Appeal from the Circuit Court of Cook County. Nos. 01 CR 28427 01 CR 28428 Honorable Arthur F. Hill, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice R. Gordon
JUSTICE R. GORDON delivered the judgment of the court, with opinion. Presiding Justice Lampkin and Justice Hall concurred in the judgment and opinion.
¶ 1 After a bench trial, defendant, 19-year-old Nathaniel Stephens, was convicted of the first degree murder and aggravated battery of four-month-old Destiny Nelson (the victim). Each offense occurred on a different date. Defendant admitted in a videotaped confession to the first degree murder by hitting the victim's head into a door frame three times and punching the victim in the ribs three times to stop the victim from crying. Defendant was originally sentenced to two concurrent sentences of 25 years' imprisonment in the Illinois Department of Corrections.
¶ 2 On December 24, 2009, we affirmed defendant's convictions, vacated the order of concurrent prison terms, and remanded for resentencing to consecutive prison terms. People v. Stephens, Nos. 1-05-3365, 1-05-3366 cons. (2009) (unpublished order under Supreme Court Rule 23). On remand, the trial court, in the absence of defendant and his counsel, resentenced defendant to two consecutive 25-year sentences in the Illinois Department of Corrections.
¶ 3 On this post-conviction appeal, defendant argues: (1) that the trial court erred in summarily dismissing defendant's pro se post-conviction petition because defendant made a meritorious constitutional claim that his trial counsel was ineffective for failing to request a fitness evaluation for defendant; (2) that defendant's appellate counsel was ineffective when appellate counsel failed to claim that defendant did not intelligently waive his Miranda rights in defendant's petition for leave to appeal to the Illinois Supreme Court; and (3) that defendant's two consecutive 25-year prison sentences are void because the trial court, upon remand, changed the sentencing from concurrent terms to consecutive terms without a sentencing hearing and in the absence of defendant and his attorney. For the reasons that follow, we affirm and remand for resentencing.
¶ 5 During 2001, defendant was the sometime-live-in boyfriend of Trenetta Richardson, the mother of the four-month-old victim. On October 25, 2001, while defendant babysat her, the victim suffered a broken leg. The victim died from blunt trauma injuries on November 2, 2001, after being in defendant's care. On November 3, 2001, in a videotaped confession, defendant admitted to hitting the victim's head into a door frame three times and punching the victim in the ribs three times on November 2, 2001, to stop the victim from crying.
¶ 6 Defendant was charged in separate indictments with: (1) aggravated battery to a child for the incident on October 25, 2001, when the victim suffered a broken leg; and (2) first degree murder for the incident on November 2, 2001, when the victim died from blunt trauma injuries.
¶ 7 I. Pretrial Proceedings
¶ 8 Defendant filed a motion to suppress statements that defendant had made to the police and Assistant State's Attorney (ASA) Richard Nathaniel. Defendant argued that because of his mental retardation, he did not knowingly and intelligently waive his Miranda rights prior to making several statements, including the videotaped confession to the police and the ASA. To support this claim, on February 4, 2004, defense counsel presented three experts to testify to defendant's mental impairments. However, trial counsel did not request a fitness evaluation for defendant.
¶ 9 The three defense experts presented evidence of defendant's mental impairments and inability to knowingly and intelligently waive his Miranda rights before he made inculpatory statements. The experts were: Dr. Larry Heinrich, a certified school psychologist and board-certified forensic examiner in psychology; Dr. Roni Seltzberg, a psychiatrist employed by the circuit court of Cook County's Forensic Clinical Services; and Dr. Dawna Gutzmann, a Forensic Clinical Services psychiatrist.
¶ 10 The evaluations conducted by Drs. Seltzberg and Gutzmann were originally at the request of the State after the State was presented with Dr. Heinrich's results. However, Dr. Seltzberg's and Dr. Gutzmann's opinions supported Dr. Heinrich's findings.
¶ 11 Dr. Heinrich testified that he reviewed defendant's school records and videotaped confession and the information defendant offered him on defendant's criminal background. Dr. Heinrich evaluated defendant on October 29, 2002, by speaking with him and administering three standardized psychological tests. However, defendant did not provide Dr. Heinrich with his complete criminal history.
¶ 12 Dr. Heinrich opined that it was immediately evident to him that defendant "had very clear cognitive limitations" which "any average person could see in trying to have a conversation" with defendant. Dr. Heinrich testified that defendant informed him that "he had been in special education classes and that he had never really been able to learn to read and write and that he always had difficult[y] because what he thought may have been the result of fluid on his brain when he was a young child."
¶ 13 Dr. Heinrich opined that defendant suffers from mild retardation. Based on the Weschler test, Dr. Heinrich testified that defendant's full-scale IQ score is 64, which places him in the mildly mentally retarded range, which is typically between 65 and 70. Based on the Wide-Range Achievement Test, which measures spelling, word reading, and math, defendant "was functioning at about the first-grade level at best" and at the third-grade level for math.
¶ 14 After viewing the videotaped confession, Dr. Heinrich testified that defendant was "quite stilted and formatted" because defendant "generally agreed or disagreed [to questions presented to him] without volunteering or providing much spontaneous [personal] information."
¶ 15 Dr. Heinrich's overall opinion was that defendant was unable to intelligently and voluntarily waive his Miranda rights due to his cognitive limitations and vulnerability to suggestion. Dr. Heinrich also testified that defendant did not understand the difference between an assistant State's Attorney and a public defender nor the purpose of the attorney who was present with defendant during the videotaped confession.
¶ 16 Dr. Heinrich did not verify defendant's criminal history and was unaware that defendant was arrested a total of nine times with two convictions on drug charges. Dr. Heinrich also "did not go over each of the Miranda rights" with defendant and his opinions are therefore not based on defendant's explanation to his understanding or lack of understanding of each individual right.
¶ 17 Dr. Seltzberg testified that she reviewed Dr. Heinrich's report, defendant's records, police reports, the victim's autopsy, the transcript of the videotaped confession, the video itself, defendant's school records, and defendant's criminal record before meeting with defendant.
¶ 18 Dr. Seltzberg testified that defendant's alternative to high school under the Cook County Department of Corrections concluded on August 9, 2002; that defendant was taking classes to continue his education and has a "disability at the cognitively delayed two, No. 2, moderate level"; and that his reading scores were at the kindergarten level, and his math scores were at the third-grade level. Additionally, his psychological evaluation conducted on December 2, 2002, by the school, showed that defendant has "global intellectual reasoning deficits."
¶ 19 Dr. Selztberg testified that on June 9, 2003, before conducting her interview with defendant, she advised defendant of the purpose of the interview and that it was non-confidential. Dr. Seltzberg testified that defendant had difficulty comprehending her advisory statements and that she had to repeat them and "break it down even more simply."
¶ 20 During the interview, Dr. Seltzberg testified that defendant stated that he assumed ASA Nathaniel was his defense lawyer because an officer told him that "a lawyer would be coming for him" and that when ASA Nathaniel arrived he introduced himself "as a person by the name of Nate" and "talked about having the same name." Dr. Seltzberg testified that defendant thought he would be let go if he "told them what they wanted."
¶ 21 When Dr. Seltzberg asked defendant about his right to remain silent, Dr. Seltzberg testified that defendant repeated the right but could not explain its meaning. Dr. Seltzberg testified that defendant has the capacity to learn the meaning of the Miranda rights over time. Dr. Seltzberg testified that it is her understanding that defendant's comprehension of Miranda rights increased by being in custody and speaking with other detainees, attorneys, and doctors.
¶ 22 Dr. Seltzberg testified that defendant did not know what to do in making the decision to allow a videotaped confession because he was not familiar with murder cases like he was with drug cases. Dr. Seltzberg testified that she found it significant that defendant would not ask for a lawyer if he was caught with drugs because it would "do [him] no good" but "if he didn't have drugs on him, then asking for a public defender might be a good idea."
¶ 23 Dr. Seltzberg testified that, in her opinion, although defendant showed some understanding of his rights, he did not understand them at the time of his arrest and that "he continues to reveal impaired understanding of these rights even at this time."
¶ 24 Dr. Dawna Gutzmann performed an evaluation of defendant on August 25, 2003. Dr. Gutzmann testified that she reviewed the reports created by Drs. Heinrich and Seltzberg, defendant's student records, probation records, police reports, a transcript of the videotaped confession, and a criminal history record before evaluating defendant. Dr. Gutzmann testified that she did not view the video because she did not have the time.
¶ 25 When Dr. Gutzmann asked defendant how he arrived at his decision to agree to a videotaped confession, defendant responded that "the public defender named Nate came in talking to me." Upon cross-examination, Dr. Gutzmann testified that defendant responded correctly when he defined a State Attorney's role as "try to find you guilty." However, Dr. Gutzmann added that when she asked defendant to define the role of an assistant State's Attorney, defendant responded that, "they never said nothing about no assistant." Dr. Gutzmann further testified that when she asked defendant whether an individual can request an attorney during questioning, even if he cannot afford one, defendant's response was, "I don't know if you can ask. Maybe you can. I don't know."
¶ 26 Dr. Gutzmann opined that defendant did not adequately understand his Miranda rights because he did not fully comprehend his right to an attorney and that his conduct was consistent with mild mental retardation.
¶ 27 Drs. Heinrich, Seltzberg, and Gutzmann all agreed that defendant was not malingering during their evaluations.
¶ 28 The State presented no expert testimony. However, the State presented testimony from Area 3 Chicago police detectives Robert Jellen and Steven Schorsch.
¶ 29 Detective Jellen testified that he and his partner, Detective Mark Czworniak, spoke with defendant at defendant's home at about 1:50 p.m. on November 3, 2001, and that he asked defendant to accompany them to the Area 3 Division police station. At approximately 2:20 p.m. on November 3, 2001, Detective Jellen read the Miranda rights to defendant from the Fraternal Order of Police book before speaking with defendant about the victim's death. Detective Jellen testified that defendant responded "yes" when Detective Jellen asked him if he understood each Miranda right.
¶ 30 Upon cross-examination, Detective Jellen testified that he did not recall inquiring about defendant's educational background nor did he make any attempt to determine whether defendant could read.
¶ 31 Detective Schorsch testified that he met defendant on November 3, 2001, at approximately 7 p.m. along with his partner, Detective Solbolewski. Detective Schorsch testified that he advised defendant of his Miranda rights, explained each one, and asked defendant if he understood each right. Detective Schorsch testified that defendant responded "yes" to indicate that he understood each Miranda right. Detective Schorsch testified that he took defendant to Detective Kevin Howley at approximately 8:30 p.m. on November 3, 2001, for a polygraph examination, which was not performed. At approximately 10:15 p.m., Detective Schorsch met with defendant in the presence of Detective Howley and defendant demonstrated how he struck the victim.
¶ 32 Detective Schorsch testified that he was also present when defendant met with ASA Richard Nathaniel. Detective Schorsch testified that ASA Nathaniel introduced himself to defendant and informed defendant that he was a prosecutor and not his attorney and then informed defendant of his Miranda rights. Detective Schorsch also testified that ASA Nathaniel explained the difference between a prosecutor and defense attorney to defendant and that defendant indicated that he understood the difference. However, upon cross-examination, Detective Schorsch testified that his report does not indicate that ASA Nathaniel explained the difference between the roles of a State's Attorney and a public defender. Detective Schorsch testified that at approximately 6:53 a.m. on November 4, 2001, defendant was videotaped as he confessed to the murder of the victim.
¶ 33 The trial court denied defendant's motion to suppress, stating that the opinions of the three experts were "significantly defective."
¶ 34 The trial court found Dr. Heinrich's opinion to be defective because: (1) Dr. Heinrich did not review defendant's criminal history or the police report; (2) the court disagreed with Dr. Heinrich's opinion that the videotaped confession was stilted and formatted and possibly rehearsed; (3) Dr. Heinrich did not review each of the Miranda rights with defendant; and (4) Dr. Heinrich was unaware that defendant was read his Miranda rights by Detective Schorsch.
¶ 35 The trial court found Dr. Seltzberg's opinion to be defective because: (1) Dr. Seltzberg's opinions were not objective because she reviewed Dr. Heinrich's report prior to evaluating defendant; (2) Dr. Seltzberg was unaware that defendant was read his Miranda rights by Detective Schorsch; and (3) Dr. Seltzberg did not provide any factual basis for her opinion that defendant may have gained understanding of his rights after his arrest from other detainees, doctors, and attorneys.
¶ 36 The trial court found Dr. Gutzmann's opinion to be defective because: (1) Dr. Gutzmann's opinions were not objective because she reviewed Drs. Heinrich's and Selztberg's reports prior to evaluating defendant; and (2) Dr. Gutzmann did not view the videotaped confession.
¶ 38 Defendant waived his right to a jury trial on June 13, 2005, and was tried in a bench trial on June 14, 2005.
¶ 39 The State presented testimony from: (1) Trenetta Richardson, the mother of the victim; (2) Ivan Suarez, a babysitter for the victim; (3) Jeffrey Jones, the boyfriend of Ivan Suarez; (4) Lisa Stevens, the sister of Ivan Suarez; (5) Dr. Nancy Jones, a Cook County deputy medical examiner; (6) Area 3 Chicago police detectives Robert Jellen and ...