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February 29, 1984


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. C30-31.

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 denied.

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 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

Petitioner's case was initially assigned to Judge Suria. R. C1 (docket or "half sheet"). Petitioner's motion for a psychiatric examination, filed August 15, 1974, was granted by another judge, Judge Dolezal, on that date. R. C23, 24 (motion and order); C1 (docket). On November 13, 1974, petitioner's attorney filed a "petition for competency hearing" before Judge Suria, which as we have noted stated that Dr. Tuteur had found petitioner unfit to stand trial. R. C25. Judge Suria's docket entry for that date reflects that the petition was "entered and filed." R. C1.

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 ...

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