*1 ILLINOIS, Plaintiff-Appellee, v. THE PEOPLE OF THE STATE OF MORTHOLE, Defendant-Appellant. JACK
Fifth District No. 75-211 Opinion July filed 1977. *2 MORAN, J., dissenting.
G. J. *3 Pritzker, Glass, Schneider, L. Jay Michael Marvin David M. all of Pritzker Glass, Ltd., Chicago, appellant. of for Howerton, (Bruce Attorney, Raymond Robert H. D. State’s of Marion Irish Association, Buckley, Jr., counsel), Attorneys F. for the both of Illinois State’s of People. Mr. EBERSPACHER of the court: delivered JUSTICE Defendant, Morthole, guilty following jury a trial found Jack
circuit County following court of Williamson offenses: unlawful cannabis; possession grams grams of more than 30 but less than of possession containing unlawful of a substance grams of less than 30 heroin; grams unlawful than 200 a substance possession of less containing amphetamine; grams than 200 of a possession unlawful less containing substance a barbituric acid. The court sentenced derivative of years years defendant to one to three the first offense and two to ten for offenses, for run remaining each of the the terms of all of the sentences to concurrently. appeal
On presents (1) three issues for review: whether the trial court’s denial request of his for a on his fitness to stand trial right law; violated his process (2) to due whether he received a fair trial; (3) imposed whether the court an excessive sentence.
Following his indictment for delivery the offense of unlawful of a controlled pursuant warrant, substance and to a bench defendant was by Special arrested Agent William Cornwell of the Illinois Bureau of Investigation on May 1973. At the time of his arrest sitting a car parked next to a park. trailer a mobile home After Cornwell advised defendant rights agent of his a paper noticed sack on the back seat of the car. It was daylight at the time and the car door was open. When sack, Cornwell asked the defendant what was in the replied, “Marijuana.” sack, When Cornwell removed the crushed, observed a green, tobacco-like substance inside. Cornwell then searched the rest of the car knapsacks, and found two inside of which were a band-aid box containing appeared illegal what to be drugs, a substances, wooden kitchen match containing suspect plastic box vial containing substance, powdery brownish envelopes and four each $500 containing in cash. Cornwell pistol also discovered a .22-caliber and a number of bullets in passenger the front seat area of the car. Laboratory tests performed on the discovered presence substances revealed the cannabis, the following: 341.81 grams grams 13.20 of a substance containing acid, a derivative of barbituric 25.02 grams of substance containing methamphetamine, 26.89 grams of containing tablets phenobarbital and methamphetamine, grams and .58 aof substance containing heroin. As a analysis result of the seizure and the of these items 10, 1973, defendant was September indicted on (1) for the offenses of possession unlawful of more than 30 grams grams but less than 500 cannabis; (2) possession grams unlawful than 30 more of a substance heroin; containing (3) possession grams unlawful of less than 200 aof substance containing amphetamine; (4) possession unlawful than of less 200 grams of acid; a substance containing derivative of barbituric (5) knowingly carrying pistol person concealed on his when not on his land, own inor place abode or fixed of business.
After a delays finally number of the case was set for trial on March 1975, more than 22 days prior months after the initial arrest. Five to the date, Pitluk, Dr. psychologist called Marvin whom he had seen requested saw help. immediate Pitluk *4 defendant Chicago approximately p.m. 10 that After evening. talking accused, with the Dr. Community Pitluk drove him to Northeast Hospital in Chicago where at psychologist’s suggestion, defendant committed himself Dr. psychiatric to the locked ward under the care of Tilkin, Jeffrey psychiatrist Dr. previously whom Pitluk had contacted
923 evening Dr. called next Pitluk condition. The regarding defendant’s condition him of defendant’s attorney at home advised and whereabouts. 17, 1975, and advised the appeared
On counsel for defendant March Community ward of Northeast psychiatric that defendant was in a interviewed, been attorney had but Hospital. Defendant had been presented a counsel then cooperation. unable obtain his Defendant’s trial and to stand raising the fitness question motion be question matter could requested the court to continue the until a letter support presented In counsel resolved. of the motion defendant’s State’s Dr. In Assistant signed by response Dr. Pitluk and Tilkin. hospital and advised court that he had called the confirmed Attorney motion counsel’s defendant’s whereabouts. The court denied defense for a a bench warrant for defendant. continuance issued who day, appeared
The next March with counsel presented a motion written for determine defendant’s above- support to stand trial. In defendant offered the motion letter and oral of Dr. Pitluk. Pitluk testified to the mentioned 13, 1975, including events of March defendant’s commitment to the psychiatric hospital Chicago. psychologist ward of the also explained his first At time contact with defendant of 1972. he June gave battery the defendant an tests over the psychological extensive In period days. opinion of several showed that defendant was the tests severely depressed, then of medical possibly psychotic and need testing damage to determine he from brain suffering organic whether was psychosis. had psychologist Between and March June defendant; from only inquiry other with an one contact he received for University regarding request Southern Illinois the accused’s recommending might readmission. In wrote it be response, he a letter develop permit opportunity to whatever beneficial to might skills possess. intellectual he degenerated had reported appearance Pitluk that defendant’s psychologist’s
greatly since he had last seen him in 1972. June he was mentally why confused was uncertain opinion defendant was Chicago. quite Pitluk confused explained even Defendant had girlfriend Chicago. in his who lived in feelings about he felt help because taking amphetamines extensively been wanted prior on his might kill Dr. Pitluk testified that based eventually himself. week and his previous testing, his discussions with the defendant observations, unable to presently it that defendant confusion, self- mental aid his own because of his defense use of degeneration long from depression, and preoccupation, severe amphetamines. *5 cross-examination,
On psychologist might the stated that it have been in attorney who the to him referred accused 1972.Pitluk also stated, however, that defense counsel had not sent to his office on coming March and that defendant’s reason for was to seek the psychologist’s help dealing feelings girlfriend with his towards his Chicago. Deputy
The State called William Sheriff Henshaw and an assistant bailiff, Rosenburger, the had officials who executed the bench John warrant the previous day. Deputy issued SheriffHenshaw testified he defendant, duration, had had three conversations with each of short way Marion, Chicago the from to Illinois. In the first conversation the questions regarding hospital. officer asked defendant his admission to the second, hospital. the asked if he he had eaten at the responded Defendant vague that he had and hungry was not made a hunger reference to strike. The third during conversation occurred booking name, responded questions concerning when defendant to address, and other information. pictures Defendant also identified two his possession as pictures girlfriend. Assistant Bailiff Rosenburger testified conversation with during the defendant which him defendant had for cigarette. asked
The court denied defendant’s for to motion determine his to fitness as as request appointment well defense counsel’s for independent of an psychiatrist to examine defendant. Trial was scheduled for following day. the 19, 1975, again
On March the defense renewed its for motion hearing. again Throughout These motions proceedings were denied. the 19, 1975, of March argument testimony regarding which included motions, continually several other defense interrupted proceedings, sometimes directing language foul at court. At point, one when the defendant’s remarks became particularly vulgar, defense requested counsel five minutes recess calm his client down. These remarks during continued voir dire. On lay one occasion defendant down on the counsel table and on another declared Lord attorney. 20, 1975,
On March presence jury, out of the defense counsel for a ground moved mistrial on the that defendant did not understand proceedings. When the court denied this defense motion counsel renewed his petition whereupon Deputy for a fitness hearing, the court called Rosenburger, Sheriff Norman Bailiff McDonald and who testified cooperative dressing defendant had himself trial. been for Defendant’s attorney completely uncooperative. reiterated defendant had been again petition hearing. The court denied defendant’s a fitness for concluding proceedings judge After chambers the counsel to leave refused open return to court. prepared by the hallway pushed down the carried and chambers and had be reached When the three court room. bailiff and sheriff deputy room, had to release defendant the bailiff to the court entrance at people two entranceway narrow to accommodate because the was too then testimony, defendant According Deputy SheriffMcDonald’s once. fell, jury box. hitting his head on the purposely let his knees buckle room, court returned attorneys judge When floor, unconscious. lay sprawled on the accused, agreed court to recess ammonia did not revive the
When Subsequently, hospital. be until defendant could examined Ko, who had the doctor to the office of with both counsel went hospital for the emergency room examined defendant *6 proceed with able to determining physically of if defendant was purpose court, when he Ko, stated that questions by Dr. to the trial. answer stretcher, defendant, stiff a lying first on examined the defendant battery a of unconscious. The doctor had administered apparendy period After “short abnormality. a physical tests which revealed no maybe had “acute had concluded that defendant examination” doctor slight a laceration of depression drug and a abuse and history reaction an whether right give would not lip lower area.” Ko with the trial. While he found physically proceed defendant was able to concussion, possibility rule that no Dr. Ko to out evidence of refused The doctor also history. because did defendant’s medical not know an acute possibility faking refused rule out the that defendant was to depressive reaction. again fitness hearing
The its for a again defense renewed motion then a mistrial based motion was denied. Defense counsel moved for room, being on defendant’s carried into prejudicial effect of chair, down, placed being being subsequently to fall allowed denied being carried out of the court room. court likewise motion. to granted trial commenced the court the State’s motion
Before indictment, unlawful charged dismiss count V the which offenseof presented and the State weapons. proceeded use of The cause to trial case, At the State’s as summarized. the close of evidence hereinbefore specifically moved for defendant moved for a directed verdict indictment, charging possession II regarding directed verdict count of the ground on grams containing of over 30 of a substance heroin .58 The defense only weighed grams. evidence showed that the heroin trial. its fitnessto stand hearing motion for a the accused’s alsorenewed presented evidence all no The court denied these motions. The jury. the case went to the that the contends trial court’s denial of a on his fitness to trial right stand violated his constitutional process due of law. particular, In argues following raised a bona evidence fide him doubt his fitness to stand entitling thus full hearing: (1) hospitalization fitness defendant’s in a psychiatric ward immediately prior trial; (2) psychologist defense; capable was not aiding (3) own a letter from a treating psychiatrist stating that was emotionally incapable trial; participating (4) representations by defense counsel defense; defendant was unable cooperate aiding (5) the testimony of the examining physician that depression defendant’s acute would ability interfere with his to follow proceedings; (6) defendant’s abnormal behavior before the court.
Section 5—2—1 (Ill. of the Unified Code Corrections Rev. Stat. ch. par. 2—1) defines fitness to stand trial or to be sentenced 1005— procedures establishes provides it. This determine section pertinent part:
“(a) For purposes of this Section a defendant isunfit if, trial condition, or be physical sentenced because of a mental or he is unable:
(1) to purpose understand nature and of the him; proceedings against or
(2) to assist in his defense. (b) The question may be raised before during question or trial. The of the defendant’s fitness to be sentenced be may judgment raised after but before sentence. question State, either case the of fitness bemay raised defendant or the court.
(c) When a bona fide doubt of fitness the defendant’s raised, trial or be is the sentenced court shall order that a of question determination be made further before proceedings.
(d) question When the of the defendant’s fitness trial is to stand trial, prior question raised to the commencement of the shall be corut, by by jury. determined the or a The defendant or the State may request jury judge the on own motion may or his order jury. question When the is raised after commencement the question by shall be determined the court.
# a « defendant, (g) requested by If the State or the court shall appoint a qualified expert experts or to examine the defendant testify regarding his fitness. The corut shall an order enter experts.” county pay expert board to or
927 a defendant’s exists question The whether a bona fide doubt trial court. discretion of the fitness to stand trial lies within the sound Carter, it 894.) N.E.2d Whenever (People v. App. 16 Ill. 3d an that a bona fide doubt of during proceedings apparent becomes exists, stop responsibility it is court’s accused’s fitness further. proceeding question before proceedings and determine Fontaine, 685.) only But where v. 328 N.E.2d (People App. 28 Ill. 3d reviewing court should the has abused its discretion the trial court hearing. (People refusing a fitness of the trial court overturn the order Carter, thoroughly have 894.) We App. 16 Ill. trial did not abuse persuaded and are reviewed the record a fitness or for refusing defense counsel’s motions its discretion of defendant. failing independent for to order an examination behavior, weigh superior position in a to observe defendant’s court was credibility of the witnesses. the evidence and to assess the evidence, view, did not raise a bona as a our Taken whole condition, was physical fide doubt that because of a mental or proceedings against purpose unable to the nature and understand instant circumstances him in his Under or to assist defense. before trial days ward five hospitalization psychiatric defendant’s trial. his fitness to stand concerning did a bona doubt itself raise fide his was hospital voluntary; His condition admission feelings drugs and unresolved voluntary consumption attributable to office, Dr. was there an girlfriend. found Pitluk’s about had seen early, cooperated adequately. Although hour battery given in 1972 and had been Pitluk on two occasions tests, for mental history of confinement psychological defendant had no to be a has been found incompetency Lack history illness. mental of a lack of trial court’s determination compelling supporting factor Skorusa, 55 Ill. 2d People v. to stand trial. bona fide doubt of fitness 630. N.E.2d behavior, of defendant’s the trial court’s observations light of nature and the unsubstantiated of the State’s witnesses justified court was opinion testimony, Pitluk’s psychologist incapable of opinion that defendant discounting psychologist’s that defendant in his Pitluk based aiding own defense. self-preoccupation (1) defendant’s unfit to stand trial on three factors: confusion, by his typified depression; (2) caused a severe defendant’s (3) admission girlfriend; confused attitude towards believe, factors, we habit. These help amphetamine needed to cure his sociopathic possessed may have showed that while defendant disturbances, they and social psychological personality and suffered from to stand fide doubt to raise a bona are not sufficient of themselves *8 Carter, 894; trial. (People v. v. 842, People 16 Ill. 3d 306 N.E.2d App. Jackson, 933, App. 195.) 11 Ill. 3d 297 N.E.2d did the Nor confused statements of during necessarily trial raise a bona fide doubt of Van, (People v. 1027, 293 fitness. 9 Ill. 3d N.E.2d 660 App. (abstract).) Gilliam, Moreover, v. 352, App. 16 Ill. 3d 306 N.E.2d holds that only qualified psychiatrist, a not a can psychologist, give a professional opinion regarding mental ability defendant as it Pitluk, relates to his capacity. By analogy, criminal that Dr. we believe psychologist, not qualified regarding render an opinion ultimate issue of defendant’s testimony fitness. The fact that Pitluk’s not objected ground compel not give to on did the court to much Furthermore, weight testimony. to the in we find no evidence record Tilkin, that Dr. the supervising psychiatrist apparently approved who defendant’s hospital, admission to personally either observed Thus, defendant or him. reach Dr. treated we the conclusion that Tilkin’s Dr. stating Pitluk’s letter their fitness to defendant’s trial gives only unsupported regarding conclusions defendant’s fitness. addition, trial statements of defense counsel cooperate not him could with did not a bona fide doubt create (People v. 114, 262 fitness Slaughter, defendant’s to stand trial. 46 Ill. 2d Likewise, 904.) N.E.2d in justified finding the trial court was Ko, testimony who in physician treated defendant court, emergency room after the defendant had fallen in did not raise a bona fide doubt of defendant’s fitness. Dr. that his physical Ko related examination nothing Contrary of the accused showed abnormal. brief, reply statements both his brief and the doctor did not diagnose incompetent him to be to stand trial. The record shows that Dr. Ko, psychiatrist, who was give psychiatric opinion declined to stated, however, defendant’s condition. based on his He observations, depression he could not rule the possibility out of acute or possibility faking Finally, that defendant was mental illness. conduct a contemptuous of the accused attitude toward the exhibiting court did not trial. (People demonstrate lack fitness to stand Nicks, part grounds, on other 23 Ill. rev'd App. 319 N.E.2d 62 Ill. 2d 360.) disrupted While defendant repeatedly court, proceedings, room at the language directed obscene laid mouth, down on put the counsel table and his toe cooperative State’s witnesses established that defendant was normally acted outside the Our of the record while courtroom. review product indicates that defendant’s and statements were behavior his antipathy inability toward the court and not of his to understand the proceedings. judge nature of the to take into entitled determining personal account his of defendant whether observation trial. The to stand fide doubt of defendant’s existed bona there behavior characterizing defendant’s not abuse its discretion court did abuse its trial court Nor did the illness. attempt as an to simulate mental *9 doubt a bona fide establish failed to ruling that the evidence discretion trial. fitness to stand of defendant’s the by fair trial of a deprived that was contends the presence the of in and out of displayed both
hostility of the trial court personnel the court by “callous and indifferent” treatment jury by are, in court hostility of the of the presence jury. the Illustrative evincing skepticism its opinion, the court’s comments hearing. Specifically, a fitness for a continuance and defendant’s motions him: prejudiced by the court following that the remarks defendant asserts 0 ° this Now, shoved around going not to be we are Mr. doubt as to I if a bona fide particular matter. think there was have been that it could ability cooperate with counsel Morthole’s going on almost this case has been raised much earlier because no indication and there has been years years three or two now doubt, must which there that has been a bona fide Court there that Mr. Morthole Court’s mind be raised a bona fide doubt the statutes to trial, the new incompetent is stand or unfit under nothing this is impression I that gentlemen, get always but a stall and has been.” big remarks, of presence out of the We do not find that these which were People Zaccagnini, v. jury, prejudicial Unlike were toward defendant. defendant, court here by 29 Ill. a case cited identifying into prodded neither an State’s witness uncertain pointed by As out lying. any defendant nor accused defense witness record, State, the court by the standpoint supported from a factual conduct to view the light previous bad faith entitled of counsel’s dilatory tactic. simply as motion for a full on defendant’s fitness faith of good shadow over the long From numerous which cast a events raising of counsel, that the reasonably conclude might defense the court biga stall.” “nothing but question of defendant’s fitness was improperly cross-examined that the State argues Defendant next collusion between basis insinuated evidentiary Pitluk and without attorney psychologist. defense and the insinuations on the. improper such
Our of the record indicates no review Nuccio, N.E.2d 43 Ill. 2d Attorney. part of the State’s contention, is of this by support a case cited Nuccio, State, during cross-examination distinguishable. In witnesses, unsupported made and the two main defense part. misconduct on their pattern general insinuations conviction insinuations defendant’s improper Because of these case, reversed the case remanded for a new trial. In the instant however, record pattern unsupported does not indicate a similar argument unduly insinuations. Defendant’s the trial court was by influenced the purported unsupported insinuation collusion is also were, by Furthermore, the record. we note that these remarks contested comments, in the quoted as case made above also outside presence jury trial. before prejudiced by
Defendant contends he was the “callous and custody indifferent” treatment by personnel charged with his which resulted his fall by inside the courtroom and the conduct of the judge immediately particular, after this incident. bailiff, contends that his fall was deliberately caused and that the court, remarks of the faking, which indicated that demonstrated the court’s hostile attitude toward defendant jury. all,
First of the record purposely does establish the bailiff allowed defendant to fall and hit his Deputy head. McDonald testified entranceway narrowness of the into the courtroom would not permit carry According bailiff continue to defendant. to the *10 deputy’s defendant, testimony, bailiff he let when the released his knees and, Deputy buckle in McDonald’s he fell. opinion, purposely Secondly, in disruptive we believe that view defendant’s prior behavior, upon returning the court’s comments to courtroom and the finding lying were, the though perhaps defendant unconscious on floor unwarranted, understandable under At first the circumstances. the hearing regarding the existence of a bona doubt of fide defendant’s attempted up to stand defendant During to tear his shoes. the court, pretrial proceedings continually interrupted the defendant the directing language sometimes at the trial judge, During obscene voir dire defendant laid down on counsel and on another occasion table interrupted attorney. proceedings, stating the that the Lord was his Immediately prior question, to the incident defendant refused to leave him carry chambers and the officers were to forced into Upon returning finding lying courtroom. to the and defendant courtroom floor, reasonably on the court could assume that this was but another disruptive by tactic defendant. Kelly, misplaces Ill.
Defendant reliance on 193 jury, displayed N.E.2d on presence where of the the court hostility defendant impatience numerous occasions its toward Kelly, court sit down defense counsel. told defense counsel to or down, sit him accused defense counsel court would have the bailiff No stalling, gavel remonstrating broke his while defense counsel. Rather, was in the instant case. hostility impatience similar or evidenced its accommodation to several instances the court demonstrated trial. We preserve the fairness his in order to defendant and counsel motion to defendant’s to hold a agreed note that Secondly, the court despite its lack of timeliness. suppress evidence despite the fact as witness Thomas Hurst permitted to call Hurst did not know what represented they counsel defense every one of attempted to answer almost testify. Thirdly, the court would court, disruptive notwithstanding to the questions defendant’s Next, that the defendant apparent when it became courtroom behavior. to determine conscious, agreed to recess really the court defendant, not revive tablets did defendant’s When ammonia condition. treated could be agreed to such time as defendant the court recess until Ko, physician its motion hospital. Lastly, court called on own room, emergency give in the who treated to stand trial. physical fitness improper conduct points alleged four instances Defendant next initially argues overreaching part on the of the State. him with the prejudiced charging State by conduct of the possession of weapons the offense of offense of unlawful use with heroin, police reports, grams more than 30 where contends, evidentiary charges. these disclosed a lack of an basis for very reading charges these Defendant also asserts that the prospective during prejudicial. jurors voir dire brief, discovery
As the State in its pointed by has been out was the making above assertion material relied on for a “unintelligible” as in motion same material defendant attacked weapons we find respect charge, With the unlawful use of continuance. testified evidentiary Agent that an Cornwell basis for offense existed. car. The pistol he found a the front seat of defendant’s .22-caliber under revolver, any or other applicable carry pistol, statute makes it crime any person or vehicle. (Ill. firearm concealed either on or about one’s added.) par. 1(a).) (Emphasis ch. Supp., Rev. Stat. 1975 24— weapons That at trial chose to dismiss the Attorney the Assistant State’s than amend the count rather prior to commencement overreaching” hardly charged as “prosecutorial indictment is indicative of *11 guilt of by convincing In of evidence of defendant’s light defendant. the charge at the reading the the drug say the we that mere of offenses cannot jury’s the process commencement of the influenced jury selection verdict. 30 than respect possession
With of more charging to the count heroin, The forms grams of find to the defendant. verdict prejudice we no grams 30 the of “less than jury possession submitted to the referred only Rudder, People v. on containing relies of substance heroin.” Defendant Rudder 163, prejudice 100 Ill. N.E.2d 108. App. 2d 241 932 occurred when the court refused to direct a verdict on the proof which,
clearly inadequate companion charge of a assault under the circumstances, may precipitated guilty have verdict of influenced the on charge the lesser driving suspended. of while license Here there was no analogous refusal proof. to direct a verdict clearly inadequate The proof in present clearly possessed case showed that defendant .58 grams of containing a substance heroin.
Defendant’s regarding alleged prejudicial second contention conduct on part of the State in presenting Agent testimony concerns testimony pistol Cornwell’s about the he found under the front seat of defendant’s car. objected Since defendant testimony, never to this he is thus precluded from attacking prejudicial it as appeal. for the first time on Skorusa, Fulton, (People v. People 577, 630; 55 Ill. 2d 304 N.E.2d 84 Ill. v. denied, 280, 228 203, cert. App. 953, 19 1145, 2d N.E.2d 390 U.S. L. 2d Ed. 88 1045.) S. Ct. pistol during presentation The second reference sustaining presence evidence involved the court’s —outside jury objection pistol the introduction into —defendant’s evidence. Obviously, pistol this second not reference to the could have prejudiced jury.
The third purportedly prejudicial instance of on the part conduct State argument concerns the State’s closing discovery reference pistol Agent by along Cornwell with the other items. Because the charge concerning pistol had dropped pistol been and because the inadmissible, error, had been ruled find we that this brief remark was but did not constitute material factor conviction. (People Accordingly, be we would inclined to find the remark harmless. Berry, denied, v. cert. 453, 165 846, 5 18 Ill. 2d U.S. L. N.E.2d 364 Ed. 87.) 2d 81 S. Ct. Since defendant failed to to the remark at object however, we attack propriety instead deem his on the of the remark for Skorusa, v. the first Ill. appeal time on waived. 2d 630. N.E.2d
Fourthly, argues prejudiced by that he was presenting charges. conduct of testimony relating the State to other complains deliberately emphasized further that the State these charges closing argument. Agent Cornwell that his arrest of pursuant outstanding defendant was to an bench warrant charging delivery amphetamines the accused with unlawful properly jury, explained surrounding before the it the circumstances since (People continuing defendant’s arrest part of a narrative. Robinson, 397.) 98 Ill. to the arrest App. Reference warrant in closing prosecutor justify argument was made search of if proper defendant’s car and remark. Even the comments proper, by arrest the circumstances of defendant’s were
933 to he seeks waived issue failing object to to them defendant has Skorusa, v. (People 630.) For all of Ill. 2d 304 N.E.2d present. 55 right reasons, his constitutional find received foregoing we that defendant fair trial. excessive imposed Finally, court contends sentences. imposed is within the sentence standard of review where
The v. (People its discretion. statutory limits is whether the trial court abused Taylor, it must modify the sentence 673.) 33 Ill. 2d 211 N.E.2d To departs from clearly reviewing punishment court that appear law, of our spirit purpose, requirement its fundamental nature of proportionate be constitution the sentence Grau, (People v. possibilities offense and for rehabilitation. measure Smith, 530; App. Ill. 3d 28 App. Ill. 330 N.E.2d possessing 896.) guilty was found The instant defendant arrested, the accused quantities illegal drugs of four kinds of and when *2,000 gun presentence report in his The indicates had in cash and a car. Viewing girlfriend. history by upon an attack the present character of the and seriousness of nature offenses, sentencing court abused its say we cannot the trial discretion.
Consequently, judgment we affirm the circuit court County. Williamson
Judgment affirmed.
CARTER, J., P. concurs. MORAN, dissenting: Mr. GEORGE JUSTICE J. pertaining I court in this case believe the evidence before the trial as to incompetence a bona fide doubt clearly defendant’s mental raised its Accordingly, I think the trial court abused fitness to trial. discretion in to determine defendant’s refusing conduct fitness. noted,
As the motions for majority has defense counsel made several in the proceedings hearing during point, At after trial. one fall concluded, by a chambers knocked unconscious were defendant was revived he as he returned to the court When he could not be room. day nearby to a Dr. Ko. Later that hospital taken and treated ability proceed as to questioned and counsel Ko the defendant’s following colloquy very important: with the trial. I think the is mean, physically? in a Court: I could sit chair and listen “The he Dr. Ko: I think so. don’t Court: think can?
The You don’t ** Dr. Ko: If *. depression it’s acute Court: I physically? The mean
Dr. Ko: In I normal conversation don’t think so. It takes time. Court: I’m talking mentally. any physical about Is there why he sit in a
reason cannot chair listen? I very
Dr. Ko: it doubt [sic]. physically The Court: That he sit in chair? cannot *13 Dr. Ko: he can sit but I think Physically down don’t normal or hearing interpretation judgment. My impression or is that he know, may, you difficulty [sic].” Ko,
After this of Dr. again the court denied defendant’s motion trial, for hearing restating to determine his fitness to stand his belief faking depressive defendant was an acute reaction. totality contrary
While the is finding, evidence to the trial court’s may it apparent well be that the was in fact faking mental problems. However, hearing appointed without fitness with its neutral experts, position are left in merely we as to his guessing actual mental It very state. seems likely judge that the trial confused quantum necessary of evidence grant to determine defendant’s competency quantum with the ultimate at proof necessary the hearing. Similarly, apply we cannot the same standard reviewing sanity hearing in determining that we use whether the trial court grant in refusing hearing. committed error such a If the is required incompetence to demonstrate his mental hearing, motion purpose for then what is the of having hearing? not his preliminary proof Would have already established incompetence, thereby eliminating necessity for further evidence such a hearing? of such I is illogic a conclusion is think it obvious. clear necessary require sanity hearing evidence is far short necessary actually (See establish mental incompetency. McCullum, 66 Ill. Supreme where the Court of Illinois 2—l(i) declared section of the Unified Code Corrections 5— (Ill. 38, par. 2—l(i)) Rev. Stat. ch. unconstitutional 1005— extent places proving that it ultimate unfitnessto burden of defendant.) distinction,
Relying on the I may above believe that there have while been insufficientevidence in the record to indicate that the defendant was mentally enough unfit to stand there was more than evidence require sanity hearing to make such a determination.