APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Defendant, a deaf mute who was never taught to read or write or to use the sign language and was unable to communicate with anyone in any language, was, nevertheless, tried by a jury and found guilty of the murder of Earline Brown. He was sentenced to 14 to 25 years.
On appeal, it is contended (1) his conviction is constitutionally impermissible absent trial procedures to effectively compensate for his disabilities; (2) the evidence is insufficient to prove his guilt beyond a reasonable doubt; (3) he was denied a fair trial by the introduction of incompetent and prejudicial evidence; and (4) the prosecutor's characterization of his attorney as a racist was plain error.
From the evidence, which was largely uncontested, it appears that defendant was seen leaving a tavern with Earline Brown, and a short time later they were observed entering and going to a room in the Viceroy Hotel. Within an hour or two thereafter, defendant was observed returning to the lobby of the hotel where he picked up and then hung up the house phone, after which he left the room key at the desk and left the hotel. The next day another couple discovered the body of Earline Brown stuffed in an upside-down position in the closet of the hotel room, with a large pool of blood under her body. She had been physically beaten about the head, face and chest. Death was determined to have been caused by asphyxiation. The hotel room had apparently been wiped clean of fingerprints.
Defendant was arrested the same day and, while in custody, the arresting officers observed what appeared to be blood spots on defendant's socks. A laboratory test of his clothing determined there were bloodstains on his pants and socks which were of the same blood type as deceased and dissimilar to defendant's own blood. In addition, minute green paint specks of similar chemical composition were found on defendant's pants and Earline Brown's clothing.
There was testimony that defendant had been employed for 12 to 13 years loading and unloading trucks; that he was "pretty strong," and could load and unload trucks by himself.
While defendant was in custody, one of the police officers attempted to communicate with him as to why he was being held. The officer testified that defendant took the pen from the officer's hand and made a drawing on a piece of paper on the table. The drawing consisted of a jagged line in the shape of a stick, and the officer stated that when defendant drew this stick figure he pointed to it and then pointed to himself. He then drew another figure on the other side and indicated, at least to the officer, that this was a woman. He then pointed to both figures and moved them up to the top of the jagged line, where he made an "X." He then indicated three fingers, pointed to himself with the three fingers, and then he pointed to the figure of the woman. He then crossed the woman out with another "X" and pointed to himself again. The following is a reproduction of the drawing made by defendant, which was admitted as an exhibit during his trial.
The contention that defendant's conviction was constitutionally impermissible centers on the question of his competency to stand trial.
This was initially brought into focus in the case of People ex rel. Myers v. Briggs, 46 Ill.2d 281, 263 N.E.2d 109. *fn1 There, the same defendant was indicted in December, 1965, for the murder of a woman, accomplished in the same manner and in similar circumstances as the murder of Earline Brown in the instant case. In Myers, defendant was first found mentally and then physically incompetent to stand trial by separate juries. Judgments were entered on their verdicts and, pursuant to section 104-3(b) of the Code of Criminal Procedure (Ill. Rev. Stat. 1965, ch. 38, par. 104-3(b)), *fn2 he was committed to the Department of Mental Health until he became competent.
Two years later, Superintendent Edelson, of the Mental Health Institution where defendant was committed, concluded in a letter to the Department's attorney that:
"[H]e will never acquire the necessary communication skills needed to participate and cooperate in his trial. He has rejected all our efforts to instruct him and has refused to participate and cooperate with his instructor. The probability for his acquiring the necessary communication skills at any future date is unlikely.
It is apparent now that Donald's future must be decided in a court of law. He will not be able to communicate even in the limited sense as we had first anticipated."
Defendant's attorney, in Myers, then filed a petition for habeas corpus, contending that in effect defendant had been committed for life without ever having been given a trial. On appeal, after denial of the petition by the trial court, the Illinois Supreme Court held that defendant should have been given a trial, stating at page 288:
"This court is of the opinion that this defendant, handicapped as he is and facing an indefinite commitment because of the pending indictment against him, should be given an opportunity to obtain a trial to determine whether or not he is guilty as charged or should be released."
The case was then reinstated, but the State was unable to proceed to trial because of the death of its principal witness, and defendant was released.
It appears that no further action was taken concerning the physical or mental condition of defendant until his indictment in the instant case for the murder in July, 1971, of Earline Brown, following which the public defender moved for a competency hearing, and defendant was examined by the Psychiatric Institute of the Circuit Court. His condition was diagnosed as "mental retardation with emotional instability: * * * not competent to stand trial." However, no competency hearing was held. At trial, he was represented by the court appointed counsel who handled his appeal in the Myers case.
Thus, when the instant case was brought to trial in January, 1972, by virtue of the reasoning of Myers, defendant had the choice of being committed as he had been before, as being incompetent to stand trial, pursuant to section 104-1 et seq. of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 104-1 et seq.), or to stand trial. His attorney understandingly chose the risk of trial rather than the indicated life confinement as an incompetent.
The trial judge, required by Myers to allow defendant his choice of trial, was then confronted with the comment in Myers that procedures be provided to assure defendant's constitutional rights, as stated at page 287:
"The general rule in handling the trial of a criminal defendant who is handicapped by deafness, blindness or other affliction is that a trial judge should afford such a defendant reasonable facilities for confronting and cross-examining the witnesses as the circumstances will permit. He need only give such aid to intelligent appreciation of the proceeding as a sound discretion may suggest. The fact of blindness or deafness of the accused may lessen the ability and capacity of the defendant to utilize his constitutional rights, but this will not prevent his being subject to trial. In the proper administration of justice, however, the court should give a person accused of crime a reasonable opportunity to obtain the benefit of his constitutional rights. If he is deaf, such opportunity as may be necessary should be allowed for communication to him of the testimony of the witnesses to insure him a full and fair exercise of his legal rights. The exact manner in which this result should be arrived at must depend on the circumstances of the case and, to a considerable extent, be left to the sound discretion of the court. 14 Am. Jur., § 181, p. 892."
This comment, at least to some extent, seemed to be based on certain other conclusions of Superintendent Edelson; namely, (1) it was his impression that, "Donald is functioning at a nearly normal level of performance in areas other than communication"; (2) "he is capable of fairly complex operations"; and (3) that his commitment "is based on physical and mental incompetence and the probability of appropriate functioning in the former area is doubtful."
Although the court in the above-set-forth comment referred to protective procedures in handling the trial of a defendant handicapped by deafness, blindness or other affliction, it gave no indication as to how a trial judge should conduct the trial of a defendant who could not communicate. Nevertheless, from our examination of the record, it is apparent that the very able trial judge here, insofar as was possible, conducted the trial in accordance with the Myers dictates, but it also appears quite clear that there ...