People v. Floyd

2025 IL App (1st) 160406-U

• Court: Appellate Court of Illinois
• Decided: June 17, 2025
• Docket: 1-16-0406
• Status: Unpublished

Opinion

2025 IL App (1st) 160406-U SECOND DIVISION June 17, 2025

No. 1-16-0406

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 10 CR 12502 ) MARCUS FLOYD, ) Honorable ) Timothy Joseph Joyce, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE HOWSE delivered the judgment of the court. Justices Ellis and Cobbs concurred in the judgment.

ORDER

¶1 Held: The judgment of the circuit court of Cook County finding defendant fit to stand trial is reversed; the trial court is directed to conduct a new retroactive fitness hearing because the nonpattern jury instruction on amnesia given to jurors effectively negated evidence about the impact of amnesia on defendant’s ability to assist in his own defense; the cause is remanded for further proceedings consistent with this judgment.

¶2 Following a jury trial the circuit court of Cook County convicted defendant, Marcus

Floyd, of first degree murder for the death of Chicago Police Department Officer Thomas

Wortham IV (hereinafter, “Officer Wortham”) and the felony murder of the co-offender in the

crime that led to Officer Wortham’s death, defendant’s cousin, Brian Floyd. Brian Floyd was

killed by Officer Wortham’s father, Thomas Wortham III (hereinafter, “Mr. Wortham”), a retired

Chicago Police Department officer, as he was trying to stop the crime, which occurred in front of

his home. The jury also convicted defendant of attempt (first degree murder) of Mr. Wortham. 1-16-0406

Mr. Wortham also shot defendant several times while attempting to stop the crime. As a result of

his injuries defendant developed retrograde amnesia of the crime. Due to defendant’s amnesia,

before the trial of the charges the trial court held a trial before a jury of six to determine

defendant’s fitness for trial. The fitness jury found defendant fit for trial. Following trial, the trial

jury found defendant guilty of the crimes charged and the court sentenced defendant to two

consecutive terms of life imprisonment.

¶3 Defendant appealed both the judgment finding him fit to stand trial and his convictions.

We reversed the judgment finding defendant fit to stand trial and remanded for a retroactive

fitness trial, with instructions. We retained jurisdiction over the appeal to consider any preserved

claims of error in the retroactive fitness hearing and defendant’s appeal of his conviction should

it be found defendant was fit to stand trial. People v. Floyd, 2019 IL App (1st) 160406, ¶ 62. On

remand, the trial court conducted a retroactive fitness trial and a jury again found defendant fit to

stand trial. We allowed supplemental briefing to address allegations of error in the retroactive

fitness hearing. The parties have fully briefed the issues surrounding the retroactive fitness trial.

¶4 For the following reasons, we reverse the judgment of fitness for trial and remand for

further proceedings consistent with this judgment.

¶5 BACKGROUND

¶6 The underlying facts of this case may be found in our dispositions of the appeals of

codefendants Toyious Taylor (People v. Taylor, 2017 IL App (1st) 150726-U) and Paris McGee

(People v. McGee, 2017 IL App (1st) 150838-U). In light of our holding we once again focus our

discussion here on the retroactive fitness trial and only briefly recount the circumstances of the

offense to the extent necessary to understand the retroactive fitness trial.

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¶7 On the night of the occurrence, Officer Wortham left his parents’ home in Chicago after

visiting them. Mr. Wortham watched from his front porch as his son got on his motorcycle. Mr.

Wortham saw defendant and Brian Floyd in the middle of the street. Officer Wortham rode his

motorcycle to where they were in the street, stopped, and spoke to them. Mr. Wortham saw Brian

put a gun to Officer Wortham’s head. Mr. Wortham yelled for the men to get away from Officer

Wortham and Brian turned and pointed his gun at Mr. Wortham. Brian yelled at Mr. Wortham to

get back into the house. Officer Wortham then shouted “Police,” and Mr. Wortham instantly

heard gunfire. Mr. Wortham ran into the house to retrieve his gun and told his wife to dial 9-1-1.

After Mr. Wortham ran back outside with his gun he saw a red car in front of his home facing the

wrong direction on the one-way street. The passenger was outside the car yelling “Get in.” Mr.

Wortham told the passenger to “get away from there.” The passenger got back into the car and

the driver backed the car away. Mr. Wortham testified he thought the passenger fired a gun at

him before the car reached the intersection. Mr. Wortham hid behind his daughter’s car, saw

Officer Wortham’s gun on the ground and picked it up so that he then had a gun in each hand.

Defendant and Brian were facing Mr. Wortham. Mr. Wortham saw a gun in Brian’s hand. Mr.

Wortham opened fire and saw both men go down. Mr. Wortham saw Officer Wortham on the

ground approximately 20 yards away. The State elicited testimony that in addition to being shot

multiple times Officer Wortham’s injuries were consistent with being hit by a car and dragged.

¶8 Before the first fitness trial began the trial court granted the State’s motion to bar the

testimony of a defense witness who would testify as to why a defendant’s ability to recall the

incident that is the subject of the prosecution is relevant to that defendant’s ability to assist in

their own defense.

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¶9 At the first fitness trial, Dr. Matthew Markos, a forensic psychiatrist, testified for the

State. Dr. Markos testified that his clinical forensic psychiatric opinion to a reasonable degree of

medical and psychiatric certainty following his examination of defendant was that defendant was

“mentally fit to stand trial.” Dr. Markos took defendant’s amnesia into account in reaching his

opinion. Dr. Markos testified defendant had reported amnesia and “in order to be able to assist

his counsel, it was important for me to determine if he has the capacity to learn and retain new

information.”

¶ 10 At the first fitness trial Dr. Markos testified he asked defendant questions to determine if

defendant had any knowledge of the crime itself and details pertaining to the crime, what the

source of defendant’s information was, and whether defendant had the capacity to learn and

retain new information. Dr. Markos testified that defendant clearly demonstrated the capacity to

learn new information from extrinsic sources and retain and remember it; defendant had the

capacity to communicate with his attorney and cooperate with his attorney to obtain information;

defendant did not have ongoing amnesia for day-to-day events and recent information, and the

amnesia was “just for the arrest incident circumscribed and capsulated.”

¶ 11 At the first fitness trial the State asked Dr. Markos about a second fitness examination he

conducted of defendant. Dr. Markos testified in part as follows:

“Again his memory was—pertained only to the arrest incident, and I did

ask him additional questions again in order to determine a very important clinical

issue, which is does he have the capacity today as we sit as it relates to his current

fitness, the ability or the capacity to learn and retain new information and if he has

the capacity to follow day-to-day events in his life at Cook County jail.”

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¶ 12 Dr. Markos testified there are special factors and added “amnesia, per se, does not equal

unfitness. Amnesia, per se, does not deem someone unfit.” Defendant’s attorney objected but the

trial court overruled the objection.

¶ 13 The State also called Dr. Christofer Cooper to testify as an expert at the first fitness trial.

Dr. Cooper had examined defendant regarding defendant’s fitness to stand trial. Dr. Cooper

testified that the “issue at hand” was defendant’s ability to understand what his attorney had

informed him about what happened during the offense. Dr. Cooper stated that the “fundamental

issue” on the question of defendant’s fitness to stand trial was defendant’s ability to retain

information that had been extrinsically reconstructed from an external source by, for example,

being told information by his attorney. Dr. Cooper opined that defendant was capable of assisting

his attorney in his own defense because defendant “can learn, retain, process, logically evaluate

anything that’s presented to him.” Dr. Cooper’s expert opinion after twice examining defendant

was that defendant was fit to stand trial.

¶ 14 After both parties rested the trial court proceeded with the jury instruction conference.

The defense placed on the record its requested instruction based on section 104-16(b) of the

Code of Criminal Procedure of 2012, which provides in part:

“(b) Subject to the rules of evidence, matters admissible on the issue of the

defendant’s fitness include, but are not limited to, the following:

(1) The defendant’s knowledge and understanding of the charge, the proceedings,

the consequences of a plea, judgment or sentence, and the functions of the

participants in the trial process;

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(2) The defendant’s ability to observe, recollect and relate occurrences, especially

those concerning the incidents alleged, and to communicate with counsel.”

(Emphasis added.) 725 ILCS 5/104-16(b) (West 2016).

The trial court declined to give the instruction. In pertinent part, the trial court instructed the jury

as follows:

“Matters on the issue of the defendant’s fitness that you may consider

include but are not limited to the following: Defendant’s knowledge and

understanding of the charge, the proceedings, the consequences of a plea,

judgment or sentence and the functions of the participants in the trial process; the

defendant’s ability to observe, recollect and relate occurrences and to

communicate with counsel; the defendant’s social behavior and abilities;

orientation as to time and place; recognition of persons, places and things and

performance of motor processes.

Amnesia does not per se make a person unfit. A person is unfit to stand

trial if, because of a mental or physical condition, he is unable to understand the

nature and purpose of the proceedings against him or he is unable to assist in his

defense.” (Emphasis added.)

¶ 15 Following the first fitness trial, the jury found defendant fit to stand trial.

¶ 16 On appeal from the fitness jury’s verdict, defendant argued, in part, that he received

ineffective assistance of counsel where his attorney failed to object to the State’s witnesses

stating an erroneous standard for fitness and the trial court gave the jury an instruction that

bolstered the erroneous testimony and misled the jury as to the standard for fitness to stand trial.

Defendant also argued that the trial court erroneously barred the defense from calling an expert

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witness to testify as to how defendant’s amnesia affects defendant’s ability to assist in his

defense. In the first appeal, we found that:

“Regardless, our supreme court directs that amnesia of the alleged offense

will not always render a defendant unfit to stand trial. Stahl, 2014 IL 115804, ¶¶

34, 39. We note that our supreme court did not hold that amnesia, alone, will

never render a defendant unfit for trial. Instead, our supreme court recognized the

relevance of amnesia of the alleged events to a defendant’s ability to assist in his

or her own defense. Id. ¶ 38 (recounting testimony by attorney-expert describing

how the defendant’s amnesia as to the relevant events could negatively impact his

ability to assist defense counsel). Our supreme court concluded there were ‘a

number of factors *** that should be considered on the issue of fitness’ including

the defendant’s ‘inability to communicate with counsel because he cannot

recollect his actions and mens rea surrounding the incident.’ Id. ¶ 39. Thus,

‘under article 104 of the Code, amnesia as to the events surrounding the crime

does not per se render a defendant unfit to stand trial. Rather, the fact that a

defendant cannot recollect the incident at issue is just one of the circumstances

that may be considered in determining a defendant’s fitness.” People v. Floyd,

2019 IL App (1st) 160406-U, ¶ 50.

¶ 17 We held that the trial court’s instruction failed to identify a relevant factor in the fitness

determination and, as a result, the trial court’s instruction misled the jury and failed to correctly

state the applicable law. See Stahl, 2014 IL 115804, ¶ 39. The missing factor was the defendant’s

ability to relate and recollect the incident alleged. Floyd, 2019 IL App (1st) 160406-U, ¶ 51. We

found that the error prejudiced defendant. Id. ¶ 52. We found that the State’s experts’ testimony

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and the prosecutor’s argument in combination with the court’s erroneous instruction left the jury

with the firm impression that it should consider defendant’s ability to recollect information

communicated to him by his attorney and that it need not (indeed should not) consider

defendant’s ability to recollect and relate the occurrences of the incident alleged. Id. We also

found that the trial court abused its discretion in barring defendant’s expert’s testimony as to how

defendant’s lack of memory affected defendant’s ability to assist in his own defense. Id. ¶ 54.

¶ 18 We found that there was no genuine dispute defendant understood the nature and purpose

of the proceedings against him and therefore the fitness hearing hinged on whether defendant

could assist in his own defense. We found that absent consideration of defendant’s ability to

recollect the offense, the jury had no real basis upon which to decide defendant’s ability to assist

in his own defense, making the outcome a virtually foregone conclusion. Id. ¶ 53.

¶ 19 We reversed the judgment and remanded with instructions for the trial court to hold a full

retroactive fitness trial in accordance with our order. Id. ¶ 62. We instructed the trial court to

allow defendant’s expert’s testimony at a retroactive fitness trial. Id. ¶ 54. We also held that “the

trial court must instruct the jury on all of the factors listed in the [fitness] statute that may be

considered in determining a defendant’s fitness for trial” and that the determination is to be made

based on the totality of the circumstances. Id. ¶ 57 (citing 725 ILCS 5/104-16(b) (West 2018)).

We directed defense counsel to object and the trial court to rule on the objection “if the State’s

witnesses restate an erroneous standard” for determining fitness. Id. ¶ 57.

¶ 20 On remand the trial court held a retroactive fitness trial. Before the trial began the defense

filed a motion to exclude certain testimony by the State’s witnesses. Specifically, defendant

sought to bar the State from presenting expert testimony that “someone who suffers from

amnesia can gain ‘personal knowledge’ of a past event by a process called ‘extrinsic memory

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reconstruction’ which involves listening to others describe events that have been erased from

memory.” The motion complained that the State’s experts had previously opined that defendant

was fit to stand trial because he could learn about the events of the crime from “second-hand

accounts” and that would create “personal memories” that defendant could use to assist in his

own defense. The defense argued this “theory” of “extrinsic memory reconstruction” is not

generally accepted in the relevant scientific community. The trial court denied the motion. The

court believed the testimony proffered by the State’s experts was consistent with Stahl. The court

deferred ruling on a separate defense motion in limine to bar testimony that misstates the factors

used to determine fitness.

¶ 21 The State called Dr. Erick Neu, a licensed staff psychologist with Forensic Clinical

Services (FCS) for the Circuit Court of Cook County, to testify as an expert witness. Dr. Neu is

board certified in the specialty of forensic psychology. He testified that forensic psychology is a

specialty in psychology addressing “psycholegal” issues, meaning “a legal topic that has a

psychological component” including, for example, fitness to stand trial. Fitness to stand trial is a

“legal term, but there’s a psychological component to it, whether somebody is having symptoms

of mental illness or cognitive impairment that *** prevents them from being able to understand

the proceedings or assist in their defense.”

¶ 22 According to Dr. Neu, FCS exclusively conducts court-ordered mental health evaluations

to address “legal issues that have a mental health component, such as a defendant’s fitness to

stand trial.” Dr. Neu gratuitously added that FCS is “always impartial.” The majority of

evaluations Dr. Neu has conducted in his over 20 years with FCS have been fitness to stand trial-

related evaluations. Dr. Neu described a fitness evaluation as determining “does the defendant

have symptoms of mental illness or cognitive impairment that renders them either unable to

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understand the nature of the proceedings and/or unable to rationally assist Counsel in their

defense.” A retroactive fitness evaluation is significantly similar to a fitness evaluation except

that a retroactive fitness evaluation looks at a particular time frame in the past. Dr. Neu received

a court order for an evaluation of defendant to determine his “retrospective fitness at the time of

August [2015.]” Dr. Neu’s evaluation of defendant consisted of reviewing defendant’s medical

records and a face-to-face meeting with defendant. Dr. Neu created a written report of his

evaluation which assisted him in his testimony.

¶ 23 Dr. Neu testified that after the offense defendant was taken to the hospital with “severe,

severe injuries” that at one point required defendant to be resurrected but the records did not

document head injuries. Defendant was not shot in the head and did not receive blunt force

trauma to the head. The hospital treated defendant for “acute physical injuries.” Defendant was

transferred to a different hospital for continued care and eventually defendant was transferred to

a different hospital and placed in a rehabilitation wing. In June 2010, defendant received a

psychological screening when he was placed in the rehabilitation wing. That psychological

screening concluded that defendant was alert and fully oriented to place, time, and situation. Dr.

Neu testified that defendant “was described as having his attention and concentration as well as

his comprehension” and there were “no significant impairments” to his immediate and remote

memory. Defendant’s recent memory “was described as mild to moderately impaired.” In this

screening defendant stated, about the incident, “ ‘they said he shot a cop. I don’t remember. I

was shot by a cop.’ ” Defendant was diagnosed with “cognitive disorder, not otherwise specified

due to anoxic encephalopathy.”

¶ 24 Dr. Neu testified that a July 2010 psychological note from the rehabilitation hospital

states that defendant denied feelings of depression or anxiety and that his first memory before the

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offense was his going to high school. At the end of July 2010 the rehabilitation hospital

discharged defendant. The discharge summary stated that defendant received “ ‘comprehensive

rehabilitation for mobility, [activities of daily living,] and cognitive impairment, secondary to

anoxic brain injury due to cardiac arrest as complication of [multiple gunshot wounds.]’ ”

Anoxic brain injury is injury to the brain that occurs due to a lack of oxygen.

¶ 25 After he was discharged from the rehabilitation hospital defendant was admitted to

Cermak Health Services for ongoing medical treatment. Dr. Neu testified he reviewed medical

records from Cermak to look for things of clinical significance to his evaluation, “which was to

see if there was concerns about [defendant’s] memory or cognitive functioning documented.”

The records “did not document any significant concerns about [defendant’s] intellectual or

cognitive functioning” in November 2010. Defendant received occasional mental health

evaluations and “on no occasion was he described as requiring mental health treatment.” In

particular defendant received a mental health evaluation in October 2011 after stating he was

feeling down and suicidal, but defendant reported to the evaluator only “medical concerns and

not mental health concerns.” The evaluator reported they did not observe any symptoms of

mental illness.

¶ 26 The October 2011 evaluation described defendant as fully oriented to time, place, and

situation, as having normal speech and appearance, and that defendant’s thoughts were organized

with “adequate insight” and “adequate judgment.” The evaluation concluded that defendant was

not in need of mental health services. The evaluator “did not document any difficulty [defendant]

had communicating with her” nor did she document any difficulty she had understanding him or

any cognitive impairment. Subsequent evaluations also “documented that there were no mental

health issues that would prevent [defendant] from being transferred” and there were no observed

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or reported symptoms of mental illness. Again, later an evaluation contained “no mention of

cognitive deficits” and reported that defendant did not appear to have difficulty understanding

his evaluator. Specifically in August 2012 the evaluator reported that defendant “does not really

have any [self-reported] mental health concerns” and did not document that the evaluator

observed any mental health symptoms or notable cognitive impairment.

¶ 27 Dr. Neu opined that defendant’s past medical records documented “significant

improvement” with respect to his injuries at each subsequent medical facility. The retroactive

fitness evaluation was to evaluate defendant as of August 2015, but Dr. Neu also reviewed

defendant’s medical records after 2015. He testified he did this as part of his retroactive fitness

evaluation because “the early end of those additional records are important because they’re

within a couple of months of the timeframe that I’m interested in.” Dr. Neu testified that they

contained no history of defendant receiving mental health treatment. The records after 2015 did

not describe defendant as either reporting or exhibiting any significant cognitive deficits or

intellectual impairments. Defendant “was not deemed to require mental health treatment or any

type of medication for mental illness at any time.”

¶ 28 Dr. Neu opined that “during the actual time period that I’m interested in, [defendant] did

not appear to have any significant mental health concerns based on the medical records.” He

added, that since the time defendant medically stabilized from the trauma caused by the gunshot

wounds defendant “had not been described as exhibiting or reporting symptoms of mental

illness, and he’s not been described as exhibiting significant cognitive deficits.” Dr. Neu opined

that based on the medical records defendant had a “remarkable recovery” both physically and

cognitively. Cognitively, the records from the first hospital in 2010 “describe significant

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problems with his memory and cognitive functioning,” but the later medical records “do not

describe any visible or apparent impairment with his cognition.

¶ 29 In November 2021, Dr. Neu also personally interviewed defendant as part of his

retrospective fitness evaluation. During the interview Dr. Neu conducted a mental status

examination which consists of “a series of questions and observations to assess somebody’s

functioning and for signs and symptoms of mental illness.” Dr. Neu found defendant to be “alert

and fully oriented.” Defendant had “adequate energy and ability to pay attention.” Defendant

knew his own name and what the situation was. Defendant was oriented to time and place.

Defendant did not hallucinate during the interview. Dr. Neu found defendant’s speech to be

“organized and relevant.” Defendant’s responses to questions were related to what Dr. Neu was

asking; defendant did not stray into something else. Defendant’s answers were responsive and

there were no obvious psychotic symptoms. Dr. Neu opined that during the evaluation there were

no obvious significant cognitive deficits. Dr. Neu reached that conclusion because defendant’s

responses were relevant to the question, “meaning he was capable of understanding.” Dr. Neu

did not have to simplify his questions. He noted that defendant “was fairly articulate” and gave

“kind of eloquent answers to questions.”

¶ 30 Defendant reported to Dr. Neu that defendant had amnesia of the time period near the

offense, both shortly before, during, and shortly after the offense. Defendant “also reported some

continued mild memory problems” like forgetting names or portions of conversations. Dr. Neu

testified that he confirmed with defendant that defendant has not required any treatment for this.

Dr. Neu testified that talking to defendant, “he didn’t seem like he was somebody who had

significant cognitive impairment” and that “not a single mental health personnel who’s evaluated

him since he arrived to Cook County Jail described him as appearing to exhibit any significant

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cognitive deficits.” Defendant maintained “adequate attention and appropriate behavior through

the evaluation.”

¶ 31 Dr. Neu testified that you have to rely on self-reporting of whether or not someone

remembers a specific day or specific incident. Dr. Neu testified “you can never, with a hundred

percent certainty, confirm [amnesia] by giving somebody a psychological test or knowing a

diagnosis that they have amnesia.” There is no objective test to determine the span of the

reported amnesia. Defendant reported retrograde amnesia in that “he didn’t remember a period of

time before the alleged offense and a period of time after the alleged offense.” In contrast,

anterograde amnesia “is when you have difficulty forming new memories.” Defendant’s amnesia

added “an additional element” to Dr. Neu’s “clinical focus during [his] evaluation for

retrospective fitness in August 2015.” Dr. Neu testified that when a defendant claims amnesia,

what he is

“looking for is at the time of the trial, had they recovered enough that they were

able to form new memories; would they be able to sustain attention during the

trial; would they be able to have conversations with their attorney; would they

understand what their attorney is telling them; that they’re able to speak

coherently and in a relevant, organized manner with their attorney; would they be

able to understand witness accounts and evidence about what happened; would

they be able to look at and understand police report description[s] of the alleged

offense;” and was defendant able to “make rational and informed decisions about

his defense; understand court proceedings; understand the roles of the court

personnel; understand witness accounts of what happened; understand evidence

about what happened; and so on.”

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¶ 32 Dr. Neu testified, over defendant’s objection, that,

“The essence of a fitness evaluation is to evaluate whether somebody has

symptoms of mental illness or cognitive impairment, that either causes them to

not have an adequate understanding of the nature of the court proceedings and/or

causes them to be unable to rationally assist their lawyer in their defense.”

Dr. Neu questioned defendant on those issues. Dr. Neu testified, over objection, that,

“[D]efendant indicated that he has no memory of the actual alleged

offense, but he did express understanding of the charges. He indicated that he’s

been reviewing ‘discovery’ transcripts of his trial and that he *** was able to

express an understanding of the allegations against him, based on learning about

what allegedly transpired from reading other sources of information.”

¶ 33 Dr. Neu testified that defendant told him that defendant’s last memory before the offense

was being at home with his daughter and her mother but defendant did not know how long

before the offense that was. Defendant described the accusations against him to Dr. Neu. Dr. Neu

testified that he wanted to assess whether defendant was “able to understand collateral sources of

information about what happened.” Dr. Neu testified that based on the fact that defendant

claimed amnesia it is important to determine whether defendant had the ability to learn new

information and retain new information from sources other than his memory.

¶ 34 Dr. Neu asked defendant how defendant could assist his attorney. Defendant answered, “

‘talk to him.’ ” Defendant told Dr. Neu he was comfortable answering his attorney’s questions to

the best of his ability, being honest with his attorney, and considering his attorney’s advice.

Defendant volunteered that he could not help his attorney because his lack of memory of the

offense caused him to be unable to help his lawyer.

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¶ 35 Defendant recounted some of the testimony from his first trial to Dr. Neu based on

defendant’s memory of the trial and from reading transcripts. Defendant correctly described the

plea bargaining process and, according to Dr. Neu, “he was able to rationally discuss his decision

to go to trial.” When asked why he went to trial defendant told Dr. Neu he was innocent and that

although he could not remember the offense, in looking at the discovery he concluded he was

just a bystander and that there is not enough evidence that he was involved in a plan.

¶ 36 Dr. Neu’s conclusions from his retrospective fitness evaluation was that “both physically

and mentally [defendant] made a remarkable recovery. And since his arrival to Cook County Jail,

[defendant] has not been documented at any time as reporting or exhibiting any severe lingering

cognitive deficits. *** [A]ll the encounters that he’s had with mental health staff, he’s not been

described as appearing slow or struggling to understand what’s being said to him, or struggling

to express himself.”

¶ 37 Dr. Neu concluded, including the records of psychological testing done of defendant

closer in proximity to the trial, that “at the time of the trial, [defendant] was no longer having

significant cognitive deficits.” Dr. Neu opined that defendant is capable of learning and retaining

new information that has been extrinsically reconstructed from a source other than his memory,

that the reconstruction could be with his attorney, and defendant exhibited an understanding of

the legal process. Defendant can learn information and is “able to logically process any

information that is communicated to him.” Defendant does not have any cognitive problem,

intellectual problem, or psychological problem that would impair his ability to learn what

happened through extrinsic sources. Dr, Neu’s opinion to a reasonable degree of psychological

certainty was that, “Defendant was fit to stand trial on August 20th of 2015.” Dr. Neu based his

opinion on defendant’s understanding of the proceedings, he “demonstrated an ability to have

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learned and retained information,” and the medical records show that “by 2015, he did not have

significant cognitive deficits that lingered.” Dr. Neu concluded “there was nothing to suggest

that at the time of [trial defendant] had cognitive deficits or symptoms of mental illness that

would have significantly compromised his ability to understand the proceedings and/or to have

significantly impeded his ability to have rationally assisted in his defense.”

¶ 38 On cross-examination, Dr. Neu testified that his diagnostic impression of defendant was

“history of mild neurocognitive disorder due to anoxic brain injury.” Dr. Neu was aware that a

person can be unfit for trial because of a psychological issue or because of a medical issue. Dr.

Neu does not specialize in brain injury as a medical doctor and does not know the criteria a

medical doctor would use to diagnose anoxic brain injury. As a psychologist he does not address

the severity of an anoxic brain injury. Instead, he is looking for whether the “medical problem

produce[s] symptoms of mental illness or cognitive defects that impact the referral issue.” Dr.

Neu does not recall ever evaluating a client who suffered from anoxic brain injury.

¶ 39 Dr. Neu agreed that the difference between “mild cognitive disorder” and major or severe

cognitive disorder is how well the person functions on a daily basis; that is, how well they care

for themselves and how they act. He also agreed that defendant had a history of mild cognitive

disorder. Dr. Neu testified that a diagnosis of mild cognitive impairment “tells you nothing as to

whether the person is fit or unfit. So it’s not an important part of my evaluation.” Dr. Neu

testified that if he were to believe defendant when defendant says that he has no memory of the

offense, then he would tell the jury that defendant has a cognitive impairment to his memory.

What was significant to Dr. Neu was that from the time he arrived in jail no mental health or

medical professional described defendant has having ongoing significant problems with his

memory.

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¶ 40 Dr. Neu admitted that he does not know enough about anoxic brain injury to describe the

expected medical effects of that injury. Dr. Neu did not say that he could not read the medical

records and know if defendant exhibited signs that would be expected from severe anoxic brain

injury in the months and years after his injury because that is not the way he looks at things. He

repeated that he determines whether, at the relevant time, the person had deficits that affected

“both the legal [and] psycholegal criteria” which in this case was retrospective fitness to stand

trial in August 2015. Dr. Neu agreed that defendant continues to suffer physical symptoms such

as twitching and poor gait that would be expected from someone with severe anoxic brain injury

and was on medications for them. But he later added that nothing in the medical records suggests

that defendant has lingering significant cognitive impairment that impacts his understanding of

the proceedings or ability to assist in his defense.

¶ 41 Dr. Neu agreed that memory loss is common with anoxic brain injury. He agreed that

damage to different parts of the brain can affect different parts of memory while leaving other

cognitive abilities and memories intact. He admitted that it is not unusual for someone in

defendant’s condition to have memory loss for the time of the event but to have retained most of

their other cognitive abilities. Dr. Neu agreed that retrograde amnesia from the time of the

trauma is associated with the type of injury defendant has.

¶ 42 Dr. Neu testified that he accepted that it is extremely likely that defendant has retrograde

amnesia for the day he was shot. There is no therapy to restore memory for someone with

retrograde amnesia. Dr. Neu testified, “There can be cases of permanent retrograde amnesia that

there’s no treatment that can restore the norm.” Retrograde amnesia would not impact the ability

to identify who the judge is or to state what a trial is or what is evidence. Dr. Neu did not ask

defendant what he would do if a witness gave false testimony. Dr. Neu stated defendant brought

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up his ability to testify in light of his amnesia; but Dr. Neu stated that if a person is not able to

testify because they forgot what happened is “not something that’s relevant to my opinion as to

whether they’re fit or unfit.” Dr. Neu stated,

“What I’m looking at is by the time of the trial, had he recovered enough

that they’re able to understand witness accounts of what happened; understand

and follow along with testimony; look over the police reports; be able to have

conversations with their lawyers. As a psychologist, that’s what I’m asked to do.

I’m not asked to say whether or not a person can testify because you don’t

remember.”

¶ 43 Dr. Neu stated that his concern is whether a cognitive impairment prevents a defendant

from testifying and not whether they are prevented from testifying because they do not remember

what happened, and he described the latter as “a legal issue whether or not that prevents

somebody from having a fair trial, not an issue that a psychologist decides *** this person can’t

testify.” Dr. Neu admitted that “with amnesia, there could be legal reasons why somebody’s

unfit, but those are not reasons a psychologist would opine on.”

¶ 44 Dr. Neu testified that when he spoke about defendant learning what happened from

outside sources he did not mean that defendant had regenerated his own memory but that

defendant has new memories of secondhand accounts, and defendant has no way of knowing

whether those secondhand accounts are true or not.

¶ 45 After Dr. Neu testified the State indicated its intent to rest its case and the defense made a

motion for a directed verdict. The defense argued that the issue of fitness in this case is

surrounded by defendant’s anoxic brain injury “and what it means about his ability to assist his

attorney.” The defense argued that the State’s sole witness is not an expert in anoxic brain injury

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“which *** is the focus of this trial.” The defense highlighted Dr. Neu’s testimony that

defendant is “mentally fit” because “there’s no reason that I’m seeing that he had symptoms of

mental illness that rendered him unfit.” The defense argued that the question of whether

defendant has a mental illness is irrelevant to this trial. The defense argued the State had failed to

meet its burden and asked for a directed verdict. The trial court denied the motion. The defense

also made a motion for a mistrial on the ground that there had been testimony about the trial and

defendant’s guilt or innocence of the offense. The defense argued testimony about a trial of the

offense was prejudicial to defendant. The trial court denied the motion. 1

1 It is notable that the trial court’s statements in denying the motion for a mistrial reflect at least outwardly some confusion about the relationship between amnesia and fitness to stand trial. The court stated:

“It strikes me that everybody seems to be concentrating, and perhaps the defense wishes to concentrate solely on the question of whether [defendant] suffers from amnesia and whether that renders him unit to stand trial, but that’s not the only issue here. The issue isn’t whether he has amnesia, the issue isn’t whether that impacts his ability to be fit for trial. [(It is the issue.)] This is a general question.

The question isn’t whether—the jury isn’t being called upon to say yes, he has amnesia or no, he doesn’t. [(But they must accept or reject that fact to make the ultimate determination in this case.)] Yes, because of amnesia he’s unfit or no, despite his amnesia, he is fit. [(Pursuant to Stahl, this is the precise question in this case. People v. Stahl, 2014 IL 115804, ¶ 39 (‘we find that there are a number of factors, including defendant’s inability to communicate with counsel because he cannot recollect his actions and mens rea surrounding the incident *** that should be considered on the issue of fitness’)).] The question is whether he’s fit.”

The trial court’s comments make clear that what it believed to be the dispositive questions required a determination of whether defendant was “able to understand the nature and puirposes of the proceedings against him, and that he is able to assist in his defense.”

As we have tried to make clear, amnesia is sufficient, by itself, to render a defendant unfit for trial if that amnesia prevents the defendant from assisting in his own defense. Amnesia does not automatically render a defendant unable to assist in their defense, but rather the defendant must prove how amnesia prevents them from assisting in their defense. In this case, it appears defendant is arguing his amnesia prevents him from providing information to his attorney that could form the basis of a defense to the

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¶ 46 The defense elicited expert testimony concerning defendant’s extensive physical injuries

and that as a result defendant suffered anoxic brain injury. A defense expert also testified that

defendant’s report of amnesia of the events is consistent with anoxic brain injury, and that it is

common not to regain memory of the time surrounding a trauma with anoxic brain injury. A

defense expert testified that defendant had a verified case of retrograde amnesia. There is no

known treatment to restore lost memory. Another defense expert in the field of memory and

cognition testified that he had never heard a claim that someone with retrograde amnesia could

have their memory reconstructed with second-hand accounts of events. If someone with

retrograde amnesia learned about events from other people, that would not be a true

“autobiographical” memory.

¶ 47 The defense called Professor Herschella Conyers to testify. Professor Conyers is a

licensed attorney and clinical professor of law and the University of Chicago Law School.

Professor Conyers agreed that the defense had hired her to review documentation in this case and

to “provide your expert insight into the type of assistance you would need from a client or an

attorney would need from a client in a case like this.” Professor Conyers testified that it is not

enough to just know the allegations in the documents provided by the prosecution and that

ethically an attorney cannot take the documents “as necessarily true and accurate.” Professor

Conyers testified this is because the attorney is ethically bound to represent their client to the

best of their ability and in Professor Conyers’ opinion it would be “unethical for me to without

further inspection and without further investigation to take opposing counsel’s word for it.”

offense and, probably most importantly, there is no other source for that information because the only people who could provide it are deceased.

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Professor Conyers testified that to prepare a defense an attorney must find and interview

witnesses, visit the scene of the offense, become familiar with any medical or expert evidence,

find your own expert, “and you need to talk with your client.”

¶ 48 Professor Conyers testified that the documentation may provide an accurate account of a

defendant’s conduct but that a defense attorney’s investigation can still reveal “other important

evidence that may provide a partial or full defense.” That could occur when the documentation

says the defendant shot someone and they actually did, but the defense attorney would need to

talk to their client to determine why, to determine what the client “was thinking at the time that

he shot the other person.” Professor Conyers testified “there are things that can in fact exonerate,

not make the client guilty of the charged conduct.” Professor Conyers testified that just saying a

person did this “does not say that they’re guilty or innocent.”

¶ 49 Professor Conyers described the type of assistance in general that is sought from the

defendant. Professor Conyers testified the attorney seeks “as much information as humanly

possible” specifically “their telling of what the event was.” The defendant may identify

witnesses. The attorney wants “to know from the client what the client was thinking, what the

client knew at the time that an event occurred, how the client obtained the knowledge that he had

or she had about an event, and again are there other people *** can their conduct be explained in

non-criminal ways.” There may also be physical evidence that affirms or denies what the

defendant says. Professor Conyers also testified that the amount and type of assistance needed

from a client depends on the specific charges in the case.

¶ 50 The type of assistance needed in a felony murder case, as is this case, is different from

other types of murder and other crimes. Felony murder only requires proof the defendant

intended to commit the underlying offense. In a felony murder case the defense attorney needs to

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know “what in fact the client knew about not only the murder aspect but about the underlying

felony. *** If the client knows nothing about the underlying felony, then your decision may as

well be different in deciding how to advise the client, again what other evidence or witnesses you

would need to corroborate what the client was saying. *** [I]t varies and it depends very much

on the specific facts of a specific case.” In this case, defendant was charged with felony murder

and based on Professor Conyers’ review of the records “you have to expand your investigation of

this and it starts definitely with being able to get from your client specifics about what he or she

knew, who else could corroborate that,” and testing that information “to make a coherent rational

picture available to the trier of fact about exactly what happened in any given circumstance and

then be able to make a reliable determination about responsibility.”

¶ 51 Professor Conyers also testified that in a case charging the defendant with accountability

for the actions of another, the type and amount of assistance needed from the defendant changes.

In those cases, “what I need from a client *** is what the client knew, what the client believed

was going to happen, what the client agreed to do and or not do and what the client’s ***

imputed investment is, and it’s critical that what comes out is *** if that exists because

accountability is something more than just being there.” Professor Conyers responded to a

hypothetical in which the client is with a person who shoots someone. In that instance, the

client’s conduct does not give much information about “what was going on with them and

whether they were guilty of a crime.”

¶ 52 Professor Conyers testified there would be more probing involved. In that type of case

described in the hypothetical the defense attorney would need to talk to the client “extensively”

to try to find out what the client was doing there, what the client knew about the shooter, how the

client knew it, and what was the basis for that and what the client knew about the victim; and

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“anything about his own state of mind that day.” If in the hypothetical presented the client had no

memory of the event there were “certain other parts of evidence that [the attorney] would try to

fall back on to try and fill in that lack of assistance” from the defendant. Professor Conyers

testified the defense attorney should “explore all possible avenues until they are exhausted”

including talking to other witnesses who may be able to testify to what the defendant in that

situation heard.

¶ 53 Professor Conyers testified specifically with regard to this case that the fact defendant

could not tell his attorney “who said what” just before the shooting was a key component to

preparing a meaningful defense because the defense is, “based on what he’s charged with, what

he saw, what he knew, what he observed and what he knew and how he knew it” to “allow

counsel to figure out legitimate potential defenses.” If defendant cannot provide that information,

in another case the attorney would try to get that information from other people who heard the

confrontation in this case but that is not available here because the people who heard the words

and saw the confrontation with the victim are both deceased. It may also be useful to know what

defendant and the deceased offender did earlier in the day in this case but there was nothing in

what Professor Conyers reviewed “that says there was a witness who knew when they had come

together.”

¶ 54 Professor Conyers testified that defendant’s testimony is very important in this case

because, “if there is information [that] can only come from the client then it becomes necessary

and it is critical then for the client to be able to assist you in preparing that defense” by testifying

on their own behalf. The defendant cannot repeat on the witness stand what someone else told

them; the defendant can only testify that “this is what somebody told me happened.”

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¶ 55 Professor Conyers opined that if defendant in this case cannot remember the events of

that day, the “short answer” to the question of whether he would be able to assist his attorney in

preparing a defense in this case is, “No.” That conclusion is not “just a function of his amnesia”

but is because of that and the other factors including the way the crime is charged and the state of

the evidence taken together that “would make him unable to assist in his defense.”

¶ 56 On cross-examination, Professor Conyers agreed that it is not necessarily true that

objective witnesses exist in a given case, and possibly the witness the defense wants “doesn’t

even exist.” Professor Conyers also agreed that what people are thinking can relate to their

intent, and intent “can be formed in an instant,” does not “need a lot of preplanning at all,” and

“can be determined by actions.” However, Professor Conyers added that, “that’s when this

case[,] because as I reviewed the documents [defendant’s] only action was standing there, so that

it—he needed to be able to explain or offer some insight into why and standing there is not

sufficient to assume [the] intent necessary.” Professor Conyers agreed that “when you review the

documents in the case and know the evidence, that’s when you determine what possible defenses

that you can put forth to the evidence that the prosecution has in the case.” Professor Conyers

agreed there may be other witnesses other than defendant with answers to the defense attorney’s

questions; however, she added that “those persons listed in the police report you need to explore

further but *** the police report itself may not capture the full universe of potential witnesses

that your client may need and may be the one to know about.”

¶ 57 Professor Conyers testified that “what a client knows or intended at the time of the

offense, and what the client—and only a client knows about who can or cannot corroborate

that[,] became integral to providing a defense.” Later, when asked whether the defense can only

use viable defenses against the evidence that is in the case, Professor Conyers testified on cross

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that, “I think you can only try a case with the evidence that’s there and that’s what the problem is

there is evidence that one would want to have and does not because of the amnesia.”

¶ 58 In response to questioning about defending a client without memory of the event or who

was merely uncooperative, Professor Conyers did say that was possible but testified that “it

depends on the *** nature of each individual case ***. *** [T]here are cases that require the

client’s input more than other cases.” There may or may not be other sources of the information

an attorney would need to defend this case. Professor Conyers stated that every case has

limitations on the evidence that is available. On redirect Professor Conyers testified that in the

police reports she reviewed no one said what the words were between defendant and the victim

when they encountered each other on the street. Professor Conyers testified that there are gaps in

the evidence that “in a normal case your client would fill in for you.”

¶ 59 In closing argument, as it pertains to this appeal, the State began by stating that amnesia

alone as to the events does not by itself render a person unfit to stand trial but should be

considered together with all the other evidence. The State described this as the central issue in

this case, “whether the defendant’s *** amnesia in 2015 rendered him unfit to stand trial.” The

State told the jury (without objection) “the law answers that question for you” and repeated that,

“Amnesia alone as to the events surrounding the crime does not by itself render a person unfit to

stand trial.” The State argued (over defense objection) that the phrase “does not by itself” “means

that there has to be something in addition to the amnesia to find that the defendant was unfit,

something in addition like a psychological issue. [A] further medical issue, a cognitive defect,

something else in addition to the amnesia.” The State argued that for defendant, “[t]here was

nothing else.”

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¶ 60 The State argued that the ongoing issues defendant suffered from manifested in a

physical manner, such as tremors and nerve pain. The State argued that in 2015 defendant could

learn and retain new information, understand court proceedings, and participate in discussions

with his attorney and make rational and informed decisions. The State then said, “it bears

repeating. The law says amnesia alone as to the events surrounding the crime does not by itself

render a person unfit to stand trial but should be considered by you together with all of the other

evidence.”

¶ 61 The State argued that whether the defendant can assist in his defense does not “begin and

end with whether [the defendant] can tell [their] lawyer what happened.” The State conceded

defendant “is not able to relate the events surrounding the incidents that he is charged with,” but

argued defendant has demonstrated his competencies for other considerations given to the

question of whether he can assist in his defense. Specifically, the State argued that defendant

could observe, recollect, and relate new information as it related to the evidence and

communicate with his attorney. The State argued defendant could do these things “outside of his

amnesia, which by itself does not render someone unfit to assist counsel in his defense.” The

State noted evidence that defendant was oriented to time and place and could understand and

interpret evidence and strategize with his lawyer and argued that “these are instructive for you

when you’re determining whether or not the defendant had the ability to assist counsel in his

defense.” The State concluded it could not “over state this enough” that “other than those

physical, those lingering issues physically *** the only thing that [defendant] was left with was

that amnesia, that alone does not render a person unfit to stand trial.”

¶ 62 In rebuttal the State asserted that in 2015 defendant “had no cognitive issue ***. He has

no mental health issues.” The State argued that in 2015 defendant only had physical symptoms

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related to anoxic brain injury. The State again argued that defendant can learn and retain new

information and argued that the events of the crime are being reconstructed to defendant from

“collateral sources that was given to him by possibly his lawyer” and “the contents in the police

report” because he is claiming amnesia. The State argued the jury was not there to determine

whether defendant has amnesia because amnesia alone is not enough for unfitness. The State

argued that whether or not defendant has amnesia, “He is still fit to stand trial because he can

learn and retain new information, create new memories from sources other than his memories.”

¶ 63 The State claimed that Dr. Neu was an “expert in fitness to stand trial.” The State argued

defendant had “no cognitive defects that would impact and no psychological problems that

would impact his fitness to stand trial.” The State again argued that defendant was fit because

defendant can communicate with counsel about the evidence and the strategy to defend the case.

“He can go through a trial, *** knows what is going on, not on any ongoing amnesia.” The State

argued it is not required to prove defendant can meaningfully assist in his defense or that

defendant must have a “meaningful defense.” Rather, “It’s just a defense.” The State argued that

defendant’s memory is not the only source of viable defenses to this case. The State implied the

trier of fact did not need to know what if anything defendant said because “the intention is there”

from Brian Floyd pointing a gun at the victim. The State asserted, “There is nothing that

defendant’s lawyers can’t do just because defendant has amnesia.” The State argued defense

counsel could put together viable defenses, cross-examine witnesses, and locate witnesses

without defendant’s help. The State argued, “There is nothing because of the fact that if

[defendant] has amnesia his memory is not the only source to defend the crime charged, and if he

did have amnesia he could assist counsel in his defense for the times that he did not have

amnesia.”

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¶ 64 The State argued that “[n]o evidence of amnesia would impair his ability to defend

himself” because a lawyer can “craft viable defenses” and try the case based on the evidence the

State presents. The State argued that defendant “is able to assist in his defense except maybe for

that one amnesiac period that he couldn’t testify to his version of events, and who is to say his

version of events is the right version? It presumes that he has some type of innocent explanation

about it.” Again, the State argued that amnesia alone does not render a defendant unfit to stand

trial but amnesia was but “one little *** part of the equation.”

¶ 65 The defense argued that due to his amnesia defendant could not assist with his defense to

felony murder and accountability given the facts of this case including that the eyewitnesses with

pertinent information were killed.

¶ 66 On the State’s motion and over the defense’s objection the trial court gave the jury a non-

pattern jury instruction on the issue of fitness that stated amnesia alone does not render a

defendant unfit. The trial court stated that it believed the nonpattern instruction was consistent

with People v. Stahl and our earlier order in this case and that the instruction “accurately and

adequately describes the law.” The trial court gave the following instructions relevant to this

appeal:

“A person is unfit to stand trial, if, because of a mental or physical

condition

he is unable to understand the nature and purpose of the proceedings

against him;

or

he is unable to assist in his defense.

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To establish that the defendant is fit to stand trial, the State must prove the

following propositions:

First: That the defendant is able to understand the nature and purpose of

the proceedings against him; and

Second: That the defendant is able to assist in his defense.

***

Matters on the issue of defendant’s fitness include, but are not limited to,

the following:

The defendant’s knowledge and understanding of the charge, the

proceedings, the consequences of a plea, judgment or sentence, and the functions

of the participants in the trial process;

The defendant’s ability to observe, recollect and relate occurrences,

especially those concerning the incidents alleged, and to communicate with

counsel;

The defendant’s social behavior and abilities; orientation as to time and

place; recognition of persons, places and things; and performance of motor

processes.

Amnesia alone as to events surrounding the crime does not by itself render

a person unfit to stand trial but should be considered by you together with all the

other evidence.”

¶ 67 The jury returned a verdict finding retroactively defendant was fit to stand to stand trial.

¶ 68 This appeal followed.

¶ 69 ANALYSIS

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¶ 70 This is an appeal after remand for a second fitness trial after the first trial resulted in the

jury finding retroactively that defendant was fit to stand trial but where the trial court’s

instructions to the jury failed to identify a relevant factor in the fitness determination and, as a

result, misled the jury and failed to correctly state the applicable law. A defendant’s fitness to

stand trial is a question of fact. See People v. Stillman, 61 Ill. App. 3d 446, 451 (1978). “A

reviewing court should not substitute its judgment for that of the jury on a question of fact unless

the jury’s verdict is against the manifest weight of the evidence.” Doser v. Savage

Manufacturing & Sales, Inc., 142 Ill. 2d 176, 199 (1990), Joel R. by Salazar v. Board of

Education of Mannheim School District 83, Cook County, Illinois, 292 Ill. App. 3d 607, 613

(1997) (“Questions of fact, whether determined by a jury or by the circuit court in a nonjury

case, are reviewed under the deferential, manifest weight of the evidence standard.”).

“A finding of fact or verdict is against the manifest weight of the evidence

where, upon review of all the evidence in the light most favorable to the

prevailing party, an opposite conclusion is clearly apparent or the fact-finder’s

finding is palpably erroneous and wholly unwarranted, is clearly the result of

passion or prejudice, or appears to be arbitrary and unsubstantiated by the

evidence.” Joel R. by Salazar, 292 Ill. App. 3d at 613.

¶ 71 However, if this court determines that the jury’s verdict resulted from an erroneous jury

instruction reversal is warranted if “the erroneous instruction clearly misled the jury and resulted

in prejudice to the appellant.” Pearson v. DaimlerChrysler Corp., 349 Ill. App. 3d 688, 696

(2004).

¶ 72 Defendant raises several arguments on appeal from the jury’s verdict finding that

defendant was fit for trial in 2015. The issue that we find dispositive of this appeal is whether the

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trial court erroneously instructed the jury that amnesia alone was an insufficient basis on which

to find defendant unfit. For the following reasons, we find the trial court did err in its instructions

to the jury. The trial court’s instructions misled the jury as to how to apply the fitness standard

and resulted in prejudice to defendant. Pearson, 349 Ill. App. 3d at 696. We find that the

argument raises an issue of plain error; therefore, we review the error despite defense counsel’s

failure to preserve the error. See People v. Ulloa, 2015 IL App (1st) 131632, ¶ 25 (“The

misstatement of the applicable law *** is a grave error, affecting the fundamental fairness of the

trial and the integrity of the judicial process.”). We remand with instructions for another fitness

trial. Because of this finding we have no need to address defendant’s remaining arguments on

appeal. Goral v. Dart, 2020 IL 125085, ¶ 76 (“reviewing courts ordinarily will not consider

issues that are not critical to the disposition of the case presented or where the result will not be

affected regardless of how the issues are decided”). However, we will address any remaining

issues only to the extent questions may arise on remand.

¶ 73 Turning to the issue of the instructions to the jury, we begin with the principles applicable

to the fitness determination specifically and the principles applicable to jury instructions

generally. Whether a defendant is fit to stand trial is governed by statute. See 725 ILCS 5/104-1

through 5/104-31 (West 2014). In Illinois a defendant is presumed fit to stand trial. 725 ILCS

5/104-10 (West 2014). A defendant is not fit to stand trial “if, because of his mental or physical

condition, he is unable to understand the nature and purpose of the proceedings against him or to

assist in his defense.” Id. The fitness statute provides that:

“matters admissible on the issue of the defendant’s fitness include, but are not

limited to, the following:

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(1) The defendant’s knowledge and understanding of the charge, the proceedings,

the consequences of a plea, judgment or sentence, and the functions of the

(2) The defendant’s ability to observe, recollect and relate occurrences, especially

those concerning the incidents alleged, and to communicate with counsel;

(3) The defendant’s social behavior and abilities; orientation as to time and place;

recognition of persons, places and things; and performance of motor processes.”

725 ILCS 5/104-16(b) (West 2014).

¶ 74 Generally, “[l]itigants are entitled to have the jury instructed on the issues presented, the

applicable legal principles, and the facts that must be proved to support a verdict. [Citation.] The

trial court has discretion to determine which instructions to give the jury, and that determination

will not be disturbed absent an abuse of that discretion.” Martin v. City of Chicago, 2023 IL App

(1st) 221116, ¶ 18. “[T]he trial court must instruct the jury with an IPI Criminal instruction

unless the court determines that it does not accurately state the law.” People v. Sito, 2013 IL App

(1st) 110707, ¶ 26 (citing Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013); People v. Hudson, 222 Ill. 2d

392, 399-400 (2006)). “The trial court, in its discretion, may give a non-IPI instruction when the

pattern instructions do not adequately state the law.” People v. Eddington, 117 Ill. App. 3d 953,

962 (1983). The standard for deciding whether a trial court abused its discretion is whether,

taken as a whole, the instructions fairly, fully, and comprehensively apprised the jury of the

relevant legal principles. Martin, 2023 IL App (1st) 221116, ¶ 18. “When the question is whether

the applicable law was conveyed accurately *** the issue is a question of law, and our standard

of review is de novo.” Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 13.

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¶ 75 Our supreme court construed the law applicable to the fitness determination in People v.

Stahl, 2014 IL 115804, and this court provided its interpretation of Stahl in defendant’s appeal

from his original fitness trial. Floyd, 2019 IL App (1st) 160406-U. The parties did not file a

petition for leave to appeal to our supreme court from this court’s earlier order in this case; thus,

our order in Floyd, 2019 IL App (1st) 160406-U became the law of the case binding on any

further proceedings. Hamilton v. Faulkner, 96 Ill. App. 2d 415, 418 (1968) (“the judgment of

this court is the final disposition of the case on the issues decided in the first appeal, absent a

petition for rehearing or a petition for leave to appeal to the Supreme Court”), Harris Trust &

Savings Bank v. Otis Elevator Co., 297 Ill. App. 3d 383, 388 (1998) (in the absence of an order

granting rehearing in this court or leave to appeal to our supreme court, “our decision becomes

the law of the case, and binds the parties and the trial court in any subsequent proceeding on

remand”).

¶ 76 We recognized that in Stahl, just as it was in this case, “the primary issue was ‘whether,

under article 104 of the Code [of Criminal Procedure, the] defendant’s amnesia as to the events

surrounding the crime alone renders him per se unfit to stand trial.’ Stahl, 2014 IL 115804, ¶

25.” Floyd, 2019 IL App (1st) 160406-U, ¶ 44. We observed that our supreme court rejected the

appellate court’s suggestion that “ ‘amnesia as to the events surrounding the crime will always

render a defendant until to stand trial ***.’ Stahl, 2014 IL 115804, ¶ 34.” Id. ¶ 49. Thus, we

concluded that “our supreme court directs that amnesia of the alleged offense will not always

render a defendant unfit to stand trial. Stahl, 2014 IL 115804, ¶¶ 34, 30.” (Emphasis in original.)

Id. ¶ 50. However, in the very next sentence, we also noted that “our supreme court did not hold

that amnesia, alone, will never render a defendant unfit for trial.” (Emphases added.) Id.

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¶ 77 In the first appeal, we went on to find that under Stahl, amnesia of the offense is relevant

to a defendant’s ability to assist in his or her own defense. Id. ¶ 50 (citing Stahl, 2014 IL 115804,

¶ 38). We wrote that “[o]ur supreme court concluded there were ‘a number of factors * * * that

should be considered on the issue of fitness’ including the defendant’s ‘inability to communicate

with counsel because he cannot recollect his actions and mens rea surrounding the incident.’

[Citation.]” Id. ¶ 50 (quoting Stahl, 2014 IL 115804, ¶ 39). We concluded, and perhaps

engendered some confusion, that “ ‘under article 104 of the Code, amnesia as to the events

surrounding the crime does not per se render a defendant unfit to stand trial. Rather, the fact that

a defendant cannot recollect the incident at issue is just one of the circumstances that may be

considered in determining a defendant’s fitness.’ [Citation.]” Id.

¶ 78 We believe it is clear that we interpreted Stahl to mean that amnesia by itself does not

always render a defendant unfit for trial, but it could, by itself, render a defendant unfit for trial

if, because of the amnesia, the defendant is unable to assist in their own defense. Id. ¶ 50 (citing

Stahl, 2014 IL 115804, ¶ 38) (“We note that our supreme court did not hold that amnesia, alone,

will never render a defendant unfit for trial.”). A defendant might be unable to assist in their own

defense if, for example:

“(1) defendant could not tell counsel his version of the events or what his state of

mind was at the time, information that is critical to understanding what defenses

might be available; (2) he could not meaningfully testify in his own defense

because he could not remember the events at issue; and (3) he could not even

intelligently decide how to plead because he did not know whether he committed

any of the acts charged.” Stahl, 2014 IL 115804, ¶ 38.

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Our supreme court found these factors to be among “a number of factors,” including defendant’s

inability to recollect his mens rea surrounding the incident, “that should be considered on the

issue of fitness.” Stahl, 2014 IL 115804, ¶ 39. Yet on remand the trial court in this case

instructed the jury that “[a]mnesia alone *** does not by itself render a person unfit to stand

trial” (emphasis added), which we find functionally equivalent to instructing the jury that

“amnesia, alone, [will never] render a defendant unfit for trial,” where we find that in this context

“does not” has the same effective meaning as “will never.”

¶ 79 When we determine whether the trial court’s jury instruction fairly, fully, and

comprehensively apprised the jury of the relevant legal principles (Martin, 2023 IL App (1st)

221116, ¶ 18), we look at the instructions as a whole. Schultz v. Northeast Illinois Regional

Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002) (“The standard for deciding whether a trial

court abused its discretion is whether, taken as a whole, the instructions fairly, fully, and

comprehensively apprised the jury of the relevant legal principles.”). Furthermore, the proper test

of a jury instruction is “not what meaning the ingenuity of counsel can at leisure attribute to the

instructions, but how and in what sense, under the evidence before them and the circumstances

of the trial, ordinary [people] acting as jurors will understand the instructions.” Reivitz v.

Chicago Rapid Transit Co., 327 Ill. 207, 213 (1927). In this case, the jury was instructed both

that:

“A person is unfit to stand trial, if, because of a mental or physical condition

he is unable to understand the nature and purpose of the proceedings

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Amnesia alone as to events surrounding the crime does not by itself render

a person unfit to stand trial but should be considered by you together with all the

¶ 80 These instructions in combination prevented the jury from fairly determining whether,

because of defendant’s amnesia, he was unable to assist in his own defense in the manner

testified to by defendant’s expert because the only “mental or physical condition” at issue was

amnesia, and the jury was instructed that amnesia, alone, is not enough to render a defendant

unfit. Although the jury heard evidence of defendant’s physical injuries and anoxic brain injury

and defendant’s current mental state, all of the evidence pointed back to defendant’s amnesia as

the condition that allegedly made him unfit for trial. The instruction erroneously reinforced the

State’s theme presented through its witnesses and made in its closing argument that defendant

was fit for trial because his only mental or physical condition was amnesia of the offense and

amnesia alone does not render a defendant unfit. The trial court’s instruction effectively negated

evidence about the impact of amnesia on defendant’s ability to assist in his own defense—

evidence that our supreme court deemed relevant in Stahl. See Stahl, 2014 IL 115804, ¶¶ 38-39.

¶ 81 “If the court fails to properly instruct on any of [the] key issues [in the case,] the

defendant’s right to a fair trial is seriously in doubt. [Citation.] The giving of contradictory

instructions on an essential element of the case is prejudicial error and will not be cured by the

fact that another instruction is correct.” People v. Johnson, 254 Ill. App. 3d 74, 79 (1993) (citing

People v. Jenkins, 69 Ill. 2d 61, 66 (1977)). See also Floyd, 2019 IL App (1st) 160406-U, ¶ 43

(“In determining whether a party has been prejudiced, we consider whether the instructions,

taken as a whole, were sufficiently clear so as not to mislead the jury. [Citation.] * * * [T]here

must be a reasonable basis supporting the conclusion that, but for the error, the verdict might

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have been different. [Citation.]”). The erroneous instruction misled the jury as to how to consider

the evidence. The erroneous instruction prevented the jury from properly considering relevant

evidence. We find that the instruction prejudiced defendant. Id.

¶ 82 The fitness standard is determined by the fitness statute. “A defendant is unfit if, because

of his mental or physical condition, he is unable to understand the nature and purpose of the

proceedings against him or to assist in his defense.” 725 ILCS 5/104-10 (West 2014). The only

issue in this case is defendant’s ability to assist in his defense. That jury must answer that

question in the factual context of this case based on relevant evidence.

“(b) Subject to the rules of evidence, matters admissible on the issue of the

defendant’s fitness include, but are not limited to, the following:

(1) The defendant’s knowledge and understanding of the charge, the proceedings,

the consequences of a plea, judgment or sentence, and the functions of the

(2) The defendant’s ability to observe, recollect and relate occurrences, especially

those concerning the incidents alleged, and to communicate with counsel;

(3) The defendant’s social behavior and abilities; orientation as to time and place;

recognition of persons, places and things; and performance of motor processes.”

(Emphasis added.) 725 ILCS 5/104-16 (West 2014).

¶ 83 Under Stahl, amnesia alone may be a basis for unfitness if the amnesia prevents the

defendant from assisting in their own defense. The jury must make that determination based on

all of the admissible evidence presented at the fitness trial. Id. Amnesia alone may prevent a

defendant from assisting in his own defense if, for example, defendant’s ability to “recollect and

relate occurrences *** concerning the incidents alleged” based on the ability to learn and retain

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information from just reading police reports is not enough to assist in his own defense or if,

given the specific facts of the case, knowledge that only could come from defendant’s memory is

needed to sufficiently relate occurrences concerning the incidents alleged to assist in the defense.

Compare People v. Schwartz, 135 Ill. App. 3d 629, 640 (1985) (“Under these particular

circumstances, we find that defendant was able to fully develop and effectively present his

insanity defense before the jury. Nothing in the record suggests that defendant’s own testimony

was necessary to bolster his already well-supported theory of defense.”). The trial court’s

instructions as a whole misled the jury as to whether it could ever reach this question.

¶ 84 The error in instructing the jury requires remand for a new fitness trial. On remand, any

testimony or argument mischaracterizing the law to be that amnesia is categorically not a basis

for a finding of unfitness is improper and should be excluded.

¶ 85 When we previously found an instructional error we remanded this case for a retroactive

fitness trial. Floyd, 2019 IL App (1st) 160406-U, ¶ 62. We believe that is the proper remedy in

this case, but first we must briefly address defendant’s motion for a directed verdict. “It is well

established that a verdict of competency may be directed in a proper case.” People v. Speck, 41

Ill. 2d 177, 205 (1968), reversed on other grounds, Speck v. Illinois, 403 U.S. 946 (1971).

“The ultimate test as to whether a trial judge should direct a verdict is

found in Pedrick v. Peoria and Eastern Railroad Co., 37 Ill. 2d 494, 510, as

follows:

‘In our judgment verdicts ought to be directed *** only in those cases in

which all the evidence, when viewed in its aspect most favorable to the opponent,

so overwhelmingly favors movant that no contrary verdict based on that evidence

could ever stand.’ ” Speck, 41 Ill. 2d at 205.

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Accord People v. Miller, 393 Ill. App. 3d 1060, 1063 (2009) (“The standard for a directed

finding requires the court to take the evidence in the light most favorable to the nonmoving party

and to determine if that party could be deemed to have met its burden of proof.”). “Motions for

directed verdicts and motions for judgment n.o.v. present questions of law, and therefore, our

review is de novo.” Claffey v. Huntley, 2021 IL App (1st) 191938, ¶ 13.

¶ 86 Defendant argues the State’s expert “offered no opinion about whether [defendant’s]

brain injury precluded him from assisting in his defense.” Defendant claims the State’s expert

“acknowledged that his opinion regarding [defendant’s] fitness was limited to the undisputed

question of whether [defendant] was psychologically fit” (emphasis omitted) in that the State’s

expert opined defendant did not suffer from mental illness or cognitive defects. Defendant also

complains the State failed to present evidence from a legal expert regarding whether defendant’s

amnesia would have impacted defendant’s ability to assist in his own defense by assisting

counsel’s determination of what defenses might have been available, by impeding his ability to

testify, or by impeding his ability to knowingly plead. Defendant asks this court to review the

denial of his motion for a directed verdict for plain error.

¶ 87 The State responds its expert “established that defendant had the ability to learn, retain,

and process new information, make rational choices, and work with his attorney, which

established that [defendant] could assist in his defense, even if he could not remember the

shooting.” The State asserts its expert testified that he did consider defendant’s amnesia as part

of his evaluation. The State argues that as a board-certified forensic psychologist its expert could

opine as to “a legal topic that has a psychological component” such as fitness to stand trial.

¶ 88 We find that the trial court did not err in denying defendant’s motion for a directed

verdict.

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“The standard for a directed verdict *** is high and not appropriate if

reasonable minds might differ as to inferences or conclusions to be drawn from

the facts presented. [Citations.] In ruling on these motions, a court does not weigh

evidence nor consider credibility of witnesses; rather, the court only considers the

evidence and any inferences therefrom in the light most favorable to the

nonmoving party. [Citation.] Judgment should not be entered on either motion

when there is any evidence, together with reasonable inferences to be drawn

therefrom, demonstrating a substantial factual dispute, or where the assessment of

credibility of the witnesses or the determination regarding conflicting evidence is

decisive to the outcome. [Citation.]” (Internal quotation marks omitted.) Claffey,

2021 IL App (1st) 191938, ¶ 13.

¶ 89 Here, the State did present some evidence that defendant could assist in his own defense

using information gained about the offense from outside sources. Defendant, on the other hand,

presented expert testimony as to all the reasons that may not be true in this case, including the

fact that certain information crucial to a defense may only be available from defendant. It would

have been up to the jury to weigh these conflicting opinions. Our holding is that the erroneous

instruction foreclosed even the consideration of those conflicting opinions because the only

physical or mental condition weighing on fitness was defendant’s amnesia, and the trial court

erroneously instructed the jury that amnesia alone is not a sufficient mental condition on which

to base a finding of unfitness. Under Stahl, amnesia alone does not always preclude a defendant

from assisting in their own defense, but it can. If properly instructed the jury would have been

required to weigh conflicting evidence. Therefore, the trial court properly denied the motion for a

directed verdict at the close of the State’s case. Id.

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¶ 90 In this appeal from the retrospective fitness trial defendant also argued that the judgment

that defendant was fit to stand trial is against the manifest weight of the evidence; the State’s

expert misrepresented the fitness standard or, alternatively, the State’s expert’s opinion should

have been subject to a determination of whether the expert’s opinion was generally accepted in

the relevant scientific community; the trial court should have declared a mistrial when the

prosecutor “told the jury the evidence at the murder trial established that defendant possessed a

gun” and improperly argued that defendant had the specific intent for felony murder; and the

State’s closing argument misstated the fitness standard, diminished the State’s burden of proof,

and misrepresented the defense evidence. “[C]ourts should refrain from deciding an issue when

resolution of the issue will have no effect on the disposition of the appeal presently before the

court. [Citation.]” People v. Smith, 2023 IL App (1st) 181070, ¶ 30.

¶ 91 We decline to address defendant’s argument that the finding of fitness is against the

manifest weight of the evidence. As we previously stated, our holding that the trial court

committed instructional error means that the jury never properly considered the evidence. People

v. Johnson, 2021 IL App (1st) 190567, ¶ 30 (“We hold that the [second-prong] plain error the

trial court committed by failing to correctly instruct the jury on the limited use of evidence for

the crime of witness tampering is so misleading and prejudicial that it requires reversal and

remand for a new trial.”). We will not find that a judgment is against the manifest weight of the

evidence where the judgment is not based on a proper consideration of the evidence. A new

fitness trial is required. Id.

¶ 92 “It is well settled that Illinois courts cannot *** render an advisory opinion, or give legal

advice as to future events.” In re Luis R., 239 Ill. 2d 295, 306 (2010). See also 48A C.J.S. Judges

§ 154 (“In exercising judicial power, a judge may not give an advisory opinion on any subject,

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and it is not a judge’s responsibility to give legal advice to a party to the proceeding.”). Because

we remand for a new fitness trial we must decline to make any determination as to whether the

State’s evidence or arguments misstated the fitness standard because to do so may amount to

unintended “advice” on the future trial. We have provided clear instruction on the meaning of

Stahl as it relates to the fitness standard. We will not presume that the State will violate our order

that further proceedings conform to this order. Passing judgment on the State’s prior conduct,

whether to affirm it or decry it, will have no impact on this decision and may amount to “advice”

to the State. Therefore, we expressly make no determination on those issues.

¶ 93 “We may, however, address additional issues that are likely to recur on remand to

provide guidance to the lower court and expedite the ultimate termination of the litigation.”

(Internal quotation marks omitted.) Smith, 2023 IL App (1st) 181070, ¶ 30. With that in mind,

we first briefly address defendant’s argument that Dr. Neu’s testimony should have been

subjected to a Frye hearing.

“The purpose of the Frye test is to exclude new or novel scientific

evidence that undeservedly creates a perception of certainty when the basis for the

evidence or opinion is actually invalid. [Citation.] *** We review de novo a trial

court’s determination of whether a Frye hearing is necessary and whether there is

general acceptance in the relevant scientific community.” (Internal quotation

marks omitted.) In re Detention of New, 2014 IL 116306, ¶ 26.

“Initially, we must consider whether [the] expert testimony *** is the type of scientific

evidence subject to the screening function served by the Frye test.” Id. ¶ 28. “Although

not always easy to identify, we have held that generally, scientific evidence is new or

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novel if it is “original or striking” or does “not resembl[e] something formerly known.”

(Internal quotation marks omitted.) Id. ¶ 34.

“If an expert’s opinion is derived solely from his or her observations and

experiences, the opinion is generally not considered scientific evidence.

[Citation.] On the other hand, if the expert’s opinion is derived from a particular

scientific methodology, such as the application of scientific principles or the use

of other literature or studies, then the opinion is generally considered scientific.”

In re Marriage of Alexander, 368 Ill. App. 3d 192, 197 (2006).

¶ 94 Defendant argues there is no evidence that the relevant scientific community generally

accepts Dr. Neu’s opinion “that a defendant’s ability to assist counsel in his defense can be

determined by assessing his ability to learn, retain, and discuss new information from extrinsic

sources.” Defendant also argues that its own expert testified that he had never heard an expert

claim that a person can have their memory reconstructed from extrinsic sources. Dr. Neu’s

testimony was not “original or striking” scientific evidence that did not “resembl[e] something

formerly known.” In re Detention of New, 2014 IL 116306, ¶ 34. He merely testified defendant

can learn new things and in doing so assist his defense attorney. This is not new or novel of

amnesiacs. See Schwartz, 135 Ill. App. 3d at 639-40. Furthermore, defendant’s complaint is with

Dr. Neu’s conclusion that defendant is fit based on certain facts, not with how he determined

those facts through the use of “a particular scientific methodology, such as the application of

scientific principles or the use of other literature or studies.” In re Marriage of Alexander, 368

Ill. App. 3d at 197. Dr. Neu’s opinion was “derived solely from his *** observations and

experiences,” Id.

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¶ 95 We also find that Dr. Neu’s opinion is not “new” or “novel” because it is consistent with

the statute. As once stated by the trial court, “the issue is fitness,” the standard for which is

governed by statute as stated above. The fitness statute provides a non-exhaustive list of matters

admissible on the issue of the defendant’s fitness that includes both the defendant’s ability to

recollect and relate occurrences concerning the incident alleged and the defendant’s knowledge

and understanding of the proceedings. 725 ILCS 5/104-16 (West 2014). Defendant’s ability to

learn, retain and discuss new information relates to defendant’s ability to understand the

proceedings and to defendant’s ability to communicate with his attorney and assist with a

defense that is available despite the defendant’s amnesia, and therefore is relevant to the fitness

determination. See Schwartz, 135 Ill. App. 3d at 640.

¶ 96 We note that based in part on the State’s cross-examination of the defense’s legal expert

the State argued there were defenses available in spite of defendant’s amnesia. Defendant has not

provided any authority that the State must provide evidence as to every matter listed in the

statute. It was for the trier of fact to weigh the conflicting evidence as to whether defendant was

“fit.” 725 ILCS 5/104-12 (West 2014) (“The defense or the State may demand a jury or the court

on its own motion may order a jury.”). The fact the State may have failed to elicit any testimony

on an available point of consideration in the fitness determination goes to the weight of the

State’s evidence (but not its admissibility or sufficiency). 725 ILCS 5/104-16 (West 2014) (“On

the basis of the evidence before it, the court or jury shall determine whether the defendant is fit to

stand trial.” (Emphasis added.)). Based on the record before us, a Frye hearing was not required.

¶ 97 We also find, for purposes of proceedings on remand, that the law is clear that defendant

is entitled to a “meaningful” defense. A bona fide doubt of a defendant’s fitness to stand trial

necessitates a hearing. People v. Hanson, 212 Ill. 2d 212, 216 (2004) (citing 725 ILCS 5/104-

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11(a) (West 2014)). “A bona fide doubt exists when the facts raise a real, substantial, and

legitimate doubt regarding a defendant’s mental capacity to meaningfully participate in his

defense.” (Emphasis added.) People v. Schnoor, 2019 IL App (4th) 170571, ¶¶ 44-45. See also

U.S. ex rel. Newman v. Rednour, 917 F. Supp. 2d 765, 784 (N.D. Ill. 2012) (applying Illinois law

and finding that “the evidence convincingly shows that [the defendant] was unable to provide

‘meaningful assistance’ to his attorney in his defense”). Further, “the Constitution guarantees

criminal defendants a meaningful opportunity to present a complete defense.” (Internal quotation

marks omitted and emphasis added.) Crane v. Kentucky, 476 U.S. 683, 690 (1986). Any

testimony or argument to the contrary is legally wrong and should not be allowed. However, we

specifically decline to address whether the jury instructions should be modified to add

“meaningfully.” Defendant’s only argument on appeal was that the State prejudiced defendant by

attempting to diminish its burden of proof by arguing the jury did not have to find that defendant

could assist his attorney with a meaningful defense. We hold only that the defense to which the

defendant is entitled and to which the fitness statute refers is a “meaningful” defense.

¶ 98 Finally, without deciding the issue we note that the trial court was familiar with the

evidence at defendant’s murder trial and could competently rule as to whether the evidence from

that trial was misstated. We decline to rule on these additional specific issues with the

expectation the parties will conform their conduct to the requirements of this order. We again

leave these and other matters for resolution in the first instance by the trial court, if necessary.

See Floyd, 2019 IL App (1st) 160406, ¶ 57.

¶ 99 The erroneous instruction in this case was the State’s instruction number nine, which

stated that “Amnesia alone as to events surrounding the crime does not by itself render a person

unfit to stand trial but should be considered by you together with all the other evidence.” That

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instruction is not an accurate statement of the law because amnesia alone may, by itself, render a

person unfit to stand trial if, under the totality of the circumstances of the case, including where

the defendant is charged with felony murder and accountability, the amnesia prevents the

defendant from assisting in their own defense, for whatever reason. On remand, the trial court is

instructed not to give the State’s proffered nonpattern jury instruction.

¶ 100 The erroneous instruction prejudiced defendant, but the evidence was not sufficient to

direct a verdict in defendant’s favor. Accordingly, the judgment is reversed, and the cause

remanded for a new retroactive fitness trial. We continue to retain jurisdiction, should defendant

again be found retroactively fit to stand trial, to address any properly preserved contentions of

error in defendant’s conviction and sentence.

¶ 101 CONCLUSION

¶ 102 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed

and the cause remanded for proceedings consistent with this order; we retain jurisdiction over

this appeal for all other issues properly raised.

¶ 103 Reversed in part and remanded with instructions, jurisdiction retained.

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