Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 06 CR 16086-02. The Honorable Brian K. Flaherty Judge, presiding.
For Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, David T. Harris, Assistant Appellate Defender, Office of the State Appellate Defender, First Judicial District, Chicago, IL.
For Appellee: Anita Alvarez, State's Attorney, County of Cook, Alan J. Spellberg, Mary P. Needham, Jocelyn M. Schieve, Assistant State's Attorneys, Chicago, IL.
JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
[¶1] Defendant Romarr Gipson was tried and sentenced as an adult for offenses he committed as a juvenile. After defendant was automatically transferred from juvenile court to adult court, the court found him unfit to stand trial but later determined he had been restored to fitness. The trial court found defendant guilty of the attempted first-degree murder of Clifton Smith and Anthony Milton, aggravated battery with a firearm and aggravated discharge of a firearm. The court also found that he personally discharged a firearm. Acknowledging its limited sentencing discretion, the trial court imposed the minimum sentence for two counts of attempted murder, a cumulative sentence of 52 years in prison. On appeal, defendant challenges the fitness restoration proceedings, the imposition of two firearm enhancements and the constitutionality of the statutory transfer and sentencing scheme. We reverse and remand for further proceedings.
[¶2] I. BACKGROUND
[¶3] A. Pretrial
[¶4] Defendant, then 15 years old, and his older half-brother, codefendant Roman Formin, were charged with 14 counts arising from a shooting on June 14, 2006. Defendant, who had just turned 15 years old when the offense occurred, was transferred to adult court due to the exclusive jurisdiction provision of the Juvenile Court Act of 1987, otherwise known as the Illinois automatic transfer statute. 705 ILCS 405/5-130 (West 2006); see People v. Patterson, 2014 IL 115102, ¶ 2, 388 Ill.Dec. 834, 25 N.E.3d 526. This was not, however, defendant's first encounter with the legal system.
[¶5] The record indicates that during defendant's early childhood, he lived with both parents and his siblings in a relatively
stable home, although at one point, defendant reported using marijuana by age seven. At the same age, in 1998, defendant was arrested for the murder of Ryan Harris. Defendant, who had just completed kindergarten, was the youngest person in our nation to be charged with murder. An eight-year-old boy was also charged. In re Harris, 335 Ill.App.3d 517, 519, 781 N.E.2d 549, 269 Ill.Dec. 752 (2002). At this time, defendant was detained at Hartgrove Hospital in lieu of jail but apparently not for the purpose of psychiatric treatment. After semen was discovered on the victim's underwear, the State determined that a different individual was responsible, not the two boys. It appears that Floyd Durr ultimately pled guilty without qualification to the sexual assault of Harris and entered a guilty plea to murder pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Following this incident, the relationship between defendant's parents deteriorated and defendant suffered from post-traumatic stress disorder (PTSD). This would be one among many psychological and mental afflictions suffered by defendant.
[¶6] Several different judges presided over defendant's present case. During those proceedings, it became known that about six months before this offense occurred, Judge Stuart F. Lubin found defendant unfit to stand trial in an unrelated juvenile case, which apparently involved an animal cruelty charge based on defendant killing a dog by slamming it into concrete (No. 05 JD 5967). In addition, defendant was hospitalized for psychiatric reasons on several occasions during these proceedings. At times when defendant was released on bail and was not hospitalized, he attended therapeutic day school. Defendant also had encounters with the police before trial, although they did not all lead to convictions. On one occasion, defendant threw a bag containing suspected cannabis on the ground and fled from the police. On other occasions, he shoplifted and threatened an individual with a BB gun. He was also reported to have attacked his mother. While the record contains extensive information regarding defendant's mental health, we recite only those facts necessary to understand the issues on appeal.
[¶7] In 2007, the Illinois Department of Human Services (IDHS) determined that defendant was unfit to stand trial based on the same opinion of psychiatrist Joseph McNally. Dr. McNally, who worked at Streamwood Behavioral Health Systems (Streamwood), found that defendant's eye contact was intermittent, his affect was blunted, his knowledge was below average, and he was guarded, but he cooperated and was alert. In addition, defendant had a deficit in concentration, and his IQ was 58, placing him in the mild mental retardation range. Dr. McNally's report also noted, however, that Dr. DiDomenico found defendant's ability to question him strongly indicated that defendant's capabilities were better than his score suggested. Dr. DiDomenico suspected that defendant was malingering. In addition, defendant, who could be disruptive and threaten peers, had recently been restrained and given antipsychotic medication targeting aggression after an episode of agitation.
[¶8] Defendant was diagnosed with mood disorder, attention deficit hyperactivity disorder, conduct disorder, a history of auditory processing disorder and mild mental retardation or borderline intellectual functioning. In addition, Dr. McNally could not rule out PTSD and defendant was being given psychotropic medication to help with anxiety, poor focus, aggressive tendencies and mood lability. Regarding fitness, defendant struggled with concepts of oath and perjury, and had a limited understanding of plea bargaining but Dr. McNally also sensed that defendant did not put forth his best effort to learn the fitness material. In August 2007, the trial court agreed that defendant was unfit to stand trial.
[¶9] By November 2007, Streamwood found defendant was fit to stand trial but in the spring of 2008, IDHS disagreed, as did Ada S. McKinley Community Services, Inc. Dr. Carl Wahlstrom, the forensic psychiatrist hired by defendant, also found defendant was unfit. We further note that at a hearing on September 5, 2008, defense counsel expressed concern regarding defendant's inability to cooperate with him and stated that defendant was not receiving his medication in jail. In November 2008, social worker Marcy Lerner met with defendant and his mother, apparently at Dr. Sharon Coleman's request, and found that defendant was non-compliant with psychotropic medications. Although defendant's mother was not sure whether he was taking his medication, the assistant State's Attorney (ASA) reported that defendant was refusing medication. Lerner also stated that when defendant was anxious, he self-mutilated by picking his skin and, consequently, his finger was permanently deformed. Lerner found defendant was traumatized by the 1998 arrest.
[¶10] At about the same time that Lerner completed her report, Dr. Coleman found defendant was fit to stand trial because he understood the nature and purpose of the proceedings against him and was able to assist in his defense, if he chose to do so. She stated that she had not addressed defendant's fitness to stand trial with medication because he had not been prescribed psychotropic medication. This determination was seemingly based on the October 2008 medication profile from Cermak Health Services, which noted that defendant had no active prescriptions. In addition, Coleman reported that defendant said he was last compliant with a medication regimen in September 2008. Regarding the proceedings against him, defendant said, " they can't do nothing to me because they know that I have been traumatized when had [ sic ] I was young." Following an examination on November 25, 2008, psychiatrist Dr. Nishad Nadkarni similarly found that defendant was fit to stand trial, noting that he was not presently prescribed psychotropic medications and there was no indication that they were needed.
[¶11] At a hearing before Judge Jorge Luis Alonso on April 7, 2009, defense counsel said that defendant was not getting any medications in jail and asked the court to have the jail transfer defendant to the psychiatric unit for an evaluation. Defense counsel was not sure that the jail was aware of defendant's mental illness history. The court ordered the transfer but acknowledged the possibility that the sheriff would ignore the order. In May 2009, Judge Alonso ordered that defendant's fitness be reevaluated.
[¶12] After reexamining defendant on August 17, 2009, Dr. Wahlstrom modified his prior opinion, finding that defendant understood the charges as well as the role of courtroom personnel and proceedings. Dr. Wahlstrom also found, however, that " [i]t may be helpful, secondary to cognitive
limitations (borderline intellectual functioning versus upper level mild mental retardation) to provide simple explanations of legal matters with frequent review to ensure his adequate understanding." In contrast to Dr. Wahlstrom's prior opinion, he now believed defendant understood his attorney, trusted him and would work with him. With that said, defendant had residual PTSD symptoms, such as emotional reactivity and being guarded, and should continue to receive psychiatric services, counseling and medication therapy. Dr. Wahlstrom further noted that defendant currently took Risperdal but that his medication was not impairing his ability to concentrate. Dr. Wahlstrom concluded, " Mr. Gipson is mentally fit (at least marginally) to stand trial with medication."
[¶13] A month later, Dr. Jonathan Kelly evaluated defendant's fitness on the State's behalf. Defendant said he had been in " one hundred thousand" fights but never threatened anyone with a gun. Dr. Kelly observed sores covering defendant's face due to picking his skin. He avoided eye contact, was oppositional, irritable, impatient, and angry but was alert and oriented. He sang to himself while pounding his hand on the wall or table and was restless. Although Dr. Kelly first noted that defendant spoke in phrases rather than sentences, he later noted that defendant was able to speak in full sentences. In addition, defendant lacked insight, had a history of poor judgment and impulse control, and gave responses that were inconsistent with both his other responses in this interview as well as prior evaluations. Defendant said he did not trust his attorney and did not care what his attorney did. Defendant also thought that he was unfit to stand trial. Dr. Kelly, however, believed defendant was invested in being found unfit. Furthermore, defendant said he was on Risperdal because he would " splash out" and fight, and that his medicine led to drowsiness and headaches if he did not eat. He believed the medicine made one worse but he did not skip doses. When asked if he had symptoms of mental illness, defendant responded that his body would hurt and he would have a headache. Moreover, defendant did not believe his behavior was consistent with conduct disorder, but records suggested otherwise.
[¶14] Dr. Kelly diagnosed defendant with a history of conduct disorder but could not rule out cannabis dependence, malingering or borderline intellectual functioning. In addition, Dr. Kelly found defendant was fit to stand trial, without medication, as he adequately understood the charges and the nature of proceedings and was able to assist in his defense. Although defendant was taking Risperdal, an antipsychotic medication, defendant did not experience side effects that would interfere with his fitness to stand trial and did not need medicine to maintain his fitness.
[¶15] Defendant appeared before Judge Maura Slattery Boyle, for the first and only time, at his fitness restoration hearing on October 2, 2009. While defense counsel tendered Dr. Wahlstrom's recent report and Lerner's 2008 report, the State tendered Dr. Kelly's report. The court noted that the parties stipulated to the authenticity and admissibility of the doctors' reports, stating:
" And as I understand it the parties have agreed as to the authenticity and admissibility of Defense Exhibit No. 1. *** and Mr. Urdangen, please correct me if the Court is wrong, that Mr. Gipson had been evaluated twice and at one point the doctor had questioned Mr. Gipson's fitness. On a subsequent evaluation the doctor could not -- changed his position and could not rule out that Mr. Gipson was fit to stand trial. Is the
Court correct as to that statement in regards to the doctor's evaluation?"
Defense counsel confirmed that the court was substantially correct. The court then stated, " And just so that it's clear, the prior determination was that he was unfit and this most recent *** indicates he is marginally fit with medication." After the court stated that it had reviewed the documents, the following colloquy ensued:
" THE COURT: And just so the record is clear, both parties I assume, *** agree that the doctors who have conducted these evaluations of Mr. Gipson are extremely qualified and in regards to their experience and ability it is, it is unreported [ sic ] and both of them are deemed highly qualified in the community, is that correct, Mr. Darman?
MR. DARMAN [Assistant State's Attorney]: Yes, Judge.
THE COURT: And Mr. Urdangen?
MR. URDANGEN [defense attorney]: Yes, Judge. Also I would just say I would not contest the qualifications of the State's expert.
* * *
THE COURT: Therefore then as indicated the most recent one conducted by the Defense, by Carl Wahlstrom, had originally indicated that Mr. Gipson was unfit. *** [A] re-evaluation was conducted or an additional evaluation, at which time Mr. Wahlstrom's opinion changed from the original one and indicated again that Mr. Gipson is marginally fit with medication.
Therefore, due to the change and opinion of Dr. Wahlstrom, the Defense no longer adhering to the original and being of a new opinion that he is marginally fit with medication as well as the State's expert's opinion that Mr. Gipson is fit, the Court will find that Mr. Gipson is fit to stand trial."
Although Judge Boyle relied on both reports, she did not expressly reject or question the qualification to Dr. Wahlstrom's opinion, i.e., that defendant was only marginally fit if medicated.
[¶16] B. Trial
[¶17] At the bench trial before Judge Brian K. Flaherty, the State's evidence generally showed that at about noon, Anthony Milton and Clifton Smith were in Milton's car at a gas station when codefendant approached the passenger side of the car with a gun and fired shots at Smith. As Milton attempted to exit through the driver's side window, defendant approached from that side and raised his weapon. Milton was shot in the left buttock. Nearby bike patrol officers arrived soon after. We note that a surveillance video presented at trial is not included in our record on appeal. Smith, who was shot two or three times, had extensive injuries. The most damaging of his gunshot wounds entered his right upper chest and exited his right back. In addition, he had several surgeries, including a kidney transplant, and spent three months in the hospital. As to Milton, the bullet that entered his buttocks exited from his thigh. He was discharged from the hospital the same day but experienced numbness in his leg. In addition to evidence regarding the shooting itself, the parties presented expert testimony regarding defendant's mental health, as defense counsel's position was that defendant was a " disturbed retarded child" under his older brother's spell and did not intend to kill anyone. The experts' testimony, however, went beyond his mental abilities at the time of the offense.
[¶18] Dr. Wahlstrom testified that he changed his fitness opinion because at
their final meeting, defendant had benefitted from the additional effects of age and treatment. Toward the beginning of their interaction, defendant was at the lowest end of the continuum regarding communication ability. Assessments closer to the time of the incident were consistent with extreme verbal impairment, which would have affected defendant's ability to understand situations. In addition, Dr. Wahlstrom found no evidence of malingering aside from defendant being withdrawn during exams, which could also show difficulty communicating. Moreover, defendant's improvement showed he was not malingering. We note that Dr. Wahlstrom did not address his finding that defendant was only marginally fit with medication.
[¶19] Dr. Coleman testified that she found defendant fit to stand trial in 2008. During their meetings, he followed directions, made good eye contact and was alert. There was no apparent disturbance of concentration but he had a speech impairment in that he would mispronounce words or use words that did not correspond to his meaning. With that said, he understood questions asked and his speech disorder would not prevent him from communicating. In addition, his ability to process information was impaired but Dr. Coleman could not speak to how substantial that impairment was. Dr. Coleman further testified that conduct disorder, which defendant had been diagnosed with, typically involved impulsivity and a disregard for others' rights. She also found that defendant's test results underestimated his ability but she did not form the opinion that he was malingering. When asked about his lawyer's role, defendant said that his lawyer was supposed to get his case thrown out. Moreover, defendant indicated that he experienced flashbacks while in the courtroom. Dr. Coleman agreed that defendant had suffered from PTSD, but she believed he was in remission as of 2008.
[¶20] Following evidence and argument, Judge Flaherty stated he had no doubt that defendant and codefendant acted in tandem. The court found defendant guilty of attempted first-degree murder, aggravated battery with a firearm and aggravated discharge of a firearm with respect to Smith and Milton as alleged in 10 ...