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09/05/96 PEOPLE STATE ILLINOIS v. MARY L. JONES

September 5, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARY L. JONES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Randolph County. No. 94-CF-27. Honorable Jerry D. Flynn, Judge, presiding.

The Honorable Justice Welch delivered the opinion of the court: Kuehn and Chapman, JJ., concur.

The opinion of the court was delivered by: Welch

The Honorable Justice WELCH delivered the opinion of the court:

Defendant Mary L. Jones appeals from her conviction and sentence for the first-degree murder of her two-month-old son. She raises two issues on appeal: (1) whether her conviction must be reversed and the cause remanded for a new trial because the trial court did not conduct a hearing to determine defendant's fitness to stand trial upon learning that she had been administered psychotropic medications while in jail awaiting trial; and (2) whether her conviction must be reversed and the cause remanded for a new trial because the cause proceeded to a bench trial without defendant having executed a written jury waiver. Because we find the first issue to be dispositive of defendant's appeal, we will not address the second issue relating to the need for a written jury waiver. For reasons which follow, we reverse defendant's conviction and sentence and remand this cause for a new trial.

Defendant was charged by information filed in the circuit court of Randolph County on March 8, 1994, with the first-degree murder of her two-month-old son. She was arrested and remained in jail pending trial.

On April 4, 1994, the trial court granted defendant's request to appoint Daniel J. Cuneo, a licensed psychologist, as an expert witness to assist in her defense. On June 17, 1994, Dr. Cuneo testified in support of defendant's motion to suppress her confession. During his testimony, Cuneo mentioned that defendant had been administered, by the staff of the Randolph County jail while she was incarcerated awaiting trial, the drugs lorazepam, "a light tranquilizer" to reduce her agitation, and dilantin, "to control her seizures." He also testified that defendant suffers from a personality disorder and that she has twice attempted suicide, most recently while incarcerated in the Randolph County jail awaiting trial on this case. She also suffers from transitory auditory hallucinations, in which she hears her father's voice speaking reassuringly to her. Defendant also has a very low I.Q. Cuneo was never asked about and never expressed an opinion on defendant's fitness to stand trial.

Following a bench trial held from July 11 to July 15, 1994, defendant was found guilty of first-degree murder and sentenced to 35 years in the Department of Corrections.

Defendant argues that she is entitled to a new trial because the trial court failed to hold a hearing on the issue of her fitness to stand trial, after learning that she had been receiving psychotropic medications shortly before trial. She argues that such a hearing is required by section 104-21(a) of the Code of Criminal Procedure of 1963. 725 ILCS 5/104-21(a) (West 1992). At the time of defendant's trial, that section provided in pertinent part that a "defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication." 725 ILCS 5/104-21(a) (West 1992).

This statutory provision, and the issue presented in this appeal, have been the subject of numerous recent Illinois Supreme Court opinions. Three subissues are presented in this appeal and were discussed in these supreme court cases: whether the issue can be waived; the need for a fitness hearing; and the appropriate remedy for the error.

In People v. Brandon, 162 Ill. 2d 450, 205 Ill. Dec. 421, 643 N.E.2d 712 (1994), defendant had been taking psychotropic medications under medical direction prior to and during his trial and sentencing. Nevertheless, his counsel failed to request a fitness hearing pursuant to section 104-21(a). Respecting the issue of waiver, our supreme court stated:

"Section 104-21(a) [citation] evinces a recognition by the General Assembly that psychotropic medication is an important signal that a defendant may not be competent to stand trial. If a defendant on such medication is not fit to stand trial, he can scarcely be expected to raise the question of fitness in the first instance. Where a defendant's capacity is the issue in question, it is anomalous to even consider concepts of waiver." Brandon, 162 Ill. 2d at 457.

Respecting the question of the need for a hearing, the court held:

"A trial court may have no obligation to conduct a fitness hearing sua sponte where it does not know that a defendant is on medication, no request for a hearing is made until after trial, and there has been no indication to the trial court that the defendant might be unfit. Where, however, a proper request for a fitness hearing is made by a defendant who is receiving psychotropic or other medications under medical direction, the statute expressly provides that he is 'entitled' to receive one." Brandon, 162 Ill. 2d at 459.

The court held that once section 104-21(a) is invoked, whether to hold a fitness hearing is not discretionary with the court and the court must hold such a hearing. Brandon, 162 Ill. 2d at 461. In Brandon, the court found that the proper remedy for the denial of defendant's right to a fitness ...


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