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SIXTH DIVISION

OCTOBER 6, 2000

No. 1-98-1077

PRESIDING JUSTICE CAMPBELL delivered the opinion of thecourt:

Following a jury trial in the circuit court of Cook County,defendant Thomas Melka was found guilty of first degree murder,attempted first degree murder, aggravated battery with a firearm,home invasion and aggravated battery.⁽¹⁾ Defendant was sentencedto natural life imprisonment for murder and consecutive prisonterms of 45 years for attempted first degree murder and homeinvasion.

In a prior Rule 23 order, relying on People v. Brandon, 162Ill. 2d 450, 643 N.E.2d 712 (1994), this court reversed andremanded, holding that the trial court erred in failing to hold afitness hearing, despite knowledge that defendant was takingpsychotropic drugs. People v. Melka, No. 95-0747 (Sept. 20,1996). On remand, the trial court conducted a retrospectivefitness hearing and found that defendant had been fit to standtrial. Defendant now appeals.

The record on appeal discloses that on remand, the Statefiled a motion to have defendant's conviction affirmed or toconduct a retrospective fitness hearing. The State argued thatthis court's prior order was based on Brandon, but that theIllinois Supreme Court's opinion in People v. Burgess, 176 Ill.2d 289, 680 N.E.2d 357 (1997), decided after this court's orderin this case, was controlling and did not require a new trial. Defendant's counsel objected, arguing that this court's order wasthe law of the case.

On September 2, 1997, the trial court reserved ruling on theState's motions, pending a determination of whether defendant was fit to participate in a retrospective fitness hearing. Defensecounsel objected to the fitness evaluation. Defendant refused tosign consent forms for the release of his medical records onadvice of counsel. On October 9, 1997, the trial court receiveda medical report concluding that defendant was currently fit.

On November 20, 1997, defense counsel moved for substitutionof judge for prejudice. The trial court denied the motion,ordered that there would be a hearing on whether defendant wascurrently fit and whether defendant had been fit to stand trial. The transcript of proceedings discloses that the trial judge soruled because he believed the law was changed by later judicialdecisions. The trial court also stated that if defendant'sposition was upheld by the Illinois Supreme Court, he wouldrecuse himself from further proceedings.

At the outset of the hearing, defense counsel unsuccessfullyargued that this case was distinguishable from Burgess. Thetrial court conducted the fitness hearing. The State presentedtestimony from Dr. Matthew Markos, a forensic psychiatrist whosubmitted a written report to the trial court before defendant'strial opining that defendant was fit to stand trial. At thehearing, Dr. Markos testified that he examined defendant inOctober 1997, although defendant told Dr. Markos his participation would be limited on advice of counsel. Dr. Markos opinedthat defendant was currently fit to participate in the hearing. Defense counsel questioned Dr. Markos regarding defendant's pastand current mental condition.

Defense counsel told the trial court that it was not waivingits motion for substitution of judge and was not waiving defendant's right to a jury trial. The trial court responded thatdefendant had not demanded a jury trial for the fitness hearing.

Harry Gunn, Ph.D., a forensic psychologist, testified onbehalf of defendant. Dr. Gunn testified that defendant's "AxisI" diagnosis was bipolar affect disorder with psychosis andparanoid features. Dr. Gunn also opined that defendant's "AxisII" diagnosis was paranoid personality.

On cross-examination, Dr. Gunn admitted these diagnoses werebased completely on a review of defendant's medical records. Dr.Gunn admitted that he had not examined the defendant. Dr. Gunnfurther testified that he would have to examine defendant todetermine his fitness.

Following this testimony, the trial court ruled that defendant was currently fit and that the retrospective fitness hearingwould proceed. Defense counsel invited the trial court to holdhim in contempt, as counsel had no intention of participating inthe hearing. The trial court declined to do so. The Statecalled Dr. Markos, who opined that based on his review of themedical records and his own examinations of defendant, defendantwas fit to stand trial in January 1995. The records Dr. Markosreviewed included a report by Dr. Larry Heinrich, a psychiatristwho examined defendant in May, August and September of 1994, thatconcluded that defendant was fit to stand trial. Dr. Markos alsoreviewed a report by social worker John Goodman containing asimilar conclusion.

At the conclusion of Dr. Markos's direct testimony, defensecounsel reiterated that he was not participating in the hearing,adding that he had inadvertently fallen asleep during them. Defense counsel declined to cross-examine Dr. Markos. The Staterested. Defense counsel declined to present witnesses.

Based on Dr. Markos's testimony, the trial court found thatdefendant had been fit to stand trial in January 1995. Based onthe original jury verdicts, the trial court entered judgment onthe verdict and reimposed defendant's original sentence. Defendant now appeals to this court.

Initially, this court must consider our supreme court'sdecision in People v. Mitchell, 189 Ill. 2d 312, 727 N.E.2d 254(2000), and its impact on this appeal. As noted above, thiscourt's prior order relied on the supreme court's decision inPeople v. Brandon, 162 Ill. 2d 450, 643 N.E.2d 712 (1994). TheMitchell decision, handed down while the current appeal was pending before this court, held that the supreme court had erred in implying in Brandon "that the legislature equated the administering of psychotropic medication to a defendant with a bona fidedoubt as to his fitness to stand trial, and we no longer adhereto that conclusion." Mitchell, 189 Ill. 2d at 331, 727 N.E.2d at267.

The Mitchell court also overruled the holding in Brandonthat it was ineffective assistance of counsel per se to fail torequest a fitness hearing where the defendant was taking psychotropic medication, holding that:

"defining the test as whether a defendantwould have received a fitness hearing cannotbe correct. If a defendant would have beenfound fit to stand trial, he suffered noprejudice by not having a fitness hearing. The correct test for evaluating prejudice inthese situations is whether a reasonableprobability exists that, if defendant wouldhave received the section 104-21(a) fitnesshearing to which he was entitled, the resultof the proceeding would have been that he wasfound unfit to stand trial." Mitchell, 189Ill. 2d at 334, 727 N.E.2d at 268.

The Mitchell court also recognized that in the cases decidedsince Brandon, retrospective fitness hearings that were considered improper under Brandon have now become the norm. Mitchell,189 Ill. 2d at 339, 727 N.E.2d at 270.

The State requested leave to cite Mitchell as supplementalauthority in this case. We allowed the motion and furtherdirected the parties to file supplemental briefs on the matter,which the parties did prior to oral argument in this case.

Defendant does not claim that Mitchell is inapplicable tothis appeal. Nevertheless, it is worth noting that our supremecourt's decisions generally apply retroactively to causes pendingat the time they are announced, including cases pending on directreview. People v. Cortes, 181 Ill. 2d 249, 276, 692 N.E.2d 1129,1140 (1998). Indeed, Cortes involved the retroactive applicationof Burgess, the case which the trial court relied on in conducting the retrospective fitness hearing in this case.

Instead, defendant argues that this court's prior statutoryanalysis is still good law, claiming that Mitchell overruledBrandon only as to claims of ineffective assistance of counselarising prior to Brandon and later amendments to the relevantstatute not at issue here. It is true that the Mitchell courtrejected the claim of ineffective assistance of appellate counselin that case because no Illinois court had held that a trialcourt's failure to order a fitness hearing sua sponte was adenial of due process. Mitchell, 189 Ill. 2d at 332-33, 727N.E.2d at 267. However, the Mitchell court went further, holdingthat defendant failed to show ineffective assistance of trialcounsel because the record did not show a reasonable probabilitythat defendant would have been found unfit to stand trial. Mitchell, 189 Ill. 2d at 334, 727 N.E.2d at 268.

In this case, this court's prior order was premised entirelyon the rule set forth in Brandon and its progeny that the legislature had equated administration of psychotropic medication to abona fide doubt of fitness to stand trial, which then triggeredthe statutory duty to hold a hearing. Melka, No. 95-0747, at 3-4(Sept. 20, 1996). Contrary to defendant's suggestion, Mitchellrules that this statutory analysis is no longer correct.

Viewing defendant's original claims in light of Mitchell, itis apparent in retrospect that defendant was not entitled torelief. Defendant's original claims were based on the failure ofthe trial court to conduct or his trial counsel to seek a fitnesshearing based on his consumption of psychotropic medication. Yetthe knowledge that defendant had been given psychotropic medication does not, by itself, trigger any duty on the part of thetrial court or defense counsel.

Moreover, the record showed, as reflected in this court'soriginal order, that Dr. Markos evaluated defendant's fitness tostand trial prior to trial, submitted a written report to thetrial court opining that defendant was fit, and testified attrial that defendant was fit to stand trial. See Melka, No. 95-0747, at 2-3 (Sept. 20, 1996).

The record further showed (as defendant notes in his initialbrief in this appeal) that on January 17, 1995, defense counselmoved for a continuance alleging in relevant part that "due todefendant's psychological condition, he will be unable to endurea death penalty trial and remain fit." Defense counsel's concernimmediately prior to trial that defendant might not remain fitthrough a trial lends support to the conclusion that defensecounsel either did not believe or had no evidence that defendantwas unable to understand the nature and purpose of the proceedings against him and assist in his defense at the outset of thetrial.⁽²⁾

In sum, this is an appeal in which defendant complains ofalleged constitutional errors occurring in the course of proceedings to which defendant has no entitlement under current law. Notwithstanding the occurrence of constitutional error, a reviewing court may affirm where it is able to conclude, upon examination of the entire record, that the error was harmless beyond areasonable doubt. See, e.g., People v. Ward, 154 Ill. 2d 272,344, 609 N.E.2d 252, 283 (1992). In this case, rather than beingdenied due process of law or the effective assistance of counsel,defendant received more process and assistance than that mandatedby our supreme court following Mitchell. Thus, even if defendantwere correct in any of his arguments, the errors would be harmless beyond a reasonable doubt. Nevertheless, in recognition ofthe continuing evolution of the law on this issue, this courtwill turn to address defendant's arguments on appeal.

Defendant contends that the retrospective fitness hearingexceeded this court's mandate in the prior appeal. Any orderissued by a trial court outside of the scope of the mandate isvoid for lack of jurisdiction and must be reversed and vacated. People v. Bosley, 233 Ill. App. 3d 132, 138, 598 N.E.2d 355, 359(1992). However, as noted above, the supreme court held inCortes that Burgess was retroactively applicable to cases pendingwhen Burgess was decided. Moreover, the record shows that thiscourt did not specifically order a new trial, though admittedlythis would have been the expected course of action under Brandon.

Defendant also claims in passing that this court's priororder became the "law of the case" or was res judicata on thefitness issue. While a trial court is normally bound on remandby this court's disposition of questions of law, there is an exception to the "law of the case" doctrine where a higher reviewing court, subsequent to the lower reviewing court's decision,makes a contrary ruling on the same issue. E.g., Zerulla v.Supreme Lodge, Order of Mutual Protection, 223 Ill. 518, 520, 79N.E. 160, 161 (1906); Martin v. Federal Life Insurance Co., 164Ill. App. 3d 820, 824, 518 N.E.2d 306, 309 (1987). The doctrineof res judicata, which provides that a final judgment on themerits is conclusive as to the rights of the parties and bars alater action on the same claim, is inapplicable here, as the caseremained subject to further appeal. See Relph v. Board ofEducation, 84 Ill. 2d 436, 442-43, 420 N.E.2d 147, 150 (1981).

In sum, given the record on appeal in this case, the trialcourt acted within its authority on remand to conduct a retrospective fitness hearing pursuant to Burgess.

Defendant next contends that his particular case was not theproper subject of a retrospective fitness hearing. Defendantfirst quotes our supreme court as stating that:

"retrospective fitness determinations willnormally be inadequate to protect a defendant's due process rights when more than ayear has passed since the original trial andsentencing. In exceptional cases, however,circumstances may be such that the issue ofdefendant's fitness or lack of fitness at thetime of trial may be fairly and accuratelydetermined long after the fact. In suchcases, Burgess will apply, and a defendantwill not automatically be entitled to havehis original conviction and sentence automatically set aside for a new trial. Neal, 179Ill. 2d at 554, 689 N.E.2d at 1046.

However, as noted above, the Mitchell court now recognizes thatretrospective fitness hearings are the norm.

Moreover, even if Neal applied, defendant misconstrues thephrase "exceptional circumstances." The record shows that defendant's mental condition and his medication had been examinedprior to trial and were the subject of at expert testimony attrial. Given the contemporaneous evidence regarding defendant'sfitness to stand trial, the trial court did not err in determining that defendant's fitness at the time of trial could be fairlyand accurately ascertained, despite the passage of time in thiscase.

Defendant argues that the State failed to carry its burdenat the retrospective fitness hearing. Defendant argues that theState failed to explain or contradict the trial judge's January11, 1995 order finding that defendant had not been receiving hisprescribed medication. Defendant overlooks the fact that thesame order requires that the medication be administered. Therecord also shows that Dr. Markos had a conference with defensecounsel on January 18, 1995, during which no question of fitnesswas raised. In his brief, defendant also notes that Dr. Kartan,one of defendant's treating psychiatrists, testified at trialregarding her treatment and medication of defendant in January1995.

Furthermore, the record shows, as noted above, defense counsel was concerned immediately prior to trial that defendant mightnot remain fit, suggesting that defense counsel either did notbelieve or had no evidence that defendant was unfit. Indeed, theFebruary 28, 1998 transcript of proceedings contains a statementby the trial judge that the language of defense trial counsel'smotion for continuance was one reason no fitness hearing wasconducted before the trial.

Defendant argues that the State failed to present evidenceon the nature, properties and dosage of the medication at issueand their effect on the defendant's ability to understand andparticipate in his defense. See People v. Nitz, 173 Ill. 2d 151,163-64, 670 N.E.2d 672, 677 (1996). The record shows that Dr.Markos testified regarding the medications administered and theirdosages. Defendant notes that Dr. Markos gave different dosagelevels for some of the drugs administered, but Dr. Markos alsotestified that defendant's medications and their dosages werechanged from time to time to meet the needs of his condition, inaccordance with common practice.

On the question of the medication's effect on defendant'sability to understand and participate in the defense, the recordshows that Dr. Markos testified that he had reviewed defendant'srecords was unaware of any evidence that defendant's ability wasimpaired on these points. Defendant notes in his brief that themedications at issue have "potential recognized adverse psychotropic effects." However, a potential adverse effect is bydefinition not a certainty. The quotations in defendant's brieffrom the Physician's Desk Reference (52nd ed. 1998) addressadverse reactions that are "associated" with a medication, orwhich "may occur" in certain patients. The record shows that Dr.Markos testified that the issue is whether defendant exhibitedsymptoms rendering him unfit. Defendant points to no evidence inthe record that he suffered any such symptoms or adverse reactionto his medications at the time of trial.⁽³⁾

In addition, while a trial court cannot rely on defendant'strial demeanor to deny a fitness hearing in the face of evidenceof a bona fide doubt of fitness, the defendant's trial demeanoris clearly relevant to the issue. Mitchell, 189 Ill. 2d at 335,727 N.E.2d at 269. The crux of the prior appeal was that thetrial court knew of defendant's medication and treatment, yet didnot order a fitness hearing. The trial judge's observation ofdefendant did not prompt him to order a fitness hearing.

Defendant further argues that the State failed to rebut Dr.Gunn's testimony regarding "decompensation," a worsening ofmental health that can be caused by stress, such as the stress ofa trial or a transfer from one facility to another. The Statenotes that Dr. Gunn did not testify that defendant had decompensated. Defendant replies that Dr. Lawrence Heinrich testified athis sentencing hearing that defendant had decompensated on occasion. However, defendant is raising the issue of decompensationas it related to the remand, not the original proceedings.

The record shows that Dr. Markos opined that defendant wasfit to participate in the proceedings on remand. Dr. Gunnadmitted that he had not examined the defendant, which would benecessary to determine his fitness. Thus, even assuming arguendothat defendant may have decompensated since his sentencing, theState's expert opinion on defendant's fitness was unrebutted.

In sum, the trial court did not err in concluding that thiscase would be amenable to a retrospective fitness hearing. Defendant has failed to show that the trial court erred in rulingthat defendant was fit on remand and had been fit to stand trial.

Defendant next contends that the State should have beenjudicially estopped from seeking a retrospective fitness hearingwhere the State had argued in the prior appeal that there wasnothing more to investigate or learn regarding defendant's fitness to stand trial. The doctrine of judicial estoppel providesthat when a party assumes a certain position in a legal proceeding, that party is precluded from assuming a contrary position ina subsequent legal proceeding. People v. Wisbrock, 223 Ill. App.3d 173, 175, 584 N.E.2d 513, 515 (1991). For the doctrine toapply: (1) the party must have taken two positions; (2) thepositions must have been taken in separate judicial or quasijudicial administrative proceedings; (3) the party must haveintended for the trier of fact to accept the truth of the factsalleged in support of the position; (4) the party must havesucceeded in asserting the first position and received somebenefit from it; and (5) the two positions must be inconsistent. Wisbrock, 223 Ill. App. 3d at 175, 584 N.E.2d at 515.

In this case, even assuming arguendo that the fitness hearings were separate proceedings from the case as a whole, thiscourt's prior order rejected the State's position in the firstappeal. Melka, No. 95-0747 (Sept. 20, 1996), slip op. at 4. Thus, defendant's argument is unpersuasive. Defendant repliesthat the State should not in any event be permitted to assertinconsistent proceedings. This argument is unpersuasive becauseit does not account for the changes in the law announced by oursupreme court.

Defendant contends that the trial court denied him dueprocess of law by denying his motion for substitution of judgepursuant to 725 ILCS 5/114-5(d) (West 1996). A defendant's rightto substitution of judge for cause is not absolute. People v.Wright, 234 Ill. App. 3d 880, 897, 601 N.E.2d 817, 830 (1992). Adefendant has the burden of substantiating such prejudice on thepart of the judge which disqualifies him from sitting as thejudge in the case. Wright, 234 Ill. App. 3d at 897, 601 N.E.2dat 830. The alleged bias or prejudice must be shown to havestemmed from an extra-judicial source and result in an opinion onthe merits on some basis other than what the judge learned fromparticipation in the case. Wright, 234 Ill. App. 3d at 897, 601N.E.2d at 830. If the allegations are not sufficient, defendantis not entitled to a hearing before a different judge on thesubstitution motion. People v. Johnson, 159 Ill. 2d 97, 123, 636N.E.2d 485, 496 (1994).

In this case, defendant refers to the following comment bythe trial judge:

"[THE COURT]: Again, the thrust or themain thing in this particular case is thereis absolutely, positively no question aboutwho fired the weapon that killed two peopleand attempted to kill several others ***

It would be a useless act if, in fact,he was fit for trial and is now fit for trialto retry the matter again because all thatestimation and cost where there is no defenseit would be raised."

Defendant also notes that the trial court made following commentsexplaining his ruling:

"[THE COURT]: I was commenting only uponthe evidence presented before this court and[sic] the original trial in this case.

I've already indicated to Counsel I'vealready ruled on matters in this case sincethe remand."

It is apparent that the trial court's comment that there was"no question" regarding the identity of the shooter was based onwhat the judge learned from participation in the case. The comment regarding a retrial being "useless" was contingent uponthe resolution of the fitness issues. That the trial courtbelieved it would not serve judicial economy to retry the case ifdefendant was fit at the time of the first trial and on remanddoes not sufficiently allege pervasive bias or prejudice towarrant a hearing by another judge.

Defendant contends that the trial court denied him his rightto due process of law by failing to conduct a jury trial on thefitness issues. There is no constitutional right to a jury at ahearing to determine fitness to stand trial. People v. Haynes,174 Ill.2d 204, 220, 673 N.E.2d 318, 326 (1996). Defendant citessection 104-12 of the Code of Criminal Procedure of 1963, whichprovides as follows:

"Right to Jury. The issue of thedefendant's fitness may be determined in thefirst instance by the court or by a jury. The defense or the State may demand a jury orthe court on its own motion may order a jury. However, when the issue is raised after trialhas begun or after conviction but beforesentencing, or when the issue is to beredetermined under Section 104-20 or 104-27,the issue shall be determined by the court." 725 ILCS 5/104-12 (West 1996).

In this case, the defense did not demand a hearing prior to theinitial trial. Accordingly, it appears that the statute providesthat the issue shall be determined by the court.

Defendant cites People v. Thomas, 43 Ill. 2d 328, 253 N.E.2d431 (1969); People v. Burson, 11 Ill. 2d 360, 143 N.E.2d 239(1957); and People v. James, 130 Ill. App. 2d 532, 263 N.E.2d 705(1970), all of which involved prior versions of section 104-12. The prior statutory law did require that the trial judge impanela jury for a fitness hearing. See, e.g., James, 130 Ill. App. 2dat 533, 263 N.E.2d at 706 (quoting Ill. Rev. Stat. 1967 ch. 38sec. 104-2). The current, applicable statute does not soprovide.

In sum, the trial court did not err in conducting thefitness hearing without a jury.

Finally, defendant contends that he was denied effectiveassistance of counsel, where counsel "boycotted" the retrospective fitness hearing and stated that he slept through part of it. Generally, to prevail on such a claim, a defendant must show thatdefense counsel's representation fell below an objective standardof reasonableness and so prejudiced the defense as to deny thedefendant a fair trial. Strickland v. Washington, 466 U.S. 668,687 80 L. Ed. 2d 674, 683, 104 S. Ct. 2052, 2064, (1984). However, this court has not hesitated to reverse where defensecounsel refuses to cross-examine witnesses, present any evidence,or make opening or closing statements; at least, this has beenthe result where there is no showing the defendant consented tocounsel's inactivity. E.g., People v. Williams, 192 Ill. App. 3d304, 308-11, 548 N.E.2d 738, 740-42 (1989). Defendant's consentmust be knowing and intelligent. People v. Hattery, 109 Ill. 2d449, 465, 488 N.E.2d 513, 519 (1985).

In this case, Dr. Markos testified that defendant objectedto the October 1997 re-examination, stating that he was doing soon advice of counsel. However, the record does not show whetherdefendant was informed of the potential consequences of this strategy. Thus, we cannot conclude that defendant knowingly andintelligently consented to a "boycott" strategy on remand.

Nevertheless, the record here shows that during the hearingon defendant's then-current fitness, defense counsel cross-examined Dr. Markos regarding defendant's condition prior to thetrial, particularly whether defendant was suffering from abipolar disorder in 1994. Indeed, the trial court stated that itwould allow the State to explore the question on redirect becausedefense counsel "opened the door" to it. The rules regardingineffective assistance do not permit counsel to cross-examine onan issue in one hearing and then complain that he completelyfailed to subject the issue to adversarial testing during a laterhearing, due to counsel's "boycott" of that hearing. Moreover,as noted above, pursuant to Mitchell, there is no longer arequirement that a hearing be held, thus negating any prejudiceto the defendant.

This is not to say that this court condones attorney DanielJ. Stohr's conduct on remand. Mr. Stohr knew that any orderissued outside of the scope of our mandate would be void for lackof jurisdiction. This is not an objection that can be waived;thus, the alleged "boycott" was groundless. Moreover, while thealleged sleeping in this case would be cumulative of counsel'salleged "boycott," Mr. Stohr's cavalier representation that hewas sleeping through the questioning of Dr. Markos during thelater hearing is deeply disturbing to this court.

One of the cases Mr. Stohr cites on appeal, Martin v. Rose,744 F.2d 1245, 1251-52 (6th Cir. 1984), suggests that a courtfaced with a groundless "boycott" may seek an express waiver ofassistance of counsel from the defendant, use the contempt poweror the disciplinary mechanism of the bar. In this case, Mr.Stohr sought a contempt finding. The trial court declined tofind him in contempt, but a contempt finding may well have beenappropriate in this case. Ultimately, however, Mr. Stohr'sconduct does not require a reversal, given the unusual facts andcircumstances of this case.

For all of the aforementioned reasons, the judgment of thecircuit court of Cook County is affirmed.

Affirmed.

BUCKLEY, J., and O'BRIEN, J., concur.

1. ¹ The facts of the underlying offenses are not in dispute.On December 24, 1993, Melka went to the home where his formergirlfriend Cindy was celebrating the holidays with her family. Using a 9 millimeter semi-automatic pistol, Melka killed Cindy'snew boyfriend and her sister and shot three others at the house. At trial, defendant asserted an insanity defense.

2. ² Indeed, the February 28, 1998 transcript of proceedingscontains a statement by the trial judge that the language ofdefense trial counsel's motion for continuance was one reason nofitness hearing was conducted prior to the trial.

3. ³ It is worth noting that defendant claims that Dr. Markostestified that defendant had been given a drug known as Clozarilor Clozopine, but the record citation provided by defendantcontradicts this claim.