Appeal from the Circuit Court of De Kalb County; the Hon. John
A. Leifheit, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, James C. Schwab, was convicted in the circuit court of De Kalb County of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1) at the conclusion of a bench trial. He was sentenced to a term of 22 years' imprisonment.
On appeal, defendant raises two issues: (1) whether the trial court erred when it failed to raise sua sponte the issue of defendant's fitness to stand trial in violation of section 104-11(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 104-11(a)) thus depriving defendant of his sixth amendment right to counsel; and (2) whether the trial court erred in failing to order a competency examination before allowing defendant's mother, the only occurrence witness beside the defendant, to testify where it was known that she had suffered three strokes between the time of the occurrence and the time of trial.
Defendant testified in detail about the day and evening of the shooting, May 25, 1984. He stated that he arose at 8:30 a.m. and prepared and administered his mother's morning injection. He left the house at noon or 12:30 p.m. to go to the Scalawag Restaurant where he had three or four whiskey manhattans and lunch, returning home at 2:15 p.m. He took his mother shopping at the Eagle Food Store. He went to the Illinois Job Service to see about temporary employment, and he took a copy of his resume with him. He thereafter retrieved his mother at Eagle, but before doing so, he had his brakes checked at Midas Muffler. He then took his mother home.
When he arrived at home he met his sister, Georgianna Fredrick, also known as Jigger. He testified in detail about his conversation with Jigger. It related to the preparation of the family's possessions for dispersal and the readying of the house for sale. Defendant lived with his mother, but his mother had decided to move to a nursing home, necessitating the breaking up of the family residence.
At about 5:15 p.m. defendant again left the house for the Coach Room Bar and had three or four whiskey manhattans. After 1 1/2 to 2 hours, he drove to El Matador where he had perhaps four more manhattans and something to eat. It was the regular fish fry night. He had to order before they closed at 10 p.m. He then returned to his mother's house.
He testified that he drove from El Matador to his mother's house and parked the car in the garage. He testified that he traversed the driveway to the public sidewalk and then walked up to the private entrance, the front door. Upon entering, he saw his mother and Jigger. His mother was preparing vegetables. Jigger, he testified, was moving back and forth between the living room and the kitchen. He then described in detail the manner in which Jigger was cleaning the glass of an empty curio cabinet. He testified as to the placement of items of furniture in the house and where the principals were in relation to the furniture. His mother and Jigger appeared angry at him and irritated with him.
He recalled asking Jigger if he could help and she answered negatively. She sat cross-legged on the floor to polish the glass shelves. He asked where her son Blair was. She retorted "He's my kid, you are an alcoholic, you cannot take care of your own kids." His mother was also in the room.
He testified that he then walked over to Jigger to try to tease her; he nudged her buttocks with his toe. She did not respond. The record then discloses the following colloquy:
"Q. And what actually did she do?
A. She backhanded me. I was struck in the area of the upper thigh and groin. I retorted her [sic] by slapping her in the face.
Q. Were you injured by this?
Q. After you had struck her, what did you do?
A. We This happened so quickly, and those are my last recollections prior to to the incident with the gun in which I shot her.
Q. Do you recall going up the stairs?