit
and there is no abuse of discretion, this court will not vacate or
reduce a sentence.  People v. Camp, 201 Ill. App. 3d 330, 340, 559 N.E.2d 26, 32 (1990).  
     The record shows that the trial court considered and weighed
the particular facts and circumstances of the case as well as
defendant's prior history.  The court acknowledged, as a mitigating
factor, that defendant was acting under a severe emotional problem
at the time the offense occurred.  The court found as aggravating
factors defendant's conscious decision to not take his medication
to control his illness and defendant's slight criminal history. 
The court noted the seriousness of the crime defendant committed,
and the court also noted that the incident could have escalated to
a "death-involved event."  The court opined that the incident could
have been precluded had defendant followed the prescribed medical
regimen for controlling his mental illness.  Considering
defendant's statement of remorse, the court observed that the
situation was a sad case for both Towns and her family and
defendant and the Elam family.
     There is no suggestion in the record that the court failed to
give meaningful consideration to all mitigating and aggravating
factors.  Instead, the sentencing decision was the product of a
careful balancing of all factors and a well-reasoned attempt to fit
the sentence to the particular offender as well as the offense. 
Defendant argues that the court did not give sufficient
consideration to defendant's remorse and rehabilitation potential. 
We believe that these factors were not disregarded by the court but
rather were not viewed as pivotal factors in its decision.  "A
trial court need not place greater weight on a defendant's
rehabilitation potential then on the seriousness of the offense and
the need to protect the public."  Lintz, 245 Ill. App. 3d at 668,
615 N.E.2d  at 372.  Accordingly, the trial court did not abuse its
discretion in its sentencing of defendant, and we decline to reduce
the sentence.
     For the foregoing reasons, the judgment of the circuit court
of Pope County is affirmed.

     Affirmed.

     CHAPMAN and MAAG, JJ., concur.