APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a bench trial before the circuit court of Cook County, defendant, Bennie L. Dixon, was convicted of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1(a)(2)), and sentenced to a prison term of 14 to 15 years. On appeal, defendant contends (1) that he was unconstitutionally required to bear the burden of proof at his fitness hearing (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1(i)), and (2) that the trial court's exclusion of a defense witness as a discovery sanction denied him his sixth and fourteenth amendment rights to a fair and impartial trial (U.S. Const., amends. VI and XIV).
We affirm defendant's conviction.
Defendant was charged with the November 23, 1973, shooting of Reggie Cason. The incident took place when an argument erupted over the outcome of a dice game. Cason was treated in the hospital for severe leg wounds but died 12 days after being shot.
During the trial, defendant took the stand. On the second day of his testimony, defendant's attorney informed the court that defendant had suffered epileptic seizures during the trial and was under medication. Counsel requested a fitness hearing on defendant's competency to continue with the trial because of this condition. After hearing argument by counsel, the trial judge found a bona fide doubt of defendant's fitness to continue with the trial and ordered that defendant be examined by Doctor Kelleher, director of the Psychiatric Institute of the circuit court of Cook County.
After examining defendant, Dr. Kelleher submitted a report to the court stating that defendant's epileptic condition would cause temporary periods of confusion requiring court recesses, but that it would not prevent defendant from assisting in his defense. Defendant's counsel argued that the report contained inconsistencies and requested that further evidence of defendant's fitness be heard. Before the proceedings continued, and in reliance on a statute then in effect but subsequently held unconstitutional in People v. McCullum (1977), 66 Ill.2d 306, 362 N.E.2d 307, the trial court stated that the defense had the burden of proving by a preponderance of the evidence defendant's unfitness to continue with the trial. See Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1(i).
The defense called defendant's mother to describe her son's condition. Then, without calling further witnesses, both the prosecution and defense requested a ruling on the fitness issue. The trial judge, however, determined that additional testimony should be heard and called Dr. Kelleher as a witness for the court. During his testimony, which reaffirmed the contents of his report, it was disclosed that the Psychiatric Institute's examination of defendant had not inquired into his condition on the night of the shooting incident. An additional psychiatric examination was then ordered by the court to explore this area. Dr. Kelleher again took the stand to report the findings of the second examination. It was his conclusion that there was no basis for believing that defendant had suffered a seizure at the time he shot Cason, or that defendant could not remember details of the shooting. At that time, the court found defendant fit to continue with the trial, agreeing to recess the trial during any period when defendant was suffering the effects of an epileptic seizure.
When the trial resumed, the defense sought to present the medical testimony of Dr. Stanton Polin to rebut the State's medical testimony regarding the surgical procedures performed upon the victim and the eventual cause of Cason's death. The defense had not furnished Dr. Polin's name to the State in answer to discovery nor had the defense revealed its intention to present medical testimony until the State had rested its case. The State objected to the admission of Dr. Polin's testimony and the court, finding the doctor's testimony irrelevant to the issues in the case, sustained the State's objection to the testimony.
By offer of proof, Dr. Polin testified that in his opinion an alternative surgical treatment would have saved the victim's life although the treating physician followed acceptable medical practice in his treatment. The alternative procedure would have involved more time and greater risk to the patient. Dr. Polin stated that the primary cause of Cason's death was the bullet wound.
The trial court found defendant guilty of murder and sentenced him to 14 to 15 years imprisonment.
At the time defendant's fitness hearing was held, section 5-2-1(i) of the Unified Code of Corrections provided:
"The burden of proving the defendant is not fit is on the defendant if he raises the question and on the State if the State or the court raises the question." (Ill. ...