People v. Hill
Annotate this Case
THIRD DIVISION
June 17, 1998
No. 1-95-3903
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
MICHAEL HILL,
Defendant-Appellant. )
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) Appeal from the
Circuit Court of
Cook County.
Honorable
Colleen McSweeney Moore,
Judge Presiding.
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
Defendant Michael Hill appeals his conviction of first degree murder
(720 ILCS 5/9-1(a)(1) (West 1994)) by the circuit court of Cook County
following a bench trial in August 1995. He argues his conviction must be
reversed and remanded for a new trial because he did not receive a fitness
hearing despite the fact that he was taking psychotropic medication at the
time of the trial. In addition, he argues the court's rejection of his
insanity defense was against the manifest weight of the evidence, and his
conviction should be reversed and a finding of not guilty by reason of
insanity entered.
In April 1993, defendant lived with Marguerite Hill, his wife, and Tracy
Hill, his adult daughter. On the evening of April 4, Tracy returned home from
work at some time after midnight. When she walked to her parents' bedroom,
she saw her father, fully clothed, sitting on the floor by the bed, cradling
Marguerite's head in his lap. Marguerite was clad only in panties. Tracy
immediately backed up and apologized, but received no response. She went to
her room and went to sleep.
Defendant woke his daughter at approximately 4:30 a.m. on the morning of
April 5, and told her to call 911, but would not tell her why. As the house
phone could not make outgoing calls, Tracy got dressed and ran down the street
to make the call. When Tracy went into her parents' bedroom after making the
call, she saw her father sitting on the floor and her mother lying next to him
with her head in his lap, covered by a blanket or sheet. When Tracy asked
defendant what was wrong and tried to look at her mother, defendant leaned
down over her so Tracy could not see her face. She identified a necktie found
near the victim as one she had given her father. After the paramedics
arrived, Tracy examined the windows and doors of the house, looking for signs
of forced entry; she did not see any.
Tracy testified that defendant had received psychiatric treatment before
April 5, 1993. In 1992 he had received in-patient treatment at Jackson Park
Hospital after a suicide attempt. Later in 1992 he was admitted to the
Veteran's Administration Hospital ("VA") for approximately a month, after
which he received some out-patient treatment through the VA. She had not
noticed any changes in defendant's behavior before either of the two
admissions for treatment. She did not remember him being admitted for
treatment on any other occasions. She did not state why he had been admitted.
When paramedics responded to the 911 call, they found defendant sitting
on the floor of the bedroom with the victim lying beside him, her head cradled
in his lap. Defendant did not respond to their questions why they had been
called or what was wrong. When the paramedics examined the victim they
discovered that she had been deceased long enough for rigor mortis to set in,
which took approximately 6-8 hours.
The paramedics summoned the police. When the police arrived, around
5:30 a.m., defendant initially failed to respond to their questions. After a
while, he stated that he did not remember what had happened. Several
detectives arrived at the scene at approximately 6:00 a.m. Defendant told
Detective Edmond Leracsz that he had been watching television the night
before, and he had developed a headache, for which he took some aspirin. The
aspirin did not help, and the victim offered to rub his temples. At this time
the victim was fully clothed. The next thing defendant remembered was being
awakened by the alarm clock at 4:30 a.m., when he went to wake his daughter.
Defendant repeated this version of events when he spoke with some other
detectives at the police station. Detective Leracsz inspected the windows and
doors of the house, looking for signs of forced or attempted forced entry, but
found no such evidence.
On April 6 defendant spoke with Assistant State's Attorney Peggy
Chiampas at the police station. He repeated the same version of events to her
until she asked him what he remembered next after watching television. At
that point he stated that he wanted a lawyer, and Chiampas terminated the
interview. She described him as being very polite and alert. He looked at
her when he spoke, and when she asked questions he responded promptly and
appropriately. He did not complain about how he felt.
Deputy Medical Examiner Dr. Mitra Kalelkar conducted the post-mortem
examination of decedent. She testified that in her opinion the decedent had
been the victim of a homicide by strangulation. The parties stipulated that
if called, Cecilia Doyle would have testified that tests performed on blood
stains on the necktie found next to the victim revealed that the blood on the
tie was consistent with the victim's blood.
The State rested, and the defense's motion for a directed verdict was
denied. The defense proceeded to call its first witness, Dr. Henry Conroe.
Dr. Conroe, a psychiatrist, first met the defendant in January 1994. He
interviewed him two subsequent times as well, for a total of approximately 5
hours. He formed an opinion that in April 1993 defendant was suffering from a
major depressive episode with mood incongruent and psychotic features. He did
not only rely on his sessions with defendant in forming his opinion; he also
considered an interview which he conducted with defendant's friend, Phillip
Schwartz; police reports of the homicide; records from the VA and Jackson
Park; psychological testing on defendant in May 1993 at the Department of
Corrections; brief telephone contact with defendant's treating doctor, Dr.
Earl; psychological testing by Dr. Marva Dawkins; and a report prepared by Dr.
Henry from the Psychiatric Institute of Cook County.
Conroe testified that in addition to his depression, defendant had
"persecutory ideation." While at the VA hospital he had psychoses centering
around his wife, involving a conspiracy in the police department because a
police officer supposedly had an affair with his wife. Conroe was aware that
there actually had been problems with defendant's wife's infidelity, and
admitted that defendant's belief that his wife had been having an affair with
a Chicago Police Officer was not psychotic. Conroe testified that defendant
told him that issues of his wife's fidelity no longer concerned him. He no
longer believed the entire Chicago Police Department knew his wife was having
an affair, as he once had.
Conroe testified that defendant was admitted to Jackson Park Hospital in
April 1992, after taking an overdose of antidepressant medication. He was
suicidal and had been for about a year since he had lost his job. He was not
eating or sleeping well, felt despondent and could not find a job. He was
admitted to the VA in May 1992, shortly after he signed himself out of Jackson
Park. Conroe initially testified that Defendant's diagnosis at the VA was
that he suffered from major depression with psychotic features. On cross-
examination he admitted that the diagnosis was actually a single episode of
major depression. Defendant was initially admitted to the VA for inpatient
treatment, then switched to outpatient treatment before his discharge. He
stopped attending outpatient sessions in November 1992.
Defendant had been taking doxepin (sinequan), an anti-depressant, and
stelazine, an anti-psychotic, in late 1992 and early 1993. These medications
had been prescribed for him during his treatment at the VA. Doxepin should
have helped defendant maintain his energy level and mood, help him sleep and
eat and concentrate. Stelazine should have helped him keep any paranoid
thinking or persecutory ideation in check. Defendant told Conroe that he had
ceased taking the medication 2-3 weeks before his wife's murder. Conroe
believed that there would be at least some, or possibly a full return of
symptoms within 2-4 weeks after ceasing taking the medications.
Conroe believed that at the time of the crime, defendant was suffering
from major depression with mood incongruent psychotic features, and he was
unable to appreciate the criminality of his behavior and unable to conform his
conduct to the requirement of the law. Conroe testified that the defendant
was still under treatment at the VA hospital at the time of trial, and from
Conroe's review of the records to date from the VA, it appeared defendant was
still receiving Zoloft (misspelled in the record as "solarlov"), an anti-
depressant, at the time of trial. Conroe admitted that Dr. Henry's report
indicated that the defendant had told him that he was taking his medication at
the time of the crime. However, Conroe maintained that his opinion as to
whether defendant was sane at the time of the crime would not change even if
defendant had been taking his medication at the time. He noted that defendant
was deteriorating despite being on doxepin, which indicated the dose was not
sufficient or it was not the right medication. He admitted that the only
sources of information for defendant's deterioration were defendant himself
and Schwartz. However, Conroe maintained that whether defendant was on
medication at the time of the crime meant nothing to him in terms of his
opinion of defendant's sanity at the time.
Conroe admitted that defendant had been taken off stelazine on September
14, 1992, while still an inpatient at the VA. The records reflected that
defendant had denied any paranoid or bizarre behaviors thereafter. The
stelazine was never restored according to the records. There was no evidence
in the records from the VA of any bizarre behavior or physical acting out
after that date; there were no physical symptoms at least until October 22,
1992. However, Conroe noted that defendant was still taking anti-depressants
during this time, and adequate treatment of his depression would lessen his
psychotic features. Conversely, removal of the anti-depressant would
accelerate an onslaught of psychotic features. Conroe noted that it was
shortly after the stelazine was discontinued that defendant began missing
appointments and not attending the VA clinic. This was also around the same
time Schwartz described his behavior change.
Conroe testified that Phillip Schwartz told him that he and defendant
had met when both were inpatients at the VA. Their relationship had continued
after defendant's release from inpatient treatment. Defendant had helped
Schwartz get a job at Goodwill around Christmas time of 1992, and Schwartz had
become concerned about defendant becoming more depressed and not being his
usual self in the way he related to people. He spoke with the decedent in
late December 1992, and she agreed defendant was becoming depressed and needed
to return to the VA. Conroe was not aware of defendant returning to the VA at
that time, although he knew that defendant did continue his medication until
mid-March 1993.
Conroe believed that Schwartz was not an inpatient at the time they
spoke. He did not know what Schwartz's prior diagnosis was, and did not know
if he was taking psychiatric medication when he spoke with him. He stated
that Schwartz did not seem bizarre or profoundly depressed, and he was able to
give a coherent account and answer questions relevantly.
Conroe estimated he had examined about 150 defendants and testified in
about 50 trials. All but one of the examinations were at the request of the
defense. He admitted co-authoring an article entitled "Sanity Defense--A
Practical Guide" with a member of the ACLU. Although he maintained that major
depression was a "major mental disorder" when he was asked if it was a
psychosis, he admitted that there was no evidence of psychoses when defendant
admitted himself to Jackson Park. When defendant signed himself out of
Jackson Park, there were no criteria to certify for involuntary treatment.
Conroe admitted that insanity is difficult to establish if the illness itself
is not a psychosis.
Conroe stated that defendant had given him a full life history, with
numerous details, organized in a coherent fashion. He mentioned events
related to his growing up, his education, employment, and alcohol use or non-
use, among other things. However, defendant had a gap in his memory
surrounding the murder. Conroe admitted defendant had no history of memory
gaps or amnesia, and he was aware of no organic basis for defendant's loss of
memory. He also admitted that depression would not necessarily impact one's
memory, and it was possible that defendant was lying about his loss of memory.
Conroe countered, however, that people sometimes block out memories too
emotionally intense for them to handle, and he had noticed that defendant
tended to shy away from dealing with situations involving strong emotions.
Conroe also admitted that insanity is often manifested through bizarre
behavior. He admitted that he had examined the police reports and found no
indication therein of any bizarre or unusual behavior on defendant's part.
Conroe stated that he spoke with defendant's son briefly, but did not
speak with defendant's daughter, Tracy. He admitted that she would have been
able to tell him about the defendant's mental condition, but would not admit
she would have had better knowledge of defendant's mental condition than
anyone else.
Conroe admitted that sexual dysfunction (one of the issues for which
defendant was being treated at the VA) could itself be a source of depression
for adult males, as could job loss. This did not mean that as a result of
either of these two occurrences one could not conform one's behavior to the
law or appreciate the criminality of conduct. However, Conroe differentiated
between "being depressed" and suffering from the medical and psychiatric
illness of major depression, with which he had diagnosed defendant.
Conroe's opinion was in part based on tests administered to defendant by
Dr. Dawkins. One of those tests was the Minnesota Multiphasic Personality
Inventory ("MMPI"). Conroe admitted that there were certain scales "built
into" the MMPI "as a sort of truth detector." In this case some of the
results raised questions about the validity of the test. However, Conroe did
not believe the test was invalid. He explained that it was common to see
elevated scores when someone in emotional distress took the test.
Dr. Marva Dawkins, who administered the tests, was the defense's next
witness. Dawkins, a clinical psychologist, was also called as an expert
witness on defendant's sanity. Dawkins's training is in forensic psychology.
She met with defendant in July 1994, at the request of the defense, for
approximately 3 hours. Before she met with him he had been given a battery of
tests through her office: the mental status check list for adults; a symptoms
checklist (the "SCL 90"); the Modified Michigan Alcoholism Screening Test (the
"Modified Mass"); the Bender visual motor test; the Gestalt Test; the Shipley
Institute of Living Test; the personal history checklist for adults; and the
Minnesota Multi-Phasic Inventory 2 ("MMPI 2"). She also reviewed records from
defendant's admissions to Jackson Park and the VA.
Dawkins concluded that defendant suffered from delusional disorder,
major depression with psychoses, and paranoid personality disorder. She
believed he had been suffering from delusional disorder at the time of the
crime, and he was therefore neither able to appreciate the criminality of his
behavior nor to conform his conduct and behavior to the requirements of the
law. Between the time Dawkins prepared her report and trial she reviewed a
report prepared by Dr. Henry of the Psychiatric Institute and medical and
psychological records from the VA hospital; her opinion had not changed as a
result of the additional materials.
Dawkins admitted that defendant had talked "almost non-stop" during her
interview with him, and he was able to organize his thoughts and spoke clearly
and coherently to her. He gave her a number of details, including names and
dates, although Dawkins noted that his date memory was clearer in the last 3
to 4 years. She admitted that almost all of the significant dates he told her
about involved April 5.[fn1] For instance, he told her that twice in his
life he had been fired on April 5. However, although Dawkins found it unusual
that all of the traumatic events in defendant's life occurred on his birthday,
she did not attempt to verify this fact. The important thing to her was
defendant's psychological state--not "reality," but defendant's reality.
Dawkins believed that defendant's memory loss during the murder was
triggered by a traumatic experience. Specifically, she believed it was
triggered by defendant being told that he was going to be fired from Goodwill
on his birthday. Although not certain, she thought it was possible that
defendant had also experienced a dissociative reaction when he lost his job on
April 5 the first time. She also thought it was possible he had experienced
one when he lost his job on April 5 the second time, although there was no
record thereof. He did describe himself as having experienced an "emotional
[sic] induced physiological breakdown."
Dawkins stated that her opinion would not change if it were not true
that defendant was going to lose his job. The important thing was defendant's
perception that he was going to lose his job. She noted that defendant "lived
in a world that was filled with delusions that were not true in reality and he
acted upon these delusions." Dawkins admitted that there was no indication of
outside hallucinations in any reports, and that defendant had not reported any
command hallucinations. Dawkins stated that she could not answer the question
whether it was equally possible that defendant's actions were volitional, as
opposed to the result of a dissociative reaction. She explained this question
went to "the heart of a philosophical question of what is volitional and what
is functionally mentally ill."
Dawkins admitted that certain sections in the MMPI--the L, F and K
scales--could be described as validity scales, and are included in order to
alert the examiner to the possibility that the subject is faking his
responses. Dawkins admitted that she had indicated in her report that
defendant's responses raised questions about the overall scale validity. She
admitted that the whole test result could be questioned based on the
indicators. However, she noted that there could be a variety of reasons for
the responses. One reason is that the subject is lying, but another
possibility is the subject's emotional distress. Dawkins noted that she had
not interpreted the MMPI "in the blind"; she used other data, including the
other tests, her face-to-face interview, and her knowledge of defendant's
history to help her interpret the test. She concluded that the elevated
scales were not indicative of false answers but rather of emotional and mental
disturbance.
Dawkins admitted that if an intelligent individual took the tests she
administered to defendant with the intent to feign a psychiatric illness, they
could do so. However, she was aware of the problem of malingering, and did
not believe that defendant fit the profile of a malingerer.
In rebuttal the State called Dr. Stafford Henry. Dr. Henry, a forensic
psychiatrist, was an employee of the Circuit Court of Cook County and had been
so employed since July 1993. Henry examined defendant in September and
October 1994, for a total of approximately 5 hours. One of the first things
he noticed about defendant was that he had a guarded and suspicious demeanor
and was wearing sunglasses indoors. Henry found the fact that defendant wore
sunglasses during the evaluation significant, because it did not allow Henry
to see his facial expressions; this led Henry to believe that perhaps
defendant had "something that he did not want me to see." Henry described
defendant as having an excellent command of the english language, but being
very deliberate and measured in what he said, his responses having a "somewhat
rehearsed quality." Later in his testimony Henry returned to this, stating
that he believed the most remarkable things about defendant were that he was
guarded and suspicious, not very forthright, but had an excellent command of
English and very deliberate measured speech.
Defendant was able to give Henry a very detailed account of his behavior
during the day of the crime, which suggested to Henry that defendant's
intellectual faculties and thought processes were intact. Defendant related a
number of details to him regarding the events of the evening of the murder
before his wife died, including observations and jokes he and the victim had
made about the movie they were watching. However, defendant purported to have
no recollection of how his wife died; he had no memory of the events
preceding the moment he told his daughter to call 911. Henry testified that
defendant told him that he had been taking his medication on the date of the
murder; Henry confirmed this information through (unspecified) collateral
sources.
Henry conducted a "character logic assessment" of defendant, which is an
assessment of how someone sees themselves and interacts with the world. Henry
saw defendant as being narcissistic and having some degree of antisocial
personality disorder. Henry stated that the hallmark of antisocial
personality disorder is being manipulative and lacking regard for the truth
and for others; he defined narcissism as a sense of entitlement or being above
laws or rules.
Defendant's employment status was among the things that he discussed
with Henry. Henry found no evidence suggesting that defendant was to be fired
in April 1993. In fact, defendant told Henry that he had just finished a
project ahead of schedule and under budget. Henry saw a May 1995 letter from
Goodwill which stated that defendant no longer worked there because he had
"abandoned his responsibilities"--Henry believed this referred to the time
when defendant was in custody after the crime.
Henry saw no evidence that defendant was psychotic, meaning that he was
having auditory or visual hallucinations, and stated that "cognitively he was
sharp as a tack." There was no evidence of an organic basis for any memory
loss. Henry had a difficult time assessing defendant's mood because he did
not present his history accurately; Henry felt that often he said things
because they were in his best interest. He admitted that defendant had
mentioned feeling like there were people "out to get him," and recounted one
specific episode in 1994 when he thought someone was spiking his drinks in a
bar; there was also evidence in prior records that defendant suffered from
paranoia.
Before he reached his final conclusion, Henry consulted collateral
sources (in addition to the records he had already examined). He spoke with
defendant's two daughters, his son-in-law, and an Assistant State's Attorney.
His interviews with the family members lasted approximately an hour and a
half.
Henry diagnosed the defendant first as having a history of alcohol
dependence. His second diagnosis was "possible" major depressive disorder.
His final psychiatric diagnosis was that defendant had unspecified personality
disorder with antisocial and narcissistic features. He qualified his
diagnosis by stating that it was in part based on information provided by
defendant, on whose credibility he did not rely. He stated that this
suspicion was corroborated by the results of the MMPI administered by Dr.
Dawkins, noting that all of the scales included in the MMPI to detect
malingering (the L, F and K scales) were elevated in the results of
defendant's testing.
Henry's opinion was that on the date of the murder defendant was not
suffering from a mental illness, and was therefore sane at the time of the
crime. He noted that defendant was taking his medication, described himself
as being very productive at work, and had been engaging in other activity
uncharacteristic of someone severely depressed--joking with his wife, and
reading one or more books during the day.
Henry criticized on two grounds Dawkins' determination that defendant
was suffering from a dissociative state at the time of the murder. First, he
stated that any of Dawkins' results would be difficult to substantiate because
the MMPI results indicated that defendant lied and exaggerated his symptoms.
Second, psychiatric illness generally occurs "longitudinally," meaning that
symptoms recur. Here there was no history of defendant entering a
dissociative state before the crime or since.
Henry also disagreed with Dr. Conroe's diagnosis that defendant was
suffering from a major depressive episode at the time of the crime. First, as
with Dawkins, he felt the opinion had to be discounted because it was so
heavily based on information provided by defendant. Second, Henry felt there
was no evidence defendant was depressed around the time of the offense. He
noted again that defendant had reported having completed a project ahead of
schedule and below budget; he had been having a jovial conversation with his
wife on the evening of April 4; and he read at least one entire book on that
date. This behavior would be inconsistent with someone being in the throes of
a major depressive episode.
Henry did admit on cross-examination that elevation on the L, F and K
scales of the MMPI could be explained by a severe psychiatric disturbance as
well as by malingering. However, he felt that in this case a severe
disturbance was not the explanation for the elevation. He was aware that the
defense experts had reached a different conclusion, and was also aware that
the 1992 VA admission report diagnosed him with major depression with
psychotic features. However, he felt that since all of these diagnoses were
based on information provided by defendant, they were of little value. He
noted that he spoke with three other psychologists in his office, and all
three agreed that the profile was "highly suggestive" of malingering.
He admitted that defendant had not been taking stelazine or any other
antipsychotic medication at the time of the crime, but his understanding was
that the stelazine had been withdrawn because defendant was no longer
psychotic. He discounted the fact that the dose of stelazine had been
increased while defendant was an inpatient at the VA because he attributed it
to defendant's subjective reporting of his symptoms.
When Henry asked defendant why he was wearing sunglasses, he was told
that they were for light sensitivity. Henry did not ask defendant who his
optometrist was, nor did he make any attempt to verify defendant's condition
of light sensitivity. He also did not verify defendant's statement that he
had just brought in a job at Goodwill ahead of schedule and under budget. Nor
did he consult the most recent VA records, since, he explained, his primary
concern was defendant's mental state at the time of the crime. He did,
however, consult records through 1994.
At the time Henry spoke with defendant, he was taking Zoloft, an
antidepressant. Defendant told him he was taking two other medications as
well; one was Calan, a blood pressure medication, and defendant did not recall
what the other one was. Before the trial court made its ruling, it
sustained an objection made by the defense at trial, and stated that based on
Wainwright v. Greenfield, 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634 (1986),
it would not consider defendant's invocation of his Miranda right to an
attorney in evaluating his sanity. Nevertheless, the court found defendant
guilty of first degree murder and found the defense had not proven defendant
was insane at the time of the crime. The court discounted the conclusions of
Drs. Conroe and Dawkins as being more or less completely based on what they
were told by the defendant. It found Dr. Henry's testimony much more
credible, and found defendant was sane.
Defendant appeals, raising two issues. First, he contends his
conviction must be reversed and the cause remanded for a new trial because he
was taking psychotropic medication at the time of trial but did not receive a
fitness hearing. Second, he contends the trial court's conclusion that he did
not prove himself insane was against the manifest weight of the evidence.
ANALYSIS
I. PSYCHOTROPIC MEDICATION AND FITNESS HEARING
Defendant's first argument is that his conviction must be reversed and
the cause remanded because he did not receive a fitness hearing despite the
fact he that was taking Zoloft at the time of trial, as Dr. Conroe testified.
He argues that the version of section 104-21(a) of the Illinois Code of
Criminal Procedure (Code) which was in effect during his trial (725 ILCS
5/104-21(a) (West 1994)) guaranteed him a fitness hearing because he was
receiving psychotropic medication, and also argues that the only remedy for
his not having received such a hearing is to reverse his conviction and remand
the cause for a new trial after a proper fitness hearing.
The State does not dispute that defendant was taking psychotropic
medication at the time of trial and did not receive a fitness hearing.
However, it argues, first, that this Court should apply the statute as amended
subsequent to defendant's trial, under which it argues defendant is entitled
to no relief. Second, it argues that even if this Court applies the original
version of the statute, or if we find defendant entitled to relief under the
amended statute, the relief to which defendant is entitled is not an automatic
reversal of his conviction, but rather a retroactive fitness hearing.
A. Was defendant entitled to a fitness hearing--What statute
applies?
Between the time of defendant's trial and now, section 104-21(a) of the
Code has twice been amended by the legislature. Until December 1995, section
104-21(a) provided that "[a] defendant who is receiving psychotropic drugs or
other medications under medical direction is entitled to a hearing on the
issue of his fitness while under medication." 725 ILCS 5/104-21(a) (West
1994). The legislature amended this section effective December 31, 1995, to
provide "[a] defendant who is receiving psychotropic drugs under medical
direction is entitled to a hearing on the issue of his or her fitness while
under medication; however, no hearing is required unless the court finds there
is a bona fide doubt of the defendant's fitness." 725 ILCS 5/104-21(a) (West
supp. 1995).[fn2] The statute was amended effective December 31, 1996, to
provide "[a] defendant who is receiving psychotropic drugs shall not be
presumed to be unfit to stand trial solely by virtue of the receipt of those
drugs or medications." 725 ILCS 5/104-21 (West 1996).
Our Supreme Court has recently made clear that amended section 104-21(a)
may not be given retroactive effect. See People v. Kinkead, No. 75236, slip
op. at 14, 16 (May 21, 1998). The version of the statute which applies is
that which was in effect on the date defendant's right to a fitness hearing
vested. People v. Carlson, No. 1-96-0557, slip op. at 9-10 (November 26,
1997) (since section 104-21(a) protects a constitutional right, it will not
apply retroactively if that right has already vested); People v. Cortes, No.
80149, slip op. at 15 n. 2 (Jan. 23, 1998).[fn3] But cf. People v. Jackson,
No. 1-97-0355, slip op. at 6 (February 13, 1998) (interpreting Cortes to stand
for the unilateral proposition that "the preamended version of section 104-
21(a) must be applied on direct appeal"). At the latest, a defendant's right
to a fitness hearing vests at the time of sentencing. Carlson, slip op. at
10, citing People v. McKay, 282 Ill. App. 3d 108, 114-15, 668 N.E.2d 580, 585-
86 (1996). In this case defendant's trial (which concluded in August 1995)
and sentencing (in October 1995) both concluded before section 104-21(a) had
been amended even for the first time. Accordingly, the pre-December 1995
version of the statute applies, and defendant was entitled to a hearing on his
fitness because he was receiving psychotropic drugs.[fn4] 725 ILCS 5/104-
21(a) (West 1994).
B. What is the remedy for defendant not having received a fitness
hearing?
The next question is what is defendant's remedy for not having received
the fitness hearing at the time of trial. Defendant argues his conviction and
sentence must be reversed and the cause remanded for a new trial. The State
argues that we need merely remand for a retrospective fitness hearing.
Before 1997, the remedy ordinarily would have been to vacate defendant's
conviction and sentence and grant him a new trial, if factual grounds for a
hearing existed. See, e.g., People v. Birdsall, 172 Ill. 2d 464, 476, 670 N.E.2d 700, 706 (1996). However, our supreme court has recently clarified
that even under the pre-December 1995 version of section 104-21(a) it is not
always necessary to vacate the conviction of a defendant who did not receive a
fitness hearing. Rather, a trial court may hold a retrospective fitness
hearing, and if the evidence adduced at such a hearing "'establishes that the
defendant did not, in fact, suffer any impairment as a result of his ingestion
of psychotropic medication,'" defendant is not entitled to a new trial and his
conviction may be affirmed. Cortes, slip op. at 16, quoting People v. Neal,
No. 82556, slip op. at 9 (November 20, 1997), citing People v. Burgess, 176 Ill. 2d 289, 302-4, 680 N.E.2d 357, 363-64 (1997). The rule announced in
these cases applies to cases pending at the time they were announced,
including cases pending on direct review, such as the instant case. Cortes,
slip op. at 16, citing Neal, slip op. at 9-11.
The decisions in Cortes, Neal, and Burgess establish that a defendant's
fitness may be determined by a retrospective fitness hearing. However, it is
not entirely clear in what circumstances such a hearing will suffice. In Neal
our supreme court cautioned that "retrospective fitness determinations will
normally be inadequate to protect a defendant's due process rights when more
than a year has passed since the original trial and sentencing," this rule
yielding only in "exceptional cases." Neal, slip op. at 10. More than two
years have passed since defendant's sentencing in this case. Accordingly, the
question is what must be found on remand for this to constitute an
"exceptional case," such that defendant need not receive a fitness hearing and
a retrial.
Burgess characterized the retrospective hearing as a "case-specific
inquiry into the psychotropic drugs administered to this particular
defendant." 176 Ill. 2d at 303, 680 N.E.2d at 363. It stated that courts
"should not automatically assume that every psychotropic drug will inevitably
render the person taking it unfit for purposes of trial or sentencing, and we
therefore conclude that retrospective hearings are sometimes proper."
Burgess, 176 Ill. 2d at 304, 680 N.E.2d at 364. The court held that
"The evidence in this case, including the prescribing doctor's
testimony [at the retrospective hearing, to the effect that at the
dosages he prescribed, none of the medication could have had any
effect on defendant's mental condition even if taken in
combination], the judge's observations [of defendant at trial],
and the defendant's own testimony at trial, compels the conclusion
that the defendant was suffering no impairment as a result of his
ingestion of psychotropic drugs during the time of his trial and
sentencing hearing." Burgess, 176 Ill. 2d at 304, 680 N.E.2d at
364.
Neal clarified the application of Burgess. It noted that although in
that case approximately 15 years had passed since defendant's trial and
sentencing,
"[t]he passage of time *** is not dispositive [of the question
whether a retrospective hearing may be held]. The federal
decisions do not establish a bright line rule. Rather than
imposing a flat ban on retrospective fitness determinations at
delayed post-conviction hearings, they represent an admonition as
to the inherent difficulty of retrospectively determining an
accused's competency to stand trial [citation], a principle we
well appreciate. [Citation].
Consistent with the United States Supreme Court's
admonition, we cannot dispute that retrospective fitness hearings
will normally be inadequate to protect a defendant's due process
rights when more than a year has passed since the original trial
and sentencing. In exceptional cases, however, circumstances may
be such that the issue of defendant's fitness or lack of fitness
at the time of trial may be fairly and accurately determined long
after the fact. In such cases, Burgess will apply, and a
defendant will not automatically be entitled to have his original
conviction and sentence automatically set aside for a new trial."
Neal, slip op. at 10-11.
Neal went on to state that the situation before it was "directly analogous to
that present in Burgess, where, as here, the evidence showed that the
medication ingested by the defendant could not have had any effect on his
fitness." Neal, slip op. at 11. The sole evidence to which the court
referred in Neal was a psychiatrist's testimony at a retrospective hearing
that at the prescribed dosage the drug defendant was taking was "unlikely" to
impair mental abilities and rarely evoked psychotic symptoms, and that persons
taking the drug "generally improve their cognitive ability." Neal, slip op.
at 5. The psychiatrist in Neal not only testified as an expert in
pharmacology, psychiatry and medicine, but was on the board of advisors of the
primary manufacturer of the drug which defendant was taking; the court
characterized him as having "extensive knowledge of [the drug's] development,
use and chemical properties." Neal, slip op. at 4.
It would seem after Neal that a retrospective determination of fitness
may be upheld if the State introduces expert testimony to the effect that the
drug or drugs defendant was taking could have had no adverse impact on his
fitness at the prescribed dosage. However, this does not rule out the
possibility that a trial court could determine defendant was fit based on
other evidence. We note that--although in each case expert drug/dosage
testimony was also introduced--our supreme court has cited other evidence in
support of retrospective fitness determinations, such as defendant's testimony
and the trial court's observations of defendant (Burgess, 176 Ill. 2d at 304,
680 N.E.2d at 364), and pre-trial fitness examinations which concluded
defendant was fit to stand trial, or "fit to stand trial with medication"
(Cortes, slip op. at 17). We cannot rule out the possibility that a fitness
determination could be made at a retrospective hearing based on evidence other
than expert drug/dosage testimony ruling out the possibility of psychotropic
effects.[fn5] However, exclusive reliance on other factors will be closely
scrutinized, in order that the exception allowing retrospective hearings does
not swallow the rule that reversal and remand is the appropriate remedy. We
stress that the evidence, of whatever character, must be sufficiently clear
that the court may "fairly and accurately" (Neal, slip op. at 10-11) determine
defendant's sanity at the time of trial despite whatever length of time has
elapsed since his trial and sentencing.[fn6]
Accordingly, we remand for the circuit court to conduct a retrospective
hearing on the issue of whether defendant was fit to stand trial. If the
court determines at that hearing that this is one of those exceptional cases
in which defendant's sanity at the time of trial may fairly and accurately be
determined despite the time intervening, his conviction may be affirmed. If
the evidence is inconclusive or suggests that defendant was impaired, his
conviction and sentence must be vacated and he must be granted a new trial.
II. SANITY
Defendant also argues that the circuit court erred in rejecting his
defense of insanity. He requests that this Court vacate his conviction and
enter a verdict of not guilty by reason of insanity.
In Illinois all defendants are presumed to be sane. People v. Williams,
265 Ill. App. 3d 283, 289, 638 N.E.2d 345, 349 (1994). The burden is on the
defendant to prove insanity by a preponderance of the evidence. 720 ILCS 5/2-
6-2(e) (West 1994).[fn7] We will not reverse a trial court's conclusion
regarding sanity unless it is against the manifest weight of the evidence.
People v. Johnson, 146 Ill. 2d 109, 128-29, 585 N.E.2d 78, 86 (1991); People
v. Baker, 253 Ill. App. 3d 15, 27, 625 N.E.2d 719, 726 (1993). The trial
court is free to accept one expert's testimony over another; experts'
comparative credibilities and the weight to be accorded their respective
testimony are matters for the trier of fact to determine. Williams, 265 Ill.
App. 3d at 289, 638 N.E.2d at 349. The relative weight to be given an expert
witness' opinion is measured by the reasons given for the conclusion and the
factual details supporting it. People v. Sojak, 273 Ill. App. 3d 579, 587,
652 N.E.2d 1061, 1067 (1995).
We do not find grounds to reverse the circuit court's judgment. The
expert testimony, set out in detail above, conflicted. The two defense
experts differed not only from the State, but from each other, in their
diagnoses of defendant. As Dr. Henry observed, the defense experts' opinions
were suspect because of the degree to which they relied on the accuracy of the
information provided them by defendant despite indications in the MMPI that
defendant was not telling the truth. Also, both defense experts were somewhat
discredited on cross-examination. For example, Dr. Conroe stated that his
opinion that defendant was insane because of major depression would not change
even if defendant was taking his prescribed anti-depressant medication at the
time of the crime. Dr. Dawkins stated that it did not matter to her whether
what she believed was the triggering event for defendant's dissociative state
at the time of the crime had actually happened, because it was defendant's
perceptions, not objective reality, which mattered. The trial court was
entitled to consider these peculiarities in determining what weight to accord
the experts' testimony.
Dr. Henry was also impeached to some degree by his failure to
investigate certain facts, including defendant's assertion that he wore
sunglasses because of light sensitivity. However, it is in a situation just
such as this, when it is not entirely clear who is correct, that deference to
the judgment of the trial court is most appropriate. "That the witnesses
reached different medical conclusions based upon the same foundational
evidence does not mean defendant sustained his burden of proof or that the
State failed to carry its burden. *** The contradictory expert opinion
presented the trial judge with a classic question of fact." Sojak, 273 Ill.
App. 3d at 588, 652 N.E.2d at 1068. We do not find the conclusion that
defendant was sane to have been against the manifest weight of the evidence.
As a final note, our affirming the trial court's conclusion that
defendant was sane does not mean that the trial court is bound to find
defendant sane if a retrial is necessary. If the retrospective fitness
hearing does not establish defendant's fitness to stand trial, the court will
have to draw its own conclusions regarding his guilt and his sanity--if he
chooses to present that defense--on retrial.
III. CONCLUSION
For the reasons above stated, we reverse and remand to the circuit court
for further proceedings consistent with this opinion.
Reversed and remanded.
LEAVITT, P.J. and CAHILL, J., concur. (but see CAHILL, J., addition)
JUSTICE CAHILL concurring:
The majority analysis of the supreme court cases that have dealt with
this issue is faultless. I write separately only to point out that the issue
of the retroactive application of 720 ILCS 5/6-2(e) (West supp. 1995) had not
been addressed, other than in footnotes, until the second supreme court
opinion in Kinkead. I agree with the footnote in our opinion that the special
concurrence in the second Kinkead opinion "implicitly agreed with the
plurality that the amended version of the statute should not be given
retroactive effect...". Yet the second Kinkaid opinion does not squarely
address the discussion of rules of procedure, including rebuttable
presumptions, that appear in First National Bank of Chicago v. King, 165 Ill. 2d 533 at 542-43, or the supreme court cases cited therein.
[fn1] Although no witness testified to the fact directly, Dawkins and
the State appear to have known April 5 was defendant's birthday, as is
reflected on the arrest report.
[fn2] This version of the statute was declared unconstitutional by
our supreme court. Johnson v. Edgar, 176 Ill. 2d 499, 517, 680 N.E.2d 1372,
1380 (1997).
[fn3] Cortes cites three cases as authority for its application of
the pre-amended version of section 104-21. The first case contained no
explanation why the amended version of section 104-21(a) did not apply. See
People v. Birdsall, 172 Ill. 2d 464, 475 n. 1, 670 N.E.2d 700, 706 n. 1
(1996). However, as was explicitly noted in Cortes, the other two cases both
based their holdings on the fact that the defendant's right to a fitness
hearing accrued prior to the effective date of the amendment. See People v.
Johns, 285 Ill. App. 3d 849, 855-56, 674 N.E.2d 882, 886-87 (1996); People v.
McKay, 282 Ill. App. 3d 108, 114-15, 668 N.E.2d 580, 585-86 (1996).
Accordingly, we believe this to be the rationale for the court's decision in
that case.
[fn4] We recognize that two panels of the appellate court have
concluded that the amended version of section 104-21(a) applies retroactively.
See People v. Perry, No. 1-96-0037, slip op. at 21-22 (September 30, 1997);
People v. Gibson, 292 Ill. App. 3d 842, 847, 687 N.E.2d 1076, 1079 (1997).
However, we find that the Supreme Court's decisions in Cortes and Kinkead have
now definitively established that the amendment does not apply retroactively.
[fn5] But see People v. Kinkead, 168 Ill. 2d 394, 410-11, 660 N.E.2d 852, 859 (1995) ("personal observation of an accused who is on [psychotropic]
medication does not replace the need for a fitness hearing"); Pate v.
Robinson, 383 U.S. 375, 387, 15 L. Ed. 2d 815, 823, 86 S. Ct. 836, 843 (1966)
(noting as weaknesses of retrospective fitness determinations that "[t]he jury
would not be able to observe the subject of their inquiry, and expert
witnesses would have to testify solely from information contained in the
printed record").
[fn6] Our Supreme Court's recent decision in Kinkead clarified that a
defendant will not receive a new trial solely because he was receiving
psychotropic medications during trial and sentencing; rather, a case-by-case
approach must be taken. See Kinkead, slip op. at 20. We note that Kinkead
did not, however, resolve the question of what evidence may be adduced at a
retroactive fitness hearing, nor what standard applies in review of the
circuit court's conclusion reached at such a hearing, because there was no
majority opinion. The three-member plurality opinion appears to have
conducted a de novo review (see Kinkead, slip op. at 21-22) of the evidence
adduced after its previous decision ordering the circuit court to conduct "a
limited remand for clarification of the circumstances surrounding defendant's
use of psychotropic medications" (see Kinkead, slip op. at 2, quoting 168 Ill. 2d at 415, 660 N.E.2d at 861). The three dissenting Justices would have
applied an abuse of discretion standard to the circuit court's failure to
grant defendant a fitness hearing and concluded that defendant was entitled to
no relief. Kinkead, slip op. at 31, 35 (Heiple, J., dissenting, joined by
Miller, J., and Bilandic, J.).
Although the special concurrence implicitly agreed with the plurality
that the amended version of the statute should not be given retroactive
effect, it did not agree with the plurality's review of the evidence at the
remand hearing. Rather, it concurred in the result because it believed that,
based on Neal, defendant was entitled to a remand for a new trial because a
retrospective fitness hearing could not protect defendant's due process
rights, in light of the facts that more than a year had elapsed since the
conviction and sentencing and the case was not one in which the court could
"say that the medication could not possibly have had any effect on defendant's
fitness." Kinkead, slip op. at 27-28 (Harrison, J., specially concurring).
Accordingly, Kinkead cannot be deemed to have resolved the lingering
question of the type and quantum of evidence required to be adduced at a
remand hearing.
[fn7] Effective August 1, 1995, the legislature amended the statute
to raise the burden of proof from a preponderance of the evidence to clear and
convincing evidence. 720 ILCS 5/6-2(e) (West supp. 1995).
June 17, 1998
No. 1-95-3903
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
MICHAEL HILL,
Defendant-Appellant. )
)
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County.
Honorable
Colleen McSweeney Moore,
Judge Presiding.
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
Defendant Michael Hill appeals his conviction of first degree murder
(720 ILCS 5/9-1(a)(1) (West 1994)) by the circuit court of Cook County
following a bench trial in August 1995. He argues his conviction must be
reversed and remanded for a new trial because he did not receive a fitness
hearing despite the fact that he was taking psychotropic medication at the
time of the trial. In addition, he argues the court's rejection of his
insanity defense was against the manifest weight of the evidence, and his
conviction should be reversed and a finding of not guilty by reason of
insanity entered.
In April 1993, defendant lived with Marguerite Hill, his wife, and Tracy
Hill, his adult daughter. On the evening of April 4, Tracy returned home from
work at some time after midnight. When she walked to her parents' bedroom,
she saw her father, fully clothed, sitting on the floor by the bed, cradling
Marguerite's head in his lap. Marguerite was clad only in panties. Tracy
immediately backed up and apologized, but received no response. She went to
her room and went to sleep.
Defendant woke his daughter at approximately 4:30 a.m. on the morning of
April 5, and told her to call 911, but would not tell her why. As the house
phone could not make outgoing calls, Tracy got dressed and ran down the street
to make the call. When Tracy went into her parents' bedroom after making the
call, she saw her father sitting on the floor and her mother lying next to him
with her head in his lap, covered by a blanket or sheet. When Tracy asked
defendant what was wrong and tried to look at her mother, defendant leaned
down over her so Tracy could not see her face. She identified a necktie found
near the victim as one she had given her father. After the paramedics
arrived, Tracy examined the windows and doors of the house, looking for signs
of forced entry; she did not see any.
Tracy testified that defendant had received psychiatric treatment before
April 5, 1993. In 1992 he had received in-patient treatment at Jackson Park
Hospital after a suicide attempt. Later in 1992 he was admitted to the
Veteran's Administration Hospital ("VA") for approximately a month, after
which he received some out-patient treatment through the VA. She had not
noticed any changes in defendant's behavior before either of the two
admissions for treatment. She did not remember him being admitted for
treatment on any other occasions. She did not state why he had been admitted.
When paramedics responded to the 911 call, they found defendant sitting
on the floor of the bedroom with the victim lying beside him, her head cradled
in his lap. Defendant did not respond to their questions why they had been
called or what was wrong. When the paramedics examined the victim they
discovered that she had been deceased long enough for rigor mortis to set in,
which took approximately 6-8 hours.
The paramedics summoned the police. When the police arrived, around
5:30 a.m., defendant initially failed to respond to their questions. After a
while, he stated that he did not remember what had happened. Several
detectives arrived at the scene at approximately 6:00 a.m. Defendant told
Detective Edmond Leracsz that he had been watching television the night
before, and he had developed a headache, for which he took some aspirin. The
aspirin did not help, and the victim offered to rub his temples. At this time
the victim was fully clothed. The next thing defendant remembered was being
awakened by the alarm clock at 4:30 a.m., when he went to wake his daughter.
Defendant repeated this version of events when he spoke with some other
detectives at the police station. Detective Leracsz inspected the windows and
doors of the house, looking for signs of forced or attempted forced entry, but
found no such evidence.
On April 6 defendant spoke with Assistant State's Attorney Peggy
Chiampas at the police station. He repeated the same version of events to her
until she asked him what he remembered next after watching television. At
that point he stated that he wanted a lawyer, and Chiampas terminated the
interview. She described him as being very polite and alert. He looked at
her when he spoke, and when she asked questions he responded promptly and
appropriately. He did not complain about how he felt.
Deputy Medical Examiner Dr. Mitra Kalelkar conducted the post-mortem
examination of decedent. She testified that in her opinion the decedent had
been the victim of a homicide by strangulation. The parties stipulated that
if called, Cecilia Doyle would have testified that tests performed on blood
stains on the necktie found next to the victim revealed that the blood on the
tie was consistent with the victim's blood.
The State rested, and the defense's motion for a directed verdict was
denied. The defense proceeded to call its first witness, Dr. Henry Conroe.
Dr. Conroe, a psychiatrist, first met the defendant in January 1994. He
interviewed him two subsequent times as well, for a total of approximately 5
hours. He formed an opinion that in April 1993 defendant was suffering from a
major depressive episode with mood incongruent and psychotic features. He did
not only rely on his sessions with defendant in forming his opinion; he also
considered an interview which he conducted with defendant's friend, Phillip
Schwartz; police reports of the homicide; records from the VA and Jackson
Park; psychological testing on defendant in May 1993 at the Department of
Corrections; brief telephone contact with defendant's treating doctor, Dr.
Earl; psychological testing by Dr. Marva Dawkins; and a report prepared by Dr.
Henry from the Psychiatric Institute of Cook County.
Conroe testified that in addition to his depression, defendant had
"persecutory ideation." While at the VA hospital he had psychoses centering
around his wife, involving a conspiracy in the police department because a
police officer supposedly had an affair with his wife. Conroe was aware that
there actually had been problems with defendant's wife's infidelity, and
admitted that defendant's belief that his wife had been having an affair with
a Chicago Police Officer was not psychotic. Conroe testified that defendant
told him that issues of his wife's fidelity no longer concerned him. He no
longer believed the entire Chicago Police Department knew his wife was having
an affair, as he once had.
Conroe testified that defendant was admitted to Jackson Park Hospital in
April 1992, after taking an overdose of antidepressant medication. He was
suicidal and had been for about a year since he had lost his job. He was not
eating or sleeping well, felt despondent and could not find a job. He was
admitted to the VA in May 1992, shortly after he signed himself out of Jackson
Park. Conroe initially testified that Defendant's diagnosis at the VA was
that he suffered from major depression with psychotic features. On cross-
examination he admitted that the diagnosis was actually a single episode of
major depression. Defendant was initially admitted to the VA for inpatient
treatment, then switched to outpatient treatment before his discharge. He
stopped attending outpatient sessions in November 1992.
Defendant had been taking doxepin (sinequan), an anti-depressant, and
stelazine, an anti-psychotic, in late 1992 and early 1993. These medications
had been prescribed for him during his treatment at the VA. Doxepin should
have helped defendant maintain his energy level and mood, help him sleep and
eat and concentrate. Stelazine should have helped him keep any paranoid
thinking or persecutory ideation in check. Defendant told Conroe that he had
ceased taking the medication 2-3 weeks before his wife's murder. Conroe
believed that there would be at least some, or possibly a full return of
symptoms within 2-4 weeks after ceasing taking the medications.
Conroe believed that at the time of the crime, defendant was suffering
from major depression with mood incongruent psychotic features, and he was
unable to appreciate the criminality of his behavior and unable to conform his
conduct to the requirement of the law. Conroe testified that the defendant
was still under treatment at the VA hospital at the time of trial, and from
Conroe's review of the records to date from the VA, it appeared defendant was
still receiving Zoloft (misspelled in the record as "solarlov"), an anti-
depressant, at the time of trial. Conroe admitted that Dr. Henry's report
indicated that the defendant had told him that he was taking his medication at
the time of the crime. However, Conroe maintained that his opinion as to
whether defendant was sane at the time of the crime would not change even if
defendant had been taking his medication at the time. He noted that defendant
was deteriorating despite being on doxepin, which indicated the dose was not
sufficient or it was not the right medication. He admitted that the only
sources of information for defendant's deterioration were defendant himself
and Schwartz. However, Conroe maintained that whether defendant was on
medication at the time of the crime meant nothing to him in terms of his
opinion of defendant's sanity at the time.
Conroe admitted that defendant had been taken off stelazine on September
14, 1992, while still an inpatient at the VA. The records reflected that
defendant had denied any paranoid or bizarre behaviors thereafter. The
stelazine was never restored according to the records. There was no evidence
in the records from the VA of any bizarre behavior or physical acting out
after that date; there were no physical symptoms at least until October 22,
1992. However, Conroe noted that defendant was still taking anti-depressants
during this time, and adequate treatment of his depression would lessen his
psychotic features. Conversely, removal of the anti-depressant would
accelerate an onslaught of psychotic features. Conroe noted that it was
shortly after the stelazine was discontinued that defendant began missing
appointments and not attending the VA clinic. This was also around the same
time Schwartz described his behavior change.
Conroe testified that Phillip Schwartz told him that he and defendant
had met when both were inpatients at the VA. Their relationship had continued
after defendant's release from inpatient treatment. Defendant had helped
Schwartz get a job at Goodwill around Christmas time of 1992, and Schwartz had
become concerned about defendant becoming more depressed and not being his
usual self in the way he related to people. He spoke with the decedent in
late December 1992, and she agreed defendant was becoming depressed and needed
to return to the VA. Conroe was not aware of defendant returning to the VA at
that time, although he knew that defendant did continue his medication until
mid-March 1993.
Conroe believed that Schwartz was not an inpatient at the time they
spoke. He did not know what Schwartz's prior diagnosis was, and did not know
if he was taking psychiatric medication when he spoke with him. He stated
that Schwartz did not seem bizarre or profoundly depressed, and he was able to
give a coherent account and answer questions relevantly.
Conroe estimated he had examined about 150 defendants and testified in
about 50 trials. All but one of the examinations were at the request of the
defense. He admitted co-authoring an article entitled "Sanity Defense--A
Practical Guide" with a member of the ACLU. Although he maintained that major
depression was a "major mental disorder" when he was asked if it was a
psychosis, he admitted that there was no evidence of psychoses when defendant
admitted himself to Jackson Park. When defendant signed himself out of
Jackson Park, there were no criteria to certify for involuntary treatment.
Conroe admitted that insanity is difficult to establish if the illness itself
is not a psychosis.
Conroe stated that defendant had given him a full life history, with
numerous details, organized in a coherent fashion. He mentioned events
related to his growing up, his education, employment, and alcohol use or non-
use, among other things. However, defendant had a gap in his memory
surrounding the murder. Conroe admitted defendant had no history of memory
gaps or amnesia, and he was aware of no organic basis for defendant's loss of
memory. He also admitted that depression would not necessarily impact one's
memory, and it was possible that defendant was lying about his loss of memory.
Conroe countered, however, that people sometimes block out memories too
emotionally intense for them to handle, and he had noticed that defendant
tended to shy away from dealing with situations involving strong emotions.
Conroe also admitted that insanity is often manifested through bizarre
behavior. He admitted that he had examined the police reports and found no
indication therein of any bizarre or unusual behavior on defendant's part.
Conroe stated that he spoke with defendant's son briefly, but did not
speak with defendant's daughter, Tracy. He admitted that she would have been
able to tell him about the defendant's mental condition, but would not admit
she would have had better knowledge of defendant's mental condition than
anyone else.
Conroe admitted that sexual dysfunction (one of the issues for which
defendant was being treated at the VA) could itself be a source of depression
for adult males, as could job loss. This did not mean that as a result of
either of these two occurrences one could not conform one's behavior to the
law or appreciate the criminality of conduct. However, Conroe differentiated
between "being depressed" and suffering from the medical and psychiatric
illness of major depression, with which he had diagnosed defendant.
Conroe's opinion was in part based on tests administered to defendant by
Dr. Dawkins. One of those tests was the Minnesota Multiphasic Personality
Inventory ("MMPI"). Conroe admitted that there were certain scales "built
into" the MMPI "as a sort of truth detector." In this case some of the
results raised questions about the validity of the test. However, Conroe did
not believe the test was invalid. He explained that it was common to see
elevated scores when someone in emotional distress took the test.
Dr. Marva Dawkins, who administered the tests, was the defense's next
witness. Dawkins, a clinical psychologist, was also called as an expert
witness on defendant's sanity. Dawkins's training is in forensic psychology.
She met with defendant in July 1994, at the request of the defense, for
approximately 3 hours. Before she met with him he had been given a battery of
tests through her office: the mental status check list for adults; a symptoms
checklist (the "SCL 90"); the Modified Michigan Alcoholism Screening Test (the
"Modified Mass"); the Bender visual motor test; the Gestalt Test; the Shipley
Institute of Living Test; the personal history checklist for adults; and the
Minnesota Multi-Phasic Inventory 2 ("MMPI 2"). She also reviewed records from
defendant's admissions to Jackson Park and the VA.
Dawkins concluded that defendant suffered from delusional disorder,
major depression with psychoses, and paranoid personality disorder. She
believed he had been suffering from delusional disorder at the time of the
crime, and he was therefore neither able to appreciate the criminality of his
behavior nor to conform his conduct and behavior to the requirements of the
law. Between the time Dawkins prepared her report and trial she reviewed a
report prepared by Dr. Henry of the Psychiatric Institute and medical and
psychological records from the VA hospital; her opinion had not changed as a
result of the additional materials.
Dawkins admitted that defendant had talked "almost non-stop" during her
interview with him, and he was able to organize his thoughts and spoke clearly
and coherently to her. He gave her a number of details, including names and
dates, although Dawkins noted that his date memory was clearer in the last 3
to 4 years. She admitted that almost all of the significant dates he told her
about involved April 5.[fn1] For instance, he told her that twice in his
life he had been fired on April 5. However, although Dawkins found it unusual
that all of the traumatic events in defendant's life occurred on his birthday,
she did not attempt to verify this fact. The important thing to her was
defendant's psychological state--not "reality," but defendant's reality.
Dawkins believed that defendant's memory loss during the murder was
triggered by a traumatic experience. Specifically, she believed it was
triggered by defendant being told that he was going to be fired from Goodwill
on his birthday. Although not certain, she thought it was possible that
defendant had also experienced a dissociative reaction when he lost his job on
April 5 the first time. She also thought it was possible he had experienced
one when he lost his job on April 5 the second time, although there was no
record thereof. He did describe himself as having experienced an "emotional
[sic] induced physiological breakdown."
Dawkins stated that her opinion would not change if it were not true
that defendant was going to lose his job. The important thing was defendant's
perception that he was going to lose his job. She noted that defendant "lived
in a world that was filled with delusions that were not true in reality and he
acted upon these delusions." Dawkins admitted that there was no indication of
outside hallucinations in any reports, and that defendant had not reported any
command hallucinations. Dawkins stated that she could not answer the question
whether it was equally possible that defendant's actions were volitional, as
opposed to the result of a dissociative reaction. She explained this question
went to "the heart of a philosophical question of what is volitional and what
is functionally mentally ill."
Dawkins admitted that certain sections in the MMPI--the L, F and K
scales--could be described as validity scales, and are included in order to
alert the examiner to the possibility that the subject is faking his
responses. Dawkins admitted that she had indicated in her report that
defendant's responses raised questions about the overall scale validity. She
admitted that the whole test result could be questioned based on the
indicators. However, she noted that there could be a variety of reasons for
the responses. One reason is that the subject is lying, but another
possibility is the subject's emotional distress. Dawkins noted that she had
not interpreted the MMPI "in the blind"; she used other data, including the
other tests, her face-to-face interview, and her knowledge of defendant's
history to help her interpret the test. She concluded that the elevated
scales were not indicative of false answers but rather of emotional and mental
disturbance.
Dawkins admitted that if an intelligent individual took the tests she
administered to defendant with the intent to feign a psychiatric illness, they
could do so. However, she was aware of the problem of malingering, and did
not believe that defendant fit the profile of a malingerer.
In rebuttal the State called Dr. Stafford Henry. Dr. Henry, a forensic
psychiatrist, was an employee of the Circuit Court of Cook County and had been
so employed since July 1993. Henry examined defendant in September and
October 1994, for a total of approximately 5 hours. One of the first things
he noticed about defendant was that he had a guarded and suspicious demeanor
and was wearing sunglasses indoors. Henry found the fact that defendant wore
sunglasses during the evaluation significant, because it did not allow Henry
to see his facial expressions; this led Henry to believe that perhaps
defendant had "something that he did not want me to see." Henry described
defendant as having an excellent command of the english language, but being
very deliberate and measured in what he said, his responses having a "somewhat
rehearsed quality." Later in his testimony Henry returned to this, stating
that he believed the most remarkable things about defendant were that he was
guarded and suspicious, not very forthright, but had an excellent command of
English and very deliberate measured speech.
Defendant was able to give Henry a very detailed account of his behavior
during the day of the crime, which suggested to Henry that defendant's
intellectual faculties and thought processes were intact. Defendant related a
number of details to him regarding the events of the evening of the murder
before his wife died, including observations and jokes he and the victim had
made about the movie they were watching. However, defendant purported to have
no recollection of how his wife died; he had no memory of the events
preceding the moment he told his daughter to call 911. Henry testified that
defendant told him that he had been taking his medication on the date of the
murder; Henry confirmed this information through (unspecified) collateral
sources.
Henry conducted a "character logic assessment" of defendant, which is an
assessment of how someone sees themselves and interacts with the world. Henry
saw defendant as being narcissistic and having some degree of antisocial
personality disorder. Henry stated that the hallmark of antisocial
personality disorder is being manipulative and lacking regard for the truth
and for others; he defined narcissism as a sense of entitlement or being above
laws or rules.
Defendant's employment status was among the things that he discussed
with Henry. Henry found no evidence suggesting that defendant was to be fired
in April 1993. In fact, defendant told Henry that he had just finished a
project ahead of schedule and under budget. Henry saw a May 1995 letter from
Goodwill which stated that defendant no longer worked there because he had
"abandoned his responsibilities"--Henry believed this referred to the time
when defendant was in custody after the crime.
Henry saw no evidence that defendant was psychotic, meaning that he was
having auditory or visual hallucinations, and stated that "cognitively he was
sharp as a tack." There was no evidence of an organic basis for any memory
loss. Henry had a difficult time assessing defendant's mood because he did
not present his history accurately; Henry felt that often he said things
because they were in his best interest. He admitted that defendant had
mentioned feeling like there were people "out to get him," and recounted one
specific episode in 1994 when he thought someone was spiking his drinks in a
bar; there was also evidence in prior records that defendant suffered from
paranoia.
Before he reached his final conclusion, Henry consulted collateral
sources (in addition to the records he had already examined). He spoke with
defendant's two daughters, his son-in-law, and an Assistant State's Attorney.
His interviews with the family members lasted approximately an hour and a
half.
Henry diagnosed the defendant first as having a history of alcohol
dependence. His second diagnosis was "possible" major depressive disorder.
His final psychiatric diagnosis was that defendant had unspecified personality
disorder with antisocial and narcissistic features. He qualified his
diagnosis by stating that it was in part based on information provided by
defendant, on whose credibility he did not rely. He stated that this
suspicion was corroborated by the results of the MMPI administered by Dr.
Dawkins, noting that all of the scales included in the MMPI to detect
malingering (the L, F and K scales) were elevated in the results of
defendant's testing.
Henry's opinion was that on the date of the murder defendant was not
suffering from a mental illness, and was therefore sane at the time of the
crime. He noted that defendant was taking his medication, described himself
as being very productive at work, and had been engaging in other activity
uncharacteristic of someone severely depressed--joking with his wife, and
reading one or more books during the day.
Henry criticized on two grounds Dawkins' determination that defendant
was suffering from a dissociative state at the time of the murder. First, he
stated that any of Dawkins' results would be difficult to substantiate because
the MMPI results indicated that defendant lied and exaggerated his symptoms.
Second, psychiatric illness generally occurs "longitudinally," meaning that
symptoms recur. Here there was no history of defendant entering a
dissociative state before the crime or since.
Henry also disagreed with Dr. Conroe's diagnosis that defendant was
suffering from a major depressive episode at the time of the crime. First, as
with Dawkins, he felt the opinion had to be discounted because it was so
heavily based on information provided by defendant. Second, Henry felt there
was no evidence defendant was depressed around the time of the offense. He
noted again that defendant had reported having completed a project ahead of
schedule and below budget; he had been having a jovial conversation with his
wife on the evening of April 4; and he read at least one entire book on that
date. This behavior would be inconsistent with someone being in the throes of
a major depressive episode.
Henry did admit on cross-examination that elevation on the L, F and K
scales of the MMPI could be explained by a severe psychiatric disturbance as
well as by malingering. However, he felt that in this case a severe
disturbance was not the explanation for the elevation. He was aware that the
defense experts had reached a different conclusion, and was also aware that
the 1992 VA admission report diagnosed him with major depression with
psychotic features. However, he felt that since all of these diagnoses were
based on information provided by defendant, they were of little value. He
noted that he spoke with three other psychologists in his office, and all
three agreed that the profile was "highly suggestive" of malingering.
He admitted that defendant had not been taking stelazine or any other
antipsychotic medication at the time of the crime, but his understanding was
that the stelazine had been withdrawn because defendant was no longer
psychotic. He discounted the fact that the dose of stelazine had been
increased while defendant was an inpatient at the VA because he attributed it
to defendant's subjective reporting of his symptoms.
When Henry asked defendant why he was wearing sunglasses, he was told
that they were for light sensitivity. Henry did not ask defendant who his
optometrist was, nor did he make any attempt to verify defendant's condition
of light sensitivity. He also did not verify defendant's statement that he
had just brought in a job at Goodwill ahead of schedule and under budget. Nor
did he consult the most recent VA records, since, he explained, his primary
concern was defendant's mental state at the time of the crime. He did,
however, consult records through 1994.
At the time Henry spoke with defendant, he was taking Zoloft, an
antidepressant. Defendant told him he was taking two other medications as
well; one was Calan, a blood pressure medication, and defendant did not recall
what the other one was. Before the trial court made its ruling, it
sustained an objection made by the defense at trial, and stated that based on
Wainwright v. Greenfield, 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634 (1986),
it would not consider defendant's invocation of his Miranda right to an
attorney in evaluating his sanity. Nevertheless, the court found defendant
guilty of first degree murder and found the defense had not proven defendant
was insane at the time of the crime. The court discounted the conclusions of
Drs. Conroe and Dawkins as being more or less completely based on what they
were told by the defendant. It found Dr. Henry's testimony much more
credible, and found defendant was sane.
Defendant appeals, raising two issues. First, he contends his
conviction must be reversed and the cause remanded for a new trial because he
was taking psychotropic medication at the time of trial but did not receive a
fitness hearing. Second, he contends the trial court's conclusion that he did
not prove himself insane was against the manifest weight of the evidence.
ANALYSIS
I. PSYCHOTROPIC MEDICATION AND FITNESS HEARING
Defendant's first argument is that his conviction must be reversed and
the cause remanded because he did not receive a fitness hearing despite the
fact he that was taking Zoloft at the time of trial, as Dr. Conroe testified.
He argues that the version of section 104-21(a) of the Illinois Code of
Criminal Procedure (Code) which was in effect during his trial (725 ILCS
5/104-21(a) (West 1994)) guaranteed him a fitness hearing because he was
receiving psychotropic medication, and also argues that the only remedy for
his not having received such a hearing is to reverse his conviction and remand
the cause for a new trial after a proper fitness hearing.
The State does not dispute that defendant was taking psychotropic
medication at the time of trial and did not receive a fitness hearing.
However, it argues, first, that this Court should apply the statute as amended
subsequent to defendant's trial, under which it argues defendant is entitled
to no relief. Second, it argues that even if this Court applies the original
version of the statute, or if we find defendant entitled to relief under the
amended statute, the relief to which defendant is entitled is not an automatic
reversal of his conviction, but rather a retroactive fitness hearing.
A. Was defendant entitled to a fitness hearing--What statute
applies?
Between the time of defendant's trial and now, section 104-21(a) of the
Code has twice been amended by the legislature. Until December 1995, section
104-21(a) provided that "[a] defendant who is receiving psychotropic drugs or
other medications under medical direction is entitled to a hearing on the
issue of his fitness while under medication." 725 ILCS 5/104-21(a) (West
1994). The legislature amended this section effective December 31, 1995, to
provide "[a] defendant who is receiving psychotropic drugs under medical
direction is entitled to a hearing on the issue of his or her fitness while
under medication; however, no hearing is required unless the court finds there
is a bona fide doubt of the defendant's fitness." 725 ILCS 5/104-21(a) (West
supp. 1995).[fn2] The statute was amended effective December 31, 1996, to
provide "[a] defendant who is receiving psychotropic drugs shall not be
presumed to be unfit to stand trial solely by virtue of the receipt of those
drugs or medications." 725 ILCS 5/104-21 (West 1996).
Our Supreme Court has recently made clear that amended section 104-21(a)
may not be given retroactive effect. See People v. Kinkead, No. 75236, slip
op. at 14, 16 (May 21, 1998). The version of the statute which applies is
that which was in effect on the date defendant's right to a fitness hearing
vested. People v. Carlson, No. 1-96-0557, slip op. at 9-10 (November 26,
1997) (since section 104-21(a) protects a constitutional right, it will not
apply retroactively if that right has already vested); People v. Cortes, No.
80149, slip op. at 15 n. 2 (Jan. 23, 1998).[fn3] But cf. People v. Jackson,
No. 1-97-0355, slip op. at 6 (February 13, 1998) (interpreting Cortes to stand
for the unilateral proposition that "the preamended version of section 104-
21(a) must be applied on direct appeal"). At the latest, a defendant's right
to a fitness hearing vests at the time of sentencing. Carlson, slip op. at
10, citing People v. McKay, 282 Ill. App. 3d 108, 114-15, 668 N.E.2d 580, 585-
86 (1996). In this case defendant's trial (which concluded in August 1995)
and sentencing (in October 1995) both concluded before section 104-21(a) had
been amended even for the first time. Accordingly, the pre-December 1995
version of the statute applies, and defendant was entitled to a hearing on his
fitness because he was receiving psychotropic drugs.[fn4] 725 ILCS 5/104-
21(a) (West 1994).
B. What is the remedy for defendant not having received a fitness
hearing?
The next question is what is defendant's remedy for not having received
the fitness hearing at the time of trial. Defendant argues his conviction and
sentence must be reversed and the cause remanded for a new trial. The State
argues that we need merely remand for a retrospective fitness hearing.
Before 1997, the remedy ordinarily would have been to vacate defendant's
conviction and sentence and grant him a new trial, if factual grounds for a
hearing existed. See, e.g., People v. Birdsall, 172 Ill. 2d 464, 476, 670 N.E.2d 700, 706 (1996). However, our supreme court has recently clarified
that even under the pre-December 1995 version of section 104-21(a) it is not
always necessary to vacate the conviction of a defendant who did not receive a
fitness hearing. Rather, a trial court may hold a retrospective fitness
hearing, and if the evidence adduced at such a hearing "'establishes that the
defendant did not, in fact, suffer any impairment as a result of his ingestion
of psychotropic medication,'" defendant is not entitled to a new trial and his
conviction may be affirmed. Cortes, slip op. at 16, quoting People v. Neal,
No. 82556, slip op. at 9 (November 20, 1997), citing People v. Burgess, 176 Ill. 2d 289, 302-4, 680 N.E.2d 357, 363-64 (1997). The rule announced in
these cases applies to cases pending at the time they were announced,
including cases pending on direct review, such as the instant case. Cortes,
slip op. at 16, citing Neal, slip op. at 9-11.
The decisions in Cortes, Neal, and Burgess establish that a defendant's
fitness may be determined by a retrospective fitness hearing. However, it is
not entirely clear in what circumstances such a hearing will suffice. In Neal
our supreme court cautioned that "retrospective fitness determinations will
normally be inadequate to protect a defendant's due process rights when more
than a year has passed since the original trial and sentencing," this rule
yielding only in "exceptional cases." Neal, slip op. at 10. More than two
years have passed since defendant's sentencing in this case. Accordingly, the
question is what must be found on remand for this to constitute an
"exceptional case," such that defendant need not receive a fitness hearing and
a retrial.
Burgess characterized the retrospective hearing as a "case-specific
inquiry into the psychotropic drugs administered to this particular
defendant." 176 Ill. 2d at 303, 680 N.E.2d at 363. It stated that courts
"should not automatically assume that every psychotropic drug will inevitably
render the person taking it unfit for purposes of trial or sentencing, and we
therefore conclude that retrospective hearings are sometimes proper."
Burgess, 176 Ill. 2d at 304, 680 N.E.2d at 364. The court held that
"The evidence in this case, including the prescribing doctor's
testimony [at the retrospective hearing, to the effect that at the
dosages he prescribed, none of the medication could have had any
effect on defendant's mental condition even if taken in
combination], the judge's observations [of defendant at trial],
and the defendant's own testimony at trial, compels the conclusion
that the defendant was suffering no impairment as a result of his
ingestion of psychotropic drugs during the time of his trial and
sentencing hearing." Burgess, 176 Ill. 2d at 304, 680 N.E.2d at
364.
Neal clarified the application of Burgess. It noted that although in
that case approximately 15 years had passed since defendant's trial and
sentencing,
"[t]he passage of time *** is not dispositive [of the question
whether a retrospective hearing may be held]. The federal
decisions do not establish a bright line rule. Rather than
imposing a flat ban on retrospective fitness determinations at
delayed post-conviction hearings, they represent an admonition as
to the inherent difficulty of retrospectively determining an
accused's competency to stand trial [citation], a principle we
well appreciate. [Citation].
Consistent with the United States Supreme Court's
admonition, we cannot dispute that retrospective fitness hearings
will normally be inadequate to protect a defendant's due process
rights when more than a year has passed since the original trial
and sentencing. In exceptional cases, however, circumstances may
be such that the issue of defendant's fitness or lack of fitness
at the time of trial may be fairly and accurately determined long
after the fact. In such cases, Burgess will apply, and a
defendant will not automatically be entitled to have his original
conviction and sentence automatically set aside for a new trial."
Neal, slip op. at 10-11.
Neal went on to state that the situation before it was "directly analogous to
that present in Burgess, where, as here, the evidence showed that the
medication ingested by the defendant could not have had any effect on his
fitness." Neal, slip op. at 11. The sole evidence to which the court
referred in Neal was a psychiatrist's testimony at a retrospective hearing
that at the prescribed dosage the drug defendant was taking was "unlikely" to
impair mental abilities and rarely evoked psychotic symptoms, and that persons
taking the drug "generally improve their cognitive ability." Neal, slip op.
at 5. The psychiatrist in Neal not only testified as an expert in
pharmacology, psychiatry and medicine, but was on the board of advisors of the
primary manufacturer of the drug which defendant was taking; the court
characterized him as having "extensive knowledge of [the drug's] development,
use and chemical properties." Neal, slip op. at 4.
It would seem after Neal that a retrospective determination of fitness
may be upheld if the State introduces expert testimony to the effect that the
drug or drugs defendant was taking could have had no adverse impact on his
fitness at the prescribed dosage. However, this does not rule out the
possibility that a trial court could determine defendant was fit based on
other evidence. We note that--although in each case expert drug/dosage
testimony was also introduced--our supreme court has cited other evidence in
support of retrospective fitness determinations, such as defendant's testimony
and the trial court's observations of defendant (Burgess, 176 Ill. 2d at 304,
680 N.E.2d at 364), and pre-trial fitness examinations which concluded
defendant was fit to stand trial, or "fit to stand trial with medication"
(Cortes, slip op. at 17). We cannot rule out the possibility that a fitness
determination could be made at a retrospective hearing based on evidence other
than expert drug/dosage testimony ruling out the possibility of psychotropic
effects.[fn5] However, exclusive reliance on other factors will be closely
scrutinized, in order that the exception allowing retrospective hearings does
not swallow the rule that reversal and remand is the appropriate remedy. We
stress that the evidence, of whatever character, must be sufficiently clear
that the court may "fairly and accurately" (Neal, slip op. at 10-11) determine
defendant's sanity at the time of trial despite whatever length of time has
elapsed since his trial and sentencing.[fn6]
Accordingly, we remand for the circuit court to conduct a retrospective
hearing on the issue of whether defendant was fit to stand trial. If the
court determines at that hearing that this is one of those exceptional cases
in which defendant's sanity at the time of trial may fairly and accurately be
determined despite the time intervening, his conviction may be affirmed. If
the evidence is inconclusive or suggests that defendant was impaired, his
conviction and sentence must be vacated and he must be granted a new trial.
II. SANITY
Defendant also argues that the circuit court erred in rejecting his
defense of insanity. He requests that this Court vacate his conviction and
enter a verdict of not guilty by reason of insanity.
In Illinois all defendants are presumed to be sane. People v. Williams,
265 Ill. App. 3d 283, 289, 638 N.E.2d 345, 349 (1994). The burden is on the
defendant to prove insanity by a preponderance of the evidence. 720 ILCS 5/2-
6-2(e) (West 1994).[fn7] We will not reverse a trial court's conclusion
regarding sanity unless it is against the manifest weight of the evidence.
People v. Johnson, 146 Ill. 2d 109, 128-29, 585 N.E.2d 78, 86 (1991); People
v. Baker, 253 Ill. App. 3d 15, 27, 625 N.E.2d 719, 726 (1993). The trial
court is free to accept one expert's testimony over another; experts'
comparative credibilities and the weight to be accorded their respective
testimony are matters for the trier of fact to determine. Williams, 265 Ill.
App. 3d at 289, 638 N.E.2d at 349. The relative weight to be given an expert
witness' opinion is measured by the reasons given for the conclusion and the
factual details supporting it. People v. Sojak, 273 Ill. App. 3d 579, 587,
652 N.E.2d 1061, 1067 (1995).
We do not find grounds to reverse the circuit court's judgment. The
expert testimony, set out in detail above, conflicted. The two defense
experts differed not only from the State, but from each other, in their
diagnoses of defendant. As Dr. Henry observed, the defense experts' opinions
were suspect because of the degree to which they relied on the accuracy of the
information provided them by defendant despite indications in the MMPI that
defendant was not telling the truth. Also, both defense experts were somewhat
discredited on cross-examination. For example, Dr. Conroe stated that his
opinion that defendant was insane because of major depression would not change
even if defendant was taking his prescribed anti-depressant medication at the
time of the crime. Dr. Dawkins stated that it did not matter to her whether
what she believed was the triggering event for defendant's dissociative state
at the time of the crime had actually happened, because it was defendant's
perceptions, not objective reality, which mattered. The trial court was
entitled to consider these peculiarities in determining what weight to accord
the experts' testimony.
Dr. Henry was also impeached to some degree by his failure to
investigate certain facts, including defendant's assertion that he wore
sunglasses because of light sensitivity. However, it is in a situation just
such as this, when it is not entirely clear who is correct, that deference to
the judgment of the trial court is most appropriate. "That the witnesses
reached different medical conclusions based upon the same foundational
evidence does not mean defendant sustained his burden of proof or that the
State failed to carry its burden. *** The contradictory expert opinion
presented the trial judge with a classic question of fact." Sojak, 273 Ill.
App. 3d at 588, 652 N.E.2d at 1068. We do not find the conclusion that
defendant was sane to have been against the manifest weight of the evidence.
As a final note, our affirming the trial court's conclusion that
defendant was sane does not mean that the trial court is bound to find
defendant sane if a retrial is necessary. If the retrospective fitness
hearing does not establish defendant's fitness to stand trial, the court will
have to draw its own conclusions regarding his guilt and his sanity--if he
chooses to present that defense--on retrial.
III. CONCLUSION
For the reasons above stated, we reverse and remand to the circuit court
for further proceedings consistent with this opinion.
Reversed and remanded.
LEAVITT, P.J. and CAHILL, J., concur. (but see CAHILL, J., addition)
JUSTICE CAHILL concurring:
The majority analysis of the supreme court cases that have dealt with
this issue is faultless. I write separately only to point out that the issue
of the retroactive application of 720 ILCS 5/6-2(e) (West supp. 1995) had not
been addressed, other than in footnotes, until the second supreme court
opinion in Kinkead. I agree with the footnote in our opinion that the special
concurrence in the second Kinkead opinion "implicitly agreed with the
plurality that the amended version of the statute should not be given
retroactive effect...". Yet the second Kinkaid opinion does not squarely
address the discussion of rules of procedure, including rebuttable
presumptions, that appear in First National Bank of Chicago v. King, 165 Ill. 2d 533 at 542-43, or the supreme court cases cited therein.
[fn1] Although no witness testified to the fact directly, Dawkins and
the State appear to have known April 5 was defendant's birthday, as is
reflected on the arrest report.
[fn2] This version of the statute was declared unconstitutional by
our supreme court. Johnson v. Edgar, 176 Ill. 2d 499, 517, 680 N.E.2d 1372,
1380 (1997).
[fn3] Cortes cites three cases as authority for its application of
the pre-amended version of section 104-21. The first case contained no
explanation why the amended version of section 104-21(a) did not apply. See
People v. Birdsall, 172 Ill. 2d 464, 475 n. 1, 670 N.E.2d 700, 706 n. 1
(1996). However, as was explicitly noted in Cortes, the other two cases both
based their holdings on the fact that the defendant's right to a fitness
hearing accrued prior to the effective date of the amendment. See People v.
Johns, 285 Ill. App. 3d 849, 855-56, 674 N.E.2d 882, 886-87 (1996); People v.
McKay, 282 Ill. App. 3d 108, 114-15, 668 N.E.2d 580, 585-86 (1996).
Accordingly, we believe this to be the rationale for the court's decision in
that case.
[fn4] We recognize that two panels of the appellate court have
concluded that the amended version of section 104-21(a) applies retroactively.
See People v. Perry, No. 1-96-0037, slip op. at 21-22 (September 30, 1997);
People v. Gibson, 292 Ill. App. 3d 842, 847, 687 N.E.2d 1076, 1079 (1997).
However, we find that the Supreme Court's decisions in Cortes and Kinkead have
now definitively established that the amendment does not apply retroactively.
[fn5] But see People v. Kinkead, 168 Ill. 2d 394, 410-11, 660 N.E.2d 852, 859 (1995) ("personal observation of an accused who is on [psychotropic]
medication does not replace the need for a fitness hearing"); Pate v.
Robinson, 383 U.S. 375, 387, 15 L. Ed. 2d 815, 823, 86 S. Ct. 836, 843 (1966)
(noting as weaknesses of retrospective fitness determinations that "[t]he jury
would not be able to observe the subject of their inquiry, and expert
witnesses would have to testify solely from information contained in the
printed record").
[fn6] Our Supreme Court's recent decision in Kinkead clarified that a
defendant will not receive a new trial solely because he was receiving
psychotropic medications during trial and sentencing; rather, a case-by-case
approach must be taken. See Kinkead, slip op. at 20. We note that Kinkead
did not, however, resolve the question of what evidence may be adduced at a
retroactive fitness hearing, nor what standard applies in review of the
circuit court's conclusion reached at such a hearing, because there was no
majority opinion. The three-member plurality opinion appears to have
conducted a de novo review (see Kinkead, slip op. at 21-22) of the evidence
adduced after its previous decision ordering the circuit court to conduct "a
limited remand for clarification of the circumstances surrounding defendant's
use of psychotropic medications" (see Kinkead, slip op. at 2, quoting 168 Ill. 2d at 415, 660 N.E.2d at 861). The three dissenting Justices would have
applied an abuse of discretion standard to the circuit court's failure to
grant defendant a fitness hearing and concluded that defendant was entitled to
no relief. Kinkead, slip op. at 31, 35 (Heiple, J., dissenting, joined by
Miller, J., and Bilandic, J.).
Although the special concurrence implicitly agreed with the plurality
that the amended version of the statute should not be given retroactive
effect, it did not agree with the plurality's review of the evidence at the
remand hearing. Rather, it concurred in the result because it believed that,
based on Neal, defendant was entitled to a remand for a new trial because a
retrospective fitness hearing could not protect defendant's due process
rights, in light of the facts that more than a year had elapsed since the
conviction and sentencing and the case was not one in which the court could
"say that the medication could not possibly have had any effect on defendant's
fitness." Kinkead, slip op. at 27-28 (Harrison, J., specially concurring).
Accordingly, Kinkead cannot be deemed to have resolved the lingering
question of the type and quantum of evidence required to be adduced at a
remand hearing.
[fn7] Effective August 1, 1995, the legislature amended the statute
to raise the burden of proof from a preponderance of the evidence to clear and
convincing evidence. 720 ILCS 5/6-2(e) (West supp. 1995).
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