People v. Britz

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are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
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advance sheets following final action by the Court.

Docket No. 76618--Agenda 14--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DeWAYNE C.
BRITZ, Appellant.
Opinion filed October 18, 1996.

JUSTICE FREEMAN delivered the opinion of the court:
In 1985, petitioner, Dewayne C. Britz, was charged by
information in Sangamon County with murder, aggravated kidnapping,
aggravated criminal sexual assault, armed robbery, theft and
concealment of a homicidal death. Following a jury trial,
petitioner was convicted of all charges and sentenced to death.
This court affirmed petitioner's conviction and sentence on direct
appeal. People v. Britz, (1988). The United States
Supreme Court later denied petitioner's writ of certiorari. Britz
v. Illinois, , 103 L. Ed. 2d 242, 109 S. Ct. 1100
(1989).
Petitioner subsequently filed a pro se petition under the
Post-Conviction Hearing Act in the circuit court of Sangamon
County. See Ill. Rev. Stat. 1985, ch. 38, par. 122--1 et seq. After
being twice amended, the petition was dismissed by the trial court
without an evidentiary hearing. Petitioner now appeals from the
dismissal pursuant to Supreme Court Rule 651. 134 Ill. 2d R. 651.
Based on the following considerations, we affirm.

ISSUES
Petitioner raises essentially four issues on appeal: (1)
whether at trial he was denied the effective assistance of counsel
guaranteed under the sixth amendment (U.S. Const., amend. VI); (2)
whether he was denied this same right at sentencing; (3) whether he
made a substantial showing that the right was violated such that he
was entitled to an evidentiary hearing; and (4) whether fundamental
fairness and the orderly administration of justice require that a
fitness hearing be held to determine if medication he was taking
one month prior to the commencement of trial affected his defense.

STANDARD OF REVIEW
On review of matters decided under the Post-Conviction Hearing
Act, determinations of the trial court will not be disturbed unless
manifestly erroneous. See People v. Whitehead, 169 Ill. 2d 355
(1996); People v. Silagy, , 365 (1987).

BACKGROUND
At trial, the State presented essentially the following
evidence. On January 16, 1985, petitioner struck his former
employer in the head with a pistol in an attempt to rob him and
then drove off with the employer's truck. Petitioner later
kidnapped, sexually assaulted and fatally shot Mimi C. Covert.
Covert had offered petitioner a ride after his employer's truck
stalled on the highway.
After committing the crimes, petitioner purchased a 12-pack of
beer and a half-pint of whiskey and drove to a motel where he
checked into a room and fell asleep. Pursuant to their
investigation, police later arrived at the motel, questioned
petitioner and placed him under arrest. A police search yielded
Covert's fishing license, her car keys, and the murder weapon.
After petitioner was taken into custody, he gave police a
statement, informing them where Covert's body could be found.
Police officers and the motel clerk testified that, shortly
after the crimes, petitioner had not appeared to be under the
influence of either alcohol or drugs. Petitioner's former employer
testified also that he had observed petitioner throughout the
course of the day prior to the crime, and petitioner had not
appeared to be under the influence of either alcohol or narcotics.
Petitioner's statement to police that he had committed the
crimes and left Covert's body on the side of a road was introduced
into evidence. A witness, who had been housed previously with
petitioner in the Sangamon County jail, also testified that
petitioner had admitted to him that he had murdered and raped
Covert, and consumed only two beers but no drugs on the night of
the murder.
Defendant attempted to present three expert witnesses to raise
an "insanity defense based upon a chronic disease predicated on the
voluntary ingestion of alcohol or drugs." Britz, 123 Ill. 2d at
457. The State, however, filed a motion in limine to prevent the
three experts from testifying because their reports contained
plaintiff's self-serving hearsay statements regarding the type and
quantity of drugs and alcohol he had consumed on the night of the
crimes.
Following a hearing, the trial court ruled that the experts
could only testify to any conclusions they reached through
objective testing; any opinions based on defendant's statements to
them would be inadmissible. After objecting, defense counsel
presented an offer of proof regarding the proposed testimony of the
expert witnesses. Britz, 123 Ill. 2d at 458-60.
The offer of proof showed that Dr. Leslie Fryans, a
psychologist, would have testified that petitioner suffered from
both a "long-standing chronic" substance abuse disorder and a
borderline personality disorder. Fryans opined that based on these
mental defects, petitioner would have been unable to conform his
conduct to the constraints of the law on the night of the crimes.
See Ill. Rev. Stat. 1985, ch. 38, par. 6--2(a). Fryans drew these
conclusions after administering objective assessment tests to
petitioner and learning his version of the incident and his history
of chronic substance abuse. Britz, 123 Ill. 2d at 458-59.
Petitioner also offered the testimony of Joan Stockhoff, a
clinical pharmacist, and Dr. Thomas Mulry, a specialist in chemical
dependency. Stockhoff would have testified that under the direction
of Dr. Mulry, she conducted a drug-history interview with
petitioner and learned from him that he had a history of substance
abuse. Mulry would have testified that he reviewed Stockhoff's
report and interviewed petitioner. Based upon this information,
Mulry formed the opinion that petitioner was chemically dependent
and alcoholic, that his dependency was chronic and permanent, that
he was intoxicated on the night of the crimes and possibly could
have had periods of loss of control as well as periods of control.
Britz, 123 Ill. 2d at 459-60.
The trial court again ruled that the experts' opinion
testimony was inadmissible "if based in material part" on his
statements to them regarding his drug and alcohol history and his
ingestion of chemicals on the night of the crimes. Britz, 123 Ill. 2d at 459-60. As a result, none of petitioner's three expert
witnesses testified during the guilt or innocence phase of trial.
Petitioner presented, however, five witnesses who testified
regarding his use of alcohol and drugs prior to the incident and
the observed effect of those chemicals on him. The trial court gave
the jury no insanity instruction, finding that no evidence of
insanity had been shown. Petitioner was ultimately convicted of all
charges and found eligible for the death penalty.
During the mitigation phase of sentencing, petitioner's three
experts and two family members testified. The three experts
testified substantially similar to their testimony presented in the
offer of proof. Defense counsel, however, did not ask Dr. Fryans to
state an opinion regarding whether petitioner suffered from an
extreme emotional or mental disturbance at the time of the murder.
Defense counsel also did not ask Fryans to explain substance abuse
and borderline personality disorders to the jury. The State
presented the testimony of Dr. Philip Bornstein, a psychiatrist,
and Kenneth Imhoff, a clinical psychologist, in rebuttal. Based on
their examinations of petitioner, a review of police reports, the
report of an associate, petitioner's statement, and newspaper
reports, they testified that petitioner was not suffering from a
mental or emotional disturbance at the time of the crime. Bornstein
also testified that in his opinion petitioner was not intoxicated,
mentally retarded or suffering from a mental disease or defect at
the time of the crimes. Bornstein agreed with Fryans that
petitioner suffered from a personality disorder, but he defined it
as antisocial.
During argument, the prosecutor specifically drew attention to
the fact that the statutory mitigating factor of commission of the
crime under extreme mental or emotional disturbance was not shown
by petitioner's evidence, but was negated by the State's evidence.
Following deliberations, the jury found no mitigating factors
sufficient to preclude the imposition of death, and petitioner was
sentenced to death.
On direct appeal, an issue was raised concerning the
admissibility of petitioner's three expert witnesses' testimony.
This court ruled that the testimony was properly excluded by the
trial court because the experts did not rely on any reports
regarding the issue of his sanity, save petitioner's statements to
them. Britz, 123 Ill. 2d at 462-63.
After filing a pro se petition in 1989, petitioner filed an
amended petition for post-conviction relief and appointment of
counsel in 1992. In June 1993, petitioner filed a second-amended
petition for post-conviction relief. Petitioner alleged that trial
counsel was ineffective for failing to provide his experts with
independent evidence to support the experts' opinions at trial and
sentencing. Petitioner also alleged that trial counsel was
ineffective for failing to elicit an opinion from Fryans that
petitioner suffered from an extreme mental or emotional disturbance
and failing to ask Fryans to explain borderline personality and
substance abuse disorders to the jury. Included with the petition
were documents pertaining to petitioner's history of drug abuse and
treatment and Illinois Department of Corrections records pertaining
to this offense. Also included were affidavits from Dr. William Kip
Hillman, a clinical psychologist, and petitioner's mother and
sister.
Subsequent to the filing of the petition, the trial court
directed petitioner's counsel to depose petitioner's trial counsel,
Mike Vonnahmen and Jim Pappas, and his primary psychological
expert, Dr. Fryans. Following a review of the petition and this
information, the trial court found, inter alia, that the failure of
trial counsel to provide corroboration of petitioner's drug usage
history to the experts did not prejudice the defense; and that the
sentencing result was unlikely to have been any different even if
trial counsel had presented the indicated mitigation evidence. The
trial court accordingly dismissed the second-amended petition.
Petitioner filed a motion for reconsideration which included
affidavits from one of his former high school teachers and two high
school administrators. The trial court denied the motion for
reconsideration. This appeal followed.

ANALYSIS
I. Ineffective Assistance of Trial Counsel During
Guilt-Innocence Phase
The Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38,
par. 122--1 et seq.) provides a remedy to criminal defendants who
claim that substantial violations of constitutional rights occurred
in their trial. A proceeding under the Act is not an appeal, but a
collateral attack on a prior conviction and sentence. People v.
Mahaffey, , 452 (1995). The purpose of the
proceeding is to permit inquiry into constitutional issues involved
in the original conviction that have not already been adjudicated
or could have been. Whitehead, 169 Ill. 2d at 370.
Petitioner contends that he was denied the effective
assistance of counsel guaranteed by the sixth amendment at trial.
Petitioner claims that trial counsel was ineffective for failing to
provide his experts with corroborating data to support their
opinions at trial.
During his deposition at the post-conviction stage, Jim
Pappas, one of petitioner's trial attorneys, testified that trial
counsel knew prior to trial about the importance and necessity of
providing corroborative documentation to buttress expert witnesses'
testimony. Pappas testified that both he and Mike Vonnahmen,
petitioner's other trial attorney, believed that it was doubtful
that the insanity instruction would be given by the trial court
because Fryans' opinion was based solely upon petitioner's
statements. Pappas could not recall, but he believed that Vonnahmen
had subpoenaed any available records. Pappas also believed that
Vonnahmen had talked to petitioner's relatives and investigated any
"past problems" that petitioner had.
During his deposition, Vonnahmen confirmed Pappas'
recollection. Vonnahmen testified that he conducted no
investigation to locate information that would corroborate expert
opinion that petitioner suffered from a disorder. Vonnahmen
acknowledged that, although he knew petitioner had a prior criminal
record and had been incarcerated, he did not subpoena any related
documents or any hospital, psychiatric or psychological records.
Vonnahmen also acknowledged that he did not obtain the following
specific documentation which was included with the post-conviction
petition:
(a) a police report and hospital admission report
dated May 30, 1980, stating that petitioner was found on
a highway suffering from an apparent drug overdose from
glue, possibly "speed" and other controlled substances;
(b) a hospital report dated August 2, 1980, which
indicated that petitioner consumed various drugs;
(c) court records from an unrelated 1980 case,
indicating that pursuant to court order, petitioner was
evaluated by Treatment Alternatives to Street Crimes
(T.A.S.C.) to determine whether he was a drug addict,
that he had a history of substance abuse, and was
subsequently determined to be a drug addict displaying a
"[c]lassic poly-drug abuse pattern [sic] anything and
everything";
(d) additional records, indicating that petitioner
received probation conditioned upon successful completion
of a T.A.S.C. residential drug treatment program;
(e) T.A.S.C. records indicating that petitioner
suffered from family and living situation problems, had
lost self-respect, felt insecure and relied on drugs for
support;
(f) Department of Corrections records indicating
that between November 1, 1982, and June 7, 1983,
petitioner underwent five psychiatric evaluations, and
stating, in September 1985, that he had
"[m]ental/[p]syche" problems and was suicidal from 1979
to 1984.
Dr. Fryans was shown these documents during his deposition.
Fryans testified that if the documents had been provided to him by
trial counsel before petitioner's trial in 1985, he would have
relied on the documents to support his opinion that petitioner
suffered from substance abuse and borderline personality disorders
at the time of the crimes.
The State responds initially that this claim is waived for
failure to raise it on direct appeal. According to the State, the
trial court's ruling, precluding the experts' opinion testimony at
trial, was based on the lack of any independent bases for their
opinions, which was apparent at trial.
The State additionally argues that the evidentiary basis for
the claim was not only available, but was, in part, before this
court on direct appeal. The State directs attention to this court's
statement on direct appeal that one of petitioner's experts had not
reviewed documentation memorializing petitioner's drug
rehabilitation history. See Britz, 123 Ill. 2d at 459, 461-62. The
State contends that Britz also referred to petitioner's taped
statements to police, his treatment in a drug rehabilitation
center, and the "observations and statements" of petitioner's
friends and family, including that of his sister, who testified at
trial that petitioner used alcohol and marijuana everyday for at
least a year prior to the crimes. See Britz, 123 Ill. 2d at 455-56,
459-62. According to the State, the legal and evidentiary bases for
the claim were thus apparent at the time of the direct appeal.
It is well established that determinations of the reviewing
court on direct appeal are res judicata as to issues actually
decided and issues that could have been presented on the direct
appeal, but were not, are deemed waived. See People v. Albanese,
, 105 (1988); Silagy, 116 Ill. 2d at 365; People v.
French, (1970). Application of the waiver rule is
relaxed, however, in instances where the facts relating to the
claim do not appear on the face of the original appellate record
and could not have been supplemented to that record under Supreme
Court Rule 329. Whitehead, 169 Ill. 2d at 372. As a matter of
clarification, it is not so much that such a claim "could not have
been presented" or "raised" on direct appeal, but rather that such
a claim was incapable of being considered by the reviewing court
because the claim's evidentiary basis was de hors the record.
Whitehead, 169 Ill. 2d at 372. The exception recognizes that the
rule of waiver ought not preclude such claims. Whitehead, 169 Ill. 2d at 372.
The trial record was not made a part of the record in this
post-conviction appeal. However, according to the trial court's
order dismissing the second-amended post-conviction petition, the
following testimony was presented during the mitigation phase at
sentencing. Petitioner's mother testified that when petitioner was
a teenager she noticed that he was developing a problem with
alcohol and drugs. According to petitioner's mother, at that time,
his main problem was glue sniffing. She testified that she had
taken him to three different drug treatment facilities--T.A.S.C.,
Ryerson Center, and Gateway Foundation-- where he resided for
several weeks. She also testified that five years earlier,
petitioner had been hospitalized for attempting to commit suicide
by smoking marijuana and taking pills. She further related that the
main drug petitioner used at the age of 13 was marijuana.
Petitioner's mother additionally testified that petitioner acted
fine when he was not on drugs, but acted "very, very strange" when
he was on drugs.
Petitioner's sister testified also at sentencing that she was
aware that her family had sought professional help for petitioner
when he was a teenager and that they had taken him to Phoenix 7 (an
out-patient facility), T.A.S.C., and Gateway. She testified that
petitioner was aggressive when on drugs and calm when he was not.
Based on our review of the record, it is clear that the claim
that trial counsel failed to provide corroborative data to support
the experts' opinions at trial was one which could have been
presented and considered on direct appeal.
First, the direct appeal opinion reflects that the alleged
deficiency, itself, was clearly apparent at that time. Second,
the trial court record includes evidence of several available
independent corroborative bases on which the experts could have
relied. Petitioner's mother and sister both testified at
sentencing, indicating that they, themselves, were aware that
petitioner had a significant history of substance abuse and drug
rehabilitation treatment. Petitioner's mother and sister also
testified to petitioner's "very strange" and aggressive behavior
while under the influence of drugs, and apparently normal behavior
when not. Moreover, they both testified, naming several known drug
treatment facilities where petitioner had been previously taken.
Indeed, on direct appeal, this court noted several possible
corroborative bases, which were not relied on by the experts,
namely police reports, witness reports, reports from the
rehabilitative center or centers at which petitioner allegedly
received treatment, and discussions with petitioner's friends and
family. Britz, 123 Ill. 2d at 461-62.
Petitioner's claim that trial counsel failed to provide
corroboration of the experts' opinions that he suffered from a
substance abuse disorder, a borderline personality disorder and was
chemically dependent does not depend on the documentation that he
included with his post-conviction petition. Such claim rather
depends on evidence that there were independent corroborative bases
on which the experts could have relied had trial counsel so
provided. Such evidence appeared within the record on direct appeal
and therefore could have supported the claim that trial counsel was
ineffective for failing to provide corroborative bases.
This is not a different or more meritorious ineffectiveness
claim because of information showing that there were additional or
stronger corroborative bases on which the experts could have
relied. Admissibility of the experts' opinion at trial turned on
whether there was any basis supporting those opinions besides
petitioner's statements. This is not a case like People v. Orange,
, 158 (1995), where the additional information
impacted on the merits of the claim. Nor is this a case like People
v. Holman, (1995), where an argument different from
that raised on direct appeal was presented with supporting
mitigation evidence which was not part of the record on direct
appeal. Neither is this case like People v. Eddmonds, , 528 (1991), where the same claim was made on direct appeal,
but depended on evidence not found within the trial record.
We do not mean to suggest that conjectural information
regarding any independent corroborative bases would have sufficed
on direct appeal. On the record here, however, it is shown that
there were independent corroborative bases on which the experts
could have relied so that their opinions could have been admitted
if trial counsel had provided those bases. We conclude that trial
counsel's failure in this regard was apparent from the trial record
and the issue could have been considered on direct appeal. The
claim was therefore waived.

II. Ineffective Assistance at Sentencing
A
Petitioner argues first that trial counsel failed to conduct
a meaningful mitigation investigation. Petitioner specifically
argues that trial counsel failed to provide the three experts with
information to buttress their opinions at sentencing that he
suffered from a borderline personality disorder and a substance
abuse disorder.
In support of this argument, petitioner points out that cross-
examination of his expert witnesses focused primarily on the fact
that their opinions were based solely on petitioner's statements.
Under cross-examination, Fryans was forced to acknowledge that if
petitioner had not told him the truth about his drug abuse history,
Fryans' opinion regarding a psychiatric disorder would change.
During closing argument, the State was also able to attack the
opinion evidence on the basis that it relied solely on petitioner's
statements which were self-serving and unreliable.
Petitioner supports this claim with the same documents which
supported the previous claim. As mentioned previously, the
affidavits of petitioner's mother and sister were included with the
petition. Affidavits from one of petitioner's former high school
teachers and two school administrators were included with
petitioner's motion for reconsideration.
Petitioner's mother stated in her affidavit that trial counsel
only spoke with her two or three times and spent no more than 20
minutes discussing with her the anticipated mitigation testimony.
She stated that, if she had been asked by counsel, she could have
testified that petitioner experienced a troubled adolescence and
childhood, including that his father drank heavily. Petitioner's
sister made similar statements in her affidavit, and included that
she had once dropped petitioner on his head when he was an infant.
Hospital records concerning that incident were included with the
petition, but no permanent injury was indicated. Petitioner's
former teacher stated in her affidavit that petitioner had been a
"learning disabled" student while in high school. If she had been
asked, petitioner's former teacher would have testified that she
had been attached to him because he had always been helpful to and
respectful of her. The two school administrators attested to the
fact that petitioner was enrolled in special educational needs
classes in high school, and records to that effect had been
available at the time of his trial, but were subsequently
destroyed.
Attorney Vonnahmen acknowledged during his deposition that he
did not investigate mitigation sources other than petitioner's
mother and sister and the three expert witnesses.
The State initially responds that this claim is waived for
failure to raise it on direct appeal. The State contends that trial
counsel's failure to provide information to buttress the expert's
testimony at sentencing was apparent from the trial court record of
proceedings. We disagree.
Unlike trial counsel's alleged failure to provide
corroborative information for the expert witnesses for trial, trial
counsel's allegedly similar failure at sentencing did not result in
any exclusion of their testimony. Petitioner claims that the
alleged failure instead exposed the experts' testimony to serious
attack under cross-examination. This ineffectiveness claim thus
depends on corroborative information which would have blunted or
prevented the attack. Unlike the trial-phase-ineffectiveness claim,
which depended on information, apparent from the record, showing
that trial counsel could have in fact provided an independent
corroborative basis for the experts' opinions, this claim depends
on information which, qualitatively, could have supported the
experts' opinions. Such information is not apparent of record, but
was included with the post-conviction petition. Accordingly, we
find that the claim was not waived for failure to raise it on
direct appeal.
With respect to any general failure to conduct a sufficient
mitigation investigation, we do not agree that this case compares
to People v. Perez, (1992), cited by petitioner. In
Perez, the defense counsel possessed the defendant's school
records, which revealed his mental deficiencies, his history of
disruptive behavior and mitigating information about his family.
Defense counsel did not introduce the records into evidence, or
seek to have defendant's intelligence test results interpreted. Nor
did defense counsel seek any independent expert testing of the
defendant even though he was experiencing communications problems
with him. Defense counsel did introduce a psychological report
which was primarily damaging to defendant's case. An investigator
enlisted by post-conviction counsel uncovered an abundance of
additional mitigation information regarding defendant's
dysfunctional family which defense counsel could have unearthed
with the information already in his possession. Perez held that
counsel's investigative failures were objectively unreasonable and
prejudicial to the defense so as to raise a serious doubt about the
reliability of sentencing. Perez, 148 Ill. at 191, 194-95.
In the present case, trial counsel contacted two close family
members of petitioner and discussed the subject of mitigation with
them on several occasions. These two witnesses were presented by
trial counsel at sentencing. They testified that petitioner had a
history of substance abuse since adolescence, but that he could
behave normally while not on drugs. In addition, trial counsel
presented three expert witnesses, who had examined petitioner and
administered to him a series of intelligence and psychological
tests. These witnesses offered expert opinions that petitioner
suffered from mental and substance abuse disorders, was an
alcoholic and was chronically and permanently chemically dependent.
Trial counsel's efforts to provide mitigation evidence here simply
do not compare with the lack of assistance found in Perez.
Furthermore, the generally mitigating evidence, which
petitioner contends should have been presented, was also either
cumulative of that which was already introduced or of very little
value. And while it may be that the documentative evidence would
have provided additional support for the expert opinions, the
evidence could have also undercut the mitigation strategy by
revealing petitioner's lack of rehabilitative potential. See
Holman, 164 Ill. 2d at 372 (noting that mitigation evidence can be
double-edged). Moreover, some of the documentation petitioner
included with his petition depended on petitioner's own relation of
his substance abuse history in much the same manner as did the
experts' opinions. Thus, the truth of petitioner's psychological
condition was subject to prosecutorial attack even if trial counsel
had introduced these documents. Based on these considerations, it
cannot be said that trial counsel's failures to obtain
documentation in support of the experts' opinions was objectively
unreasonable. Failure to present mitigating evidence at a capital
sentencing hearing does not in itself prove that a defense attorney
was ineffective. Perez, 148 Ill. 2d at 186. We hold that it was not
shown that petitioner's sixth amendment right to effective counsel
was violated.

B
Petitioner next argues that trial counsel failed to establish
the mitigating factor of an "extreme mental or emotional
disturbance" (Ill. Rev. Stat. 1985, ch. 38, par. 9--1(c)(2)), where
that factor was the "only factor which could have precluded the
imposition of the death penalty." Petitioner claims that trial
counsel admitted in his deposition that he did not rely on this
mitigating factor as evidence, but stated that he relied on a
noncapital mitigating factor, "substantial grounds tending to
excuse or justify" the criminal conduct "though failing to
establish a defense" (Ill. Rev. Stat. 1985, ch. 38, par. 5--5--
3.1(4)). Petitioner maintains trial counsel failed in this respect,
despite that the prosecution presented expert opinion testimony
negating such a disturbance and also emphasized this point in
closing argument.
The State contends that this claim is waived because the only
material, not part of the record on direct appeal, that petitioner
now offers in support of this claim is trial counsel's
acknowledgment that they did not request this information at
sentencing. We disagree.
Petitioner supported this claim with Vonnahmen's deposition
testimony regarding his performance during the mitigation phase at
sentencing; Dr. Fryans' deposition testimony that, had he been
asked, he would have testified that because petitioner suffered
from a borderline personality disorder, he also suffered from an
extreme emotional disturbance; and the affidavit of Dr. William Kip
Hillman, a clinical psychologist, wherein he concluded that, at the
time of the offense, petitioner suffered from an extreme mental or
emotional disturbance. We find that the claim depends on this
information which was not apparent from the trial record. Thus, the
claim was not waived.
The State first asserts that petitioner mischaracterizes the
record. According to the State, trial counsel never expressed in
his deposition that he did not rely on the mitigating factor of
extreme emotional disturbance, and in fact he presented evidence at
sentencing supporting that factor and specifically argued the
factor in closing. According to the State, neither is this a case
where trial counsel relied solely on one particular mitigating
factor and then failed to prove or argue it. The State maintains
that, once stripped of mischaracterization, petitioner's claim is
no more than that trial counsel failed to elicit a statement from
Dr. Fryans that petitioner suffered from an extreme emotional
disturbance. The State insists such failure, given the totality of
evidence presented and argued by trial counsel, cannot be said to
have been objectively unreasonable.
The record shows that Dr. Fryans, Dr. Mulry, Joan Stockhoff,
and petitioner's mother and sister testified at the sentencing
hearing. The testimony of petitioner's mother and sister is
recounted substantially above.
Stockhoff testified that she interviewed petitioner, and he
related a substance abuse history, which included alcohol
consumption, glue sniffing, and ingestion of "acid" and other
pills. On the day of the crime, he took "acid," Valium, Placidyl,
cocaine and alcohol. At the time, he had been drinking for several
days.
Dr. Mulry testified that petitioner told him that on the day
of the crime he had taken large quantities of these same
substances, and had been taking cocaine daily for the previous two
weeks. Mulry explained the effect of these drugs and the concept of
"tolerance" and expressed an opinion that petitioner had a high
tolerance level. Mulry said that once petitioner had taken all
these drugs, anything could happen. Mulry finally stated that in
his opinion petitioner was permanently and chronically chemically
dependent.
Dr. Fryans testified that he conducted a psychiatric
examination of petitioner that involved seven interviews and
testing. Fryans related petitioner's drug history and the
substances he ingested on the date of the crimes. Fryans testified
that petitioner had attempted suicide when he was 18 or 19 by
taking Darvon and alcohol. He also testified that, in his opinion,
petitioner suffered from a mental disease or disorder classified as
an "Axis I Diagnosis of Substance Abuse Disorder" and an "Axis II
Diagnosis of Borderline Personality Disorder." Fryans testified
that the magnitude of the drugs consumed by petitioner was true and
could have distorted his reasoning and judgment potential. Dr.
Fryans stated that, at the time of the incident, petitioner's
inhibitions could have been removed and he would have had almost a
total lack of impulse control. In Fryans' view, petitioner would
not have been in control to make judgments and realistic decisions
leading up to the incident.
The prosecution presented the testimony of Dr. Philip
Bornstein, who agreed that petitioner suffered from a personality
disorder, but expressed the opinion that he did not suffer from an
extreme mental or emotional disturbance. Dr. Imhoff also testified
that his tests did not show that petitioner had an extreme mental
or emotional disturbance.
In closing, the prosecution advised the jury that it would be
instructed that mitigating factors which precluded the death
penalty included commission of the crime while under the influence
of an extreme emotional disturbance and other facts and
circumstances. The prosecutor emphasized that the defense had not
presented expert testimony that petitioner was under such influence
at the time of the crime and pointed out that the only witnesses
who had been asked had said that the petitioner was not.
Referring to the factor of extreme mental or emotional
disturbance, the prosecutor said, "Remember that that is one of the
mitigating factors that the judge will instruct you on. That
alleged mitigating factor has been negated by the evidence, so
there is no factor sufficient to preclude the death penalty."
Trial counsel in closing also advised the jury that mitigating
factors were any facts or circumstances, including extreme
emotional disturbance, that provided reason to impose a sentence
less than death. Trial counsel argued that both sides had presented
experts who testified about petitioner's mental state at the time.
Trial counsel warned the jury not to be misled by the State into
believing that an extreme emotional disturbance was the only factor
that it could consider and if resolved against petitioner, it
should give him the death penalty. Trial counsel acknowledged such
disturbance as a mitigating factor, but argued that petitioner did
not have to prove it, as was suggested by the State, because "[a]ny
facts or circumstances" could preclude the death penalty. Trial
counsel referred repeatedly to a theme of "[a]ny facts or
circumstances."
In preparation for his deposition during post-conviction
proceedings, Vonnahmen read the sentencing hearing transcript from
seven years previous, but not all parts of it. When asked to
explain his mitigating strategy, Vonnahmen testified that his
theory had been that petitioner was operating under the influence
of drugs and alcohol at the time, and that he should not receive
the death penalty because of his age. Vonnahmen recalled that his
approach had been to present altogether the evidence of
petitioner's drug use, the experts' views on what that would mean,
and testimony from petitioner's family to show he was not a "total
loss." The thrust of the mitigation was to show petitioner's
erratic behavior, and that when he was not on drugs he could be
normal. Vonnahmen consistently indicated that he did not address
mitigation by "break[ing] it down by every little section of the
statute." He did not remember if there was any strategic reason why
he did not ask Fryans to give an opinion regarding whether
petitioner suffered from such an emotional disturbance.
When asked, Vonnahmen identified "substantial grounds to
excuse" as a specific mitigating factor he had relied on and
specifically identified no other. Vonnahmen, however, also
identified any other mitigating factors as "whatever" he had
argued. He agreed that an extreme emotional disturbance is a
mitigating factor and appeared surprised to learn that he had in
fact specifically argued extreme emotional disturbance in closing
at sentencing.
Section 9--1(c)(2) of the Criminal Code of 1961 provides that
the court shall instruct the jury to consider any mitigating
factors relevant of the imposition of the death penalty, which may
include, but need not be limited to, commission of the murder under
the influence of extreme mental or emotional disturbance, though
not such as to constitute a defense. Ill. Rev. Stat. 1983, ch. 38,
par. 9--1(c)(2). Obviously, a jury may consider any facts or
circumstances in mitigation under the statute, including a
defendant's age and personal history (see People v. Colon, 69 Ill.
App. 3d 1021 (1979)), so that commission under the influence of
extreme mental or emotional disturbance is not the only mitigating
factor which may preclude the death penalty.
In the present case, trial counsel approached mitigation by
presenting evidence which, in general, concerned petitioner's
psychological state prior to and during the crime, his personal
history and age. A good deal of the evidence presented indicated
that petitioner was emotionally disturbed at the time he committed
the crimes. Cf. People v. Madej, , 221 (1985)
(evidence that defendant "very hyper" or "like a maniac" allegedly
indicative of factor). Defense and prosecution experts agreed that
petitioner displayed a number of personality disorders from which
it could be reasonably inferred that he suffered from some manner
of emotional disturbance. Petitioner was shown also to suffer from
permanent, chronic addiction and alcoholism. His sister also
testified that he acted "very, very strange" when on drugs.
Notably, the jury which heard the evidence at sentencing was the
same jury that heard trial evidence that no more than a month
before the crimes, petitioner fired guns from vehicle windows, drew
his gun on a waitress, and pulled a knife on a fellow employee,
threatening to kill him. The crime itself was senseless, and
petitioner, himself, told police that he just went "real crazy"
when he first shot Covert and saw her blood. Based on this record,
it would be difficult not to conclude that there was a good deal of
evidence presented indicating that petitioner was extremely
emotionally disturbed at the time of the crime.
Furthermore, Vonnahmen testified that he approached mitigation
by presenting the available evidence without differentiating
between any possible statutory factors. His deposition reveals that
he was aware that an extreme emotional disturbance is a mitigating
factor, but also that he could not recall whether and to what
extent he might have relied upon it at sentencing. Vonnahmen's
statement that he relied on a noncapital mitigating factor must be
viewed within the context of his entire testimony which indicated
an overall lack of memory regarding the details of petitioner's
sentencing hearing.
In sum, the record shows that evidence of an extreme emotional
disturbance was presented, along with other mitigating evidence,
but that trial counsel did not elicit a specific opinion from
Fryans on that point.
Against this backdrop, it cannot be said that a statement of
opinion by Fryans that petitioner was under the influence of an
extreme emotional disturbance at the time he committed the crimes
was the only evidence which would have precluded the death penalty.
An expert's pronouncement of his opinion to that effect would not
have made the evidence of petitioner's disturbance more sufficient.
Based on the evidence before the jury which was not considered
sufficiently mitigating to preclude the death penalty, it is not
reasonably likely that Fryans' opinion would have turned the tide
in petitioner's favor. We conclude that no sixth amendment
violation was shown by counsel's failure.

C
Lastly, petitioner argues that trial counsel failed to ask Dr.
Fryans to explain borderline personality and substance abuse
disorders to the jury. Petitioner contends that if Fryans had been
asked to testify as he had during the offer of proof or during his
deposition, the jury would have received an explanation of how
these defects mitigated petitioner's conduct in this offense.
The State contends that this claim was waived for failure to
raise it on direct appeal. The State asserts that the only facts
now offered by petitioner outside the trial record are trial
counsel's acknowledgments that they failed to make such requests.
According to the State, trial counsel's failure was apparent from
the trial record, making the claim capable of consideration on
direct appeal. We agree that the claim was waived.
Even assuming that Dr. Hillman's affidavit was offered as
support for this claim, the claim could have been raised and
considered on direct appeal. The fact that trial counsel did not
request an explanation is apparent from the trial court record. And
the offer of proof shows the response that Fryans could have
provided if he had been asked to explain. Thus, the claim does not
depend on the fact that trial counsel later admitted their failure,
that if asked, Fryans would have testified as he did in the offer
of proof, or that Hillman could respond similarly. Accordingly, we
find that petitioner waived the claim for failing to raise it on
direct appeal.

III. Dismissal Without Evidentiary Hearing
Petitioner next claims that he made a substantial showing that
his sixth amendment right was violated and, thus, the cause should
be remanded for an evidentiary hearing. More specifically,
petitioner claims that the allegations and supporting documents
attached to his petition show that trial counsel failed to conduct
an investigation into available mitigation information, and the
record also shows counsel failed to elicit expert testimony that
petitioner was suffering from an extreme emotional disturbance at
the time of the offense. The State responds that petitioner is not
so entitled.
A post-conviction petitioner is not entitled to an evidentiary
hearing of his claims as a matter of right. Ill. Rev. Stat. 1989,
ch. 38, par. 122--6; see Whitehead, 169 Ill. 2d at 370-71.
An evidentiary hearing should be conducted when the petitioner
makes a " `substantial showing of a violation of constitutional
rights,' " which means that the petition's allegations must be
supported by the record or by accompanying affidavits. Whitehead,
169 Ill. 2d at 371, quoting People v. Silagy, , 365
(1987). The burden is on the petitioner to establish a substantial
deprivation of constitutional rights. See Whitehead, 169 Ill. 2d at
370. If the allegations and supporting documents were true and
would establish a constitutional violation, the trial court must
hold a hearing to determine the actual facts. People v. Stepheny,
(1970). Denial of an evidentiary hearing is a matter
of discretion, and the trial court's discretion will not be
reversed absent such an abuse. Whitehead, 169 Ill. 2d at 371.
As previously discussed, however, the allegations of trial
counsel's particular failures and supporting documents, even
accepted as true, would not establish constitutional violations.
Furthermore, petitioner's claim was that trial counsel failed
to provide the three experts with documentative data to corroborate
their opinions. Petitioner included that documentative data with
his petition, and there was no issue concerning the information's
evidentiary value or its trustworthiness. Thus, beyond the
petition's allegations and its inclusions, there was no evidentiary
issue for the trial court to explore with respect to the claim of
trial counsel's claimed ineffectiveness at trial.
With respect to the sentencing phase, petitioner claimed that
trial counsel failed to investigate and provide documentative
evidence to support the expert witnesses' views that were based on
petitioner's history of drug abuse and alcoholism. This mitigation
evidence took the form of the "many documents" petitioner included
with his petition. According to petitioner, "[t]his information was
vital *** since it would have eliminated the prosecutions' primary
argument that Mr. Britz was falsifying his drug history and level
of intoxication on the day of the offense."
Petitioner's additional argument that trial counsel failed to
elicit the expert opinion that he suffered from an extreme
emotional disturbance at the time of the crime also required no
evidentiary hearing. Attorney Vonnahmen's and Dr. Fryans' post-
conviction deposition transcripts and Dr. Hillman's affidavit were
included with the petition, and there was no dispute regarding this
evidence, so that the claim was properly decided on the pleadings.
In sum, the pleadings and attachments alone revealed no
constitutional violations, and the trial court did not abuse its
discretion by declining to conduct an evidentiary hearing.

IV. Fitness Hearing
According to Illinois Department of Corrections records dated
September 11, 1985, which was approximately one month prior to the
commencement of trial, petitioner was referred to as "currently" on
medication and state that the medication was "ordered." Somewhat
illegible handwritten notes accompany these printed statements,
apparently stating three types of medication and their treatment
purposes. The purpose for one medication is stated as "nervous
stomach." The purpose for a second medication is "blurred" or
"blurring [v]ision." The third medication is clear, "Selsun lotion
[d]aily."
In this appeal, for the first time, petitioner argues that he
should be granted a fitness hearing to determine whether these
medications which he was taking "under medical direction"
interfered with his ability to present a defense. Petitioner claims
that People v. Brandon, (1994), and People v.
Gevas, (1995), mandate that the cause be remanded
to the trial court for a fitness hearing. See Ill. Rev. Stat. 1983,
ch. 38, par. 104--21(a).
Notably, petitioner makes no representation nor suggests that
the medications he was taking were in fact psychotropic, similar to
psychotropic, or mind-altering drugs. Neither does he dispute in
any way the State's assertions that he seeks remand for a fitness
hearing because one month prior to trial he was using Mylanta for
a nervous stomach and Selsun lotion as a topical solution. Nor does
he present argument that such medications could have interfered
with his ability to present a defense. Rather petitioner claims
that the exact medications he was taking are unknown and given his
Department intake records which indicate that he had been suicidal
(from 1979 to 1984) and was "referred to PSYCH," "there is a very
real possibility" that the medications could have been psychotropic
drugs. Thus, in the alternative, petitioner requests a limited
remand for the purpose of determining exactly what medication he
was taking approximately one month prior to trial.
Although, petitioner did not include this issue in his
original or amended post-conviction petitions (see Ill. Rev. Stat.
1983, ch. 38, par. 122--3), or raise this issue in the trial court
during post-conviction proceedings, he urges that we relax
application of the waiver rule in the interests of "fundamental
fairness" (People v. Flores, , 274 (1992)) and the
maintenance of an "orderly administration of justice" (People v.
Davis, , 160 (1993)).
In People v. Hollins, , 70 (1972), the procedural
bar was relaxed on the basis of fundamental fairness where it
appeared that post-conviction counsel had not made any effort to
amend the pro se petition or argue issues other than the petition's
timeliness. In People v. Slaughter, , 284-85 (1968),
the bar was also relaxed on the same basis where the record
unmistakably disclosed that post-conviction counsel had not
provided effective assistance with respect to the original pro se
petition and a motion to amend.
In the instant case, it appears that post-conviction counsel
initially overlooked the statements in the Department records
pertaining to petitioner's medication and failed to include that
issue in the first- or second-amended petition. This failure is
similar in scope and effect to those discussed in Hollins and
Slaughter. In the interests of fundamental fairness, we will
address the merits of this claim.
Section 104--21(a) of the Code of Criminal Procedure of 1963
provides in relevant part 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." Ill. Rev. Stat. 1983, ch. 38, par. 104--
21(a).
Brandon construed the plain language of section 104--21(a) as
providing defendants a legal right to a fitness hearing under the
conditions specified within the provision. Given that entitlement
and a defendant's expressed choice to exercise it, Brandon found
that the decision to hold such a hearing was not a matter committed
to the trial court's discretion. See Brandon, 162 Ill. 2d at 461.
Brandon therefore found that defense counsel's failure to inform
the court that the defendant was on psychotropic drugs satisfied
the second prong of Strickland v. Washington, , 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Brandon held that the defendant
was entitled to a new trial for the failure to conduct a fitness
hearing. See Brandon, 162 Ill. 2d at 459, 461.
Gevas applied Brandon's construction of section 104--21(a),
also recognizing that the conditions specified in the provision,
"the administering of psychotropic medication," equated with a bona
fide doubt as to fitness to stand trial. See Gevas, 166 Ill. 2d at
469. Brandon and Gevas were premised on the General Assembly's
recognition that "psychotropic medication is an important signal
that a defendant may not be competent to stand trial." Brandon, 162 Ill. 2d at 457; Gevas, 166 Ill. 2d at 468-69. Other cases that also
dealt with the administration of psychotropic drugs followed. See
People v. Kinkead, (1995); People v. Nitz, No.
77549 (June 20, 1996); People v. Birdsall, No. 77259 (June 20,
1996). In each case, a showing of the administration of
psychotropic drugs either resulted in remand for a new trial or a
limited factual hearing to determine whether the court had a
further duty to conduct a formal fitness hearing. We have noted
also that no fitness hearing is required where the defendant's
right to a fitness hearing pursuant to section 104--21(a) is not
established, "as where there is no indication that defendant was
being treated with psychotropic medication during the relevant
times." Kinkead, 168 Ill. 2d at 411.
In the present case, the State argues that petitioner's claim
is barred because he seeks to benefit from the retroactive
application of a "new rule" announced by Brandon. Under the
circumstances of this case, however, we need not decide whether the
granting of a fitness hearing would be mandatory by application of
Brandon or a matter of discretion under pre-Brandon case law (see
People v. Tilson, 108 Ill. App. 3d 973 (1982); People v. Balfour,
148 Ill. App. 3d 215 (1986)). It must first be shown that
petitioner comes within the purview of section 104--21(a). Based on
his claim as stated, petitioner would apparently contend that
section 104--21(a) encompasses the administering of medication for
any treatment purposes or is triggered if the exact medication is
unknown, but circumstances indicate it was possible that the
medication was psychotropic.
Petitioner first claims that because he was taking "other
medications under medical directions," a condition specified in
section 104--21(a), he should receive a fitness hearing. We
disagree.
The primary rule of statutory interpretation, to which all
other rules are subordinate, is that a court should ascertain and
give effect to the intent of the legislature. Bonaguro v. County
Officers Electoral Board, , 397 (1994). In
interpreting a statute, the language used by the legislature must
be given its plain and ordinary meaning. Brandon, 162 Ill. 2d at
460-61. The term "other medications under medical direction" within
section 104--21(a), however, cannot be plainly understood. Reliance
on statutory construction principles reveals that, under the
doctrine of ejusdem generis, a specific provision, when followed by
a general provision, as in section 104--21(a) is read to control
the general when both relate to the same subject matter. People v.
Villarreal, , 379 (1992). Furthermore, under the
doctrine, when a statutory clause describes a class or classes of
persons or things, and then includes "other" persons or things, as
in "other medications under medical direction," following a
specific reference, as in "psychotropic drugs," the word "other" is
interpreted to mean "other such like." See Coldwell Banker
Residential Real Estate Services of Illinois, Inc. v. Clayton, , 396 (1985); People v. Lowey, 271 Ill. App. 3d 929,
933-34 (1995); People v. McBrien, 144 Ill. App. 3d 489, 494-95
(1986). Thus, applying these principles, the general term "other
medication" in section 104--21(a) must be interpreted as meaning
other such like medication with reference to psychotropic drugs.
See People v. Eubanks, Nos. 1--94--2285, 1--94--2754 (Ill. App.
August 13, 1996).
This interpretation accords both with law and other
construction principles. Section 104--21(a) provides that certain
conditions entitle a defendant to a fitness hearing. Because
fitness to stand trial refers to a defendant's ability "to
understand the nature and purpose of the proceedings" against him
or assist in his defense (Kinkead, 168 Ill. 2d at 407; 725 ILCS
5/104--10 (West 1992)), the legislature could only have intended
that section 104--21(a) include medications capable of interfering
with that ability. Psychotropic drugs are clearly capable of doing
so. By "other medications under medical direction," the statute
recognizes that other medications that have effects like
psychotropic drugs are capable of doing so as well. Moreover, the
legislature could not have intended an absurdity. Given the
ultimate determination in a fitness hearing, it would be absurd for
the administering of medications which do not interfere with a
defendant's ability to understand and assist the defense to require
such a hearing.
"Psychotropic medication[s]" are defined as in the Mental
Health and Developmental Disabilities Code as "medication whose use
for antipsychotic, antidepressant, antimanic, antianxiety,
behavioral modification or behavioral management purposes is listed
in AMA Drug Evaluations, latest edition, or Physician's Desk
Reference [PDR], latest edition, or which are administered for any
of these purposes." 405 ILCS 5/1--121.1 (West Supp. 1995). The
United States Supreme Court has also explained that psychotropic
drugs are "medications commonly used in treating mental disorders
such as schizophrenia," the effect of which is "to alter the
chemical balance in the brain, the desired result being that the
medication will assist the patient in organizing his or her thought
processes and regaining a rational state of mind." Washington v.
Harper, , 214, 108 L. Ed. 2d 178, 193, 110 S. Ct. 1028,
1032 (1990).
Selsun lotion or the other medications petitioner was taking
for a "nervous stomach" or for his "vision" do not approximate the
category of psychotropic drugs described above which affect one's
mind. We hold that defendant could not be entitled to a fitness
hearing under section 104--21(a) on the basis that he was taking
"other medication" which was like a psychotropic drug.
Additionally, on the basis of the record before us, we hold
that petitioner would not be entitled to a limited remand to
determine the names of two medications he was taking. The two
medications were stated to be for a nervous stomach and blurring or
blurred vision. Contrary to petitioner's assertions, the
Department's record does not indicate that he was then suicidal.
These circumstances are not such to compel the conclusion that he
was possibly taking psychotropic drugs. Petitioner's request for a
fitness hearing or limited hearing is accordingly denied.

CONCLUSION
We find that, based on the allegations within the second-
amended post-conviction petition, petitioner was not denied the
effective assistance of trial counsel at either trial or
sentencing. Accordingly, we affirm the trial court's dismissal of
the second-amended post-conviction petition.
The judgment of the circuit court of Sangamon County is
affirmed. The clerk of this court is directed to enter an order
setting Tuesday, January 21, 1997, as the date on which the
sentence of death entered by the circuit court of Sangamon County
shall be carried out. Defendant shall be executed in a manner
provided by the law. 725 ILCS 5/119--5 (West 1992). The clerk of
this court shall send a certified copy of the mandate in this case
to the Director of Corrections, to the warden of Stateville
Correctional Center, and to the warden of the institution where
defendant is now confined.

Affirmed.
JUSTICE HARRISON, specially concurring:
I agree with the result reached by the majority, but write
separately because I disagree with the reasoning employed by my
colleagues in rejecting petitioner's Brandon claim.
In People v. Brandon, , 461 (1994), decided
just two years ago, this court declared the language of section
104--21(a) of the Code of Criminal Procedure of 1963 (Ill. Rev.
Stat. 1983, ch. 38, par. 104--21(a)) to be clear and unambiguous.
Now my colleagues have abruptly decided that a phrase in that
statute, "other medications under medical direction," cannot be
plainly understood. This contention is untenable. As with the
remainder of the text, there is nothing the slightest bit confusing
about this phrase. It is perfectly straightforward. "Other
medications under medical direction" means simply medications,
other than psychotropic drugs, taken under the direction of medical
personnel.
Obviously unhappy with such a construction, my colleagues
attempt to find refuge in Latin, invoking the phrase ejusdem
generis. This phrase is a familiar one in law, but has nothing to
do with this case. When used as a canon of statutory construction,
ejusdem generis means that when a statute lists several classes of
persons or things and is followed by a general reference
supplementing the enumeration, the general words will be construed
as applying only to "others such like" the enumerated persons or
things (Board of Trustees of Southern Illinois University v.
Department of Human Rights, , 211 (1994)), i.e.,
persons or things of the same general class as those listed
(Black's Law Dictionary 517 (6th ed. 1990)).
In this case, ejusdem generis is inapplicable for the obvious
reason that there is no listing of several classes of persons or
things followed by a general reference. While "other medication"
may be general, it is not proceeded by the enumeration of several
classes or persons or things. Only one item comes before it and
that is "psychotropic drugs." Accordingly, the doctrine cannot
support the majority's conclusion that "other medication" is
limited in meaning to other medication like psychotropic drugs.
"Psychotropic drugs" is an alternative to "other medication" and in
no way qualifies that term.
The fallacy in the majority's position becomes further
apparent when one considers how medication could possibly be
psychotropic-like without qualifying as psychotropic itself. The
basic definition of "psychotropic" is simply "acting on the mind"
(Webster's Third New International Dictionary 1834 (1986)), and
there is no statutory basis for assigning it anything more than
this generic meaning. If medication affects one's mind, it is
psychotropic under this definition. If it does not, it is not.
There is no middle ground.
Because the specific term "psychotropic drugs" embraces the
entire class of drugs that act on the mind, the general term "other
medications" must be given a meaning beyond that class. Otherwise,
the term would add nothing to the statute. It would be mere
surplusage, thus violating the more important rule of construction
that a statute should be construed so that no word or phrase is
rendered superfluous or meaningless. See In re Special Education
Placement of Walker, 165 Ill. App. 3d 846, 851 (1987), rev'd on
other grounds, (1989).
The majority asserts that construing the statute to require a
fitness hearing even where the medication is not psychotropic or
psychotropic-like would be absurd. This argument is based on a
fundamental misunderstanding of the import of the statute. The idea
behind the law is not that the medication itself is disabling,
although it may be, but that the need for medication is indicative
of the presence of an underlying condition which may prevent a
defendant from being able to fully participate in his defense.
The General Assembly has expressly recognized that a
defendant's ability to understand and assist the defense may be
impaired by physical conditions as well as mental ones. See Ill.
Rev. Stat. 1983, ch. 38, pars. 104--10, 104--13, 104--15, 104--17.
If a defendant cannot see because of vision problems, or cannot
breathe because of respiratory ailments, or cannot concentrate
because of fever, pain or other illness, his ability to defend
himself may be every bit as compromised as a defendant who is
depressed or delusional. The General Assembly included the "other
medications" language in section 104--21(a) (Ill. Rev. Stat. 1983,
ch. 38, par. 104--21(a)) to cover such physical conditions, just as
it included the "psychotropic drug" language to cover mental
conditions. The notion behind the statute is that whichever type of
problem afflicts a defendant, if it is serious enough to require
medication under medical direction, it is serious enough to warrant
a hearing on his fitness. The type of medication is irrelevant. As
long as it is taken under medical direction, a fitness hearing is
necessary.
There is nothing inherently absurd or irrational about this
arrangement. One may disagree with it as a matter of policy, but
the policy judgment was for the legislature to make. I note, in
this regard, that the legislature has now apparently concluded that
its policy decision was unsound and has therefore amended the
statute to delete the reference to "other medications." Pub. Act
89--428, eff. December 13, 1995 (amending 725 ILCS 5/104--21 (West
1994)). That amendment, however, is further proof that the
majority's construction of the law is incorrect.
When the legislature amends an act by deleting certain
language, there is a presumption that it intended to change the law
in that respect. Board of Trustees of Community College District
No. 508 v. Burris, , 475 (1987). If the majority
were correct and "other medications" meant simply "other
psychotropic-like medications," there would have been no need to
change the law here. To the contrary, the amendment would have been
completely nonsensical, because in terms of assessing a defendant's
fitness, there is no rational basis for differentiating drugs that
are actually psychotropic from drugs that may not be psychotropic
but have the same kinds of effects on a defendant's mind.
Although the majority has thus misinterpreted the statute, I
nevertheless agree that the petitioner in this case is not entitled
to a fitness hearing under Brandon, , and its
progeny. The mere fact that a defendant has taken medication under
medical direction at some point during the pendency of the case is
not sufficient to trigger the requirements of section 104--21(a)
(Ill. Rev. Stat. 1983, ch. 38, par. 104--21(a)). Administration of
the medication must have been proximate in time to the trial or
entry of a guilty plea and sentencing. See People v. Kinkead, , 414 (1995). That was not the case here. Petitioner
took the medication approximately one month before the trial
commenced, and there is no indication in the record that anything
was occurring at the time, in terms of defense preparation, that
required decisionmaking or assistance on his part. It is for this
reason that the court is correct in rejecting petitioner's request
for a fitness hearing.
In all other respects, I join in the majority's opinion.

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