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People v. Mccabe





APPEAL from the Circuit Court of Cook County; the Hon. GINO L. DI VITO, Judge, presiding.


Defendant appeals from a judgment entered on separate jury verdicts finding him unfit to stand trial and in need of mental treatment. He contends that (1) the judgment should be reversed because the trial court improperly submitted both questions for simultaneous determination by the jury; and (2) the evidence did not clearly and convincingly establish he was in need of mental treatment.

Defendant was initially charged with aggravated arson for allegedly throwing a Molotov cocktail into an occupied apartment. On three subsequent occasions between November 1978 and February 1979, he was found unfit for trial and in need of mental treatment. Then, on June 21, 1979, he was determined to be fit for trial and, on June 28, 1979, after a hearing on stipulated evidence, he was found guilty of arson and sentenced to 2 1/2 years' probation. Three months later he was charged with violation of his probation; but, before any hearing thereon, another behavioral examination determined that he was not fit for trial and was in need of mental treatment. It appears that defendant contested those findings and demanded a jury for the hearing thereon.

The record reflects that at the commencement of the hearing, after conferring with the attorneys for both parties, the court stated:

"[I]t's understood by everyone that the jury is going to be asked to determine the defendant's fitness to stand trial, and if they determine that the defendant is unfit to stand trial, they would then be asked to determine whether or not the defendant is in need * * * of mental treatment."

In response thereto, defendant's counsel stated that:

"The instructions would be that they [the jury] are going to determine if he [defendant] is in need of mental treatment, not in need of hospitalization."

Before their selection, the trial court informed the jurors of the issues and explained to them that if they found defendant fit to stand trial their deliberation would end, but that if they found him unfit they would then be required to determine whether, based on the evidence, he was in need of mental treatment. The same explanation was given the jurors in the State's opening statement, and on neither occasion was any objection made.

Two board certified psychiatrists testified for the State on the question of defendant's mental condition. Dr. Hartman testified to several examinations between September 24 and October 4, 1979, the latter date being only a few days prior to the hearing. She stated that he would become "very angry," had difficulty concentrating on one subject, was unkempt and unshaven, had lost weight, and had two black eyes. Defendant had sustained seven fractured ribs while in jail and told Dr. Hartman that "the way he talks to the people in the jail, they had no other choice but beating him up" and that he was beaten up because he had announced to the other inmates that he was a homosexual. Dr. Hartman said also that he had "implored [her] to let him go on his maniacal way until a catastrophe would happen" and that, during one examination, he had threatened to harm her. She testified that because defendant would have difficulty cooperating in his defense and because of his unstable attitudes toward the issues he talked about, he was "not fit for trial." She concluded further that defendant was a danger to himself and to others; that "at the present time he is not able to care for himself"; and that his provocations in jail and expectation of catastrophe were main factors in her opinion.

Dr. Kaplan testified that on his first examination of defendant, in December of 1978, he did not believe him fit to stand trial at that time on the aggravated arson charge because he "exhibited very poor judgment * * * and was unable to cooperate with his attorney." In January of 1979 and again in September of 1979, Dr. Kaplan found that defendant's judgment was seriously impaired and that he was unfit for trial. Dr. Kaplan testified further that from his examination three days before the hearing he found that defendant was unfit for trial, severely impaired mentally, unable to cooperate with his attorney, and a danger to himself and others. He diagnosed his condition as schizophrenia, schizo-affective type.

Defendant, although represented by the public defender, undertook personally to present his case against the advice of counsel. He first called Randy Kostas, a paramedic, who testified that one week prior to the hearing he had written a report which stated that defendant was unable to get along with any other prison inmate and that, at the time of the report, defendant was experiencing an "acute psychotic episode."

Defendant then took the stand and, although the trial court suggested that he speak in narrative form, he insisted on asking himself questions and answering them. In substance, he suggested that the opinions of the testifying doctors were influenced by the prior findings of unfitness and need of mental treatment, which he claimed were the result of an initial misdiagnosis. He also expressed disagreement with the testimony that he was a manic depressive, stating, "I'm not sure it's manic. I say it's normal."

After closing arguments, in which both defendant and his court-appointed counsel participated, the jury returned separate verdicts finding defendant unfit to stand trial and to be in need of mental treatment. Judgment was entered on the verdicts, and defendant was ...

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