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People v. Tuduj

Court of Appeals of Illinois, First District, Fifth Division

March 21, 2014

TOM TUDUJ, Defendant-Appellant

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Appeal from the Circuit Court of Cook County. No. 06 CR 13746. Honorable Jorge Luis Alonso, Judge Presiding.



On appeal from defendant's conviction and sentence for the first degree murder of his employer following a negative performance review and for disarming a peace officer, the appellate court affirmed the trial court's judgment after rejecting defendant's contentions that the prosecution failed to present any evidence that defendant was not involuntarily intoxicated as a result of the Ambien he had taken, that his counsel were ineffective in not requesting a second fitness hearing and that the trial court's failure to sua sponte order a second fitness hearing was an abuse of discretion.

For TOM TUDUJ, APPELLANT: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Caroline E. Bourland, Assistant Appellate Defender.

For THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE: Anita Alvarez, State's Attorney, Alan J. Spellberg, Miles J. Keleher, Douglas P. Harvath, Assistant State's Attorneys, Of Counsel.

JUSTICE PALMER delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice McBride concurred in the judgment and opinion.



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[¶1] Following a bench trial, defendant Tom Tuduj was found guilty of first degree murder and disarming a peace officer. Defendant was sentenced to a term of 40 years' imprisonment for murder and to a consecutive term of 5 years' imprisonment for disarming a peace officer. On appeal, defendant contends that: (1) the State failed to present evidence that defendant was not involuntarily intoxicated; (2) his attorneys were ineffective for failing to request a second fitness hearing and the trial court abused its discretion by failing to sua sponte order a second fitness hearing; (3) the trial court abused its discretion and denied defendant a fair sentencing hearing when it declined his attorneys' request for a continuance prior to the sentencing hearing; and (4) defendant received an excessive sentence. We affirm.

[¶2] Prior to trial, defense counsel asked the court for an order allowing defendant to be given a psychiatric and psychological evaluation. The State had no objection and the trial court granted the request. After the State received the defense psychiatric reports, it requested that defendant be evaluated for his fitness to stand trial. Defendant was later evaluated by a psychiatrist, Dr. Andrew Kulik, and a psychologist, Dr. Christofer Cooper, of Forensic Clinical Services. Both doctors submitted reports concluding that defendant was fit to stand trial and legally sane at the time of the offense.

[¶3] At a hearing on April 2, 2008, the prosecutor told the court that the doctors " on both sides" agreed that defendant was fit to stand trial and that neither the State nor the defense had a bona fide doubt as to defendant's fitness. Defense counsel responded, " I don't believe that we do, Judge, but since the issue was raised, we thought we should probably spread that of record."

[¶4] At a hearing on April 25, 2008, defense counsel told the court that the defense was investigating whether defendant's actions on the day of the murder were caused by defendant having been prescribed Wellbutrin (an antidepressant) and Ambien (a sleep aid). Defense counsel stated that the defense investigation indicated that these medications likely caused defendant to commit the crime and raised the possibility of an involuntary intoxication defense. The prosecutor later told the court that he did not believe a fitness hearing was necessary because not even the experts that were hired by the

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defense had found that defendant was unfit to stand trial. Defense counsel responded:

" Your Honor, I think we can go ahead and do it with this understanding. I want to make the representation to the court that I have spent several hours with [defendant], and I'm not questioning his fitness at all; but for purposes of the record, if the court wishes to have the fitness hearing, that's fine."

In response, the court stated that " [i]n an abundance of caution, I think that that's the wise way to proceed." The prosecutor and defense then confirmed their understanding that defendant was not currently on any psychotropic medications. The parties stipulated to the expertise of the two doctors from Forensic Clinical Services who evaluated defendant and to the foundation for the doctors' reports. Finally, the parties stipulated that both doctors would opine, to a reasonable degree of medical certainty, that defendant was fit to stand trial. The court then stated that it had read the doctors' reports and heard from counsel on each side and that it found defendant fit to stand trial.

[¶5] At a hearing on April 2, 2009, the two attorneys representing defendant requested to withdraw from the case. Those attorneys stated that they had an ongoing disagreement with defendant over the defense strategy but that recently it had become an " absolute conflict" to continue to represent defendant. The defense attorneys told that the court that defendant had long maintained that they were ineffective because defendant wanted his attorneys to hire experts regarding the defense of sleep walking as a result of having taken Ambien. Defense counsel stated that the defense had researched the issue but had not hired experts to pursue that defense. However, defendant had recently threatened to file a lawsuit against the attorneys and to " destroy [their] reputation" because they had not pursued defendant's Ambien theory. Defense counsel noted that defendant had not been on any medication since he was released from the hospital following his arrest and speculated that, although he was " not an expert," " there may be part mental illness problem in this communication too." Defendant's other attorney then addressed the court and stated that " I believe, and based on three doctors we have, that Tom is bipolar and he is refusing medication at jail." Defense counsel stated that the doctors hired by the defense believed defendant should be on medication and that, according to one defense expert, " long *** diatribes" that defendant had written to the State's experts were evidence that defendant was in a " hypermanic state." According to defense counsel, defendant " broke into a rap" during a recent visit at jail and told his attorneys he would not allow them to call any witnesses to say he was mentally ill. Counsel believed that defendant would understand what his attorneys " were talking about" if he was medicated. Counsel disagreed with the State's contention that defendant was simply trying to delay the proceedings, to which the court responded, " he (defendant) wouldn't be the first defendant who wanted to sit in Cook County Jail forever as opposed to go [ sic ] to trial." Defense counsel then stated that " there's probably a real fitness issue here, too, but knowing the system, [defendant] probably would come back fit."

[¶6] Defendant personally addressed the court during this hearing. Defendant said he wanted his attorneys to withdraw but that he did not want to represent himself and had not hired another lawyer who was ready for trial the following Monday. Defendant confirmed his understanding that the case was 2 1/2 years old and set for trial and that the victim's relatives were traveling from outside of the country to be

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present for trial. Defendant told the court that he wanted his attorneys to pursue a theory that the side effects of the mixture of drugs he was allegedly taking, including Ambien, caused him to commit the crime while sleepwalking. The court asked the defense attorneys if they had researched this issue. Defendant's attorneys responded that they had done so and they were not proceeding with an Ambien defense based upon the information they received from the experts. Defense counsel also explained that defendant believed they would receive different information if they spoke to " other experts in the field."

[¶7] Defendant again addressed the court and explained his concern about the experts that had been retained by his attorneys and the defense they intended to present. The trial court observed that defendant had " very talented, very experienced" attorneys who were the " best of the best here in Cook County." When asked if they were ready for trial, defense counsel stated " we are ready, Judge, as ready as lawyers can be who ha[ve] a client who wants us to withdraw from the case." The court stated that defendant was engaging in " dilatory tactics" to delay the case on the eve of trial, that the issue between defendant and his attorneys was one of " strategic disagreement" and that it did not believe that there was any need to get another attorney involved. The court further noted that the defense had looked into the issues defendant wanted them to raise and that the case was over two years old and there had been " numerous continuances granted to look at these issues." Accordingly, the court denied defendant's attorneys' motion to withdraw. The court also observed that the case had only been before it for a few court dates, after having been recently transferred from another judge's call, but that " today and based on my observations on the last court dates, it is clear to me that [defendant] understands where he is, what he is doing, and that he is here in the courtroom and that he is understanding what I'm saying and is able to express himself to me here in court."

[¶8] At trial, the State first called Christopher Haase, who testified that he worked for the victim, Gary Poter, at Poter Construction and Development at the time of the incident. On the morning of May 16, 2006, Haase heard a noise from the victim's office and went to investigate. Haase saw defendant's left hand on the victim's neck and the victim coated in blood from the neck down. The victim yelled for Haase to get defendant off him, so Haase grabbed defendant from behind and pulled him away from the victim. The victim took two steps before falling down. While Haase struggled with defendant, office coworkers Jim Koback and William Toby Sandier came to help. Another employee called 911 and the police took defendant into custody. Haase testified that the murder weapon was one of the office kitchen knives. He noted that on the day before the incident, defendant had a performance evaluation and defendant looked visibly upset afterward. Haase did not notice anything unusual about defendant's demeanor in the days leading up to the review.

[¶9] William Toby Sandier testified consistently with Haase. Additionally, Sandier said he had a conversation with defendant after his performance review on May 15, 2006. Defendant told Sandier that he had to take a pay cut and lost his title of chief estimator. The next morning, Sandier stopped by defendant's office to chat with him. Sandier said they had a normal conversation and he did not notice anything unusual or bizarre about defendant's demeanor. About 45 minutes after Sandier started working, he heard a commotion down the hall and a yell for help from Jim Koback. Sandier found Koback and

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Haase restraining defendant against the wall. Blood was everywhere. Another employee, Tim Walsh, was applying pressure to the victim's chest. Sandier took over caring for the victim until the paramedics and police arrived.

[¶10] James Koback corroborated Haase's and Sandier's testimonies. Koback added that defendant was always worried about being fired and that he was inadequate at his job.

[¶11] William Sattler, another employee, testified that he worked with defendant on a daily basis and noted that defendant was a quiet man. During the three months defendant worked at Poter Construction and Development, defendant had expressed to Sattler that he experienced work-related stress.

[¶12] On the day of the incident, Sattler had a meeting with the victim at 7:30 a.m. for about 30 minutes. When Sattler left the victim's office, he saw defendant enter it. Sattler's office was located next to the victim's and, not long after Sattler settled into his desk, he heard the victim scream. Sattler peered into the victim's office to see someone tending to the victim and, at one point, heard someone scream that defendant had stabbed the victim. Sattler went down the hall to assist in making a 911 call.

[¶13] Tim Walsh testified consistently with the State's witnesses. Walsh initially tended to the victim, but when Sandier took over, Walsh left to receive the paramedics and the police.

[¶14] Tamela Augusta, defendant's administrative assistant, testified that she shared an office with defendant. She said defendant was stressed out and very angry after his performance evaluation. Augusta stated that defendant had said, " I can't believe Gary cut my [expletive deleted] pay, and how am I going to be able to pay my [expletive deleted] mortgage." Augusta had never seen defendant as angry as he was after his performance review, but defendant seemed calmer after a second performance evaluation later that same day. Defendant told Augusta that he believed everything would work out.

[¶15] Augusta testified she was present one day when defendant passed out at his desk. Defendant was out of work for two days afterward. He told Augusta he was under a lot of stress and his doctor told him he had a panic attack. Augusta noted that defendant seemed normal and relaxed after that and did not notice irrational behaviors. Defendant told Augusta he was on an herbal medication, St. John's Wart, to help calm his nerves and to sleep. On the morning of the incident, Augusta noticed that defendant had a blank look on his face, inconsistent with his past facial expressions while at the office.

[¶16] Officer Michael Lappe testified that on May 16, 2006, he received a call about a stabbing at 5440 North Cumberland Avenue. When Lappe arrived, he assisted in placing defendant in custody. Defendant followed the officer's direction and did not resist. Lappe read defendant his Miranda rights but defendant did not acknowledge or respond to him.

[¶17] Officer Hubert Rounds, a forensic investigator for the Chicago police department, testified that he and his partner, Zbigniew Niewdach, were assigned to investigate a crime scene at 5440 North Cumberland the morning of May 16, 2006. The victim's office was disheveled and in disarray. There was blood on the floor, walls, desk tops and counter tops. The officers collected a knife that was broken into two parts.

[¶18] Rounds went to the police station, where he inventoried defendant's clothing and took pictures of defendant in the interview room. While in the interview room,

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defendant lunged toward Round's revolver but was restrained by other detectives. Defendant said, " I want to die [,] *** I want to kill myself."

[¶19] Detective Daniel Gillespie testified that he was working as a police officer with Chicago's Area 5 homicide team on May 16, 2006. Gillespie was called to the scene after the victim and defendant were removed. He interviewed the victim's employees and learned about defendant's performance evaluation, his reaction to his salary reduction, his fainting spell and his concerns about being fired. About two hours after the stabbing, Gillespie went to the police station to question defendant. Gillespie said that defendant did not appear confused when he was read his Miranda rights and indicated he understood. Gillespie interviewed defendant for 2 1/2 hours. Defendant was slow in responding to questions about the stabbing but was immediately responsive when the detective offered him water, food and cigarettes. Gillespie noted that defendant became more responsive after a couple of hours of questioning.

[¶20] On cross-examination, Gillespie agreed that he did not ask defendant questions about his mental health. Gillespie explained that since defendant was responsive to questions about food and water, he believed defendant understood the questions but chose when to answer and what to answer. Gillespie said that defendant told him he was on antidepressants and the medication was having an effect on him. He claimed not to remember what happened, repeatedly asked what happened and said that he " did something bad." Defendant told Gillespie he was angry about his performance evaluation. Defendant said he took two pills the morning of the incident and the last thing he remembered was arriving at work, then going to the police station. Defendant also talked about his ex-wife's " spirits," said that her anger was in him, and that she provoked him to do things he would not normally do.

[¶21] Gillespie further testified that defendant admitted his intention was to hurt the victim and that he was mad at the victim for reducing his salary. Defendant told Gillespie he grabbed a knife from the office kitchen, hid it in his sleeve and walked to the victim's office. Defendant admitted to stabbing the victim in the chest and said that he " [expletive deleted] up." Defendant blamed it on his medications and said his medication may have been at home or in his office. Gillespie testified that the police checked for medication on defendant's desk but found none. Gillespie also went to defendant's home to look for medication, but no one was home. Gillespie said no toxicology report was ordered for defendant because he was not sure if defendant was telling him the truth.

[¶22] The parties stipulated that Dr. Nancy Jones, an expert witness in forensic pathology, performed an autopsy on the victim's body on May 16, 2006. Jones would testify that the victim died as a result of multiple stab wounds and the manner of his death was homicide.

[¶23] The parties stipulated that Kelly Ashton, an expert in forensic biology, would testify that blood samples preserved from both the knife and defendant's shirt were forwarded to the DNA unit for further analysis.

[¶24] The parties stipulated that Jennifer Bell, an expert in the field of DNA analysis, would testify that two human DNA profiles found on the knife and defendant's shirt matched the DNA profiles of the victim and defendant.

[¶25] Defendant's first witness, Dr. Orest Wasyliw, was qualified as an expert in psychology and neuropsychology. Defendant's

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attorneys asked Wasyliw to assess defendant and determine if he was suffering from a mental disorder. Wasyliw performed psychological testing on defendant, conducted a clinical interview and reviewed other experts' reports. He also reviewed the video of defendant's interrogation and hospital records, including records from Cermak Hospital, where defendant was first evaluated after his arrest. Wasyliw's tests did not show evidence of malingering though the doctors at Cermak Hospital identified three instances where defendant may have been malingering. Wasyliw diagnosed defendant with a mood disorder and said defendant displayed both depressive and manic symptoms. Wasyliw said that these two symptoms indicated a likelihood of bipolar disorder, but he did not diagnose defendant with bipolar disorder.

[¶26] Wasyliw said defendant had a history of alcohol abuse and defendant reported having derogatory auditory hallucinations, memory problems and physical symptoms, including muscle twitching. Wasyliw also learned that defendant fainted at his workplace because he was stressed and not sleeping well. After defendant's fainting spell, he was prescribed three medications: Wellbutrin, an antidepressant; Ambien, a sleep aid; and propranolol or Inderal, a medication for high blood pressure and hypertension.

[¶27] Wasyliw testified he believed that, at the time of the homicide, defendant was in a drugged state that prevented him from conforming his behavior to the requirements of law. Wasyliw failed to state this diagnosis in his report and acknowledged that he had no formal medical school training and no training in the particular medications prescribed to defendant. Wasyliw also acknowledged that the doctors at Cermak Hospital did not diagnose defendant with neurotoxicity, a mood disorder or psychosis. Instead, the doctors at Cermak Hospital diagnosed defendant with adjustment disorder, and defendant's medical records indicated he was suffering from depression, anxiety and poor sleep.

[¶28] On cross-examination, Wasyliw agreed that defendant's statements may not have been trustworthy since his answers about his drinking problems and hallucinations had been inconsistent. Wasyliw also agreed that defendant may have rehearsed lies about his symptoms because he had Internet printouts of the symptoms. But, Wasyliw stated that defendant gave statements relating to his disorder before conducting internet research.

[¶29] Dr. Lisa Rone was qualified as an expert in clinical psychiatry and testified on behalf of defendant. She admitted that she has never before worked on an involuntary intoxication defense. Dr. Rone reviewed various documents, including police records, witness reports, medical records, defendant's interrogation video and testing reports from other experts, and she met with defendant for three hours. Defendant told Dr. Rone about his paranoia concerning his performance evaluation and said he was upset about his salary reduction. Defendant also reported that he was sleep deprived and took Ambien the night before the homicide. Before the homicide, defendant experienced hallucinations and said he did not remember anything about the incident. Dr. Rone said defendant's disoriented demeanor in the interrogation video was consistent with his story.

[¶30] Dr. Rone opined that defendant was suffering from a mistreated bipolar disorder on the day of the homicide. She said defendant's primary care doctor misdiagnosed defendant with depression and anxiety, and inappropriately prescribed the medication Wellbutrin XL. The Wellbutrin could have caused defendant to " switch" from depression to mania. Dr. Rone explained

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that defendant's mood disorder required a mood stabilizer before taking an antidepressant. Dr. Rone believed that defendant's bipolar condition had worsened and the Wellbutrin exacerbated his paranoia. Dr. Rone concluded that at the time of the homicide, defendant was unable to conform his conduct to the requirements of the law and that Wellbutrin exacerbated his illness. But, Dr. Rone admitted that neither her report nor Dr. Wasyliw's report stated defendant was unable to conform his conduct to the requirements of law. Additionally, Dr. Rone only believed Wellbutrin and not Ambien had an effect on defendant's bipolar state. Although it was unclear whether defendant took Wellbutrin every day, Dr. Rone stated that the drug would still be in defendant's blood stream two days later.

[¶31] Dr. Rone found defendant's accounts of when he took his medication inconsistent but said the inconsistencies could be attributed to memory problems. Dr. Rone deduced from Dr. Wasyliw's memory tests and from defendant's demeanor that he was in a " confusional state" during the police interrogation. But, defendant began to come out of this confusional state when he started giving the police a more detailed account of the stabbing.

[¶32] On cross-examination, Dr. Rone admitted that she based her diagnosis on defendant's self-reports and a manic episode defendant had in 2005. Dr. Rone admitted that her report erroneously stated that a doctor at Cermak Hospital had diagnosed defendant with bipolar disorder. She testified that Wellbutrin may cause a manic episode in a bipolar patient, but testified that defendant had not shown manic symptoms during his police interrogation. Dr. Rone agreed that defendant could recall several benign events on the day of the homicide yet claimed an inability to recall the homicide itself. She also agreed that defendant spoke softly to the detectives during his interrogation but was able to raise his voice when he wanted something.

[¶33] Dr. Rone testified that bipolar disorder is a chronic disease that does not go away. She acknowledged that defendant has been in the general population since he left Cermak Hospital and was not on medication at the time of the trial. While defendant now blames the side effects of Ambien for his behavior, Dr. Rone believed Ambien was not responsible for defendant's actions. Dr. Rone admitted that Ambien may be a factor as to why defendant was more " out of it" on the DVD, but she did not think it exacerbated his bipolar illness. Though Dr. Rone acknowledged that Ambien should not be mixed with antidepressants, she stated that psychiatrists, including herself, have prescribed Ambien and antidepressants as sleep aids.

[¶34] Dr. William Gilmer, an expert in clinical psychiatry and pharmacology, testified next for defendant. Gilmer reviewed all available reports on defendant but did not meet with him. Gilmer testified consistently with Dr. Rone and said that defendant suffered from a bipolar disorder exacerbated by Wellbutrin. He explained that antidepressants typically take 12 to 16 weeks to have full therapeutic effect but antidepressants can have a more immediate effect on bipolar patients. Even an introductory amount of Wellbutrin can cause a " mood cycle" or " switch" in a bipolar person. Gilmer admitted that it is more difficult to diagnose a patient who is abusing alcohol or drugs because those substances may influence one's emotional state.

[¶35] Gilmer testified that defendant's actions were consistent with Dr. Rone's diagnosis. He believed that defendant's conduct during the ...

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