APPEAL from the Circuit Court of Du Page County; the Hon.
ALFRED WOODWARD, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This is a post-conviction appeal after an evidentiary hearing at the trial court. The direct appeal of the defendant's conviction of murder was affirmed by this court in People v. Lee (1972), 7 Ill. App.3d 320, 287 N.E.2d 191.
In this post-conviction appeal defendant contends that the trial court erred because the defendant established, by a preponderance of the evidence, that trial counsel was incompetent and, secondly, that the defendant established, by a preponderance of evidence, that there was a bona fide doubt of his fitness to stand trial. The basis for these contentions is that the Du Page County Public Defender's office, representing the defendant at trial, was incompetent because the public defender failed to raise the issue of the defendant's fitness to stand trial or the possibility of an insanity defense when trial counsel admitted he was aware of at least a part of the defendant's records relating to his mental problems, to-wit: the fact that Lee had an extensive history of diagnosed psychosis, violent behavior, chronic alcoholism and memory lapses. It is to be noted that the trial court was given a presentence report containing references to defendant's treatment in mental hospitals. Defendant also contends these reports should have created a bona fide doubt in the mind of the court as to defendant's fitness to stand trial or be sentenced. Defendant has cited a number of cases in support of this contention which we do not find to be dispositive of the factual issue herein involved. It is also to be noted that the issue of defendant's fitness to stand trial was not raised in the direct appeal of this defendant. See People v. Lee.
Inasmuch as the above contentions were so closely intertwined, viz. a failure of defense counsel to raise the possible defense of insanity at the time of the crime and the alleged incompetency to stand trial, thus indicating in defendant's mind the incompetency of counsel, we shall treat the contentions together. Examination of the record of the post-conviction hearing in the trial court discloses that the defendant filed a number of documents pertaining to his alleged mental incapacity. On December 26, 1961, a petition for commitment of the defendant, either as a person in need of mental treatment or a mentally ill person, was filed by his mother, supported by an examining physician's certificate finding him to be suffering from schizophrenia "* * * manifested by his inability to maintain interest in any job, a poor work record, instances of destructive behavior while under the influence of alcohol (window breaking in school), and a complete lack of comprehension of his responsibility to his family, society and himself. His behavior and habits are erratic. He sleeps days and stays up nights and earns money playing pool. Physical health is good." Three days later, on December 29, 1961, the defendant appeared before a mental health commission which found "no evidence of psychosis at time of present examination. Discharged." On March 10, 1962, after defendant had been arrested in a drunken condition in downtown Elgin, his mother again signed a petition for commitment supported by two examining physicians' certificates. One physician stated in part:
"Patient refuses to work and admits he is a `Bum'. He drinks heavily when money is available. He shows lack of sense of responsibility, lack of judgment and an antisocial reaction."
The other physician's certificate, in part, states:
"Patient admits to overindulgence in alcohol whenever the occasion presents itself, refused to work and indicates an antisocial reaction. Impression: Sociopathic Personality disturbance with chronic alcoholism."
Defendant was admitted to the Elgin State Hospital on or about March 15, 1962, and on March 31, 1962, was given an "Absolute Discharge * * * WITHOUT PSYCHOSIS."
On August 8, 1965, the defendant went to the Mercyville Sanitarium in Aurora, Illinois, where he was examined by Dr. Donald H. Engels. Dr. Engels' diagnosis was "Anti-social personality" or "Antisocial Reaction." However, the doctor stated:
"This patient is considered to be a definite potential homicidal risk, unless the above [legal voluntary commitment] can be accomplished his ultimate fate will probably be life imprisonment or death from police or other intervention."
The records indicate that the defendant was treated as an outpatient.
On July 24, 1970, the defendant was a walk-in patient at the Janet Wattles Mental Health Center in Rockford. Dr. Chester Wade examined him at that time and his impression was:
"1) unstable personality with ...