APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
513 N.E.2d 904, 160 Ill. App. 3d 781, 112 Ill. Dec. 295 1987.IL.1241
Appeal from the Circuit Court of Cook County; the Hon. Kenneth Gillis, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. RIZZI and WHITE, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Defendant Paul Murphy and his brother, Wayne Murphy, were convicted of deviate sexual assault and aggravated kidnapping after a bench trial in the circuit court of Cook County. The trial court sentenced defendant to concurrent terms of 12 years on each conviction. On appeal, he contends: (1) he was denied the effective assistance of counsel; (2) the trial court erred in finding him fit to stand trial; and (3) the conduct of the fitness hearing was improper.
Trial commenced in this cause on December 12, 1983. On that date, the arresting police officer and the victim testified for the State. Defendant was incarcerated in the Residential Treatment Unit of the Cook County Department of Corrections (the Department). Sometime between December 12 and December 21, he attempted suicide. Thereafter, his trial counsel, an assistant public defender, moved for a behavioral clinic examination to determine defendant's fitness to stand trial. Dr. Gilbert Bogen, the first psychiatrist to examine defendant, found him unfit to stand trial on January 19, 1984. The second, Dr. Albert Stipes, found him fit for trial "with medication" on February 10. The trial court conducted a fitness hearing on April 9, 1984.
At the hearing, defendant's mother testified that he had been hospitalized in the psychiatric ward of the Long Beach, California, Veteran's Hospital for two years after slashing his wrists. After his release from that hospital, he took an "overdose" and was hospitalized in the psychiatric ward of the Hines Veteran's Hospital in Maywood, Illinois, for one year. Dr. Bogen testified that, according to defendant, he had saved an antidepressant drug being given him and medications being given other inmates in the RTU and then attempted suicide by consuming all of these medications together. After examining defendant, Dr. Bogen concluded that he could not cooperate as of the date of the examination with his counsel because of a major depression with suicidal potential. On cross-examination, Dr. Bogen admitted that a failure to take his medication properly could have affected defendant's mental condition on January 19. He also admitted defendant's mental condition could have been affected by his taking his medication properly between January 19 and February 10. He also admitted that he did not have any of defendant's medical records when he examined him, that he learned of defendant's past suicide attempts only from him, and that he did not know defendant's case had gone to trial when he attempted suicide in December.
Dr. Stipes testified for the State. He concluded, after examining the medical records of defendant's treatment at various Chicago area hospitals, that his suicide attempts resulted from anger and frustration and were at times "manipulative." He was of the opinion that the suicide attempt in December was the result of stress and defendant's life circumstances rather than the result of an "endogenous" depression, which is biological in nature and has little to do with life circumstances. Dr. Stipes diagnosed defendant as suffering from a mixed personality disorder with features of "borderline and anti-social." He concluded defendant was "fit to stand trial with medication." On cross-examination, Dr. Stipes admitted that if defendant was not taking his medication in December it could have affected his fitness to stand trial at that time. He also admitted defendant could have been unfit when Dr. Bogen examined him in January if the medication prescribed for him after his suicide attempt had not gotten his mental problems under control by that time, in contrast to defendant's condition when he examined him.
When his trial counsel argued during closing argument that there was a bona fide doubt of defendant's fitness to stand trial when it commenced, the trial court asked whether he had received "any overt signs and lack of cooperation" and noted that he had not brought any to its attention. Trial counsel responded that he thought it was important that when he visited defendant it had been in the RTU of the Department. He further informed the court that when he visited defendant he had a few problems communicating with him "as to his defense" and that, after talking with Wayne Murphy, he realized there was a "problem" with defendant. When the court again noted that no problems were so serious that defense counsel brought them to its attention, defense counsel responded:
"Judge, I thought that after the State witness testified, Mr. Murphy . . . would be able to communicate better with me as far as defense theory. . . .
Judge, most of my information . . . was gleaned through Mr. Wayne Murphy . . . not [defendant] because my Discussions with [him], Judge, were unfruitful. And maybe due to the fact that he was in the R.T.U. Unit and he was not taking his medication."
The trial court relied on the statutory presumption of fitness and its failure to observe, or of any party to bring to its attention, any evidence that defendant was unwilling or unable to cooperate with counsel during the earlier proceedings to find that he had been fit to stand trial when it commenced. The court found "totally speculative" the argument that when the trial began defendant was unfit because he had not been taking his medication. Relying on Dr. Stipes' testimony that defendant was ...