APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
WENDT, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was convicted of voluntary manslaughter (Ill. Rev. Stat. 1975, ch. 38, par. 9-2) and sentenced to five years probation with the first 348 days to be served as periodic imprisonment. At the conclusion of the State's evidence, defendant was found temporarily unfit to stand trial, and the trial court suspended the trial until defendant was found fit. Defendant was found fit to stand trial approximately two months later, and the trial resumed. On appeal, defendant contends that the trial court erred in not granting a mistrial when defendant was found unfit during the course of the trial.
A summary of the pertinent evidence offered by the State follows.
On July 21, 1976, Le Ann Gillian, next door neighbor to defendant, was on her front porch at 8:45 p.m. She saw Larry Dobbs drive up to the house to meet her sister, whom he was dating. Dobbs came up to the front porch, and she told him that her sister was not home. He walked back to his car for a moment and then began to return to the porch. As he started back, he waved his arm at the defendant who was in front of her house. Defendant then uttered a series of profanities at Dobbs, and Dobbs entered into a loud argument with defendant. Dobbs stepped into the driveway to defendant's house and began arguing with defendant's mother who had come out of the house. Gillian walked from the porch to where Dobbs was standing in the driveway and she asked Dobbs twice to come inside, but he refused. During the argument defendant stepped inside the house for a moment and then out. Defendant walked to within nine feet of the group in the driveway. At that point, without warning, she removed a gun from her blouse and shot Dobbs twice. Dobbs had made no movement toward defendant as she approached the group. Prior to this day, Gillian had never seen Dobbs speak to defendant.
After defendant shot Dobbs, she warned Gillian not to say anything to her. Gillian ran to her neighbor, Willie Gibson, who phoned the police. Gibson, who lived two doors from defendant, heard the argument between Dobbs and defendant and also the gun shots. She did not, however, see the shooting.
The State rested its case at this point and defendant asked for a continuance from Friday, April 12, 1978, to Monday, April 15, 1978. On April 15, 1978, defendant, who was free on bond, failed to appear in court. The case was continued until Wednesday. On Wednesday, defendant did appear and her counsel requested a behavioral clinic examination to determine defendant's fitness to stand trial. Defense counsel stated that defendant refused to cooperate with him in preparing her defense. Defense counsel explained that his problems with his client had only manifested themselves since Friday's continuance. Defendant told the court she was not crazy but only wanted a new attorney. She also said that her attorneys had been treating her as if she was crazy, and that she had attempted to commit suicide. As the argument before the trial court continued, defendant, without a word to anyone, left the courtroom. The trial court continued the case until Thursday, and on that day he ordered a behavioral clinic examination for defendant.
On July 11, 1978, a hearing was held to determine defendant's fitness to stand trial pursuant to section 5-2-1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-1(c)). Dr. Robert Reifman, a psychiatrist, examined defendant on May 23, 1978, and June 27, 1978. His diagnosis after each examination was that defendant was unfit to stand trial. Dr. Reifman stated she was unable to cooperate with her attorney. Further, defendant had a mental condition characterized as paranoid with delusions of persecutions and was in need of mental treatment.
On June 6 and June 13, 1978, defendant was examined by another psychiatrist, Dr. Frank Lorrimer. Dr. Lorrimer concluded that defendant was fit to stand trial. In his opinion, defendant was an obstructionist which he defined as a person with personality characteristics of stubbornness and insufficiency which are developed over a number of years. Based upon the testimony of both psychiatrists and his own observations of defendant, the trial court found defendant temporarily unfit to stand trial. The trial court continued the case until the time when defendant would be fit to stand trial. No testimony was given or express ruling made on defendant's competence to have stood trial during the presentation of the State's evidence on April 12, 1978.
On September 20, 1978, a hearing was held to determine if defendant was now fit to stand trial. Dr. John Nelson examined defendant on September 8 and September 19, 1978, and concluded that defendant was now fit to stand trial. The parties stipulated that Dennis Dee, a psychologist, examined defendant and found her fit to stand trial. This conclusion was also reached by Dr. Werner Tuteur who examined defendant on September 7, 1978, and September 19, 1978. Dr. William Marinas also examined defendant on September 7, but he found her unfit to stand trial. According to Dr. Marinas, defendant was angry and distrustful. Based on this examination, he diagnosed defendant's mental condition as paranoid, which was induced by the stress involved in the criminal proceedings against her. A second examination of defendant was conducted by Dr. Marinas on the morning of the September 20 hearing. From this examination, Dr. Marinas concluded that defendant was fit to stand trial. After hearing this evidence, the trial court found defendant fit to stand trial.
Defendant then moved for a mistrial urging two grounds. First, that the delay of the trial from April 12, 1978, to September 20, 1978, impaired the trial court's memory of the testimony already received into evidence. Second, that the trial court's finding of unfitness at the end of the State's case carried a presumption that defendant was unfit during the presentation of the State's case. The trial court in denying both motions displayed an accurate and clear memory of the suspended proceeding.
Defendant then took the stand in her own behalf. On the evening of July 21, 1976, she was at home when Larry Dobbs arrived at Gillian's house. Dobbs was walking from his car to Gillian's house when he began making faces at defendant. Defendant asked him to leave her alone, and Dobbs replied by calling her a whore. An argument followed. As Dobbs began walking up the driveway toward defendant, defendant's mother went out to stop him. Defendant's mother was 61 years old. Dobbs refused to leave the driveway and tried to shove defendant's mother out of the way. As this occurred, defendant, standing on the porch, entered her house to get a gun, put the gun under her sweater, and came back outside. She walked onto the driveway and Dobbs started to walk toward her. When Dobbs was two feet away, he put his hands in his pockets and refused to leave the driveway. Dobbs stepped toward her again, and she fired the gun at him.
According to defendant, Dobbs had been harassing her for quite some time prior to the shooting. Dobbs would scare her with his car when she tried to cross the street. He was constantly around her house. In addition, he would laugh at her when Le Ann Gillian and her sister called defendant crazy.
Le Ann Gillian testified in rebuttal that she had never harassed defendant nor called her crazy. Moreover, she had never seen Larry ...