Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Lake County,
the Hon. Lloyd A. Van Deusen, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Defendant, James Murphy, was indicted in Lake County for rape and indecent liberties with a child (Ill. Rev. Stat. 1973, ch. 38, pars. 11-1, 11-4). His first trial ended in a mistrial when the jury was unable to reach a verdict. At his second jury trial before the same judge, defendant was found guilty of indecent liberties only and was sentenced to 12 to 70 years' imprisonment. The appellate court affirmed. (47 Ill. App.3d 278.) We granted defendant's petition for leave to appeal under Rule 315 (65 Ill.2d R. 315).
Three issues are raised. First, whether the facts raised a bona fide doubt of defendant's fitness for trial requiring the trial judge to hold a fitness hearing sua sponte under section 5-2-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-2-1). Second, whether defendant received competent assistance of privately retained counsel. Third, whether the sentence was excessive.
Defendant was charged with sexually molesting a 6-year-old girl on August 31, 1974. He was arrested on September 9, 1974.
Prior to the first trial, the prosecution requested a pretrial psychiatric examination of defendant (Ill. Rev. Stat. 1973, ch. 23, par. 2402), since he was charged with indecent liberties with a child. (Subsequent to these proceedings, this court held in People v. Pierce (1976), 62 Ill.2d 223, 225, and the statute was amended to provide (Ill. Rev. Stat. 1977, ch. 23, par. 2402), that such an examination need be given only at the request of the defendant.) The trial court ordered an examination, limited to a determination of whether defendant was suffering from mental disease. After discussion with counsel for defendant, the trial court indicated the question of fitness for trial was not raised. Counsel stated that defendant understood the nature of the proceedings against him.
The psychiatric report by Dr. Ronald Baron concluded that defendant is "fairly severely mentally retarded" but "able to understand simple procedures but not complicated ones or those having abstract meanings." Defendant denied the crime but appeared evasive when he did so, giving the psychiatrist the impression defendant was lying. Defendant knew his attorney's name and knew the crime with which he had been charged.
Dr. Edward Leslie, a psychiatrist, found defendant to be of dull-normal intelligence in an interview situation. Defendant was not particularly direct in his answers. He was aware of the charges against him and denied his guilt. He was able to read and understand a Miranda rights statement (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602). He was aware of the help he could receive from an attorney. The doctor further concluded that defendant was fit to stand trial.
Preceding the first trial, defense counsel moved on several grounds to suppress confessions defendant had made to the police. Included was the ground that defendant's limited intellectual capacity precluded him from reading and understanding the alleged statements. The motion was renewed prior to the second trial. In support of the motion, defense counsel filed an affidavit by defendant's sister attesting that defendant is of limited intellectual capacity and could not have comprehended the statements bearing his signature; that he is illiterate and cannot read on any level above a first grade "cat" and "dog" vocabulary; that his last few years of education, until the compulsory age to leave school, were spent in special education classes for the retarded. His sister believed defendant could not have known what the statements purported to contain.
At the hearing on the motion, the State's evidence was that defendant voluntarily came to the police station with Patrolman Hansen, a uniformed officer, who had been informed of defendant's presence in the area of the ravine where the molestation had taken place. On the way to the station in the squad car, defendant was told his Miranda rights and he said he understood them. No questioning followed.
At the station, Patrolman House testified he told defendant the police were investigating a rape. According to the officer, defendant said he had seen nothing, but, when asked again, hesitantly replied he saw a 14-year-old Mexican boy rape a little Mexican girl. Defendant acted uneasy and smiled. The patrolman questioned the defendant whether he was telling the truth and asked whether defendant had molested a little girl. Defendant said he did not understand the word "molested." The officer then asked if defendant had taken the little girl's pants down and "screwed" her. Defendant answered, "Yeah."
The investigation was continued by Detective Niemietz, who repeated the Miranda warnings. Defendant said he understood each one as it was read to him. Defendant read and signed a waiver form. Defendant then described how he molested a little girl, and he identified her from a photograph. The officer prepared a typed statement and read it to defendant. Defendant appeared to read it to himself and then signed the statement. Defendant was then charged with rape and indecent liberties with a child.
The next morning defendant was again given his Miranda warnings, and he said he understood them. He again signed a waiver of rights form and agreed to questioning. He admitted and recounted his molestation of the girl.
During the course of the investigation, defendant indicated to the officers he did not understand the words "penetrate," "molest," "psychiatrist," and "Miranda." According to the officers, he appeared to understand those words when they were translated into the vernacular. The word "attorney" was also defined for him, as well as parts of the male and female anatomy. One officer testified defendant's responses were slow but that he understood.
At the close of the testimony on the motion to suppress, the trial court concluded defendant intelligently and knowingly waived his Miranda rights and that he did not lack the intellectual capacity to give a statement knowingly.
Prior to the second trial on February 10, 1975, defendant renewed the motion to suppress on the grounds that he could not have knowingly waived his constitutional rights under Miranda. The trial court again denied the motion. At trial the police officers substantially repeated the testimony they had given at the hearing on the motion to suppress.
Defendant testified on his own behalf. He was questioned about his understanding of sexual terminology. Defendant's counsel began to ask questions concerning defendant's understanding of a lawyer's function. Defendant knew what an attorney was and knew that counsel was representing him. The court halted this line of questioning and inquired of counsel whether she was seeking a determination of defendant's fitness for trial. Counsel responded:
"I have fortunately two psychiatric reports very recent that he is competent to confer with counsel and to stand trial, and they are both dated late December."
The court indicated it was relying on counsel to raise the fitness question if she had any doubt of defendant's fitness. Defendant then read from his signed statement out loud in court. He said he could read it all.
A school psychologist testified on defendant's behalf. He had examined defendant in 1969 when defendant was 14 1/2 years old. He had administered intelligence tests and determined defendant fell into the category of the educable mentally handicapped (EMH). This meant defendant learned more slowly than normal but could pursue academic studies. His IQ ranged from 37 to 60. Normal is 100. He could not testify as to defendant's current mental development, although he said it would not be correct to assume defendant had made no progress.
Dr. Leslie testified on rebuttal that defendant answered directly, relevantly and coherently when asked about positive matters. He answered questions he thought harmful to him evasively, unrealistically, softly, and circuitously. Defendant was able to read.
Defendant first contends that he was denied due process of law when no hearing was held to determine his fitness to stand trial. We disagree.
It is established that the conviction of a person who is unfit to stand trial violates due process. (Pate v. Robinson (1966), 383 U.S. 375, 378, 15 L.Ed.2d 815, 818, 86 S.Ct. 836, 838; People v. Barkan (1970), 45 Ill.2d 261, 263; People v. Burson (1957), 11 Ill.2d 360, 368.) And the failure to observe procedures adequate to protect a defendant's right not to be tried while unfit deprives him of his due process right to a fair trial. Drope v. Missouri (1975), 420 U.S. ...