Appeal from the Circuit Court of Winnebago County; the Hon.
John Layng, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, James Davis, appeals from an order of the circuit court of Winnebago County revoking his conditional release under the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1981, ch. 38, par. 105-10) and committing him to the Department of Corrections pursuant to the terms of his original commitment as a sexually dangerous person. Since we conclude that defendant was denied a fitness hearing erroneously prior to commencement of the revocation hearing, we reverse the order of the trial court and remand with the direction that defendant's fitness be determined.
Defendant was granted a conditional release on October 16, 1980. Thereafter, the State filed on January 15, 1982, a petition to revoke his conditional release. Psychiatric examinations of defendant were ordered and completed, but on August 20, 1982, the court granted the State's motion to deny defendant a fitness hearing. Defendant then tendered an offer of proof that Drs. Carl Hamann and J.G. Graybill would testify that defendant was unfit to stand trial.
At a hearing on the petition to vacate the conditional release held on October 28, 1982, the principal State witnesses were three young girls who testified defendant approached them on July 7, 1982. The girls were returning from a garage sale and were walking with traffic on Blackhawk Road in Cherry Valley. The car approached from behind them while they were walking, slowed and then briefly stopped. Two men were in the car, one of whom leaned out of the window closest to the girls. Elizabeth Hirth, an 11-year-old in the sixth grade, stated she was asked, "Do you want a ride?" by the man leaning out the passenger window of a green car. Upon hearing the question, she ran away from the car. On the day of the hearing, Elizabeth did not recognize defendant in the courtroom.
Stephanie Putzstuck, an 8 1/2-year-old fourth-grader, did identify defendant at the hearing and stated defendant reached out of the car and touched, but did not grab, her arm. Rebecca Hirth, 9 1/2 years old and a fourth-grader, also testified she and Stephanie were touched by defendant. Both Putzstuck and Rebecca testified that after the incident they ran to the Hirth residence and that the car turned around in the Hirth driveway and drove away in the opposite direction.
Betty Hirth, the grandmother with whom the Hirth grandchildren lived, testified she walked out of her garage between 5 and 6 p.m. on July 7, 1982, heard talking and then a scream from down the road. A green Buick LaSabre then turned around in her driveway with one man hanging out the window. Her daughter followed the car and obtained its license plate number. In about one-half hour, the sheriff's deputy phoned the Hirths and requested them to come to the Kishwaukee Forest Preserve. There, Betty Hirth identified defendant as one of the men in the car, although she thought defendant was the driver of the car.
Winnebago County sheriff's deputy David Fiduccia went to the forest preserve on July 7, 1982, pursuant to a radio transmission, and in conjunction with Cherry Valley police department officers located a Chevrolet automobile. He found defendant sitting on a picnic table 10 to 15 feet from the river and found defendant's brother lying on his back naked along the shore. The two were apparently talking. Fiduccia asked defendant to have his brother come out of the river. Defendant then "staggered" toward the river and put one foot in the water before police officers grabbed him. Fiduccia testified Becky Hirth and Stephanie Putzstuck identified the two men at the forest preserve. Defendant testified he was at the forest preserve on July 7, 1982, but denied talking to or seeing any girls. He did admit traveling in a car on Blackhawk Road.
While defendant asserts the trial court erred in denying him a fitness hearing, the State contends this court need not decide that issue because the record discloses no bona fide doubt about defendant's fitness. Fitness for trial requires that a defendant have the ability to understand the nature and purpose of the proceedings and to assist in his own defense.(People v. Murphy (1978), 72 Ill.2d 421.) The law presumes a defendant to be fit (Ill. Rev. Stat. 1981, ch. 38, par. 104-10), and the determination as to whether a bona fide doubt has been raised rests largely within the trial court's discretion. (People v. Murphy (1978), 72 Ill.2d 421.) A defendant can be fit for trial although his mind may be otherwise unsound. (People v. Lang (1979), 76 Ill.2d 311; People v. Murphy (1978), 72 Ill.2d 421.) The mere fact that a defendant has suffered some mental disturbance or in the past has required psychiatric treatment does not necessarily raise a bona fide doubt as to his fitness. (People v. Green (1983), 116 Ill. App.3d 815, 452 N.E.2d 767.) The above rule is especially true when a defendant manifests to the court and to his counsel a coherence and lucidity inconsistent with a claim of unfitness. People v. Green (1983), 116 Ill. App.3d 815, 452 N.E.2d 767.
The State cites as the best evidence of defendant's fitness his direct and cross-examination testimony concerning his actions on the day of the incident. His trial attorney stated that "my client does want to tell the court that he did not do that." On direct examination, defendant stated he had heard all the prior testimony in the revocation proceeding and that he remembered "very clearly" July 7, 1982, the date of the incident. He remembered he had gone to the Kishwaukee Forest Preserve and on cross-examination admitted he drove down Blackhawk Road to the forest preserve. Defendant testified his brother was driving the car and denied seeing or speaking with any girls or children. At the forest preserve, defendant said his brother took his clothes off and put the clothes on the ground. Defendant denied running from the police officer at the forest preserve, but instead stated he went to the river to help someone get his inner tube. While at some points during defendant's testimony he was not completely responsive to the questions asked, he did demonstrate awareness of the day in question and recalled his own actions and the actions of others.
Another factor suggesting defendant's fitness is the absence of any statements by his counsel in the record that defendant was unable to cooperate in his defense. Statements by counsel of his client's uncooperativeness are indicative of unfitness. (People v. Johnson (1984), 121 Ill. App.3d 859, 460 N.E.2d 336.) In contrast to the absence of uncooperativeness here, the court in Johnson found a bona fide doubt existed based in part upon the fact that counsel alerted the court that the defendant would not cooperate with him, that the defendant had not spoken to him for a long time, and that defendant "only smiled when counsel tried to explain his rights and other aspects of the case to him." (121 Ill. App.3d 859, 861, 460 N.E.2d 336, 338.) Even if defendant's counsel did assert defendant's uncooperativeness, that claim would be somewhat belied by defendant's subsequent decision to testify in the instant case.
A defendant's demeanor at trial also is relevant to a determination of his fitness. (People v. Johnson (1984), 121 Ill. App.3d 859, 460 N.E.2d 336.) The only comment of the trial judge regarding defendant's fitness is his statement that defendant was "retarded" or "borderline retarded." The trial judge also made special efforts to direct defendant toward the proper exit after court proceedings terminated and admonished defendant not to speak in court without consulting first with his attorney. These facts could be construed to imply that the trial judge believed defendant was not able to understand the nature of the court proceedings without at least some aid.
The primary evidence of defendant's unfitness was from two psychiatrists who were ordered by the court to examine defendant to ascertain whether he was fit to stand trial. Graybill stated he examined defendant on July 22, 1982. Defendant then knew that he had been confined to the Menard psychiatric section for 15 years and had been given a conditional discharge. Graybill decided defendant was not oriented as to time, was distractable and was confused regarding the offense preceding his confinement, did not know why he was in jail or the name of his attorney and had "absolutely no knowledge of the court process in spite of the fact that he had been to court previously." Based upon these observations, Graybill concluded defendant was unfit to stand trial. A similar conclusion was reached by Hamann, who stated that defendant was distractable, was not oriented to the correct time and date, and took a long time to recall events and to answer questions. Hamann also stated defendant "could not explain the various functions in the court process despite his previous court appearances." Therefore, Hamann concluded "with reservation" that defendant was not fit to stand trial.
Also indicative of defendant's unfitness is his prior treatment for medical disability. (See People v. Johnson (1984), 121 Ill. App.3d 859, 460 N.E.2d 336.) However, defendant has a long history of treatment for his mental condition; this factor is less suggestive of defendant's fitness than are his demeanor at trial and his cooperativeness with counsel. Those two factors are indicative of defendant's fitness at the time of trial, while defendant's history of mental treatment is only truly indicative of his mental condition in the past.
• 1 Considering the above factors, we conclude the record indicates that a bona fide doubt was raised about defendant's fitness. The findings of the two psychiatrists were that defendant was unfit for trial. The State's citation to People v. Thomas (1969), 43 Ill.2d 328, for the statement that psychiatric reports are not conclusive even as to the existence of a bona fide doubt is inapposite. There, the supreme court held that the defendant was erroneously denied a fitness hearing, even though the psychiatric report indicated he was fit to stand trial. Since the ...