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October 19, 1995


Appeal from the Circuit Court of Mason County, the Hon. David K. Slocum, Judge, presiding.

The Honorable Justice McMORROW delivered the opinion of the court: Justice Miller, dissenting: Chief Justice Bilandic and Justice Heiple join in this dissent.

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

In this appeal we revisit the circumstances under which a defendant who is being medicated with psychotropic drugs is entitled to a fitness hearing pursuant to section 104-21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-21(a) (West 1992)). Recent precedent of this court has construed section 104-21(a) as conferring upon defendants, as a matter of entitlement, the right to a mental competency hearing if they are being given psychotropic drugs under medical supervision during the time of their prosecution or sentencing. ( People v. Brandon (1994), 162 Ill. 2d 450, 205 Ill. Dec. 421, 643 N.E.2d 712; People v. Gevas, 166 Ill. 2d 461, 1995 Ill. LEXIS 101, 211 Ill. Dec. 511, 655 N.E.2d 894 (June 22, 1995), No. 75604.) In the case at bar, the record reveals that defendant was being treated with the antipsychotic drug Thorazine while he was in jail awaiting trial. However, the record contains very little additional information regarding the time periods and other circumstances under which the drug was administered to defendant. Although defendant's brief in this appeal refers to his receiving a regular dosage of 100 milligrams, taken during the time in which defendant entered his guilty plea and requested to be sentenced to death, such information cannot be verified from the record filed in this court. Accordingly, this court cannot meaningfully review the threshold issue of whether defendant's receipt of psychotropic drugs entitled him to a fitness hearing pursuant to section 104-21(a). Because of the importance of this issue we remand for further proceedings in which the facts relevant to defendant's usage of psychotropic medication may be obtained.


On February 20, 1992, Gertrude Nussel, an 85-year-old woman, was slain in her home in Havana, Illinois. Defendant, Scotty Kinkead, and his companions, LesliePalmer and Tara Poppenhager, were arrested a week later. They were charged with various offenses including murder, armed robbery, residential burglary, and home invasion. Leslie Palmer entered a "blind," or open, plea of guilty on one count of intentional murder, as well as other counts alleging murder, home invasion and residential burglary. He was sentenced to death. A majority of this court affirmed his convictions and sentence. ( People v. Palmer (1994), 162 Ill. 2d 465, 205 Ill. Dec. 506, 643 N.E.2d 797.) Poppenhager received a five-year prison sentence in exchange for testifying against defendant and pleading guilty to the lesser charges of residential burglary and concealing a homicide.

Before defendant's trial, the State offered to forgo seeking the death penalty in exchange for defendant's plea of guilty to four of the six counts pending against him, including one count of felony murder based on aimed robbery. Under this plea, defendant would not be admitting to intentionally killing the victim. Defendant accepted the plea agreement. However, a few days before the negotiated plea was to be entered, and apparently without consulting with counsel, defendant announced his intention to have the court sentence him to death. On October 19, 1992, during what was to have been a pretrial conference in which the negotiated plea was to be presented to the court, defense counsel informed the court that defendant had changed his mind regarding the plea agreement and desired to plead guilty to the charges without availing himself of the State's agreement not to seek the death penalty. Defendant also told defense counsel he did not want her to call the mitigation witnesses she had planned to call on his behalf.

The court asked defense counsel if she believed defendant to be competent to make such decision. She responded in the affirmative, citing defendant's cooperationwith her in preparing for trial and the lack of any indication he suffered from a mental illness that would prevent him from making free and independent decisions. She informed the court that defendant had participated in and agreed with the decision to seek the negotiated plea agreement that would spare his life. Counsel characterized defendant's decision as a mistake of huge proportions. Counsel also expressed her opinion that defendant did not believe he would be able to endure a long prison term or natural life imprisonment and therefore desired the death penalty.

The court inquired of defendant whether he had any concerns over his counsel's representation and defendant said, "She did a great job." The court noted that defendant's changed intent was tantamount to entering an open plea to all of the counts before the court. The court then explained the State's burden at trial and the procedures that would be followed if a trial were held before a jury. The court inquired into defendant's education and ability to read and write. Next, the court commented that defendant appeared able to comprehend the proceedings and work with counsel. Defendant stated that he could understand what was happening. He said he wanted the death penalty because he felt it would be better for him than serving a long sentence in prison. The court offered defendant more time to consider the matter, which he twice declined. Toward the end of the proceedings on October 19, 1992, defendant accepted the court's offer for more time to consider his decision and the matter was continued to October 21, 1992.

When the proceedings resumed, defense counsel reiterated for the record that she had strongly advised defendant not to repudiate the negotiated plea agreement and felt it was "a terrible mistake and absolutely wrong decision." The court asked defendant whether hebelieved he was under any kind of mental disability and defendant answered in the negative. Defense counsel also stated her belief that defendant was competent to proceed with his plea. Counsel based her opinion on conversations with defendant as well as the fact that he had undergone a psychological evaluation several weeks earlier, which apparently did not reveal a mental condition of the type that would interfere with his ability to comprehend his criminal prosecution. In response to the court's inquiry, defendant stated his belief that his counsel had done an adequate job and spent sufficient time on his case. The court then announced its opinion that, based on its observations of defendant in the courtroom and defendant's expressed intentions, defendant was "certainly competent to proceed" to the entry of the guilty plea.

The counts of the indictments to which defendant pleaded guilty included one count of first degree murder based on the killing of the victim during the course of armed robbery, armed robbery, residential burglary, and home invasion. The State dismissed two other counts of first degree murder, one based on an intent to kill and the other based on killing in the course of residential burglary. The court then explained the effect of a jury waiver and inquired whether defendant understood that he was subject to a possible sentence of death by rejecting the State's prior plea agreement. The court asked, "Why are you doing that Mr. Kinkead?" Defendant said, "I feel it is right for me."

The court outlined the sentencing procedures and told defendant that even with the guilty plea there would be a "full-fledged sentencing hearing" and the State would bear the burden of proving death eligibility and presenting evidence in aggravation. The court reviewed the sentencing options and defendant indicated his understanding of the court's admonitions. The Statethen offered the factual basis for the plea of guilty, which may be briefly stated.

The victim, Gertrude Nussel, was killed in her home in the evening of February 20, 1992. The cause of death was massive hemorrhaging by reason of a slash/stab wound to her throat. Other injuries to the throat area indicated probable strangulation. Leslie Palmer, defendant, and Tara Poppenhager were arrested approximately one week after the homicide. Both Palmer and defendant gave statements admitting their presence in the victim's home and their participation in the crimes charged, but each claimed that the other had used the knife to cut Nussel. Palmer admitted using choke holds, or "sleeper holds," to subdue the victim. Scrapings taken from under the victim's fingernails were not consistent with defendant's blood type. Poppenhager admitted having knowledge of the robbery plan and driving the car, but denied involvement in the murder. She was not present at Nussel's house and did not witness what occurred. According to Poppenhager, defendant admitted to her on three occasions that he had caused the victim's death.

Following the formal entry of defendant's plea of guilty and defendant's jury waivers, the court ordered a presentencing investigation and report and continued the case for sentencing to November 23, 1992. At the sentencing hearing, the key issue regarding defendant's eligibility for the death penalty was whether defendant, in the course of the armed robbery, intended to cause the victim's death or knew that his actions created a strong probability of death or great bodily harm. To establish defendant's intent, the State presented the testimony of Tara Poppenhager, who testified regarding her knowledge of the events leading to and following the homicide. She testified that defendant had told her, in the days following the murder, that he had cut the victim's throat and, when Poppenhager protested thatthey were going to get caught, said he would kill her if she did not "shut up about it."

Poppenhager conceded that she had not told the police, in either of her two statements taken within a week of the murder, that defendant admitted cutting the victim's throat or that he had threatened Poppenhager. She admitted that she had lied to the police about certain matters but explained her conduct as resulting from fear of defendant. Poppenhager, who originally had been charged with the same offenses as Palmer and defendant, also admitted that several months after her arrest, while she was in jail, she had been offered a plea agreement contingent upon her testifying against defendant. Under the agreement, she would plead guilty to residential burglary and concealing a homicide and the State's Attorney would recommend a five-year prison term.

Defendant's high school teacher, who had taught in Astoria's schools for 30 years, testified regarding Poppenhager's reputation for truth in the community, stating that "she is not really ...

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