APPEAL from the Circuit Court of Cook County; the Hon. SAUL
EPTON, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was convicted of the murder of Raymond Archer and sentenced to a term of 14 years to 14 years and a day. He was also convicted of aggravated assault and armed violence of Byron Brady, but was not sentenced for these offenses. On appeal, he submits the following issues for review: (1) whether a bona fide doubt of his fitness existed at trial and at the time of sentencing; (2) whether a reasonable doubt of his sanity existed at the time of the commission of the crimes; (3) whether his aggravated assault conviction should be vacated because it is a lesser included offense of his armed violence conviction; and (4) whether the armed violence conviction should be vacated because of the trial court's failure to impose sentence.
In October 1975, a hearing was held to determine defendant's fitness to stand trial. The only person testifying was Dr. Reifman, a psychiatrist, who gave his opinion that defendant understood the nature of the charges against him but was unable to cooperate with counsel in his defense. Based on this testimony, defendant was found unfit to stand trial and was committed to the custody of the Department of Mental Health. At a second fitness hearing, in April 1976, Dr. Reifman was again the only witness. He testified that defendant's condition was in remission, that he understood the nature of the charges against him, and that with the continued use of medication (a tranquilizer) he could cooperate with his counsel. Defendant was found fit to stand trial, after which he waived a jury and his case was tried simultaneously with the jury trial of co-defendants.
The events leading up to the offenses charged involved the theft of defendant's stereo from his girl friend's apartment and his efforts to recover it from Raymond Archer, who was reported to have been seen with it. The estranged wife of Archer, called as a witness for the State, testified that defendant offered her $300 for her husband's phone number; that he threatened to kill her husband and said that if he didn't get him, he would kill her; and that when she refused to give information concerning her husband, defendant kicked her in the back. Defendant admitted asking Mrs. Archer for her husband's address but denied threatening or kicking her. Byron Brady, Archer's brother-in-law, called by the State, testified that earlier on the evening of the murder, defendant came to his apartment and offered him $100 for Archer's address. When Brady denied knowing it, he was forced by defendant (using a gun) to leave and get into defendant's car. Waiting in the car were Randy Gamble and two women. There, defendant held the gun to Brady's head and threatened to kill him if he did not disclose Archer's address. After Gamble restrained defendant, the two women were driven home and, at one of the stops, Curtis Harris joined the group. Brady, complying with a demand from defendant, telephoned Archer's wife and obtained his address in Evanston, which he gave to defendant. Once in Evanston, defendant asked a police officer for directions to the address of Archer.
Upon arrival there, Brady was forced to accompany defendant to the door with Gamble and Harris. Defendant told him to knock on the door and ask for Archer who, when he came to the door, was asked by defendant about his stereo. When Archer said he knew nothing about it, Brady testified that defendant grabbed Archer's arm, spun him around, and shot him four times. The three men then ran back to the car and, as they were driving away, Gamble took the gun from defendant and threw it out the window. On their way back, the police stopped their car in Dixmoor, Illinois, and brought them to a police station in that village.
There, Gamble, Harris, and Brady signed written statements identifying defendant as the gunman. Defendant was then advised of and said he understood his Miranda rights. He was questioned by Officer Ayres, who testified that defendant said he did not shoot Archer. However, he was later questioned by Officer Hennegan, who testified that defendant admitted shooting Archer four times when Archer said he did not have the stereo. After making this admission, the questioning was terminated because defendant said he wanted to talk to his father concerning hiring an attorney. Investigating officers recovered the heel of a shoe outside defendant's home which was later identified as coming from defendant's shoe, and the handgun which was identified as the one used in the shooting was found by the police not far from Archer's home.
Concerning the shooting, defendant testified at trial that Archer drew a gun during the conversation at his home and, when that happened, he said his "mind snapped" and that he really did not remember who shot Archer. He also testified that he had mental problems since he was a little boy. Defendant's father testified that defendant was under the care of a Dr. Meade, and his sister testified that from her conversations with defendant there seemed to be something wrong with him.
The court, after finding defendant guilty of the three charges, set the sentencing hearing for a later date and ordered a psychiatric fitness report to be submitted prior thereto. At that hearing, defendant's counsel pointed out that defendant had not been examined as ordered and that he had not received his medication prior to the hearing. There had been a presentence report, however, and the court after stating its belief that defendant was fit sentenced him only on the murder conviction.
1, 2 Defendant initially contends that a bona fide doubt of his fitness existed at trial and at the time of sentencing. To require an accused to stand trial or be sentenced at a time when he is unfit to do so constitutes a denial of due process of law. (Pate v. Robinson (1966), 383 U.S. 375, 15 L.Ed.2d 815, 86 S.Ct. 836; People v. Salvaggio (1976), 38 Ill. App.3d 482, 348 N.E.2d 243.) Under the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1), the applicable test is the ability to understand the nature of the proceedings and to cooperate with counsel. Consequently, an accused may be tried where prescribed medication is used in order to maintain his fitness. (People v. DalFonso (1974), 24 Ill. App.3d 748, 321 N.E.2d 379.) Whether or not a bona fide doubt of fitness has been raised rests within the discretion of the trial court (People v. Skorusa (1973), 55 Ill.2d 577, 304 N.E.2d 630; People v. Pridgen (1967), 37 Ill.2d 295, 226 N.E.2d 598; People v. Milligan (1963), 28 Ill.2d 203, 190 N.E.2d 753; People v. Salvaggio) and, unless there is a clear abuse, the determination that no bona fide doubt of fitness exists will not be reversed on appeal. People v. DeMary (1967), 37 Ill.2d 364, 227 N.E.2d 361; People v. Johnson (1976), 36 Ill. App.3d 871, 344 N.E.2d 602.
In the instant case, at the first fitness hearing a psychiatrist testified that defendant understood the nature of the proceedings but was unable to cooperate with his counsel in his own defense. On this testimony, he was found unfit to stand trial. At a second fitness hearing, six months later, the court found defendant fit after the same psychiatrist testified that defendant understood the charges and that, with medication (tranquilizers), he could cooperate with his counsel.
3 Defendant does not challenge this finding, but he maintains that a bona fide doubt of his fitness arose at certain stages of the trial. First, he argues he was unfit during the jury selection for the co-defendants' trial because he had not been given his medication the night before. We reject this argument since, having previously waived his right to a jury trial, defendant's presence at that time was unnecessary. Also, because this instance of a failure to receive medication occurred five days before his bench trial began, it could not have raised a bona fide doubt as to his fitness when his trial commenced. Furthermore, by defendant's own admission, when this lack of medication was brought to the court's attention, special care was taken to see that defendant was hospitalized each night and given the prescribed medication.
The second stage at which defendant asserts unfitness occurred after the State rested its case when his counsel, in a remark to the court, indicated some difficulty communicating with his client. We see no merit in this contention. At that time, counsel suggested that a mental examination of defendant was appropriate to determine whether, "at the time of the commission of this incident, he was insane and mentally incompetent to comprehend. * * * Now I have been talking to him. One day I get an answer, the next day I get an improper answer * * *."
A trial court has a duty to hold a fitness hearing once facts are brought to its attention which raise a bona fide doubt as to fitness to stand trial. People v. Thomas (1969), 43 Ill.2d 328, 253 N.E.2d 431; ...