APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction in a jury trial of the crime of theft of property valued in excess of $150 for which he was sentenced to a term of imprisonment from 3 1/3 to 10 years. Two issues are raised in the appeal: (1) Whether the trial court erred in failing to order a hearing to determine defendant's competency to stand trial; (2) Whether the court erred in denying defendant's motion of a mistrial when a prosecution witness testified that defendant had previously been incarcerated. Defendant does not question the sufficiency of the evidence on the issue of his insanity at the time of the offense.
The nature of the first issue requires that we detail the events leading up to the trial. On February 1, 1973, defendant was indicted for theft of a motor van in Marion, Illinois. The court appointed the public defender to represent defendant in the proceedings. On March 7, 1973, 2 weeks prior to trial, defendant requested that the public defender be removed as his attorney and informed the court that he was writing to his family to obtain money to retain an attorney. The court informed defendant that he would be granted a continuance to hire new counsel but that this continuance would "break his term." Defendant explained that he did not want to delay the trial, but insisted on a new attorney. He stated that he would not accept the public defender as his attorney because he did not have his well-being in mind, and that he felt he would have "two prosecutors." Defendant further informed the court that he had spent a lot of time in penitentiaries, was a former mental patient, and an escapee from a mental institution.
On March 9, defendant informed the court that he had not retained counsel but that a local law firm was sending a representative to interview him. Defendant stated that he would raise an insanity defense at trial. He reiterated that he was a mental patient, an escapee from New York Mental Hospital in Central Islip, Long Island, and had recently been a patient at Memorial Center, a mental institution in Boulder, Colorado. Defendant added that he "blacked out" at the time of the alleged offense. In response to the court's questions, the accused stated that he was able to cooperate with counsel and assist in his own defense, and that he understood the charges against him as well as the possible punishment if found guilty of them. The cause was continued for 1 week to enable defendant to hire counsel.
Additional proceedings were held on March 13, 1973. Defendant informed the court that he had not yet retained counsel. When defendant insisted that he did not want a continuance of the trial date, the court ordered the public defender to remain available to assist the accused prior to and during the trial. Defendant objected that the trial would be unfair because the public defender was "unfriendly" and "has done told me that I should be in the penitentiary."
The State's attorney requested that a psychiatrist examine defendant to determine his sanity. The court granted the prosecutor's motion, limiting the purpose of the examination to the question of sanity at the time of the offense. The court reasoned that examination for competency to stand trial was not warranted because defendant had already stated that he understood the charges against him and was able to assist in his defense.
On March 16, 1973, after informing the court that "the two psychiatrists in the area who are usually used" would not be available to conduct an examination before trial, the State moved to withdraw its motion for a psychiatric examination. Defendant stated that he did not want a continuance of the trial date. The court granted the State's motion.
Defendant, who was still not represented by counsel, informed the court that he would rather go to trial without counsel than have a continuance or be represented by the public defender. Over defendant's objection, the court ordered the public defender to be present at trial to render any assistance defendant might request.
Following the court's inquiry whether defendant would call any witnesses to testify on his behalf at trial, defendant replied:
"A. Probably, offhand I just don't know offhand right now. A lot of it will have to be done by phone. Because the State is pushing me so much right at the end of all this. They had three months, Your Honor, and then two weeks ago everything is coming up. They are telling me I got to do this and I got to do that. You know it's the State's fault, not my fault. I am laying in jail for three months, they're trying to poison my food and everything."
Defendant again refused the offer of a continuance.
On March 20, 1973, defendant offered the names of two witnesses who would testify on his behalf, and requested that he be allowed to call a psychiatrist to testify at trial the next day. When informed that the psychiatrist would first need to examine him, defendant replied, evidently shouting: "A prisoner is a busy man, Your Honor, when he is doing time. He is a lot more busy, got a lot more pressures on him than a psychiatrist." The prosecution indicated that they stood ready for trial, but would not oppose a psychiatric examination, if the defendant would accept a continuance to enable an examination to be arranged. The court informed defendant that he had a choice: either go to trial the next day or request a continuance to arrange a psychiatric evaluation. Defendant refused the continuance.
Defendant was tried before a jury beginning March 21, 1973. He appeared pro se. By order of the court the public defender was present at trial to assist the accused. In his opening statement, defendant acknowledged that he had taken the van belonging to James Patterson, but stated that he intended to establish that he was insane at the time of the offense. He made the same admission in his closing argument.
Defendant's initial contention is that his statements and behavior during the 2 weeks immediately prior to trial raised a bona fide doubt of his competency and the court erred in failing to order a hearing to resolve the competency issue before trial.
• 1 A defendant is deprived of his constitutional right to a fair trial if he is tried and sentenced while incompetent. (Pate v. Robinson, 383 U.S. 375, 15 L.Ed.2d 815, 86 S.Ct. 836; People v. Reeves, 412 Ill. 555, 107 N.E.2d 861.) The test to determine competency to stand trial is whether a defendant can understand the nature of the charges against him, and can cooperate with counsel and assist in his own defense. (People v. Geary, 298 Ill. 236, 131 N.E. 652; People v. Thompson, 3 Ill. App.3d 684, 278 N.E.2d 1.) It is not necessary that the defendant or his counsel raise the question of defendant's competency to stand trial. Whenever it becomes apparent during the proceedings that there is a bona fide doubt of the defendant's competency, it is the court's responsibility to stop the proceedings and determine the question before continuing. (People v. Richeson, 24 Ill.2d 182, 181 N.E.2d 170; People v. Burson, 11 Ill.2d 360, 143 N.E.2d 239; Ill. Rev. Stat., ch. 38, par. 1005-2-1(c).) The trial court, however, is clothed with discretion to determine whether the circumstances of a particular case requires such a hearing. People v. Milani, 34 Ill.2d 524, 216 N.E.2d 816, reversed, 386 U.S. 12, 17 L.Ed.2d 702, 87 S.Ct. 874.
In People v. Harris, 47 Ill.2d 106, 265 N.E.2d 644, the defendant produced evidence that he had suffered from epilepsy, that he had been incarcerated on many occasions in the psychiatric ward of the Illinois State Penitentiary, and that he, in the opinion of the Illinois Department of Corrections, needed mental treatment upon conviction and sentencing. Nevertheless, the court held that those factors were "not conclusive of ...