No. 3--08--0366

_________________________________________________________________

Filed July 29, 2010

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2010 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of the 10th Judicial Circuit,

) Tazewell County, Illinois,

Plaintiff-Appellee, )

)

v. ) No. 06--CF--285

)

KAREN FRANK-McCARRON, ) Honorable 

 ) Stephen A. Kouri,

Defendant-Appellant. ) Judge, Presiding.

_________________________________________________________________

PRESIDING JUSTICE HOLDRIDGE delivered the opinion of the

court:

_________________________________________________________________

The defendant, Karen Frank-McCarron, was convicted of first

degree murder (720 ILCS 5/9--1(a)(1) (West 2006)), obstructing

justice (720 ILCS 5/31--4(a) (West 2006)), and concealment of a

homicidal death (720 ILCS 5/9--3.1(a) (West 2006)). The circuit

court sentenced the defendant to 36 years of imprisonment. On

appeal, the defendant argues that: (1) the court erred when it

denied her motion to suppress her inculpatory statements to

police; (2) the defendant was denied a fair trial because she

wore an electronic monitoring device (EMD) during trial; and (3)

the court erred when it found that the defendant failed to prove

she was insane at the time of the murder. We affirm.

FACTS
2

On June 1, 2006, the State charged the defendant with two

counts of first degree murder (720 ILCS 5/9--1(a)(1), (a)(2)

(West 2006)), two counts of obstructing justice (720 ILCS 5/31--

4(a) (West 2006)), and concealment of a homicidal death (720 ILCS

5/9--3.1(a) (West 2006)). The indictment alleged that the

defendant killed her three-year-old daughter, Katie, by holding a

plastic bag over Katie's head, and then attempted to conceal the

circumstances surrounding Katie's death.

The defendant filed a pretrial motion to suppress two

inculpatory statements she made to police within days of Katie's

death. The circuit court denied the motion, finding that the

defendant was not in custody at the time she first confessed and,

therefore, was not entitled to receive warnings pursuant to

Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct.

1602 (1966), prior to her first confession. 

Evidence and testimony presented at the suppression hearing,

and at trial, revealed the following facts. On May 13, 2006, the

defendant and her mother, Erna Frank, were at the McCarron house

in Morton, Illinois, with the defendant's two daughters, Katie

and two-year-old Emily. The defendant was a pathologist and

spent an hour at work that morning. When she returned, she fed

her daughters. After lunch, the defendant put Emily down for a

nap. Rather than put Katie down for a nap as well, the defendant

decided to take Katie, who had autism, for a car ride to calm her
3

down. Erna testified that it did not appear as if Katie needed

to be calmed down.

The defendant drove Katie to the Frank house, which was near

the McCarron house. Given that Erna was at the McCarron house

and Erna's husband was in Germany, the defendant knew that no one

would be present at the Frank house. The defendant parked inside

the garage, closed the garage door, and took Katie inside the

house. While inside, the defendant suffocated Katie by placing a

white plastic garbage bag over Katie's head.

Approximately 45 minutes to an hour after she left, the

defendant returned with Katie to the McCarron house. The

defendant carried Katie into the house, told Erna that Katie was

sleeping, and carried her upstairs to bed.

The defendant went about her normal activities after she put

Katie in bed around 1 p.m. Sometime during the afternoon, the

defendant's brother, Walter, came to the McCarron house. The

defendant sat in the kitchen with Erna and Walter, who talked to

the defendant about a recent trip they took. While the defendant

did not talk much, neither Erna nor Walter noticed any irrational

behavior or incoherency in the defendant.

At one point, the defendant decided to go to the grocery

store to get ice cream. After getting the ice cream, the

defendant drove back to the Frank house and retrieved the garbage

bag she used to suffocate Katie. The defendant took the bag to a
4

local gas station, where she threw the bag into an outdoor

garbage can.

Around 4 p.m., the defendant said she was going to go

upstairs to check on Katie, as she normally did not nap that

long. The defendant screamed when she went into Katie's room,

and told Erna and Walter that Katie was not breathing.

When the police and paramedics arrived, the defendant told a

police officer that she found Katie not breathing approximately

21⁄2 hours after she put Katie down for a nap. The officer

described the defendant as coherent and conversational. The

defendant and a paramedic attempted unsuccessfully to resuscitate

Katie. The paramedic described the defendant as unusually calm

for the situation. The defendant was quick to respond to

questions and answered in an orderly fashion. Katie was

transported to the hospital, where she was pronounced dead. The

Peoria County deputy coroner testified that, when he spoke with

the defendant at the hospital, the defendant did not try to

embrace Katie and was largely unemotional. Her demeanor was

atypical for a parent whose child had just died.

The defendant's husband, Paul, returned to the McCarron

house from North Carolina around midnight that night. Paul had

moved to North Carolina with Katie approximately 18 to 24 months

prior so Katie could attend a school for autistic children. 

Katie had returned to Illinois around May 3, 2006. Paul was in
5

the process of moving back to Illinois at the time of Katie's

death.

When Paul arrived at the house, he and his brother had to

break into the master bedroom and bathroom to find the defendant. 

The defendant had penned a suicide note and had taken numerous

Tylenol pills in an apparent suicide attempt. The defendant told

Paul she had killed Katie. She also told her mother that she had

killed Katie. When the police arrived, Paul told Officer Brent

McLean that the defendant had something she wanted to say. After

the defendant did not respond, Paul told McLean that the

defendant said she had killed Katie. The defendant was

transported to the hospital in an ambulance. Her mother and a

police officer accompanied her in the ambulance. The officer did

not ask the defendant any questions. At no point was the

defendant placed in handcuffs or restrained by the police.

Officer McLean asked the defendant some questions at the

hospital in the early morning hours of May 14, 2006. The

defendant told McLean that she told Paul she had killed Katie and

said, "[l]et's leave it at that." McLean left the room and came

back shortly thereafter. McLean asked the defendant where the

garbage bag was, but the defendant did not respond. McLean

repeated the question, and the defendant said, "I know you want

to get evidence on me." She said she wanted to talk to Paul. 
6

McLean left the hospital and did not arrange for any police guard

on the defendant's room.

The doctor who treated the defendant on May 14, 2006,

testified that the defendant was lucid and coherent. The doctor

assumed that the defendant was in the medical profession based on

the questions she asked of the doctor and because the defendant

reviewed her medical charts and commented on them. She also

requested to speak with a psychologist. The doctor also stated

that intensive care unit (ICU) patients were typically not

allowed to use a telephone, but he witnessed the defendant use

the telephone outside her room several times between May 14-16. 

On May 16, the doctor ordered that the telephone usage stop

because it was distracting other patients.

The record is unclear as to any restrictions placed on the

defendant by the hospital, other than being placed on suicide

watch, although Paul testified that he felt the defendant could

not have left the hospital if she had wanted to. The record does

reflect that friends and family were allowed to visit the

defendant in her ICU room. There was no evidence that the

defendant wanted to leave the hospital, and the police never put

any restrictions on the defendant. The defendant was not placed

under arrest at the hospital until the afternoon of May 16, 2006.

On May 14, 2006, the defendant called a friend in the

afternoon and told her that she had killed Katie and that she was
7

going to confess the next day. She also called Paul's father and

told him that she had suffocated Katie with a plastic bag. Both

telephone call recipients described the defendant as calm.

Also on May 14, two Morton detectives talked to the

defendant in her hospital room. The defendant said she might

need an attorney, and the detectives told her she was not under

arrest and that they just wanted a statement. The defendant said

she did not want to talk. The detectives asked if they could

come back the next day, and the defendant agreed. The detectives

left the hospital.

On May 15, 2006, psychiatrist Sohee Lee was called to talk

to the defendant about the Tylenol overdose. Dr. Lee spoke to

the defendant between approximately 6:45 a.m. and 7:30 a.m. The

defendant told Dr. Lee that she had suffocated Katie with a

plastic bag. She said she was feeling guilty because Katie's

autism had not been improving and because she had killed Katie. 

Dr. Lee testified that the defendant showed no signs of delusion

or psychosis.

The evidence indicated that the defendant had a significant

preoccupation, if not obsession, with Katie's autism. Ever since

Katie's diagnosis, the defendant worked tirelessly at researching

and implementing different treatments for Katie's autism. Paul

testified that the defendant was mostly critical of the progress

Katie had made through the various treatments. The defendant
8

felt responsible for Katie's autism, believing it arose as a

result of having Katie vaccinated.

The evidence also indicated that the defendant suffered from

depression. In 2005, she began seeing a psychiatrist to help

with her severe depression. She was placed on several different

medications. She stopped seeing that psychiatrist in early 2006,

when she also stopped taking her antidepressants. In addition,

the defendant stated that she had been having homicidal thoughts

with regard to Katie at various times over the past year. The

defendant testified that she made a brief attempt at suffocating

Katie with a pillow on May 10, 2006, but the incident only lasted

a few seconds.

Around 9 a.m. on May 15, 2006, the Morton detectives, a

representative of the Department of Children and Family Services

(DCFS), and Paul arrived at the hospital. The detectives stated

that Paul wanted to accompany them to the hospital; the

detectives did not ask Paul to assist or be present for the

interview. Susan Grimm, a friend of the defendant, was in the

room. She told Paul that she thought the defendant should have

an attorney present. Paul thanked Grimm and escorted her out of

the room. Inside the room, the defendant had no objection to the

DCFS agent's presence. The detectives told the defendant that

she was not under arrest, nor was she going to be taken to the

police department. An interview commenced in which the defendant
9

confessed to the murder. The evidence indicated that everyone

was calm during the interview, which had a conversational tone.

Before the end of the interview, the police discussed with

the defendant the possibility of doing a second, recorded

interview, because it might be desired by the State's Attorney's

office. The defendant agreed to the second interview. The

detectives originally planned on doing just one interview, but

they neglected to bring a recording device to the first

interview. The State's Attorney's office did in fact request a

recorded interview, and the second interview occurred

approximately one hour after the end of the first interview. 

Before the second interview, the defendant was read her Miranda

rights, which she waived.

During the second interview, the defendant stated that the

decision to kill Katie came to her while on the afternoon drive. 

She stated that she "just wanted autism out of my life." She

thought she might be able to "cure" Katie by killing her and that

"[m]aybe in Heaven she would be complete." She put the plastic

bag over Katie's head because she "wanted a life without the

autism," and said that, "[t]o get rid of autism I had to kill a

child." She knew that Katie was dead, but, when she arrived back

at the McCarron house, she told Erna that Katie had fallen

asleep. When she devised the plan to dispose of the plastic
10

garbage bag, she thought that she "could get away with [the

crime]."

Testimony indicated that the second interview was

substantially similar in all respects to the first interview. 

However, Paul and one of the detectives both testified that the

defendant did not repeat in the second interview a comment she

made in the first interview about her not wanting to leave any

marks on Katie's neck when she suffocated her.

The defendant testified that she believed Katie was freed

from autism when she died. On cross-examination, she described

the events surrounding Katie's death. She explained that she was

standing behind Katie when she placed the bag over her head. She

forced Katie to her knees, and Katie lay down. The defendant

scrunched up the bag around Katie's neck, and Katie stopped

moving after a few minutes. The defendant also admitted that,

when she returned to the McCarron house, she wanted to give the

impression that everything was normal.

The defendant also stated that, when she was sitting in the

kitchen with Erna and Walter, she remembered that she had left

the garbage bag at the Frank house. She thought it would be

better to dispose of the bag at a local gas station, so she told

Erna and Walter she was going to get ice cream. She also

admitted that she knew her attempts at resuscitating Katie would

be futile.
11

On redirect, the defendant stated that she woke up "very,

very suicidal" on May 13, 2006. She felt in turmoil that day as

she fought with suicidal and homicidal thoughts.

Both sides presented expert witnesses with regard to the

insanity defense asserted by the defendant. The defense

presented Dr. Joseph Glenmullen, a psychiatrist who opined that

the defendant suffered from major depressive disorder, recurrent,

in 2005. Glenmullen stated that the defendant was obsessed with

Katie's autism and felt as if she had caused the autism by

getting Katie vaccinated. Glenmullen opined that the defendant's

depression developed into psychotic depression in 2006, as

evidenced by her delusional thoughts such as her statement that

she was killing autism when she killed Katie. Dr. Glenmullen

acknowledged that the psychiatrist the defendant had been seeing

from approximately August 2005 to February 2006 did not observe

any delusional thinking in the defendant.

The State presented Dr. Terry Killian, a psychiatrist who

opined that the defendant suffered from recurrent major

depression. However, Dr. Killian opined that there was no

evidence of psychosis in the defendant. Dr. Killian disagreed

with Dr. Glenmullen's opinion that the defendant suffered from

delusions, stating that the defendant's comment did not fit the

definition of delusion as a "fixed false belief." Also, Dr.

Killian found it significant that the defendant's statements
12

about the autism were usually about how the autism affected her,

rather than Katie.

After the proofs were closed, an issue arose with the fact

that the defendant was wearing an EMD on her ankle, which she had

been ordered to wear as a condition of her bond. Outside the

presence of the jury, the attorneys and the court had a

discussion about the EMD. After the parties speculated on how

long the defendant had been wearing the EMD and whether the jury

could have seen it on her ankle, defense counsel requested that

the court admonish the jury about the EMD. After the discussion,

the court admonished the jury that the defendant was out on bond

and was on electronic home monitoring, but such status did not

affect the presumption of innocence.

The jury found the defendant guilty on all counts. After

the defendant's motion for a new trial was denied, the court

entered judgment of conviction on one count of first degree

murder, one count of obstructing justice, and concealment of a

homicidal death. The court sentenced the defendant to 36 years

of imprisonment. The defendant appealed.

ANALYSIS

I. Whether the Circuit Court Erred When It Denied the

Defendant's Motion to Suppress

First, the defendant argues that the court erred when it

denied her motion to suppress her inculpatory statements to
13

police. Specifically, the defendant argues that her first

statement, given at the hospital on May 15, should have been

suppressed because it was obtained without her receiving her

Miranda rights. With regard to the second statement given on May

15, the defendant argues that it should have been suppressed

because it was obtained as the result of a deliberate "question

first, warn later" strategy in violation of her constitutional

rights.

When reviewing a circuit court's ruling on a motion to

suppress, we grant great deference to the court's credibility

determinations and findings of fact, and will disturb those

rulings only if they are against the manifest weight of the

evidence. People v. Slater, 228 Ill. 2d 137, 886 N.E.2d 986

(2008). However, the court's ultimate ruling on a motion to

suppress is subject to de novo review. Slater, 228 Ill. 2d 137,

886 N.E.2d 986. In reaching our decision, we will consider the

testimony presented at the suppression hearing and at trial. 

Slater, 228 Ill. 2d 137, 886 N.E.2d 986. Further, we note that

once a defendant challenges the admissibility of a confession

through a motion to suppress, the State has the burden of proving

the confession's voluntariness by a preponderance of the

evidence. 725 ILCS 5/114--11(d) (West 2006); Slater, 228 Ill. 2d

137, 886 N.E.2d 986.
14

A. Whether the Defendant Was in Custody at the Time She Gave Her

First Statement on May 15

It is well-settled that the preinterrogation warnings

required by Miranda, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct.

1602, are unnecessary if the individual sought to be questioned

is not in custody. Slater, 228 Ill. 2d 137, 886 N.E.2d 986. The

determination of whether an individual was in custody is an

objective one, which requires us to look to the particular

circumstances surrounding the encounter and assess whether a

reasonable person in that situation would have felt free to

terminate the encounter and leave. Slater, 228 Ill. 2d 137, 886

N.E.2d 986; see also People v. Carroll, 318 Ill. App. 3d 135, 742

N.E.2d 1247 (2001) (holding that an individual's subjective

belief of whether he or she was in custody is irrelevant to the

objective determination). Factors relevant to our inquiry

include:

"(1) the location, time, length, mood, and mode of the

questioning; (2) the number of police officers present

during the interrogation; (3) the presence or absence of

family and friends of the individual; (4) any indicia of a

formal arrest procedure, such as the show of weapons or

force, physical restraint, booking or fingerprinting; (5)

the manner by which the individual arrived at the place of

questioning; and (6) the age, intelligence, and mental
15

makeup of the accused." Slater, 228 Ill. 2d at 150, 886

N.E.2d at 995.

With regard to the defendant's first statement, the

dispositive question is whether she was in custody at the time

she was questioned in the hospital. "Questioning which occurs in

a hospital does not amount in itself to custodial interrogation." 

People v. Bates, 169 Ill. App. 3d 218, 222, 523 N.E.2d 675, 677

(1988); see also People v. Ripplinger, 316 Ill. App. 3d 1261, 739

N.E.2d 71 (2000) (holding that the circumstances surrounding a

defendant who was in the ICU when questioned indicated that the

defendant was not in custody).

We note that the defendant cites to Carroll and argues that

the "most salient factor" bearing on custody in this case is the

fact that the defendant was the sole focus of the police

investigation. In Carroll, the defendant was the focus of a

police investigation after he made an inculpatory statement. 

However, the defendant in that case was transported by an

unmarked squad car to a police station, where he was questioned

in an interrogation room. The Carroll court found it significant

under the circumstances that the defendant was the sole focus of

the investigation. The defendant's attempts to analogize her

case to Carroll are of no avail. The fact that the defendant in

this case was the sole focus of the police investigation is not

as relevant as it was for the defendant in Carroll. The
16

circumstances in Carroll evinced a situation much like a

traditional custodial interrogation, which is unlike the

situation in which the instant defendant was questioned. 

Further, as the defendant in this case confessed to numerous

people before she gave her statements to police, any

investigatory focus beyond the defendant would have been

counterintuitive. See, e.g., People v. Vasquez, 393 Ill. App. 3d

185, 913 N.E.2d 60 (2009) (recognizing authority that casts doubt

on the importance of a defendant's status as the focus of the

investigation).

The totality of the circumstances as uniquely presented in

this case militates against a finding that the defendant was in

custody at the time she gave her first statement to police in the

hospital. The defendant was transported to the hospital in an

ambulance. She was accompanied by her mother and one police

officer, who did not ask any questions of the defendant. She was

not placed under arrest or otherwise restrained by police.

The defendant was initially taken to the emergency room and

was later moved to an ICU room, where she was placed on suicide

watch. The record is unclear as to any further restrictions

placed upon the defendant by the hospital at that time, but there

is no evidence that the police restrained the defendant in any

way. No guards were placed outside the defendant's room, and no

indicia of formal arrest were present.
17

During the early morning hours after the defendant arrived

at the hospital, Officer McLean asked the defendant a few

questions. There was no indication that McLean pressed the

defendant for answers or otherwise coerced the defendant to

speak. McLean left the hospital after the defendant told him

that she told Paul she had killed Katie and indicated that was

all she wanted to say at that time. Further, when she told other

officers that she did not want to speak with them that day, they

left the hospital. The defendant agreed to allow the officers to

return the next day, and she called a friend and said she was

going to confess the next day.

The first interview at the hospital began around 9 a.m. and

lasted about an hour. Only two detectives were present at the

interview, along with a DCFS agent and Paul. The defendant did

not object to the DCFS agent's presence, and Paul's presence was

not solicited. There was no evidence to suggest that the police

used Paul as a coercive tool. The first interview was

conversational in nature, and there was no evidence to suggest

that the defendant was coerced into answering the detectives'

questions.

The defendant was a 37-year-old pathologist. She was highly

educated and intelligent, and even reviewed her own medical

charts on the day she was admitted to the hospital. While she

was suffering from depression, there was no evidence to suggest
18

that her depression was somehow exploited by the detectives. All

of the individuals who had contact with the defendant around the

time of the murder and suicide attempt described her as calm,

lucid, and coherent.

In light of the aforementioned factors, we conclude that a

reasonable person in the defendant's position would have felt

free to terminate the encounter. The evidence indicates that the

defendant wished to speak to the police about the incident. 

Because the evidence supports the court's finding that the

defendant was not in custody at the time she gave her first

statement to police at the hospital, there was no need to give

the defendant Miranda warnings before she gave her statement.

Even if a Miranda violation had occurred in this case, the

admission of the defendant's first statement into evidence would

not have prejudiced the defendant. The defendant made

inculpatory statements to six people before her statements to

police. Given these other confessions, as well as the other

strong evidence of guilt produced at trial, the evidence in this

case was not closely balanced. Accordingly, any error in

admitting the defendant's first statement would have been

harmless. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 113 L.

Ed. 2d 302, 111 S. Ct. 1246 (1991) (holding that the admission of

involuntary confession can be harmless error).

B. Whether the Defendant Was Subjected to a Deliberate 
19

?Question First, Warn Later? Strategy

With regard to the defendant's second statement, before

which she was read her Miranda rights, the defendant claims that

she was subjected to a deliberate ?question first, warn later?

strategy in violation of her constitutional rights.

Under the question first, warn later technique, police

officers elicit an incriminating statement from an individual

without having given Miranda warnings. People v. Lopez, 229 Ill.

2d 322, 892 N.E.2d 1047 (2008). Next, the police read the

individual his or her Miranda warnings, and again obtain an

incriminating statement. Lopez, 229 Ill. 2d 322, 892 N.E.2d

1047. When police deliberately use this technique, the statement

obtained after Miranda warnings were read will be excluded from

evidence, unless some curative measure was taken. Lopez, 229

Ill. 2d 322, 892 N.E.2d 1047.

In this case, the evidence supports the conclusion that the

police did not deliberately use a question first, warn later

technique. In the time after the incident and leading up to the

confession, the police were not forceful in attempting to obtain

a statement from the defendant. The police intended to obtain

just one statement from the defendant. The only reason they

sought and obtained a second statement is because the first

statement was mistakenly not recorded and an assistant State's

Attorney requested that the police obtain a second, recorded
20

statement. There is nothing in the record to indicate that the

police acted to circumvent Miranda's protections. Accordingly,

we hold that no error existed in admitting the defendant's second

statement into evidence.

C. Whether the Defendant's Statements Were Obtained in Violation

of Her Fifth Amendment Right to Counsel

The defendant also argues, in the alternative, that the

court erred when it denied her motion to suppress because her

statements to police were obtained after she invoked her fifth

amendment right to counsel on May 14.

A fifth amendment-based request for counsel is

inconsequential until a defendant is taken into custody. See

People v. Villalobos, 193 Ill. 2d 229, 737 N.E.2d 639 (2000). We

have already held that the defendant was not in custody at the

time she gave her first statement on May 15. Much of the

evidence supporting that holding existed at the time the

defendant stated on May 14 that she might need an attorney. As

previously noted, the defendant had been transported to the

hospital via ambulance, in which she was accompanied by her

mother and a police officer who did not ask her any questions. 

At no point was the defendant subjected to any means of formal

arrest. Officer McLean asked the defendant some questions in the

early morning hours of May 14, but left after the defendant

indicated she did not want to continue answering questions. The
21

two detectives questioned the defendant briefly on May 14, but

left after she indicated she did not want to talk. Under these

circumstances, we hold the defendant was not in custody on May 14

at the time she told the two detectives that she might need an

attorney. Because the defendant was not in custody when she said

on May 14 that she might need an attorney, we reject the

defendant's alternative basis for challenging the court's

decision to deny her motion to suppress. See Villalobos, 193

Ill. 2d 229, 737 N.E.2d 639.

II. Whether the Defendant Was Denied a Fair Trial Because She

Wore an EMD During Trial

Second, the defendant argues that she was denied a fair

trial because she wore an EMD on her ankle during trial. The

defendant acknowledges that she has forfeited this argument for

appellate review by failing to raise it in a posttrial motion;

however, she requests this court review the issue for plain

error.

The plain error doctrine permits appellate review of a

forfeited issue when the defendant proves that an error occurred

and that either the evidence is closely balanced or the alleged

error is so substantial that it deprived her of a fair trial. 

People v. Herron, 215 Ill. 2d 167, 830 N.E.2d 467 (2005). 

Accordingly, we must first determine if error in fact occurred. 

Herron, 215 Ill. 2d 167, 830 N.E.2d 467.
22

Generally, EMDs are devices used to monitor the defendant's

presence or nonpresence in his or her home while on electronic

home detention (730 ILCS 5/5--8A--2(A) (West 2006)). A court can

order an individual to wear an EMD as a condition of a bond. 725

ILCS 5/110--10(b)(14) (West 2006). Contrary to statements made

by the defendant in her appellant's brief, the court did not

order the defendant to wear an EMD during trial. Rather, the

defendant had been ordered to wear the EMD as a condition of her

bond, an order firmly within the court's discretion (725 ILCS

5/110--10(b)(14) (West 2006)). Without more, there was no error

in ordering the defendant to wear an EMD as a condition of her

bond.

The defendant attacks the fact that the defendant's EMD

remained on her ankle during trial by making a conclusory

statement that the EMD was analogous to shackles. Even if we

ignore this second forfeiture of the issue (210 Ill. 2d R.

341(h)(7) (arguments in appellate briefs require citation to

authorities relied upon)), the defendant's claim is without

merit. EMDs are not physical restraints like shackles, which a

court can order a defendant to wear at trial when "necessary to

prevent escape, to protect the safety of those in the courtroom,

and to maintain order during trial" (People v. Allen, 222 Ill. 2d

340, 365, 856 N.E.2d 349, 363 (2006)). Further, EMDs do not

interfere with a defendant's ability to participate in her own
23

defense, which is one of the chief concerns with shackles (Allen,

222 Ill. 2d 340, 856 N.E.2d 349).

We recognize that an EMD may be similar to shackles in that

its presence could possibly have a negative impact on the jury's

opinion of the defendant. However, the court addressed these

concerns in an admonishment to the jury. The record reflects

that the defendant's EMD was not addressed until after the proofs

had been closed, when the attorneys and the court discussed the

issue outside the presence of the jury. During the discussion,

defense counsel requested that the court admonish the jury that

the EMD does not affect the presumption of innocence. After the

discussion, the court in fact admonished the jury that the

defendant was out on bond and was on electronic home monitoring,

but such status did not affect the presumption of innocence. 

Accordingly, any negative impact an EMD could have on the jury's

opinion of the defendant was not a concern in this case.

For the foregoing reasons, we hold that the defendant has

failed to show that an error occurred when the defendant wore an

EMD at trial. Therefore, we reject the defendant's argument.

III. Whether the Defendant Proved She Was Insane at the Time of

the Murder

Third, the defendant argues that she proved she was insane

at the time of the murder. The defendant claims that the State

did not "adequately rebut" the opinion of her expert that she
24

could not appreciate the criminal nature of her actions at the

time of the murder because she suffered from psychotic

depression.

Section 6--2(a) of the Criminal Code of 1961 provides that

"[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 to appreciate the

criminality of his conduct." 720 ILCS 5/6--2(a) (West 2006). 

The defendant has the burden of proving insanity by clear and

convincing evidence. 720 ILCS 5/6--2(e) (West 2006). We will

not disturb a jury's resolution of an insanity issue unless it is

against the manifest weight of the evidence. People v. Johnson,

146 Ill. 2d 109, 585 N.E.2d 78 (1991).

When assessing a defendant's sanity, the trier of fact is

free to reject all expert testimony and base its conclusion on

lay testimony alone. People v. Dwight, 368 Ill. App. 3d 873, 859

N.E.2d 189 (2006). In this case, Dr. Glenmullen opined that the

defendant suffered from psychotic depression at the time of the

murder. Dr. Glenmullen placed great emphasis on what he believed

were delusional thoughts in the defendant, including the

defendant's statement that she was killing autism when she killed

Katie. Dr. Killian disagreed, opining that the defendant was

neither delusional nor psychotic. The jury was free to reject

Dr. Glenmullen's opinion, even if the State had not presented a
25

contrary expert opinion. See People v. Urdiales, 225 Ill. 2d

354, 871 N.E.2d 669 (2007).

Other relevant considerations in an insanity determination

include: (1) the testimony of lay witnesses who observed the

defendant around the time of the crime; (2) whether the defendant

planned the crime; and (3) whether the defendant attempted to

conceal the crime. Dwight, 368 Ill. App. 3d 873, 859 N.E.2d 189. 

"A defendant's unusual behavior or bizarre or delusional

statements do not compel a finding of insanity, and a defendant

may suffer from a mental illness without being legally insane." 

Dwight, 368 Ill. App. 3d at 880, 859 N.E.2d at 195.

In this case, the evidence and testimony support the jury's

rejection of the insanity defense. While the defendant testified

that the decision to kill Katie came to her while on the

afternoon drive, the facts evince a calculated plan to kill Katie

and conceal the circumstances surrounding her death. The

defendant drove to the Frank house, where she knew no one would

be home. She pulled into the garage and closed the garage door. 

She suffocated Katie with a plastic bag, then placed her body

into the car and drove her back to the McCarron house. The

defendant lied to Erna about Katie being asleep, then placed

Katie into bed to make it appear as if Katie was simply napping. 

While acting as if everything was normal, the defendant

remembered the plastic bag at the Frank house and devised a plan
26

to dispose of the bag to conceal evidence of the crime. The

defendant knew she had killed Katie, and she attempted to

convince everyone that Katie had stopped breathing in her sleep. 

The defendant even engaged in resuscitation efforts that she knew

would be futile in an attempt to maintain the ruse. Further, all

of the individuals who had contact with the defendant around the

time of the crime described her as calm, lucid, and coherent. 

Under these circumstances, we hold that the jury's rejection of

the insanity defense was not against the manifest weight of the

evidence.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court

of Tazewell County is affirmed.

Affirmed.

CARTER, J., concurs

JUSTICE WRIGHT, specially concurring:

I agree with the majority’s analysis on all issues except

the issue related to the electronic monitoring device. I agree

with the majority that this defendant has forfeited the

electronic monitoring device issue and also failed to meet her

burden of proof as to plain error. 

Here, the presence of the electronic monitoring device was

brought to the court’s attention after the close of the evidence

and defendant requested a curative instruction for the jury. 
27

After receiving the curative instruction, the defense did not

raise the issue in a post trial motion. Consequently, we can

only review this claim of error if defendant can establish plain

error. Since the evidence was not closely balanced and defendant

received a curative instruction to insure the fairness of the

proceedings, I join the majority’s conclusion that plain error

does not exist. 

Once the majority determined that no error occurred, I

respectfully suggest that any discussion of whether an

electronic monitoring device “may be similar to shackles” is

unnecessary. Consequently, I agree with the State that this is a

“faux shackling issue.” Therefore, I do not adopt the views of

the majority on this issue beyond the conclusion that the

electronic monitor issue has been forfeited by the defense. For

this reason, I specially concur.