APPEAL from the Circuit Court of McDonough County; the Hon.
U.S. COLLINS, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Douglas Kaufman appeals from his conviction for attempted murder (Ill. Rev. Stat. 1975, ch. 38, par. 8-4(a)) and a consequent sentence of not less than 20 years nor more than 30 years, as well as an appeal concerning the fitness of defendant in a pretrial fitness hearing pursuant to section 5-2-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1). Defendant contends, on appeal, that it was error to allow testimony that the defendant, when arrested, exercised his constitutional right to remain silent until he had consulted an attorney. Secondly, the defendant argues that the comment by the State in closing argument, at the fitness hearing, that the defendant failed to testify, was prejudicial error even though an objection was immediately made and was sustained by the court. A final issue is raised concerning the fitness hearing, to the effect that the court abused its discretion in refusing to give to the jury an instruction and jury verdict, which would have advised the jurors that, as the result of a finding by the jury of defendant's unfitness, would be that he be hospitalized and subject to proceedings under the Mental Health Code. The sole issue raised on appeal, which concerns the trial itself, is whether the sentence of 20 to 30 years was excessive and unwarranted, in light of the defendant's background and the nature of the offense.
In the pretrial fitness hearing, the jury was required to determine whether the defendant was unable "to understand the nature and purpose of the proceedings against him; or to assist in his defense." (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1(a).) At the fitness hearing, held on April 18, 1977, the State introduced a three-page letter by the State's expert witness, a Dr. Chapman. After reciting pertinent aspects of defendant's personal history and certain statements made by defendant during consultation with Chapman, the letter concluded that the defendant was not impaired by mental illness or defect to such a degree as to prevent him from understanding the nature of the charges and proceedings or from participating in his own defense. The other evidence presented by the State at the fitness hearing was the testimony of the McDonough County sheriff, who testified, over objections made by the defendant, that the sheriff was present on November 23, 1976, when the defendant was arrested. The sheriff stated that on two occasions, within an hour of defendant's arrest, defendant was advised of his Miranda rights by a State trooper. The sheriff testified that defendant responded on both occasions by stating that he understood those rights and that he did not wish to talk about the case until he had seen an attorney.
Evidence presented to show the defendant's unfitness to stand trial, included testimony by his mother, his brother, his sister, and by a clinical psychologist and a psychiatrist. The defendant's mother testified that, as a child, defendant contracted spinal meningitis which resulted in permanent visual and audio impairment and a learning disability. Testimony by all members of the family disclosed that Douglas, when in the custody of his father, as a child, was abused and humiliated on several occasions. There was also testimony of the defendant's serious drug abuse and his four suicide attempts, at least three of them by drug overdoses. As a result of these attempts, the defendant was hospitalized at mental health facilities in 1973, 1974 and, again, in 1975.
The clinical psychologist who had conducted a 2 1/2-hour interview with defendant, which included the administration of various tests, testified that the defendant's "reality orientation is so fragmented * * * that he does not understand the nature of the charges." The psychologist also stated that in his opinion, the results of the tests indicated that defendant had severe brain damage and an I.Q. of 61. The psychiatrist, after similar examination and testing of the defendant, concluded that defendant suffered from three mental diseases, namely, organic brain disease, psychosis and mental deficiency. The conclusion of the psychiatrist was that the defendant did not exhibit insight in the nature and depth of the criminal proceeding and that he could not cooperate with counsel. At the conclusion of the evidence, a conference on the instructions was held in chambers. The defense, at the conference, offered the following two instructions:
"No. 7: If the defendant is found unfit to stand trial the court shall remand the defendant to a hospital and order that proceedings be conducted in accordance with the Mental Health Code.
No. 13: We, the jury, find the defendant Douglas Kaufman unfit to stand trial and remand him for further proceedings under the Mental Health Code."
These instructions, which were tendered by the defense, were refused by the court.
Closing arguments were then held and in its closing, the attorney for the State at one point commented:
"Now we can listen to psychiatrists from now until the cows come home but we haven't heard Douglas Kaufman speak."
An immediate objection was made to this comment and was sustained by the court. After listening to the evidence and arguments, the jury found the defendant fit to stand trial. The trial was held a month later.
At the trial it was established that the defendant Douglas Kaufman, on November 23, 1976, was driving down a McDonough County highway. A State trooper, Carl Kobler, stopped the defendant's vehicle after he noticed it improperly pass another car. Kobler got out of the squad car and approached the stopped vehicle, with Kaufman and his sister inside. The defendant asked something to the effect of "Is there anything I can do for you, officer." Kobler answered, "You can start by getting out of the car." At that point, the defendant stuck a revolver out the window and began firing at Trooper Kobler. One shot hit Kobler in the arm and he fell down. The defendant then fired several shots at Kobler while Kobler was on the ground, none of which struck Kobler. Defendant then fled but was soon apprehended.
Psychiatric evidence by the experts was introduced again during the trial, and each gave substantially the same testimony as was given at the fitness hearing. The jury, after hearing all the evidence, and being fully advised of the applicable law, found the defendant guilty of attempted murder and two counts of aggravated battery. No convictions were entered on the battery counts since they arose out of the same act as the attempted murder. On the murder attempt conviction, the court imposed a sentence of from 20 to 30 years, as we have noted.
1, 2 The first issue raised on the appeal is whether defendant's constitutional rights were violated by the testimony of the sheriff at the fitness hearing, that the defendant, when advised of his rights at the time of the arrest, stated that he understood them and did not want to talk until he had an attorney. As we have noted, the focus of the fitness hearing is on whether the defendant is able to understand the nature and purpose of the proceedings against him and whether he is able to assist in his own defense. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1(a).) No question of guilt is presented at a fitness hearing. The questions of the defendant's competence or fitness must be answered as of the time of the fitness hearing, which is a civil proceeding apart from the criminal trial. (People v. Cole (4th Dist. 1973), 11 Ill. App.3d 412, 296 N.E.2d 733.) While the question of fitness must be directed to the time of the hearing, evidence bearing upon fitness issues often must, of necessity, focus upon facts about the defendant's past conduct and health. Subsection (e) of section 5-2-1, which catalogs various matters admissible on the fitness question, contemplates such evidence of past behavior at the fitness ...