Appeal from the Circuit Court of Cook County; the Hon. Frank
B. Machala, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant, George Phillips, was charged by indictment with the murder of Dean Terrill. Following a bench trial in the circuit court of Cook County, defendant was convicted of murder and sentenced to a term of 100 to 200 years in the penitentiary.
On appeal, defendant claims (1) that he was denied his due process rights when the trial court failed to instruct the jury at defendant's fitness restoration hearing that the State bore the burden of proving defendant fit for trial; (2) that the jury at the fitness restoration hearing should have been instructed that defendant was presumed unfit on the strength of an earlier finding of incompetence; (3) that the trial court committed reversible error by failing to order a competency hearing prior to the hearing on defendant's motion to suppress statements despite notice of a bona fide doubt of defendant's fitness; (4) that defendant's confessions were admitted into evidence in violation of his constitutional rights; (5) that defendant was deprived of effective assistance of counsel; (6) that the trial court's erroneous explanation of the factors justifying an extended term sentence prevented defendant from making a knowing and intelligent choice between alternative sentencing provisions; and (7) that the trial court abused its discretion by imposing a sentence of 100 to 200 years.
We affirm the decision of the trial court.
On November 23, 1973, Detective Douglas Moss of the Brunswick, Georgia, police department was called to the scene of an unsuccessful burglary attempt and saw defendant lying on the floor, surrounded by paramedics. After defendant received emergency medical care for two gunshot wounds he had sustained, Moss advised him of his constitutional rights and placed him under arrest. Defendant was then taken immediately to the local hospital for further treatment. Upon returning to his office, Moss checked defendant's name and description against a national computerized list of outstanding warrants and learned that defendant was wanted in Cook County, Illinois.
On the following day, November 24, 1973, defendant informed hospital personnel that he wanted to speak with Moss. When Moss arrived at the hospital, he informed defendant that burglary and aggravated assault charges had been filed against him. After the detective again advised defendant of his rights and reminded him that he need not volunteer any information, defendant told Moss that he had murdered an attorney named Dean Terrill in Chicago. This conversation was the first indication that defendant was involved in an unsolved murder dating back to May 2, 1972. Although Moss took notes of this first statement by defendant, he testified that he did not transcribe them because defendant might have been on medication and the statement therefore inadmissible at a future trial.
Upon his release from the hospital the next day, defendant was brought to the Brunswick police station, where he was advised of his constitutional rights before he voluntarily signed a waiver form. He then gave a second statement concerning the murder of Dean Terrill. Defendant subsequently spent almost six months in the Georgia State Penitentiary for burglary and aggravated assault before being extradited to stand trial in Illinois. During the various stages of the trip to Chicago, including an airport layover and a three-hour flight during which both defendant and the two accompanying officers consumed some alcoholic beverages, defendant repeatedly brought up the subject of Terrill's murder. After the officers advised defendant of his rights, while on the plane he made a third statement about the murder.
When the three men arrived in Chicago, defendant was taken first to the scene of the murder and then to the Area 6 Homicide office, where he made and signed his fourth statement after being advised of his rights and signing a waiver form. On June 3, 1974, defendant was indicted for the murder of Dean Terrill. He immediately filed a motion for a court-ordered psychiatric examination.
The first examination, which took place on July 25, 1974, was conducted by Dr. E.J. Kelleher, Director of the Psychiatric Institute of Cook County. Defendant was found fit to stand trial. Two weeks later, on August 15, 1974, defendant moved to be examined by another psychiatrist, Dr. Werner Tuteur; although the examination was conducted, no report was filed with the court. Three months later, defendant requested a competency hearing, and a re-examination by Dr. Tuteur was ordered; again no report was filed.
Defendant then filed a motion to suppress the four statements he had made prior to indictment. Following another psychiatric examination that indicated he was fit for trial, the hearing on the motion to suppress was held in August 1975 and the motion was denied.
During the next 15 months, defendant was granted four more psychiatric examinations. Although one doctor, Dr. Tuteur, consistently found him unfit to stand trial, a series of doctors from the Psychiatric Institute of Cook County all found defendant to be a "malingerer," a "faker" of symptoms, and quite competent to stand trial despite the toothpicks he habitually put through his nose and ears and the "666" he had tattooed above his nose. At his November 1976 fitness hearing, defendant was found unfit to stand trial and was remanded to the custody of the Department of Mental Health for treatment.
During the ensuing 15 months, defendant requested and was granted four more psychiatric examinations by Institute psychiatrists, all of whom reported him to be competent. As a result, the State requested and was granted a fitness restoration hearing, which was held on February 15, 1978. After hearing psychiatric evidence from several doctors, the jury found defendant competent to stand trial for murder.
When trial commenced on August 28, 1978, the State introduced only two of the four confessions, those given at the Brunswick and Chicago police stations, and used them to establish the circumstances of the confrontation between defendant and Dean Terrill that led to the attorney's death. One version described a short but initially friendly conversation between the two men, while the second version described defendant as masked from the moment Terrill opened the door. Despite the inconsistencies in the narratives of the planning and subterfuge used to get into the attorney's apartment, the descriptions of the actual killing were the same: defendant had borrowed a gun before going to Terrill's apartment, gained entry through a ruse, beat Terrill with the handle of the gun, and then chased him through the apartment, stabbing him with a knife until a severe wound to the throat caused asphyxiation. Defendant then took $21 from the body, left the apartment, and went home. In both versions defendant related that he consciously decided not to shoot Terrill because of fear that the noise would lead to his discovery.
In response, the defense presented no witnesses, but instead entered into the record the stipulated testimony of Dr. Tuteur. The doctor's report stated that although he could not reach a definite conclusion about defendant's sanity at the time of the murder, it was his opinion that defendant suffered from a schizophrenic illness of lengthy duration that "in all probability" existed prior to the murder. The State's rebuttal consisted of stipulated testimony by an Institute psychiatrist stating that his review of defendant's medical and psychiatric records led him to conclude that at the time of the murder defendant appreciated the criminality of his ...