APPEAL from the Circuit Court of Cook County; the Hon. HERBERT
R. FRIEDLUND, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
This case is a consolidation of an appeal from a murder conviction and an appeal from a ruling denying a petition for post-conviction relief. The appeal came directly to this court under the rule in effect at the time of defendant's conviction (43 Ill.2d R. 603). Stanislaw Skorusa was convicted in 1966 for the murder of his girl friend. The evidence of his guilt produced by the State was overwhelming. At the time of his arrest Skorusa was sitting in his automobile in a Chicago parking lot. The body of his girl friend was slumped on the seat beside him. She had been shot five times in the head with a .25-caliber pistol. Blood matching that of the victim was found in the front seat and on the front and rear floors of Skorusa's automobile. Subsequent to his arrest, a .25-caliber pistol was found near the site of the arrest. Ballistics tests established that the bullets found in the victim's head had been fired from the gun. Four shell casings matching the fatal bullets were found in Skorusa's car and a fifth was found in his wallet. At the time of his arrest Skorusa made the statement, "Oh, boy, am I in trouble now." At trial the State established that Skorusa had requested permission to marry the victim but had been denied that permission by the victim's mother because the girl was only 16 years old.
The defendant urges that his conviction must be reversed on several grounds. He alleges that he was incompetent to stand trial and that the trial court erred in failing to order a competency hearing on its own initiative. Similarly, he claims that the failure of his attorney to seek a competency hearing denied him effective assistance of counsel. He claims that the State's Attorney made improper remarks to the jury in his closing argument. The defendant also claims that the trial court erred in dismissing without a hearing his post-conviction petition. That petition was based on the defendant's alleged incompetency at the time of trial.
At the time of trial the statute provided:
"For the purpose of this Article, `incompetent' means a person charged with an offense who is unable because of a physical or mental condition:
(a) To understand the nature and purpose of the proceedings against him; or
(b) To assist in his defense; * * *." Ill. Rev. Stat. 1965, ch. 38, par. 104-1(a), (b), now incorporated in the Unified Code of Corrections, Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005-2-1(a).
It was further provided by statute that if at any time before or during a trial the trial court has reason to believe that the defendant is incompetent, it is the duty of the court to suspend the proceedings and conduct a competency hearing. Ill. Rev. Stat. 1965, ch. 38, par. 104-2, now found in the Unified Code of Corrections, Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005-2-1(c).
The defendant contends that the trial court had reason to believe the defendant was incompetent, and failed to fulfill its statutory duty of conducting a competency hearing. To evaluate this contention we must turn our attention to the events surrounding the trial.
Prior to the trial, the defendant's attorney requested that the defendant be given a psychiatric examination by the Behavior Clinic. The court granted the request, and the defendant was examined by Dr. Hoffman, a psychiatrist. Because of the defendant's inability to understand or speak English fluently, Dr. Hoffman found it necessary to use an interpreter during his two interviews with Skorusa. Dr. Hoffman's report states that Skorusa said he did not know what he was doing in jail, why he was arrested, the name of his lawyer, or when his case came up for trial. Skorusa also stated that his girl friend was still living, and he intended to marry her. In his diagnosis of the patient, Dr. Hoffman stated, "It is the opinion of the examiner that the subject could cooperate, if he so wishes." The diagnosis concludes, "In his present state the subject is not committable as in need of mental treatment or as a mental defective." The defendant contends that the portions of the report which described his lack of understanding of why he was in jail and his belief that his girl friend was still alive should have raised doubts in the mind of the trial court of his competency to stand trial.
The defendant also claims that statements by his attorney, during the trial, should have suggested to the trial court that a competency hearing was needed. The first of these statements occurred during a conference in chambers concerning the possible use of an allegedly illegally obtained confession for impeachment purposes. His attorney expressed reluctance to have Skorusa testify because he did not have any idea of how he would answer questions. The second time defense counsel indicated that he was having difficulty communicating with his client was during his closing argument when he told the jury that Skorusa had not told him a single thing about what happened on the night of the crime.
There is another incident which defense counsel claims should have indicated to the court the necessity of a competency hearing. Prior to trial the trial judge spoke with Skorusa in his chambers. According to the trial judge Skorusa said that he couldn't remember if he had committed the crime, but that he would accept whatever punishment the court imposed.
Ordinarily it is within the discretion of the trial court to decide whether there exists a doubt as to the competency of the defendant to stand trial. (People v. Pridgen, 37 Ill.2d 295, 298; People v. Milligan, 28 Ill.2d 203.) Granting a request for an examination at the Behavior Clinic does not in itself indicate that there is a serious question of competency. (People v. Russo, 52 Ill.2d 425; People v. Franklin, 48 Ill.2d 254.) However, the defendant argues that the Behavior Clinic report and the comments of his attorney raised ...