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People v. Newbern

APRIL 10, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RAY LEE NEWBERN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cass County; the Hon. FRED W. REITHER, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

After a bench trial, defendant was convicted of indecent liberties with a child (Ill. Rev. Stat. 1971, ch. 38, par. 11-4(3).) Sentence of 4 to 5 years was imposed.

Defendant urges that the trial court's failure to order psychiatric examinations as required by the Charities and Public Welfare Code (Ill. Rev. Stat. 1971, ch. 23, par. 2401-2402) was reversible error, that defendant was denied a fair trial by reason of a continuance of the trial for 8 days, that defendant was not proved guilty beyond a reasonable doubt, that the trial court improperly considered psychologists' reports at the probation hearing because defendant was not advised of his constitutional privilege against self-incrimination and because he had not waived his psychologist-patient privilege, and that probation was improperly denied and that the sentence was excessive.

The complaining witness, defendant's 10-year-old step-daughter testified that she and the defendant were alone in one room of their residence where she was hanging up a dress, when the defendant approached and "he started to rub my breast and he asked me if I liked it. I said, `Yes'. Then he asked me again. I said `Kind of'. Then he asked me once more. I said `No.' Then he stopped rubbing." The incident lasted 10 to 15 minutes, during which defendant's step-daughter was fully clothed. She testified that she was 10 years old on the date of occurrence. Defendant was 45 years old. The witness' testimony showed some confusion as to the time that she told her mother and the sheriff of the incident, but she was certain the incident occurred on Monday when her mother was at "Tops".

The defendant testified and denied the occurrence, stating that his daughter had "told stories" before. After defendant's direct testimony, the People requested a continuance until the next day to produce rebuttal witnesses and to prepare for cross-examination. Over defendant's objection a continuance was granted for 8 days until February 22, 1972, the earliest date the court could set the case. When the case continued, the State did not cross-examine the defendant, and instead called defendant's wife, who testified that on one occasion prior to that testified to by defendant's step-daughter, she had seen the defendant rubbing the little girl's breast. The complaining witness was recalled and testified that defendant had rubbed her breast and asked whether she liked it on many occasions. Three other rebuttal witnesses were called to testify that defendant's reputation for truth and veracity was bad.

The trial court did not order psychiatric examinations or reports as provided by "An Act to provide for trial in a circuit court and for a psychiatric examination of persons charged with sexual crimes against children" (Laws of Illinois, 1965, p. 3459). Such error was not raised by defendant at his trial nor briefed on his appeal. After it had been raised by this court at oral argument, supplemental briefs were filed. Accordingly, we must consider whether such error is a plain error affecting substantial rights within Supreme Court Rule 615(a). This Act is incorporated into the Charities and Public Welfare Code (Ill. Rev. Stat. 1969, ch. 23, pars. 2401-2402), and provides in relevant part:

"2401. Sexual Crimes Against Children — Trial.) § 1. In all cases in which a person of the age of 17 years and upwards is charged with any violation of a statute or ordinance, the basis of the charge being a sexual crime against a child under the age of 13 years, the trial of such charge shall be in a circuit court.

2402. Psychiatric Examination.) § 2. The judge of the court in which an indictment or information under Section 1 of this Act is tried shall, before trial, require a psychiatric examination of the person charged. The examination shall be by two psychiatrists appointed by the court, who shall make a personal examination of the person charged and shall file with the court a report in writing of the result of their examination, a copy of which shall be delivered to the person charged."

The failure to require such examinations and reports is conceded to be error. (People v. Flowers, 51 Ill.2d 25, 30, 281 N.E.2d 299.) The Act in question has had minimal examination by our courts, and the question of prejudice resulting from failure to observe the statutory mandate has never been discussed. People v. McDonald, 44 Ill. App.2d 348, 352, 194 N.E.2d 541, 542; People v. Kolden, 25 Ill.2d 327, 328, 185 N.E.2d 170; People v. Allen, 7 Ill. App.3d 249, 250, 287 N.E.2d 171, 172; People v. Hedenberg, 9 Ill. App.3d 597, 599, 291 N.E.2d 848, 849.

Defendant contends that the statute itself raises a presumption of a bona fide doubt as to his fitness to stand trial or be sentenced requiring reversal of his conviction, and alternatively, that the failure to order the required examination and reports interfered with defendant's right to have the trial court determine whether defendant should be treated as a sexually dangerous person (Ill. Rev. Stat. 1971, ch. 38, par. 105-1.01) to the extent that his conviction must be reversed.

We examine the contention that the provisions of the Act providing for a psychiatric examination created a bona fide doubt of fitness to stand trial or be sentenced. In the aspect of fitness and competence to stand trial, it has never been asserted that the defendant was incompetent or unable to understand the nature or purpose of the proceedings, or unable to assist in his defense. It is not asserted that there was unusual conduct of defendant during the proceedings which would raise a bona fide doubt of his competence for trial, nor is it contended that there are facts, which if known to the court, would have raised such doubt. It is not contended that there was a prior history of commitment for mental illness. Ill. Rev. Stat. 1969, ch. 38, par. 104-2 now provides for examination by qualified experts to determine competency before trial, during trial and after a finding of guilt but before sentence is imposed. Such provisions are retained in elaborated form in the Unified Code of Corrections. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005-2-1.) There is no assertion of incompetence of counsel in failing to rely upon the statutory provision to determine incompetence for trial. Rather, defendant chose to deny the charge and contest the sufficiency of the evidence. People v. Hedenberg, 9 Ill. App.3d 597, 291 N.E.2d 848.

We examine the contention that the charge of a sex crime against a child and the statutory provision for psychiatric examination, without other circumstances indicating defendant's competence for trial, raises a bona fide doubt of such competence sufficient to require a sua sponte order for a hearing upon competence as distinguished from a general psychiatric examination.

In People v. Russo, 52 Ill.2d 425, 288 N.E.2d 412, cert. denied, 410 U.S. 940, the supreme court considered an analogous problem. There, defendant argued that his plea of guilty to voluntary manslaughter should not have been accepted without a prior competency hearing because the trial court had ordered psychiatric examination of the defendant. The results of such examination were not introduced into the record, and defendant argued that the court, by approving the examinations, itself impliedly indicated that it had reason to believe the defendant was incompetent. The supreme court held that as defendant had no prior history of mental illness, at no time suggested his incompetence, and was represented by competent counsel, the fact that the trial court authorized psychiatric examinations did not establish a bona fide doubt as to defendant's competence to stand trial. Had the trial court here, in fact, ordered a psychiatric examination, but had not placed the results in the record, defendant would be in exactly the same situation as Russo except that the moving factor in the examination here would have been the legislative mandate of chapter 23, paragraph 2402, rather than the trial judge's evaluation of the circumstances. If a trial judge's authorization of a psychiatric examination upon actual observation of the defendant's conduct and knowledge of the crime charged does not establish bona fide doubt as to defendant's competency, it follows that the legislature's order for such examination without any personal observation of defendant creates no more bona fide a doubt as to the defendant's fitness.

Likewise, the nature of the crime charged does not raise a bona fide doubt as to defendant's fitness to stand trial or be sentenced, which would, under either Ill. Rev. Stat. 1969, ch. 38, par. 104-2, or Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005-2-1, require the trial court to order a competency hearing. In People v. Motis, 23 Ill.2d 556, 179 N.E.2d 637, defendant pleaded guilty to statutory rape of his 11-year-old step-daughter. At his hearing in aggravation and mitigation, it was disclosed that defendant had actually been convicted of two prior sex crimes against children, and defendant himself stated that he wanted and needed medical treatment. The supreme court noted that no competency hearing had been requested and there was no showing that defendant had ever ...


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