Appeal from the Circuit Court of Kane County; the Hon. Paul W.
Schnake, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Defendant, Carl Lucas, was charged by indictment with rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1(a)); deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3(a)), attempted murder (Ill. Rev. Stat. 1979, ch. 38, par. 8-4(a)), and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)). A jury found defendant guilty of armed robbery, aggravated battery, deviate sexual assault, and rape. Judgment was entered on those verdicts, and defendant was subsequently sentenced to 16 years' imprisonment. A timely notice of appeal was filed.
In this court defendant raises four issues which we choose to treat as three: (1) whether the trial court abused its discretion in determining that no bona fide doubt existed as to defendant's fitness to stand trial; (2) whether the defendant's suppression motions were improperly denied; and (3) whether the trial court's handling of an alleged discovery violation constituted reversible error.
For the sake of brevity, we will summarize those facts necessary to provide a background for the issues raised on appeal and discuss other facts as they are pertinent to the arguments raised herein.
Prior to trial, the defense moved for the appointment of experts to evaluate defendant's fitness to stand trial. The court ordered that defendant be evaluated by the Kane County Diagnostic Center (Center). At a subsequent hearing conducted to assess whether a bona fide doubt existed as to defendant's fitness, the testimony of Roger Hughes, a staff psychologist with the Center, revealed his evaluation of defendant as a result of three tests which Hughes had administered to defendant: the Wechsler Adult Intelligence Scale Revised, the Raven Progressive Matrices, and the Bender Visual-Motor Gestalt Test. The test results suggested that defendant's verbal, nonverbal, and conceptual abilities were generally impaired, meaning that 95% of the population in defendant's age group (17 years old) performed better on these tests than defendant did.
According to Hughes, defendant possessed an I.Q. of 72, which placed him in the borderline mental defective area, the least severe form of mental retardation. Hughes admitted on cross-examination that based on the most recent Diagnostic and Statistical Manual (DSM 3), a recognized treatise in the fields of psychology and psychiatry, mental retardation was cut off at 70. The witness acknowledged that defendant could perform some work under supervision and that, as an adult, he could achieve social and vocational skills adequate for minimal self-support. Hughes did not specifically opine whether defendant was fit or unfit to stand trial.
Dr. Alan Rosenwald, a clinical psychologist, testified that his initial evaluation of defendant was based on an interview he conducted with defendant. As a result of his clinical evaluation, Rosenwald diagnosed defendant as at a borderline mental retardation level. In a written report of this evaluation Rosenwald described defendant as "fit." At the hearing the witness retracted this finding, explaining that when he had used the word "fit," he was referring to defendant's ability to engage in simple conversation with the witness. Additionally, Rosenwald stated that there are relative degrees of fitness, that defendant was fit only within a very limited sense, and that perhaps he should not have used the word "fit." Rosenwald's testimony revealed that he was experienced in making fitness evaluations and that he was very familiar with the fitness statute (Ill. Rev. Stat. 1981, ch. 38, par. 104-10) and the legal definition of "fitness" therein. The witness also stated that he knew he was to evaluate defendant's fitness to stand trial.
The State moved for a directed finding, arguing that defendant had not met his burden in raising a bona fide doubt as to defendant's fitness. After hearing arguments and reviewing cases submitted by both parties, the trial court granted the State's motion.
Concurrent with the fitness motion were defendant's motions to suppress both a photographic and a physical identification and the fruits of these identifications. At hearings conducted on the motions, various police officers and investigators testified as to the conditions under which defendant was photographed and subsequently asked to appear in a physical lineup. The testimony revealed that, at all times, the officers made it clear that defendant did not have to accompany them to the police station, that he did not have to consent to being photographed, that he did not have to consent to appear in a physical lineup, and that he could have an attorney present at the time of the lineup, if he so desired. The witnesses related that they made certain defendant understood his rights, often restating them in simple terms and asking defendant to explain the rights back to them.
In making its findings on defendant's motions to suppress, the court emphasized that the common factor in these motions, as well as in all others before the court, was defendant's mentality and his ability to understand. The court pointed out that it had already previously ruled on this factor. Having thus commented, the court found nothing improper in the activity of the police officers and, consequently, no deprivation of defendant's lawful rights. Accordingly, the court denied the suppression motions.
At trial, defendant moved to strike the testimony of the State's witness, Mohammed Tahir, an expert serologist, when it was revealed on cross-examination that one of the tests run on the blood samples taken from a blood-stained shirt seized from defendant was not included in Tahir's report tendered to defense counsel pursuant to discovery. Defense counsel was given a recess and Tahir's handwritten notes on the test run, but not reported, in order to permit counsel to discuss the notes by phone with defendant's expert in California. Dr. Tahir offered to phone defendant's expert to explain tests performed and to answer any questions the expert might have. Additionally, the State stated that it would hold Tahir for the remainder of the week or the following week, if necessary, to permit defendant to complete his cross-examination, although Tahir was scheduled to leave town by the following morning. Defense counsel ignored these offers, repeating that Tahir's testimony should be stricken or cut off. The court denied the motion to strike Tahir's testimony and then asked defense counsel if he wanted to accept the State's offers. Defense counsel rejected the offers, stating he had no further questions under the circumstances.
At the conclusion of the trial defendant was found guilty of armed robbery, aggravated battery, deviate sexual assault, and rape. The jury was hung on the attempted murder count. The court declared a mistrial as to that count, accepted the verdicts on the other counts, and subsequently sentenced defendant to 16 years' incarceration. This appeal followed.
• 1 Defendant first contends that the trial court abused its discretion in determining that no bona fide doubt existed as to defendant's fitness to stand trial. To stand trial a defendant must have the ability to understand the nature and purpose of the proceedings against him and the ability to assist in his defense. (Ill. Rev. Stat. 1983, ch. 38, par. 104-10.) The issue of defendant's fitness may be raised before, during, or after trial by the defense, the State, or the court (Ill. Rev. Stat. 1983, ch. 38, par. 104-11(a); People v. Martinez (1979), 78 Ill. App.3d 590, 595, 396 N.E.2d 1359), but a defendant is not entitled to a fitness hearing until the trial court receives notice of facts which raise a bona fide doubt as to his fitness to stand trial. (People v. McCullum (1977), 66 Ill.2d 306, 312, 362 N.E.2d 307.) Whether a bona fide doubt has been raised rests within the discretion of the trial court (People v. Martinez (1979), 78 Ill. App.3d 590, 595, 396 N.E.2d 1359), and its determination will not be disturbed absent a clear showing of an abuse of discretion. People v. Willis (1978), 64 Ill. App.3d 737, 740, 381 N.E.2d 799.
Three months after defendant was charged, defense counsel moved to have defendant's fitness to stand trial evaluated by the Kane County Diagnostic Center. The motion was granted, and the written report of Dr. Alan Rosenwald, a clinical psychologist, was subsequently filed with the court. That report indicated defendant was fit. In spite of Rosenwald's appraisal of defendant, defense counsel sought a hearing to assess whether or not a bona fide doubt of defendant's fitness existed. Counsel apparently believed that Rosenwald's written report was "internally inconsistent" and that Rosenwald intended to change his opinion. The court held a hearing at which Roger Hughes, a staff psychologist, and Dr. Alan Rosenwald, both of the Kane County Diagnostic Center, testified. As a result of this ...