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04/24/97 PEOPLE STATE ILLINOIS v. RAYMOND BURGESS

April 24, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
RAYMOND BURGESS, APPELLANT.



The Honorable Justice Miller delivered the opinion of the court. Justice Harrison, dissenting. Justice Freeman joins in this dissent.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

The defendant, Raymond Burgess, was convicted of first degree murder and aggravated battery of a child following a jury trial in the circuit court of Henry County. At a separate sentencing hearing the same jury found the defendant eligible for the death penalty and further determined that there were no mitigating circumstances sufficient to preclude imposition of that sentence. The defendant was accordingly sentenced to death for his conviction for first degree murder, and he received a sentence of 30 years' imprisonment for the aggravated battery conviction. The defendant's execution has been stayed pending direct review of the case by this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rs. 603, 609(a).

The evidence presented at trial may be stated briefly. The defendant brought the victim, 3 1/2 -year-old Matthew Mote, to Illini Hospital, in Silvis, around 5 p.m. on September 24, 1994. Emergency room personnel attempted to resuscitate the child, but their efforts were unsuccessful. The attending physician, Dr. SCoacLpring partially off the bed frame, but they noticed toy cars sitting on the railing of the frame, dust on the cars and bed frame, and cobwebs around the frame and the spring. All this suggested to the officers that the box spring had been in that condition for some time. In the bathroom, officers found a rubber spatula, which was clean. The State also introduced testimony from a number of persons who witnessed prior acts of abuse by the defendant toward the victim.

An autopsy was conducted on September 25, 1994, by Dr. Mary Jumbelic at Proctor Hospital, in Peoria. Dr. Jumbelic found evidence of 120 separate injuries to the victim's body. The injuries were primarily bruises, and they were located on the child's face, head, neck, chest, abdomen, genital area, back, buttocks, and arms and legs. One particularly large bruise was found on the child's abdomen. An internal examination revealed that the child had sustained a tear to his liver and to his mesentery. Dr. Jumbelic concluded that the victim died as a result of extensive internal bleeding, in both the cranial and abdominal regions, caused by blunt trauma. Dr. Jumbelic believed that the victim could not have survived more than an hour after incurring the injuries, and that the injuries were not the result of accident.

The autopsy report and photographic evidence in the case were also examined by Dr. Lori Frasier, who testified as an expert in the area of child abuse. Dr. Frasier, a pediatrician, was an assistant professor and director of the child protection and advocacy program at the University of Missouri, Columbia. From her analysis, Dr. Frasier concluded that the victim died as a result of child abuse.

The defense presented testimony from a number of witnesses who described acts of abuse by the child's mother, Deena Kent, toward her son. The defendant also testified at trial. He recounted the events occurring on the day of Matthew's death, and he described his efforts to clean the child after Matthew had soiled his underwear. The defendant said that on the day of the child's death, Matthew had fallen from a stool, had fallen down stairs, had fallen out of a tree, had gotten into a fight with two other boys, and had fallen in the bathtub. The defendant admitted that he had punched the child several times, but he denied causing the victim's death.

In rebuttal, one of the investigating officers testified that the defendant had not said, during questioning, that Matthew had fallen down stairs or from a tree or had been in a fight with other children.

At the close of evidence, the jury found the defendant guilty of two counts of first degree murder and one count of aggravated battery of a child. The matter then proceeded to a capital sentencing hearing. At the first stage of the hearing, the State presented additional evidence showing that the victim's anus was dilated when he was brought to the emergency room and, moreover, that human seminal fluid was present in the anal cavity. The State sought to establish the defendant's eligibility for the death penalty on the basis of two independent statutory aggravating circumstances: commission of the murder in the course of another felony, in this case, aggravated criminal sexual assault, and the murder of a child in a brutal and heinous manner (720 ILCS 5/9-1(b)(6), (b)(7) (West 1994)). At the conclusion of the first stage of the hearing, the jury found the existence of both statutory aggravating circumstances.

At the second stage of the capital sentencing hearing, the State presented testimony of previous acts of violence committed by the defendant. A woman who had formerly lived with the defendant described two incidents in which the defendant had threatened her with a handgun. One of the woman's two daughters corroborated her mother's account and also testified that the defendant had often spanked her sister. In addition, the parties stipulated that the defendant was convicted of first degree forgery in Georgia in 1987 and received a sentence of three years' probation for that offense.

In mitigation, the defendant presented favorable testimony from a number of persons, including former neighbors of the defendant, a former employer, and the defendant's father. These persons described the defendant as helpful and generous and said that the defendant was kind to children.

At the conclusion of the sentencing hearing, the jury found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. Accordingly, the trial judge sentenced the defendant to death. The judge later sentenced the defendant to an extended term of 30 years' imprisonment on his conviction for aggravated battery of a child.

I

Following the submission of the defendant's initial brief, this court granted the defendant's motion to stay the normal briefing schedule and to remand the cause to the circuit court of Henry County for a supplementary hearing. According to the order granting the motion, this was done for the "limited purpose of determining whether defendant ingested psychotropic medication at or near the time of his trial and sentencing." Our order further stated, "The circuit court shall conduct such proceedings as it deems necessary and report its findings to this court within 60 days of this order." The trial judge conducted the hearing in March 1996 and later submitted written findings to us. Before this court, the parties have submitted briefs on the issues raised by the remand proceeding, as well as on issues pertaining to the defendant's trial and sentencing hearing.

The evidence presented at the hearing revealed that Dr. Robert Edwalds, a psychiatrist, prescribed three different drugs for the defendant-doxepin, trazodone, and lorazepam-all of which are classified as psychotropic agents. Dr. Edwalds prescribed these drugs to assist the defendant in sleeping. According to records maintained by the Henry County jail, the defendant received a single dose of doxepin at bedtime on a daily basis from October 21, 1994, to December 10, 1994. The defendant received a single dose of trazodone at bedtime on a daily basis from November 4, 1994, until March 28, 1995. The defendant received a single dose of lorazepam at bedtime on a daily basis from January 13, 1995, until February 22, 1995, and again from March 8, 1995, until March 27, 1995. Jury selection began on March 6, 1995, and the parties gave their opening statements on March 10, 1995. The defendant's capital sentencing hearing concluded on March 21, 1995.

Relying on People v. Brandon, 162 Ill. 2d 450, 205 Ill. Dec. 421, 643 N.E.2d 712 (1994), and its progeny, the defendant argues that he is now entitled to a new trial. The defendant notes that he was receiving psychotropic drugs at the time of his trial and sentencing hearing in this case yet did not then receive a hearing into his fitness, which Brandon and subsequent cases have held was required by a statute in force at the time of the earlier proceedings, section 104-21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-21(a) (West 1994)). The State contends that evidence presented at the hearing on remand clearly demonstrates that the psychotropic drugs ingested by the defendant had no effect on his mental condition during the earlier proceedings.

Dr. Edwalds testified at the hearing on remand that he prescribed three different drugs for the defendant because of the defendant's complaints that the first two were not effective. Dr. Edwalds believed that the drugs would not have had any effect on the defendant's mental condition the following day, given their dosages and the time at night at which they were taken. It appears from the record that Dr. Edwalds had not intended for the different drugs to be taken simultaneously, but that the jailers inadvertently gave the defendant both doxepin and trazodone for a period, and later both trazodone and lorazepam. The defendant was receiving both trazodone and lorazepam at the time of his trial and sentencing hearing. Nonetheless, Dr. Edwalds did not believe that the two drugs, even when taken in combination, would have produced any psychotropic effect on the defendant the following day. Dr. Edwalds noted that the two medications are frequently taken together.

Robert Streight, the jail administrator, testified that he saw the defendant numerous times each day. Streight said that the defendant always seemed alert and normal; Streight did not observe any change in the defendant's demeanor during his period of incarceration. According to Streight, jailers had secretly observed that the defendant would begin shaking when he heard them approach and would cease to shake after they had walked by.

Dr. Linda Gruenberg, a psychiatrist, testified in the defendant's behalf at the hearing on remand. Dr. Gruenberg did not believe that doxepin could have had any effect on the defendant during trial or sentencing, for the defendant ceased taking it long before trial began. Dr. Gruenberg also did not believe that the defendant would have been affected by lorazepam, which the defendant was taking during the trial and sentencing hearing. Dr. Gruenberg explained that the defendant's bedtime dose of lorazepam, an antianxiety drug, would not have had any significant effect on his mental state the next day. Dr. Gruenberg believed, however, that the defendant could have been affected by the doses he was receiving of trazodone. Dr. Gruenberg said that the drug, an antidepressant that is also prescribed as a sleep aid, was being given to the defendant in amounts that would be sufficient to treat depression. Dr. Edwalds' notes indicated that the defendant was receiving 300 to 450 milligrams of trazodone each night, which Dr. Gruenberg described as a therapeutic dose of that drug for treatment of depression. She believed that a dose sufficient for sleeping would be smaller, ranging from 50 to 150 milligrams.

The defense also presented testimony from the defendant's father, Jess Burgess, who said that he noted a marked change in the defendant's demeanor and behavior after the defendant was in jail. Jess Burgess said that, during visits with his son at the jail, the defendant became hostile and experienced difficulty concentrating. Jess Burgess said that his son was neat and clean shaven before his arrest but became disheveled and unkempt afterwards, and that his son's residence was generally clean.

In rebuttal, the State introduced testimony from the defendant's trial attorney, Raymond Conklin. Over the defendant's objection that Conklin's testimony would violate the attorney-client privilege, Conklin stated that the defendant had been able to assist him in the preparation and presentation of a defense to the charge in this case. Without relating the contents of any conversations with the defendant, counsel said that the defendant discussed all aspects of the trial with him, including voir dire, the selection of defense witnesses, and the choice of questions for prosecution and defense witnesses. Counsel further stated that the defendant always appeared to be alert and coherent.

An additional rebuttal witness, Julianne Redington, testified that she was frequently at the defendant's home during the summer 1994 in her capacity as a visiting nurse. Redington described the house as filthy and said that the defendant was unkempt.

The trial judge later entered written findings. The judge concluded that the medications given to the defendant in jail each night at bedtime would not have had any psychotropic effect on the defendant the following day. The judge noted that he presided at trial and sentencing and that on all occasions the defendant appeared alert. Relying on his own observations from the earlier proceedings, the judge stated that the defendant "assisted in jury selection and actively participated in his defense, communicated frequently with counsel, wrote notes, and asked questions during recess of counsel and the judge."

The judge further noted that he had not been aware during the earlier proceedings of the defendant's use of the psychotropic medications. The judge stated:

"The defendant never exhibited any obvious side effects such as drowsiness, lack of memory, inattentiveness or lack of appropriate gait at any time during the proceedings. The defendant never appeared to have any change in mood or demeanor and freely related his physical condition (which included bouts with diarrhea during the first two days of jury selection), to the court. No statements or actions by the defendant indicated any mental disfunctioning or disability, or any issue regarding fitness."

The trial judge concluded that the drugs received by the defendant had no effect on the defendant's "mental functioning, mood or demeanor in the courtroom."

The State acknowledges that under our decisions in People v. Brandon, 162 Ill. 2d 450, 205 Ill. Dec. 421, 643 N.E.2d 712 (1994), People v. Gevas, 166 Ill. 2d 461, 211 Ill. Dec. 511, 655 N.E.2d 894 (1995), People v. Kinkead, 168 Ill. 2d 394, 214 Ill. Dec. 145, 660 N.E.2d 852 (1995), People v. Birdsall, 172 Ill. 2d 464, 219 Ill. Dec. 22, 670 N.E.2d 700 (1996), and People v. Nitz, 173 Ill. 2d 151, 218 Ill. Dec. 950, 670 N.E.2d 672 (1996), this court could simply grant the present defendant a new trial, without regard to his actual condition at the time of the proceedings below, given his ingestion of psychotropic drugs during the trial and sentencing hearing. The State argues, however, that we should not invoke the practice of automatic reversal in this case, in light of the evidence revealed at the special supplemental hearing.

We agree with the State that a rule of automatic reversal is not always appropriate. As this case demonstrates, there will be some circumstances in which it can be said that the use of psychotropic medication did not affect the defendant's mental functioning in such a way that relief would be appropriate. We are aware that we have previously declined to make use of retrospective fitness hearings, noting the difficulty in determining, long after the conclusion of the underlying proceedings, the degree of mental functioning enjoyed then by the defendant. See People v. Birdsall, 172 Ill. 2d 464, 476, 219 Ill. Dec. 22, 670 N.E.2d 700 (1996) (citing Brandon and Gevas). Nonetheless, we believe that, at least in the present case, there are sufficient reasons to depart from our previous practice of automatic reversal and to make a case-specific inquiry into the psychotropic drugs administered to this particular defendant.

Our decision to consider the possible effects of the drugs on the defendant finds support in the testimony of the defendant's expert witness at the supplemental hearing. Dr. Linda Gruenberg believed that neither doxepin nor lorazepam could have had any effect on the defendant. She noted that the defendant had discontinued taking doxepin months before trial, and that lorazepam, which the defendant took at bedtime during the course of the trial, would have dissipated overnight. As Dr. Gruenberg's testimony demonstrates, we should not automatically assume that every psychotropic drug will inevitably render the person taking it unfit for purposes of trial or sentencing, and we therefore conclude that retrospective hearings are sometimes proper. The evidence in this case, including the prescribing doctor's testimony, the judge's observations, ...


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