People v. Birdsall
Annotate this Case
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of
the opinion to request a rehearing. Also, opinions 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 Supreme Court's
Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 77259--Agenda 1--March 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ERIK WARD BIRDSALL,
Appellant.
Opinion filed June 20, 1996.
JUSTICE McMORROW delivered the opinion of the court:
Defendant, Erik Birdsall, was convicted of first degree murder,
attempted murder, aggravated battery with a firearm, and armed robbery. The
trial court sentenced defendant to death. On appeal, defendant contends that
he received ineffective assistance of counsel and that various trial errors
denied him due process of law. Specifically, defendant claims that his
counsel mistakenly believed that defendant would be entitled to acquittal if
he were found not to be the actual shooter, and because of this erroneous
view, conceded defendant's guilt to participation as an accomplice in the
crimes charged. Defendant also argues that his counsel was ineffective for
failing to request a fitness hearing notwithstanding counsel's awareness that
defendant was taking psychotropic medication and had a history of mental
problems. Defendant further cites three instances of alleged error in
connection with the sentencing proceedings and challenges the Illinois death
penalty statute as unconstitutional.
We hold that defendant was entitled to a fitness hearing pursuant to
statute and precedent of this court; accordingly, we reverse and remand the
cause for further proceedings.
BACKGROUND
In June 1993 one man was murdered and another wounded following a party
held in the victims' apartment in Davenport, Iowa. The deceased, Charles
Kunkle, and his roommate, Earl Houck, had hosted a beer party in their
apartment earlier in the evening of June 5, 1993. William Horton, Raymond
Smith, and defendant, all of whom had attended the party, returned to the
victims' apartment in the early morning hours of June 6 and told Kunkle they
had found him a girlfriend and would take him to meet her. Kunkle and Houck
accompanied defendant and Horton to Smith's car, and all five men then drove
to the "Big Island" area of Rock Island County, near the Mississippi River.
According to testimony of the survivor, Houck, defendant said "the girls
might be out fishing at this place."
Smith stayed in the car. Horton and defendant walked toward the
shoreline of the river with Houck and Kunkle. When the victims saw that there
were no girls, Houck started back toward the car. He stopped when he saw
defendant holding a gun. Defendant told Houck and Kunkle to get down on the
ground. Defendant then fired a shot into the air, after which Houck and
Kunkle lay down, about five feet apart.
According to Houck's trial testimony, Horton held him down while
defendant approached Kunkle and shot him in the back of the neck. Houck
testified he saw defendant pulling his hand away from Kunkles' rear pants
pocket. Next, Houck was shot in the back of the neck by someone who stood
over him. Houck did not see who shot him, and agreed it could have been
Horton, although Houck believed that it was defendant. Either Horton or
defendant searched Houck's pockets but did not take his food stamps.
Autopsy evidence revealed that Kunkle was killed by a contact wound to
the neck, probably made by a .22-caliber handgun. Other medical evidence
indicated that Houck had been shot in the back of the neck and slightly to
one side of the midline. Neither of the two bullets fired into the victims
were recovered. A gun that was recovered from codefendant Horton's car was a
.22-caliber "J.C. Higgins Ranger" model. Police did not test fire the weapon.
Defendant's former girlfriend, Michelle Markley, testified that when she
and defendant arrived at the party, defendant was paged by Horton. She
overheard defendant tell Horton over the telephone to "bring the Ranger ***
in case there's trouble." Markley stated that defendant also told her he
expected to receive approximately $1,500 to $2,000. After Horton and Smith
arrived at the party, Markley testified, the three men stepped out to discuss
"business."
According to Markley, she, defendant, Horton and Smith left the party in
Smith's car at approximately 2:30 a.m. The three men left Markley at a
parking lot where she was meeting a friend and defendant told her he would
return soon. Two hours later, the codefendants returned in Smith's car.
Horton was taken to his house and Markley saw him put a bag inside his parked
car at his home. Smith drove Markley and defendant to Markley's house.
Markley testified that defendant took something from the dashboard of the
car, which she believed to be food stamps because she later found $100 worth
of food stamps which were not hers. According to Markley, defendant told her
he was "going to jail now" but denied shooting anyone. Markley said she never
saw a gun during the evening.
Codefendant Horton testified pursuant to a plea agreement under which he
was to receive no more than 80 years in prison. He stated that defendant's
reference to the "Ranger" in the telephone conversation was to indicate that
Horton should bring his .22-caliber pistol with him to the party. According
to Horton, defendant suggested that he, Horton and Smith rob Kunkle and
Houck. Horton claimed that defendant made reference to "cap[ping] the
faggots," which Horton understood as a reference to shooting them. Horton
admitted that he let defendant take Horton's gun from a green bag. He
testified that after the three codefendants took Markley home they drove to
a grocery store, where they discussed a plan to rob the victims. The men
drove back to Houck and Kunkle's apartment and induced them to come with them
in Smith's car by claiming that Markley and her girlfriend wanted to talk to
Houck and Kunkle.
Horton's description of the shootings was similar to that of Houck's.
When the five men arrived at Big Island, all but Smith left the car.
According to Horton, defendant displayed the gun and ordered everyone to the
ground. Horton said that defendant shot both victims. However, he did not see
defendant take any food stamps from Kunkle or go through Houck's pockets.
Horton denied that he went through the pockets of either victim. On the way
back to the car, defendant told Horton, "I told you I could."
Horton further testified that after the shootings Smith drove him home
and Horton put his green bag into his own car. The bag contained the gun,
shell casings, a rope, and a knife that Horton said he found in Smith's glove
compartment. Horton claimed that defendant threatened him to keep quiet but
also offered Horton food stamps and a wallet, which Horton said he did not
accept.
Raymond Smith testified pursuant to a plea agreement under which his
prison sentence was not to exceed 30 years. He stated that he overheard the
two other defendants speak of "capping faggots," which Smith took to mean
that they were considering shooting someone. Smith claimed that Horton and
defendant planned the robbery and discussed beating the victims "if
necessary."
Smith testified that he did not see what happened at Big Island, but
heard three gunshots after the others left the car and walked toward the
river. Smith did not see any gun, wallet, or food stamps. Although he assumed
that Horton's bag contained a gun, Smith claimed he did not know there was
going to be a shooting. Smith further stated that Horton and defendant
discussed food stamps and defendant offered them to Smith, who declined the
offer.
After police spoke with Houck, defendant was arrested and given the
Miranda warnings. He then gave a tape-recorded statement to the police in
which he admitted accompanying the victims and the codefendants to Big Island
but denied that he intended to either rob or shoot them.
At trial, defendant was the sole witness to testify for the defense. He
testified that Horton was the person who wanted to rob or shoot someone and
had mentioned such an idea to defendant days before the incident. Defendant
claimed he did not want to get involved. According to defendant, the plan of
returning to the victims' apartment after the party was Horton's. Defendant
said he stayed in the hallway while Horton asked the victims if they wanted
to go out for coffee. Defendant became aware that they were not going to do
so when the car passed a coffee shop and Horton directed Smith to Big Island.
When they arrived, Horton asked the others to get out because he wanted to
talk to them. Defendant testified that Horton pulled a gun out of his pants
and announced that he was an undercover cop "busting" them for drugs.
Defendant claimed he stood at least 120 feet away and did nothing as Horton
pushed the victims to the ground and shot them before going through their
pockets. As they returned to the car, Horton told Smith not to worry because
"dead men can't tell." Defendant denied offering Smith any food stamps and
insisted that Horton was the one who said, "I told you I could do it."
According to defendant, he ended up with the stolen food stamps because
Horton had been wearing defendant's jacket at the time of the shootings and
had put the stamps in the pocket. At trial, defendant acknowledged that the
statement he had given to police was substantially correct and reiterated
that he was not the shooter.
Under cross-examination, defendant denied having told Horton to "bring
the Ranger" when he called Horton at the party. Instead, he claimed, the
reference to "Ranger" was his request that Horton call the park ranger to
find out about camping charges. He denied telling Markley that he was going
to receive money that night and claimed that his comment to her about going
to jail did not refer to anything that he had done, but rather concerned what
Horton would claim. Although defendant continued to insist on cross-
examination that he had no preestablished intention to rob the victims, he
admitted that Horton had discussed beating them up and "capping some faggots"
or hanging them. Defendant admitted that Horton handed him the green bag but
denied seeing a gun in the bag. Defendant claimed he thought Horton was going
to beat up the victims at Big Island but not shoot anyone. Defendant also
acknowledged during cross-examination that he "knew where the gun was" when
Horton retrieved it from Horton's house before the shootings. Upon further
questioning by the court defendant claimed that on the way to the victims'
apartment, "We--it wasn't decided about robbing, but it was part of the
discussion about beating people up--nothing about as a robbery at that time."
During closing argument the prosecutor emphasized that defendant's
testimony admitted guilt with respect to acts establishing his liability as
an accomplice. The prosecutor concluded that "[d]efendant had, basically,
confessed on the stand to felony murder."
In his brief closing argument, defense counsel remarked that the case
was "interesting" and cited the absence of ballistics evidence. Counsel
mentioned the varying testimonies of defendant, Horton, and Houck regarding
which defendant had been the shooter and concluded, "If you pull it
altogether, I think they're all guilty of the same offense and should be
treated the same."
Defendant was found guilty of all charges. The court found defendant
eligible for the death penalty based on the factors that the murder was
committed in the course of armed robbery and the murder was committed in a
"cold, calculated and premeditated manner." See 720 ILCS 5/9--1(b)(6),
(b)(11) (West 1992). The court ordered the preparation of the presentence
report and allowed the defense motion for psychological examination in
advance of the hearing in aggravation and mitigation.
The presentence report revealed that defendant was under the care of Dr.
Peterson while in jail and had been seen by several doctors concerning his
mental health. He attempted suicide in 1988 and had one in-patient stay at a
mental health center. At the time of the presentence report, defendant stated
he was taking Thorazine for depression. The report indicated that since 1980
defendant had been treated by numerous doctors and had been prescribed
various medications including Ritalin, Lithium, Vestaril, and others.
In aggravation the State offered testimony of two witnesses who
testified that defendant had been found guilty of battery in a 1983 juvenile
adjudication. In mitigation, defendant offered seven witnesses, including
various family members and friends, and Dr. Hauck, who examined defendant
after the trial court granted the defense motion for psychological
examination following trial.
Defendant's mother and grandmother testified regarding his history of
psychiatric care, which apparently began in kindergarten. His mother
testified that defendant had been beaten by his father at a young age and
that defendant had been prescribed Lithium and other drugs for many years.
She found her son helpful and obedient around the house and said it was not
in his nature to harm anyone. Defendant's grandmother, who had often cared
for him as a child, corroborated the history of defendant's psychiatric care
and periods of hospitalization since kindergarten. She had not experienced
problems with defendant and believed his personality was that of a
"follower." She expressed shock at the charges.
Defendant, who was 20 years old at the time of the crimes, told the
court of his remorse. He denied that he needed money at the time of the
attack on the victims, saying he went along with the other codefendants
because he "looked up" to them. He insisted he did not know a murder would
take place.
Dr. Paul Hauck, a clinical psychologist, testified regarding his
clinical interview and testing of defendant. Dr. Hauck found defendant to
have an IQ of 76, in the bottom 6% of all people. This IQ placed defendant
only slightly above mental retardation. Dr. Hauck also found that defendant
was a paranoid schizophrenic who was delusional and who felt threatened
without reason, who tended toward alcohol dependency, and who was unable to
foresee the consequences of his actions. Dr. Hauck found defendant to be
anxious, submissive, and easily influenced by others. Dr. Hauck believed that
defendant's participation in the offenses was not rooted in hate or anger but
instead was based on defendant's attempt to go along with the crowd or
impress others. The doctor concluded that with maturity and time for
reflection, defendant could, in future years, be a positive member of
society. Dr. Hauck did not believe defendant was dangerous and expressed his
opinion that there was no purpose to be served by executing defendant, even
though Dr. Hauck asserted that he personally was in favor of the death
penalty in some cases.
Defendant's former girlfriend, Jeanette Stone, the mother of their two-
year-old son, had lived with defendant for five years. She testified that he
had always treated her and their child well and had shared household
responsibilities and provided financial support. She testified that he feared
guns and never had one around their house.
Darlene Bennet, a friend of defendant who had known him well for about
five years, testified that he was a trustworthy person around her grandson
and personal possessions.
Defendant's uncle had employed defendant in his siding business and
described his successful job performance and attitude and his willingness to
take directions. He believed that defendant was a "follower" but one who was
a "good kid" who could be a decent member of society with the right
leadership.
The trial court imposed the death penalty for the first degree murder
conviction and imposed prison terms for the other convictions.
ANALYSIS
Defendant initially raises two issues involving ineffective assistance
of counsel, both of which he argues independently establish sufficient
grounds for a new trial. First, he argues that his trial counsel's legally
erroneous theory of defense and admissions of defendant's guilt amounted to
the functional equivalent of a guilty plea without the procedural due process
required by Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709
(1969), and this court's Rule 402 (134 Ill. 2d R. 402). The sole defense
offered by counsel at trial was that defendant was not the actual shooter or
robber, which is not a legal defense to felony murder. See, e.g., People v.
Chandler, 129 Ill. 2d 233, 247-49 (1989); People v. Morgan, 67 Ill. 2d 1
(1977). In furtherance of such "defense," counsel allowed defendant to
confess on the stand to specific acts of participation in the criminal
undertaking, which established defendant's accomplice liability as a matter
of uncontested fact. Under the law, such admissions established defendant's
full criminal responsibility for the armed robbery, felony murder, and
attempted murder. Therefore, according to defendant, his counsel's
performance in this regard failed to subject the State's case to meaningful
adversarial testing required by the sixth amendment (see People v. Hattery,
109 Ill. 2d 449, 465 (1989), citing United States v. Cronic, 466 U.S. 648,
659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047 (1984)) and prejudiced
defendant by leaving the trial court with no choice but to convict defendant
of the underlying offenses, rendering him eligible for the death penalty
(Chandler, 129 Ill. 2d at 248). As a result, defendant argues, he was denied
effective assistance of counsel. See, e.g., Chandler, 129 Ill. 2d at 249;
People v. Hattery, 109 Ill. 2d 449, 465 (1989); cf. People v. Johnson, 128 Ill. 2d 253, 268 (1989).
We express no opinion regarding the merits of this first claim of
ineffective assistance of counsel because it is unnecessary for the ultimate
resolution of this appeal. In our view, the second issue defendant raises,
challenging his counsel's failure to request a fitness hearing based on
defendant's use of psychotropic medication, is dispositive. Therefore, the
remainder of this opinion is directed to that issue.
Defendant contends that he was denied due process of law and effective
assistance of counsel because he was not accorded the competency hearing to
which defendants are entitled by statute if they are taking psychotropic
medication under medical direction at or near the time of trial or
sentencing. 725 ILCS 5/104--21(a) (West 1992). In support, defendant cites
recent precedents of this court which have held that a defendant's right to
such hearing is one of legislative entitlement rather than judicial
discretion. See People v. Brandon, 162 Ill. 2d 450 (1994); People v. Gevas,
166 Ill. 2d 461 (1995); People v. Kinkead, 168 Ill. 2d 394 (1995).
Under long-established principles of due process, an accused may not be
prosecuted or validly convicted if he or she is unfit to stand trial. E.g.,
Medina v. California, 505 U.S. 437, 440, 120 L. Ed. 2d 353, 359, 112 S. Ct. 2572, 2574 (1992); Drope v. Missouri, 420 U.S. 162, 172, 43 L. Ed. 2d 103,
113, 95 S. Ct. 896, 904 (1975). To secure this due process protection,
Illinois statutory and case law requires the trial court to hold a mental
competency hearing if there is a bona fide doubt concerning the defendant's
mental fitness to understand the nature and purpose of the proceedings and to
assist in his or her defense. 725 ILCS 5/104--10 (West 1992); People v.
Murphy, 72 Ill. 2d 421 (1978). In Gevas, the majority of this court held that
the terms of section 104--21(a) indicated that the "legislature has equated
the administering of psychotropic medication to a defendant with a bona fide
doubt as to fitness to stand trial." Gevas, 166 Ill. 2d at 469. Accord
Kinkead, 168 Ill. 2d at 407.
In Brandon, this court held that a capital defendant who was taking
psychotropic medication while in jail awaiting trial was entitled to a
fitness hearing under the plain terms of the statute, and that his counsel's
failure to request such hearing constituted ineffective assistance of
counsel. In Gevas, the court adhered to its mandatory construction of section
104--21(a) and held that the trial court had a duty to hold a fitness hearing
when defense counsel, apprising the court of defendant's use of psychotropic
medications, requested such hearing pursuant to the statute. In both Brandon
and Gevas, this court granted the defendants new trials rather than remanding
the causes for "retrospective" fitness hearings because of the
impracticability of a meaningful hearing, retrospectively, on the issue of
the defendants' fitness at the time of trial and sentencing. See Gevas, 166 Ill. 2d at 471.
To summarize current Illinois law, an accused who is taking psychotropic
drugs under medical direction at or near the time of trial or sentencing is
entitled to a fitness hearing under section 104--21(a). Brandon, 162 Ill. 2d 450; Gevas, 166 Ill. 2d 461; Kinkead, 168 Ill. 2d 394. Consistent with
principles of due process, if an accused who is entitled to a fitness hearing
is not accorded such hearing before being criminally prosecuted or sentenced,
the conviction ordinarily must be reversed and the cause remanded for further
proceedings. Gevas, 166 Ill. 2d 461; see also Brandon, 162 Ill. 2d 450; Drope
v. Missouri, 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896. In certain
circumstances, a limited remand to the circuit court may be ordered for the
purpose of determining whether factual grounds for a section 104--21(a)
competency hearing existed at the time of defendant's trial and sentencing.
Kinkead, 168 Ill. 2d at 417.
The above authorities directly support defendant's contention that he is
entitled to relief based on the denial of his right to a fitness hearing. It
is uncontested in the record that Dr. Peterson prescribed Thorazine for
defendant while in jail. The presentence report and documents included in the
supplemental record indicate that defendant was taking psychotropic
medications during the time of pretrial proceedings in September 1993 and
throughout the January 1994 trial and death-eligibility sentencing
proceedings. According to records from the facility in which defendant was
incarcerated, defendant was initially prescribed Thorazine on September 14,
1993, and he was given 50 milligram dosages of the drug, to "continue
indefinitely." The records contain references to additional medications as
well. Therefore, it appears undisputed that defendant was taking psychotropic
drugs under medical direction during the time of his prosecution and
sentencing. Consequently, defendant was eligible for a fitness hearing
pursuant to section 104--21(a) and our precedents.
We note parenthetically that the record reveals additional information
of potential relevance to the issue of defendant's mental competence. This
includes reference to defendant's chronic history of mental health problems
dating back to early childhood. Testimony of record indicates that from a
very early age defendant was given powerful medications for psychological or
behavioral problems. Although no evidence was adduced regarding defendant's
need for and use of psychotropic medications while in jail awaiting trial and
sentencing, Dr. Hauck's presentencing examination and testing of defendant
led to Dr. Hauck's opinion that defendant is a paranoid schizophrenic who
suffers from delusional thinking. Dr. Hauck was not requested to and did not
evaluate the separate issue of defendant's fitness to understand and assist
in his defense, and his examination of defendant did not occur until
approximately two months after defendant's trial.
The State does not dispute the fact that defendant was taking
psychotropic drugs under medical direction during trial and sentencing.
However, the State takes the position, consistent with its past opposition to
our interpretation of section 104--21(a) in Brandon, Gevas, and Kinkead, that
this court should repudiate its three precedents as having created an
unwarranted rule of automatic reversal. In its place, the State suggests that
we now adopt a "totality of the circumstances" approach which would permit
us, as a reviewing court, to evaluate the trial record and independently
assess defendant's freedom from mental impairment. Under this approach, the
State proposes, we would review Dr. Hauck's testimony regarding defendant's
psychological state and analyze the trial transcript to form our own
impression of defendant's mental fitness. The State contends that during the
trial, defendant "gave a lucid, detailed recollection of his version of the
events leading up to the shootings, as well as the events leading up to his
arrest and his statement to police." Accordingly, the State concludes, "the
record on appeal is adequate to make a meaningful determination that the
medication Defendant was taking did not render him unfit for trial."
We reject the State's invitation to make independent factual findings of
a predominantly medical nature based on a cold record that is totally silent
on the key issue of whether defendant's medications may have impaired his
fitness to understand and assist in his defense. The State cites no legal
authority for a court of review to venture down such an extraordinary path.
In fact, the majority of this court has squarely rejected the State's
argument that the trial court's observations of defendant's seemingly
cooperative deportment in court or lucid testimony dispenses with the need
for a fitness hearing where psychotropic medications are involved. In
Kinkead, 168 Ill. 2d at 410, we explained:
"If personal observation were the decisive factor in whether to
hold a section 104--21(a) hearing, the effects of psychotropic
medications on a defendant's mental functioning would be left to
speculation or uniformed opinion. Such a result would render the
courts' application of section 104--21(a) directory rather than
mandatory, which in turn would erode our precedent of Brandon and
Gevas. We believe that the legislature intended, through the plain
language of the statute, to remove the determination of a
defendant's fitness from the subjectivity of personal observation
and place the question in the formal context of a fitness hearing."
The State does not argue that the record in the case at bar contains any
evidence of a medical nature respecting the influence that the psychotropic
drugs may have had on defendant's fitness at the time of his trial or
sentencing. Nor does the State dispute that defendant was medicated with
psychotropic drugs during that time. Therefore, under the terms of section
104--21(a) defendant was entitled to a fitness hearing. Defendant did not
receive a fitness hearing. His counsel did not request one. The court did not
order one. Therefore, consistent with our precedent, we hold that defendant's
conviction and sentence must be reversed and the cause remanded to afford the
State an opportunity to again try defendant.
We are not persuaded by the State's alternative argument that we should
order a limited remand of this cause for the circuit court to hold a fitness
hearing on the issue of defendant's mental competency at the time of trial.
The State proposes a "full-blown inquiry into the properties of the drug in
question--whether it was properly prescribed, and whether it, in the dose
administered, could have affected the Defendant's ability to understand the
nature and purpose of proceedings and to assist in his defense." According to
the State, the perceived problems inherent in a retrospective competency
hearing would be minimized where the principal fitness issue relates to the
defendant's ingestion of psychotropic drugs. The State posits that in a
remand to assess the influence of such drugs on defendant, the principal
inquiry would involve the "science of pharmacology *** or pharmacokinetics,"
defined in the State's brief as the study of the absorption, distribution,
and metabolism of drugs in the body and their elimination from the body.
Because such an evaluation is "objective," the State argues, a hearing based
on the pharmacokinetics of the drugs in issue would avoid the perceived
problem that arises when an after-the-fact fitness assessment is premised
upon untrained laymen's personal observations or speculations respecting
defendant's trial demeanor.
We express no opinion as to the relative scientific objectivity of
pharmocokinetics because we lack any particular knowledge of such field.
Presumably, the State is suggesting that on remand in the case at bar
evidence could be presented to assist the trial court in assessing
defendant's fitness at the time of trial through evaluating such "objective"
factors as the measurable rates of bodily absorption, metabolism, and
elimination of different drugs. While it may be true that such information
would be useful, we decline to speculate whether or not even objectively
measurable physical effects of potentially "mind-altering" drugs necessarily
resolve the influence such drugs may exert on a given defendant's
psychological state and ultimate fitness to understand and assist in his or
her defense. We find it inappropriate to remand the cause for a hearing into
the pharmocokinetics of the drugs involved as a means of determining
defendant's fitness retroactive to the time of trial.
In light of our holding that defendant is entitled to a new trial, we
need not address the remaining issues presented in this appeal. We note that
defendant has not expressly challenged the sufficiency of his guilt, and we
observe that the evidence in the record is sufficient to support the
convictions and sentences. Consequently, there is no double jeopardy
impediment to a new trial and capital sentencing hearing. See People v.
Brown, 169 Ill. 2d 132, 169 (1996). We do not, however, imply that we have
made any findings regarding defendant's guilt or other issues that would be
binding on remand. See People v. McDonald, 125 Ill. 2d 182, 202 (1988).
Finally, we reject defendant's challenges to the constitutionality of
the Illinois capital sentencing statute. Defendant argues that the statute
violates the eighth and fourteenth amendments by placing the burden of proof
on defendant which precludes meaningful consideration of mitigating evidence.
This court has rejected the same claim in many prior opinions (e.g., People
v. Edgeston, 157 Ill. 2d 201, 247 (1993)), and we will not now reconsider the
issue. Similarly, we have rejected on numerous occasions the argument that
the statute fails to include adequate safeguards to prevent arbitrary and
capricious death penalty decisions. E.g., People v. Sutherland, 155 Ill. 2d 1 (1992). We are not persuaded to revisit the issue, and we decline to
overrule the controlling precedents.
For the foregoing reasons, we reverse defendant's convictions and
sentences and remand this cause to the circuit court for further proceedings
consistent with this opinion.
Reversed and remanded.
JUSTICE MILLER, dissenting:
I do not agree with the majority's conclusion that the defendant was
denied due process by the trial court's failure to hold, sua sponte, a
fitness hearing pursuant to section 104--21(a) of the Code of Criminal
Procedure of 1963 (725 ILCS 5/104--21(a) (West 1992)). Accordingly, I
dissent.
The defendant in this capital case did not request a fitness hearing
while the matter was pending in the trial court. On appeal, the defendant now
contends that trial counsel was ineffective for failing to demand a fitness
hearing under section 104--21(a) and, further, that the trial court's failure
to conduct such a hearing in any event resulted in a denial of due process.
Without specifically resolving the defendant's claim of ineffective
assistance, the majority summarily concludes that the failure to hold a
fitness hearing in the trial court denied the defendant due process.
Once more, the majority mistakenly equates a defendant's statutory
entitlement to a fitness hearing, found in section 104--21(a) of the Code of
Criminal Procedure, with a bona fide doubt of the defendant's fitness. See
People v. Kinkead, 168 Ill. 2d 394, 407 (1995); People v. Gevas, 166 Ill. 2d 461, 469 (1995). Moreover, the majority goes on to confuse the defendant's
failure to assert the procedures it believes are designed to secure due
process with a denial of due process itself. In doing so, the majority fails
to recognize that the statutory right to a fitness hearing in the
circumstances defined by section 104--21(a) is much broader than the
constitutional right with which it is mistaken. The statute grants to a
defendant an entitlement to a fitness hearing in cases in which the
constitutional right is not at all implicated. Under section 104--21(a), "[a]
defendant who is receiving psychotropic drugs or other medications under
medical direction" is entitled to a fitness hearing, even in the absence of
evidence that might otherwise trigger an inquiry into the separate
constitutional right. In this manner, the scope of the statute is
considerably broader than the bona fide doubt of fitness with which it is
equated. Presumably, the majority would grant the same relief to a defendant
who had been treated with a common antibiotic or analgesic during trial or
sentencing.
At no time in the proceedings below did the defendant assert his
statutory right to a fitness hearing, and the trial judge denied him nothing
with respect to that right. Rather than being a question of due process, the
issue is properly analyzed in terms of ineffective assistance of counsel. To
prevail on a claim of ineffective assistance, the defendant must satisfy the
two-part test prescribed by the Supreme Court in Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), by demonstrating both
a deficiency in counsel's performance and prejudice resulting from the
alleged deficiency. At a minimum, the defendant must show not simply that a
fitness hearing would have been conducted if counsel had requested one, but
that the outcome of the hearing would have been favorable to him.
The majority perpetuates an unsound rule, ignoring the problems that
continue to arise from the ill-conceived decisions in Kinkead, Gevas, and
People v. Brandon, 162 Ill. 2d 450 (1994). As the majority notes, the
legislature has now amended section 104--21(a), severely limiting the
operation of the provision. This recent action suggests the legislature's
disagreement with the majority's prior interpretations of the statute.
Santiago v. Kusper, 133 Ill. 2d 318, 329 (1990). Today's result, however,
once more requires trial judges to make a special inquiry in every case to
determine whether, in the language of the statute, the defendant has been
"receiving psychotropic drugs or other medications under medical direction,"
and of conducting a fitness hearing sua sponte if such drug usage has
occurred. Contrary to accepted principles of waiver, the majority imposes
these extraordinary duties even though the defendant, who knows he has been
receiving medication, failed to invoke section 104--21(a) in the trial court.
I would reject the defendant's effort to transform the statutory right into
a constitutional right, and would address the remaining issues raised on
appeal by the defendant.
CHIEF JUSTICE BILANDIC and JUSTICE HEIPLE join in this dissent.
the opinion to request a rehearing. Also, opinions 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 Supreme Court's
Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 77259--Agenda 1--March 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ERIK WARD BIRDSALL,
Appellant.
Opinion filed June 20, 1996.
JUSTICE McMORROW delivered the opinion of the court:
Defendant, Erik Birdsall, was convicted of first degree murder,
attempted murder, aggravated battery with a firearm, and armed robbery. The
trial court sentenced defendant to death. On appeal, defendant contends that
he received ineffective assistance of counsel and that various trial errors
denied him due process of law. Specifically, defendant claims that his
counsel mistakenly believed that defendant would be entitled to acquittal if
he were found not to be the actual shooter, and because of this erroneous
view, conceded defendant's guilt to participation as an accomplice in the
crimes charged. Defendant also argues that his counsel was ineffective for
failing to request a fitness hearing notwithstanding counsel's awareness that
defendant was taking psychotropic medication and had a history of mental
problems. Defendant further cites three instances of alleged error in
connection with the sentencing proceedings and challenges the Illinois death
penalty statute as unconstitutional.
We hold that defendant was entitled to a fitness hearing pursuant to
statute and precedent of this court; accordingly, we reverse and remand the
cause for further proceedings.
BACKGROUND
In June 1993 one man was murdered and another wounded following a party
held in the victims' apartment in Davenport, Iowa. The deceased, Charles
Kunkle, and his roommate, Earl Houck, had hosted a beer party in their
apartment earlier in the evening of June 5, 1993. William Horton, Raymond
Smith, and defendant, all of whom had attended the party, returned to the
victims' apartment in the early morning hours of June 6 and told Kunkle they
had found him a girlfriend and would take him to meet her. Kunkle and Houck
accompanied defendant and Horton to Smith's car, and all five men then drove
to the "Big Island" area of Rock Island County, near the Mississippi River.
According to testimony of the survivor, Houck, defendant said "the girls
might be out fishing at this place."
Smith stayed in the car. Horton and defendant walked toward the
shoreline of the river with Houck and Kunkle. When the victims saw that there
were no girls, Houck started back toward the car. He stopped when he saw
defendant holding a gun. Defendant told Houck and Kunkle to get down on the
ground. Defendant then fired a shot into the air, after which Houck and
Kunkle lay down, about five feet apart.
According to Houck's trial testimony, Horton held him down while
defendant approached Kunkle and shot him in the back of the neck. Houck
testified he saw defendant pulling his hand away from Kunkles' rear pants
pocket. Next, Houck was shot in the back of the neck by someone who stood
over him. Houck did not see who shot him, and agreed it could have been
Horton, although Houck believed that it was defendant. Either Horton or
defendant searched Houck's pockets but did not take his food stamps.
Autopsy evidence revealed that Kunkle was killed by a contact wound to
the neck, probably made by a .22-caliber handgun. Other medical evidence
indicated that Houck had been shot in the back of the neck and slightly to
one side of the midline. Neither of the two bullets fired into the victims
were recovered. A gun that was recovered from codefendant Horton's car was a
.22-caliber "J.C. Higgins Ranger" model. Police did not test fire the weapon.
Defendant's former girlfriend, Michelle Markley, testified that when she
and defendant arrived at the party, defendant was paged by Horton. She
overheard defendant tell Horton over the telephone to "bring the Ranger ***
in case there's trouble." Markley stated that defendant also told her he
expected to receive approximately $1,500 to $2,000. After Horton and Smith
arrived at the party, Markley testified, the three men stepped out to discuss
"business."
According to Markley, she, defendant, Horton and Smith left the party in
Smith's car at approximately 2:30 a.m. The three men left Markley at a
parking lot where she was meeting a friend and defendant told her he would
return soon. Two hours later, the codefendants returned in Smith's car.
Horton was taken to his house and Markley saw him put a bag inside his parked
car at his home. Smith drove Markley and defendant to Markley's house.
Markley testified that defendant took something from the dashboard of the
car, which she believed to be food stamps because she later found $100 worth
of food stamps which were not hers. According to Markley, defendant told her
he was "going to jail now" but denied shooting anyone. Markley said she never
saw a gun during the evening.
Codefendant Horton testified pursuant to a plea agreement under which he
was to receive no more than 80 years in prison. He stated that defendant's
reference to the "Ranger" in the telephone conversation was to indicate that
Horton should bring his .22-caliber pistol with him to the party. According
to Horton, defendant suggested that he, Horton and Smith rob Kunkle and
Houck. Horton claimed that defendant made reference to "cap[ping] the
faggots," which Horton understood as a reference to shooting them. Horton
admitted that he let defendant take Horton's gun from a green bag. He
testified that after the three codefendants took Markley home they drove to
a grocery store, where they discussed a plan to rob the victims. The men
drove back to Houck and Kunkle's apartment and induced them to come with them
in Smith's car by claiming that Markley and her girlfriend wanted to talk to
Houck and Kunkle.
Horton's description of the shootings was similar to that of Houck's.
When the five men arrived at Big Island, all but Smith left the car.
According to Horton, defendant displayed the gun and ordered everyone to the
ground. Horton said that defendant shot both victims. However, he did not see
defendant take any food stamps from Kunkle or go through Houck's pockets.
Horton denied that he went through the pockets of either victim. On the way
back to the car, defendant told Horton, "I told you I could."
Horton further testified that after the shootings Smith drove him home
and Horton put his green bag into his own car. The bag contained the gun,
shell casings, a rope, and a knife that Horton said he found in Smith's glove
compartment. Horton claimed that defendant threatened him to keep quiet but
also offered Horton food stamps and a wallet, which Horton said he did not
accept.
Raymond Smith testified pursuant to a plea agreement under which his
prison sentence was not to exceed 30 years. He stated that he overheard the
two other defendants speak of "capping faggots," which Smith took to mean
that they were considering shooting someone. Smith claimed that Horton and
defendant planned the robbery and discussed beating the victims "if
necessary."
Smith testified that he did not see what happened at Big Island, but
heard three gunshots after the others left the car and walked toward the
river. Smith did not see any gun, wallet, or food stamps. Although he assumed
that Horton's bag contained a gun, Smith claimed he did not know there was
going to be a shooting. Smith further stated that Horton and defendant
discussed food stamps and defendant offered them to Smith, who declined the
offer.
After police spoke with Houck, defendant was arrested and given the
Miranda warnings. He then gave a tape-recorded statement to the police in
which he admitted accompanying the victims and the codefendants to Big Island
but denied that he intended to either rob or shoot them.
At trial, defendant was the sole witness to testify for the defense. He
testified that Horton was the person who wanted to rob or shoot someone and
had mentioned such an idea to defendant days before the incident. Defendant
claimed he did not want to get involved. According to defendant, the plan of
returning to the victims' apartment after the party was Horton's. Defendant
said he stayed in the hallway while Horton asked the victims if they wanted
to go out for coffee. Defendant became aware that they were not going to do
so when the car passed a coffee shop and Horton directed Smith to Big Island.
When they arrived, Horton asked the others to get out because he wanted to
talk to them. Defendant testified that Horton pulled a gun out of his pants
and announced that he was an undercover cop "busting" them for drugs.
Defendant claimed he stood at least 120 feet away and did nothing as Horton
pushed the victims to the ground and shot them before going through their
pockets. As they returned to the car, Horton told Smith not to worry because
"dead men can't tell." Defendant denied offering Smith any food stamps and
insisted that Horton was the one who said, "I told you I could do it."
According to defendant, he ended up with the stolen food stamps because
Horton had been wearing defendant's jacket at the time of the shootings and
had put the stamps in the pocket. At trial, defendant acknowledged that the
statement he had given to police was substantially correct and reiterated
that he was not the shooter.
Under cross-examination, defendant denied having told Horton to "bring
the Ranger" when he called Horton at the party. Instead, he claimed, the
reference to "Ranger" was his request that Horton call the park ranger to
find out about camping charges. He denied telling Markley that he was going
to receive money that night and claimed that his comment to her about going
to jail did not refer to anything that he had done, but rather concerned what
Horton would claim. Although defendant continued to insist on cross-
examination that he had no preestablished intention to rob the victims, he
admitted that Horton had discussed beating them up and "capping some faggots"
or hanging them. Defendant admitted that Horton handed him the green bag but
denied seeing a gun in the bag. Defendant claimed he thought Horton was going
to beat up the victims at Big Island but not shoot anyone. Defendant also
acknowledged during cross-examination that he "knew where the gun was" when
Horton retrieved it from Horton's house before the shootings. Upon further
questioning by the court defendant claimed that on the way to the victims'
apartment, "We--it wasn't decided about robbing, but it was part of the
discussion about beating people up--nothing about as a robbery at that time."
During closing argument the prosecutor emphasized that defendant's
testimony admitted guilt with respect to acts establishing his liability as
an accomplice. The prosecutor concluded that "[d]efendant had, basically,
confessed on the stand to felony murder."
In his brief closing argument, defense counsel remarked that the case
was "interesting" and cited the absence of ballistics evidence. Counsel
mentioned the varying testimonies of defendant, Horton, and Houck regarding
which defendant had been the shooter and concluded, "If you pull it
altogether, I think they're all guilty of the same offense and should be
treated the same."
Defendant was found guilty of all charges. The court found defendant
eligible for the death penalty based on the factors that the murder was
committed in the course of armed robbery and the murder was committed in a
"cold, calculated and premeditated manner." See 720 ILCS 5/9--1(b)(6),
(b)(11) (West 1992). The court ordered the preparation of the presentence
report and allowed the defense motion for psychological examination in
advance of the hearing in aggravation and mitigation.
The presentence report revealed that defendant was under the care of Dr.
Peterson while in jail and had been seen by several doctors concerning his
mental health. He attempted suicide in 1988 and had one in-patient stay at a
mental health center. At the time of the presentence report, defendant stated
he was taking Thorazine for depression. The report indicated that since 1980
defendant had been treated by numerous doctors and had been prescribed
various medications including Ritalin, Lithium, Vestaril, and others.
In aggravation the State offered testimony of two witnesses who
testified that defendant had been found guilty of battery in a 1983 juvenile
adjudication. In mitigation, defendant offered seven witnesses, including
various family members and friends, and Dr. Hauck, who examined defendant
after the trial court granted the defense motion for psychological
examination following trial.
Defendant's mother and grandmother testified regarding his history of
psychiatric care, which apparently began in kindergarten. His mother
testified that defendant had been beaten by his father at a young age and
that defendant had been prescribed Lithium and other drugs for many years.
She found her son helpful and obedient around the house and said it was not
in his nature to harm anyone. Defendant's grandmother, who had often cared
for him as a child, corroborated the history of defendant's psychiatric care
and periods of hospitalization since kindergarten. She had not experienced
problems with defendant and believed his personality was that of a
"follower." She expressed shock at the charges.
Defendant, who was 20 years old at the time of the crimes, told the
court of his remorse. He denied that he needed money at the time of the
attack on the victims, saying he went along with the other codefendants
because he "looked up" to them. He insisted he did not know a murder would
take place.
Dr. Paul Hauck, a clinical psychologist, testified regarding his
clinical interview and testing of defendant. Dr. Hauck found defendant to
have an IQ of 76, in the bottom 6% of all people. This IQ placed defendant
only slightly above mental retardation. Dr. Hauck also found that defendant
was a paranoid schizophrenic who was delusional and who felt threatened
without reason, who tended toward alcohol dependency, and who was unable to
foresee the consequences of his actions. Dr. Hauck found defendant to be
anxious, submissive, and easily influenced by others. Dr. Hauck believed that
defendant's participation in the offenses was not rooted in hate or anger but
instead was based on defendant's attempt to go along with the crowd or
impress others. The doctor concluded that with maturity and time for
reflection, defendant could, in future years, be a positive member of
society. Dr. Hauck did not believe defendant was dangerous and expressed his
opinion that there was no purpose to be served by executing defendant, even
though Dr. Hauck asserted that he personally was in favor of the death
penalty in some cases.
Defendant's former girlfriend, Jeanette Stone, the mother of their two-
year-old son, had lived with defendant for five years. She testified that he
had always treated her and their child well and had shared household
responsibilities and provided financial support. She testified that he feared
guns and never had one around their house.
Darlene Bennet, a friend of defendant who had known him well for about
five years, testified that he was a trustworthy person around her grandson
and personal possessions.
Defendant's uncle had employed defendant in his siding business and
described his successful job performance and attitude and his willingness to
take directions. He believed that defendant was a "follower" but one who was
a "good kid" who could be a decent member of society with the right
leadership.
The trial court imposed the death penalty for the first degree murder
conviction and imposed prison terms for the other convictions.
ANALYSIS
Defendant initially raises two issues involving ineffective assistance
of counsel, both of which he argues independently establish sufficient
grounds for a new trial. First, he argues that his trial counsel's legally
erroneous theory of defense and admissions of defendant's guilt amounted to
the functional equivalent of a guilty plea without the procedural due process
required by Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709
(1969), and this court's Rule 402 (134 Ill. 2d R. 402). The sole defense
offered by counsel at trial was that defendant was not the actual shooter or
robber, which is not a legal defense to felony murder. See, e.g., People v.
Chandler, 129 Ill. 2d 233, 247-49 (1989); People v. Morgan, 67 Ill. 2d 1
(1977). In furtherance of such "defense," counsel allowed defendant to
confess on the stand to specific acts of participation in the criminal
undertaking, which established defendant's accomplice liability as a matter
of uncontested fact. Under the law, such admissions established defendant's
full criminal responsibility for the armed robbery, felony murder, and
attempted murder. Therefore, according to defendant, his counsel's
performance in this regard failed to subject the State's case to meaningful
adversarial testing required by the sixth amendment (see People v. Hattery,
109 Ill. 2d 449, 465 (1989), citing United States v. Cronic, 466 U.S. 648,
659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047 (1984)) and prejudiced
defendant by leaving the trial court with no choice but to convict defendant
of the underlying offenses, rendering him eligible for the death penalty
(Chandler, 129 Ill. 2d at 248). As a result, defendant argues, he was denied
effective assistance of counsel. See, e.g., Chandler, 129 Ill. 2d at 249;
People v. Hattery, 109 Ill. 2d 449, 465 (1989); cf. People v. Johnson, 128 Ill. 2d 253, 268 (1989).
We express no opinion regarding the merits of this first claim of
ineffective assistance of counsel because it is unnecessary for the ultimate
resolution of this appeal. In our view, the second issue defendant raises,
challenging his counsel's failure to request a fitness hearing based on
defendant's use of psychotropic medication, is dispositive. Therefore, the
remainder of this opinion is directed to that issue.
Defendant contends that he was denied due process of law and effective
assistance of counsel because he was not accorded the competency hearing to
which defendants are entitled by statute if they are taking psychotropic
medication under medical direction at or near the time of trial or
sentencing. 725 ILCS 5/104--21(a) (West 1992). In support, defendant cites
recent precedents of this court which have held that a defendant's right to
such hearing is one of legislative entitlement rather than judicial
discretion. See People v. Brandon, 162 Ill. 2d 450 (1994); People v. Gevas,
166 Ill. 2d 461 (1995); People v. Kinkead, 168 Ill. 2d 394 (1995).
Under long-established principles of due process, an accused may not be
prosecuted or validly convicted if he or she is unfit to stand trial. E.g.,
Medina v. California, 505 U.S. 437, 440, 120 L. Ed. 2d 353, 359, 112 S. Ct. 2572, 2574 (1992); Drope v. Missouri, 420 U.S. 162, 172, 43 L. Ed. 2d 103,
113, 95 S. Ct. 896, 904 (1975). To secure this due process protection,
Illinois statutory and case law requires the trial court to hold a mental
competency hearing if there is a bona fide doubt concerning the defendant's
mental fitness to understand the nature and purpose of the proceedings and to
assist in his or her defense. 725 ILCS 5/104--10 (West 1992); People v.
Murphy, 72 Ill. 2d 421 (1978). In Gevas, the majority of this court held that
the terms of section 104--21(a) indicated that the "legislature has equated
the administering of psychotropic medication to a defendant with a bona fide
doubt as to fitness to stand trial." Gevas, 166 Ill. 2d at 469. Accord
Kinkead, 168 Ill. 2d at 407.
In Brandon, this court held that a capital defendant who was taking
psychotropic medication while in jail awaiting trial was entitled to a
fitness hearing under the plain terms of the statute, and that his counsel's
failure to request such hearing constituted ineffective assistance of
counsel. In Gevas, the court adhered to its mandatory construction of section
104--21(a) and held that the trial court had a duty to hold a fitness hearing
when defense counsel, apprising the court of defendant's use of psychotropic
medications, requested such hearing pursuant to the statute. In both Brandon
and Gevas, this court granted the defendants new trials rather than remanding
the causes for "retrospective" fitness hearings because of the
impracticability of a meaningful hearing, retrospectively, on the issue of
the defendants' fitness at the time of trial and sentencing. See Gevas, 166 Ill. 2d at 471.
To summarize current Illinois law, an accused who is taking psychotropic
drugs under medical direction at or near the time of trial or sentencing is
entitled to a fitness hearing under section 104--21(a). Brandon, 162 Ill. 2d 450; Gevas, 166 Ill. 2d 461; Kinkead, 168 Ill. 2d 394. Consistent with
principles of due process, if an accused who is entitled to a fitness hearing
is not accorded such hearing before being criminally prosecuted or sentenced,
the conviction ordinarily must be reversed and the cause remanded for further
proceedings. Gevas, 166 Ill. 2d 461; see also Brandon, 162 Ill. 2d 450; Drope
v. Missouri, 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896. In certain
circumstances, a limited remand to the circuit court may be ordered for the
purpose of determining whether factual grounds for a section 104--21(a)
competency hearing existed at the time of defendant's trial and sentencing.
Kinkead, 168 Ill. 2d at 417.
The above authorities directly support defendant's contention that he is
entitled to relief based on the denial of his right to a fitness hearing. It
is uncontested in the record that Dr. Peterson prescribed Thorazine for
defendant while in jail. The presentence report and documents included in the
supplemental record indicate that defendant was taking psychotropic
medications during the time of pretrial proceedings in September 1993 and
throughout the January 1994 trial and death-eligibility sentencing
proceedings. According to records from the facility in which defendant was
incarcerated, defendant was initially prescribed Thorazine on September 14,
1993, and he was given 50 milligram dosages of the drug, to "continue
indefinitely." The records contain references to additional medications as
well. Therefore, it appears undisputed that defendant was taking psychotropic
drugs under medical direction during the time of his prosecution and
sentencing. Consequently, defendant was eligible for a fitness hearing
pursuant to section 104--21(a) and our precedents.
We note parenthetically that the record reveals additional information
of potential relevance to the issue of defendant's mental competence. This
includes reference to defendant's chronic history of mental health problems
dating back to early childhood. Testimony of record indicates that from a
very early age defendant was given powerful medications for psychological or
behavioral problems. Although no evidence was adduced regarding defendant's
need for and use of psychotropic medications while in jail awaiting trial and
sentencing, Dr. Hauck's presentencing examination and testing of defendant
led to Dr. Hauck's opinion that defendant is a paranoid schizophrenic who
suffers from delusional thinking. Dr. Hauck was not requested to and did not
evaluate the separate issue of defendant's fitness to understand and assist
in his defense, and his examination of defendant did not occur until
approximately two months after defendant's trial.
The State does not dispute the fact that defendant was taking
psychotropic drugs under medical direction during trial and sentencing.
However, the State takes the position, consistent with its past opposition to
our interpretation of section 104--21(a) in Brandon, Gevas, and Kinkead, that
this court should repudiate its three precedents as having created an
unwarranted rule of automatic reversal. In its place, the State suggests that
we now adopt a "totality of the circumstances" approach which would permit
us, as a reviewing court, to evaluate the trial record and independently
assess defendant's freedom from mental impairment. Under this approach, the
State proposes, we would review Dr. Hauck's testimony regarding defendant's
psychological state and analyze the trial transcript to form our own
impression of defendant's mental fitness. The State contends that during the
trial, defendant "gave a lucid, detailed recollection of his version of the
events leading up to the shootings, as well as the events leading up to his
arrest and his statement to police." Accordingly, the State concludes, "the
record on appeal is adequate to make a meaningful determination that the
medication Defendant was taking did not render him unfit for trial."
We reject the State's invitation to make independent factual findings of
a predominantly medical nature based on a cold record that is totally silent
on the key issue of whether defendant's medications may have impaired his
fitness to understand and assist in his defense. The State cites no legal
authority for a court of review to venture down such an extraordinary path.
In fact, the majority of this court has squarely rejected the State's
argument that the trial court's observations of defendant's seemingly
cooperative deportment in court or lucid testimony dispenses with the need
for a fitness hearing where psychotropic medications are involved. In
Kinkead, 168 Ill. 2d at 410, we explained:
"If personal observation were the decisive factor in whether to
hold a section 104--21(a) hearing, the effects of psychotropic
medications on a defendant's mental functioning would be left to
speculation or uniformed opinion. Such a result would render the
courts' application of section 104--21(a) directory rather than
mandatory, which in turn would erode our precedent of Brandon and
Gevas. We believe that the legislature intended, through the plain
language of the statute, to remove the determination of a
defendant's fitness from the subjectivity of personal observation
and place the question in the formal context of a fitness hearing."
The State does not argue that the record in the case at bar contains any
evidence of a medical nature respecting the influence that the psychotropic
drugs may have had on defendant's fitness at the time of his trial or
sentencing. Nor does the State dispute that defendant was medicated with
psychotropic drugs during that time. Therefore, under the terms of section
104--21(a) defendant was entitled to a fitness hearing. Defendant did not
receive a fitness hearing. His counsel did not request one. The court did not
order one. Therefore, consistent with our precedent, we hold that defendant's
conviction and sentence must be reversed and the cause remanded to afford the
State an opportunity to again try defendant.
We are not persuaded by the State's alternative argument that we should
order a limited remand of this cause for the circuit court to hold a fitness
hearing on the issue of defendant's mental competency at the time of trial.
The State proposes a "full-blown inquiry into the properties of the drug in
question--whether it was properly prescribed, and whether it, in the dose
administered, could have affected the Defendant's ability to understand the
nature and purpose of proceedings and to assist in his defense." According to
the State, the perceived problems inherent in a retrospective competency
hearing would be minimized where the principal fitness issue relates to the
defendant's ingestion of psychotropic drugs. The State posits that in a
remand to assess the influence of such drugs on defendant, the principal
inquiry would involve the "science of pharmacology *** or pharmacokinetics,"
defined in the State's brief as the study of the absorption, distribution,
and metabolism of drugs in the body and their elimination from the body.
Because such an evaluation is "objective," the State argues, a hearing based
on the pharmacokinetics of the drugs in issue would avoid the perceived
problem that arises when an after-the-fact fitness assessment is premised
upon untrained laymen's personal observations or speculations respecting
defendant's trial demeanor.
We express no opinion as to the relative scientific objectivity of
pharmocokinetics because we lack any particular knowledge of such field.
Presumably, the State is suggesting that on remand in the case at bar
evidence could be presented to assist the trial court in assessing
defendant's fitness at the time of trial through evaluating such "objective"
factors as the measurable rates of bodily absorption, metabolism, and
elimination of different drugs. While it may be true that such information
would be useful, we decline to speculate whether or not even objectively
measurable physical effects of potentially "mind-altering" drugs necessarily
resolve the influence such drugs may exert on a given defendant's
psychological state and ultimate fitness to understand and assist in his or
her defense. We find it inappropriate to remand the cause for a hearing into
the pharmocokinetics of the drugs involved as a means of determining
defendant's fitness retroactive to the time of trial.
In light of our holding that defendant is entitled to a new trial, we
need not address the remaining issues presented in this appeal. We note that
defendant has not expressly challenged the sufficiency of his guilt, and we
observe that the evidence in the record is sufficient to support the
convictions and sentences. Consequently, there is no double jeopardy
impediment to a new trial and capital sentencing hearing. See People v.
Brown, 169 Ill. 2d 132, 169 (1996). We do not, however, imply that we have
made any findings regarding defendant's guilt or other issues that would be
binding on remand. See People v. McDonald, 125 Ill. 2d 182, 202 (1988).
Finally, we reject defendant's challenges to the constitutionality of
the Illinois capital sentencing statute. Defendant argues that the statute
violates the eighth and fourteenth amendments by placing the burden of proof
on defendant which precludes meaningful consideration of mitigating evidence.
This court has rejected the same claim in many prior opinions (e.g., People
v. Edgeston, 157 Ill. 2d 201, 247 (1993)), and we will not now reconsider the
issue. Similarly, we have rejected on numerous occasions the argument that
the statute fails to include adequate safeguards to prevent arbitrary and
capricious death penalty decisions. E.g., People v. Sutherland, 155 Ill. 2d 1 (1992). We are not persuaded to revisit the issue, and we decline to
overrule the controlling precedents.
For the foregoing reasons, we reverse defendant's convictions and
sentences and remand this cause to the circuit court for further proceedings
consistent with this opinion.
Reversed and remanded.
JUSTICE MILLER, dissenting:
I do not agree with the majority's conclusion that the defendant was
denied due process by the trial court's failure to hold, sua sponte, a
fitness hearing pursuant to section 104--21(a) of the Code of Criminal
Procedure of 1963 (725 ILCS 5/104--21(a) (West 1992)). Accordingly, I
dissent.
The defendant in this capital case did not request a fitness hearing
while the matter was pending in the trial court. On appeal, the defendant now
contends that trial counsel was ineffective for failing to demand a fitness
hearing under section 104--21(a) and, further, that the trial court's failure
to conduct such a hearing in any event resulted in a denial of due process.
Without specifically resolving the defendant's claim of ineffective
assistance, the majority summarily concludes that the failure to hold a
fitness hearing in the trial court denied the defendant due process.
Once more, the majority mistakenly equates a defendant's statutory
entitlement to a fitness hearing, found in section 104--21(a) of the Code of
Criminal Procedure, with a bona fide doubt of the defendant's fitness. See
People v. Kinkead, 168 Ill. 2d 394, 407 (1995); People v. Gevas, 166 Ill. 2d 461, 469 (1995). Moreover, the majority goes on to confuse the defendant's
failure to assert the procedures it believes are designed to secure due
process with a denial of due process itself. In doing so, the majority fails
to recognize that the statutory right to a fitness hearing in the
circumstances defined by section 104--21(a) is much broader than the
constitutional right with which it is mistaken. The statute grants to a
defendant an entitlement to a fitness hearing in cases in which the
constitutional right is not at all implicated. Under section 104--21(a), "[a]
defendant who is receiving psychotropic drugs or other medications under
medical direction" is entitled to a fitness hearing, even in the absence of
evidence that might otherwise trigger an inquiry into the separate
constitutional right. In this manner, the scope of the statute is
considerably broader than the bona fide doubt of fitness with which it is
equated. Presumably, the majority would grant the same relief to a defendant
who had been treated with a common antibiotic or analgesic during trial or
sentencing.
At no time in the proceedings below did the defendant assert his
statutory right to a fitness hearing, and the trial judge denied him nothing
with respect to that right. Rather than being a question of due process, the
issue is properly analyzed in terms of ineffective assistance of counsel. To
prevail on a claim of ineffective assistance, the defendant must satisfy the
two-part test prescribed by the Supreme Court in Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), by demonstrating both
a deficiency in counsel's performance and prejudice resulting from the
alleged deficiency. At a minimum, the defendant must show not simply that a
fitness hearing would have been conducted if counsel had requested one, but
that the outcome of the hearing would have been favorable to him.
The majority perpetuates an unsound rule, ignoring the problems that
continue to arise from the ill-conceived decisions in Kinkead, Gevas, and
People v. Brandon, 162 Ill. 2d 450 (1994). As the majority notes, the
legislature has now amended section 104--21(a), severely limiting the
operation of the provision. This recent action suggests the legislature's
disagreement with the majority's prior interpretations of the statute.
Santiago v. Kusper, 133 Ill. 2d 318, 329 (1990). Today's result, however,
once more requires trial judges to make a special inquiry in every case to
determine whether, in the language of the statute, the defendant has been
"receiving psychotropic drugs or other medications under medical direction,"
and of conducting a fitness hearing sua sponte if such drug usage has
occurred. Contrary to accepted principles of waiver, the majority imposes
these extraordinary duties even though the defendant, who knows he has been
receiving medication, failed to invoke section 104--21(a) in the trial court.
I would reject the defendant's effort to transform the statutory right into
a constitutional right, and would address the remaining issues raised on
appeal by the defendant.
CHIEF JUSTICE BILANDIC and JUSTICE HEIPLE join in this dissent.
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