People v. Jones , 291 Ill. App. 3d 231 ( 1996 )

                              NO. 5-94-0603

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, )  Appeal from the

                                    )  Circuit Court of

    Plaintiff-Appellee,             )  Randolph County.

                                   )

v.                                   )  No. 94-CF-27

                                    )

MARY L. JONES,                       )  Honorable

                                    )  Jerry D. Flynn,

    Defendant-Appellant.            )  Judge, presiding.

_________________________________________________________________

    JUSTICE WELCH delivered the opinion of the court:

    Defendant Mary L. Jones appeals from her conviction and

sentence for the first-degree murder of her two-month-old son.  She

raises two issues on appeal:  (1) whether her conviction must be

reversed and the cause remanded for a new trial because the trial

court did not conduct a hearing to determine defendant's fitness to

stand trial upon learning that she had been administered psycho-

tropic medications while in jail awaiting trial; and (2) whether

her conviction must be reversed and the cause remanded for a new

trial because the cause proceeded to a bench trial without

defendant having executed a written jury waiver.  Because we find

the first issue to be dispositive of defendant's appeal, we will

not address the second issue relating to the need for a written

jury waiver.  For reasons which follow, we reverse defendant's

conviction and sentence and remand this cause for a new trial.

    Defendant was charged by information filed in the circuit

court of Randolph County on March 8, 1994, with the first-degree

murder of her two-month-old son.  She was arrested and remained in

jail pending trial.  

    On April 4, 1994, the trial court granted defendant's request

to appoint Daniel J. Cuneo, a licensed psychologist, as an expert

witness to assist in her defense.  On June 17, 1994, Dr. Cuneo

testified in support of defendant's motion to suppress her

confession.  During his testimony, Cuneo mentioned that defendant

had been administered, by the staff of the Randolph County jail

while she was incarcerated awaiting trial, the drugs lorazepam, "a

light tranquilizer" to reduce her agitation, and dilantin, "to

control her seizures."  He also testified that defendant suffers

from a personality disorder and that she has twice attempted

suicide, most recently while incarcerated in the Randolph County

jail awaiting trial on this case.  She also suffers from transitory

auditory hallucinations, in which she hears her father's voice

speaking reassuringly to her.  Defendant also has a very low I.Q.

Cuneo was never asked about and never expressed an opinion on

defendant's fitness to stand trial.

    Following a bench trial held from July 11 to July 15, 1994,

defendant was found guilty of first-degree murder and sentenced to

35 years in the Department of Corrections.

    Defendant argues that she is entitled to a new trial because

the trial court failed to hold a hearing on the issue of her

fitness to stand trial, after learning that she had been receiving

psychotropic medications shortly before trial.  She argues that

such a hearing is required by section 104-21(a) of the Code of

Criminal Procedure of 1963.  725 ILCS 5/104-21(a) (West 1992).  At

the time of defendant's trial, that section provided in pertinent

part that a "defendant who is receiving psychotropic drugs or other

medications under medical direction is entitled to a hearing on the

issue of his fitness while under medication."  725 ILCS 5/104-21(a)

(West 1992).

    This statutory provision, and the issue presented in this

appeal, have been the subject of numerous recent Illinois Supreme

Court opinions.  Three subissues are presented in this appeal and

were discussed in these supreme court cases:  whether the issue can

be waived; the need for a fitness hearing; and the appropriate

remedy for the error.   

    In People v. Brandon, 162 Ill. 2d 450 (1994), defendant had

been taking psychotropic medications under medical direction prior

to and during his trial and sentencing.  Nevertheless, his counsel

failed to request a fitness hearing pursuant to section 104-21(a).

Respecting the issue of waiver, our supreme court stated:

    "Section 104-21(a) [citation] evinces a recognition by

    the General Assembly that psychotropic medication is an

    important signal that a defendant may not be competent to

    stand trial.  If a defendant on such medication is not

    fit to stand trial, he can scarcely be expected to raise

    the question of fitness in the first instance.  Where a

    defendant's capacity is the issue in question, it is

    anomalous to even consider concepts of waiver."  Brandon,

    162 Ill. 2d at 457.

    Respecting the question of the need for a hearing, the court

held:

    "A trial court may have no obligation to conduct a

    fitness hearing sua sponte where it does not know that a

    defendant is on medication, no request for a hearing is

    made until after trial, and there has been no indication

    to the trial court that the defendant might be unfit.

    Where, however, a proper request for a fitness hearing is

    made by a defendant who is receiving psychotropic or

    other medications under medical direction, the statute

    expressly provides that he is `entitled' to receive one."

    Brandon, 162 Ill. 2d at 459.

The court held that once section 104-21(a) is invoked, whether to

hold a fitness hearing is not discretionary with the court and the

court must hold such a hearing.  Brandon, 162 Ill. 2d at 461.  In

Brandon, the court found that the proper remedy for the denial of

defendant's right to a fitness hearing was to reverse his convic-

tion and remand the matter for a new trial.

    In People v. Gevas, 166 Ill. 2d 461 (1995), our supreme court

again discussed section 104-21(a).  In that case the defendant

pleaded guilty to the murder of his two nine-month-old children and

was sentenced to death.  His counsel filed a motion asking the

court to vacate the guilty plea and to hold a fitness hearing based

on evidence that defendant had been treated with psychotropic drugs

during the proceedings.  The motion was denied.  Accordingly, the

issue of waiver was not presented to the supreme court.  

    The supreme court held that the fact that the trial court had

been informed of defendant's treatment with psychotropic drugs

during the proceedings but refused to investigate further by

holding a fitness hearing warranted a reversal of defendant's

convictions and sentence.  Gevas, 166 Ill. 2d at 467-68.  The court

recognized that while it was not clear from the record whether

defendant had been taking psychotropic drugs on the dates he

pleaded guilty and was sentenced, there was evidence that he had

been taking such drugs two months prior to his plea and sentencing,

which was proximate enough in time to the dates of his plea and

sentencing to have imposed a duty on the trial court to further

investigate defendant's fitness to stand trial, at least where

there was no evidence that administration of the medication had

been stopped prior to his plea and sentencing.  Gevas, 166 Ill. 2d

at 469.  The supreme court pointed out, "The legislature has

equated the administering of psychotropic medication to a defendant

with a bona fide doubt as to fitness to stand trial."  Gevas, 166

Ill. 2d at 469.  The court pointed out that not only does the

administering of these drugs signal that a defendant may not be

competent to stand trial but these drugs also have severe side

effects which can affect a defendant during criminal proceedings.

Gevas, 166 Ill. 2d at 470.

    Finally, the supreme court held that, because more than two

years had passed since the trial court denied defendant's request

for a fitness hearing, it would be impossible to conduct a

meaningful hearing as to defendant's fitness at the time of his

guilty plea and sentencing.  Accordingly, the court reversed

defendant's conviction and sentence and remanded the cause for a

new trial.

    In People v. Kinkead, 168 Ill. 2d 394 (1995), our supreme

court again addressed section 104-21(a) of the Code of Criminal

Procedure of 1963.  In Kinkead, defendant did not request a fitness

hearing pursuant to section 104-21(a), but the trial court was

aware that defendant had been taking a psychotropic medication.  No

fitness hearing was held.  

    The supreme court held that trial counsel's failure to pursue

defendant's right to request a competency hearing pursuant to

section 104-21(a) does not waive the issue, and where the record

indicates that a defendant's use of psychotropic medication was

proximate to the time of his trial, the trial court has a duty to

further investigate the defendant's fitness for trial.  Kinkead,

168 Ill. 2d at 406-07.  Accordingly, the supreme court held that

the defendant had not waived the issue of his right to a competency

hearing under section 104-21(a).  Kinkead, 168 Ill. 2d at 407.  

    The supreme court went on to reiterate that where section 104-

21(a) applies, a fitness hearing is mandatory, not subject to the

trial court's discretion, and that defense counsel's failure to

move for such a hearing, where applicable, constitutes ineffective

assistance.  The court pointed out:

    "Psychotropic medications are potent drugs and their

    effect on the mind and behavior of an accused may not be

    easily determined or fully understood, particularly by

    nonmedical personnel.  A fitness hearing provides the

    vehicle by which the court may ascertain whether the

    drugs are influencing the defendant's subjective decision

    regarding the pursuit of available defenses."  Kinkead,

    168 Ill. 2d at 410.  

The court stated, "Recent precedent of this court has construed

section 104-21(a) as conferring upon defendants, as a matter of

entitlement, the right to a mental competency hearing if they are

being given psychotropic drugs under medical supervision during the

time of their prosecution or sentencing."  Kinkead, 168 Ill. 2d at

397.  The supreme court held that, if a trial court has notice that

a defendant is taking psychotropic medications or when counsel

requests a fitness hearing based on section 104-21(a), the court

has a duty to inquire into the matter and hold a hearing to

ascertain whether the use of such medications has rendered

defendant unfit to assist in his defense.

    In Kinkead, the record revealed that defendant was being

treated with a psychotropic drug while he was in jail awaiting

trial, but the record contained very little additional information

regarding the time periods and other circumstances under which the

drug was administered to defendant.  In Kinkead, unlike in Brandon

and Gevas, the supreme court did not remand the cause for a new

trial but remanded for the limited purpose of the clarification of

the circumstances surrounding defendant's use of psychotropic

medications.  The court found that, unlike the situation presented

in Brandon and Gevas, it did not have an adequate record upon which

to evaluate whether defendant's receipt of psychotropic drugs while

in jail was medically significant.  There was insufficient evidence

in the record from which to determine whether the administration of

the drugs was proximate enough in time to defendant's guilty plea

and sentence to trigger the right to a full fitness hearing

pursuant to section 104-21(a).  The court could not ascertain from

the record when defendant began to take the medication, what amount

had been prescribed, for what medical reasons it had been pre-

scribed for him, or in what manner the drug might have influenced

defendant's mental functioning, mood, and demeanor in the court-

room.  Accordingly, the cause was remanded to the circuit court for

further proceedings in which the facts relevant to defendant's

usage of psychotropic medication could be developed.

    Under the exercise of its supervisory power, the supreme court

retained jurisdiction over the appeal but remanded the cause to the

circuit court with instructions that it conduct an inquiry into the

factual circumstances surrounding defendant's asserted use of

psychotropic medication while in prison, including specifically the

dates on which he received and ingested such medicine and whether

the psychotropic drug treatment was linked closely enough to the

time of defendant's plea of guilty and sentencing to have entitled

him to a competency hearing pursuant to section 104-21(a).  The

circuit court was to report back to the supreme court with its

findings.  

    Most recently in People v. Nitz, No. 77549 (Ill. June 20,

1996), and People v. Birdsall, No. 77259 (Ill. June 20, 1996), the

supreme court reiterated that the issue of the right to a fitness

hearing under section 104-21(a) cannot be waived and that the

administration of psychotropic drugs to a defendant raises a bona

fide doubt of his fitness to stand trial.  In Nitz, defendant was

administered a psychotropic drug before and during his trial.  In

Birdsall, the record indicates that defendant was taking a psycho-

tropic medication before and during his trial.  Accordingly, the

matters were remanded for a new trial.  In Nitz and Birdsall, as in

Brandon, Gevas, and Nitz, the supreme court reversed defendants'

convictions and remanded for new trials, rather than remanding the

causes for retrospective fitness hearings, because of the im-

practicability of a meaningful hearing, retrospectively, on the

issue of defendants' fitness at the time of trial.    

    We turn now to the case at bar.  We reject, without further

discussion, the State's argument that we should disregard these

supreme court opinions.  We find that the supreme court has quite

clearly expressed itself regarding the meaning and application of

section 104-21(a), and we are bound to follow its pronouncements.

    Although defendant failed to request a fitness hearing before

the trial court and failed to raise as error in her posttrial

motion the failure to provide her with such a hearing, the State

does not argue that defendant has waived the issue for purposes of

review.  Under the supreme court cases discussed above, we find

that defendant could not waive and has not waived the issue of the

denial of a fitness hearing pursuant to section 104-21(a) of the

Code of Criminal Procedure of 1963.

    The State argues that the case at bar is distinguishable from,

and not controlled by, the above-cited supreme court cases because

"the record in the case sub judice does not reveal that defendant

was receiving any medication that raises a bona fide doubt of

defendant's fitness to stand trial."  However, as the supreme court

has made clear in its rulings, the legislature has equated the

administration of psychotropic medications with a bona fide doubt

of a defendant's fitness to stand trial.  

    The State next argues that in the case at bar defendant was

not taking antipsychotic medications like those taken by the

defendants in Brandon, Gevas, and Kinkead but was taking only

lorazepam, a light tranquilizer, and dilantin, an antiseizure

medication.  Again, section 104-21(a) refers to psychotropic

medications, not antipsychotic medications.  The State concedes

that "arguably Lorazepam could be considered a psychotropic

medication."

    While section 104-21(a) does not define the term "psychotropic

medication", some guidance can be found in other sources.  In In re

C.E., 161 Ill. 2d 200, 214 (1994), our supreme court described

psychotropic drugs as "mood altering".  The Mental Health and

Developmental Disabilities Code defines psychotropic medication as:

    "medication whose use for antipsychotic, antidepressant,

    antimanic, antianxiety, behavioral modification or behav-

    ioral management purposes is listed in AMA Drug Evalua-

    tions, latest edition, or Physician's Desk Reference,

    latest edition, or which are administered for any of

    these purposes."  405 ILCS 5/1-121 (West 1994).  

Lorazepam is listed in the latest edition of the Physician's Desk

Reference as an antianxiety agent which has a tranquilizing action

on the central nervous system.  Physician's Desk Reference 2646

(49th ed. 1995).  Finally, lorazepam is explicitly listed as a

psychotropic drug in the regulations of the Department of Mental

Health and Developmental Disabilities.  59 Ill. Adm. Code sec.

112.80(c)(2) (1996).  

    We conclude that lorazepam is a psychotropic medication within

the meaning of section 104-21(a) and that, upon learning that

defendant was being administered this medication, the trial court

had a duty to further investigate defendant's fitness to stand

trial.  The trial court's failure to afford defendant the hearing

to which she was entitled by section 104-21(a) requires that we

reverse defendant's conviction and remand this cause to the trial

court for further proceedings.  

    We come then to the question of what remedy is appropriate.

The State argues that we should remand this cause only for a

limited hearing as in Kinkead.  We do not agree.  In Kinkead there

was no evidence as to the time period during which defendant was

administered the medication or whether it was proximate enough in

time to defendant's guilty plea and sentence to trigger the right

to a full fitness hearing pursuant to section 104-21(a).  The case

at bar is more similar to Gevas, wherein the court held that taking

the medication two months prior to the plea and sentencing was

proximate enough in time to require the court to conduct a fitness

hearing.  In the case at bar, the evidence indicates that at least

three weeks prior to her trial defendant was taking a psychotropic

medication.  This is more proximate in time to defendant's trial

than was the case in Gevas.

    Furthermore, as in Gevas, Nitz, and Birdsall, we find that it

would be impossible at this late date to conduct a meaningful

hearing as to defendant's fitness at the time of her trial.

Accordingly, we remand this cause for a new trial.  

    We are cognizant of the costs and burdens which must be borne

by our criminal justice system as a result of our disposition.

However, we are bound to follow the decisions of the supreme court,

and we do so here.

    We note that defendant has not challenged the sufficiency of

the evidence to prove her guilt, and we observe that the evidence

in the record is sufficient to support her conviction and sentence.

Consequently, there is no double jeopardy impediment to a new

trial.  See People v. Birdsall, No. 77259 (Ill. June 20, 1996).

    For the foregoing reasons, the judgment of the circuit court

of Randolph County is reversed, and this cause is remanded to that

court for a new trial.

    Reversed and remanded.

    KUEHN and CHAPMAN, JJ., concur.

                                     ATTACH A FRONT SHEET TO EACH CASE

___________________________________________________________________________

                                NO. 5-94-0603

                                    IN THE

                         APPELLATE COURT OF ILLINOIS

                                FIFTH DISTRICT

___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the

                                   )  Circuit Court of

    Plaintiff-Appellee,            )  Randolph County.

                                   )

v.                                  )  No. 94-CF-27

                                   )

MARY L. JONES,                      )  Honorable

                                   )  Jerry D. Flynn,

    Defendant-Appellant.           )  Judge, presiding.

___________________________________________________________________________

Opinion Filed:                 September 5, 1996

___________________________________________________________________________

Justices:      Honorable Thomas M. Welch, J.

              Honorable Clyde L. Kuehn, J., and

              Honorable Charles W. Chapman, J.,

              Concur

___________________________________________________________________________

Attorney       Daniel M. Kirwan, Deputy Defender, Office of the State

for            Appellate Defender, Fifth Judicial District, Route 15 East,

Appellant      P.O. Box 2430, Mt. Vernon, IL 62864

___________________________________________________________________________

Attorneys      Hon. Darrell Williamson, State's Attorney, Randolph County

for            Courthouse, Chester, IL 62233

Appellee       

              Norbert J. Goetten, Director, Stephen E. Norris, Deputy

              Director, J. Stephen Bennett, Staff Attorney, Office of the

              State's Attorneys Appellate Prosecutor, Route 15 East, P.O.

              Box 2249, Mt. Vernon, IL 62864

___________________________________________________________________________