Lead Opinion
delivered
A jury convicted defendant, Anthony Mitchell, of two counts of first degree murder.
On direct review, we affirmed defendant’s conviction and sentence. People v. Mitchell,
BACKGROUND
Defendant’s convictions arose from the stabbing deaths of teenagers David and Dawn Lieneke in July 1989. The facts detailing the crime and the investigation leading to defendant’s arrest are set out in our original opinion, and we provide only a brief summary here. Additional facts will be noted where necessary to address the particular arguments defendant raises.
David and Dawn lived with their grandparents. On the evening of July 4, 1989, their grandparents were out playing bingo. The grandparents returned home at approximately 10:30 p.m. and found David’s and Dawn’s dead bodies. Eighteen-year-old David was lying in a pool of blood in the hallway. He had been stabbed seven times. The wounds were large and deep, and David had died from blood loss caused by a stab wound to the liver and from the collapse of both lungs, due to a stab wound to his chest. Thirteen-year-old Dawn was lying in a pool of blood on her grandmother’s bed. She also had seven stab wounds in her body, including one that went through the right temple and penetrated her brain. Dawn bled to death from knife wounds to the aorta and liver.
The police located defendant by tracing the license plate number of his sister’s car. Defendant had been driving that car on the night of the murders. Witnesses had spotted the car at the scene. Defendant confessed to the crime, explaining that he had gone to the Lienekes’ house looking for Viroon Williams, who defendant claimed had tried to run him down with a car the day before and who had stolen a VCR, radio, and video game from defendant’s mother’s house. Williams sometimes stayed with the Lienekes. Defendant went into the house and stabbed David, and then killed Dawn when she screamed his name and ran into the bedroom. David was still alive and was threatening to tell Williams, so defendant stabbed him again.
In addition to defendant’s confession, the State relied upon the testimony of Maurice Douglas, who was with defendant on the night of the murders. Defendant showed the bloody knife to Douglas and told him that he had just killed two persons. The police recovered the murder weapon — a survival knife — from defendant’s basement. The knife had blood on it, and the blood was consistent with a mixture of David’s and Dawn’s blood. The police also recovered black clothes and a pair of two-toed shoes. Blood on a pair of pants recovered from defendant’s basement was consistent with Dawn’s blood. One of the two-toed shoes matched a shoe print that was left in the mud near where defendant’s
Defendant testified and denied any involvement in the crime. Defendant’s testimony suggested that Williams was the murderer. Defendant denied owning the clothes or the knife, but said that Williams had an outfit like the one recovered and that he had seen Williams with the knife. Defendant denied showing the knife to Douglas or saying that he killed two persons. Defendant testified that the police made him sign the confession by raising their voices.
Defendant was convicted of the murders and sentenced to death. After his convictions and sentence were affirmed by this court and his petition for a writ of certiorari to the United States Supreme Court was denied, defendant filed a post-conviction petition. As twice amended, defendant’s post-conviction petition contained 28 counts. Eleven counts, however, restated constitutional arguments that were rejected on direct appeal. In dismissing the petition without an evidentiary hearing, the trial court ruled that the majority of defendant’s claims were barred by waiver and res judicata. As to defendant’s claims of ineffective assistance of counsel, the court ruled that defendant had not made a substantial showing that his constitutional rights had been violated.
The trial court found merit to one of defendant’s claims based on Brandon and Nitz. Defendant argued that at the time of his trial and sentencing he was taking two medications to control his epilepsy — Depakote and phenobarbital — and that these medications were psychotropic. Defendant contended he was denied due process when he did not receive a fitness hearing and that he received the ineffective assistance of counsel when his trial and appellate attorneys failed to invoke his right to such a hearing. The trial court agreed that Depakote was psychotropic medication and that defendant therefore would have been entitled to a fitness hearing. See Ill. Rev. Stat. 1989, ch. 38, par. 104 — 21(a); Brandon,
ANALYSIS Standard of review
A petition filed pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122 — 1 et seq. (West 1998)) is a collateral attack on a prior conviction and sentence. People v. Mahaffey,
An evidentiary hearing on the petition is required only when the allegations of the petition, supported by the trial record and the accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Hobley,
Psychotropic Medication
Defendant argues that he was denied due process when he did not receive a hearing to determine his fitness for trial while under medication. The statute in effect at the time of his trial provided, in part, as follows:
“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.” Ill. Rev. Stat. 1989, ch. 38, par. 104 — 21(a).
Defendant further argues that he received the ineffective assistance of counsel when his trial attorney failed to invoke his right to a fitness hearing and when his counsel on direct appeal failed to raise the due process and ineffective assistance of counsel arguments as they related to his failure to receive a section 104 — 21(a) fitness hearing.
The factual basis for defendant’s claim, as provided in his post-conviction petition and the accompanying affidavits, is as follows. Defendant has suffered from epilepsy since the age of six, when he suffered a head injury. To control his seizures, defendant has been taking medications for many years. During his trial and sentencing, defendant’s epilepsy medications were Depakote and phenobarbital. The trial court was aware that defendant was taking medication for epilepsy.
The Physicians’ Desk Reference categorizes Depakote as an “antimanic agent,” which is a subcategory of “psychotherapeutic agents.”
Before deciding the merits of defendant’s arguments, we address the State’s contention that phenobarbital and Depakote are not psychotropic medications. In People v. Britz,
“ ‘Psychotropic medication’ means medication whose use for antipsychotic, antidepressant, antimanic, antianxiety, behavioral modification or behavioral management purposes is listed in AMA Drug Evaluations, latest edition, or Physicians’s Desk Reference, latest edition, or which are administered for any of these purposes.” 405 ILCS 5/1— 121.1 (West 1998).
We further relied on the definition given by the United States Supreme Court in
“[Plsychotropic drugs are ‘medications commonly used in treating mental disorders such as schizophrenia,’ the effect of which is ‘to alter the chemical balance in the brain, the desired result being that the medication will assist the patient in organizing his or her thought processes and regaining a rational state of mind.’ ” Britz,174 Ill. 2d at 198 , quoting Washington,494 U.S. at 214 , 108 L. Ed., 2d at 193,110 S. Ct. at 1032 .
The trial court found that Depakote was a psychotropic drug, but that phenobarbital was merely “an anticonvulsant barbiturate.” We agree that Depakote falls within the purview of section 104 — 21(a)’s reference to “psychotropic drugs or other medications.” Ill. Rev. Stat. 1989, ch. 38, par. 104 — 21(a). Depakote is listed in the PDR as a psychotherapeutic antimanic agent and thus clearly falls within the Britz definition. Further, Dr. O’Donnell stated in his affidavit that the combination of Depakote and phenobarbital could affect the individual’s ability to think clearly and to make certain decisions. We thus agree with defendant that his ingestion of Depakote would have entitled him to a fitness hearing under section 104 — 21(a). This conclusion renders unnecessary a discussion of whether phenobarbital fits the Britz definition.
Our decision is not in conflict with People v. Kidd,
We turn now to the merits of defendant’s arguments. Defendant argues that the trial court erred in finding that Brandon could not be applied retroactively to cases pending on collateral review, and points out that Nitz and People v. Neal,
Due Process
We first address defendant’s argument that he was denied due process when he did not receive the fitness hearing to which he was entitled. Petitioner’s claim— that denial of a section 104 — 21(a) fitness hearing is a denial of due process — has its genesis in Nitz. In Nitz, the defendant raised a Brandon issue for the first time in a post-conviction petition. The State argued that Brandon was not applicable because the defendant did not argue that he received the ineffective assistance of counsel. Thus, the defendant's claim was lacking a constitutional foundation. We rejected the State’s argument and held that the court’s failure to follow the relevant statutory procedures resulted in a due process violation to the defendant. Nitz,
The reasoning in Nitz was as follows. The due process clause of the fourteenth amendment prohibits the prosecution of a defendant who is unfit for trial. U.S. Const., amend. XIV; Medina v. California,
Nitz correctly recognized that due process does not mandate a particular procedure for an inquiry into fitness; it requires only that there be an adequate procedure to implement the right to an inquiry. Nitz,
Although we recognized in Nitz that defendant’s right to section 104 — 21(a)’s procedure was wholly statutory, we reached the somewhat contradictory conclusion that the trial court’s failure to invoke the statute denied defendant due process. The relevant passage in Nitz is our conclusion that, “Here, as in Pate, because no procedure was invoked, defendant was denied inquiry into the issue of his fitness. Due process was thereby denied.” Nitz,
In Nitz, we failed to distinguish the United States Supreme Court’s decision in Pate. In that case, the Supreme Court held that the defendant should have received a fitness hearing because the evidence introduced on his behalf established a bona fide doubt of his fitness. Pate,
“In Pate v. Robinson,383 U.S. 375 [,15 L. Ed. 2d 815 ,86 S. Ct. 836 ] (1966), we held that the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Although in Robinson we noted that Illinois ‘jealously guard[ed] this right,’ id., at 385, we held that the failure of the state courts to invoke the statutory procedures deprived Robinson of the inquiry into the issue of his competence to stand trial to which, on the facts of the case, we concluded he was constitutionally entitled. The Court didnot hold that the procedure prescribed by Ill. Rev. Stat., ch. 38, § 104 — 2 (1963), was constitutionally mandated, although central to its discussion was the conclusion that the statutory procedure, if followed, was constitutionally adequate. [Citations.] Nor did the Court prescribe a general standard with respect to the nature or quantum of evidence necessary to require resort to an adequate procedure. Rather, it noted that under the Illinois statute a hearing was required where the evidence raised a ‘ “bona fide doubt” ’ as to a defendant’s competence, and the Court concluded ‘that the evidence introduced on Robinson’s behalf entitled him to a hearing on this issue.’ ” (Emphasis added.) Drope, 420 U.S. at 172-73 ,43 L. Ed. 2d at 113-14 ,95 S. Ct. at 904 .
Thus, Drope clearly recognized that Illinois’ statutory procedure — requiring a fitness hearing when there is a bona fide doubt of defendant’s fitness — was constitutionally adequate to safeguard a defendant’s due process right not to be tried or convicted while unfit to stand trial. The Supreme Court did not hold, as Nitz implies, that the failure to follow any statute concerning a defendant’s fitness for trial deprives a defendant of due process. See Nitz,
The United States Supreme Court has determined the constitutional adequacy of the Illinois statutory scheme of requiring a fitness hearing when there is a bona fide doubt of defendant’s fitness. Thus, Illinois has in place procedures that are constitutionally adequate to protect a defendant’s due process right not to be tried while unfit.
Nitz’s conclusion was largely based on this court’s continued equating of a defendant’s ingestion of psychotropic medication with a bona fide doubt of defendant’s fitness. This position has its genesis in Brandon, although it was not specifically articulated until People v. Gevas,
This court’s prior determination that the legislature equated the ingestion of psychotropic medication with a bona fide doubt of defendant’s fitness was simply erroneous. Section 104 — 11(a) of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/104 — 11(a) (West 1998)) provides, in part, that “[w]hen a bona fide doubt of the defendant’s fitness is raised, the court shall order a determination of the issue before proceeding further.” Section 104 — 21(a), at the relevant time, provided that “[a] defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issues of his fitness while under medication.” Ill. Rev. Stat. 1989, ch. 38, par. 104 — 21(a).
The wording of these provisions is significant. The first places a mandatory burden on the trial judge to order a determination of a defendant’s fitness when a bona fide doubt of that fitness is raised. See People v. Reed,
Ineffective Assistance of Counsel
Defendant also argues that he received the ineffective assistance of counsel when his trial and appellate attorneys failed to invoke his right to a section 104 — 21(a) fitness hearing. We first address whether defendant received the ineffective assistance of appellate counsel when his attorney failed to argue on direct appeal that he was denied due process when the trial court failed to hold a section 104 — 21(a) fitness hearing. To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) counsel’s performance was so seriously deficient as to fall below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance so prejudiced the defendant as to deny him a fair trial. Strickland v. Washington,
Defendant cannot meet the first prong of the Strickland test in arguing that appellate counsel should have argued that he was denied due process when the court failed to hold sua sponte a fitness hearing when it found out that defendant was taking psychotropic medication. As thoroughly set out earlier in this opinion, defendant’s right to a fitness hearing under section 104 — 21(a) is a statutory rather than a constitutional right. At the time of defendant’s direct appeal, no Illinois court had held that a trial court’s failure to order sua sponte a section 104 — 21(a) fitness hearing deprived a defendant of due process. Defendant’s attorney therefore would have had no reason to believe that this court was about to reach that conclusion. Further, existing case law would have indicated that the argument was meritless. See Balfour v. Haws,
We next address whether trial counsel was ineffective for not requesting a fitness hearing and whether appellate counsel was ineffective for failing to argue trial counsel’s ineffectiveness in not requesting a fitness hearing. We must first consider the relevant standard for assessing claims of ineffective assistance of counsel for failing to request section 104 — 21(a) fitness hearings. In Brandon, we cited the Strickland standard, but then held that a defendant could meet the prejudice prong of Strickland merely by showing that, if his attorney would have requested a fitness hearing, he would have gotten one. Brandon,
To establish prejudice under Strickland a defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland,
Clearly, defining the test as whether a defendant would have received a fitness hearing cannot be correct. If a defendant would have been found fit to stand trial, he suffered no prejudice by not having a fitness hearing. The correct test for evaluating prejudice in these situations is whether a reasonable probability exists that, if defendant would have received the section 104 — 21(a) fitness hearing to which he was entitled, the result of the proceeding would have been that he was found unfit to stand trial. Brandon is overruled.
We now consider whether defendant’s trial attorney was ineffective for failing to request a hearing. We will not find this claim waived for defendant’s failure to raise it on direct appeal because it depends on facts outside the original trial record. See Whitehead,
Under section 104 — 10 of the Code, a defendant is unfit for trial “if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense.” Here, the record belies any claim that defendant did not understand the nature of the proceedings or was unable to assist in his defense. Defendant’s exchanges with the trial judge do not display any confusion about the nature of the proceedings, and defendant assisted in his defense by testifying in his own behalf. Defendant testified to his whereabouts at the relevant times, denied any involvement in the crime, and asserted that his confession to the police was coerced. Defendant’s testimony covered over 50 pages of the report of proceedings and does not disclose any signs of confusion about the nature or purpose of the proceedings. Similarly, defendant gave extensive testimony in support of his motions to suppress statements and evidence, and there is no indication that defendant did not understand the nature or purpose of those proceedings.
In Kinkead, we downplayed the importance of a defendant’s trial court demeanor in determining fitness, stating that it encouraged “unprincipled speculation into matters requiring medical expertise.” Kinkead,
“(1) The defendant’s knowledge and understanding of the charge, the proceedings, the consequences of a plea, judgment or sentence, and the functions of the participants in the trial process;
(2) The defendant’s ability to observe, recollect and relate occurrences, especially those concerning the incidents alleged, and to communicate with counsel;
(3) The defendant’s social behavior and abilities; orientation as to time and place; recognition of persons, places and things; and performance of motor processes.”725 ILCS 5/104 — 16(b) (West 1998).
Defendant’s trial demeanor, as evidenced by the record, is clearly relevant to these factors. Nothing in the record indicates that defendant would be found unfit based on a consideration of these factors.
We recognize that a trial judge cannot rely on trial demeanor to dispense with a fitness hearing in the face of evidence of a bona fide doubt of defendant’s fitness (Pate,
The evidence that defendant attached to his post-conviction petition does not show a reasonable probability that defendant would have been found unfit. First, it must be remembered that defendant was not taking these medications for any underlying psychiatric problems. He was merely taking them to control seizures. Thus, the only real question is whether these medications in and of themselves rendered defendant unfit for trial. O’Donnell’s affidavit established that the combination of defendant’s medications might have affected defendant’s ability to make certain decisions. O’Donnell also believed that the medication may have caused defendant to appear too relaxed or detached during court proceedings. O’Donnell’s affidavit simply does not establish that defendant would not have been able to understand the nature and purpose of the proceedings or to assist in his defense.
Defendant also attached to his petition the affidavit of clinical psychologist Michael M. Gelbort. In the affidavit, Gelbort testifies to defendant’s learning disability, difficulty in school, borderline mental retardation, seizure disorder, and difficulty in processing information. In light of the factors that a trial court considers in determining fitness for trial, there is no reasonable probability that defendant would have been found unfit based on Gelbort’s testimony.
The facts of this case are similar to Murphy. The issue in Murphy was whether there was a bona fide doubt of the defendant’s fitness such that the trial court should have ordered a fitness hearing. In that case, psychiatric evidence established that defendant was mentally retarded and could only “ ‘understand simple procedures but not complicated ones or those having abstract meanings.’ ” Murphy,
The record and post-conviction affidavits show that defendant was functioning at a higher level than the defendant in Murphy, fully understood the nature of the proceeding against him, and was able to cooperate in his defense. There is no reasonable probability that defendant would
In sum, the right to a fitness hearing that used to be provided for in section 104 — 21(a) was a statutory right. A defendant did not have a due process right to such a hearing, and trial courts had no obligation to order sua sponte a section 104 — 21(a) fitness hearing if a defendant did not request one. Thus, in a post-conviction case, the claim will be considered only if it is framed in the context of ineffective assistance of counsel. To prevail on such a claim, a defendant must show a reasonable probability that, if a section 104 — 21(a) fitness hearing would have been held, he would have been found unfit to stand trial.
We are not unmindful of the import of today’s decision. Normally, because of stare decisis considerations, we would continue to adhere to our established precedent, even if certain members of this court disagreed with it. In this case, however, we deem it appropriate to depart from stare decisis. We stated in Chicago Bar Ass’n v. Illinois State Board of Elections,
In 1995, we held that after a period of two years had passed it would be impossible to conduct a meaningful hearing as to defendant’s fitness at the time of trial and sentencing. Gevas,
Our most important duty as justices of the Illinois Supreme Court, to which all other considerations are subordinate, is to reach the correct decision under the law. Our jurisprudence in this area has become erratic and confused, and it all stems from an erroneous statutory interpretation five years ago. Stare decisis should not preclude us from admitting our mistake, interpreting the statute correctly, and bringing some stability and reason to this area of
Ineffective Assistance of Counsel at the Suppression Hearing
Failure to Establish “Fruit of the Poisonous Tree”
Defendant next argues that his attorney was ineffective at the hearing on his motions to suppress evidence because he failed to establish that the physical evidence recovered from defendant’s basement was the fruit of his unlawful arrest. On direct appeal, we held that defendant’s due process rights were violated by the trial court’s failure to recall critical testimony by defendant that defendant did not believe he was free to leave police custody. However, we declined to remand the matter for a new suppression hearing because we concluded that, even if the trial court would find that defendant’s confession should have been suppressed, the other evidence of defendant’s guilt was so overwhelming that introduction of his confession was harmless error. Mitchell 1,
Defendant argued on direct appeal that the physical evidence recovered from his basement was the fruit of his illegal detention. Defendant reasoned that he told the police that he was with Maurice Douglas on the night of the murders. The police questioned Douglas, and he told them where the murder weapon was probably hidden. We held that the record did not establish that Douglas told the police where the weapon was hidden and that defendant’s argument was based solely on conjecture. Without establishing that Douglas informed the police where defendant’s Ninja equipment and the murder weapon were hidden, defendant could not meet his initial burden of showing a connection between his detention and the police’s finding that evidence.
Defendant attached to his post-conviction petition the hearsay affidavit of Gilbert Roberts, an investigator with the office of the State Appellate Defender, who interviewed Douglas on November 19, 1993. In the affidavit, Roberts states that Douglas told him that Douglas told the police where the murder weapon was probably hidden. Defendant contends that he has now made the crucial connection showing that the physical evidence was the fruit of his unlawful detention and that his trial attorney was therefore ineffective for failing to make the connection at the suppression hearing.
Assuming, without deciding, that one can obtain an evidentiary hearing based upon inadmissable hearsay evidence, we find defendant’s argument to be meritless. Under the Strickland standard, counsel’s performance need not be evaluated if it can be shown that the defendant suffered no prejudice. People v. Albanese,
We believe that if defendant would have argued the Douglas connection,
Under the inevitable-discovery exception to the exclusionary" rule, evidence that otherwise would be inadmissible may be admitted if the prosecution can show that the evidence “ ‘would inevitably have been discovered without reference to the police error or misconduct.’ ” People v. Edwards,
Here, before defendant was taken to the police statian, the police were looking for a car that had been seen near where the murders occurred. The police had the car’s license plate number and knew that two black males were seen in the car. The police traced the car to defendant’s sister and learned that defendant had been" driving the car the night before. The police also spoke to defendant’s mother, who knew that defendant and Douglas were together the night of the murders. Defendant and Douglas had been friends since they were five years old. Douglas’ father also knew that defendant and Douglas were together on the night of the murders. Considering the above evidence, we simply cannot accept defendant’s contention that the police would not have found out that Douglas was with him the night of the crime if they had not illegally detained him. Before the police detained defendant, they knew he had been in the car and that there was another black male in the car. Given that a thorough investigation into the violent murder of two teenagers was underway, that defendant and Douglas were friends, and that the police were speaking to people who knew that Douglas and defendant had been together that night, we believe that it was inevitable that the police would have
Defendant has not shown that the trial court erred in failing to suppress the physical evidence recovered from his basement. Assuming that the trial court would have ruled that defendant’s confession should have been suppressed, there is no reasonable probability that the court would have also ordered the physical evidence suppressed. If defendant’s attorney would have argued that the police only learned of that evidence through Douglas, and the police only learned about Douglas through defendant’s confession, there is a reasonable probability that the State would have argued the inevitable-discovery rule. We believe the State would have prevailed in showing that the physical evidence should not have been suppressed, even if the confession would have been. Accordingly, defendant has not established that his trial attorney was ineffective at the suppression hearing for failing to argue the Douglas connection. The court correctly dismissed this count of defendant’s post-conviction petition.
Failure to Establish that Defendant Would Not Have Been Able to Make a Valid Miranda Waiver
Defendant next argues that his trial counsel was ineffective at the hearing on the motion to suppress when he failed to introduce evidence that would have helped to establish that defendant was incapable of making a valid waiver of his Miranda rights. Defendant similarly raised a Miranda argument on direct appeal, but we declined to address it because we had already determined that, assuming defendant’s confession should have been suppressed, its admission into evidence was harmless error. Mitchell I,
Defendant tries to revive the Miranda argument by relying on post-conviction affidavits that he believes help to establish that he would have been unable to make a knowing, voluntary, and intelligent waiver of his Miranda rights. Just as we held on direct appeal, however, the Miranda issue is irrelevant given our determination that any error in the admission of defendant’s confession was harmless. Defendant suggests that the jurors would have given less weight to his confession if they had been apprised of the degree of his intellectual defects. We fail to see how this contention affects our conclusion on direct appeal that all of the remaining evidence, absent defendant’s confession to the police, so overwhelmingly established his guilt that any error in the admission of his confession was harmless. Our holding on this issue in the prior appeal is res judicata, and the trial court did not err in dismissing this count of defendant’s post-conviction petition.
Trial Court’s Refusal to Provide Funds for a Mitigation Expert
Defendant next argues that he was denied due process when the trial court denied his pretrial request for funds to hire a mitigation expert to assist with the capital sentencing hearing. We agree with the State that this claim is waived because it could have been raised on direct appeal. Considerations of waiver and res judicata limit the range of issues available to a post-conviction petitioner to constitutional matters that have not been, and could not have been, previously adjudicated. Tenner,
In the motion, defendant’s attorney claimed that neither he nor the staff of the public defender’s office had the necessary skills to prepare a life history of defendant. At the hearing on the motion, defense counsel elaborated that the public defender’s office did not have adequate staff to prepare a mitigation report dealing with defendant’s schooling, his family and work histories, his medical records, and his school records. However, defense counsel told the court, “for the record, I’m aware of no— certainly there is no statute or basis for this request. I’m not aware of any, and I also am not aware of any case law in the circuit that allows the same, but, I believe that this request is very important.” Defense counsel also maintained that he did not believe that the probation department could do an adequate job.
The trial court denied the motion, and instead ordered the probation and court services department of St. Clair County to investigate defendant’s background and to prepare a report in the nature of a presentence investigation report. The court also ordered Cheryl Prost to conduct psychological examinations and tests on defendant and to make the results available to the State, defendant, and the court.. The question is, in light of what defense counsel represented to the trial court, did the court abuse its discretion in denying the request for a mitigation expert? Defendant preserved this issue in his post-trial motion, and argued it at the hearing on the post-trial motion. There is no reason he could not have made this argument on direct appeal. The argument does not depend on the fact that defendant now has attached to his petition what he considers to be better mitigating evidence. That was his argument all along: that he needed funds to have someone conduct an adequate investigation and that he would not be able on his own to muster evidence of this quality. This was a routine abuse of discretion argument that should have been presented on direct appeal, as it was in Burt and People v. Lear,
Ineffective Assistance of Counsel: Failure to Investigate and Present Mitigating Evidence
Defendant next argues that he received the ineffective assistance of counsel when his attorney failed to conduct an adequate investigation of potential mitigating evidence and failed to present this evidence at his capital sentencing hearing. As this claim depends upon evidence outside the original trial record, it is not waived for counsel’s failure to raise it on direct appeal. See People v. Orange,
To prevail on a claim of ineffectiveness of counsel at sentencing, a defendant must show that his attorney’s performance fell below an objective standard of reasonableness and that, absent counsel’s errors, there is a reasonable probability that the trier of fact would have concluded that the balance of aggravating and mitigating factors did not warrant the death penalty. People v. Henderson,
Background
We begin by reviewing the evidence presented at the sentencing hearing. The State presented no evidence in aggravation. Defendant presented three witnesses in mitigation. The first person to testify was probation officer Michael Buettner, who prepared a presentence investigation report of defendant. Buettner testified that defendant was born on December 21, 1969. Buettner also testified about defendant’s family members, giving their ages and cities of residence. Defendant lived with his mother, who provided his room and board. Buettner testified that defendant attended school until the eighth grade and then dropped out. Defendant received average to below-average grades. For part of his education, defendant was enrolled in a home bound study program, but Buettner did not know what that was.
Buettner testified that defendant told him that he had worked at “Bob’s Liquor Store,” but Buettner could not verify that such a place existed. Defendant also claimed to have worked for a company selling cable boxes, but Buettner could not verify that. In the summer of 1986, defendant worked in a summer youth program.
Buettner learned that defendant had epilepsy and verified that defendant took phenobarbital and Depakote. Defendant said that in recent years he experienced seizures only twice a year while on that medication. Buettner did not discover any history of alcohol or drug abuse by defendant. Defendant told Buettner that there was no history of mental illness in his family. Defendant did not have an adult criminal record, and had one delinquency incident when he was 14 years old. At that time, defendant was charged with burglary and placed on two years’ probation. Defendant successfully completed the probation.
Cheryl Prost, a psychological consultant for the 20th Judicial Circuit, testified that she had been employed in that capacity for 19 years. Prost had a bachelor’s degree in psychology and a master’s degree in clinical psychology. She had also completed a year of doctoral work in psychology. She was ordered by the court to evaluate defendant. The evaluation took place at the St. Clair County jail and was conducted on days that defendant’s jury trial was underway. Prost testified that she gave defendant the Wechsler Adult Intelligence Scale tests, a short reading test, tests to determine eye motor coordination and visual memory problems, and a clinical analysis questionnaire.
Prost testified that the testing conditions were not good. She had to work around defendant’s trial, so the testing began as early as 6:15 a.m., there were interruptions from jail guards, and there was a lot of noise in the background. Defendant tried very hard to pay attention to what was going on and to shut out the noise. Prost believed that the test conditions might have caused defendant’s scores on the Wechsler test and the reading test to be slightly lower than they otherwise would have been. Prost discussed defendant’s educational background with him and learned that he had been in learning disability classes.
Prost explained that the results of the Wechsler test showed defendant’s verbal IQ to be 75, which is in the middle of the borderline range of mental retardation.
Prost elaborated on defendant’s verbal IQ score, explaining that it is based on six subtests. An average score on any of these tests would be a 10, and anything below a 7 would indicate a serious problem area. Defendant’s scores were as follows: 3 on the information subtest, which tests academic information that one would pick up from being in class; 7 on the digit span, which is remembering a series of numbers forwards and backwards; 4 on vocabulary definitions; 6 on the arithmetic test; 8 on the comprehension section; and 5 on similarities, which compares two objects and asks how they are the same.
Prost further testified about defendant’s reading difficulties. She administered the Wide Range Achievement Test, and it showed that defendant’s reading level was fourth grade, first month. According to Prost, a fifth grade reading level is normally necessary to perform daily business. Defendant labored over the clinical analysis questionnaire questions, but he seemed able to comprehend them if given adequate time to do so. Defendant tested negative for any visual memory impairment or dyslexia.
Prost testified that the clinical analysis questionnaire, which she administered to defendant, asks 148 true/false questions about what a person is like or what types of experiences a person has. Defendant scored highly on five out of the six scales for depression. The tests showed that he felt anxiety and felt physically unwell at times. Prost reiterated that defendant was instructed to answer the questions based upon how he felt before he was arrested. Prost testified that defendant’s answers on the clinical analysis questionnaire showed that he was not having delusions, hallucinations, or strange experiences. Frost’s psychological report was admitted into evidence.
Defendant’s mother, Irene Mitchell, testified that defendant was 20 years old, the youngest of her six children. Defendant always minded her when he was growing up and never talked back. She had never had any discipline problems with defendant. Defendant’s father, Aber Mitchell, had worked at Olin Brass in East Alton, but the family was poor. Irene stayed home to raise the children. Aber was now deceased, as were all of defendant’s grandparents.
Irene testified that defendant suffered from epilepsy. Defendant suffered a head injury when he was around five years old and was playing Superman with his brother. Defendant’s foot slipped, and he hit his head on the rail of the bed. Defendant received stitches, and began having seizures seven months after the incident. The seizures are ongoing, and defendant has been treated for the seizures many times. Defendant initially took Dilantin for the seizures, but it did not control them sufficiently. Defendant’s medications were switched to “Depakene” and phenobarbital, and these worked better.
Irene testified that the children in the neighborhood loved defendant because he “trained them to do flips, acrobats and things like that, and they just love Anthony, all of them.” Defendant trained his dog, Poochie, very well, and appeared on a TV show, in which he demonstrated how he and his dog would do flips together.
Irene clarified that defendant’s juvenile conviction was for an incident in which defendant and five other kids broke into an empty house by going through a window. Defendant successfully completed probation and had no other encounters with the legal system.
Defendant did volunteer work with senior citizens in East St. Louis. He was going to school there for reading, and became
Irene testified that defendant had learning difficulties and had a home tutor for two years. Defendant was having seizures, and Irene did not want him to miss too much school because his grades were already bad. A tutor came to defendant’s home every day, which was the home bound instruction to which Buettner referred. Irene testified that, during that period, defendant missed a lot of school because of his seizures.
Irene further testified that defendant got along well with his siblings and that he had close friends, some of whom testified on his behalf during the trial. Defendant had recently worked at Bob’s, which is a confectionary and variety store. The year before, defendant had worked at the Chrysler plant in St. Louis. Defendant was also taking courses at a police academy school in St. Louis; defendant had passed a course to become a security guard.
In the State’s closing argument, the assistant State’s Attorney argued that none of defendant’s mitigating evidence was sufficient to preclude the death penalty. The State pointed out that defendant had had contacts with the criminal justice system, had not worked, was borderline mentally retarded rather than mentally retarded, and was not suffering from mental illness.
The State acknowledged that it did not put on additional aggravating evidence, but rather focused on the violent nature of the crime. The assistant State’s Attorney noted that defendant armed himself with a knife, went into the Lienekes’ trailer and stabbed 18-year-old David, and then pursued 13-year-old Dawn into the bedroom and stabbed her seven times as she cowered under the covers with the telephone in her hand. He asked the jury to consider the terror that would have gone through the victims’ minds, and that defendant’s attack upon them was unprovoked and brutal.
Defendant’s attorney began by reminding the jurors that if even one of them felt there were mitigating factors sufficient to preclude the imposition of the death penalty, the defendant’s life could be spared and that he would be sentenced to a term of natural life imprisonment. Defense counsel reminded the jury that either sentence was very severe, and that at best the 20-year-old defendant would be spending the rest of his life in prison. He emphasized that the State had the opportunity to present additional aggravating evidence but had not produced any.
Defense counsel then asked the jury to consider that defendant was mildly mentally retarded or borderline mentally retarded. Defense counsel further argued that defendant was only 20 years old and had a family who loved him.
Defense counsel also pointed out that defendant’s one contact with the criminal justice system occurred when he was 14 years old and was not significant. Defense counsel went on to talk about defendant’s seizure disorder, that defendant had grown up poor, and had only a fourth-grade reading level. He emphasized that the cumulative nature of this evidence, and that the alternative to death was natural life imprisonment, showed that the death penalty was not appropriate in this case.
Analysis
Against this backdrop, we consider the additional mitigating evidence that defendant now contends should have been presented. Defendant first contends that the jury did not receive accurate and comprehensive information about his intellectual functioning. Defendant criticizes trial counsel’s reliance on Frost’s report. Defendant relies on an affidavit from Dr. Michael Gelbort, who is critical of Frost’s work in this case. Gelbort, a clinical psychologist, tested defendant at the Menard correctional center and determined that defendant’s verbal IQ was 73, his performance
We need not determine whether counsel’s performance was objectively unreasonable under the first prong of the Strickland test, because defendant clearly cannot meet the second prong. The jury was informed of defendant’s borderline retardation and his severe difficulties with reading and learning and did not find that those factors mitigated against imposition of the death penalty. There simply is no reasonable probability that, had the jury known that defendant’s IQ score might have been three points lower, that he actually read at below the third-grade level rather than at the fourth-grade level, and that a psychologist believed that the combination of his reading difficulties and low IQ left him functioning more in the mildly impaired range, it would have reached a different conclusion.
Defendant next argues that counsel minimized his seizure disorder to the point of insignificance and should have introduced more evidence on how it affected his day-to-day life. The jury learned that defendant had been suffering from epilepsy since he was a young child, that he initially took Dilantin, and then switched to Depakote and phenobarbital when that was ineffective. Even with the Depakote and phenobarbital, defendant was still suffering seizures twice a year. Defendant had been treated many times for his seizures, and they caused him to miss so much school that he had to get a home tutor. We do not agree that defense counsel’s evidence minimized defendant’s seizures to the point of insignificance.
Defendant claims that counsel should have introduced testimony from defendant’s sisters, who could have testified about what defendant’s seizures were like, how he had to be hospitalized for them many times, and how he missed school because of them. We believe this evidence would have been cumulative and there is no reasonable probability that additional testimony on this matter would have caused the jury to conclude that defendant’s epilepsy was a mitigating factor sufficient to preclude the death penalty.
Defendant also claims that defense counsel should have introduced evidence such as that found in Gelbort’s report that defendant sometimes had to go without his epilepsy medication as a child when the family could not afford it. Defendant points out that O’Donnell stated in his report that withholding medication in an epileptic patient can cause anxiety and apprehension. As there is no evidence that defendant was without his medication at or near the time of the murders, we do not believe defendant has shown there is a reasonable probability that the jury would have reached a different result based on this evidence.
Defendant next contends that defense counsel was ineffective for failing to introduce evidence that, because of his learning disabilities and illnesses, defendant was victimized throughout his youth. According to defendant’s brief, defendant was “continually degraded, humiliated, and subjected to the violence of bullies, in and out of school.” Defendant’s argument is based on the hearsay statements of defendant’s friend, Eric Nicholson, which are contained in a mitigation report prepared by social worker Jeffrey Eno. According to Eno’s report, Nicholson told him that defendant was laughed at by his peers and was picked on by other students. Nicholson recalled an incident in which another
On this issue we do not believe that defendant can meet the first prong of the Strickland test. Defendant has not shown that counsel’s decision not to present evidence of defendant’s turbulent childhood fell below an objective standard of reasonableness. As we noted in People v. Sanchez,
Finally, defendant claims that the jury never received information about defendant’s history of depression and “other possible indicators of neurological/organic brain impairment.” Defendant points out that Gelbort observed that defendant’s mood was consistent with a reactive type of depression, and that, in 1983, defendant was diagnosed with childhood depression. Defendant also argues that several factors indicated that he had a neurological impairment, including a complicated birth, loss of consciousness after a head injury, another incident of blunt head trauma, possible lead intoxication, seizures, and a learning disability.
Again, defendant cannot meet the second prong of the Strickland test. Defendant’s claim that the jury received no information about his depression is untrue. Prost testified that defendant’s tests showed that he scored highly for depression on five out of six scales, and that he suffered from anxiety. The evidence also showed that defendant suffered from neurological impairment. It was established that defendant suffered from epilepsy following a head injury, that he had a learning disability, that he had difficulty reading, and that his IQ was in the borderline range for mental retardation. The jury rejected these factors as sufficiently mitigating to preclude the death penalty, and defendant has not established a reasonable probability that additional evidence on these matters would have changed that result.
We have carefully considered all of the evidence that defendant argues counsel was ineffective for not presenting in mitigation at his capital sentencing hearing. Defendant cannot meet both prongs of the Strickland test with any of this evidence. Accordingly, he has not made a substantial showing of the denial of the right to the effective assistance of counsel, and the trial court properly dismissed this count of the petition without an evidentiary hearing.
Adequacy of Post-Conviction Representation
Finally, defendant asks us to remand this cause to allow different attorneys to replead his petition. According to defendant, the petition’s shortcomings are such that it does not comply with either Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), or the right to a reasonable level of assistance (see People v. Flores,
Defendant acknowledges that there is no sixth amendment right to the effective assistance of counsel in state post-conviction proceedings. Defendant’s right to counsel in post-conviction proceedings is statutory, and that right is the right to a reasonable level of assistance. Flores,
Defendant contends that his attorneys did not meet their obligations under Rule 651(c). The State counters that Rule 651(c) applies only to defendants who file pro se petitions and does not apply when the original petition is filed by an attorney. Here, the provision of Rule 651(c) that defendant claims was not complied with was the one requiring the petitioner’s claims to be shaped into appropriate legal form. The clause defendant refers to is the one requiring counsel to affirm that he “has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” 134 Ill. 2d R. 651(c). As defendant did not file a pro se petition, his attorneys could not have violated that provision. Moreover, we find that petitioner’s claims are in appropriate legal form.
As a final matter, we note that defendant argues that counsel’s deficiencies prejudiced him particularly with respect to his second, third, and fourth appellate arguments. No additional evidence or pleading would have helped defendant on these arguments. As to the second appellate argument, even if it could have been conclusively established that Douglas was the only person who told the police where the items of physical evidence could be found, the police would have inevitably spoken to Douglas and found that evidence. Regarding the third argument, that argument is irrelevant in light of our holding that any error in the admission of defendant’s confession was harmless. Defendant waived the fourth argument by failing to raise it on direct appeal. We decline defendant’s invitation to remand this matter for repleading of the post-conviction petition.
CONCLUSION
Defendant’s post-conviction petition, supported by the accompanying exhibits and the trial record, does not make a substantial showing that defendant’s constitutional rights were violated. Accordingly, the court did not err in dismissing the petition without an evidentiary hearing. The judgment of the circuit court of St. Clair County is affirmed. The clerk of this court is directed to enter an order setting Wednesday, May 24, 2000, as the date on which the sentence of death entered in the circuit court is to be imposed. Defendant shall be executed in the manner provided by law (725 ILCS 5/119 — 5 (West 1996)). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, the warden of Tamms Correctional Center, and the
Judgment affirmed.
Notes
Brandon held that if a defendant is taking psychotropic medication at the time of trial or sentencing, and his attorney does not request a section 104 — 21(a) fitness hearing, the defendant has received the ineffective assistance of counsel and is entitled to a new trial. Brandon,
The PDR has a listing for “Psychotropics,” but the only listing under that heading says “see under Psychotherapeutic Agents.” Physicians’ Desk Reference 215 (53d ed. 1999).
Defendant does not argue that the Illinois Constitution affords him greater protection in this regard.
The State argues primarily that the evidence shows that it was just as likely that Viroon Williams told the police where the murder weapon was hidden. This assertion, however, does not defeat defendant’s argument. The police also learned about Williams from defendant.
Concurrence Opinion
specially concurring:
I join the majority opinion. I write separately to respond to several points raised by the dissenting opinion in this case.
Notably, the dissent musters only a brief defense of People v. Brandon,
In support of the Brandon rule, the dissent relies primarily on the doctrine of stare decisis as grounds for leaving that line of authority undisturbed. Our departure from stare decisis finds ample justification here, however. The earlier cases attest to the continuing problems the Brandon rule produced as the court labored to provide the statutory right with a constitutional foundation. Considerations of stare decisis should weigh little in these circumstances, where a misguided interpretation of a procedural statute threatened to become a permanent and curious feature of our constitutional law. Relevant here are the concerns expressed by the Supreme Court in Payne v. Tennessee,
“Adhering to precedent ‘is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.’ [Citation.] Nevertheless, when governing decisions are unworkable or are badly reasoned, ‘this Court has never felt constrained to follow precedent.’ [Citation.] Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision.’ [Citation.] This is particularly true in constitutional cases, because in such cases ‘correction through legislative action is practically impossible.’ [Citation.] Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved [citations]; the opposite is true in cases such as the present one involving procedural and evidentiary rules.” Payne,501 U.S. at 827-28 ,115 L. Ed. 2d at 737 ,111 S. Ct. at 2609-10 .
As Payne instructs, the doctrine of stare decisis is not intended to permanently enshrine an incorrect rule of law, isolating it forever from review and reconsideration. “Stare decisis is an important factor in the judicial process, but we must not forget that it is not the whole process.” Nudd v.
JUSTICES BILANDIC and HEIPLE join in this special concurrence.
Dissenting Opinion
dissenting:
I respectfully dissent from the court’s decision to overrule Brandon and its progeny.
Prior to today, our case law had been settled as to what remedy would be afforded to a defendant who was entitled, under section 104 — 21(a) (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 21(a)), to a fitness hearing, but who did not receive one. Specifically, that case law dictated that the failure to hold the hearing necessitated reversal of the defendant’s convictions and remandment for further proceedings, unless it could be established that defendant did not suffer mental impairment as a result of his ingestion of psychotropic medication. People v. Neal,
I
The term stare decisis is derived from the Latin phrase stare decisis et non quieta moevre, which translates “ ‘to stand by matters that have been decided and not to disturb what is tranquil.’ ” J. Wallace, Stare Decisis and the Rehnquist Court: The Collision of Activism, Passivism and Politics in Casey, 42 Buff. L. Rev. 187, 189 (1994), quoting Dictionary of Foreign Phrases and Abbreviations 187 (K. Guinach trans., 3d ed. 1983). This principle was engrafted in English jurisprudence, having been recognized by Sir William Blackstone, who acknowledged that “ ‘precedents and rules must be followed, unless flatly absurd or unjust.’ ” J. Stein, The Hobgoblin Doctrine: Identifying “Foolish” Consistency in the Law, 29 Tex. Tech. L. Rev. 1017, 1019 (1998) quoting 1 W. Blackstone, Commentaries *70. In American jurisprudence, stare decisis reflects a “ ‘policy judgment that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” ’ ” State Oil Co. v. Khan,
This court, too, has voiced similar sentiments. Long ago in Frail v. Burckhartt, the court observed that the rule of stare decisis
“is founded largely on considerations of expediency and sound principles of public policy, it being indispensable to the due administration of justice, especially by a court of last resort, that a question once deliberately examined and decided should be considered as settled and closed to further argument, and the courts are slow to interfere with the principle announced by the decision and it may be upheld even though they would decide otherwise were the question a new one.” Prall v. Burckhartt,299 Ill. 19 , 41 (1921).
In light of the foregoing, this court has recognized that the doctrine, while not inviolable, demands that it be overturned “only on the showing of good cause.” Heimgaertner v. Benjamin Electric Manufacturing Co.,
Purporting to appreciate the considerations noted above, the court states that “normally” it “would continue to adhere to *** established precedent, even if certain members of this court disagreed with it.”
Although I acknowledge that stare decisis is applied less rigidly in constitutional cases (see Patterson v. McLean Credit Union,
In order to understand how our case law has evolved since the time Brandon was announced, a complete review of the history of this court’s psychotropic drug jurisprudence is necessary. This review will illustrate that nothing has changed from the time that Brandon was modified by the court’s decision in Burgess, except for the fact that one member of the court that decided Brandon has retired. However, the circumstances that warrant changes in the law do not include changes in personnel of the court. As Justice Ryan once eloquently stated, “[i]f the law were to change with each change in the makeup of the court, then the concept that ours is a government of law and not of men would be nothing more than a pious cliche.” People v. Lewis,
A
One of the most basic tenets of our criminal justice system is the recognition that the conviction of an incompetent defendant violates that defendant’s fundamental right to due process. Pate v. Robinson,
The Code of Criminal Procedure provides that the issue of a defendant’s fitness to stand trial, to plead, or to be sentenced may be raised by the defense, the State or the court at any appropriate time before a plea is entered or before, during, or after trial. 725 ILCS 5/104 — 11(a) (West 1996). Prior to December 28, 1979, our criminal code provided that, when a bona fide doubt of a defendant’s fitness has been raised, the court shall order a determination of the issue before proceeding further. 725 ILCS 5/104 — 11(a) (West 1996). This court strictly construed these statutory provisions to mean that whenever the court becomes aware of facts that raise a bona fide doubt as to sanity, the court becomes duty-bound to “cause a sanity hearing to be held as provided by law.” Burson,
The failure to hold a fitness hearing once a bona fide doubt as to competence has been raised has long been deemed reversible error. See Burson,
“did not present or argue this point; and that the general rule is that where a question is not raised or reserved in the trial court, or where, though raised in the lower court, it is not urged or argued on appeal, it will not be considered and will be deemed to have been waived. However, this is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process. ‘The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.’ ” Burson,11 Ill. 2d at 370-71 , quoting 3 Am. Jur. Appeal & Error § 248, at 33 (1937).5
In view of the foregoing, it is clear that this court has long acknowledged that the deprivation of the sanity hearing required by the statute was, in essence, a violation of constitutional due process. See also Riggins v. Nevada,
On December 28, 1979, the General Assembly amended the Code of Criminal Procedure to address the issue of psychotropic drugs. Such drugs, also known as antipsychotic drugs, were first introduced in the 1950s and have since gained wide acceptance in the psychiatric community as treatment for psychotic thought disorders. See Riggins,
“[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).
The first reported Illinois decision that addressed this amendment was People v. Tilson,
Such was the state of Illinois’ decisional law on this issue when defendant Tyrone Brandon directly appealed his first degree murder conviction and death sentence to this court. People v. Brandon,
Justice Miller, joined by Justices Bilandic and Heiple, dissented in Brandon. Although the dissenting justices acknowledged that it was “true that the defendant was entitled to a fitness hearing under [section 104 — 21(a)],” they disputed whether defendant had established the requisite prejudice under Strickland v. Washington,
Inexplicably, the court today holds that the word “entitle” does not mean what most people of average intelligence believe it to mean, namely, “to furnish with a right.” Indeed, the court goes to great lengths to explain that the word “entitle” does not mean that a court must make a “further inquiry” when certain facts are brought to the court’s attention. See
After Brandon was announced, this court next addressed section 104 — 21(a) in People v. Gevas,
Once again, Justice Miller, joined by Justices Bilandic and Heiple, dissented, this time on the basis that defense counsel’s failure to inform the trial judge sooner in the proceedings of defendant’s ingestion of psychotropic drugs was a matter of trial strategy. According to the dissent, the trial judge in the case “was warranted in concluding that the defendant was fit and was justified in refusing counsel’s untimely request for a hearing.” Gevas,
“If, as the majority insists, section 104 — 21(a) is to be applied in this case, then the proper course would be to remand for an evidentiary hearing to determine whether the defendant was still receiving drugs at the time of the plea hearing.” Gevas,166 Ill. 2d at 474 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).
It was for these reasons that the dissenting justices believed that the court’s decision to grant defendant Gevas a new trial was erroneous.
This court was next presented with the psychotropic drug issue in Kinkead I,
“We believe that the legislature intended, through the plain language of the statute, to remove the determination of a defendant’s fitness from the subjectivity of personal observation and place the question in the formal context of a fitness hearing. 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 I,168 Ill. 2d at 410 .
Nevertheless, the court noted that Kinkead’s situation was slightly different from that of the defendants in Brandon and Gevas because the record on appeal was inadequate — the court could not “determine whether the administration of the Thorazine was proximate enough in time to defendant’s guilty plea and sentencing to trigger the right to a full fitness hearing pursuant to section 104 — 21(a).” Kinkead I,
Again, Justice Miller, joined by Justices Bilandic and Heiple, dissented. Contrary to the view expressed in their Gevas dissent, the dissenting justices now took issue with remanding the matter for the factual inquiry. Compare Kinkead 7,
The court next addressed the same issue in yet another capital case, People v. Birdsall,
Justice Miller, again with Justices Bilandic and Heiple joining, dissented. Once more, the dissenting justices charged that the court was mistakenly equating the statutory entitlement to a fitness hearing found in section 104 — 21(a) with a bona fide doubt of the defendant’s fitness. The dissent also believed that the court had confused “defendant’s failure to assert the procedures it believes are designed to secure due process with a denial of due process itself.” Birdsall,
Up until Birdsall, all of this court’s decisions which had addressed the psychotropic drug issue had done so in the context of a direct appeal .from trial. In People v. Nitz,
Justice Miller, joined by Justices Bilandic and Heiple, again dissented. The dissenting
Nitz and the cases decided before it firmly established that due process considerations were at play in those cases in which a defendant was entitled to, but did not receive, a hearing under section 104 — 21(a) at the time of trial or sentencing. Under the guise of “correcting” “erroneous” precedent, the court today deprecates the constitutional right to be fit when tried. For example, the court insists that the failure to hold a section 104 — 21(a) hearing is merely a violation of a statute, stating that “[statutes do not confer constitutional rights, and the allegation of a deprivation of a statutory right is not a proper claim under the Act.”
Moreover, the court today mischaracterizes the facts in Nitz. It must be remembered that, in that case, defendant Nitz alleged in his post-conviction petition that the State withheld from both defendant and his attorney the psychotropic nature of the drugs that were administered to defendant Nitz at the time of the trial. Clearly, had those facts been known to either defense counsel or the trial judge, the court would have been duty-bound to hold the hearing mandated by the statute. Therefore, the post-conviction act provided the only means by which defendant could vindicate his constitutional right to inquiry surrounding his competence. See People v. Smith,
After Nitz was announced, the court next addressed section 104 — 21(a) in People v. Britz,
Given their previous dissent in Nitz, one would have expected Justices Miller, Bilandic, and Heiple to have concurred only in the judgment of the court, explaining that they did so only because they believed that Britz’s section 104 — 21(a) claim was not cognizable under the Post-Conviction Hearing Act due to its statutory nature. See Nitz,
Section 104 — 21(a) next came before the court in People v. Kidd,
Neither Justice Bilandic nor Justice Heiple filed a separate opinion in Kidd. As in Britz, the three original Brandon dissenters joined fully in the court’s opinion, without specifically registering their continued disagreement with the court’s interpretation of section 104— 21(a). Surprisingly, these three justices joined in an analysis concerning whether the “other medications” referred to in section 104 — 21(a) were the equivalent of psychotropic , drugs — given their previous dissents, these three justices could have taken the position
Such was the state of this court’s psychotropic drug jurisprudence when Raymond Burgess appealed his conviction and death sentence directly to this court. People v. Burgess,
Justice Miller, writing for the court, began the analysis of the issue by stating the following:
“The State acknowledges that under our decisions in People v. Brandon,162 Ill. 2d 450 (1994); People v. Gevas,166 Ill. 2d 461 (1995), People v. Birdsall,172 Ill. 2d 464 (1996), and People v. Nitz,173 Ill. 2d 151 (1996), this court could simply grant the present defendant a new trial, without regard to his actual condition at the time of the proceedings below, given his ingestion of psychotropic drugs during the trial and sentencing hearing. The State argues, however, that we should not invoke the practice of automatic reversal in this case, in light of the evidence revealed at the special supplemental hearing.
We agree with the State that a rule of automatic reversal is not always appropriate. As this case demonstrates, there will be some circumstances in which it can be said that the use of psychotropic medication did not affect the defendant’s mental functioning in such a way that relief would be appropriate. We are aware that we have previously declined to make use of retrospective fitness hearings, noting the difficulty in determining, long after the conclusion of the underlying proceedings, the degree of mental functioning enjoyed then by the defendant. See People v. Birdsall,172 Ill. 2d 464 , 476 (1996) (citing Brandon and Gevas). Nonétheless, we believe that, at least in the present case, there are sufficient reasons to depart from our previous practice of automatic reversal and to make a case-specific inquiry intothe psychotropic drugs administered to this particular defendant.” Burgess, 176 Ill. 2d at 303 .
The court went on to conclude that defendant’s own expert witness did not believe that the psychotropic drugs administered to Burgess could have had any effect on Burgess. According to the court, the testimony of defendant’s expert “demonstrates [that] we should not automatically assume that every psychotropic drug will inevitably render the person taking it unfit for purposes of trial or sentencing, and we therefore conclude that retrospective hearings are sometimes proper.” Burgess,
Justice Harrison dissented, and I joined in his dissent. The dissenting justices questioned why Burgess should be treated differently from the defendants in the other cases which had preceded his. Burgess,
The decision in Burgess is notable because of the position taken in it by the three original Brandon dissenters, three justices who today comprise 75% of the majority. Recall that none of these three justices believed that due process concerns were implicated by the failure to hold the hearing required under section 104 — 21(a). Contrary to their previously expressed views, they held, in Burgess, that there could be “some circumstances in which it can be said that the use of psychotropic medication did not affect the defendant’s mental functioning in such a way that relief would be appropriate.” Burgess,
After the Burgess opinion was announced, the court next addressed section 104 — 21(a) in People v. Neal,
“retrospective fitness determinations will normally be inadequate to protect a defendant’s due process rights when more than a year has passed since the original trial and sentencing. In exceptional cases, however, circumstances may be such that the issue of defendant’s fitness or lack of fitness at the time of trial may be fairly and accurately determined long after the fact. In such cases, Burgess will apply, and a defendant will not automatically be entitled to have his original conviction and sentence automatically set aside for a new trial.” Neal,179 Ill. 2d at 554 .
The court considered Neal’s case to be such an “exceptional” case based on the evidence adduced at the post-conviction evidentiary hearing. See Neal,
“If the chemical properties of medication are such that their effects could accurately be assessed in light of a defendant’s known medical history, as was the case here, it would not matter whether the evaluation followed the original trial and sentencing by 15 days or 15 years. The result would be the same.” Neal,179 Ill. 2d at 554 .
Therefore, Neal stands for the proposition that in some, but not all, cases, circumstances may be such that the issue of defendant’s fitness or lack of fitness may be fairly and accurately determined long after the fact. Neal,
The decision in Neal was issued without any dissent. None of the three original Brandon dissenters filed separate opinions in the case. This was somewhat surprising because all three previously had noted that post-conviction relief could not be obtained on the basis of the statutory right. See Nitz,
Defendant Cortes argued that he was entitled to a new trial because of his ingestion of psychotropic drugs at the time of the proceedings against him. Cortes’ trial had been conducted between October 24 and November 4, 1994, and the sentencing hearing was held from November 9 to November 10, 1994. During the post-trial motions, defense counsel presented the circuit court with a copy of this court’s decision in Brandon and the appellate court’s decision in People v. Guttierez,
In a decision issued without dissent, this court affirmed the trial court’s decision. We began our analysis by noting the development of our case law from the time that Brandon was decided. We further noted that the General Assembly had amended section 104 — 21(a) subsequent to Brandon, but that the new amendment could not be applied to Cortes’ case retroactively. Cortes,
Thus, Burgess, Neal, and Cortes unequivocally illustrate that the seven members of this court had reached common ground over the question of how to handle the psychotropic drug issue. The original dissenters had fully joined in decisions that recognized the right to raise the issue, whether it be on direct or collateral review, in cases where a defendant had been deprived of the section 104 — 21(a) fitness hearing at the time of trial. In addition, the two dissenting justices in Burgess had joined in the post -Burgess decisions which held that in exceptional cases retrospective fitness determinations could resolve the psychotropic issue.
Our most recent published opinion that addressed section 104 — 21(a) was Kinkead II,
“the remand hearing conducted in the case at bar gives rise to a significantlygreater concern than existed in Burgess, Neal or Cortes, that the defendant’s ingestion of anti-psychotic drugs during the plea and sentencing proceedings influenced his decision-making abilities. Therefore, our conclusion that the defendants in those cases were not entitled to a new trial does not compel a similar conclusion [here]. Indeed, in this case much of the evidence appears to favor defendant’s argument that the Thorazine he took may have influenced his ability to make a reasoned decision to plead guilty to greater charges and seek a sentence of death.” Kinkead II, 182 Ill. 2d at 347 .
The court therefore concluded that Kinkead should receive a new trial.
The three original Brandon dissenters disagreed, this time with Justice Heiple writing for them. The dissenting justices took issue with two specific aspects of the court’s decision. The first centered on the retroactive effect of the amended section 104 — 21(a). Despite the fact that in Cortes all three justices had joined in an opinion which explicitly rejected the notion that the new amendment was retroactive (see Cortes,
The foregoing review of this court’s psychotropic drug case law affirmatively belies today’s assertion that our case law in this area has developed in an unprincipled and unintelligible fashion. See
As I noted earlier, the court contends that stare decisis need not be applied in this case because “[n]o reasonable observer of this court’s jurisprudence could argue that the law in this area has been developing in a principled and intelligible fashion.”
In addition, the court’s decision in Burgess to change from a bright line rule announced in Brandon to a case-specific approach, though criticized at the time by two members of the court, is hardly the type of change in circumstance that warrants the overturn of stare decisis. As noted in Kinkead II, the case-by-case approach comports with due process and ensures that those defendants who were ingesting psychotropic drugs were not impaired by them to the extent that their ability to participate in the defense was hampered. Under today’s decision, such similarly situated defendants now have no recourse whatsoever. I do not believe that the doctrine of stare decisis should be overturned when to do so produces such an unjust result. I must point out that, when this issue arises in the context of a capital case, as all of our cases have been, the need to ensure, as the statute then required, that antipsychotic drugs did not impair or hamper the defendant’s ability to assist in his or her defense becomes all the more important. This last point should not be overlooked for it leads to another disturbing aspect of today’s decision. All of our psychotropic drug cases have been capital appeals, either direct appeals from trial or appeals from post-conviction proceedings. Although this court is a court of permissive review, capital appeals come to us directly. See Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rs. 603, 609(a), 651(a). As a result, this court is frequently presented with the same arguments in case after case, in term after term. Once a legal question has been settled and closed to further argument, I, for one, cannot emphasize enough the need for its consistent application in similar cases. The law of this court cannot be seen by the bar and the public to be one that is constantly “in flux,” changing from opinion to opinion, particularly in capital cases. Both the State and the appellate defense bar should be entitled to view a decision of this court on a given issue as static once that issue has been settled. Both this case and the Palmer case (see
B
In light of the above, I believe that the circuit court in this case erred by dismissing defendant’s psychotropic drug claim without an evidentiary hearing. Defendant’s petition alleged that he was taking
II
Today’s result sends the unfortunate message to the bench, the bar, and the public that “this court does not decide issues based on the law, but based instead on who happens to be sitting on the court at a particular time.” People v. Lewis,
“It is my considered opinion that, having once expressed my disagreement with an opinion of the court and then having followed such opinion in a case which was decided shortly after, it would be inconsistent to reverse my position simply because a new justice has joined this court. I agree *** that the doctrine of stare decisis does not mean that the law is immutable and rigid. On the contrary, I am a firm believer in the continuing evolution of our law and of the requirement that it change to meet changing circumstances. I think, however, that the circumstances which warrant changes in the law do not include changes in personnel. Rather, the circumstances I consider significant enough to bring about changes in the law are those which render an existing rule of law impracticable or unjust and which will bring about a sensible and just result. When those changes are present, I will vigorously vote to change the law.
*** [0]nce a judge has expressed a differing view from the majority, and has then acquiesced in the majority view, to the point of writing an opinion which accords the majority’s view its rightful place as the controlling law on the matter, due regard for the consistency of the court’s opinions leads a judge to continue to follow the majority’s view.” People v. Lewis,88 Ill. 2d 129 , 169-71 (1981) (Clark, J., concurring).
Moreover, Justice Clark’s view of stare decisis is not at all novel. This court, in a per curiam opinion, observed just five years ago that:
“The doctrine of stare decisis is the means by which courts ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. Stare decisis permits society to presume that fundamental principles are established in the law rather than in the proclivities of individuals.” Chicago Bar Ass’n v. Illinois State Board of Elections,161 Ill. 2d 502 , 510 (1994).
See also People v. Fuller,
As I have endeavored to show by my review of our precedent, not one circumstance has changed in our psychotropic drug jurisprudence since this court announced its decision in Burgess. All of the legal arguments set forth in today’s opinion are the same arguments that were made and considered at the time Brandon and Nitz were decided. These same arguments were in existence when the court issued Burgess. The only “circumstance” that has changed since this court announced Burgess is that Justice John Nickels, who joined in Brandon, authored Gevas, joined in Kinkead I and II, and joined in Birdsall, Nitz, Britz, Kidd, Burgess, Neal, and Cortes, has retired, and Justice Rathje has been appointed to fill the vacancy created by the retirement. I submit that this type of “circumstance” does not rise to the level necessary to overturn the doctrine of stare decisis.
Unfortunately, today’s decision demonstrates that “[pjower, not reason, is the new currency of this [cjourt’s decisionmaking.” Payne v. Tennessee,
CHIEF JUSTICE HARRISON and JUSTICE McMORROW join in this dissent.
Dissenting Opinion Upon Denial of Rehearing
The court in Burson did not evaluate the procedural default in terms of our plain error rule. Nevertheless, the court’s recognition that error was of constitutional magnitude comports with the second prong of the plain error rule, i.e., that the error affected a substantial right. See 134 Ill. 2d R. 615(a); People v. Vargas,
Justices Miller, Bilandic, and Heiple apparently now believe differently and challenge the definition of the word “entitle.” See
The court noted that the General Assembly had, during the pendency of Birdsall’s appeal, amended section 104 — 21(a). The amendment provided that, effective December 13, 1995, the granting of a fitness hearing based on the defendant’s treatment with psychotropic drugs is not required unless the court finds there is a bona fide doubt of the defendant’s fitness. The court held that the amendment did not apply to Birdsall’s case and expressed no opinion regarding the amendment’s effect on future cases after the effective date of the amendment. Birdsall,
The fact that Justices Miller, Bilandic, and Heiple concurred in the order was surprising given the fact that in Kinkead I they specifically took issue with the need to remand the case for a limited hearing. According to their dissent in Kinkead 1, the lack of the evidentiary basis for the claim in the record on appeal established that Kinkead did not seek in “a timely manner” the hearing to which he was entitled. See Kinkead I,
I, along with Chief Justice Harrison and Justice McMorrow, am not alone in my interpretation of the Burgess decision. Various panels of the appellate court have taken the view that “while Burgess represents a departure from the rule of automatic reversal, it is still entirely consistent with the fundamental underpinning of Brandon — to protect the due process rights of a defendant who ingested psychotropic medication.” People v. Flynn,
Following the issuance of Burgess, this court remanded to the appellate court those cases which had been decided under the automatic reversal rulé enunciated in Brandon. See, e.g., People v. Johns,
An example of such reliance can be found in the case of another death row inmate, Leslie Palmer. On June 1, 1998, Palmer filed a post-conviction petition in which he alleged, inter alla, that he was denied a section 104 — 21(a) fitness hearing at the time of his capital sentencing hearing. The State confessed error on the psychotropic drug claim, agreeing that a new sentencing hearing was required. The parties eventually reached an agreement in which defendant would forgo all future appeals in exchange for a 65-year prison sentence. The circuit court approved the agreement, and this court closed defendant’s supreme court file on September 17, 1999. Clearly, the State confessed error in reliance on our previous psychotropic drug decisions. Had the State’s Attorney of Mason County, who prosecuted Palmer, chosen not to confess error on the psychotropic drug issue, Palmer would still be on death row today.
Dissenting Opinion
dissenting:
I respectfully dissent from the court’s decision to deny defendant’s petition for rehearing. Once again, I must emphasize my strong and sustained disagreement with the decision of the court in this case.
In his petition for rehearing, defendant correctly observes that neither he nor the State asked this court to revisit Brandon and its progeny. Defendant further points out that during oral argument, held on May 10, 1999, not one member of the court raised any question about the validity of the controlling precedent. Not surprisingly, defendant claims that the court’s sua sponte treatment of this issue was “fundamentally unfair.” He notes that most courts generally abstain from deciding issues on which the parties have had no opportunity to present argument. Defendant asks that he and the State be allowed to file supplemental briefs addressing the matters raised and disposed of by the court sua sponte.
I believe that defendant’s requests are well taken. At the very least, defendant’s attorneys should be given the opportunity to reargue defendant’s ineffective assistance of counsel/psychotropic drug claim in light of the new legal standards announced by a majority of the court, new standards that his attorneys could not possibly have foreseen. I note that when the United States Supreme Court overruled Booth v. Maryland,
In sum, I would grant rehearing in this case because I believe the court’s decision to overrule Brandon and its progeny was ill-advised. In light of my colleagues’ refusal to do that, I would grant defendant’s alternative request that he be allowed to reargue his claims in light of the new law established in this case.
JUSTICE McMORROW joins in this dissent.