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11/20/97 PEOPLE STATE ILLINOIS v. JOHNNY NEAL

November 20, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JOHNNY NEAL, JR., APPELLANT.



Appeal from the Circuit Court, Lake County. CASE NUMBERS: TR82CF1212. TRIAL JUDGE: Hon. Henry C. Tonigan, III.

The Honorable Justice Harrison delivered the opinion of the court.

The opinion of the court was delivered by: Harrison

The Honorable Justice HARRISON delivered the opinion of the court:

The issue in this appeal is whether the defendant, Johnny Neal, Jr., is entitled to relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)) or the habeas corpus provisions of the Code of Civil Procedure (735 ILCS 5/10-101 et seq. (West 1994)) on the grounds that he was convicted of murder and armed robbery and sentenced to death without having first received a fitness hearing under section 104-21(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 104-21(a)). Citing this court's 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), defendant contends that he was entitled to such a hearing because he was taking Thorazine, a psychotropic medication, under medical direction prior to his trial. Following an evidentiary hearing, the circuit court denied defendant's claims. Because defendant's claims involved a judgment imposing a sentence of death, defendant appealed directly to this court. 134 Ill. 2d R. 651(a).

The judgment attacked in defendant's post-conviction petition dates back to the early 1980s. Defendant was originally charged in a criminal information in the circuit court of Lake County with three counts of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1) through (a)(3)), one count of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)) and one count of home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12-11). These charges were filed after defendant, a convicted felon on parole, bludgeoned a woman to death in her home during a robbery that netted $25.

The home invasion count was nol-prossed by the State prior to trial, and a jury found defendant guilty of murder and armed robbery. In a separate sentencing hearing before the same jury, defendant was found eligible for the death penalty under sections 9-1(b)(6)(a) through (c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(b)(6)(a) through (b)(6)(c)). In the second phase of sentencing, at which evidence in aggravation and mitigation was presented, the jury unanimously decided that there were no mitigating factors to preclude the imposition of the death penalty.

The trial court sentenced defendant to death on the murder conviction and imposed an extended-term sentence of 60 years' imprisonment on the conviction for armed robbery. Defendant then appealed directly to this court under section 4(b) of article VI of the Constitution of Illinois (Ill. Const. 1970, art. VI, ยง 4(b)) and under our Rule 603 (134 Ill. 2d R. 603). We affirmed ( People v. Neal, 111 Ill. 2d 180, 95 Ill. Dec. 283, 489 N.E.2d 845 (1985)), and the United States Supreme Court denied review ( Neal v. Illinois, 476 U.S. 1165, 90 L. Ed. 2d 733, 106 S. Ct. 2292 (1986)).

Defendant subsequently filed a petition for post-conviction relief, claiming, inter alia, that he was denied effective assistance of counsel at trial by his attorney's failure to investigate or present available evidence in mitigation at his death penalty hearing and by his attorney's failure to object to prosecutorial argument at sentencing. Defendant's petition was dismissed without a hearing. This court affirmed. People v. Neal, 142 Ill. 2d 140, 154 Ill. Dec. 587, 568 N.E.2d 808 (1990). In so doing, this court rejected an additional argument raised by defendant on appeal that the trial court should have allowed his request for appointment of a psychological expert before dismissing his petition because there were "substantial indications that trial defense counsel was ineffective due to her failure to develop and present mitigating evidence of [his] mental condition." Neal, 142 Ill. 2d at 145.

Defendant filed a second petition for post-conviction relief in 1991, once again challenging the competency of his trial counsel. In addition, defendant argued that his counsel for the initial post-conviction proceeding had been incompetent for failing to present additional evidence of his trial lawyer's incompetence. The circuit court dismissed this petition, and defendant filed no appeal.

Defendant next brought a petition for federal habeas corpus in the United States District Court for the Northern District of Illinois. The principal ground on which he sought relief was that his trial attorney rendered ineffective assistance of counsel at his sentencing hearing by failing to conduct a full investigation of his personal and psychiatric history. The district court rejected this claim, and the United States Court of Appeals, Seventh Circuit, affirmed, holding that the state courts had not been unreasonable in concluding that defendant's trial lawyer had been competent. Neal v. Gramley, 99 F.3d 841 (7th Cir. 1996).

While the federal proceeding was underway, defendant initiated this, his third petition for post-conviction relief, in state court. In his petition, defendant sought relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)) and the habeas corpus provisions of the Code of Civil Procedure (735 ILCS 5/10-101 et seq. (West 1994)). The basis for his claim now was that he was denied his right to a fitness hearing under section 104-21(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 104-21(a)), which provided 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." *fn1 Defendant asserted that he fell within the terms of this statute because he took Thorazine, a psychotropic drug, under medical direction for a period of approximately nine weeks during his pretrial incarceration. Because he did not receive the fitness hearing specified by the statute, defendant asserted that his convictions and sentences should be reversed and that he should be granted a new trial. In the alternative, defendant contended that he was entitled to a writ of habeas corpus discharging him from custody under the Code of Civil Procedure (735 ILCS 5/10-101 et seq. (West 1994)) because the failure to afford him a fitness hearing under the statute rendered his subsequent convictions and sentences void.

The State filed a response to defendant's petition and moved for its dismissal. The circuit court denied the State's motion to dismiss and ordered an evidentiary hearing, which was held in late November of 1996. Stipulations presented to the circuit court established that defendant was originally arrested in late August of 1982. A suppression hearing was held in his case on November 12, 1982, and his trial commenced on January 5, 1983.

Between September 1, 1982, shortly after his arrest, and November 4 or 8, 1982, just before his suppression hearing, defendant was prescribed and took the psychotropic drug Thorazine. His original dosage was 25 milligrams twice a day, but this was increased to 25 milligrams three times a day on September 13, 1982, after defendant complained to a nurse of back, neck and tooth pain; bad dreams; seeing shadows move on his cell walls; and feeling that he was not alone in his cell.

Over defendant's objection, the State presented testimony from Dr. Henry W. Lahmeyer, a psychiatrist who testified as an expert in pharmacology, psychiatry and medicine. Dr. Lahmeyer is on the board of advisors of SmithKline, the primary manufacturer of the drug, and has ...


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