291 Ill. App. 3d 231 | Ill. App. Ct. | 1996
NO. 5-94-0603
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Randolph County.
)
v. ) No. 94-CF-27
)
MARY L. JONES, ) Honorable
) Jerry D. Flynn,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
JUSTICE WELCH delivered the opinion of the court:
Defendant Mary L. Jones appeals from her conviction and
sentence for the first-degree murder of her two-month-old son. She
raises two issues on appeal: (1) whether her conviction must be
reversed and the cause remanded for a new trial because the trial
court did not conduct a hearing to determine defendant's fitness to
stand trial upon learning that she had been administered psycho-
tropic medications while in jail awaiting trial; and (2) whether
her conviction must be reversed and the cause remanded for a new
trial because the cause proceeded to a bench trial without
defendant having executed a written jury waiver. Because we find
the first issue to be dispositive of defendant's appeal, we will
not address the second issue relating to the need for a written
jury waiver. For reasons which follow, we reverse defendant's
conviction and sentence and remand this cause for a new trial.
Defendant was charged by information filed in the circuit
court of Randolph County on March 8, 1994, with the first-degree
murder of her two-month-old son. She was arrested and remained in
jail pending trial.
On April 4, 1994, the trial court granted defendant's request
to appoint Daniel J. Cuneo, a licensed psychologist, as an expert
witness to assist in her defense. On June 17, 1994, Dr. Cuneo
testified in support of defendant's motion to suppress her
confession. During his testimony, Cuneo mentioned that defendant
had been administered, by the staff of the Randolph County jail
while she was incarcerated awaiting trial, the drugs lorazepam, "a
light tranquilizer" to reduce her agitation, and dilantin, "to
control her seizures." He also testified that defendant suffers
from a personality disorder and that she has twice attempted
suicide, most recently while incarcerated in the Randolph County
jail awaiting trial on this case. She also suffers from transitory
auditory hallucinations, in which she hears her father's voice
speaking reassuringly to her. Defendant also has a very low I.Q.
Cuneo was never asked about and never expressed an opinion on
defendant's fitness to stand trial.
Following a bench trial held from July 11 to July 15, 1994,
defendant was found guilty of first-degree murder and sentenced to
35 years in the Department of Corrections.
Defendant argues that she is entitled to a new trial because
the trial court failed to hold a hearing on the issue of her
fitness to stand trial, after learning that she had been receiving
psychotropic medications shortly before trial. She argues that
such a hearing is required by section 104-21(a) of the Code of
Criminal Procedure of 1963. 725 ILCS 5/104-21(a) (West 1992). At
the time of defendant's trial, that section provided in pertinent
part that a "defendant who is receiving psychotropic drugs or other
medications under medical direction is entitled to a hearing on the
issue of his fitness while under medication." 725 ILCS 5/104-21(a)
(West 1992).
This statutory provision, and the issue presented in this
appeal, have been the subject of numerous recent Illinois Supreme
Court opinions. Three subissues are presented in this appeal and
were discussed in these supreme court cases: whether the issue can
be waived; the need for a fitness hearing; and the appropriate
remedy for the error.
In People v. Brandon, 162 Ill. 2d 450 (1994), defendant had
been taking psychotropic medications under medical direction prior
to and during his trial and sentencing. Nevertheless, his counsel
failed to request a fitness hearing pursuant to section 104-21(a).
Respecting the issue of waiver, our supreme court stated:
"Section 104-21(a) [citation] evinces a recognition by
the General Assembly that psychotropic medication is an
important signal that a defendant may not be competent to
stand trial. If a defendant on such medication is not
fit to stand trial, he can scarcely be expected to raise
the question of fitness in the first instance. Where a
defendant's capacity is the issue in question, it is
anomalous to even consider concepts of waiver." Brandon,
Respecting the question of the need for a hearing, the court
held:
"A trial court may have no obligation to conduct a
fitness hearing sua sponte where it does not know that a
defendant is on medication, no request for a hearing is
made until after trial, and there has been no indication
to the trial court that the defendant might be unfit.
Where, however, a proper request for a fitness hearing is
made by a defendant who is receiving psychotropic or
other medications under medical direction, the statute
expressly provides that he is `entitled' to receive one."
Brandon, 162 Ill. 2d at 459.
The court held that once section 104-21(a) is invoked, whether to
hold a fitness hearing is not discretionary with the court and the
court must hold such a hearing. Brandon, 162 Ill. 2d at 461. In
Brandon, the court found that the proper remedy for the denial of
defendant's right to a fitness hearing was to reverse his convic-
tion and remand the matter for a new trial.
In People v. Gevas, 166 Ill. 2d 461 (1995), our supreme court
again discussed section 104-21(a). In that case the defendant
pleaded guilty to the murder of his two nine-month-old children and
was sentenced to death. His counsel filed a motion asking the
court to vacate the guilty plea and to hold a fitness hearing based
on evidence that defendant had been treated with psychotropic drugs
during the proceedings. The motion was denied. Accordingly, the
issue of waiver was not presented to the supreme court.
The supreme court held that the fact that the trial court had
been informed of defendant's treatment with psychotropic drugs
during the proceedings but refused to investigate further by
holding a fitness hearing warranted a reversal of defendant's
convictions and sentence. Gevas, 166 Ill. 2d at 467-68. The court
recognized that while it was not clear from the record whether
defendant had been taking psychotropic drugs on the dates he
pleaded guilty and was sentenced, there was evidence that he had
been taking such drugs two months prior to his plea and sentencing,
which was proximate enough in time to the dates of his plea and
sentencing to have imposed a duty on the trial court to further
investigate defendant's fitness to stand trial, at least where
there was no evidence that administration of the medication had
been stopped prior to his plea and sentencing. Gevas, 166 Ill. 2d
at 469. The supreme court pointed out, "The legislature has
equated the administering of psychotropic medication to a defendant
with a bona fide doubt as to fitness to stand trial." Gevas, 166
Ill. 2d at 469. The court pointed out that not only does the
administering of these drugs signal that a defendant may not be
competent to stand trial but these drugs also have severe side
effects which can affect a defendant during criminal proceedings.
Gevas, 166 Ill. 2d at 470.
Finally, the supreme court held that, because more than two
years had passed since the trial court denied defendant's request
for a fitness hearing, it would be impossible to conduct a
meaningful hearing as to defendant's fitness at the time of his
guilty plea and sentencing. Accordingly, the court reversed
defendant's conviction and sentence and remanded the cause for a
new trial.
In People v. Kinkead, 168 Ill. 2d 394 (1995), our supreme
court again addressed section 104-21(a) of the Code of Criminal
Procedure of 1963. In Kinkead, defendant did not request a fitness
hearing pursuant to section 104-21(a), but the trial court was
aware that defendant had been taking a psychotropic medication. No
fitness hearing was held.
The supreme court held that trial counsel's failure to pursue
defendant's right to request a competency hearing pursuant to
section 104-21(a) does not waive the issue, and where the record
indicates that a defendant's use of psychotropic medication was
proximate to the time of his trial, the trial court has a duty to
further investigate the defendant's fitness for trial. Kinkead,
168 Ill. 2d at 406-07. Accordingly, the supreme court held that
the defendant had not waived the issue of his right to a competency
hearing under section 104-21(a). Kinkead, 168 Ill. 2d at 407.
The supreme court went on to reiterate that where section 104-
21(a) applies, a fitness hearing is mandatory, not subject to the
trial court's discretion, and that defense counsel's failure to
move for such a hearing, where applicable, constitutes ineffective
assistance. The court pointed out:
"Psychotropic medications are potent drugs and their
effect on the mind and behavior of an accused may not be
easily determined or fully understood, particularly by
nonmedical personnel. A fitness hearing provides the
vehicle by which the court may ascertain whether the
drugs are influencing the defendant's subjective decision
regarding the pursuit of available defenses." Kinkead,
The court stated, "Recent precedent of this court has construed
section 104-21(a) as conferring upon defendants, as a matter of
entitlement, the right to a mental competency hearing if they are
being given psychotropic drugs under medical supervision during the
time of their prosecution or sentencing." Kinkead, 168 Ill. 2d at
397. The supreme court held that, if a trial court has notice that
a defendant is taking psychotropic medications or when counsel
requests a fitness hearing based on section 104-21(a), the court
has a duty to inquire into the matter and hold a hearing to
ascertain whether the use of such medications has rendered
defendant unfit to assist in his defense.
In Kinkead, the record revealed that defendant was being
treated with a psychotropic drug while he was in jail awaiting
trial, but the record contained very little additional information
regarding the time periods and other circumstances under which the
drug was administered to defendant. In Kinkead, unlike in Brandon
and Gevas, the supreme court did not remand the cause for a new
trial but remanded for the limited purpose of the clarification of
the circumstances surrounding defendant's use of psychotropic
medications. The court found that, unlike the situation presented
in Brandon and Gevas, it did not have an adequate record upon which
to evaluate whether defendant's receipt of psychotropic drugs while
in jail was medically significant. There was insufficient evidence
in the record from which to determine whether the administration of
the drugs was proximate enough in time to defendant's guilty plea
and sentence to trigger the right to a full fitness hearing
pursuant to section 104-21(a). The court could not ascertain from
the record when defendant began to take the medication, what amount
had been prescribed, for what medical reasons it had been pre-
scribed for him, or in what manner the drug might have influenced
defendant's mental functioning, mood, and demeanor in the court-
room. Accordingly, the cause was remanded to the circuit court for
further proceedings in which the facts relevant to defendant's
usage of psychotropic medication could be developed.
Under the exercise of its supervisory power, the supreme court
retained jurisdiction over the appeal but remanded the cause to the
circuit court with instructions that it conduct an inquiry into the
factual circumstances surrounding defendant's asserted use of
psychotropic medication while in prison, including specifically the
dates on which he received and ingested such medicine and whether
the psychotropic drug treatment was linked closely enough to the
time of defendant's plea of guilty and sentencing to have entitled
him to a competency hearing pursuant to section 104-21(a). The
circuit court was to report back to the supreme court with its
findings.
Most recently in People v. Nitz, No. 77549 (Ill. June 20,
1996), and People v. Birdsall, No. 77259 (Ill. June 20, 1996), the
supreme court reiterated that the issue of the right to a fitness
hearing under section 104-21(a) cannot be waived and that the
administration of psychotropic drugs to a defendant raises a bona
fide doubt of his fitness to stand trial. In Nitz, defendant was
administered a psychotropic drug before and during his trial. In
Birdsall, the record indicates that defendant was taking a psycho-
tropic medication before and during his trial. Accordingly, the
matters were remanded for a new trial. In Nitz and Birdsall, as in
Brandon, Gevas, and Nitz, the supreme court reversed defendants'
convictions and remanded for new trials, rather than remanding the
causes for retrospective fitness hearings, because of the im-
practicability of a meaningful hearing, retrospectively, on the
issue of defendants' fitness at the time of trial.
We turn now to the case at bar. We reject, without further
discussion, the State's argument that we should disregard these
supreme court opinions. We find that the supreme court has quite
clearly expressed itself regarding the meaning and application of
section 104-21(a), and we are bound to follow its pronouncements.
Although defendant failed to request a fitness hearing before
the trial court and failed to raise as error in her posttrial
motion the failure to provide her with such a hearing, the State
does not argue that defendant has waived the issue for purposes of
review. Under the supreme court cases discussed above, we find
that defendant could not waive and has not waived the issue of the
denial of a fitness hearing pursuant to section 104-21(a) of the
Code of Criminal Procedure of 1963.
The State argues that the case at bar is distinguishable from,
and not controlled by, the above-cited supreme court cases because
"the record in the case sub judice does not reveal that defendant
was receiving any medication that raises a bona fide doubt of
defendant's fitness to stand trial." However, as the supreme court
has made clear in its rulings, the legislature has equated the
administration of psychotropic medications with a bona fide doubt
of a defendant's fitness to stand trial.
The State next argues that in the case at bar defendant was
not taking antipsychotic medications like those taken by the
defendants in Brandon, Gevas, and Kinkead but was taking only
lorazepam, a light tranquilizer, and dilantin, an antiseizure
medication. Again, section 104-21(a) refers to psychotropic
medications, not antipsychotic medications. The State concedes
that "arguably Lorazepam could be considered a psychotropic
medication."
While section 104-21(a) does not define the term "psychotropic
medication", some guidance can be found in other sources. In In re
C.E., 161 Ill. 2d 200, 214 (1994), our supreme court described
psychotropic drugs as "mood altering". The Mental Health and
Developmental Disabilities Code defines psychotropic medication as:
"medication whose use for antipsychotic, antidepressant,
antimanic, antianxiety, behavioral modification or behav-
ioral management purposes is listed in AMA Drug Evalua-
tions, latest edition, or Physician's Desk Reference,
latest edition, or which are administered for any of
these purposes." 405 ILCS 5/1-121 (West 1994).
Lorazepam is listed in the latest edition of the Physician's Desk
Reference as an antianxiety agent which has a tranquilizing action
on the central nervous system. Physician's Desk Reference 2646
(49th ed. 1995). Finally, lorazepam is explicitly listed as a
psychotropic drug in the regulations of the Department of Mental
Health and Developmental Disabilities. 59 Ill. Adm. Code sec.
112.80(c)(2) (1996).
We conclude that lorazepam is a psychotropic medication within
the meaning of section 104-21(a) and that, upon learning that
defendant was being administered this medication, the trial court
had a duty to further investigate defendant's fitness to stand
trial. The trial court's failure to afford defendant the hearing
to which she was entitled by section 104-21(a) requires that we
reverse defendant's conviction and remand this cause to the trial
court for further proceedings.
We come then to the question of what remedy is appropriate.
The State argues that we should remand this cause only for a
limited hearing as in Kinkead. We do not agree. In Kinkead there
was no evidence as to the time period during which defendant was
administered the medication or whether it was proximate enough in
time to defendant's guilty plea and sentence to trigger the right
to a full fitness hearing pursuant to section 104-21(a). The case
at bar is more similar to Gevas, wherein the court held that taking
the medication two months prior to the plea and sentencing was
proximate enough in time to require the court to conduct a fitness
hearing. In the case at bar, the evidence indicates that at least
three weeks prior to her trial defendant was taking a psychotropic
medication. This is more proximate in time to defendant's trial
than was the case in Gevas.
Furthermore, as in Gevas, Nitz, and Birdsall, we find that it
would be impossible at this late date to conduct a meaningful
hearing as to defendant's fitness at the time of her trial.
Accordingly, we remand this cause for a new trial.
We are cognizant of the costs and burdens which must be borne
by our criminal justice system as a result of our disposition.
However, we are bound to follow the decisions of the supreme court,
and we do so here.
We note that defendant has not challenged the sufficiency of
the evidence to prove her guilt, and we observe that the evidence
in the record is sufficient to support her conviction and sentence.
Consequently, there is no double jeopardy impediment to a new
trial. See People v. Birdsall, No. 77259 (Ill. June 20, 1996).
For the foregoing reasons, the judgment of the circuit court
of Randolph County is reversed, and this cause is remanded to that
court for a new trial.
Reversed and remanded.
KUEHN and CHAPMAN, JJ., concur.
ATTACH A FRONT SHEET TO EACH CASE
___________________________________________________________________________
NO. 5-94-0603
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Randolph County.
)
v. ) No. 94-CF-27
)
MARY L. JONES, ) Honorable
) Jerry D. Flynn,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: September 5, 1996
___________________________________________________________________________
Justices: Honorable Thomas M. Welch, J.
Honorable Clyde L. Kuehn, J., and
Honorable Charles W. Chapman, J.,
Concur
___________________________________________________________________________
Attorney Daniel M. Kirwan, Deputy Defender, Office of the State
for Appellate Defender, Fifth Judicial District, Route 15 East,
Appellant P.O. Box 2430, Mt. Vernon, IL 62864
___________________________________________________________________________
Attorneys Hon. Darrell Williamson, State's Attorney, Randolph County
for Courthouse, Chester, IL 62233
Appellee
Norbert J. Goetten, Director, Stephen E. Norris, Deputy
Director, J. Stephen Bennett, Staff Attorney, Office of the
State's Attorneys Appellate Prosecutor, Route 15 East, P.O.
Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________
