The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable Reginald Baker, Judge Presiding.
A jury found Terrance Sutton guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 1996) for the stabbing death of Tiffany Hankins. Defendant alleges: (1) the trial court erroneously allowed the State to cross-examine defendant with statements defendant made to a non-testifying psychiatrist during a fitness and sanity examination; (2) the State improperly impeached defendant with evidence of a prior act of domestic violence committed by defendant against the victim; (3) the State's closing argument denied defendant a fair trial; and (4) defendant's 100 year sentence was excessive. Whether the court, relying on the homicide exception to the physician-patient privilege, properly allowed the State to cross-examine defendant with statements defendant made to a non-testifying psychiatrist during a fitness and sanity examination when the defendant did not raise an insanity defense is a question of first impression. Resolution of this question requires us to examine the competing and sometimes conflicting provisions regarding the admissibility of statements of a defendant under the homicide exception to the physician-patient privilege, the fitness statute and the attorney-client privilege. We find the trial court abused its discretion in allowing the State to cross-examine defendant with statements made by defendant to a non-testifying psychiatrist during a fitness and sanity examination where no insanity defense was raised. We reverse and remand for a new trial.
The trial testimony established that in October 1995, Tiffany and her three children moved into an apartment with defendant. Defendant quit his job and began selling drugs. Tiffany and defendant argued about his drug dealing. In January 1996, Tiffany and her children moved in with Tiffany's mother, Marcia Jacobs. Tiffany gave birth to a baby boy, Malcolm, in March 1996. On April 25, 1996, defendant visited Tiffany at her mother's house, they argued and defendant stabbed Tiffany repeatedly. Assistant State's Attorney McLaughlin testified that she interviewed defendant after his arrest on June 10, 1996. After advising defendant of his Miranda warnings, the defendant agreed to answer questions and McLaughlin wrote out a six-page statement. Defendant reviewed it, made corrections and then signed the statement.
Defendant's statement indicated that on April 25, 1996, he went to see Tiffany. Defendant, Tiffany, and baby, Malcolm, went into the basement of the house. After Tiffany and defendant talked awhile, Tiffany went upstairs and returned to the basement with a steak knife. Defendant stated that they began to argue. Tiffany got a skate. Defendant stated that he knew that she was not going to hit him with the skate because "she would never do that." Defendant's statement indicated that defendant was angry and he "stuck the knife into Tiffany's side." He did not remember how many times he stabbed her. Tiffany fell to the floor, told him that she loved him and asked him to put their baby in her arms. He brought Tiffany the baby, and then she told defendant to leave before the police arrived. Defendant stated that he dropped the blade of the knife into the toy box. Defendant's statement indicated: "Since I did this, I have just been waiting to get caught."
Dr. Larry Sims, a forensic pathologist, testified that multiple stab wounds caused the victim's death. On cross-examination, Dr. Sims testified that the hemorrhaging under the victim's fingernails was possibly consistent with the victim holding on to a roller skate very tightly. He did not know whether the victim was the aggressor.
Defendant testified that to support Tiffany and her three children, he began selling drugs. He and Tiffany argued about his drug dealing. He testified that he could not afford to stop selling drugs because he and Tiffany "had a baby on the way, [and] three other little kids in the house." After Tiffany and her three children moved out in January 1996, defendant testified that he continued to see her at her mother's house "two or three times a week." Defendant testified that when he arrived at the house on April 25, 1996, he and the victim talked briefly in the basement. Defendant said while he held Malcolm, the victim again went upstairs and returned with a "steak knife." Tiffany asked defendant when they were going to get an apartment. When defendant replied they would get an apartment as soon as they saved some money, Tiffany got mad and an argument followed.
Defendant testified that, as their argument continued, Tiffany grabbed a roller skate. She began approaching defendant with the roller skate while she informed him that Malcolm might not be his son. Tiffany began swinging the roller skate at him. Defendant said that he picked up the knife in order to defend himself. After Tiffany hit defendant with the roller skate, defendant testified that he "started lashing out" with the knife to defend himself from the roller skate. Defendant testified that once the victim fell to the floor, he stopped. She told defendant that she loved him and asked him to bring Malcolm to her. Defendant placed the baby in her arms, took a bicycle and rode off. When asked if defendant left the victim to die he responded, "I didn't know she was going to die. I didn't know she was hurt that bad."
On cross-examination, defendant testified that he did not intend to kill the victim. Defendant stated that the victim had hit him with a roller skate before he retaliated in self-defense. He denied telling the assistant state's attorney that he knew the victim would not hit him with the skate. Over defense counsel's objection, the State cross- examined defendant with statements defendant made to psychiatrist Dr. Conroe, that the fight with Tiffany only involved fists. The State questioned defendant as to whether he told Dr. Conroe that Tiffany attacked him with a skate and impeached him with the fact that he never mentioned the skate to Dr. Conroe.
I. CROSS-EXAMINATION OF DEFENDANT WITH STATEMENTS MADE TO NON-TESTIFYING PSYCHIATRIST DURING FITNESS AND SANITY EXAMINATION
We first address whether the State can use statements made by defendant to a non-testifying psychiatrist, Dr. Conroe, during a fitness and sanity examination to cross-examine defendant. Neither the State nor the defense called Dr. Conroe as a witness. The admissibility of evidence at trial is within the sound discretion of the trial court and will not be overturned absent an abuse of discretion. People v. Illgen, 145 Ill. 2d 353, 364 (1991). Defendant contends that the trial court erroneously permitted the State to cross-examine him with statements he made to psychiatrist Dr. Conroe during an examination to determine defendant's fitness and sanity for trial. During cross-examination, the State questioned defendant about his failure to tell Dr. Conroe that the victim attacked him with a roller skate before he retaliated in self- defense and the State further elicited the fact that the defendant told Dr. Conroe that the fight involved only fists. Defendant argues that these statements are confidential and privileged since the purpose of the examination of defendant by Dr. Conroe was to determine fitness and sanity. 725 ILCS 5/104-14 (West 1992).
The State argues the statements made by the defendant were not confidential and not privileged, but admissions, properly received in evidence as exceptions to the hearsay rule. The trial court in allowing the State to cross-examine defendant with these statements relied on the homicide exception to the physician-patient privilege. 735 ILCS 5/8- 802(1) (West 1998). The State contends the defendant's statements to the psychiatrist relate directly to the immediate circumstances of the homicide and that the homicide exception to the physician-patient privilege applies.
A. Application of Homicide Exception To Physician-Patient Privilege To Statements Made By Defendant During Fitness and Sanity Examination
The purpose of the physician-patient privilege is to encourage full
disclosure in order to ensure the best diagnosis and treatment for the patient. People v. Wilber, 279 Ill. App. 3d 462 (1996). The patient has an interest, recognized by the legislature, in maintaining confidentiality in his medical dealings with a physician. People v. Florendo, 95 Ill. 2d 155 (1983). Under the statutory physician-patient privilege, no physician shall be permitted to disclose any information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient, unless statutory exceptions apply. People v. Ekong, 221 Ill. App. 3d 559 (1991). Our legislature, by enacting the physician-patient section of the Code of Civil Procedure, established a general prohibition against a physician's disclosure of privileged patient information with certain exceptions. 735 ILCS 5/8- 802 (West 1992). The homicide exception to the physician-patient privilege is at issue in this case and states, in relevant part as follows:
"No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient, except only (1) in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide * * *." 735 ILCS 5/8-802 (West 1992).
While the physician-patient section of the Code of Civil Procedure addresses the disclosure of information acquired by a physician in attending a patient, it does not address the issue of disclosure when a physician conducts an examination of a defendant for determining fitness and sanity in the context of a criminal trial. The statute which does address admissibility of physician-patient communications that occur during fitness examinations is section 104-14 of the fitness statute of the Code of Criminal Procedure, "Use of Statements Made During Examination or Treatment" (725 ILCS 5/104-14 (West 1992)). By enacting section 104-14 of the Code of Criminal Procedure the legislature prohibits the admission against the defendant of statements made by defendant during fitness and sanity examinations unless defendant raises the defense of insanity or drugged or intoxicated condition. The pertinent language in part is as follows:
"(a) Statements made by the defendant and information gathered in the course of any examination or treatment ordered under Section 104-13
shall not be admissible against the defendant unless he raises the defense of insanity or the defense of drugged or intoxicated condition, in which case they shall be admissible only on the issue of whether he was insane, drugged or intoxicated. * * *
(b) Except as provided in paragraph (a) of this Section, no statement made by the defendant in the course of any examination or treatment ordered under Section 104-13 * * * which relates to the crime charged or to other criminal acts shall be disclosed by persons conducting the examination or the treatment, except to members of the examining or treating team, without the informed written consent of the defendant. * * *.
(c) The court shall advise the defendant of the limitations on the use of any statements made or information gathered in the course of the fitness examination. * * *." 725 ILCS 5/104-14(a), (b) (c) (West 1992).
In this case, the trial court recognized that the initial reason for the fitness and sanity examination was for a possible psychiatric defense. However, the trial court concluded that because defendant discussed with Dr. Conroe certain circumstances that led up to the homicide, those statements would be admissible. The defense objected to the State's possession and use of the statements contained in Dr. Conroe's report that were made by the defendant to Dr. Conroe, during the fitness and sanity examination because the defense argued the statements were privileged and not admissible since no insanity defense was raised:
"DEFENSE COUNSEL: I would also suggest that, one, it is covered by the privilege and the privilege keeps it from being tendered because the majority of the reasons for the interview of Mr. Sutton was for his fitness and his sanity, period. Fitness and sanity. The defense is not raised, the insanity defense is not raised, it is not being raised at this time.
PROSECUTOR: I don't have a copy of the subpoena in the file, but my records indicate that I did subpoena it and I received it pursuant to subpoena. * * * They're trying to say there is a privilege even though it says there is no privilege * * *.
DEFENSE COUNSEL: As far as the subpoena is concerned, obviously, Dr. Conroe's interview of Mr. Sutton is privileged and, again, I spoke with the doctor this morning, he said that he did not tender the report.
THE COURT: The road is clear, set out in 735 Illinois Compiled Statutes, 5/8-802, Physician and patient: No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in any professional character necessary to enabling him or her professionally to serve the patient except only, one, the trial for homicide ...