People v. Sandham

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. 80130--Agenda 8--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHN R.
SANDHAM, Appellant.
Opinion filed November 21, 1996.

JUSTICE HEIPLE delivered the opinion of the court:
Defendant, John R. Sandham, was convicted after a bench trial
in the circuit court of Livingston County of one count of
aggravated criminal sexual abuse (720 ILCS 5/12--16 (West 1992))
and sentenced to a five-year term of imprisonment. The appellate
court affirmed (276 Ill. App. 3d 86), and this court subsequently
granted defendant's petition for leave to appeal (155 Ill. 2d R.
315). Defendant argues before this court that his conviction must
be reversed and a new trial ordered because (1) the trial court
failed to secure defendant's written jury waiver and his oral
waiver was not made understandingly; (2) the trial court failed to
conduct a fitness hearing when a bona fide doubt as to defendant's
fitness arose and when evidence was elicited that defendant may
have been taking psychotropic medication; (3) hearsay evidence was
improperly admitted; and (4) the evidence was insufficient to find
defendant guilty beyond a reasonable doubt. For the reasons
expressed below, we reverse defendant's conviction and remand for
a new trial based upon our determination that a bona fide doubt as
to defendant's fitness arose following which no fitness hearing was
held. Accordingly, we do not reach defendant's remaining arguments.
In deciding this cause, we recount only those facts necessary
to disposing of the issues raised in this appeal.

I. Fitness of Defendant
Defendant's dual contentions regarding his fitness to stand
trial are: (1) that a bona fide doubt regarding his fitness arose
which required the trial court to, sua sponte, conduct a fitness
hearing pursuant to section 104--11 of the Code of Criminal
Procedure (725 ILCS 5/104--11 (West 1992)); and (2) that evidence
of his ingestion of psychotropic medications at or about the time
of trial required the court to conduct a fitness hearing pursuant
to section 104--21(a) of the Code (725 ILCS 5/104--21(a) (West
1992)). Insofar as the trial court never held a fitness hearing,
defendant contends that his conviction must be reversed. The State
counters that defendant has waived his fitness arguments by failing
to raise them either at trial or in his post-trial motions. The
right to be fit for trial, however, is fundamental. People v.
Eddmonds, 143 Ill. 2d 501, 512-13 (1991). Accordingly, prosecuting
a defendant where there is a bona fide doubt as to that defendant's
fitness renders the proceeding fundamentally unfair and we review
this contention under the plain error rule. 134 Ill. 2d R. 615(a).
Due process bars prosecuting or sentencing a defendant who is
not competent to stand trial. Eddmonds, 143 Ill. 2d at 512-13.
Fitness to stand trial requires that a defendant understand the
nature and purpose of the proceedings against him and be able to
assist in his defense. 725 ILCS 5/104--10 (West 1992). Although a
defendant's fitness is presumed by statute (725 ILCS 5/104--10
(West 1992)), the circuit court has a duty to order a fitness
hearing, sua sponte, any time a bona fide doubt arises regarding a
defendant's ability to understand the nature and purpose of the
proceedings or assist in his defense. Whether a bona fide doubt as
to a defendant's fitness has arisen is generally a matter within
the discretion of the trial court. People v. Murphy, 72 Ill. 2d 421, 431 (1978).
Here, defense counsel never requested a fitness hearing
pursuant to section 104--11 of the Code and defendant maintains
that the trial court abused its discretion in not recognizing, sua
sponte, that a bona fide doubt as to defendant's fitness existed.
In support defendant points to various portions of the record which
he claims raised a bona fide doubt as to his fitness prior to trial
or, in the alternative, prior to sentencing.
The first suggestion that there may have been a bona fide
doubt as to defendant's fitness occurred on April 22, 1993, when
defendant's public defender made an oral motion to the court
requesting permission to engage a psychiatrist to determine whether
defendant was fit to stand trial. The court granted leave and
instructed defense counsel to prepare a written motion and proposed
order to that effect. However, on that same date a private attorney
appeared and was substituted as counsel for defendant. Once the
public defender was discharged, the psychiatric evaluation motion
that had been orally allowed by the judge was never referred to or
acted upon by the newly retained counsel. The record provides no
explanation for this.
The case was subsequently set for a bench trial on May 28,
1993. However, on May 14, 1993, less than one month after the
public defender's request to engage a psychiatrist, another event
indicating that there was a bona fide doubt as to defendant's
fitness occurred. On that date, defense counsel filed a motion to
continue the trial indefinitely because defendant had been unable
to cooperate with defense counsel except with difficulty up through
May 4, 1993, and because defendant had been committed to the
BroMenn psychiatric ward. The court granted the motion and reset
the trial for July 16, 1993, which was later continued to September
13, 1993. The record is silent as to the purpose, duration or
treatment provided defendant in the psychiatric ward.
Not silent, however, was the defendant. On March 30, 1993, and
July 8, 1993, defendant sent separate letters to the trial judge,
both of which defendant argues evidence a bona fide doubt as to his
fitness. The March 30 letter, which preceded the public defender's
request for a psychiatric evaluation, asked the court to "give me
14 years straight time. No good time or supplemental. 14 straight
years. THEN I CAN PROCEED WITH MY REAL LIFE AND HAVE NO REGRETS
ABOUT ENDING THIS ONE." (Emphasis added.) While the defendant's
reference to his "real life" may have been odd, the letter was
respectful in tone. This is in marked contrast to the letter of
July 8, 1993, which was written after defendant's commitment to the
BroMenn psychiatric ward. The July 8 letter was exceedingly hostile
and profane, describing in explicit terms the sexual aggressions
defendant associated with prison life. It further explained, rather
incoherently, that the judge sends "innocents" such as defendant to
prison whereupon the judge collects his paycheck and absolves this
sin at the Lutheran church on Sundays. The letter then curses the
judge using a variety of expletives and laments that defendant will
be the next person to go to prison because the judge does not use
his position and power to stop it. In a similar vein, we observe
the judge's statement in the record that defendant also made
several threatening phone calls to him during the time period
defendant was writing these letters.
Defendant was eventually discharged from the psychiatric ward,
whereupon a bench trial followed and defendant was convicted of
aggravated criminal sexual abuse (720 ILCS 5/12--16 (West 1992)).
Defendant argues that during the ensuing March 1, 1994, sentencing
hearing, additional testimony transpired which raised a bona fide
doubt as to defendant's fitness. First defendant notes the
testimony of the complainant's mother, who testified that she knew
the defendant personally and that the defendant, "wasn't all the
way there *** [that there] would be days he would be okay, but
there would be other days he'd run outside and start praying to God
real loud. *** There was times he never did act normal."
Defendant next refers this court to his father's testimony at
the sentencing hearing regarding the Carl Pfeiffer Treatment
Center's psychological evaluation of defendant, which was conducted
prior to the sentencing hearing. Though the trial court was
provided a copy of and considered the evaluation at the sentencing
hearing, the evaluation is not contained in the record. We thus
consider only those references to the evaluation found in the
record.
Defendant's father testified that the evaluation suggested
that defendant had a slight chemical imbalance and that defendant
had a slight case of schizophrenia. The Pfeiffer Center recommended
a three-month treatment regimen after which defendant would be
reevaluated. Part of the difficulty in evaluating defendant,
according to defendant's father, was the medication prescribed to
defendant at the Menard Correctional Center psychiatric ward, which
included the psychotropic drugs lithium, Prolixin and Ativan.
Finally, defendant refers this court to the colloquy between
the defendant, trial court and defense counsel at the close of the
sentencing hearing. After the State requested a maximum nonextended
term sentence, defense counsel pleaded with the court to sentence
defendant to probation and psychological treatment instead of
prison time. This plea was interrupted by defendant, who stated,
"Cut my brain out. You'll be sorry, and I won't do nothing. I'll be
brain dead." Defense counsel then observed for the court that "you
can tell from the way he talks that this is something that we need
to address." The court then ascertained from defense counsel that
defendant was currently taking the prescribed psychotropic
medication, after which the defendant stated, "I've already got my
brain cut apart spiritually. Do you know what I mean? I know what
I mean." The trial court then recessed for 15 minutes to read the
presentence report.
Upon returning to the bench, the judge detailed why he found
the defendant guilty and then stated as follows, with periodic
interruptions from the defendant:
"THE COURT: The issue I have now is whether you are
competent to proceed with sentencing, whether you are
capable of participating in this. YOU DON'T EVEN SEEM TO
UNDERSTAND WHAT'S GOING ON. YOU ARE MAKING COMMENTS THAT
ARE OBVIOUSLY INAPPROPRIATE. *** I DON'T FULLY UNDERSTAND
THE NATURE OF MENTAL ILLNESS. I DON'T THINK ANYONE DOES--
EVEN PSYCHIATRISTS AND PSYCHOLOGISTS.
The one thing I do know and am concerned about [is]
that since '90 things have gotten progressively worse ***
since getting out of prison *** he's been convicted of
disorderly conduct, trespass, retail theft, and also been
up on sentencing for trespass to real property.
THERE ARE VARIOUS REASONS FOR SENTENCING, JOHN.
WHETHER YOU UNDERSTAND WHAT I'M SAYING OR NOT I AM NOT
SURE; but the important factors are doing things that
could rehabilitate you. I don't know what that is. ***
But although on the one hand sentences are many
times to try to rehabilitate people, and on the other
hand they are for society's protection, I'm trying to
look at it from both sides.
DEFENDANT: I DON'T SEE ANY WAY TO PROTECT ME FROM
THIS SOCIETY. ***
THE COURT: Considering all the evidence at trial
[and] the presentence report which is very thorough, I am
going to sentence you, John, with credit for time served
to five years in the Department of Corrections. I feel
that's appropriate; and on the misdemeanor, I'll just
sentence you to--
DEFENDANT: I TALKED TO MY MOTHER.
THE COURT: Credit for time served. You'll be
eligible in all likelihood to get out--
DEFENDANT: You don't know a lie from the truth
because you are sending me up, and I didn't do anything.
***
THE COURT: *** Am I here to help [defendant],
protect society or both? *** I'M NOT DISAGREEING THAT
SENDING A PERSON TO PRISON WITH MENTAL HEALTH PROBLEMS IS
[NOT] GOING TO HELP HIM. IT MIGHT; IT MIGHT NOT. ***
Also a concern I have is the protection of the
public. ***
DEFENDANT: I'VE GOT THREE ALBUMS ON THE TOP OF THE
CHARTS AND COMIC BOOKS ALL OVER. (Emphasis added.)
Defendant argues that his comments at sentencing were so unrelated
to the proceedings at hand that they raised a bona fide doubt as to
defendant's fitness. Moreover, defendant contends that even the
trial judge realized this when he stated that defendant did not
seem to know what was going on and that he did not know whether
defendant even understood what the trial judge was saying.
The State counters each of defendant's individual suggestions
of unfitness with a specific case holding that a similar
circumstance did not raise a bona fide doubt as to fitness. See
People v. Eddmonds, 143 Ill. 2d 501, 519 (1991) (assertion by
counsel of defendant's unfitness does not, in and of itself, create
bona fide doubt); People v. Skorusa, 55 Ill. 2d 577, 582 (1973)
(granting defense counsel's request for a psychiatric examination
does not raise a bona fide doubt); People v. Smith, 253 Ill. App.
3d 948, 954 (1993) (hostile behavior on the part of defendant not
necessarily reflective of a person utterly out of control or
incapable of understanding the charges against him). The State
further argues that each of defendant's letters are capable of a
construction that does not raise a bona fide doubt as to
defendant's fitness and argues likewise regarding the various
irrational statements made by the defendant at his sentencing
hearing. Accordingly, the State asks this court to conclude that
the trial court did not abuse its discretion in not determining
that there was a bona fide doubt as to defendant's fitness. This,
however, we cannot do.
Summarized briefly, the trial court was aware of the following
episodes and testimony relating to the issue of whether there was
a bona fide doubt as to defendant's fitness: (1) the public
defender's oral motion, which the trial court granted, to obtain a
psychiatric evaluation to determine defendant's fitness; (2) the
continuance of the trial due to defendant's inability to cooperate
with defense counsel except with difficulty and the defendant's
ensuing commitment to a psychiatric ward; (3) defendant's two
letters to the court which were complimentary and exceedingly
hostile, respectively, and which spoke of defendant beginning his
"real life" after sentencing; (4) defendant's threatening phone
calls to the trial judge; (5) the testimony of complainant's mother
that defendant was not "all the way there" and would sometimes run
outside and start praying loudly to God; (6) the Pfeiffer Center
evaluation testimony which suggested that defendant had a slight
chemical imbalance and was slightly schizophrenic; (7) defendant's
ingestion of psychotropic medications at or about the time of trial
and/or sentencing; and (8) defendant's irrational outbursts during
the sentencing hearing regarding his brain being cut out, his
conversation with his mother, his "top of the charts" albums and
his comic books.
The State's attempt to explain away the individual episodes
and testimony detailed above, as if each occurred in a vacuum,
cannot be countenanced. As a reviewing court, we will not ignore
the impact of these events and testimony when considered in
relation to each other and the record as a whole. The State does
not, and indeed cannot, cite to precedent holding that so many and
varied suggestions that a defendant might be unfit did not raise a
bona fide doubt as to the defendant's fitness.
While it is correct that a defendant may be competent to stand
trial even though his mind is otherwise unsound and that some doubt
as to a defendant's fitness is not necessarily enough to warrant a
fitness hearing (Eddmonds, 143 Ill. 2d at 513, 519), a trial
court's discretion in so concluding is not unbridled. We hold that
the trial court abused its discretion in not ruling, sua sponte,
that the instant events and testimony combined to raise a bona
fide doubt as to defendant's fitness to stand trial or be
sentenced. Indeed, we observe that the trial judge himself appears
to have recognized a bona fide doubt regarding defendant's fitness
when he stated that defendant "[did not] even seem to understand
what's going on" and "whether you understand what I am saying or
not I am not sure." While it could well be argued that a bona fide
doubt as to defendant's fitness arose prior to these observations,
there is no question that the trial judge had no discretion and was
required to conduct, sua sponte, a fitness hearing at the point he
questioned defendant's capacity to comprehend what was transpiring
at the sentencing hearing. 725 ILCS 5/104--11 (West 1992). This the
court did not do.
We note that all the events and testimony cited by the
defendant, including those occurring during the sentencing hearing,
are relevant to defendant's fitness at the time of trial. We thus
hold that the court's failure to conduct a fitness hearing pursuant
to section 104--11 requires that defendant's conviction be vacated
and the cause remanded for a new trial. Only in this manner can it
be ensured that defendant was not convicted in violation of the due
process clause of the fourteenth amendment (U.S. Const., amend.
XIV), which provides that a defendant is unfit to stand trial or be
sentenced if unable to understand the nature and purpose of the
proceedings against him. Medina v. California, 505 U.S. 437, 439,
120 L. Ed. 2d 353, 359, 112 S. Ct. 2572, 2574 (1992).
Insofar as we are remanding this cause for a new trial due to
the trial court's failure to conduct a fitness hearing pursuant to
section 104--11, we need not pass on defendant's contention that he
is also entitled to a new trial pursuant to section 104--21(a).
Defendant's section 104--21(a) argument contends that he is
entitled to a new trial because the trial court failed to conduct
a fitness hearing despite evidence that defendant was ingesting
psychotropic medication at the time of the trial and/or sentencing
hearing. 725 ILCS 5/104--21(a) (West 1992). However, under the law
as espoused by a majority of this court in People v. Kinkead, 168 Ill. 2d 394, 397 (1995), this court would first have to remand this
cause for a hearing to determine whether defendant was actually
taking psychotropic medication at the time of trial and/or
sentencing because of the uncertainty about this in the record as
currently developed. We decline to order such a hearing on remand,
as it would be redundant in light of our determination that a new
trial is otherwise required under section 104--11.

II. Failure to Secure a Written Jury Waiver in Violation of
Section 115--1, Hearsay Evidence Admitted Pursuant to Section
115--10 and Guilt Beyond a Reasonable Doubt
Because we reverse defendant's conviction on fitness grounds,
we need not decide defendant's argument that the trial court erred
in securing defendant's written jury waiver (see 725 ILCS 5/115--1
(West 1992)) or that certain hearsay testimony was elicited in
violation of section 115--10 of the Code of Criminal Procedure of
1963 (725 ILCS 5/115--10 (West 1992)). We do observe, however, that
there was sufficient evidence to support defendant's conviction and
sentence; consequently, there is no double jeopardy impediment to
a new trial. People v. Brown, 169 Ill. 2d 132, 169 (1996).

CONCLUSION
We conclude that because a bona fide doubt regarding
defendant's fitness arose at trial after which a fitness hearing
was not held, defendant's conviction must be reversed and the cause
remanded for a new trial.
The judgments of the appellate and circuit courts are reversed
and the cause is remanded to the circuit court for a new trial.

Judgments reversed;
cause remanded.