The opinion of the court was delivered by: Prentice H. Marshall, District Judge.
George L. Phillips has filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 (1976). In 1978, he was found
guilty of murder by a judge of the Circuit
Court of Cook County, Illinois and was sentenced to a term of
100 to 200 years in the penitentiary.*fn1 Phillips was
convicted of the May 1972 murder of a Chicago attorney. The
adjudication of guilt is in no way implicated in the habeas
petition. Rather, petitioner challenges in two respects the
procedure used by the state trial court relating to the
question of his competency to stand trial.
We take our initial summary of the facts relevant to the
petition from the state appellate court's opinion affirming
petitioner's conviction, People v. Phillips, 110 Ill. App.3d 1092,
66 Ill.Dec. 729, 443 N.E.2d 655 (1982), though we will
fill out those facts with references to the record. Petitioner
was indicted for murder in June 1974. He immediately filed a
motion asking the court to order a psychiatric examination. On
July 25, 1974, Dr. E.J. Kelleher, Director of the Psychiatric
Institute of Cook County, examined petitioner and found him fit
to stand trial. On August 15, 1974, petitioner moved to be
examined by a different psychiatrist, Dr. Werner Tuteur of
Elgin State Hospital in Elgin, Illinois. The court granted the
motion. Dr. Tuteur conducted an examination; the appellate
court found, however, that he did not file a report with the
court. On November 13, 1974, petitioner's attorney, an
assistant public defender, filed a petition for a competency
hearing. The petition was verified by petitioner's lawyer, and
it stated in part that "petitioner [the lawyer] . . .
represents that the said defendant herein has been examined by
Dr. Werner Tuteur, 750 South State, Elgin, Illinois, and their
[sic] diagnosis is: The defendant, GEORGE PHILLIPS, is unfit to
stand trial." R. C25. On November 19, the court ordered Dr.
Tuteur to conduct a reexamination of petitioner. R. C26. The
state appellate court stated that Dr. Tuteur did not file a
report concerning this examination.
On April 9, 1975, the trial court ordered Dr. Richard
Rappaport to conduct a competency and sanity examination,
since "[t]here appear[ed] to be a dispute as to the competency
of the defendant to stand trial. . . ." R. C29. Dr. Rappaport
reported on April 16 that in his opinion petitioner was
feigning mental illness and that he was fit to stand trial. R.
On August 11, 1975, the trial court held a hearing on
petitioner's motion to suppress several statements he had made
to the police while in custody. The motion to suppress was
According to the appellate court, over the next 15 months,
petitioner was examined by psychiatrists four more times. Dr.
Tuteur again found petitioner unfit to stand trial, but other
psychiatrists from the Psychiatric Institute disagreed. In
November 1976, a fitness hearing was held. Petitioner was
found unfit to stand trial and was remanded to the custody of
the Department of Mental Health for treatment.
Over the following 15 months, petitioner was examined four
times by Psychiatric Institute psychiatrists, all of whom
reported him to be competent to stand trial. The state
requested a fitness restoration hearing. The hearing was held
on February 15, 1978. Two psychiatrists testified for the
prosecution, and Dr. Tuteur testified for petitioner. The jury
found petitioner competent to stand trial.
Petitioner alleges that it was unconstitutional for the
trial court to hold a hearing on the motion to suppress before
holding a hearing on his competency to stand trial. He also
asserts that the trial court incorrectly allocated the burden
of proof at the fitness restoration hearing. Petitioner and
respondents have filed cross motions for summary
judgment.*fn2 No evidentiary material has been filed other
than the state court record. Neither party has requested
an evidentiary hearing under 28 U.S.C. § 2254 rule 8.
THE APPELLATE COURT'S DECISION
The appellate court rejected both of petitioner's
contentions. With respect to petitioner's first argument, the
court noted that under Illinois law, if a bona fide doubt
exists concerning a defendant's fitness to stand trial, "the
court shall order that a determination of that question be made
before further proceedings." Ill.Rev.Stat. ch. 38, §
1005-2-1(c) (1981), quoted in People v. Phillips, 110
Ill.App.3d at 1101, 66 Ill.Dec. at 735, 443 N.E.2d at 661. The
court stated that "the only notice given to the court before
the hearing on the motion to suppress was one sentence in the
petition for a competency hearing, an unsupported claim by
defense counsel that a Dr. Tuteur had found defendant unfit for
trial." Id. Since Dr. Tuteur had never filed a report with the
court, the only evidence before the court at the time of the
suppression hearing was a series of reports stating that
petitioner was competent to stand trial. Id.
The appellate court held that defense counsel's "mere
assertion . . . that he ha[d] reason to believe defendant
[was] incompetent" was insufficient to create a bona fide doubt
as to petitioner's fitness. Id. at 1101-02, 66 Ill.Dec. at 735,
443 N.E.2d at 661 (citing cases). Thus, the trial court's
failure to hold a fitness hearing was not erroneous.*fn3
Petitioner also argued before the appellate court that the
trial court had at the restoration hearing improperly
allocated the burden of proving him fit to stand trial. The
appellate court first noted that since he had not tendered an
alternative jury instruction at the hearing or objected to the
instruction given, petitioner had waived the right to raise
the issue on appeal unless the giving of the instruction
amounted to plain error." Id. at 1099, 66 Ill.Dec. at 734, 443
N.E.2d at 660. See Ill.Rev.Stat. ch. 110A, § 615(a) (1981). The
waiver would bar petitioner from raising the issue unless there
was "grave error" or the evidence was closely balanced. The
court held that no grave error existed because "the jury was
properly instructed that defendant could be found fit only if
the State had proved that fact by a preponderance of the
evidence." 110 Ill.App.3d at 1099, 66 Ill.Dec. at 734, 443
N.E.2d at 660. Other material added to the instruction, the
court stated, "did not unconstitutionally shift the burden of
proof to defendant." Id. Counsels' closing arguments also
reflected the correct burden of proof. Thus, the court found
that no "plain" or "grave" error existed in the instruction.
Id. at 1100, 66 Ill.Dec. at 734, 443 N.E.2d at 660.
With respect to the second part of the waiver exemption, the
appellate court held that petitioner's "claim that the
evidence was closely balanced [was] without support," given
the long series of reports confirming petitioner's competence
and the "mitigation" of Dr. Tuteur's testimony by Tuteur's
statement that his conclusion of unfitness would not change
even had he learned that in other examinations, petitioner
appeared to be simulating mental illness. Id. Thus, since there
was no "grave error" and the evidence was not closely balanced,
the court held that petitioner "waived his right to claim
reversible error based on faulty jury instructions." Id.
A person accused of crime enjoys the constitutional
guarantee of not being tried if he "lacks the capacity to
understand the nature and object of the proceedings against
him, to consult with counsel, and to assist in preparing his
defense. . . ." Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct.
896, 903, 43 L.Ed.2d 103 (1975); Dusky v. United States,
362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960) (per
curiam). "[This] prohibition is fundamental
to an adversary system of justice." Drope, 420 U.S. at 172, 95
S.Ct. at 904. This guarantee is protected by the requirement
that if sufficient doubt exists of the accused's competence to
stand trial, the trial court must sua sponte inquire into his
competency. Drope; Pate v. Robinson, 383 U.S. 375, 86 S.Ct.
836, 15 L.Ed.2d 815 (1966).
In the present case the trial court failed to inquire into
petitioner's competency before conducting the suppression
hearing in August 1975. Though Drope and Pate both concerned
the accused's competency at trial, we think that the procedural
guarantee established by those cases applies to a pre-trial
suppression hearing as well. Since the suppression hearing in
this case concerned the circumstances under which petitioner
made various statements to the police, it was crucial to his
defense that he be able to cooperate with counsel at the
hearing. The Confrontation Clause of the sixth amendment
requires that the accused be present at "all stages of the
proceedings where fundamental fairness might be thwarted by his
absence." Faretta v. California, 422 U.S. 806, 816, 95 S.Ct.
2525, 2531, 45 L.Ed.2d 562 (1975). Where a hearing turns on
"substantial issues of fact as to events in which [the accused]
participated," his presence is required. United States v.
Hayman, 342 U.S. 205, 223, 72 S.Ct. 263, 274, 96 L.Ed. 232
(1952). Thus, a defendant has the right to be present at a
pretrial suppression hearing where testimony is to be taken or
facts established. See United States v. Hurse, 477 F.2d 31, 33
(8th Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38
L.Ed.2d 146 (1973); United States v. Dalli, 424 F.2d 45, 48 (2d
Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 39, 27 L.Ed.2d 49
(1970). The Supreme Court has suggested that one source of the
right not to be tried if incompetent is the ban against trials
in absentia. Drope, 420 U.S. at 162, 95 S.Ct. at 899 (citing
Foote, "A Comment on Pre-Trial Commitment of Criminal
Defendants," 108 U.Pa.L.Rev. 832, 834 (1960) and Thomas v.
Cunningham, 313 F.2d 934, 938 (4th Cir. 1963)). Thus, if a
suppression hearing of the type held in petitioner's case is a
proceeding at which petitioner had a right to be present, it
was also a proceeding that could not go forward if he was shown
to be unable to cooperate with his attorney or understand the
nature of the proceeding.
The Supreme Court had avoided establishing a standard
describing the amount of doubt necessary to trigger a judge's
duty to hold a competency hearing. See Drope, 420 U.S. at
172-73, 95 S.Ct. at 904. The Seventh Circuit has described the
standard as one of bona fide doubt or whether the facts known
to the trial judge are such as to create a reasonable doubt as
to the competency of the accused. United States ex rel. Rivers
v. Franzen, 692 F.2d 491, 497-98 (7th Cir. 1982). The standard
in other circuits is similar. See, e.g., Scarborough v. United
States, 683 F.2d 1323, 1324 (11th Cir. 1982), cert. denied, ___
U.S. ___, 103 S.Ct. 1225, 75 L.Ed.2d 460 (1983); Brown v.
Warden, 682 F.2d 348 (2d Cir.), cert. denied, 459 U.S. 991, 103
S.Ct. 349, 74 L.Ed.2d 388 (1982); Acosta v. Turner,
666 F.2d 949, 954 (5th Cir. 1982); Chavez v. United States,
656 F.2d 512, 515-16 (9th Cir. 1981); Durham v. Wyrick, 545 F.2d 41, 44
(8th Cir. 1976). Where a habeas petitioner seeks relief on the
basis of the state trial court's failure to hold a competency
hearing, he bears the burden of persuading the habeas court
that the facts known to the trial judge were sufficient to
raise a bona fide doubt as to petitioner's competency. Reese v.
Wainwright, 600 F.2d 1085, 1091 (5th Cir.), cert. denied,
444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979). The focus is on
"what the trial court did in light of what it knew." Reese, 600
F.2d at 1091.*fn4
There is nothing in the record suggesting that the appellate
court's finding that Dr. Tuteur's 1974 reports were not filed
is incorrect. Petitioner states in his memorandum filed with
this court that the reports were mailed to the presiding judge
but were not filed by that judge. This cannot be determined
from the reports themselves. Unlike the reports of Drs.
Lorimer, Kelleher, Kaplan and Rappaport, see R. C105, 106, 116,
121, Dr. Tuteur's report, see R. C107 (report from examinations
of September 21 and October 14, 1974), is not in the form of a
letter to counsel or the trial judge, and it does not state the
date on which it was prepared. We do not know when the report
was made a part of the record now before us. The appellate
court's finding is one of historical fact and is entitled to a
presumption of correctness under 28 U.S.C. § 2254(d) (1976).
Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722
(1981). The only exception to this presumption that conceivably
applies might be that "the material facts were not adequately
developed at the State court hearing." 28 U.S.C. § 2254(d)(3).
For the present we will presume the correctness of the state
court's finding that Dr. Tuteur's report was not before the
court at the time of the suppression hearing.
On November 19, 1974, six days after petitioner's attorney
filed the motion for a competency hearing, Judge Suria ordered
another examination by Dr. Tuteur. Again, no report appears to
have been filed. On February 6, 1975, Judge Suria ordered an
independent psychiatric examination, "[t]here appearing to be
a dispute as to the disability of defendant." R. C28. There is
no record of whether this examination occurred and if so, what
the result was. Judge Suria entered another similar order on
April 9, 1975, ordering Dr. Rappaport to examine petitioner.
R. C29. On April 29, Judge Suria entered an order ...