THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SCOTTY LEE KINKEAD, Appellant.
No. 75236
Supreme Court of Illinois
October 19, 1995
Rehearing denied January 29, 1996
168 Ill. 2d 394
Affirmed.
JUSTICE HARRISON took no part in the consideration or decision of this case.
MILLER, J., joined by BILANDIC, C.J., and HEIPLE, J., dissenting.
Roland W. Burris and James E. Ryan, Attorneys General, of Springfield, and Alan D. Tucker, State‘s Attorney, of Havana (Rosalyn B. Kaplan and Barbara A. Preiner, Solicitors General, and Arleen C. Anderson and Martha E. Gillis, Assistant Attorneys General, of Chicago, of counsel), for the People.
In this appeal we revisit the circumstances under which a defendant who is being medicated with psychotropic drugs is entitled to a fitness hearing pursuant to
BACKGROUND
On February 20, 1992, Gertrude Nussel, an 85-year-old woman, was slain in her home in Havana, Illinois. Defendant, Scotty Kinkead, and his companions, Leslie
Before defendant‘s trial, the State offered to forgo seeking the death penalty in exchange for defendant‘s plea of guilty to four of the six counts pending against him, including one count of felony murder based on armed robbery. Under this plea, defendant would not be admitting to intentionally killing the victim. Defendant accepted the plea agreement. However, a few days before the negotiated plea was to be entered, and apparently without consulting with counsel, defendant announced his intention to have the court sentence him to death. On October 19, 1992, during what was to have been a pretrial conference in which the negotiated plea was to be presented to the court, defense counsel informed the court that defendant had changed his mind regarding the plea agreement and desired to plead guilty to the charges without availing himself of the State‘s agreement not to seek the death penalty. Defendant also told defense counsel he did not want her to call the mitigation witnesses she had planned to call on his behalf.
The court asked defense counsel if she believed defendant to be competent to make such decision. She responded in the affirmative, citing defendant‘s coopera-
The court inquired of defendant whether he had any concerns over his counsel‘s representation and defendant said, “She did a great job.” The court noted that defendant‘s changed intent was tantamount to entering an open plea to all of the counts before the court. The court then explained the State‘s burden at trial and the procedures that would be followed if a trial were held before a jury. The court inquired into defendant‘s education and ability to read and write. Next, the court commented that defendant appeared able to comprehend the proceedings and work with counsel. Defendant stated that he could understand what was happening. He said he wanted the death penalty because he felt it would be better for him than serving a long sentence in prison. The court offered defendant more time to consider the matter, which he twice declined. Toward the end of the proceedings on October 19, 1992, defendant accepted the court‘s offer for more time to consider his decision and the matter was continued to October 21, 1992.
When the proceedings resumed, defense counsel reiterated for the record that she had strongly advised defendant not to repudiate the negotiated plea agreement and felt it was “a terrible mistake and absolutely wrong decision.” The court asked defendant whether he
The counts of the indictments to which defendant pleaded guilty included one count of first degree murder based on the killing of the victim during the course of armed robbery, armed robbery, residential burglary, and home invasion. The State dismissed two other counts of first degree murder, one based on an intent to kill and the other based on killing in the course of residential burglary. The court then explained the effect of a jury waiver and inquired whether defendant understood that he was subject to a possible sentence of death by rejecting the State‘s prior plea agreement. The court asked, “Why are you doing that Mr. Kinkead?” Defendant said, “I feel it is right for me.”
The court outlined the sentencing procedures and told defendant that even with the guilty plea there would be a “full-fledged sentencing hearing” and the State would bear the burden of proving death eligibility and presenting evidence in aggravation. The court reviewed the sentencing options and defendant indicated his understanding of the court‘s admonitions. The State
The victim, Gertrude Nussel, was killed in her home in the evening of February 20, 1992. The cause of death was massive hemorrhaging by reason of a slash/stab wound to her throat. Other injuries to the throat area indicated probable strangulation. Leslie Palmer, defendant, and Tara Poppenhager were arrested approximately one week after the homicide. Both Palmer and defendant gave statements admitting their presence in the victim‘s home and their participation in the crimes charged, but each claimed that the other had used the knife to cut Nussel. Palmer admitted using choke holds, or “sleeper holds,” to subdue the victim. Scrapings taken from under the victim‘s fingernails were not consistent with defendant‘s blood type. Poppenhager admitted having knowledge of the robbery plan and driving the car, but denied involvement in the murder. She was not present at Nussel‘s house and did not witness what occurred. According to Poppenhager, defendant admitted to her on three occasions that he had caused the victim‘s death.
Following the formal entry of defendant‘s plea of guilty and defendant‘s jury waivers, the court ordered a presentencing investigation and report and continued the case for sentencing to November 23, 1992. At the sentencing hearing, the key issue regarding defendant‘s eligibility for the death penalty was whether defendant, in the course of the armed robbery, intended to cause the victim‘s death or knew that his actions created a strong probability of death or great bodily harm. To establish defendant‘s intent, the State presented the testimony of Tara Poppenhager, who testified regarding her knowledge of the events leading to and following the homicide. She testified that defendant had told her, in the days following the murder, that he had cut the victim‘s throat and, when Poppenhager protested that
Poppenhager conceded that she had not told the police, in either of her two statements taken within a week of the murder, that defendant admitted cutting the victim‘s throat or that he had threatened Poppenhager. She admitted that she had lied to the police about certain matters but explained her conduct as resulting from fear of defendant. Poppenhager, who originally had been charged with the same offenses as Palmer and defendant, also admitted that several months after her arrest, while she was in jail, she had been offered a plea agreement contingent upon her testifying against defendant. Under the agreement, she would plead guilty to residential burglary and concealing a homicide and the State‘s Attorney would recommend a five-year prison term.
Defendant‘s high school teacher, who had taught in Astoria‘s schools for 30 years, testified regarding Poppenhager‘s reputation for truth in the community, stating that “she is not really very reliable” and “is not known as a truth teller.”
Police officers who investigated the crimes also testified at the death-eligibility phase of defendant‘s sentencing hearing. The detective who took defendant‘s statement testified that defendant admitted being present in the victim‘s house and participating in the crimes but denied being the one who cut the victim‘s throat. At no point in his statement did defendant tell the detective that he had struck, choked, cut, or otherwise injured the victim.
The court ruled that the State had sustained its burden of proving the aggravating factors that defendant was 18 years old or older and intentionally caused the death of the victim during the course of an armed robbery. Accordingly, the court found defendant death-eligible.
The presentencing report was introduced into evidence for the hearing in aggravation and mitigation. The report disclosed defendant‘s statement that a doctor, affiliated with the Fulton County mental health department, prescribed “Thorozene [sic] at bedtime while [defendant] is in jail, to help him with his nerves and sleeplessness.” Several other drugs that were given to defendant in the past for his depression were also listed. The report referred to defendant‘s past suicide attempts, his treatment at Menard Psychiatric Center, and incidents of defendant‘s “multiple self-inflicted cigarette burns on his arms.” According to the presentencing report, the above matters were verified by prison records.
In aggravation, the State presented evidence of defendant‘s criminal history, which included property crimes and one conviction for residential burglary. The daughter of the deceased read a victim impact statement. The State also presented previously undisclosed evidence that defendant had cut the back of another inmate in the Fulton County jail on November 5, 1992. Defense counsel objected to the State‘s introduction of such information as a violation of discovery, but declined the court‘s offer of a one- or two-week continuance, explaining that her client had “pressured” her to conclude the proceedings.
In mitigation, defense counsel called two witnesses. Yvonne Farwell, a special education teacher at defendant‘s high school, had known defendant all of his life and knew his parents. Farwell testified that when defendant was young, in early grade school or preschool, his mother left him and his siblings. Defendant‘s paternal grandmother took him in and became his guardian. His father‘s appearance in his son‘s life was sporadic. Farwell testified that defendant did well in her classes when he was in high school but he would
John Richard Day, a clinical psychologist from Peoria, testified that he interviewed defendant on three occasions in the summer of 1992. On the first visit, June 17, 1992, Dr. Day administered the Minnesota Multiphasic Personality Inventory and other tests. On July 17 defendant underwent a psycho-dynamic interview. On August 28, defendant was brought to Dr. Day for additional psychological testing. Dr. Day stated that his primary diagnosis was “anti-social personality disorder. Contributing to that would be, alcohol dependence, dysthymia, which is related to manic depressive disorder. And a history of attention deficit disorder and learning disability which would go back to childhood and adolescence.” Dr. Day further related his understanding of defendant‘s family background and upbringing and what he believed was defendant‘s pervasive “very low self perception,” or lack of self-esteem, which was connected not only to his parents’ rejection of him but to his attention deficit disorder and learning disabilities, which were beyond his control. Dr. Day noted that defendant‘s self-destructive tendencies and self-mutilation also reflected his low self-esteem and desire for punishment. Dr. Day also concluded that, based on
Defendant read a statement in allocution, apologizing for the pain of the victim‘s family and expressing sorrow for the families of his codefendants as well. He stated his desire to change the events of February 20 and his regret that he was drunk that night, as he had been for many other nights. He admitted his responsibility for taking part in the crimes but he also reiterated that he did not have any intent or even any idea that the victim would be harmed that night. He said he had deep regret for the mistakes in his life and expressed despair and emptiness. He asked the judge to impose the death penalty.
The trial court sentenced defendant to death by lethal injection. Defendant appealed directly to this court pursuant to
ANALYSIS
Before defendant‘s convictions and death sentence may be meaningfully reviewed by this court we must decide a critical threshold issue: Was defendant entitled to a fitness hearing to assess whether he was competent to participate in and understand his defense and sentencing, before his guilty plea was accepted and the
Initially, we note that defendant did not raise a challenge to his mental competence until the filing of this appeal, which raises the question of waiver. This court has held that “where a defendant‘s capacity is the issue in question, it is anomalous to even consider the concepts of waiver” because a defendant whose mental state may render him unfit to stand trial “can scarcely be expected to raise the question of fitness in the first instance.” (Brandon, 162 Ill. 2d at 457.) In Brandon, we also noted application of the plain error doctrine. The issue of a defendant‘s fitness for trial may be raised before, during, or after trial. (
Due process bars prosecution of a person who is not competent to stand trial. (E.g., Drope v. Missouri (1975), 420 U.S. 162, 172; Pate v. Robinson (1966), 383 U.S. 375, 385; People v. Eddmonds (1991), 143 Ill. 2d 501, 512.) Fitness to stand trial refers to a defendant‘s ability to understand the nature and purpose of the proceedings and to assist in the defense. Although a defendant‘s fitness is presumed by statute (
In Gevas, 166 Ill. 2d at 469, we observed, “The legislature has equated the administering of psychotropic medication to a defendant with a bona fide doubt as to fitness to stand trial.” Therefore, the broad discretionary standard ordinarily applied in deciding whether there exists a bona fide doubt yields when the accused is taking psychotropic medication under medical direction at the time of his trial or sentencing. (See Brandon, 162 Ill. 2d 450.) In Brandon, we held that where
In the case at bar, the State argues that defendant was not entitled to a fitness hearing at the time of his plea and sentencing. According to the State, Dr. Day‘s psychological evaluation of defendant weeks before the court‘s acceptance of the guilty plea indicated that defendant suffered from depression, but was cooperative and competent and did not suffer from a mental disease or disorder. The State additionally notes that the trial court made significant efforts to ensure that defendant understood each phase of the proceedings. Further, the State contends, there is no suggestion in the record that defendant was unable to understand the relevant events or was incompetent to assist his attorney in the preparation of his case. Accordingly, the State insists that there was no bona fide doubt regarding defendant‘s competence and the trial court did not abuse its discretion in failing to hold an evidentiary hearing on defendant‘s
The State‘s reliance on cases such as Lopez, Balfour and Tilson fails to take into account the plain terms of
In light of these authorities, we reject the State‘s argument that the trial court‘s observations of defendant‘s demeanor during the proceedings is dispositive of
The State further contends that the outcome of the instant case would not have differed even if defense counsel had requested and defendant had received a full fitness hearing. (See Brandon, 162 Ill. 2d at 461-64 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).) The State‘s reasoning is flawed: it is illogical to permit a court to surmise that a defendant would have been found fit without holding a hearing intended to determine that very issue. Moreover, such an approach misapprehends the purpose of a
The instant case differs in certain respects from Brandon and Gevas. The bare fact that defendant was treated with Thorazine while in jail is all that exists in
In Brandon, the trial court appointed an expert to conduct an evaluation of defendant but concluded that the expert‘s report did not raise a bona fide doubt of the defendant‘s competence to stand trial. Thereafter, defense counsel moved for a fitness hearing on the ground that defendant‘s learning disability prevented him from assisting in the defense. The court conducted a hearing to determine whether a bona fide doubt of fitness existed, but concluded that grounds for a full fitness hearing had not been established. On appeal, we noted that the record of the sentencing hearing revealed that the defendant was taking antipsychotic drugs as part of a treatment program while incarcerated and that he was on the medications continuously during his trial and throughout the sentencing proceedings. Because defense counsel did not specifically raise the issue of this drug treatment as grounds for a fitness hearing pursuant to
In Gevas, the court ordered a sanity and fitness evaluation of defendant. The doctor who examined defendant pursuant to this court order initially could not reach an opinion, because of defendant‘s lack of cooperation, but later found defendant legally sane and fit to stand trial. Defense counsel failed to advise the trial court of the opinion of another doctor, a psychiatrist who had examined defendant before defendant pleaded guilty. This doctor was of the opinion that, at the time of the crimes, defendant was sane but of questionable fitness to assist in his defense. Post trial, defendant filed a pro se motion for execution of death sentence and to eliminate all appeals. His counsel filed a post-trial motion to withdraw the guilty plea, inter alia, and presented the affidavit of the psychiatrist in whose opinion the defendant was unfit to assist in his defense. The affidavit noted that defendant was being treated with Thorazine, and other antipsychotic and antidepressant medications, on certain dates prior to the time defendant entered his plea and was sentenced.
In denying the post-trial motion, the trial court in Gevas stated its belief that a fitness hearing previously had been held. The trial court added its opinion, based on personal observation, that defendant knew what was happening in the courtroom. On appeal, we reversed defendant‘s convictions and sentence and remanded for new trial. We observed that, although the record did not establish that defendant was taking the medications on the exact dates he pleaded guilty and was sentenced, the last date on which defendant was shown to have been taking the drugs was “proximate enough to the dates defendant pleaded guilty and was sentenced to have imposed a duty on the trial court to further investigate defendant‘s fitness for trial.” (Gevas, 166 Ill. 2d at 469.) We also noted that the trial court was mistaken in its belief that a fitness hearing had been
In the case at bar, no fitness hearing of any kind was held and it does not appear that defense counsel requested a psychological evaluation for the specific purpose of ascertaining defendant‘s fitness to stand trial. At the sentencing stage, some information regarding defendant‘s medication was available, along with his history of suicide attempts, self-mutilation, and psychiatric treatment. Neither defense counsel nor the court considered or inquired into defendant‘s use of psychotropic medication and its possible effect on his mental cognition, mood, or demeanor. As was the case in Brandon and Gevas, it appears that the relationship between the defendant‘s use of psychotropic medications and the existence of a bona fide doubt of his fitness was not fully realized at the trial level.
Our precedent has now established that the administration of psychotropic drugs to persons accused of crimes is a strong signal that the fitness of such accused is in issue; if the requisites of
Because no such inquiry was made, this court cannot now determine whether defense counsel‘s failure to request a fitness hearing under
Defendant contends that other factors in addition to his use of psychotropic medication gave rise to the trial court‘s duty to hold a fitness hearing, i.e., defendant‘s sudden decision to seek the death penalty after he had been cooperating with counsel and pursuing the plea agreement under which his life would be spared. Defen-
We need not determine, in the abstract, whether a defendant who pleads guilty with the hope or expectation of receiving the death penalty should be automatically viewed as lacking the mental competence to make such decision. (See, e.g., Rees v. Peyton (1966), 384 U.S. 312; Felde v. Blackburn (5th Cir. 1986), 795 F.2d 400.) While a defendant‘s choice of the death penalty may raise a question of his or her competence, in a particular case, we believe that it is a factor for the circuit court to consider in the context of the specific circumstances presented. Here, the record indicates that defendant twice attempted suicide and has a history of harming himself. Dr. Day testified that defendant‘s destructive conduct was indicative of low self-esteem and a desire for punishment. Defendant‘s request for the death penalty might be viewed as a plea for State-assisted suicide, and we do not believe that Illinois trial courts and juries should be put in the position of granting such requests as a matter of a defendant‘s stated preference. Defendant‘s selection of execution following his counsel‘s successful negotiation of a plea agreement for a term of years should not necessarily have been accepted as a rational decision under the circumstances. In Gevas, the defendant also requested the court to impose the death penalty, expressing the desire to “‘get this over with as soon as possible.‘” We commented that it was “unknown to what extent defendant‘s treatment with these [psychotropic] drugs affected his unwillingness to present a defense, and this issue could have been resolved at a fitness hearing.” (Gevas, 166 Ill. 2d at 471.) Similarly, in the instant case we do not know the extent to which the drugs or
In light of the importance the legislature has placed on the right of an accused taking psychotropic medication to receive a fitness hearing under
After holding this factual inquiry into defendant‘s use of psychotropic medication, the circuit court shall report its findings to the clerk of this court within 60 days of this decision, accompanied by a record of the proceedings on remand.
In the exercise of this court‘s supervisory authority, we order a remand of this cause, in accordance with the foregoing directions, to the circuit court of Mason County for further proceedings.
Cause remanded with directions; jurisdiction retained.
JUSTICE MILLER, dissenting:
I do not agree with the majority‘s conclusion that the defendant is entitled to have the present case remanded to the circuit court for the hearing required by today‘s decision.
This case raises once more questions previously considered in People v. Gevas (1995), 166 Ill. 2d 461, and People v. Brandon (1994), 162 Ill. 2d 450, regarding the operation of
As the majority opinion acknowledges, the record in this case fails to show both how much Thorazine the defendant was taking and when he was receiving it. To fill these gaps in the record, the majority proposes to remand the cause to the trial court so that the defendant can belatedly introduce evidence on this threshold issue and thus establish whether he might have been entitled to a fitness hearing under the provisions of
More fundamentally, I disagree with the majority‘s assertion that the legislature, through
To say that a defendant is “entitled” to a fitness hearing is much different from saying that a hearing is absolutely required in all circumstances, no matter how tardy the defendant‘s request might be. A defendant may be “entitled” to a fitness hearing yet still be compelled to raise the issue in a timely manner; there is no inconsistency in requiring a defendant to establish his entitlement by invoking the statute in an appropriate fashion. Under the majority‘s reasoning, however, the provision in question simply becomes a trump card that the defendant may play on appeal, following conviction and sentence, without regard to his failure to raise the issue properly in the trial court.
CHIEF JUSTICE BILANDIC and JUSTICE HEIPLE join in this dissent.