APPEAL from the Circuit Court of Morgan County; the Hon. JOHN
B. WRIGHT, Judge, presiding.
MR. PRESIDING JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a conviction for aggravated battery in violation of section 12-4(a) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 12-4(a)) and a conviction for intimidation in violation of section 12-6(a)(1) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 12-6(a)(1)). He was convicted by a jury in Morgan County in a single trial on the two charges. He received concurrent sentences of 3 1/2 to 10 years on each count.
The People did not file a brief nor make an appearance within the times specified in Supreme Court Rule 343 (Ill. Rev. Stat. 1973, ch. 110A, par. 343). Four months after their brief was due and after the cause had been set for oral argument, the People filed a motion for leave to file a brief. This motion was denied as no good cause for the delay in making an appearance was shown.
• 1 In this situation, we may reverse pro forma or consider the cause on its merits. (People v. Giannopoulos, 20 Ill. App.3d 338, 314 N.E.2d 237.) We choose to follow the latter course.
The offense occurred on October 6, 1973. The criminal complaints were read to the defendant in open court on October 10. The record shows that the defendant refused to face the court or respond to the court's questions. Similarly, the defendant, during the preliminary hearing on October 26, refused to respond, remained standing during the hearing, and had to be handcuffed because he would not behave. For these and other reasons, a trial by jury on the question of competency was had on December 4 and 5, 1973. By that time, the defendant had been examined twice by a psychiatrist, Dr. Philip Bornstein. The psychiatrist testified at the competency trial that defendant would not cooperate with him and, in fact, would not talk at all. Therefore, he was unable to make a diagnosis. Dr. Bornstein testified that he was unable to tell whether the defendant was psychotic or a malingerer. The only testimony the State presented was that of a fellow inmate at the county jail that defendant was able to play cards and seemed normal. The jury found the defendant competent.
Trial was set for March 20, 1974. Several days before the trial date, defendant's counsel filed a motion for a continuance of 3 days. In support of the motion, counsel stated that defendant had indicated he would cooperate with the psychiatrist and the earliest examination that could be arranged was March 21, 1974. The continuance was denied.
A jury trial on the intimidation and aggravated battery charges was held on March 20, 1974. The first witness was Geraldine Peters, a neighbor of the defendant and his mother. Mrs. Peters testified that she heard screaming early in the morning of October 6, 1973, went out to her driveway and saw Freddie beating on his mother. She went back into the house to call the police, but the defendant came in her house to stop her. He beat on his chest and said "I am king." He also said that he was going to kill his mother and would have to kill Mrs. Peters too. However, he left quickly and did not touch or harm her. Mrs. Peters said the defendant appeared very angry and excited. She also testified that she thought him to be sane, although he was mean, and he had changed since the death of his father several years ago.
A police officer testified next. He stated he arrived at the Clardy residence and found the defendant and his mother in the driveway. Defendant appeared to be in an excited or aggravated state. His mother was bleeding badly around the face. In response to the officer's questions, she admitted her son had beaten her. The defendant was then placed in custody. A photograph of Mrs. Clardy was taken the next day at the hospital, and this photo was admitted into evidence.
A stipulation was entered into by the State in defense that defendant had applied for health insurance a year ago and had been rejected on the grounds of a nervous disorder.
Mrs. Clardy, the aggravated battery victim, testified for the defense. She admitted her son struck her, but said he did not know what he was doing. She testified that her son had been in three different psychiatric institutions over the past several years. On objection by the State, she was not permitted to testify that her son, in her opinion, was insane.
The defendant's sister testified that defendant had deteriorated since the death of their father several years ago. She also testified to outbursts of the defendant at the jail. She stated that these outbursts would make her so nervous that she quickly left. She was not allowed to testify whether she believed her brother was in need of mental treatment, because of objections to the questions by the State.
The jury returned a verdict of guilty on the charges of intimidation of Mrs. Peters and aggravated battery of Mrs. Clardy. Post-trial motions were filed. The motion for a new trial was supported by a letter from Dr. Bornstein, which stated that, in his opinion, defendant was a catatonic schizophrenic, although a diagnosis of severe retarded depression could not be ruled out. The motion for a new trial was denied. On April 17, 1974, defendant was sentenced to 3 1/3 to 10 years on each count, the sentences to be served concurrently. The court stated that the minimum term was higher than the statutory minimum for the offenses, because the defendant presented a continuing risk of physical harm. It should also be noted that the record shows defendant's counsel had informed the court prior to trial that defendant at no time cooperated in his defense and, in fact, would not talk to counsel.
We hold here that it was error for the trial court not to grant a new trial. Defendant's counsel asked for a new trial in his post-trial motion on the ground that defendant had not been able to cooperate with his attorney. It is a denial of due process to make a defendant go to trial at a time when he is incompetent. Pate v. Robinson, 383 U.S. 375, 15 L.Ed.2d 815, 86 S.Ct. 836.
In support of the motion for a new trial, a letter was attached from the psychiatrist, Dr. Bornstein, who had examined the defendant on the day ...