Appeal from the Circuit Court of Cook County No. 07 CR 24289 Honorable John T. Doody, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham concurred in the judgment and opinion. Justice Karnezis dissented, with opinion.
Defendant, Roger Moore, was found guilty by a jury of delivery of a controlled substance and sentenced to seven years' imprisonment. 720 ILCS 570/401(d)(I) (West 2008). Defendant urges this court to consider whether statements he made to the trial court before his trial commenced, in which he indicated that he had not taken his medication on the day of trial or two days prior to trial, raised a bona fide doubt regarding his fitness to stand trial.*fn1 We find that the court psychiatrist's testimony was uncontradicted that defendant needed to be on medications to be fit for trial. The defendant's not being on medication immediately before and during trial raised a bona fide doubt as to his fitness to stand trial. The trial court erred when it did not sua sponte order a fitness hearing. We remand with directions to the trial court to conduct a retrospective fitness hearing to determine the defendant's competency at the time of trial.
The circuit court sentenced defendant on March 3, 2009. The following day, defendant timely filed his notice of appeal. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, §6; Ill S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
Following a jury trial, defendant was found guilty of delivery of a controlled substance and sentenced to seven years' imprisonment. 720 ILCS 570/401(d)(I) (West 2008). Prior to trial, the trial court conducted a fitness hearing on August 7, 2008. At the fitness hearing, Dr. Dawna Gutzmann, a psychiatrist with the Forensic Clinical Services for the circuit court of Cook County, testified as to defendant's fitness to stand trial. Dr. Gutzmann diagnosed defendant with depressive disorder not otherwise specified, and alcohol, cocaine, and heroin dependence. Dr. Gutzmann testified she had the impression that defendant was "malingering," which she explained is "the intentional feigning or exaggerating of symptoms of physical or mental illness for secondary gain." Dr. Gutzmann testified that defendant reported to her that he was experiencing auditory hallucinations and that he heard voices, but that he could not understand what the voices were saying. Defendant was prescribed 150 milligrams of Zoloft to be taken each morning and 100 milligrams of doxepin at bedtime. Both medications are for treating depression. On direct examination, when asked whether defendant's prescribed medications "impact his ability to cooperate or assist in his defense with counsel," Dr. Gutzmann responded, " [i]n my opinion, he needs those medications in order to be fit for trial." On cross-examination, Dr. Gutzmann added, "[i]t's my opinion that if he was not taking the medication, that he would - - there is a substantial probability that he would become unfit to stand trial." On re-cross-examination, Dr. Gutzmann was asked whether she "found Mr. Moore fit to stand trial under the assumption that he would continue to be medicated up until and through the trial time." Dr. Gutzmann responded, "Yes." The trial court found defendant fit to stand trial with medication.
Prior to selecting the jury, defendant's attorney renewed the issue of defendant's fitness to stand trial, arguing that there was no evidence that defendant was on any medication when the crime occurred. The State asked the court to inquire whether defendant had taken his medication, which the trial court did. The following exchange took place between the court and defendant:
"THE COURT: When did you take [the medications] last? DEFENDANT: Yesterday. I didn't get none this morning. They didn't call me out.
THE COURT: And when do you take them; everyday? DEFENDANT: I take it twice a day.
THE COURT: Okay, if Counsel could double check on that. I'm not sure what, if any, affect it would have if he hasn't yet had his today's dosage.
But you did have it yesterday?
DEFENDANT: I had last night's dose but not this morning. I get it in the ...