Appeal from the Circuit Court of Cook County, the Hon. John J.
Crowley, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 30, 1984.
In a bench trial in the circuit court of Cook County, defendant, Durlyn Eddmonds, was convicted of murder and deviate sexual assault. Pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)) the State requested a death penalty hearing. The court, sitting without a jury, found that there were present one or more of the aggravating factors set forth in section 9-1(b) and that there were no mitigating factors sufficient to preclude a sentence of death. (See Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d).) The court sentenced defendant to death on the murder conviction and 40 to 80 years' imprisonment on the conviction of deviate sexual assault. The sentence of death was stayed (73 Ill.2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); Ill. Rev. Stat. 1979, ch. 38, par. 9-1(i); 73 Ill.2d R. 603).
In a statement taken by an assistant State's Attorney and transcribed by a court reporter, defendant, age 25, said that in the early morning of October 27, 1977, he called down to the alley below his apartment and asked Richard Miller, age 9, to come upstairs. He had seen the boy with two men, and when Richard came upstairs defendant noted that the boy was bleeding from his rectum. Defendant told Richard that he wanted to have anal intercourse with him as the other men had just done. He proceeded to clean him before having anal sex with him. During the act of intercourse the boy started to cry and asked defendant to stop because he was hurting him. In an effort to silence Richard, defendant pushed the boy's body face down into a pillow. Defendant later told the police that he did not want the boy to awaken his grandmother in the next room. During the act of intercourse, Richard stopped breathing. When defendant completed the act, he noticed "that the boy wasn't breathing properly." Defendant tried to revive him and, failing that, looked for a place to conceal the body. He put the body in a garbage dumpster in the alley below his apartment and threw the boy's clothes and the materials he had used in cleaning him up into a yellow garbage bag. Defendant scattered the bag and its contents in a nearby alley.
A latent fingerprint examiner for the Chicago police department testified that there were in excess of 12 points of comparison between the impressions found on a newspaper lying near the yellow garbage bag and defendant's right palm print. It was his opinion that the print found on the newspaper was the same as defendant's right palm print. There was also testimony, from a microanalyst from the Chicago police department, that the garbage bag found in the alley and the bags retrieved from defendant's apartment produced similar results when subjected to scientific analysis. The analyst also testified that a sock found in the bag had the same fiber content as one found on the landing of the porch directly in front of defendant's apartment and above the garbage dumpster. Dr. Robert Stein, chief medical examiner of Cook County, testified that he performed an autopsy and that the "cause of [Richard Miller's] death was suffocation in association with contusions and lacerations of the anus."
Defendant testified that a friend of his, Jerome Williams, had come to his apartment in a nervous state. After using the bathroom to clean up, Williams asked if he could use some plastic bags which were lying on defendant's bed. He asked defendant to obtain some heroin and then left the apartment. Defendant also left the apartment, purchased a half ounce of heroin, and gave it to Williams. Williams returned to defendant's apartment shortly after midnight. He was carrying a shopping bag which he took into defendant's bedroom and left there. Both men left the apartment. Defendant returned home at approximately 2:15 a.m. and went to sleep.
When he awoke the next morning he discovered the shopping bag contained a child's clothing, shoes and a yellow plastic bag. His grandmother then told him about the body of the boy which had been found in the alley. Knowing that there was a child's clothing in the shopping bag and that Williams had been arrested for molesting children, defendant quickly left with the shopping bag. He met Williams, and Williams said he would get rid of the bag. They walked to an alley, and Williams dumped the bag.
Defendant also related a conversation with Williams in which Williams told of having sex with the dead boy and then drowning him in a bathtub so that he could not carry out his threat to tell his mother. He also testified to an episode in which Williams had prepared two syringes of heroin, one for himself and one for defendant. He noted that the one intended for him was darker and, while Williams was otherwise engaged, he switched syringes. Thereafter, Williams "shot the heroin" and in a short period of time began to shake. Williams died the following day, apparently of an overdose of heroin.
Defendant testified that the statements he made concerning the sexual assault and the death of the boy were false and were made because the police "would not let him leave and told him what to say." He denied each of the charges against him.
The court found defendant guilty of murder. The State moved for a death penalty hearing and, in the first part of the hearing, it was stipulated that the court could consider all evidence introduced at the trial. The court, on the basis of the evidence admitted at trial, found that defendant was over 18 years of age; that the murder occurred during the commission of the felony of deviate sexual assault; and that defendant was eligible for the death penalty. (See Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(6).) The court then heard evidence in aggravation and mitigation.
The State introduced the testimony of a victim of a previous rape committed by defendant and the testimony of a police officer who had investigated two other rapes for which defendant had been convicted. The State also introduced certified copies of the three convictions. Additionally, the court heard the testimony of a man who said that he was homosexually raped by defendant while defendant was awaiting trial in the Cook County jail on the present charge. The witness had been convicted of theft, robbery, and aggravated battery and, at the time of defendant's trial, was serving a sentence on the latter charge.
In mitigation, defendant offered the testimony of Dr. Robert Reifman, the director of the Psychiatric Institute of the circuit court of Cook County. He reviewed his findings based on two examinations of defendant but was unable to render an opinion whether, at the time the offense was committed, defendant was under the influence of an extreme mental or emotional disturbance.
The court also reviewed the presentence investigation of defendant and found no mitigating factors sufficient to preclude the imposition of the death penalty. The court sentenced defendant to death for the murder and 40 to 80 years' imprisonment for the deviate sexual assault.
Defendant contends first that it was error to proceed to trial without conducting a fitness hearing. He argues that the circuit court found a bona fide doubt of his fitness because it twice ordered a fitness hearing, and since a bona fide doubt existed, it could only be resolved through a fitness hearing. Defendant argues that proceeding to trial without a fitness hearing violated his due process rights. The State contends that at the time of trial there existed no bona fide doubt of defendant's fitness. In support of its position, the State asserts that the earlier reports showing defendant to be unfit were effectively refuted both by more recent reports showing defendant to be fit and also by defendant's own rational behavior in the courtroom. The State also contends that the issue was waived by the failure of defendant's counsel to insist upon a hearing before trial and to raise the issue in a post-trial motion.
We consider first the State's contention that the issue of fitness is waived. As the court said in People v. Jones (1982), 94 Ill.2d 275, 294-95:
"In People v. Carlson (1980), 79 Ill.2d 564, this court considered whether alleged errors not objected to by defendant at trial were waived. After examining the waiver doctrine, and our Rule 615(a) (73 Ill.2d R. 615(a)), which embodies the exception to the waiver rule, the court adhered to the rule that even in the absence of objection at trial, a court of review will grant relief if the trial error is so prejudicial that real justice has been denied or the verdict of the jury resulted from such error. (See People v. Carlson (1980), 79 Ill.2d 564, 576-77; People v. Wright (1974), 56 Ill.2d 523, 533-34; People v. Manzella (1973), 56 Ill.2d 187, 200.) The same rule applies whether the alleged errors occurred at trial or at sentencing."
As the court did in Jones, we have reviewed the transcript and the alleged errors to determine whether defendant was deprived of any of his fundamental rights.
Defendant was charged by information with murder and deviate sexual assault. Several days later, at the request of the assistant public defender, the circuit court ordered a psychiatric examination. On December 6, 1977, Dr. Reifman, of the Psychiatric Institute for the circuit court of Cook County, reported in a letter that defendant was unfit for trial. Pursuant to this report, the public defender petitioned for a fitness hearing by jury. The court ordered that a fitness hearing be held on January 12, 1978. On that date, the public defender presented to the court a report from Dr. Jewett Goldsmith of the State Department of Mental Health, stating that defendant was fit for trial. Another examination was ordered, and on January 25, 1978, Dr. Albert Stipes, a private psychiatrist, reported that defendant was unfit for trial. The public defender again petitioned the court for a fitness hearing by jury, and a hearing was set for March 8, 1978. On that date and two subsequent dates the hearing was continued by agreement.
On May 25, 1978, the public defender advised the court that he had spoken to Dr. Reifman, the author of the first psychiatric report in which it was stated that defendant was unfit to stand trial, and that the doctor had requested that he be permitted to reinterview defendant prior to testifying at the hearing. Defendant was subsequently reexamined by Dr. Reifman on June 6, 1978. He reported that defendant was "fit to stand trial with medication." Defense counsel then asked the court to order a psychiatric examination to determine defendant's sanity at the time of the offense. The record shows that the next day Dr. Gerson Kaplan of the Psychiatric Institute reported that he could give no opinion as to defendant's sanity at the time of the offense.
A transcript of proceedings on March 13, 1979, shows that there was some confusion as to whether defendant had been declared unfit to stand trial. On April 4, 1979, defense counsel offered to "simplify the matter" by requesting a reexamination of defendant both as to his sanity at the time of the offense and as to his fitness to stand trial. Examinations were ordered by the court, and defendant was reexamined by Dr. Kaplan, whose report dated April 10, 1979, stated that defendant was fit for trial.
In May of 1979, defendant, pro se, prepared and filed a motion asking the court to appoint an attorney from the bar association to represent him, rather than from the public defender's office. A new attorney was appointed for the defendant, and the newly appointed counsel promptly moved for a psychiatric examination of defendant to determine his sanity at the time of the offense. On October 1, 1979, Dr. Kaplan reported that in his opinion defendant was sane at the time of the offense. Defendant then asked for an examination by another doctor to obtain a second opinion concerning ...