Appeal from the Circuit Court of Kankakee County; the Hon.
John F. Michela, Judge, presiding.
PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 17, 1983.
On March 12, 1982, the defendant, Richard Lillard, was charged by indictment with retail theft. (Ill. Rev. Stat. 1981, ch. 38, par. 16A-3(a).) He entered a plea of not guilty and the cause proceeded to a jury trial in the circuit court of Kankakee County on August 11, 1982. The evidence presented during the trial is briefly summarized as there is no issue of reasonable doubt.
The defendant was observed by a salesperson, Lucille Jensen, in the men's department of the Carson Pirie Scott store in Kankakee, Illinois, on the afternoon of March 2, 1982. He told Jensen he wanted to buy a gift. The defendant selected a manicure set and a knife, the approximate value of which was $25. He put the items in his pocket and told Jensen he also wanted to look at some shirts. They walked toward the shirts but the defendant did not stop. He walked out the door. Jensen notified the store manager and a co-worker. She testified that the defendant acted strange and nervous, and that there "probably" was an odor of intoxicating beverages coming from the defendant.
Debbie Cain, the store manager, also observed the defendant in the men's department. She did not see him take the items but saw him walk outside. She said he was not walking correctly and thought he might be drunk.
Cain told the maintenance man and the department manager to apprehend the defendant. The three people chased him. The defendant threw the items to the ground and escaped. Cain retrieved the items. She also called the police.
The defendant was apprehended by Kankakee police officer Cleveland Thomas about 10 to 15 minutes later. Thomas said the defendant appeared highly intoxicated but was able to respond to questions and to walk.
Following testimony by defense witness, Dr. Erwin Baukus, the defense rested. The jury subsequently returned a verdict of guilty but mentally ill. The defendant was sentenced to a three-year term of imprisonment for retail theft enhanced by a prior theft conviction.
On appeal, the defendant claims he was denied due process of law when he was tried because there was a bona fide doubt of his mental fitness which was not resolved by means of a full adversarial hearing before trial. He asks that his conviction be reversed and the cause remanded for a fitness hearing.
During the defendant's arraignment on March 18, 1982, the court questioned the defendant and learned that he had been released from a mental health facility two days before the offense. The court stated that the sheriff was to take some steps to have the defendant examined to determine if he should be recommitted.
The defendant filed a motion for the appointment of expert on April 2, 1982. The motion stated that there was a bona fide doubt as to the defendant's fitness to stand trial.
The defendant next appeared in court on April 19, 1982. During that hearing, the trial court stated that it received a letter concerning the defendant's fitness to stand trial. The court said that it was "the considered opinion of the psychiatric community that Richard's all right." Then, the following exchange between the court and the defense counsel occurred:
"THE COURT: No. They took Richard to mental health people because that's where he had been dealing with and the person over there wrote a letter and said Richard was fit to stand trial. If you are not ...