Appeal from the Circuit Court of Cook County 06 CR 25180 Honorable Marcus R. Salone, Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. JUSTICES CAHILL and McBRIDE concurred in the judgment and opinion.
Following a jury trial, defendant Alexander Taylor, an African-American, was convicted of aggravated battery of a senior citizen; aggravated battery to an employee of a hospital engaged in the performance of her duties and aggravated battery that knowingly caused her great bodily harm. After a hearing to reconsider defendant's initial sentence of three concurrent terms of 5 years' imprisonment, the trial court sentenced defendant to three concurrent terms of 3 years' imprisonment in the Illinois Department of Corrections, with a credit of 850 days for time considered served. On appeal, defendant seeks reversal of his convictions, claiming that the trial court: (1) failed to conduct a proper fitness hearing and, as a result, abused its discretion in finding defendant fit to stand trial; (2) erred and violated Batson v. Kentucky, 476 U.S. 79 (1986), when the State exercised two of its peremptory challenges to purposefully exclude two African-American venirepeople from the jury; (3) failed to comply with the mandate of Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)); and (4) improperly allowed the State to present the testimony of one of the victim's medical physicians because: (a) the State failed to disclose "a statement of the doctor's qualifications" as an expert in violation of Supreme Court Rule 412 (Ill. S. Ct. R. 412 (eff. Mar. 1, 2001)); (b) the medical physician's testimony concerning "the victim's psychological injuries was irrelevant"; (c) the medical physician's testimony "contained inadmissible hearsay concerning medications prescribed by a psychiatrist and neurologist"; and (d) the State failed to lay a proper foundation for the medical physician's testimony "concerning the medications prescribed to [the] victim." We affirm.
On November 11, 2006, defendant was charged by indictment with three counts of aggravated battery: one count of aggravated battery of Leonard Giles, a 60-year old hospital security supervisor, pursuant to section 12-4.6(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-4.6(a) (West 2006)) (aggravated battery of a senior citizen); and two counts of aggravated battery of Vida Catalla, a hospital staff nurse, pursuant to section 12-4(b)(7) (720 ILCS 5/12-4(b)(7) (West 2006)) (aggravated battery to hospital personnel engaged in the performance of her duties) and section 12-4(a) (720 ILCS 5/12-4(a) (West 2006)) (aggravated battery that knowingly caused great bodily harm). The charges arose from a physical altercation that occurred while defendant was a patient in a psychiatric unit of the Lincoln Park Hospital where Giles and Catalla were employed.
On December 5, 2006, the Cook County public defender's office was appointed to represent defendant. An assistant public defender requested a behavioral clinical examination (BCX) for defendant to determine his fitness to stand trial because defendant was a psychiatric patient at the time of the offenses.
On March 12, 2007, a fitness hearing was held and Dr. Susan Messina, a clinical psychologist employed by the Forensic Clinical Services (FCS), was the only witness to testify concerning defendant's fitness. Dr. Messina testified that she was a licensed psychiatrist, and the parties stipulated to her qualifications as an expert. Dr. Messina testified that she interviewed defendant on December 11, 2006, and February 8, 2007. She testified that she also reviewed defendant's medical and arrest records. She further testified that she conducted a mental status examination of defendant and opined that defendant demonstrated an understanding of the charges against him, the legal proceedings, and the roles of court personnel.
Dr. Messina also testified that defendant would often become "tangential" in his responses and "focus *** on his own victimization." She testified that defendant had a "distorted perception based on his paranoia and suspiciousness and distrust." Based on those observations, she opined, within a reasonable degree of medical and psychiatric certainty, that defendant was not fit to stand trial because he would be unable to assist counsel in his defense. She further opined that "with appropriate clinical attention and medication" defendant could be restored to fitness for trial within one year. Based on Dr. Messina's testimony, the trial court entered an order finding defendant unfit to stand trial and ordered defendant to be "confined in the least constrictive secure in-patient setting by the Department of Human Services."
At a status hearing on September 24, 2007, the State informed the trial court that it had received a psychiatrist's written report concerning defendant's fitness to stand trial from the Chester Mental Health Center where defendant was confined. The State did not mention who wrote the report and it was not included in the record. According to the State, the report stated that defendant was able to understand the nature of the charges against him and would be able to cooperate in his defense. The State also informed the trial court that a psychiatrist from FCS was prepared to examine defendant on September 25, 2007, and provide an opinion concerning his fitness to stand trial. The trial court instructed defense counsel that a fitness restoration hearing was necessary if defendant was found fit to stand trial and set a date for a fitness restoration hearing to be held on November 7, 2007.
On September 26, 2007, Dr. Nishad Nadkarni, an FCS staff psychiatrist, submitted to the trial court a written evaluation concerning his opinion on defendant's fitness to stand trial. In his written evaluation, Dr. Nadkarni stated that he evaluated defendant on September 25, 2007, and opined that defendant manifested "severe antisocial and borderline character pathology." He opined that defendant demonstrated to him "an adequate understanding of the charges against him, and adequate comprehension of the nature of courtroom proceedings and the roles of various courtroom personnel." He further opined that defendant demonstrated a capacity to assist counsel in his defense, found no evidence that he suffered from adverse effects from his medication regimen that would impair his fitness, and opined that "any observations of noncooperativity *** should be interpreted as volitional on his part." Dr. Nadkarni opined, within a reasonable degree of medical and psychiatric certainty, that defendant "is currently restored to fitness to stand trial, with medication." He stated that defendant's medication regimen consisted of Seroquel, an antipsychotic, and Depakote, a mood stabilizer.
On November 7, 2007, defense counsel informed the trial court that Dr. Nadkarni was unavailable to testify at the fitness restoration hearing, and the trial court continued the matter to December 3, 2007. On that date, Dr. Nadkarni did not testify and the record is not clear whether he even appeared or provided reasons for his failure to testify. Defense counsel then requested that a psychiatrist other than Dr. Nadkarni reevaluate defendant concerning his fitness to stand trial. The trial court ordered defendant to be reevaluated by an FCS psychiatrist other than Dr. Nadkarni and continued the matter to January 7, 2008.
On January 7, 2008, Dr. Andrew Kulik, an FCS forensic psychologist, submitted to the trial court a written evaluation concerning his opinion on defendant's fitness to stand trial. In his written evaluation, Dr. Kulik stated that he evaluated defendant on December 14, 2007, and opined that defendant demonstrated that he "is cognizant of his charge[s], understands the nature and purpose of legal proceedings, and shows the ability to cooperate with counsel in his defense if he so chooses." He also opined that defendant was responding well to his medication regimen of Seroquel and Depakote, and not experiencing any side effects that would impair his fitness to stand trial.
Dr. Kulik also opined in his written evaluation that, after reviewing "the available records and information" he obtained during his interview, he found "no report or documentation" that indicated defendant experienced any symptoms of mental disease or defect which would have caused him "to lack the substantial capacity to appreciate the criminality of his conduct at the time of the alleged offense." Dr. Kulik opined, within a reasonable degree of medical and psychiatric certainty, that defendant "is fit to stand trial with medication, *** was legally sane at the time of the alleged offense, *** and had the ability to understand Miranda [warnings] at the time of his arrest."
Defense counsel informed the trial court that the public defender's office was hiring a private psychiatrist to evaluate defendant's fitness to stand trial and requested a continuance to obtain the private psychiatrist's evaluation and have that medical provider review Dr. Kulik's written evaluation. The trial court granted defense counsel's request for a continuance.
The matter was continued to May 6, 2008, when defense counsel informed the trial court that defendant had been evaluated by a private psychiatrist who agreed with the opinion of Dr. Kulik that defendant is fit to stand trial with medication. The private psychiatrist's name is not in the record and there is also no written evaluation in the record from the private psychiatrist concerning defendant's fitness to stand trial. Defense counsel then stated to the trial court that she would be able to stipulate to defendant's fitness to stand trial. The State then summarized the parties' stipulation as follows:
"THE STATE: Fitness with medication. The stipulation would be that [defendant] was originally seen by Dr. Kulik *** pursuant to court order on December , 2007, in order to render an opinion regarding fitness to stand trial, fitness with meds, sanity and ability to understand Miranda [warnings].
The defendant was found by the doctor within a reasonable degree of medical and psychiatric certainty that he was fit to stand trial with medication. Dr. Kulik found he is cognizant of his charge[s], understand[s] the nature and the legal proceedings, showed the ability to cooperate with counsel if he so chose.
Although he has been diagnosed with mental illness, he, at that time, appeared to be fairing well with his current medication. At that time his medication was Seroquel, an antipsychotic, and [Depakote], a mood stabilizer.
The doctor also opined the defendant was not experiencing any side effects at that time from that medication. I believe [defense counsel] asked Dr. Kulik [sic] at the request of the Public Defender's Office to evaluate the defendant as well, and he was in concurrence most recently with that same diagnosis.
DEFENSE COUNSEL: Correct."
Following the parties' stipulation to defendant's fitness, the trial court did not make any oral or written findings whether defendant was fit to stand trial. The parties then discussed the possibility of a plea offer of time served because, at that point in time, defendant had served 561 days. The defendant was offered three years' imprisonment and the trial court continued the matter to June 2, 2008.
On June 2, 2008, defendant declined the plea offer and the trial court set a trial date for July 14, 2008. On that date, the trial court continued the trial date to September 9, 2008.
On August 6, 2008, defense counsel filed a motion with the trial court requesting a hearing to determine whether defendant could knowingly and voluntarily waive an insanity defense. In the motion, defense counsel stated that she believed that asserting an insanity defense and self-defense would be in defendant's best interest. However, after discussing the two defenses with defendant, she claimed that defendant was adamant that he wanted to assert only a self-defense claim.
The trial court held a hearing on defense counsel's motion on August 13, 2008. The trial court explained to the defendant that if he asserted only a self-defense claim and was found guilty of the charges that he could be sent to a penitentiary, whereas if he asserted an insanity defense and he was able to show he was insane at the time of the offense, or if he was found not guilty he would not be sent to a penitentiary, but to another mental health facility. The following colloquy took place between the trial court and defendant:
"THE COURT: Mr. Taylor, do you understand what I'm saying? DEFENDANT: I understand what you're saying. THE COURT: Can you explain what you understand? DEFENDANT: I understand that if if if THE COURT: If you are found insane at the time of the offense DEFENDANT: If I'm found to be insane.
THE COURT: You may be sent to -- where are we talking? DEFENDANT: I know they sent me to -- they said they send me to Elgin [Mental Health Center], but they sent me to Chester [Mental Health Center]. They almost killed me out there. The guards strangled me. They tore up all my property. ***
THE COURT: I know, you told me about this before. DEFENDANT: It was crazy. I don't want to have to go through that again. Plus, I'm innocent of this crime THE COURT: Tell me what I just tried to explain to you about the difference between an insanity defense DEFENDANT: I know. You said that if I'm found guilty by reason of insanity I go out to one of those places like a hospital. They said I [was] supposed to go to Elgin last time. I didn't. I went to Chester and they almost killed me out there, you know what I'm saying.
THE COURT: I also said that if you're found guilty as charged, you might go where? DEFENDANT: The penitentiary, but I'm not guilty, so I'm going to fight."
The trial court found that defendant's waiver of his insanity defense was given knowingly and voluntarily and entered a written order with that finding. The trial court set a new trial date of October 16, 2008.
On October 16, 2008, jury selection began. Following the swearing in of the venire, the trial court informed and questioned the venire of 22 people concerning certain principles of law, namely: (1) that a defendant is presumed innocent; (2) that he must be proven guilty beyond a reasonable doubt; and (3) that he is not required to offer any evidence in his own behalf. However, the trial court did not inform the potential jurors of a fourth principle of law, namely (4) that a defendant's failure to testify in his own behalf cannot be held against him. These four principles are now commonly known as the "Zehr principles." See People v. Thompson, 238 Ill. 2d 598 (2010); People v. Hammonds, 399 Ill. App. 3d 927, 946 (2010).
With respect to the first three principles of law, the trial court stated, in pertinent part:
"[1.] Under the law the defendant is presumed to be innocent of the charges against him. Is there anyone among you who has any problem with that legal provision that the defendant is presumed to be innocent of the charges against him? If so, please state your objection now. There is no response.
This presumption remains with the defendant throughout every stage of the trial and during your deliberation on the verdict and it is not overcome unless from all this evidence in this case you are convinced beyond a reasonable doubt, that the defendant is guilty.
[2.] The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. And this burden remains on the State throughout the case. Are there any among you who have any problems with that requirement of the law? That the State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case? If so, please voice your exception at this time. There is no response.
[3.] The defendant is not required to prove his innocence, nor is he required to present any evidence on his own behalf. He may rely upon the presumption of innocence. Again, is there anyone among you who has any exception to that provision of the law? If so, make your exception know at this time. There is no response."
Defense counsel did not object to the trial court's instructions or its questioning of the venire. Following the trial court's questioning of the venire, the State requested that the trial court excuse venireperson A.T., an African-American, for cause because of his arrest record. The trial court declined to excuse him for cause and the State exercised a peremptory challenge to excuse him.
The State exercised a second peremptory challenge against venireperson V.W., an African-American, who testified that she was employed as a caseworker, attended church regularly, was unmarried, had no children, and had not been the victim of a crime. Both parties then agreed on and selected the first panel of jurors which consisted of four jurors, three of whom were African-American.
The State then exercised its third peremptory challenge against venireperson L.H., an African-American, who testified that she works with children as a group worker's aid. After the State exercised a peremptory challenge against her, defense counsel raised a Batson claim, arguing that a prima facie Batson claim had been established based on the State's use of all three of its peremptory challenges against African-Americans. The following colloquy took place between the trial court and the State:
"THE COURT: I agree [that three of the four of the jurors in the first panel are African-American], and it is a consideration. All of the challenges have been against African-Americans. That's a consideration also. And I think it is the primary consideration to be addressed.
And I will say as to Mr. T***, I understand it. I understand and believe that there is a [race-]neutral basis for challenging Mr. T***. But as to Ms. H***, Ms. W***, an argument might be made without challenging these people, we would now have in a second panel 3/4ths of that panel may be African-American as well. And so I await an explanation concerning Ms. W*** and [Ms.] H***.
THE STATE: Okay. Well first of all, as far as the reason for excusing these jurors, there's an abundance of people who work in the case worker field, the social worker field. We have only seven peremptories. We can't strike every social worker. But people in that field *** I would think would be sympathetic to the defense. *** [T]his is a case that involved someone who was a patient at a hospital, being cared for at a hospital while he was admitted. So the primary reason is people in the social work field. Ms. H*** is a young woman who works in that field that seems like she would be sympathetic to a patient in a hospital.
As far as Ms. W***, she is a case worker in the same field that would be sympathetic with the issues in this case."
In response, defense counsel stated that the State accepted venireperson E.V., a non-African-American, who testified that she has been a caseworker for the Department of Human Services for 22 years, is married to a caseworker in a supervisory position, has four children, and had been a victim of sexual abuse as a child and a victim of domestic violence. Defense counsel also stated that the State accepted venireperson D.J., a non-African-American, whom defense counsel argued could be considered a caseworker because she testified that she is employed as a supervisor with the Illinois Action for Children, which subsidizes child care.
The State asserted that E.V. and D.J. were employed in supervisory positions "as opposed to working in the field." Defense counsel responded that E.V. had testified that she was a caseworker and that her husband was a caseworker in a supervisory position. The trial court stated as follows:
"THE COURT: From what I know of the case, I don't know that one culture would be predisposed. *** [I]t's not a police case, so I don't know that one culture would be more suited for the defense case or the prosecution case, regarding what I expect the testimony to be."
The trial court found that the State reasons for challenging V.W. and L.H. were race-neutral reasons and allowed the challenges over defense counsel's objections. The parties then selected the second panel of jurors, which consisted of three jurors. E.V. was not selected to the jury, but D.J. was selected to the jury. A second pool of venirepersons were sworn in and interviewed and another 7 venirepersons were selected to the jury, for a total of 12 jurors and 2 alternates. The ratio of African-American jury panel members to non-African-American jury panel members is not clear from the record, nor is that ratio discussed in the parties' appellate briefs.
At trial, the State called five witnesses in its case-in-chief. The witnesses included Catalla and Giles, the victims; Osarosemwen Erhabor, a counselor in the psychiatric unit; Yvonne Arrington, the charge nurse in the psychiatric unit; and Dr. Salud Martinez, Catalla's treating medical physician.
Catalla testified that on October 23, 2006 she was working as a staff nurse distributing medication to patients in the psychiatric unit of Lincoln Park Hospital. She described the psychiatric unit as being divided into two wings, a "general care" wing, which she testified was for patients requiring "less supervision," and a "special care" wing for patients requiring "more supervision." She testified that on that day she was assigned to the general care wing and heard a commotion in the special care wing.
Catalla testified that she then heard a "code gray" announced over the psychiatric unit's loudspeakers. She testified that a code gray is a warning to unit's staff members that a psychiatric patient is "out of control" and that all available staff members in that unit must respond to assist in restraining or secluding the patient from other patients. She testified that, after she heard the announcement, she left the general care wing and entered the special care wing, where she observed defendant talking to his mother on a hospital telephone located in a hallway. She testified that defendant appeared "very angry, very hostile, totally out of control." She also testified that she heard defendant using racial slurs and threatening staff members.
Catalla testified that other staff members responded to the code gray announcement, including Arrington, Erhabor, and Giles. Catalla testified that she attempted to talk with defendant to calm him, but defendant continued to shout into the telephone, "they want to give me a shot!" She testified that she had observed defendant shouting for approximately 10 to 15 minutes, but that another, unnamed, staff member informed her that defendant had been shouting for approximately one hour.
Catalla testified that she then devised a plan to physically move defendant into a "quiet room" to seclude defendant from the other patients in the special care unit. She testified that she planned to use a three- to four-inch thick twin-sized mattress as a shield so that she and the other staff members could come close enough to defendant to immobilize him by grabbing his arms and legs and then move him into the quiet room. Catalla testified that she, Arrington and Giles held the mattress while Erhabor walked alongside of them as they approached defendant. She testified that she was unclear as to what happened after they came close to defendant because the next thing she remembered was that she woke up in the hospital's emergency room.
The State then offered into evidence three photographs of Catalla, without objection. The trial court received the photographs into evidence and they were published to the jury. Catalla testified as a foundation that the three photographs were taken on October 24, 2006, at the hospital and accurately depicted the injuries to her face on that date.
Giles testified that he responded to the code gray announcement and observed defendant talking on a telephone at the end of a hallway and shouting at staff members. He testified that the staff members told him that they planned to use a mattress as a shield in order to approach defendant.
Giles testified that he assisted the staff members in approaching defendant with the mattress. He testified that when they drew near, defendant "bolted out" from behind the mattress and struck him twice in the head. He testified defendant "knocked" him and Catalla to the floor and that he became unconscious after he fell to the floor.
The State offered into evidence four photographs of Giles, without objection. The trial court received the photographs into evidence and they were published to the jury. Giles testified as a foundation that the three photographs were taken on October 23, 2006, at the Chicago police department and accurately depicted the injuries to his face on that date.
Erhabor testified that he accompanied the staff members who approached defendant with the mattress. He testified that as they approached, defendant struck Catalla and Giles with his hands and fists. He testified that defendant struck Catalla "multiple times." He testified that she then fell to the floor and appeared "unresponsive." Erhabor also testified that defendant struck Giles multiple times and Giles also fell to the ...