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On April 29, 2002, defendant's appointed counsel, AssistantPublic Defender Hugh Toner, filed a motion for a psychologicalexamination to determine defendant's fitness to stand trial. On thesame date, the defendant filed a pro se motion to represent himself. In that motion the defendant stated that he was competent and that afitness hearing was unnecessary. The trial judge appointed Dr. JaneVelez to examine the defendant.

On August 6, 2002, the parties appeared in court for trial. The defendant indicated that he wanted to represent himself. Thetrial court noted that it had not received a report from Dr. Velez. Defense counsel then tendered a copy of the report to the court,commenting that the report found the defendant "fit and not qualifiedfor an insanity defense." The court then asked:

"THE COURT: So you're withdrawing --

MR. TONER [Defense counsel]: That would becorrect, Judge."

The court then stated that the defendant appeared to berational and intelligent and it found that defendant had knowinglyand voluntarily waived his right to counsel. On appeal, defendantmaintains that the trial court erred in failing to hold a fitnesshearing. Relying on People v. Cleer, 328 Ill. App. 3d 428, 766N.E.2d 311 (2002), the defendant argues that a bona fide doubt offitness was implicitly found when the court granted defendant'smotion for a psychological examination. We disagree.

In Cleer, we held that "[u]pon accepting the motion [for afitness evaluation] and appointing a qualified expert, the trialcourt implicitly concluded that a bona fide doubt as to thedefendant's fitness did exist." Cleer, 328 Ill. App. 3d at 431, 766N.E.2d at 314. We further held that because a bona fide doubt hasbeen raised when the court grants the motion for an evaluation, thetrial court then must conduct a fitness hearing. Cleer, 328 Ill.App. 3d 428, 766 N.E.2d 311.

Recently, the Illinois Appellate Court, First District,rejected our ruling in Cleer in People v. Hill, 345 Ill. App. 3d 620,803 N.E.2d 138 (2003). The Hill court stated that the holding ofCleer is contrary to the language of section 104--11(b) of the Codeof Civil Procedure of 1963 and Illinois Supreme Court precedent. Section 104-11(b) states:

"(b) Upon request of the defendant that aqualified expert be appointed to examine [thedefendant] to determine prior to trial if abona fide doubt as to [the defendant's] fitnessto stand trial may be raised, the court, in itsdiscretion, may order an appropriateexamination." 725 ILCS 5/104--11(b) (West2002).

The court in Hill pointed out that the plain language ofsection 104-11(b) contemplates the appointment of an expert todetermine whether a bona fide doubt of the defendant's fitness "maybe raised." The Hill court submitted that the language of section104--11(b) lends no support to the holding of Cleer. We reached thesame conclusion in People v. Vernon, 346 Ill. App. 3d 775, ___, 805N.E.2d 1222, 1225 (2004), noting that appointment of an expert undersection 104--11(b) "clearly cannot be considered a conclusion,implicit or otherwise, concerning a bona fide doubt of thedefendant's fitness."

The Hill and Vernon courts also rejected Cleer by suggestingthat its holding contradicted Illinois Supreme Court precedent suchas People v. Harris, 206 Ill. 2d 293, 794 N.E.2d 181 (2002); Peoplev. Burt, 205 Ill. 2d 28, 792 N.E.2d 1250 (2001); People v. Easley,192 Ill. 2d 307, 736 N.E.2d 975 (2000); and People v. Eddmonds, 143Ill. 2d 501, 578 N.E.2d 952 (1991). In those cases, our supremecourt stated that when determining whether a bona fide doubt of thedefendant's fitness exists, trial courts are to consider thefollowing factors: (1) the defendant's irrational behavior; (2) thedefendant's demeanor during the proceedings; and (3) any previousmedical opinion on the defendant's fitness. The Hill and Vernoncourts noted that if the granting of the defendant's motion for afitness evaluation was sufficient to create a bona fide doubt of thedefendant's fitness, these factors would become irrelevant. Weagree.

For these reasons, we find that the trial court's decision toorder an evaluation of defendant's fitness did not create a bona fidedoubt of fitness. Accordingly, the court did not abuse itsdiscretion in failing to hold a fitness hearing. As succinctlystated in People v. Kalwa, 306 Ill. App. 3d 601, 613, 714 N.E.2d1023, 1031 (1999):

"It is well settled in Illinois that whereno bona fide doubt as to a defendant'scompetency to stand trial exists, a psychiatricreport shows defendant fit and the defendantmoves for or acquiesces in the withdrawal of apetition requesting a fitness hearing, there isno abuse of discretion where the court fails tohold a fitness hearing sua sponte. People v.Hicks, 35 Ill. 2d 390, 394, 220 N.E.2d 461(1966); People v. Mayhew, 18 Ill. App. 3d 483,488, 309 N.E.2d 672 (1974)."

The defendant next asserts that he was denied a fair trial whenthe State elicited testimony regarding defendant's post-arrestsilence. The defendant acknowledges that he failed to object to theallegedly improper testimony and he also failed to file a post-trialmotion. He asks that we consider this issue under the plain errorrule, which permits a reviewing court to consider a trial error thathas not been properly preserved if the evidence is closely balancedor if the error is so fundamental and of such a magnitude that thedefendant was denied a fair trial. See People v. Herrett, 137 Ill.2d 195, 561 N.E.2d 1 (1990). We therefore consider the evidencepresented at defendant's trial.

Wesley Williamson, an assistant manager of Kroger's grocerystore in Peoria, Illinois, testified that the defendant approachedhim on January 9, 2002, and asked where the eyeglass repair kits werelocated. The defendant seemed jumpy and erratic and knocked itemsoff a display shelf in front of the pharmacy as Williamson showeddefendant where the eyeglass kits were. Williamson started to pickup the fallen items, and defendant helped him. After that, defendantproceeded toward the rear of the store. Because of defendant'snervous activity, Williamson watched the defendant walk toward theback of the store and saw him put the eyeglass repair kit in hispocket. Williamson continued to observe defendant's progress throughthe store and, as defendant started toward the front, Williamsonstood at the exit portion of the checkout lanes. He saw thedefendant check out and pay for a few items; the eyeglass repair kitwas not among those items. The defendant then left the checkout laneand turned right, heading toward the exit door. Williamson stoppeddefendant and asked him to go upstairs. Once there, Williamson askedthe defendant for the merchandise in his pocket. Defendant removedthe eyeglass repair kit from his left front pocket and handed it toWilliamson.

The defendant, acting pro se, cross-examined Williamson andestablished that there was a customer service desk between thecheckout lanes and the exit where such things as cigarettes and moneyorders could be purchased. Williamson testified that there were twocustomer service windows; one was manned and one was unmanned. Thedefendant then inquired:

"Q. Okay. So by you stopping me to --before I could go anywhere else, then you --you would not know my intention, what I wasdoing, is that correct, by and where youstopped me?

A. I stopped you after you passed throughthe check lane, turned right and was [sic]headed towards the door."

On redirect, Williamson testified that as defendant left thecheckout lane he turned toward the right and headed straight towardthe exit door. Had defendant been heading toward the customerservice desk, he would have gone in a different direction. At thetime defendant was stopped, he was proceeding away from the customerservice desk. The defendant then further questioned Williamson onrecross-examination:

"Q. So if you stopped me before I got towhere I was going, how did you know where I wasgoing to go?

A. It was my opinion when you exited thecheck lane after checking out, turned right andwent straight towards the door, that yourintention was to exit the store. That's when Istopped you.

Q. Okay. That's your opinion. But nowif you did not stop me at the time you stoppedme, is it true that I could have went to thecheckout customer service desk to pay for thatitem?

A. Only if you would have turned to theleft and came back to the window that was openwith the lady standing there."

After the State concluded its case, the parties engaged in ajury instruction conference. Defendant sought to instruct the jurythat a presumption of intent to steal may arise when one removesmerchandise beyond the last known station for receiving payment. Thetrial judge noted that it had not been established by the evidencethat one could pay for merchandise other than cigarettes or moneyorders beyond the checkout lanes. The defendant then recalledWilliamson to the stand in his case in chief, and he testified thatone could pay for merchandise at the customer service desk.

In rebuttal, the People called Police Officer Thomas Bond, whohad questioned defendant at the store:

"Q. Officer Bond, did you proceed then toquestion Mr. Mallek concerning items that weretaken from the Kroger's store?

A. Yes.

Q. At any point during your conversationwith Mr. Mallek, did he indicate to you that itwas his intent to pay for those items at thecustomer service window?

A. No.

Q. Did he tell you that he proceededthrough the checkout without paying for theitem that was in his pocket?

A. Yes.

Q. What was his explanation for notpaying for that item?

A. He said he forgot.

Q. He forgot he had the item in hispocket?

A. Yes." (Emphasis added).

Following closing arguments and jury deliberations, the defendant wasfound guilty of retail theft.

Assuming for the sake of argument that the above emphasizedtestimony is an impermissible comment on the defendant's post-arrestsilence (see People v. Clark, 335 Ill. App. 3d 758, 781 N.E.2d 1126(2002) (comment on post-arrest silence is excluded as a matter ofIllinois evidentiary law); but see People v. Frieberg, 147 Ill. 2d326, 589 N.E.2d 508 (1992) (noting that Illinois recognizes exceptionto constitutional rule of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d91, 96 S. Ct. 2240 (1976), prohibiting impeachment by means of post-arrest silence, where defendant has made prior inconsistentstatements at time of arrest)), we find that this issue has beenwaived. The evidence is uncontradicted that the defendant put theeyeglass repair kit in his pocket and did not pay for it when he wentthrough the checkout lane. Defendant's argument that he could havepaid for the item at the customer service desk is untenable in lightof Williamson's unequivocal testimony that after leaving the checkoutlane defendant turned right and was heading for the door, not towardsthe customer service desk.

We also find that any error in commenting on defendant'ssilence did not deprive him of a fair trial. As our supreme courtnoted in Herrett, "a comment upon a defendant's post-arrest silence,while improper, is not an error of such magnitude as to clearlydeprive the defendant of a fair trial." Herrett, 137 Ill. 2d at 215,561 N.E.2d at 10. We find no plain error.

Defendant's final contention is that the trial court erred inrefusing the jury's request for transcripts of Williamson'stestimony. After approximately 30 minutes of deliberations, the jurysent out the following note:

"Manager's testimony re: incident ofknocking over display. Did the defendant askfor the item that was listed? Manager's firsttestimony. Mgr. testimony re: last point forreceiving payment."

After discussing the matter with the prosecutor and thedefendant, the judge called the jury into the courtroom and told thejury that he could not answer its question regarding whetherdefendant asked for the item that was listed. The judge instructedthe jury that it needed to decide the case on the basis of theevidence that had been presented to it. The foreperson of the jurythen stated that the jury wanted to know whether it was possible toreview the testimony indicated on the note in a written form. Thejudge responded that it would be several days before the courtreporter would have a transcript in written form. The forepersonstated, "All right. That was our question."

Defendant asserts that the trial court erred in not consideringthe jury's request, thereby indicating a failure to exercise itsdiscretion. See People v. Queen, 56 Ill. 2d 560, 310 N.E.2d 166(1974); People v. Coleman, 179 Ill. App. 3d 410, 534 N.E.2d 583(1989) (trial court's failure to exercise discretion regardingtranscript requests was error where court did not realize it haddiscretion to act). Assuming, again, that error occurred (but seePeople v. Olinger, 112 Ill. 2d 324, 349, 493 N.E.2d 579, 591 (1986)(trial court's response that jury must decide case on basis ofcourtroom testimony and that it could not have testimony of witnessesread to jury did not evidence failure to exercise discretion)), wefind that it has been waived. As we have already indicated, theevidence in this case was not closely balanced. In addition, a trialjudge's erroneous response to a jury concerning the availability oftranscripts does not affect the fundamental fairness of theproceedings. People v. Humphrey, 89 Ill. App. 3d 673, 411 N.E.2d1228 (1980); People v. Wilkins, 83 Ill. App. 3d 41, 403 N.E.2d 799(1980). We find no plain error.

Finally, defendant argues that his conviction should bereversed on the basis of cumulative error. In our opinion, however,any errors which occurred during defendant's trial were far fromegregious, and defendant received a fair trial, if not a perfect one. See People v. Doyle, 328 Ill. App. 3d 1, 765 N.E.2d 85 (2002)(generally no cumulative error where alleged errors do not constitutereversible error on individual issues).

For the reasons stated above, the judgment of the circuit courtis affirmed.

Affirmed.

BARRY, J., concurs.

I respectfully dissent. I disagree with the majority'sanalysis of this court's holding regarding fitness hearings in Peoplev. Cleer, 328 Ill. App. 3d 428, 766 N.E.2d 311 (2002).

The procedures concerning fitness determinations for criminaldefendants are governed by section 104--11 of the Code of CriminalProcedure of 1963 (725 ILCS 5/101--1 et seq. (West 2002)). Section104--11 states that:

"(a) [t]he issue of the defendant's fitness for trial*** may be raised by the defense, the State or the Court***. When a bona fide doubt of the defendant's fitness israised, the court shall order a determination of the issuebefore proceeding further.

(b) Upon request of the defendant that a qualifiedexpert be appointed to examine [the defendant] todetermine prior to trial if a bona fide doubt as to [thedefendant's] fitness to stand trial may be raised, thecourt, in its discretion, may order an appropriateexamination." 725 ILCS 5/104--11(a), (b) (West 2002).

The defendant in this case relies upon the ruling in Cleer, 328Ill. App. 3d 428, 766 N.E.2d 311, for the proposition that the trialcourt erred by failing to hold a fitness hearing. In Cleer, we heldthat "[u]pon accepting [a] motion [for a fitness evaluation] andappointing a qualified expert, [a] trial court implicitly conclude[s]that a bona fide doubt as to the defendant's fitness [] exist[s]." Cleer, 328 Ill. App. 3d at 431, 766 N.E.2d at 314. We further heldthat because a bona fide doubt has been raised when the court grantsthe motion for an evaluation, the trial court then must conduct afitness hearing. Cleer, 328 Ill. App. 3d 428, 766 N.E.2d 311.

Recently, the Illinois Appellate Court, First District,rejected our ruling in Cleer in People v. Hill, Ill. App. 3d , 803 N.E.2d 138 (2003). The Hill court stated that the holding ofCleer is contrary to the language of section 104--11(b) and IllinoisSupreme Court precedent.

The court in Hill points out that the plain language of section104--11(b) contemplates the appointment of an expert to determinewhether a bona fide doubt of the defendant's fitness "may be raised." The Hill court submits that the language of section 104--11(b) lendsno support to the holding of Cleer. I agree that a literal readingof section 104--11(b) conflicts with our ruling in Cleer. Therefore,it is necessary to further clarify the holding of Cleer.

Read literally, the language of section 104--11(b) leads to anabsurd result because it does not comport with trial court practice. The term "bona fide" is a Latin phrase meaning "good faith." Black'sLaw Dictionary 168 (7th ed. 1999). A trial court would not exerciseits discretion to grant a defendant's request for a fitnessevaluation without the defendant first stating a good faith basis forthe request. Moreover, a trial court would not grant a defendant'srequest for an evaluation without defense counsel stating somefactual basis for the request. However, under a literal reading ofsection 104--11(b), a defendant's request for a fitness evaluationcould be granted regardless of whether the defendant stated a goodfaith factual basis for the request. The appointed expert then wouldbe placed in the absurd position of determining whether there hadbeen a good faith basis for the request in the first place.

Established rules of statutory construction, however, prevent aliteral reading of a statute if such a reading would lead to anabsurd result. People v. Hanna, 207 Ill. 2d 486, 800 N.E.2d 1201(2003). I would decline to read section 104--11(b) literally becauseto do so would lead to an absurd result. Instead, I would interpretsection 104--11(b) to mean that once the defendant has raised a goodfaith doubt concerning his fitness to stand trial, the trial courtmay exercise its discretion and appoint an expert to examine thedefendant and to render an opinion concerning the defendant'sfitness. The expert's evaluation then is evidence to be consideredby the court at the subsequent fitness hearing required by section104--11(a).

The Hill court also rejected Cleer by asserting that itsholding contradicted Illinois Supreme Court precedent from People v.Harris, 206 Ill. 2d 293, 794 N.E.2d 181 (2002); People v. Burt, 205Ill. 2d 28, 792 N.E.2d 1250 (2001); People v. Easley, 192 Ill. 2d307, 736 N.E.2d 975 (2000); and People v. Eddmonds, 143 Ill. 2d 501,578 N.E.2d 952 (1991). In these cases, our supreme court stated thatwhen determining whether a bona fide doubt of the defendant's fitnessexists, trial courts are to consider the following factors: (1) thedefendant's irrational behavior; (2) the defendant's demeanor duringthe proceedings; and (3) any previous medical opinion on thedefendant's fitness. The Hill court asserted that if the granting ofthe defendant's motion for a fitness evaluation was sufficient tocreate a bona fide doubt of the defendant's fitness, these factorswould become irrelevant. I disagree.

The factors cited by the Hill court contain the kind of factualinformation required for a trial court to find that a good faithbasis exists to grant the defendant's request for an evaluation. Thus, our holding in Cleer does not contradict Illinois Supreme Courtprecedent as asserted by the Hill court.

In the present case, the trial court granted the defendant'smotion for a fitness evaluation. Under Cleer, once the court grantedthe motion, the trial court implicitly found a bona fide doubt of thedefendant's fitness to exist. Having determined that a bona fidedoubt existed, it was mandatory for the trial court to hold a fitnesshearing under the second sentence of section 104--11(a).

Merely accepting the parties' stipulation to the psychiatrist'sfinding of fitness did not constitute a fitness determination by thetrial court. The trial court must hold a hearing under section 104--11(a) in which it makes an affirmative ruling concerning thedefendant's fitness. Contorno, 322 Ill. App. 3d 177, 750 N.E.2d 290.

Because the trial court did not exercise its discretion todetermine the defendant's fitness, the defendant's due process rightswere violated. Under Cleer, I would remand the cause for a properfitness hearing and, if necessary, a new trial.