APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendant, Eddie McNeal, was found guilty of burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19-1) and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2). He was sentenced to four years to four years and a day.
On appeal, defendant contends: (1) the trial court improperly denied his request for a fitness hearing prior to trial; (2) he was not proven guilty beyond a reasonable doubt; (3) the trial court committed prejudicial error by giving the Prim instruction to the prospective jurors on voir dire and by giving the Prim instruction to the jury after all the evidence was presented but before final arguments; and (4) the trial court committed prejudicial error by indicating to the jury the court's impatience with defendant's cross-examination of a rebuttal witness.
The evidence presented at trial showed that, on March 5, 1975, at approximately 7:30 in the evening, defendant, accompanied by a juvenile, broke into the victim's apartment while the victim, an 80-year-old woman, was inside. The juvenile put a knife up to the victim's throat and told her to sit down in her kitchen chair. While the victim sat in the chair screaming, defendant and the juvenile ransacked her apartment and took many of her valuables.
A neighbor, hearing the victim's screams, called the police. Two policemen came to the scene. They arrested defendant in a small hallway just outside the door to the victim's apartment. They arrested the juvenile inside the apartment. The victim identified both assailants to the police as being involved in the incident.
Defendant's defense was two-fold. First, he testified that he lived in another apartment in the building and had just been passing by the victim's apartment because he was taking his garbage outside. However, evidence showed that the entrance to defendant's apartment was on another side of the building and, from his apartment, he had no access to the hallway in which he was arrested. Second, he alleged he was insane or alternatively that he did not have a sufficient mental capacity to form a specific intent to commit burglary or to form the intent necessary to be accountable for the armed robbery. Defendant presented expert testimony to prove this defense and the State rebutted this testimony with an expert witness of its own.
The jury found defendant guilty and this appeal followed.
Defendant first contends that the trial court improperly denied defendant's request for a fitness hearing. On several occasions prior to trial, the court ordered fitness examinations of defendant by the Psychiatric Institute of Cook County to determine if he was fit to stand trial. On the first such examination, the institute psychiatrist found defendant fit to stand trial. On the second occasion, defendant was found unfit. On the next three occasions, extending over a period of two years, defendant was found fit to stand trial. Based on the institute's psychiatric reports and evidence presented at a hearing, defendant was found by the trial court to be fit to stand trial and the trial court established a date for trial.
On the day the trial was to begin, counsel for defendant requested another fitness hearing. Counsel alleged he believed from his own examination of defendant that defendant was unfit to stand trial. The trial court asked counsel if he had any new evidence to show defendant's unfitness. Counsel answered he did not. The court then questioned defendant to determine if he understood the charges against him. Defendant gave ambiguous answers as he had apparently done during the prior hearings when the court had ordered psychiatric examinations. The trial court told defense counsel that unless he could present other evidence of unfitness, the trial would proceed. Counsel then asked for time to have his own expert examine defendant. The trial court granted him a month to do so.
One month later, at a hearing, defendant presented the affidavit of a psychologist who had tested defendant and found his IQ to be 61, indicating mild mental retardation. Defense counsel then moved for a dismissal of the charges claiming the defendant was unfit to stand trial and would never be fit to stand trial. The finding of the psychologist merely verified the last three reports filed by the institute psychiatrists. These reports had all found defendant fit to stand trial. Based on this, the trial court denied defendant's motion and asked defense counsel if he wanted another fitness hearing. Counsel answered no, and the trial proceeded.
Based on the foregoing, there is a substantial question as to whether the trial court ever denied defense counsel's request for a fitness hearing. It appears that the court may have merely postponed a ruling on whether to have a fitness hearing until defendant was examined by his own expert. Following this examination, defendant did not continue to request a fitness hearing but instead merely sought a dismissal of his charges. ...