Appeal from the Circuit Court of the Tenth Judicial Circuit, Peoria County, Illinois, No. 02-CF-45. Honorable Thomas G. Ebel, Judge Presiding.
The opinion of the court was delivered by: Justice Slater
Defendant Robert Mallek was convicted of retail theft (730 ILCS 5/16A-3(a) (West 2002)) and was sentenced to an extended term of six years' imprisonment. On appeal the defendant contends that: (1) the trial court erred in failing to hold a fitness hearing; (2) he was deprived of a fair trial when the state elicited evidence of his post-arrest silence; and (3) the trial court erred in failing to consider the jury's request for transcripts of the trial testimony. We affirm.
On April 29, 2002, defendant's appointed counsel, Assistant Public Defender Hugh Toner, filed a motion for a psychological examination to determine defendant's fitness to stand trial. On the same date, the defendant filed a pro se motion to represent himself. In that motion the defendant stated that he was competent and that a fitness hearing was unnecessary. The trial judge appointed Dr. Jane Velez to examine the defendant.
On August 6, 2002, the parties appeared in court for trial. The defendant indicated that he wanted to represent himself. The trial court noted that it had not received a report from Dr. Velez. Defense counsel then tendered a copy of the report to the court, commenting that the report found the defendant "fit and not qualified for an insanity defense." The court then asked:
"THE COURT: So you're withdrawing --
MR. TONER [Defense counsel]: That would be correct, Judge."
The court then stated that the defendant appeared to be rational and intelligent and it found that defendant had knowingly and voluntarily waived his right to counsel. On appeal, defendant maintains that the trial court erred in failing to hold a fitness hearing. Relying on People v. Cleer, 328 Ill. App. 3d 428, 766 N.E.2d 311 (2002), the defendant argues that a bona fide doubt of fitness was implicitly found when the court granted defendant's motion for a psychological examination. We disagree.
In Cleer, we held that "[u]pon accepting the motion [for a fitness evaluation] and appointing a qualified expert, the trial court implicitly concluded that a bona fide doubt as to the defendant's fitness did exist." Cleer, 328 Ill. App. 3d at 431, 766 N.E.2d at 314. We further held that because a bona fide doubt has been raised when the court grants the motion for an evaluation, the trial court then must conduct a fitness hearing. Cleer, 328 Ill. App. 3d 428, 766 N.E.2d 311.
Recently, the Illinois Appellate Court, First District, rejected our ruling in Cleer in People v. Hill, 345 Ill. App. 3d 620, 803 N.E.2d 138 (2003). The Hill court stated that the holding of Cleer is contrary to the language of section 104--11(b) of the Code of Civil Procedure of 1963 and Illinois Supreme Court precedent. Section 104-11(b) states:
"(b) Upon request of the defendant that a qualified expert be appointed to examine [the defendant] to determine prior to trial if a bona fide doubt as to [the defendant's] fitness to stand trial may be raised, the court, in its discretion, may order an appropriate examination." 725 ILCS 5/104--11(b) (West 2002).
The court in Hill pointed out that the plain language of section 104-11(b) contemplates the appointment of an expert to determine whether a bona fide doubt of the defendant's fitness "may be raised." The Hill court submitted that the language of section 104--11(b) lends no support to the holding of Cleer. We reached the same conclusion in People v. Vernon, 346 Ill. App. 3d 775, ___, 805 N.E.2d 1222, 1225 (2004), noting that appointment of an expert under section 104--11(b) "clearly cannot be considered a conclusion, implicit or otherwise, concerning a bona fide doubt of the defendant's fitness."
The Hill and Vernon courts also rejected Cleer by suggesting that its holding contradicted Illinois Supreme Court precedent such as People v. Harris, 206 Ill. 2d 293, 794 N.E.2d 181 (2002); People v. Burt, 205 Ill. 2d 28, 792 N.E.2d 1250 (2001); People v. Easley, 192 Ill. 2d 307, 736 N.E.2d 975 (2000); and People v. Eddmonds, 143 Ill. 2d 501, 578 N.E.2d 952 (1991). In those cases, our supreme court stated that when determining whether a bona fide doubt of the defendant's fitness exists, trial courts are to consider the following factors: (1) the defendant's irrational behavior; (2) the defendant's demeanor during the proceedings; and (3) any previous medical opinion on the defendant's fitness. The Hill and Vernon courts noted that if the granting of the defendant's motion for a fitness evaluation was sufficient to create a bona fide doubt of the defendant's fitness, these factors would become irrelevant. We agree.
For these reasons, we find that the trial court's decision to order an evaluation of defendant's fitness did not create a bona fide doubt of fitness. Accordingly, the court did not abuse its discretion in failing to hold a fitness hearing. As succinctly stated in People v. Kalwa, 306 Ill. App. 3d 601, 613, 714 N.E.2d 1023, 1031 (1999):
"It is well settled in Illinois that where no bona fide doubt as to a defendant's competency to stand trial exists, a psychiatric report shows defendant fit and the defendant moves for or acquiesces in the withdrawal of a petition requesting a fitness hearing, there is no abuse of discretion where the court fails to hold a fitness hearing sua sponte. People v. Hicks, 35 Ill. 2d 390, 394, 220 N.E.2d 461 (1966); People v. Mayhew, 18 Ill. App. 3d 483, 488, 309 N.E.2d 672 (1974)."
Testimony concerning defendant's post-arrest silence
The defendant next asserts that he was denied a fair trial when the State elicited testimony regarding defendant's post-arrest silence. The defendant acknowledges that he failed to object to the allegedly improper testimony and he also failed to file a post-trial motion. He asks that we consider this issue under the plain error rule, which permits a reviewing court to consider a trial error that has not been properly preserved if the evidence is closely balanced or if the error is so fundamental and of such a magnitude that the defendant was denied a fair trial. See People v. Herrett, 137 Ill. 2d 195, 561 N.E.2d 1 (1990). We therefore consider the evidence presented at defendant's trial.
Wesley Williamson, an assistant manager of Kroger's grocery store in Peoria, Illinois, testified that the defendant approached him on January 9, 2002, and asked where the eyeglass repair kits were located. The defendant seemed jumpy and erratic and knocked items off a display shelf in front of the pharmacy as Williamson showed defendant where the eyeglass kits were. Williamson started to pick up the fallen items, and defendant helped him. After that, defendant proceeded toward the rear of the store. Because of defendant's nervous activity, Williamson watched the defendant walk toward the back of the store and saw him put the eyeglass repair kit in his pocket. Williamson continued to observe defendant's progress through the store and, as defendant started toward the front, Williamson stood at the exit portion of the checkout lanes. He saw the defendant check out and pay for a few items; the eyeglass repair kit was not among those items. The defendant then left the checkout lane and turned right, heading toward the exit door. Williamson stopped defendant and asked him to go upstairs. Once there, Williamson asked the defendant for the merchandise in his pocket. Defendant removed the eyeglass repair kit from his left front pocket and handed it to Williamson.
The defendant, acting pro se, cross-examined Williamson and established that there was a customer service desk between the checkout lanes and the exit where such things as cigarettes and money orders could be purchased. Williamson testified that there were two customer service ...