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People v. Damico

November 24, 1999


Appeal from the Circuit Court of Stephenson County. Nos.97--CF--82 97--CF--84 Honorable Charles R. Hartman, Presiding, Judge.

The opinion of the court was delivered by: Justice Galasso

24 November 1999

Following a jury trial, the defendant, Frederick Damico, was found guilty of the offenses of aggravated battery (720 ILCS 5/12--4(a) (West 1996)), for which he was sentenced to 5 years in the Department of Corrections; home invasion (720 ILCS 5/12--11 (West 1996)), for which he was sentenced to serve 30 years in the Department of Corrections; and aggravated arson (720 ILCS 5/20--1.1 (West 1996)) for which he was sentenced to serve 25 years in the Department of Corrections. The sentences imposed on the defendant for aggravated battery and home invasion were ordered to be served consecutively. The defendant appeals.

On appeal, the defendant raises the following issues: (1) whether the trial court erred in refusing to conduct a pretrial fitness hearing; (2) whether the trial court erred in excluding testimony of a co-defendant's statement as a sanction for the defendant's failure to comply with discovery; (3) whether the trial court erred in limiting the defendant's presentation of evidence that a person other than the defendant may have committed the crimes charged; (4) whether the entry of judgment and sentence on the aggravated battery charge violates the one-act-one-crime rule; and (5) whether the sentencing order must be modified to include day-for-day good conduct credit.

Given the nature of the issues raised, we need not set forth the trial testimony at length. According to the testimony at trial, Scott Worley, the victim, identified the defendant as the man who attacked him in the early morning hours of February 18, 1997, inflicting serious injuries on him. The victim identified the defendant as his attacker, although he did not know the defendant prior to the attack. A fire was also started in the victim's house. Several witnesses testified that the defendant had been recruited to retaliate against the victim for an alleged theft by the victim of a cell phone and a radar detector. According to Shawn Hille's testimony, he accompanied the defendant to the victim's home. He observed the defendant kick in the front door and turn on a flashlight. Hille did not go inside the house but saw the flashlight moving around. He heard the defendant say "What's up now, m- ----f-----?" Hille then heard some sounds of wrestling around and sounds as if someone were beating someone. He then heard a sound like a skull crack. Jason Canas, another witness, testified that he was present when the defendant struck the victim on the head with an ax, four or five times. Halle's and Canas's testimony also indicated that the defendant was responsible for setting fire to the victim's house. Both Hille and Canas had been charged in connection with the attack on the victim. Hille testified without an agreement with the State. Canas agreed to testify truthfully about the incident in exchange for not receiving any jail or prison time for his participation in these offenses.

The defendant presented an alibi defense through the testimony of Dolly Stewart and Anastasia Smith (Stacy), his former girlfriend. None of the tests on the physical evidence recovered in this case connected the defendant to the offenses in this case, nor was the weapon used in this case ever recovered. The defendant did not testify.

Any additional necessary facts will be set forth in connection with the issue to which they pertain.

The defendant contends, first, that the trial court erred in refusing to conduct a hearing to determine if the defendant was fit to stand trial on these charges. The defendant does not argue that he was unfit to stand trial but, rather, that the facts and circumstances surrounding his psychological health prior to the start of the trial, compounded by his recent use of Luvox, a medication, raised a bona fide doubt as to his fitness. As a result, the trial court was required to hold a fitness hearing.

Prior to trial on the charges in this case, the defendant was arrested on unrelated charges. On October 16, 1997, after a preliminary hearing on the unrelated charges, the defendant was held in direct criminal contempt of court following an outburst in which he accused the trial Judge and the prosecutor of conspiring to keep him incarcerated. At a pretrial status hearing held on October 24, 1997, in connection with the offenses in the present case, the defendant apologized for his "rude" behavior. He stated to the trial Judge that he had had a great deal of stress as of late and that he had just been placed on medication for his behavior. The defendant further stated that he felt he needed more time on the medication as he had only been on it for a few days and that the medication was "dragging [him] down." He was not sure he wished to continue with his present counsel. Defense counsel explained to the trial Judge that the defendant was taking Luvox, which had recently been approved for use in the United States and which was used to treat obsessive compulsive disorder. The trial Judge advised defense counsel that, if he felt that the defendant was not able to cooperate or assist in his own defense, defense counsel should file the appropriate motion. The trial court then stated as follows:

"Well, there is nothing this court observes. Mr. Damico is much calmer day [sic], but I didn't find probable cause and yank his bond today, so I can understand him being a little more aggravated last week when I found probable cause against him and threw him into custody. So it is a different setting. He is quiet, subdued, and his affect is appropriate for the occasion."

The trial in this case commenced on October 27, 1997. Prior to the start of the trial, defense counsel filed a petition to have the defendant examined to determine if he was fit to stand trial. The petition alleged that on October 21, 1997, the defendant was diagnosed by Dr. Modir of the Jane Addams Mental Health facility as suffering from obsessive compulsive syndrome, for which he was prescribed the drug Luvox. The petition further alleged that the medication had altered the defendant's demeanor, causing him to be drowsy and affecting his recall and that, as a result, a bona fide doubt existed as to the defendant's fitness to stand trial. The petition further alleged that, based upon defense counsel's observations of the defendant's lack of ability to recollect and recall occurrences relating to the charges pending against him and observations as to his behavior, the defendant was not able to meaningfully assist in his defense.

The trial Judge noted that Luvox did not appear to be a psychotropic drug, but a drug for the treatment of depression. None of the listed side effects appeared to relate to any cognitive impairment. When the trial court asked for other symptoms indicating that the defendant was unfit to stand trial, defense counsel stated as follows:

"Well, I believe that the most significant indication was as I attempted to prepare for today's beginning of the trial and discussing his case with him, with the defendant, he was unable often to provide me with information or new information or confirmation of facts that he had provided with me [sic] on previous occasions. He was unable to follow certain lines of thought as we attempted to put together defenses. That would be my main concern. That at the present time I don't feel that he is able to help me, assist me as we go through the trial, as witnesses are called, as testimony and as evidence is presented under his present condition which the court noticed Friday, I believe and it appears the same to day [sic], he is at times inaudible in his speech, and often times seems to be off in space somewhere. That would be my biggest problem is that I don't believe at this point he is able to assist me as the trial proceeds."

After discussing the dosage of the medication being administered to the defendant, defense counsel concluded as follows:

"Certainly the demeanor of the defendant has changed considerably. The combativeness that was present in a court hearing at which I wasn't in attendance but what is on the record in which this court held the defendant in contempt certainly is not present. Now, in some cases I guess that would be good. However, in this case it appears to me that there is a lack of interest or inability to concentrate on the issues at hand, and that is basically why I filed the petition."

Defense counsel offered to produce a witness, who was familiar with the defendant, to testify.

The trial court denied the petition. The court noted that the obsessive compulsive disorder diagnosis did not, in and of itself, indicate that the defendant could not cooperate with defense counsel or was not otherwise fit to stand trial. The court also noted that the defendant had been examined by a psychiatrist a week prior to trial but nothing else requiring treatment was found. Finally, the court noted that lapses of memory could be a product of a variety of things, e.g., if the defendant had made up stories originally to give to defense counsel, he might have trouble remembering them.

In Illinois, a defendant is presumed fit to stand trial and will be considered unfit only if, because of the defendant's mental or physical condition, the defendant is unable to understand the nature and purpose of the proceedings against him or her or to assist in his or her defense. People v. Griffin, 178 Ill. 2d 65, 79 (1997). Because of the fundamental constitutional nature of the fitness requirement, once facts are brought to the attention of the trial court, either from observation of the defendant or the suggestion of counsel, that raise a bona fide doubt of the defendant's fitness to stand trial, the trial court has a duty to hold a fitness hearing. People v. Brandon, 162 Ill. 2d 450, 456 (1994); see 725 ILCS 5/104--11(a) (West 1996). Whether a bona fide doubt as to a defendant's fitness has arisen is generally a matter within the discretion of the trial court. People v. Sandham, 174 Ill. 2d 379, 382 (1996).

Relevant factors that a trial court may consider in assessing whether a bona fide doubt of fitness exists include a defendant's " 'irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial.' " People v. Eddmonds, 143 Ill. 2d 501, 518 (1991), quoting Drope v. Missouri, 420 U.S. 162, 180, 43 L. Ed. 2d 103, 118, 95 S. Ct. 896, 908 (1975). It is undisputed, however, that there are " 'no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.' " Eddmonds, 143 Ill. 2d at 518, quoting Drope, 420 U.S. at 180, 43 L. Ed. 2d at 118, 95 S. Ct. at 908. Some doubt of a defendant's fitness is not enough. People v. Walker, 262 Ill. App. 3d 796, 803 (1994).

In addition to the allegations contained in the pretrial petition for a fitness hearing, the defendant points to the information concerning his mental and emotional health contained in his presentence report. According to the defendant, he has been in and out of psychiatric institutions since he was a child. At age 13, he was hospitalized for suicide attempts, depression, and family problems for a period of about four months. Later he spent time in Wilson Center, a place for troubled youths located in Minnesota. He was hospitalized in Chicago for the same problems in 1988. The file notes from Dr. Modir, who saw the defendant just prior to the trial in this case, indicated that the defendant could be suffering from posttraumatic stress syndrome, multiple substance abuse, and intermittent explosive disorder and could have a borderline personality disorder. Luvox was prescribed due to the defendant's nightmares and to help him with stress during the day.

The defendant points out that, according to the Physicians' Desk Reference, Luvox is a psychotropic medication. See Physicians' Desk Reference (1998 ed.) at 2891-94 (hereinafter PDR). He concedes that he is not entitled to a presumption of unfitness solely by virtue of his use of psychotropic medication. See 725 ILCS 5/104--21(a) (1996). However, he argues that, given his history of depression, the dose of Luvox (100 milligrams per day although the recommended beginning dosage is 50 milligrams per day) he was taking may have caused side effects that harmed his ability to assist in his defense.

A defendant may be competent to participate at trial even though his mind is otherwise unsound. Eddmonds, 143 Ill. 2d at 519. Fitness speaks only to a person's ability to function within the context of a trial; it does not refer to competence in other areas. Eddmonds, 143 Ill. 2d at 519-20. No single factor in itself raises a bona fide doubt of a defendant's fitness to stand trial; the fact that a defendant suffers a mental disturbance or requires psychiatric treatment does not necessarily raise a bona fide doubt. Walker, 262 Ill. App. 3d at 803. Even evidence of extreme disruptive behavior and a sociopathic ...

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