The opinion of the court was delivered by: Justice Greiman
Appeal from the Circuit Court of Cook County Honorable Themis N. Karnezis, Judge Presiding.
The sole issue to be addressed in this matter is whether the record supports a remand for a retrospective fitness hearing in accordance with the language of the 1994 version of the psychotropic medication statute, section 104-21(a) of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/104-21(a) (West 1994)) and the opinion of the Illinois Supreme Court in People v. Kinkead, 182 Ill. 2d 316 (1998) (Kinkead II).
We find that a retrospective fitness hearing is appropriate in the present case based on the evidence presented in the record.
The procedural history of this appeal began in 1995 when a jury found defendant Sidney Perry guilty of first degree murder for the shooting death of William Yousef, of armed robbery of William Yousef, and of armed robbery of Hani Hamad. On direct appeal, defendant raised several issues, including his fitness to stand trial based on the 1994 version of the Code. This court considered the issue under the amended version of the Code in effect December 31, 1996 (725 ILCS 5/104-21(a) (West 1996)) and concluded that reversal was not required in People v. Perry, 292 Ill. App. 3d 705 (1997). On October 6, 1998, the supreme court entered a supervisory order directing this court to vacate its judgment and reconsider it in light of Kinkead II. Pursuant to that mandate, we vacated our judgment in No. 1-96-0037, applied the 1994 version of the Code, reversed defendant's convictions, and remanded this cause to the circuit court for a new trial. People v. Perry, 303 Ill. App. 3d 138 (1998). By supervisory order entered on June 2, 1999, the supreme court denied the State's petition for leave to appeal, vacated the judgment in No. 1-96-0037, and directed this court "to conduct a case-specific inquiry in order to determine whether the record supports a remand for a retrospective fitness hearing." Thereafter, pursuant to this court's briefing schedule, the parties submitted their respective positions and arguments on this issue.
On September 12, 1994, defendant was arrested for crimes occurring on the same day. On September 5, 6 and 7, 1995, a trial was held during which defendant testified. On September 7, 1995, after the jury issued its verdicts, the trial court ordered a presentence investigation report and continued the case to October 18, 1995, for sentencing. On September 8, 1995, defendant authorized the release of information from the Illinois State Psychiatric Institute for the purpose of his presentence investigation report.
The presentence report was filed in the clerk's office of the circuit court on October 18, 1995. The report revealed that defendant was born on November 17, 1966, and, thus, was 28 years old at the time of trial. The report further revealed that defendant had five prior felony convictions and a history of psychiatric treatment at five different institutions (Madden Mental Health Center, Illinois State Psychiatric Institute, Saint Anthony Hospital, Loretto Hospital, and Chicago Reed Mental Health Center). Defendant maintained that he is a drug addict and "crack cocaine, marijuana, and acid are his drugs of choice." Defendant further stated that "incarceration is his only reason for not using drugs at the present time." The summary portion of the report stated that defendant "is a Schizophrenic with an extensive psychiatric history," as supported by the documents from four of the five institutions in which defendant was treated.
A fitness hearing was held on November 2, 1995, to consider defendant's fitness for sentencing. The sole witness was Dr. Dawna Gutzmann, a psychiatrist at the Forensic Clinical Services for the Circuit Court of Cook County. Dr. Gutzmann conducts psychiatric evaluations pursuant to court order. Dr. Gutzmann examined defendant on October 19, 1995, and opined that defendant was fit for sentencing. Dr. Gutzmann's written report, which is dated October 23, 1995, and which was submitted to the circuit court, stated that "defendant demonstrated an understanding of the nature and purpose of the proceedings against him, and was knowledgeable regarding the roles of various courtroom personnel. Furthermore, he demonstrated a capacity to assist counsel with regard to aggravating and mitigating factors."
At the fitness hearing, Dr. Gutzmann testified that, as stated in her written report, defendant was being medicated with lithium carbonate at the time she conducted the examination. Dr. Gutzmann's report stated that "Lithium carbonate is used as a mood stabilizer." Dr. Gutzmann testified that she never personally administered any lithium carbonate to defendant and she has no knowledge of whether defendant received any lithium carbonate during his three-day trial on September 5, 6 and 7.
After the testimony of Dr. Gutzmann, defense counsel argued:
"The only thing I'd say is as far as we know,[defendant] sits here today, we don't know if he wasmedicated today. And we don't know if he was medicatedduring the 3 days of trial. I mean it's possible, considering the inefficiency of certain parts of theCook County Department of Corrections, I think youwould -- in all of our common experiences, we have seensituations where people being held in custody have notreceived their medication. It's possible that hewasn't medicated at the trial. It's possible that ashe sits here today, he's not medicated. Which is whyhe said he didn't feel good." The trial court then ruled that defendant was fit for sentencing, stating that "[t]here is not a scintilla of evidence to indicate that he is not [fit]."
The sentencing hearing was held four days later, on November 6, 1995. Defense counsel argued that defendant was currently being treated with several medications (Thorazine, Haldol, lithium and Cogentin) and reiterated defendant's psychiatric history as stated in the presentence report. The trial court stated:
"The first time we became aware, the first time,[defense counsel], you became aware that he was beingtreated with anything was after, repeat, after the juryhad rendered their decision in this case."
"We might also state that throughout theseproceedings which have been in this Courtroom since[defendant] has been coming to this Courtroom sinceOctober of 1994, he has on each and every occasion demonstrated politeness, cooperation and a full ...