APPEAL from the Circuit Court of Cook County; the Hon. ROGER
J. KILEY, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 12, 1981.
Defendant, Ronald Jackson, was indicted in Cook County for six counts of armed robbery and one count of attempt armed robbery. After a jury trial he was convicted of five counts of armed robbery and sentenced to 10 to 20 years in prison. Subsequent to his conviction, he was found unfit to stand trial on an unrelated pending murder charge. After this determination was made, the defendant filed a section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72) wherein he argued that his present state of unfitness raised the question of his fitness to be tried and sentenced in the earlier proceeding. The trial court denied his petition and it is from this denial that the present appeal was brought.
The parties have both presented very lengthy recitations of the facts which they deem pertinent to this appeal. For the sake of brevity, we will summarize those facts necessary to provide a background for this appeal and discuss other facts as they are pertinent to the arguments raised herein. The record reveals that prior to trial the defendant had dismissed one public defender and one private attorney, but was again represented by the public defender at his trial. The record further discloses that after answering ready for trial, the defendant obtained two continuances and then requested a plea conference. Subsequent to this conference, the defendant sought a third continuance to again secure representation by private counsel. The public defender representing the defendant supported this motion on the basis that the continuance would provide time for him to investigate a possibly suggestive identification confrontation which had recently come to his attention. The court denied this motion. Thereafter, the defendant filed a motion to suppress the identification testimony and a hearing was held on this motion prior to the jury selection. This motion was also denied.
At the trial, five eyewitnesses testified for the State as to the circumstances surrounding the armed robbery. In the main they testified that they were at Bobo's Lounge located at 2858 West Van Buren in Chicago, on December 5, 1975, at approximately 2 p.m., when a stranger entered the lounge and after a short time announced a "stick-up." The man obtained money from each occupant of the lounge including the bartender at gun point. The gunman was present in the well-lit lounge for about 15 to 20 minutes during the robbery. The witnesses generally described the gunman as a black male in his mid 20's, wearing a black leather jacket and blue jeans with an estimated height of between 5'7" and 5'10". Weaver and Murrell separately identified the defendant as the gunman at a lineup conducted on the day after the robbery. Subsequently, Guider, Agee, and Pippins identified the defendant from a photograph of the lineup previously viewed by Weaver and Murrell. Additionally, each witness made an in-court identification of the defendant.
Three additional witnesses were presented. A police officer assigned to investigate the robbery testified that, incident to a communication from Murrell, he picked up the defendant on December 6, 1975, and arranged lineup and photographic identifications of the defendant by the witnesses. The testimony of a second police officer was objected to by the State. The defendant sought to use the officer to impeach State witnesses on the height of the robber. The trial court, after hearing the officer's proposed testimony in camera, sustained the State's objection on the basis that the testimony would not impeach the witnesses. Easter Jackson testified for the defense as an alibi witness. She testified that the defendant who was her nephew lived with her family and was with her the entire afternoon of the robbery.
After the jury returned guilty verdicts on the five armed robbery counts, a presentence report was ordered. Prior to the sentencing hearing, the defendant filed a motion for a new trial alleging inter alia that the trial court had erred in denying the defendant's pretrial motion for a fitness examination and hearing. We note that no such pretrial motion has been found in the record. After the trial court denied this motion, the defense counsel moved for a fitness examination to determine the defendant's fitness to be sentenced. The trial court denied the motion indicating it had no bona fide doubt of the defendant's fitness but agreed to order a fitness examination to aid the defendant in the preparation of his defense for an upcoming murder trial. After a hearing in aggravation and mitigation, the court sentenced the defendant to 10 to 20 years. The mittimus of his conviction was stayed pending the outcome of the fitness examination.
On February 3, 1978, the defendant filed a section 72 petition which sought a new trial or at least a new sentencing hearing on the basis of a psychiatrist's January 1978 finding that the defendant was unfit. The petition was later amended to include facts pertaining to the defendant's history of antisocial behavior, his attendance at elementary schools for retarded children, his arrest record, his prior commitment to the Dixon State School incident to a juvenile delinquency petition, medical reports and test results characterizing the defendant as mentally retarded.
Four medical witnesses testified at the hearing on the section 72 motion. Dr. Reifman, a psychiatrist and director of the Psychiatric Institute of the circuit court of Cook County (hereinafter Institute), testified that he examined the defendant on April 5, 1977, before his armed robbery trial and concluded that he was fit to stand trial. In reaching this conclusion, he consulted a report of a psychological examination given by Dr. Blumstein, an intelligence test, police reports, and a social history provided by the defendant's sister. The defendant received a 51 on the WAIS intelligence test which classified him as mentally retarded moderate. Reifman concluded from his examination that, despite the defendant's low intelligence, he could understand events and the charge and was able to cooperate with counsel. At the time Reifman conducted his fitness examination, he had no reports from the Illinois Department of Mental Health, and did not know of defendant's prior commitment to the Dixon State School. His conclusions, he noted, were consistent with both the Dixon and presentence investigation reports.
Reifman conducted a second examination of the defendant on January 17, 1978. This time, however, he reached the conclusion that the defendant was not fit because of the presence in the defendant of anxiety and emotional distress in addition to his mental retardation. These additional factors, which he termed negativism, resulted in a disruption of the defendant's thinking and concentration and prevented him from cooperating with counsel. Reifman defined retardation as the "performance in a subcultural manner because of the inability to use certain intellectual functions." Reifman stressed that retardation is not a mental disease. He concluded that the defendant's condition existed from birth and that defendant was simply one of a proportion of the population who is not as smart or as quick as others. Reifman also examined the defendant on November 14, 1978. At this time he was also unfit. This conclusion was again based on the presence of the mental retardation in conjunction with negativism. At this time Dr. Reifman possessed various reports which indicated the possibility of organicity which is the loss of brain functioning due to brain damage, loss of brain tissue, or a chemical disturbance. The defendant was still suffering from negativism, which was signified by his refusal and inability to cooperate.
Reifman explained that the change between the April 1977 finding of fitness and the January and November, 1978, findings of unfitness was based on the addition of the element of negativism to the defendant's retarded conditions. It was Reifman's position that retardation alone did not render the defendant unfit and that if there had been no negativism in January and November, 1978, it is more than likely that he would have found the defendant fit. Reifman believed that the defendant's time in jail and his conviction as well as the upcoming murder trial were very influential in producing this change. He would give no opinion as to whether the defendant was unfit during the trial or at the time of the sentencing hearing nor could he estimate when the change in the defendant took place because he stated that fitness was a fluctuating condition.
Blumstein, a psychologist with the Institute, also examined the defendant in April 1977. From his examination he concluded that the defendant was uncertain of where he was and was unable to read or write, but knew who Blumstein was and knew that he was charged with armed robbery. As to the murder charge pending against him, defendant explained that some stud had shot himself. Dr. Blumstein concluded this indicated some understanding of the murder charge. The psychological tests which he performed suggested an organic brain problem and that the defendant was a high-grade mental defective. Dr. Blumstein stated that a person with a low intelligence quotient (hereinafter IQ) would be automatically disqualified for fitness. However, in April 1977, he gave his opinion that the defendant's fitness was quite questionable but possible in his report to Reifman. He based this opinion on his belief that the defendant's ability to cooperate was quite tenuous and that the defendant was not able to appreciate the seriousness of the charge.
Blumstein also saw the defendant on November 9, 1978, to determine his fitness then. At this time he knew defendant had been convicted of armed robbery. After this examination, Blumstein concluded that the defendant was not fit for trial. It was Blumstein's opinion that the defendant had not been fit in 1977 for the armed robbery trial. He viewed defendant's condition as static in nature with relatively minor fluctuations possible over time. He agreed with Dr. Reifman's diagnosis that defendant displayed negativism and found that defendant generally lacked the ability to comprehend and became confused under pressure. He explained that the difference in his findings was a matter of degree; the defendant was the ...