Appeal from the Circuit Court of Cook County; the Hon. R.
Eugene Pincham, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant William Matthews was charged by information with three counts of attempted murder, six counts of aggravated battery, and six counts of armed violence. Following a jury trial, defendant was found guilty of six counts of aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(b)(1)) and was sentenced to 10 years' imprisonment. Defendant appeals.
Defendant knew Ethel Pugh, one of the complainants, and had been romantically involved with her at various times during the 11 years prior to November 15, 1981. On that date, Pugh began living with another man, Eddie Stinson, with whom she had been romantically involved in the past. Defendant had been seeing Pugh about this time and was unaware of her renewed involvement with Stinson. Defendant repeatedly attempted to call Pugh but was told each time that she was not at home.
On November 25, 1981, defendant had tried, unsuccessfully, to call Pugh. From the evening of November 25 until 6:15 a.m. the following day, defendant drank a pint and a half of whiskey. After 6:15 a.m. on November 26, defendant drank an additional fifth of whiskey at his home.
On November 25, 1981, Eddie Stinson slept at Ethel Pugh's apartment. Also in the apartment were Pugh's four children, one of Pugh's friends, Devina Green, and Phillip Pugh, Ethel's brother.
At 8 a.m. on November 26, Stinson heard someone banging on the front door. He went to the door and opened it, whereupon he encountered the defendant standing in the doorway with a baseball bat in one hand and a pistol in the other. Defendant walked past Stinson toward the bedroom where Ethel Pugh was sleeping. Stinson ran over to the couch to wake up Phillip, and the two went to call the police.
Ethel Pugh got out of bed and opened her bedroom door, where she met defendant standing with the baseball bat and pistol. Defendant put the pistol in his waistband and began beating Pugh with the bat. Danella Brown, one of Pugh's children, ran into the bedroom and grabbed defendant. He struck Brown with the gun and she left the room. The gun fell to the floor and defendant picked it up and struck Pugh on the head with the butt.
Devina Green had been sleeping on the couch when she heard screams coming from the bedroom. She ran into the bedroom, where she saw defendant beating Pugh about the head and arms with a bat. As Green told Pugh to get up and run, the gun discharged and struck Green in the chest.
As defendant was leaving the apartment, Brown was attempting to call the police. Defendant returned to strike her several more times with the bat. Defendant testified that he did not recall striking Pugh with a bat and did not remember firing his gun.
Following a jury trial, defendant was found guilty on six counts of aggravated battery and was sentenced to three concurrent terms of 10 years' imprisonment. Defendant then instituted this appeal.
Defendant first contends that a psychiatric fitness report, submitted prior to trial pursuant to court order, failed to meet statutory requirements. Consequently, defendant claims he is entitled to a new trial.
• 1 The State argues that this issue has been waived by defendant's failure to object to the sufficiency of the report before, during, or after trial, and by his failure to raise the issue in a post-trial motion. Section 104-11 of the Code of Criminal Procedure of 1963 provides that the issue of defendant's fitness may be raised at any appropriate time before, during, or after trial. (Ill. Rev. Stat. 1981, ch. 38, par. 104-11)(a).) It is not equally apparent that the issue of the adequacy of a fitness report may likewise be raised at any appropriate time. A question as to a defendant's fitness is fundamentally different than a question as to the statutory sufficiency of a fitness report. Where, as here, no issue is raised as to defendant's fitness to stand trial and the sole issue is the adequacy of the psychiatric fitness report, we find that the general rule of waiver applies. Under this general rule, defendant's failure to object during trial and to raise the issue of the fitness report in a post-trial motion resulted in a waiver of the issue on appeal. (People v. Foster (1979), 76 Ill.2d 365, 380, 392 N.E.2d 6.) We note that defendant exhibited no behavior prior to, during or following trial which could reasonably be construed as raising a bona fide doubt as to defendant's competency. This fact buttresses our finding of a waiver.
Our decision in People v. Harris (1983), 113 Ill. App.3d 663, 447 N.E.2d 941, does not dictate a contrary result. In Harris, we granted defendant a new trial because of the trial court's failure to hold a competency hearing despite evidence which we felt gave rise to a reasonable doubt as to the defendant's fitness to stand trial. This holding obviated the need to address the defendant's contention concerning the adequacy of his psychological fitness report. However, in an effort to avoid a second appeal involving this issue, we addressed it. We took this action despite the State's argument that the defendant had waived the issue by failing to object to the report at trial. A relaxation of the waiver rule in Harris was warranted in light of the fact that the issue being addressed was not controlling and because of our concern that the inadequate fitness report be corrected on retrial. It was these unique circumstances which prompted us to address the issue of the fitness report despite the defendant's failure to raise the issue at trial. No such unique circumstances are presented in the instant case and we therefore refuse to relax the waiver rule.
• 2 Defendant next contends that the trial court erred by giving a non-IPI instruction to the jury concerning the defense of voluntary intoxication. The pattern instruction ...