APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
Darrell Thompson, a 17-year-old epileptic, was indicted for attempt to commit robbery, attempt to commit murder and aggravated battery. He waived a jury, was tried by the court, found guilty of all charges and sentenced to three concurrent terms of one to three years in the penitentiary.
He complains that the trial court committed error in failing to hold a hearing to determine his competency to stand trial; in failing to provide him with notice of, and the name of a witness to, an oral confession, and in sentencing him on all three offenses.
On the morning of January 24, 1968, Daisy Mitchell, the 85-year-old owner of a small grocery store, opened her store at 8:00 A.M. The defendant Thompson, whom she knew, came in and ordered two packages of cornflakes. She placed the boxes on the counter and as she bent over for a bag to put them in, Thompson struck her and knocked her down. She got up and reached into her apron for her gun. Thompson jumped over the counter, wrested the gun away, pointed it at her and demanded money. Mrs. Mitchell backed away and kept backing up until she reached the door to her living quarters. She then closed the door upon him and Thompson fired shots at her through the glass in the door. One bullet struck her in the neck, another in the foot. She ran next door and her neighbor called the police.
When the police arrived they took her to a hospital and interviewed her. They then went to Thompson's home and found him hiding on a closet shelf in an upstairs bedroom. He was pulled off the shelf and told he was under arrest for shooting Mrs. Mitchell. What he said to the policemen and the statements he gave them were suppressed.
Dennis Clair, a high school student, was in Thompson's home waiting to go to school with him when the police arrived. Thompson ran upstairs when he saw them coming. Clair opened the door and the officers asked him where Thompson was. He replied he didn't know. When they said they had heard him talking to someone, he told them Thompson ran out the back door. They said the door was covered by police and took him with them while they searched the house. Clair was present when Thompson was found on the closet shelf. Both boys were taken to the police station.
Clair testified for the prosecution. He said that Thompson told him and Thompson's 15-year-old brother Bruce, who left for school before the police came, that he tried to rob Mrs. Mitchell but she pulled a gun on him; he took it from her and shot at her while she was running inside the room at the back of the store.
Thompson denied trying to rob Mrs. Mitchell or shooting at her, or telling Clair that he had, and he denied hiding in a closet. He claimed Mrs. Mitchell mistook him for someone else, pointed a gun at him and told him not to move. He snatched the gun from her to prevent it from being discharged but it fired accidently as he seized it. She ran to the back of the store and slammed the door. He then threw the gun on the floor and it discharged again.
He intimated that Clair's story about his confessing the crime was fabricated because Clair was not his friend. He said they quarreled over a card game in December 1966 and since then Clair had been in his home only once.
Thompson's sister and brother testified in his behalf. The sister said she saw Clair and her brother fighting in December 1966 and heard him order Clair out of their house. She related a conversation with Mrs. Mitchell concerning a boy who had stolen cigarettes from her store. His brother also talked to Mrs. Mitchell about a boy for whom she was looking. He said that on the morning of the attempted robbery, his brother returned from the store and told him and Clair that he had almost lost his life because Mrs. Mitchell tried to shoot him; he did not say that he tried to rob her.
An evidence technician for the Chicago Police Department testified in rebuttal. He examined the grocery store and found two bullet holes in the door leading to the apartment in the rear. In his opinion these were fired directly at the door, the weapon having been held either at waist or shoulder height. One hole was through the glass of the door and the other below it through the wood paneling. The first was approximately four feet from the floor; the second about two and one-half feet from the floor. Both bullets passed straight through the door.
During the hearing on the motion to suppress the statements Thompson made to the police, the trial court was informed that he was afflicted with epilepsy. This was emphasized once more at the hearing in aggravation and mitigation. At this hearing it was also disclosed that in 1964 and 1965 he had been examined by a psychiatrist for the Chicago Board of Education. His mother testified that as a result of these examinations she was told that her son was under emotional strain. She also testified that he had outgrown his epileptic seizures and no longer required medication. The 1965 report was introduced in evidence. It stated that Thompson was of slower than average mental growth, was subject to perceptual distortions, overcame his lack of understanding by fantasy and could not see the difference between an accident and a mistake.
The combination of the defendant's epileptic condition and the psychiatrist's report are the basis for the contention that the trial court committed reversible error in not holding a hearing to determine the defendant's competency to be tried. No suggestion for such a hearing was made to the court prior to the trial, during the trial or in the post-trial motion; but it is argued that the facts brought to the court's attention created a bona fide doubt of the defendant's competency and the court, on its own motion, should have ordered a hearing pursuant to Ill. Rev. Stat., 1967, ch. 38, par. 104-2(a) (b).
• 1, 2 If facts are brought to the attention of the court which raise a bona fide doubt of a defendant's capacity to stand trial, the judge has a duty to hold a sanity hearing. (People v. Thomas (1969), 43 Ill.2d 328, 253 N.E.2d 431; People v. Brown and Hannah (1971), (Ill. App.3d), 270 N.E.2d 501.) It is, however, within the discretion of the court to decide whether the facts ...