The opinion of the court was delivered by: Justice McMORROW delivered the judgment of the court:
In a prior decision of this court we ordered a limited remand of this cause to the circuit court of Mason County, but retained jurisdiction over this direct capital appeal. People v. Kinkead, 168 Ill. 2d 394 (1995) (Kinkead I determination of the circumstances surrounding defendant's ingestion of psychotropic medication during the time of his guilty plea and sentencing.
In the original proceedings in the circuit court, defendant, Scotty Lee Kinkead, pleaded guilty to first degree murder and other offenses. He had initially accepted a plea offer from the State that would have enabled him to plead guilty to felony murder rather than intentional murder and that would have spared him the death penalty. Subsequently, he changed his mind and, despite the advice of counsel, informed the court that he wished to plead guilty to all charges and face the death penalty. Defendant had a history of suicide attempts and self- mutilation, and his presentencing report revealed that while he was in jail, defendant was being administered Thorazine, an antipsychotic medication. During sentencing, defendant asked the court to impose the death penalty, and the court complied. Kinkead I, 168 Ill. 2d at 405.
In his original appeal to this court, defendant raised several issues, including his alleged lack of mental fitness to make informed decisions about his plea agreement and sentencing. According to defendant, he was denied due process of law because he was convicted and sentenced without a fitness hearing despite the fact that he had been given psychotropic medication during the plea proceedings and during sentencing. See 725 ILCS 5/104-21(a) (West 1994 Kinkead I indicated that defendant had been given chloropromazine (brand name Thorazine reliability whether his ingestion of the psychotropic medication was near enough in time to his plea and sentencing to trigger the right to a fitness hearing under section 104-21(a Procedure of 1963. See Kinkead I, 168 Ill. 2d at 414. We determined that we should not automatically grant a new trial on the record before us, but we also observed that it would be unfair to affirm defendant's conviction and sentence if he had been entitled to a fitness hearing pursuant to section 104-21(a clarification of the circumstances surrounding defendant's use of psychotropic medications strikes the proper balance in the case at bar." Kinkead I, 168 Ill. 2d at 415.
On remand, the circuit court conducted a hearing and made certain findings. At the close of evidence, the Judge announced that he was not ruling upon ultimate issues concerning defendant's fitness at the time of his plea and sentencing, or whether the failure of defendant's trial attorney to request a fitness hearing constituted ineffective assistance of counsel. The Judge stated that he would instead "make findings of facts and the [Illinois Supreme Court] can draw what it wants from the findings." In his written findings, the Judge summarized the procedural history of the matter. Without citing to specific evidence on which he relied, the Judge stated his belief that the effect of the Thorazine administered to defendant during the relevant times "appeared to be not medically significant."
Pursuant to this court's remand order, the circuit court then ordered the clerk of the circuit court of Mason County to certify a copy of the circuit court's memorandum of opinion and findings to this court. We granted both parties leave to file supplemental briefs in this court on the issues raised by the remand hearing.
On March 26 and 27, 1996, pursuant to this court's remand, the circuit court held an evidentiary hearing on the issues relating to defendant's ingestion of psychotropic medication in 1992, while he was incarcerated and awaiting trial and sentencing. Prior to the presentation of witnesses, defense counsel moved for the entry of a directed finding based on the uncontested evidence, found in the jail medication logs and similar documents, that defendant was taking psychotropic medicine during the time he entered his guilty plea and was sentenced. According to this uncontested evidence, defendant was prescribed a dose of 100 milligrams of Thorazine each day from June 20, 1992 through July 17, 1992; from July 20, 1992, through September 26, 1992; from September 28, 1992, through October 31, 1992, and from November 2, 1992, through November 4, 1992. On November 11, 1992, November 13 through 21, 1992, and from November 23 through November 30, 1992, defendant took 50 milligrams of Thorazine daily.
At the time of defendant's original trial proceedings, while he was taking daily doses of 100 milligrams of Thorazine, he initially accepted then rejected the State's offer under which he would plead guilty in exchange for a sentence other than death. On October 19, 1992, defendant informed his counsel he had changed his mind, and, in open court, defendant rejected the State's offer. Two days later, again in open court, defendant repeated his decision to plead guilty to all charges and to receive the death penalty. Although defendant was being administered Thorazine at the jail during this time, such fact was not known to the court or the attorneys. No fitness hearing was requested or ordered. Instead, the trial court stated its belief, based on its in- court observation of defendant, that defendant was competent to proceed with the guilty plea and sentencing. At the sentencing hearing, on November 23, 1992, defendant again asked the Judge to impose the death penalty. As the record on remand establishes, defendant was also taking Thorazine at the time of sentencing.
Notwithstanding the above, uncontested evidence, the circuit court denied defendant's motion for a directed finding that he should have received a fitness hearing in 1992 pursuant to section 104-21(a court also denied defendant's motion to limit the scope of the remand hearing so as to preclude evidence of the effects of Thorazine. The trial Judge stated that he would allow a broad range of evidence because he was uncertain what the Illinois Supreme Court intended for the scope of the hearing to be on remand.
On the first day of the remand hearing, defense counsel moved to exclude one of the State's experts, Dr. Shillcutt, on the ground that the defense had not received notice that he would testify until 30 minutes before the hearing. The witness had not submitted a report and defense counsel had no notice of the substance of his testimony or expert opinions. The trial court recognized that the lack of adequate notice put the defense at a disadvantage, but provisionally denied the motion to exclude, directing that the defense be given an opportunity to interview Dr. Shillcutt before he testified.
The court also denied the defense motion to exclude medical testimony by non-expert witnesses, such as jail personnel and defendant's trial attorneys. The court permitted the defense request for a standing objection to testimony regarding defendant's demeanor, mood, and mental functioning.
The State's first witness, Curtis Eugene Pierce, was the jail administrator for the Fulton County jail, where defendant was incarcerated from March to November 5, 1992. Pierce had known defendant for several years prior to defendant's arrest for murder. According to Pierce, defendant exhibited no unusual behaviors or physical problems from March to June 20, 1992. Pierce characterized defendant's behavior and demeanor as "normal." However, after June 1992 (the period which corresponds to defendant's receipt of regular doses of Thorazine Pierce detected a change in defendant's behavior in the form of "cockiness," disrespect, and irritability. Pierce had no involvement in any medical decisions and did not discuss defendant with Dr. Lee, the physician for the Fulton County jail who prescribed the psychotropic medication.
Leland Keith was the chief deputy sheriff for Mason County at the time defendant was transferred from Fulton County to the Mason County jail. Keith testified regarding the medical distribution record which listed the days on which defendant received Thorazine. In Keith's opinion, defendant did not display any unusual or bizarre mannerisms and appeared "normal." However, he admitted he did not know defendant and had nothing against which to compare his behavior. Keith conceded that defendant never was examined by either a medical doctor or a clinical psychologist while at the Mason County jail. Keith stated that he was aware that defendant was a suicide risk based on his past history.
The State's next witness, Gale Carper, was one of defendant's two trial attorneys. Carper, who had assisted Alesia McMillen in the defense, first met defendant in the summer of 1992. She estimated meeting with him at least 10 times for periods of varying duration. Defendant sometimes seemed to understand their Discussions and at other times did not seem to understand. Although she did not observe any bizarre behavior, she noticed his inability to focus at times, to follow conversations, and to make eye contract. He appeared confused about what could happen to him, and initially he stated that he could not be executed because Illinois did not have a death penalty statute.
According to Carper, in the fall of 1993, she, McMillen, and defendant discussed the plea negotiations and his decision to reject the State's offer for life imprisonment rather than the death penalty. Carper testified that defendant appeared to be very sad. He became adamant about requesting the death penalty. Subsequently, according to Carper, the attorney-client relationship between defendant and McMillen "became tense" for awhile. Asked to give a lay opinion as to whether defendant's will had become flattened, Carper agreed that his decision to seek death was more than just a change of mind. She said his desire for self-preservation disappeared. Carper also testified that if she had known defendant was taking Thorazine she would have recommended that a fitness hearing be requested.
Alesia McMillen, defendant's lead trial attorney, also testified. She described her meetings with defendant and stated that he appeared to understand some of the matters discussed while he had difficulties with others, such as the different stages of a capital case. She did not observe any unusual physical behaviors in her client. McMillen testified that she had requested a report in advance of trial from Dr. Day, a clinical psychologist, not because she believed that there was a question of fitness but because of the serious nature of the case, defendant's background, and the need to develop mitigation evidence. She was unaware that defendant was taking antipsychotic medication.
According to McMillen, during the plea negotiations, defendant expressed reservations about a natural life sentence and asked her to explore the possibility of a plea that would include a term of years rather than natural life. She told her client that they could request a sentencing hearing and seek a term of years. He agreed, and McMillen communicated the defense position to the prosecutor. The prosecutor agreed to permit defendant to plead guilty to one count of felony murder and to forgo asking for the death penalty. McMillen further testified that on October 19, 1992, the date on which both sides planned to present their plea agreement to the court, defendant told her he had changed his mind and preferred to plead guilty to all charges and be sentenced to death. She strongly advised against his decision, and stated she would not request the death penalty on his behalf. McMillen did not know that defendant was taking psychotropic medication. If she had known about the Thorazine she would have made further inquiry and requested assistance from a medical doctor.
The State called the following doctors to testify: Phillipp E. Bornstein, M.D., a psychiatrist; John R. Day, a psychologist; and Samuel Shillcutt, a neuropharmacologist. Dr. Bornstein's and Dr. Shillcutt's testimony was based solely on their review of records. Neither doctor met with or examined defendant. Dr. Day had met with defendant and administered tests in 1992, at the request of defense counsel, but did not perform a fitness evaluation.
Dr. Bornstein expressed agreement with Dr. Day's diagnosis that defendant suffered from a form of depression known as dysthymia, which is milder than major depression. The types of drugs Dr. Bornstein would prescribe for a depressed patient are antidepressants. Thorazine is not an antidepressant, but instead is an antipsychotic, "neuroplectic" drug that is normally used in the treatment of major mental disorders. According to Dr. Bornstein, it appeared in the instant case that Thorazine was prescribed as a sleeping aid. He testified that the drug is not habit forming and is used in prisons for insomnia and as a "chemical restraint" because it can diminish anxiety and cause sleepiness. Dr. Bornstein admitted that he would not ordinarily, as a clinician and psychiatrist, prescribe medication without consulting with the patient. He would not prescribe Thorazine in a clinical setting for insomnia, unless the patient was known to have insomnia-associated psychosis.
According to Dr. Bornstein, a psychotic person might receive a dose ranging from 200 to 400 milligrams at the lower end, up to 2,000 milligrams at the high end for an acutely agitated person. In Dr. Bornstein's opinion, a 100 milligram dose of Thorazine would not act as a major tranquilizer or an antipsychotic, but would induce drowsiness and reduce anxiety. Dr. Bornstein suggested that a reduction in anxiety would have been beneficial for defendant. However, Dr. Bornstein admitted that anxiety is not necessarily a bad quality when a person faces a difficult decision. He could not state whether a reduction in defendant's anxiety might have affected defendant's ability to make the life or death decision to seek the death penalty.
Dr. Bornstein stated his belief that in the dosages described in the instant case, Thorazine should not impair the ability of a person of average intelligence to make a logical decision. He further stated that the dosages that defendant received would not likely affect his judgment regarding the death penalty. However, when asked to state an within a reasonable degree of medical and scientific certainty whether defendant's ingestion of the dosages of Thorazine during the relevant periods would have caused his judgment to be impaired in any respect, Dr. Bornstein stated, "That probably goes beyond what I could answer, all I can tell you." He acknowledged that there may be certain risks and side effects even at the 100 milligram dose. He stated that there are idiosyncratic reactions that are not dose-related, such as reactions which might occur in a person with abnormal liver functioning. He said that if he were examining a person who, as in the instant case, had a history of self-mutilation and chronic substance abuse, Dr. Bornstein would make further inquiry upon learning that the person had sought to be put to death after initially accepting a life-saving guilty plea. However, Dr. Bornstein reiterated his belief that defendant's stated desire to avoid life in prison was a "logical" decision.
Dr. Bornstein admitted that in the hundreds of times that he has testified regarding the fitness of a particular defendant, he has always personally consulted with such defendant. Dr. Bornstein stated that he would take into account many factors in a fitness analysis, including the person's intellect, psychiatric history, and memory. He would also seek information from family members, police reports, the defendant's counsel, and other materials. In the instant case, however, Dr. Bornstein did not meet or examine defendant, nor did he talk to defendant's trial attorneys.
The State's next witness was Dr. Shillcutt, a neuropsychopharmacologist who was not disclosed as an expert witness until the day of the remand hearing. He explained that pharmacology is the study of the interaction between drugs and physiological systems such as the central nervous system. He testified that Thorazine is an antipsychotic drug which affects one's behavior or thought. It is primarily used in the treatment of psychosis, and is usually administered for that purpose in dosages ranging from 400 to 600 milligrams. Dr. Shillcutt stated that 100 milligrams is a low dose that generally would not have antipsychotic effects. However, according to Dr. Shillcutt, Thorazine "is a very dirty drug," meaning that it "affects a lot of different body receptor types that have a wide range of physiologic consequences." He described a wide range of side effects. Some of the effects occur at any dosage level, but generally such common signs as dry mouth and blurred vision are usually attenuated fairly quickly.
Over objection from the defense, Dr. Shillcutt testified that research conducted between 1955 and 1987 suggests that a 100 milligram dose would not have a measurable effect that would inhibit a person from making a reasoned judgment. A very young or old person might be affected more by the dosage than others. However, he acknowledged that all of his research on the effect of psychotropic medications was limited to people who are psychotic, and that such drugs are not ordinarily given to non-psychotic individuals. Psychotropic medicine is also used to treat neurological or "movement" disorders, such as dystonia, but Dr. Shillcutt stated that "we do not fully understand the psychopathology of psychiatric illnesses as well as movement disorders." He would not ordinarily recommend treating insomnia with Thorazine, nor would he recommend that drug for treating anxiety reaction or depression.
Dr. Shillcutt admitted that if a person's liver function were impaired, such disfunction would affect that person's ability to metabolize a drug like Thorazine, even at the 100 milligram level. The drug is metabolized by the liver. He further agreed that a prolonged period of alcohol abuse, such as that in defendant's case, which began in childhood, could affect liver functioning. Impaired liver functioning in turn could increase the effects of the dosage of Thorazine given. Dr. Shillcutt testified that before he would render an opinion as to the effect of Thorazine in defendant's body, he would want to consider defendant's liver functioning. Dr. Shillcutt admitted he did not consider defendant's liver functioning in his opinion as to the effect of the dosage on defendant in the case at bar.
The State's next witness was Dr. Day, the clinical psychologist who had prepared a report for the defense prior to the plea agreement and who had testified at defendant's sentencing hearing. On the first date that defendant met with Dr. Day, on June 17, 1992, an associate of Dr. Day gave defendant the Minnesota Multiphasic Personality Inventory (MMPI psychotropic drugs because defendant was not yet taking Thorazine. At the time of the second and third interviews, in July and August 1992, respectively, defendant was taking the medicine, but Dr. Day was unaware of that fact. Dr. Day was not requested to perform a fitness examination, but instead was requested to determine whether defendant had any psychological processes that would inhibit the development of a defense and whether such processes would have explained some of his behavior.
Despite the fact that Dr. Day did not perform a fitness evaluation in 1992, at the remand hearing in 1996 he was asked to give his opinion as to defendant's competency to assist in his defense at the time of the plea proceedings and sentencing. Over defense objections based on relevance and on the fact that retrospective assessments of fitness are prohibited by due process concerns, Dr. Day stated his opinion that defendant understood the nature of the charges against him and was able to cooperate in his defense. The court sustained an objection to the witness' rendering an opinion as to whether defendant's judgment had been impaired by the Thorazine he was taking in the summer of 1992. Dr. Day stated that when defendant's trial counsel told him in October 1992 that her client had decided to seek the death penalty, rejecting the State's plea offer, Dr Day was "thunderstruck."
Dr. Day acknowledged that patients who express a desire to commit suicide may be suffering from mental illness, extremely poor judgment, or severe depression. Dr. Day stated that he would be quite concerned about the mental competence of a suicidal person. He admitted that if such a person was taking Thorazine, that fact would "certainly" cause increased concerns about the person's thought processes. Dr. Day testified that when he learned of defendant's decision to reject the live-saving plea bargain, he viewed it as "a change from all of the hours of previous interaction." Dr. Day stated that it would be "very important" to explore defendant's decision, "particularly in light of the long history of self-mutilation."
The State presented no additional witnesses. On the second day of the remand hearing, March 27, 1996, the defense called Michael Gelbort, a clinical psychologist with a practice in neuropsychology. His practice includes therapy and evaluations of patients referred by psychiatrists, psychologists, and others. He has studied the drugs which affect cognition, or thought processes, including Thorazine. According to Dr. Gelbort, even in low doses, Thorazine decreases the level of arousal in a person through the alteration of brain chemistry.
In September 1995, pursuant to a request from defendant's counsel, Dr. Gelbort conducted a psychological examination of defendant and prepared a neuropsychological evaluation report. He interviewed defendant and reviewed records. An assistant to Gelbort also administered a psychological battery of tests. After analyzing the interview, test data, and records, Dr. Gelbort found that defendant exhibited a number of factors that were "highly correlated with cognitive disfunction *** dating from childhood." Specifically, there was a long history of alcohol abuse (since age 12 physical abuse, including repeated blows to the head. From this history, Dr. Gelbort concluded that neurological testing was warranted, in order to assist in determining whether defendant's thought processes would be characterized as normal or abnormal. Also relevant would be defendant's educational history and learning disabilities.
Dr. Gelbort found from his testing that defendant was not psychotic, which, he stated, has "clear-cut implications for the effect of something like Thorazine." He testified that when antipsychotic drugs are given to persons who are not psychotic, the effect is to relax the person and suppress cognition, including reasoning, judgment, and problem solving. Dr. Gelbort acknowledged that a 100 milligram dose could be used as a sleep aid, but that it would also suppress cognition and cause a person to be less aware of the implications of his or her decisions. He stated that a person taking this dosage level could interact and appear mostly normal, but the drug would have the invisible effect of causing the person to "think more slowly, be less aware of implications, to have more difficulty holding down multiple ideas in mind at the same time, which is essential to reasoning and judgment." Dr. Gelbort expressed his opinion that a person who is taking 100 milligrams of Thorazine "definitely" should be examined to determine fitness before entering a plea to a capital charge. Although a person taking the drug for a long time may develop a certain level of tolerance, Dr. Gelbort stated that the phenomenon of tolerance "absolutely" does not mean that cognition is not affected by the drug.
Significantly, according to Dr. Gelbort, Thorazine would have a more pronounced effect on an injured brain. In the instant case there was evidence that defendant was brain damaged. Dr. Gelbort found that defendant suffers from impaired judgment and problem solving, learning disabilities, and difficulty in focusing and ...