APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM LEWIS, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Defendant, Jack Morthole, was found guilty following a jury trial in the circuit court of Williamson County of the following offenses: unlawful possession of more than 30 grams but less than 500 grams of cannabis; unlawful possession of less than 30 grams of a substance containing heroin; unlawful possession of less than 200 grams of a substance containing amphetamine; unlawful possession of less than 200 grams of a substance containing a derivative of barbituric acid. The court sentenced defendant to one to three years for the first offense and two to ten years for each of the remaining offenses, the terms of all of the sentences to run concurrently.
On appeal defendant presents three issues for review: (1) whether the trial court's denial of his request for a hearing on his fitness to stand trial violated his right to due process of law; (2) whether he received a fair trial; (3) whether the court imposed an excessive sentence.
Following his indictment for the offense of unlawful delivery of a controlled substance and pursuant to a bench warrant, defendant was arrested by Special Agent William Cornwell of the Illinois Bureau of Investigation on May 3, 1973. At the time of his arrest defendant was sitting in a car parked next to a trailer in a mobile home park. After Cornwell advised defendant of his rights the agent noticed a paper sack on the back seat of the car. It was daylight at the time and the car door was open. When Cornwell asked the defendant what was in the sack, defendant replied, "Marijuana." When Cornwell removed the sack, he observed a crushed, green, tobacco-like substance inside. Cornwell then searched the rest of the car and found two knapsacks, inside of which were a band-aid box containing what appeared to be illegal drugs, a wooden kitchen match box containing suspect substances, a plastic vial containing a brownish powdery substance, and four envelopes each containing $500 in cash. Cornwell also discovered a .22-caliber pistol and a number of bullets in the front seat passenger area of the car. Laboratory tests performed on the discovered substances revealed the presence of the following: 341.81 grams of cannabis, 13.20 grams of a substance containing a derivative of barbituric acid, 25.02 grams of substance containing methamphetamine, 26.89 grams of tablets containing phenobarbital and methamphetamine, and .58 grams of a substance containing heroin. As a result of the seizure and the analysis of these items defendant was indicted on September 10, 1973, for the offenses of (1) unlawful possession of more than 30 grams but less than 500 grams of cannabis; (2) unlawful possession of more than 30 grams of a substance containing heroin; (3) unlawful possession of less than 200 grams of a substance containing amphetamine; (4) unlawful possession of less than 200 grams of a substance containing a derivative of barbituric acid; and (5) knowingly carrying a pistol concealed on his person when not on his own land, or in his abode or fixed place of business.
After a number of delays the case was finally set for trial on March 17, 1975, more than 22 months after the initial arrest. Five days prior to the trial date, defendant called Dr. Marvin Pitluk, a psychologist whom he had seen in 1972, and requested immediate help. Dr. Pitluk saw defendant in Chicago at approximately 10 p.m. that evening. After talking with the accused, Dr. Pitluk drove him to Northeast Community Hospital in Chicago where at the psychologist's suggestion, defendant committed himself to the locked psychiatric ward under the care of Dr. Jeffrey Tilkin, a psychiatrist whom Dr. Pitluk had previously contacted regarding defendant's condition. The next evening Dr. Pitluk called defendant's attorney at home and advised him of defendant's condition and whereabouts.
On March 17, 1975, counsel for defendant appeared and advised the court that defendant was in a psychiatric ward of Northeast Community Hospital. Defendant had been interviewed, but his attorney had been unable to obtain his cooperation. Defendant's counsel then presented a motion raising the question of the fitness of defendant to stand trial and requested the court to continue the matter until this question could be resolved. In support of the motion defendant's counsel presented a letter signed by Dr. Pitluk and Dr. Tilkin. In response the Assistant State's Attorney advised the court that he had called the hospital and confirmed defendant's whereabouts. The trial court denied defense counsel's motion for a continuance and issued a bench warrant for defendant.
The next day, March 18, 1975, defendant appeared with counsel who presented a written motion for a hearing to determine defendant's fitness to stand trial. In support of the motion defendant offered the above-mentioned letter and oral testimony of Dr. Pitluk. Pitluk testified to the events of March 13, 1975, including defendant's commitment to the psychiatric ward of the hospital in Chicago. The psychologist also explained his first contact with defendant in June of 1972. At that time he gave the defendant an extensive battery of psychological tests over the period of several days. In his opinion the tests showed that defendant was then severely depressed, possibly psychotic and in need of medical testing to determine whether he was suffering from organic brain damage and psychosis. Between June 1972 and March 1975 the psychologist had only one other contact with the defendant; he received an inquiry from Southern Illinois University regarding the accused's request for readmission. In response, he wrote a letter recommending that it might be beneficial to permit defendant the opportunity to develop whatever intellectual skills he might possess.
Dr. Pitluk reported that defendant's appearance had degenerated greatly since he had last seen him in June 1972. In the psychologist's opinion defendant was mentally confused and was uncertain why he was even in Chicago. Pitluk explained that the defendant was quite confused in his feelings about a girlfriend who lived in Chicago. Defendant had been taking amphetamines extensively and wanted help because he felt he might eventually kill himself. Dr. Pitluk testified that based on his prior testing, his discussions with the defendant the previous week and his observations, it was his opinion that defendant was presently unable to aid in his own defense because of his mental confusion, self-preoccupation, severe depression, and degeneration from a long use of amphetamines.
On cross-examination, the psychologist stated that it might have been defendant's attorney who referred the accused to him in 1972. Pitluk also stated, however, that defense counsel had not sent defendant to his office on March 12, and that defendant's reason for coming was to seek the psychologist's help in dealing with his feelings towards his girlfriend in Chicago.
The State called Deputy Sheriff William Henshaw and an assistant bailiff, John Rosenburger, the officials who had executed the bench warrant issued the previous day. Deputy Sheriff Henshaw testified that he had had three conversations with defendant, each of short duration, on the way from Chicago to Marion, Illinois. In the first conversation the officer asked defendant questions regarding his admission to the hospital. In the second, he asked defendant if he had eaten at the hospital. Defendant responded that he had and was not hungry and made a vague reference to a hunger strike. The third conversation occurred during booking when defendant responded to questions concerning his name, address, and other information. Defendant also identified two pictures in his possession as pictures of a girlfriend. Assistant Bailiff Rosenburger testified regarding his conversation with the defendant during which defendant had asked him for a cigarette.
The court denied defendant's motion for hearing to determine his fitness to stand trial, as well as defense counsel's request for appointment of an independent psychiatrist to examine defendant. Trial was scheduled for the following day.
On March 19, 1975, the defense again renewed its motion for a fitness hearing. These motions were again denied. Throughout the proceedings of March 19, 1975, which included argument and testimony regarding several other defense motions, defendant continually interrupted the proceedings, sometimes directing foul language at the court. At one point, when the defendant's remarks became particularly vulgar, defense counsel requested five minutes recess to calm his client down. These remarks continued during voir dire. On one occasion defendant lay down on the counsel table and on another he declared that the Lord was his attorney.
On March 20, 1975, out of the presence of the jury, defense counsel moved for a mistrial on the ground that defendant did not understand the proceedings. When the court denied this motion defense counsel renewed his petition for a fitness hearing, whereupon the court called Deputy Sheriff Norman McDonald and Bailiff Rosenburger, who testified that defendant had been cooperative in dressing himself for trial. Defendant's attorney reiterated that defendant had been completely uncooperative. The court again denied defendant's petition for a fitness hearing.
After concluding the proceedings in chambers the judge and counsel prepared to return to open court. Defendant refused to leave the chambers and had to be carried and pushed down the hallway by the bailiff and the deputy sheriff to the court room. When the three reached the entrance to the court room, the bailiff had to release defendant because the entranceway was too narrow to accommodate two people at once. According to Deputy Sheriff McDonald's testimony, defendant then let his knees buckle and purposely fell, hitting his head on the jury box. When the judge and the attorneys returned to the court room, defendant lay sprawled on the floor, unconscious.
When ammonia did not revive the accused, the court agreed to recess until defendant could be examined at a hospital. Subsequently, the court with both counsel went to the office of Dr. Ko, the doctor who had examined defendant in the emergency room of the hospital for the purpose of determining if defendant was physically able to proceed with the trial. Dr. Ko, in answer to questions by the court, stated that when he first examined the defendant, defendant was lying on a stretcher, still apparently unconscious. The doctor had administered a battery of physical tests which revealed no abnormality. After a "short period of examination" the doctor had concluded that defendant maybe had "acute depression reaction and a history of drug abuse and a slight laceration of the right lower lip area." Dr. Ko would not give an opinion whether defendant was physically able to proceed with the trial. While he found no evidence of a concussion, Dr. Ko refused to rule out that possibility because he did not know defendant's medical history. The doctor also refused to rule out the possibility that defendant was faking an acute depressive reaction.
The defense again renewed its motion for a fitness hearing and again the motion was denied. Defense counsel then moved for a mistrial based on the prejudicial effect of defendant's being carried into the court room, being allowed to fall down, being subsequently placed in a chair, and being carried out of the court room. The court likewise denied this motion.
• 1 Before trial commenced the court granted the State's motion to dismiss count V of the indictment, which charged the offense of unlawful use of weapons. The cause proceeded to trial and the State presented evidence as hereinbefore summarized. At the close of the State's case, defendant moved for a directed verdict and specifically moved for a directed verdict regarding count II of the indictment, charging possession of over 30 grams of a substance containing heroin on the ground that the evidence showed that the heroin only weighed .58 grams. The defense also renewed its motion for a hearing on the accused's fitness to stand trial. The court denied all these motions. The defendant presented no evidence and the case went to the jury.
Defendant contends that the trial court's denial of a hearing on his fitness to stand trial violated his constitutional right to due process of law. In particular, defendant argues that the following evidence raised a bona fide doubt regarding his fitness to stand trial, thus entitling him to a full fitness hearing: (1) defendant's hospitalization in a psychiatric ward immediately prior to trial; (2) the testimony of a psychologist that defendant was not capable of aiding in his own defense; (3) a letter from a treating psychiatrist stating that defendant was emotionally incapable of participating in his trial; (4) representations by defense counsel that defendant was unable to cooperate in aiding his defense; (5) the testimony of the examining physician that defendant's acute depression would interfere with his ability to follow the proceedings; (6) defendant's abnormal behavior before the court.
Section 5-2-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1) defines fitness to stand trial or to be sentenced and establishes procedures to determine it. This section provides in pertinent part:
"(a) For the purposes of this Section a defendant is unfit to stand trial or be sentenced if, because of a mental or ...