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Nos. 2--03--0213 & 2--03--0214 cons.

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GROMETER delivered the opinion of the court:

Defendant, Phillip A. Meyers, was convicted of aggravated battery (720 ILCS 5/12--4(b)(4)(West 2000)) following a jury trial in the circuit court of Kane County. Defendant was also held incontempt of court as the result of an outburst directed at the trial judge during proceedings after theverdict was announced. Defendant now appeals. He argues that the trial court erred in not holdinga fitness hearing and that the contempt citation should be reversed. In addition, he complains of twotrial errors. We agree with defendant's first two contentions, and we will address his claims of errorduring the trial only briefly. We reverse both defendant's conviction and contempt citation, and weremand this matter for further proceedings.

BACKGROUND

On April 18, 2001, defendant was arrested for an incident that resulted in two charges,aggravated battery (720 ILCS 5/12--4(b)(4) (West 2000)) and resisting a peace officer (720 ILCS5/31--1 (West 2000)). Daniel Woods, an Aurora police officer, testified that he observed defendantstanding in the middle of a road with cars driving around him. Defendant was gesticulating to passingvehicles with a raised middle finger and yelling at the occupants of the vehicles. Woods and hispartner pulled up in their car and told defendant to get off of the road. Defendant stated that he wasfrom Chicago and knew what the deal was. Defendant walked toward the side of the street and threwsome paper to the ground as he passed the officers' car. The officers pulled over to the roadside andinstructed defendant to come over to the car. Woods told defendant he was under arrest. Woodsattempted to grab defendant's arm, but defendant pulled away. A struggle ensued, and, in its course,Woods' partner, Mark Knepp, was struck. With some discrepancies, Knepp testified to a similarversion of events.

Defendant's testimony, on the other hand, was markedly different. He stated that he was ata convenience store when he noticed two police officers watching him. After he left the store, heattempted to cross the street. The officers pulled out of a parking lot and cut defendant off. One ofthe officers rolled down a window and asked what defendant was doing walking around like he wastough. Defendant tried to walk around the car, but the officers maneuvered it to block his path. Eventually, he made it to the sidewalk. One of the officers then exited the squad car, ran todefendant, grabbed him by the neck, and slammed him to the ground. The other officer then cameover, and the two beat defendant for several minutes. Two other squads arrived and took defendantinto custody. The jury apparently accepted the officers' version of events.

Defendant was initially represented by Greg Brown, an assistant public defender. During abond reduction hearing, defendant acknowledged that he had two other charges pending against him,criminal damage to government property and aggravated fleeing and eluding a police officer. As tothe fleeing and eluding charge, defendant explained that police officers from Du Page County andNaperville, with the assistance of the Aurora police, had beaten him and threatened him with death. During the course of the hearing, defendant added that the police had robbed his apartment. Hestated that, since the police had been beating him, "I guess that means that you will kill me here, Iguess."

On June 26, 2001, attorney Brown requested a fitness evaluation. The trial judge, KeithBrown, who did not preside over defendant's trial, ordered one. During a hearing on July 19, 2001,defendant stated that he would not undergo a psychological evaluation and that he wanted hisattorney fired. Judge Brown ordered defendant to cooperate with the examination. On August 24,2001, a report was filed stating that defendant was fit to stand trial.

On September 5, 2001, a hearing was held on defendant's pro se speedy-trial motion. Duringthe hearing, attorney Brown requested a finding regarding fitness. Judge Doyle, who ultimatelypresided over defendant's trial, asked defendant if he was fit and defendant responded affirmatively. Judge Doyle then found defendant fit based on defendant's statement and the report that hadpreviously been filed.

On February 4, 2002, during a pretrial hearing, attorney Brown apprised the trial court of apotential conflict between him and defendant based on defendant's statements that he intended to sueBrown. Brown stated that he was not raising the fitness issue again. Judge Doyle stated that he wasuncomfortable with the way the case was proceeding and acknowledged that Brown was in a difficultspot. Judge Doyle stated that if Brown was asking leave to withdraw, he was granting the request. Brown stated that he was not sure whether he was asking to withdraw. The court then took a recessso that the situation could be resolved.

After the recess, attorney Regina Harris appeared before the court. The court described heras "the expert in the Public Defender's Office on fitness issues, mental health issues." Regardingdefendant, Harris stated that she did not believe there was an "active psychotic process." However,she noted that a "great deal of agitation" existed and that it was "[p]ossibly mania." She added thatdefendant "[s]eems convinced that his attorney is not working for him, perhaps is even workingagainst him." The trial judge then stated that, in his experience, "it also seems like it's a paranoia." The court noted that defendant was currently laughing hysterically at the counsel table. The courtstated that defendant's conduct and Harris's opinion sufficiently raised the issue of fitness.

The judge then took the case off the jury trial call and questioned whether there was a doctoravailable who could examine defendant immediately. Defendant pointed at the judge and said, "Idon't know what you think you're doing. I'm never going to speak to a psychiatrist. Do youunderstand what I'm saying? I already did. You keep bullshitting around. You a [sic] bitch. Punk."

A recess was then taken, and Dr. Timothy Brown evaluated defendant. Upon resuming, thecourt stated, "And Dr. Tim, we'd [sic] appreciate that you could get over here as quickly and rapidlyas you did and in terms of my belief at this time during his conduct all morning that it was raising anissue in my mind of a bona fide issue on fitness." The court added, "Fortunately, we had an expertlike yourself that got over here quickly." Dr. Brown then testified, and the following ensued:

"THE COURT: Have you had a chance to interview him? And the defendant is in thecourtroom. If you could report to the Court, please, on the issue for fitness for trial today.

DR. BROWN: It is my opinion that Mr. Meyer [sic] is not fit to stand trial. He is unable to control his behavior in the courtroom and he is unable to cooperate and assist in thepreparation of his defense as a result of a mental illness.

THE DEFENDANT: I ain't even talked to this guy. You mother fuckers are stupid, man.

DR. BROWN: That would be an example of it.

THE COURT: What else would you like to say, sir?

THE DEFENDANT: Well, I got warrants, man, in Du Page County where you all refused to take me to court. *** And if you all think you're going on with the trial, you needto give me an I bond so I can get out of here and because I don't need to be fucked with. You [sic] stupid. You know you're stupid, man. You're the stupidest one of all.

THE COURT: Let the record also reflect that the colloquy that just started --

THE DEFENDANT: I ain't even talked to that guy.

THE COURT: -- started with a burst of laughter that was not --

THE DEFENDANT: First call you [sic] momma.

THE COURT: What else would you like to say?

THE DEFENDANT: What else you got [sic] to say?

THE COURT: I'm going to based on the testimony at this time find that you are not fit for trial and I'm going to order a continued examination and continue this ***.

THE DEFENDANT: I'm never going to talk to him. So that means you're never going to go to mother fucking trial. Dick head Doyle." (Emphasis added.)

After continuing in this manner for a while, the court asked defendant, "Are you done now?" Defendant replied, "You going [sic] to be done." The judge then ordered defendant removed fromthe courtroom, and defendant called him a bitch.

Following defendant's removal, the court made the following statement:

"THE COURT: Let the record reflect that he did flash me the universal signal of discontent with me [sic] with the middle finger. So the Appellate Court can fully appreciate the conduct of the morning. Okay.

Clearly, clearly, I think for the Appellate Court that we've established the problemwith the fitness for trial so that we don't get reversed. So we don't get reversed as I didpreviously for ordering a fitness issue for the conduct in the morning.

Now, I think Tim's right. He's in custody of the Department of Corrections, althoughI know he's up for parole. We've now found him unfit based on his testimony."

Later, the court asked Dr. Brown to file a report. Dr. Brown stated that he would write aletter reflecting his opinion. The court then reiterated, "I'm going to make a finding based on yourevaluation and his conduct here that he is not fit for trial."

On February 8, 2002, attorney Brown filed a motion for a new fitness hearing. In the motion,Brown explained that, due to the animosity directed at him by defendant, he was unable to discussthe fitness issue with defendant sufficiently and did not explain to defendant that he had a statutoryright to a jury determination regarding the issue (725 ILCS 5/104--12 (West 2002)). The motionrequested that the court "enter an order vacating the fitness hearing held on February 4, 2002 and toschedule a hearing within the appropriate time frame." The trial court granted the motion withoutcomment. Brown also informed the court that he was requesting his supervisor to transfer the caseto a different attorney.

On March 7, 2002, Thomas O. McCullough appeared on defendant's behalf. McCulloughinformed the court that he had been assigned the case the day before. He stated that he spoke withdefendant, and defendant wished to have a trial as soon as possible. The court and parties thendiscussed the scheduling of a jury trial. The trial court inquired, "And that's the jury trial on thefitness issue?" The following discussion then occurred:

"MR. MC CULLOUGH: No. No, Judge, and let me speak to that because [the State'sAttorney] alerted me. Based on my conversation with Mr. Meyers, I have no question at thispoint based on my conversation about his fitness. Clearly understands the judge and jurydistinction, clearly understands the nature of the charges. He's cooperative with me, at leastso far back in the lock up. He understands the process.

THE COURT: I don't have a problem.

MR. MC CULLOUGH: I guess all I'm saying let's not go there and he said he'll behave and we're going to set a trial and we're in business.

THE COURT: Then lets [sic] do it on March 25."

A jury trial was held on March 25, 2002. The next day, the jury returned a verdict of guiltyon the aggravated battery count, the State having dismissed the count of resisting a peace officer. Defendant requested to be returned to prison rather than remain in county jail pending sentencing. The court did not respond to his request. Defendant then said something unintelligible and the courtasked him what he had said. The following exchange then occurred:

"THE DEFENDANT: You heard what the fucking [sic] I said, man.

THE COURT: All right. Here's what I'm going to do. I've been real patient with youthe last time.

THE DEFENDANT: I've been patient with you mother fuckers, too. Fuck this, man.

THE COURT: You know what? So right now --

THE DEFENDANT: Right now, kiss my ass, man.

THE COURT: Okay, I'm holding you in direct contempt of court[.]

THE DEFENDANT: Hold your momma.

THE COURT: You know what? I'm going to hold you in contempt of court rightnow and I'm sentencing you to six months right now for your conduct right now.

THE DEFENDANT: I don't give a fuck about what you [sic] going to do, bitch. What the fuck. Hey, man, don't pull on me. What you do [sic], don't pull on me. I'm tellingyou, man. Don't push on me. Get your damn hands off of me, man."

On April 17, 2002, after denying defendant's motion for a new trial, the court addressed aletter it had received from Dr. Brown. The letter is dated February 5, 2002, but it was not file-stamped until April 17. The letter contains a number of Dr. Brown's findings and observations as todefendant's fitness to stand trial, including: (1) that defendant's judgment was grossly impaired; (2)that defendant was irrational; (3) that defendant did not appreciate that the court "had the ability totake control of him, restrict his freedom, and try him on criminal charges"; (4) that defendant was"angrily out of control" while in court; (5) that defendant is "suffering from a psychotic disorder inwhich his mood fluctuates rapidly"; (6) that defendant is "suspicious, distrustful, aggressive, and mostlikely delusional"; (7) that defendant "lacks the capacity to cooperate with his attorney"; (8) thatdefendant "does not appreciate the nature and purpose of the proceeding against him"; and (9) that,to a reasonable degree of psychiatric certainty, defendant is not fit to stand trial.

In addressing Dr. Brown's report, the trial judge first noted that defendant argued for hisfitness and also stated that "I tend to agree with [defendant] over our psychiatrist or ourpsychologist." The judge then noted that defendant, including during his testimony before the jury,was "a gentleman at all times" and "knew exactly what he was doing." The judge stated that itappeared that defendant assisted in his defense and appreciated the nature of the proceedings. Thejudge later found Dr. Brown's report incredible, relying in part on defendant's assertion that Dr.Brown could not offer an opinion because defendant refused to be examined.

McCullough then interjected, "At this point, I would like to have a copy of [the report] so Ican look at this. I need to explain, *** the only thing that I was aware of when I got into this casewas that there's been trouble between Mr. Meyers and prior Public Defenders, I didn't know thenature and extent of the problems." McCullough explained that when he first met with defendant,defendant stated he wanted to go to trial. McCullough stated that defendant did cooperate with himand added, "I think we have understood the process."

The trial court then, apparently, determined that defendant had been fit during the trial,although it made no explicit finding on the subject. This appeal followed.

ANALYSIS

Relying on both state statutory law and the federal constitution, defendant contends that abona fide doubt existed as to his fitness prior to trial and that it was error to proceed to trial withouta fitness hearing. He also argues, relying primarily on his mental illness, that the court erred in findinghim in direct criminal contempt. We will address the fitness issue first.

Trying a defendant who is not fit to stand trial violates both the law of this state as embodiedin the Code of Criminal Procedure of 1963 (see 725 ILCS 5/104--10 et seq. (West 2002)) and thedue process clause of the United States Constitution (U.S. Const., amend XIV; see People v. Hill,345 Ill. App. 3d 620, 625 (2003)). Thus, where a bona fide doubt exists as to a defendant's fitness,the court is required to order a fitness hearing and resolve the issue before proceeding any further. People v. Johnson, 206 Ill. 2d 348, 361 (2002). Once a bona fide doubt exists, the State must provethe defendant fit by a preponderance of the evidence before a trial may take place. Johnson, 206 Ill.2d at 361. A defendant is considered fit to stand trial if he or she understands the nature of theproceedings and can assist in the defense. Johnson, 206 Ill. 2d at 361-62. If there has been a judicialfinding that a defendant is unfit, the finding can be reversed only through a subsequent judicialdetermination that the defendant is fit. People v. Williams, 92 Ill. App. 3d 608, 614 (1980).

Initially, we note that the trial court actually found defendant unfit on February 4, 2002,stating, "I'm going to based on the testimony at this time find that you are not fit for trial and I'mgoing to order a continued examination and continue this ***" and later reiterating, "We've nowfound him unfit based on his testimony." This finding followed testimony by Dr. Brown and ReginaHarris as well as the court's observation of defendant's behavior. Subsequently, the trial court neverfound defendant fit. Neither in the discussions between the court and McCullough prior to trial thatfollowed McCullough's representation that he did not have a "question" about defendant's fitness norafter trial, when McCullough and the trial judge discussed Dr. Brown's report, did the trial courtexpressly find defendant fit. We recognize that in discussing Dr. Brown's report with McCullough,the trial judge did state that defendant comported himself appropriately during trial, appeared tounderstand the proceedings, and seemed to help in his defense. However, these discussions betweenMcCullough and the trial court cannot substitute for a hearing on the issue of fitness, particularlywhere, as here, defendant requested that a jury determine the issue. Williams, 92 Ill. App. 3d at 614 ("A summary disposition in a restoration hearing does not comport with the procedural requirementsof either the constitution or the statute").

The State argues that the trial court vacated its finding of unfitness when defendant soughta jury determination of the issue. The trial court did grant defendant's motion entitled "Motion fora New Fitness Hearing." In it, defendant's first attorney explained that due to the animosity directedat him by defendant, he was unable to explain that defendant had a right to a jury trial on the issueof fitness. Accordingly, the motion requests that the court "enter an order vacating the fitness hearingheld on February 4, 2002 and to schedule a hearing within the appropriate time frame."

Assuming, arguendo, that one can simply vacate a finding of unfitness without holding arestoration hearing, we nonetheless hold that this cause must be remanded. While the State'sargument, if we were to accept it, would dispose of the finding of unfitness, it does nothing tocontrovert the proposition that a bona fide doubt as to defendant's fitness existed.

If a bona fide doubt exists, a trial court must hold a fitness hearing before continuing with theproceedings. Johnson, 206 Ill. 2d at 361. Regardless of whether the finding of unfitness was vacated,the fact that the trial court actually found defendant unfit at one point provides a strong indicationthat defendant was, in fact, unfit. In In re T.D.W., 109 Ill. App. 3d 852, 855 (1982), the FourthDistrict observed, "In the instant case the trial court ordered a fitness hearing and ipso factodetermined the existence of such a doubt." It recently retreated from that position and overruledT.D.W., reasoning that a court cannot create the right to a fitness hearing simply by ordering one. People v. Gentry, No. 4--02--0890 (August 24, 2004). We agree with this proposition of law;however, we still consider the reasoning of T.D.W. valid in a factual sense. Here, as the trial courtheard testimony and observed defendant, the fact that the court actually found defendant unfit cannotbe ignored.

The State attempts to escape this conclusion by citing McCullough's statement that he sawno indication of unfitness and his request, on defendant's behalf, for a speedy trial, which the trialjudge granted. The State argues that these can be viewed in one of two ways: either as a waiver ofthe right to the fitness hearing or as the trial judge reconsidering his earlier finding that a bona fidedoubt existed. We find neither persuasive.

Regarding waiver, we first note that the very notion of an unfit defendant waiving his rightnot to be tried while unfit is a dubious one. See Pate v. Robinson, 383 U.S. 375, 384, 15 L. Ed. 2d815, 821, 86 S. Ct. 836, 841 (1966) ("But it is contradictory to argue that a defendant may beincompetent, and yet knowingly or intelligently 'waive' his right to have the court determine hiscapacity to stand trial"). Moreover, considerations of waiver aside, a trial court has an independentduty to ascertain whether a defendant is fit. People v. Goodman, 347 Ill. App. 3d 278, 287 (2004). If we were to interpret the trial court's actions as a reconsideration of its previous ruling, we wouldfind the decision to be an abuse of discretion and contrary to the manifest weight of the evidence. Prior to trial, Dr. Brown and Regina Harris observed defendant and testified that he was not fit to betried. Additionally, as the trial court observed, defendant's behavior provided strong evidence of hisunfitness. The trial judge also opined that defendant was suffering from paranoia. Against thisevidence, there is only McCullough's statement that he had no questions about defendant's fitness. However, during the hearing in which he made this statement, McCullough acknowledged that he hadbeen assigned to the case only on the preceding day. As such, McCullough's opinion as to defendant'sfitness is not well grounded. Notably, he had not observed defendant interact with the court at thispoint.

We find equally unpersuasive the State's contention that defendant's behavior in court priorto trial was caused by a conflict with his first attorney. Immediately after trial, while represented byMcCullough, defendant engaged in the same sort of conduct that he had engaged in prior to trial andwas held in contempt as a result. Moreover, we find such speculation wholly insufficient to refutethe testimony and opinions of Dr. Brown, Harris, and the trial judge himself regarding the cause ofdefendant's repeated outbursts.

In sum, while we are not unmindful of the difficulties the trial court faced and the extremeefforts it made to be fair to the rights of all, we conclude that defendant was entitled to a fitnesshearing. We therefore must reverse defendant's conviction and remand this cause so that one can beheld. If, and when, it is determined that defendant is fit to stand trial, defendant may be retried, asthe evidence presented at trial was sufficient to preclude double jeopardy from attaching. People v.Denny, 221 Ill. App. 3d 298, 303 (1991).

Defendant also challenges his conviction of direct criminal contempt. Defendant contends thatthe contempt citation should be reversed outright because, due to his mental illness, he could not formthe mental state necessary for a finding of contempt. Defendant argues that contempt requires afinding of willfulness (People v. Willson, 302 Ill. App. 3d 1004, 1005 (1999)), and he points to Dr.Brown's testimony that defendant was unable to control his behavior while in court. While thistestimony certainly supports defendant's position, we cannot say that it is so compelling thatdefendant, as a matter of law, could not be guilty of contempt.

Defendant also argues that he should have been allowed to present a defense to the contemptcitation, and we agree. A court may summarily punish criminal contempt only if all relevant facts arebefore the court and within the judge's personal knowledge. People v. Simac, 161 Ill. 2d 297, 306(1994). Where it appears that a substantial issue as to a defendant's mental capacity exists, it cannotbe said that all of the relevant facts are before the court. Willson, 302 Ill. App. 3d at 1006. In theinstant case, the record is replete with facts and opinions of experts that indicate that such asubstantial issue may exist. Accordingly, defendant should have been allowed to present a defenseof mental incapacity to the charge of contempt.

Before concluding, we note that defendant also complains of two trial errors. We will addressthem briefly. The first, that the trial court erred in not providing a full definition of "knowingly" inresponse to a query by the jury, is not likely to recur on retrial. Defense counsel failed to interposean appropriate objection and tender what it deemed an appropriate instruction, thus waiving the issue. See People v. Kittinger, 261 Ill. App. 3d 1033, 1038 (1994). Should the issue arise, defense counselshould now be on notice as to how to proceed, and the trial court may consider the issue in thecontext of the case as it develops. Regarding the second contention, that the trial court erred inallowing defendant to be impeached with a conviction of fleeing and eluding a police officer, we findno error. Defendant claims that the earlier conviction is too similar to the instant one and thusresulted in unfair prejudice. See People v Montgomery, 47 Ill. 2d 510 (1971). The State countersthat fleeing an officer is very different from striking one. The State's observation is not unreasonable. Thus, a reasonable person could agree with the trial court, and we cannot say that the trial courtabused its discretion in allowing this evidence to be used to impeach defendant. People v. Flowers,306 Ill. App. 3d 259, 264 (1999).

CONCLUSION

In light of the foregoing, we reverse defendant's conviction of aggravated battery, vacate thefinding of contempt, and remand this cause. On remand, the trial court should hold a hearing todetermine if defendant is fit before proceeding further and also afford defendant an opportunity topresent a defense to the contempt citation.

Reversed in part and vacated in part; cause remanded with directions.

McLAREN and HUTCHINSON, JJ., concur.