APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, 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, Jesus Martinez, was convicted of attempt murder of two police officers (Ill. Rev. Stat. 1973, ch. 38, par. 8-4), and was sentenced to a prison term of 4 to 8 years. On appeal defendant contends: (1) the trial court erred in denying his motion for a new trial because a bona fide doubt as to his fitness to stand trial did exist; and, (2) the State failed to prove that he was guilty beyond a reasonable doubt of attempt murder.
We affirm the trial court's denial of the defendant's motion for new trial and we affirm the defendant's attempt murder conviction.
The State's evidence discloses that on April 8, 1974, Ramone Souchet, manager of the La Concha Club (the club), refused to admit defendant into the club because a private meeting was in progress. Defendant left the club telling Souchet that he would return. Fifteen minutes later, defendant returned, exhibited a shotgun and directed a woman at the door to locate Souchet. Upon learning of defendant's return, Souchet solicited the assistance of two off-duty police officers, who accompanied him outside the club. They observed defendant park his car in the alley next to the club.
At defendant's request, Souchet approached defendant's car and talked with him. Standing a foot away from the car, Souchet saw defendant's shotgun on the front seat. Souchet called to the officers. The police officers approached the car and identified themselves to the defendant. One officer had drawn his gun. Although the officers told defendant he was under arrest, the defendant sped away in the car.
Several minutes later, defendant returned and slowly drove past the front of the club, pointing the shotgun at Souchet and the officers who were standing 10 to 15 feet away. As Souchet and the officers took cover, defendant again drove away. Souchet left the officers to call for additional help. A few minutes later, defendant returned once more, driving slowly past the club. The officers, standing in an alley next to the club and some 10 to 15 feet from the defendant's car, saw defendant pointing the shotgun at them through the car window. As the officers dropped to the ground, they heard a shot fired. Defendant then drove away. A few days later defendant was arrested.
After the State rested, defendant, the only witness for the defense, took the stand. On direct examination, he denied shooting the shotgun, but on cross-examination admitted to the shooting. At the close of the arguments, the court found defendant guilty of attempt murder. Thereupon, counsel for the defendant moved for a behavioral clinic examination of the defendant to determine defendant's mental fitness to be sentenced, premised on defendant's sudden change in testimony on cross-examination wherein defendant acknowledged having fired the shotgun. The trial judge allowed the motion and ordered the director of the Illinois State Psychiatric Institute, or one of his assistants, to examine defendant and report to the court.
On March 17, 1975, Dr. Robert Reifman, assistant director of the Illinois State Psychiatric Institute, submitted a written report to the court concluding that defendant was not mentally fit to participate in a hearing in aggravation, mitigation, and sentencing. On March 27, 1975, defense counsel moved the court to order another examination to determine if defendant was mentally fit to stand trial at the time trial was commenced.
On April 2, 1975, Dr. Reifman reported to the court in writing that based upon his examination at that point in time, it was impossible to determine whether defendant had been mentally fit at the time of trial.
On April 25, 1975, pursuant to defense counsel's additional petition, a further hearing on defendant's competency at the time of trial and now at the time of sentencing was conducted. Dr. Reifman testified that based on his examination of defendant and his subsequent diagnosis of the defendant as suffering from a schizophrenic reaction and being a paranoid type, defendant was not mentally fit to be sentenced. However, Dr. Reifman asserted he could not determine retrospectively whether defendant was mentally fit at the time of trial because defendant's present illness prevented him from communicating adequately with the defendant so as to pinpoint the onset of the defendant's illness or to discover whether defendant understood the nature of the trial proceedings or ould cooperate in his defense. Dr. Reifman acknowledged that a review of the trial transcript, in addition to his examination, would be insufficient as a basis upon which to determine defendant's fitness to have stood trial since the diagnosis still would be retrospective, "which is always subject to gross error. It is not accurate."
Dr. Reifman further testified that while he was presently unable to render an opinion as to defendant's mental fitness at the time of trial, he had examined defendant on October 23, 1974, almost four months prior to trial and, at that time, found that the defendant understood the nature of the charges and that he could cooperate with counsel and was then fit to stand trial.
At the close of the April 25, 1975, hearing, the trial court found defendant in need of mental treatment and committed him to the Department of Mental Health until such time as he became competent to participate in a hearing on sentencing. No finding was made as to defendant's mental fitness at the time of trial.
During the next two years, while the defendant was committed to the Department of Mental Health, defendant was examined several times to ascertain his sanity at the time he committed the offense and his mental fitness to stand trial. He also was examined periodically to determine whether he was mentally competent to participate in a sentencing hearing.
On February 4, 1976, pursuant to court order, the defendant was again examined, by Dr. Reifman, who, in a letter to the court on that same day, reported that in his judgment defendant now was mentally fit to participate in a sentencing hearing.
On February 27, 1976, at defendant's counsel's request, the court again ordered an examination as to defendant's sanity and mental fitness at the time of trial. On March 12, 1976, Dr. Reifman submitted a written report to the court concluding that defendant was mentally fit to participate in a sentencing hearing. However, Dr. Reifman again contended that he was unable to ...