Appeal from Circuit Court of Sangamon County No. 95CF819 Honorable Sue E. Myerscough, Judge Presiding.
McCULLOUGH, Justice Green, J., concurs. Steigmann, J., specially concurs.
The opinion of the court was delivered by: Justice McCULLOUGH
Following a jury trial in the circuit court of Sangamon County, defendant Dee M. Smith was found guilty of aggravated battery. 720 ILCS 5/12-4(b)(8) (West 1994). She was sentenced to 24 months' probation. The issues are whether (1) defendant was denied effective assistance of counsel and due process because the defense trial counsel failed to request and the trial court failed to order a fitness hearing even though defendant was receiving prescribed psychotropic medication at the time of trial and sentencing and (2) the trial court committed an abuse of discretion by answering "no" to the jury's question of whether the jury had "the option of downgrading to a charge of battery," even if it had found the elements of aggravated battery had been proved. Only the facts relevant to the issues will be discussed.
The defendant's presentence investigation report contained information from medical doctors, a clinical psychologist, and defendant concerning the use of Effexor and Xanax, and treatment for symptoms of depression and anxiety. The State does not dispute that defendant may have received multiple prescriptions of Xanax and Effexor prior to, around the time of, and subsequent to her trial and sentencing hearings. Also undisputed is that the fitness hearing was not asked for by defendant's trial counsel or provided to defendant prior to trial or sentencing and that Xanax and Effexor are psychotropic medications.
The State argues that the amended version of section 104-21 of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-21 (West 1996)) applies to this case so that reversal is not automatically required. This court has considered the same argument in People v. Straub, 292 Ill. App. 3d 193, 197-99, 685 N.E.2d 429, 432-33 (1997), and rejected it. We deem Straub controlling and decline to revisit the issue. See also People v. Cortes, 181 Ill. 2d 249, 275, ___ N.E.2d ___, ___ (1998).
This case differs somewhat from Straub in that the amendment to section 104-21 effective December 31, 1996 (Pub. Act 89-689, §90, eff. December 31, 1996 (1996 Ill. Laws 3775, 3792)), was effective at the time of defendant's sentencing. It was not in effect, however, when she was tried. In addition, the Straub court did not find ineffective assistance of counsel or an abuse of discretion in failing to conduct a fitness hearing because (1) there was no evidence defendant was taking the prescribed medication, (2) two evaluations found defendant fit to stand trial, (3) the trial court was fully aware of defendant's physical and mental problems and medication and took great pains to assure that defendant's medication did not affect his ability to understand the proceedings and to cooperate in his defense, and (4) defendant's counsel understood the obligation to raise fitness as an issue and the trial court could rely on defense counsel's representation that there was no problem. Straub, 292 Ill. App. 3d at 199-200, 685 N.E.2d at 434. The record in the case at bar would not support such findings.
In People v. Kilpatrick, 293 Ill. App. 3d 446, 448-49, 688 N.E.2d 1202, 1204 (1997), the court adopted Straub and rejected the State's cited cases of People v. Perry, 292 Ill. App. 3d 705, 686 N.E.2d 677 (1997), and People v. Gibson, 292 Ill. App. 3d 842, 687 N.E.2d 1076 (1997). As a result, in Kilpatrick, the cause was remanded for a hearing to determine defendant's fitness to stand trial. Kilpatrick, 293 Ill. App. 3d at 450, 688 N.E.2d at 1205. As in Kilpatrick, the trial court should determine defendant's fitness to stand trial.
The next issue is whether the trial court committed an abuse of discretion by answering "no" to the jury's question of whether it could downgrade to a charge of battery even if it had found the elements of aggravated battery had been proved.
At trial, prior to jury deliberations, the trial court's instructions to the jury included the following instructions:
"The defendants are charged with the offense of aggravated battery. The defendants have pleaded not guilty. Under the law, a person charged with aggravated battery may be found (1) not guilty; or (2) guilty of aggravated battery; or (3) guilty of battery."
See Illinois Pattern Jury Instructions, Criminal, No. 2.01 (3d ed. 1992) (hereinafter IPI Criminal 3d).
"A person commits the offense of battery when he knowingly without legal justification and by any means causes bodily harm to another person."
See IPI Criminal 3d No. 11.05.
"A person commits the offense of aggravated battery when she knowingly without legal justification and by any means causes bodily harm to another person, and in doing so, she is on or about a public place of amusement."
See IPI Criminal 3d No. 11.15.
"To sustain the charge of aggravated battery the State must prove the following propositions:
First proposition: that the defendant or one for whose conduct he is legally responsible knowingly caused bodily harm to Michelle Ray; and
Second proposition: that the defendant did so while on or about a public place of amusement.
Third proposition: that the defendant was not justified in using the force which she used.
If you find from your consideration of all the evidence that each one of these propositions has been proven beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you ...