People v. Jordan

2024 IL App (4th) 230740-U

Opinion

NOTICE 2024 IL App (4th) 230740-U This Order was filed under FILED Supreme Court Rule 23 and is July 2, 2024 NO. 4-23-0740 Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County DITARIUS K. JORDAN, ) No. 20CF356 Defendant-Appellant. ) ) Honorable ) Derek G. Asbury, ) Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court. Justices Harris and Turner concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in denying defendant’s pretrial motion for the appointment of a psychological expert to evaluate his sanity at the time of the offense, because defendant failed to show that his sanity was likely to be a significant factor in his defense.

¶2 Defendant Ditarius K. Jordan appeals from his conviction and 65-year sentence for

first degree murder (720 ILCS 5/9-1(a)(2) (West 2020)) for shooting Keishana Curry in the head

at point-blank range. Defendant, who is indigent, argues that the trial court abused its discretion

by denying his pretrial motion for a psychological examination at the State’s expense to evaluate

his sanity at the time of the offense, purportedly in contravention of the United States Supreme

Court’s decision in Ake v. Oklahoma, 470 U.S. 68 (1985). Because the court reasonably concluded

that defendant had failed to “make an ex parte threshold showing *** that his sanity [was] likely to be a significant factor in his defense,” as required by Ake (id. at 82-83), we find no error and

affirm.

¶3 I. BACKGROUND

¶4 Curry was found dead in the passenger seat of her car on the early morning of May

24, 2020. She had been shot in the right side of her upper lip; forensic testimony at trial indicated

that the gun was less than three inches away when it was fired. Cell phone records and forensic

evidence from the scene of the crime suggested that defendant was responsible. The exact nature

of the relationship between defendant and Curry is unclear—her car was parked in the driveway

of a residence she shared with another man—but it is clear that defendant believed Curry should

not be seeing any men other than him.

¶5 On June 24, 2020, defendant went to the police station to make a statement, and the

police interviewed him for 9 to 10 hours. After defendant provided several alternative stories that

the police found unbelievable, he finally told them that he had been seated in the car with Curry

and that she kept receiving phone calls from other men. According to defendant, he became

frustrated and drew his gun merely to threaten her, but the gun went off by accident.

¶6 Defendant was charged with first degree murder (720 ILCS 5/9-1(a)(2) (West

2020)) and unlawful possession of a weapon by a felon (id. § 24-1.1(a)), although the latter charge

was dismissed before trial on the State’s motion. Defendant was detained in the Peoria County jail

pending trial. After multiple hearings at which defendant insisted that he did not want to represent

himself or be represented by a public defender, the trial court appointed a public defender to

represent him.

¶7 Throughout the proceedings below, defendant was belligerent and disruptive,

arguing with the trial court and using profanity and obscene gestures. At times, he refused to come

-2- to court, and at other times, he was removed from court or placed in leg shackles due to his

disruptive behavior. While in jail, he was reported for violent and threatening behavior; he was

placed in isolation from other inmates and eventually had a violent altercation with corrections

officers.

¶8 On October 16, 2020, defense counsel moved for a psychological examination on

the basis that “Defendant ha[d] exhibited behaviors which raise[d] concern regarding his mental

condition at the time of the alleged offense as well [as] his fitness to stand trial.” Counsel explained

that “the discovery in this matter, as well as the Defendant’s explanation concerning the events

surrounding this case” gave counsel “a bona fide doubt as to the Defendant’s mental status at the

time of the alleged offense.” Counsel sought a continuance of the trial but did not notice the motion

for a hearing. However, the trial court inquired into defendant’s present mental condition at another

hearing in April 2021 and declined to order a psychological examination regarding his fitness to

stand trial.

¶9 Defendant generally refused to cooperate with his appointed counsel, and his

relationship with counsel became more and more contentious. In May 2021, defendant physically

attacked his counsel at the jail. The trial court promptly held a hearing and gave counsel permission

to withdraw. At the conclusion of the hearing, the court addressed the October 2020 motion for a

psychological examination, stating:

“With regard to that examination, I also was not persuaded that [defendant]

had a basis for examination for diminished capacity on insanity at the time of the

event. He has tried to make it purposely blurry and that ought not to be rewarded,

so no examination has been made. And I still have no examination of him to be

made.”

-3- Defendant did not renew the motion after his counsel withdrew, although in October 2022, he filed

a pro se motion seeking an examination of his mental condition as of the time he made his

confession in June 2020.

¶ 10 In November 2022, the trial court denied defendant’s pro se motion and proceeded

to a jury trial at which defendant represented himself. The jury found him guilty, and at his request,

the court appointed counsel to represent him for the purpose of filing posttrial motions. In a motion

for a new trial, counsel challenged the court’s denial of the October 2022 motion for a

psychological examination but did not mention the October 2020 motion.

¶ 11 On August 18, 2023, the trial court held a hearing on defendant’s posttrial motion

and discussed both the October 2020 and October 2022 motions for psychological evaluations.

The court denied defendant’s posttrial motion and sentenced him to 65 years in the Illinois

Department of Corrections, followed by 3 years of mandatory supervised release. The court denied

defendant’s motion to reconsider his sentence.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 Defendant’s sole argument on appeal is that the trial court erred by denying his

October 2020 motion for a psychological examination to evaluate his sanity at the time of the

offense.

¶ 15 A. Legal Standard

¶ 16 We note at the outset that defendant’s fitness to stand trial is not at issue in this

appeal. “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 2020). Mental fitness to stand trial is also referred to as “competency to

-4- stand trial” (Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)) or “present sanity”

(Pate v. Robinson, 383 U.S. 375, 384 (1966)). Because an incompetent defendant is effectively

unable to defend himself at trial, the United States Supreme Court “ha[s] repeatedly and

consistently recognized that ‘the criminal trial of an incompetent defendant violates due process.’ ”

Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Medina v. California, 505 U.S. 437, 453

(1992)).

¶ 17 Insanity at the time of the offense is different. Although the insanity defense has

ancient roots, no particular formulation of the insanity defense is required by the due process clause

of the fourteenth amendment (U.S. Const., amend. XIV, § 1). See Kahler v. Kansas, 589 U.S. 271,

296 (2020) (“Defining the precise relationship between criminal culpability and mental illness”

“is a project for state governance, not constitutional law.”). All formulations revolve around the

principle that a defendant whose act would otherwise be criminal is excused of criminal

responsibility because he was insane when he committed that act. Id. at 283 (“[F]or hundreds of

years jurists and judges have recognized insanity (however defined) as relieving responsibility for

a crime.”); see Clark v. Arizona, 548 U.S. 735, 749-52 (2006) (cataloguing various approaches to

the insanity defense). Because the inquiries into mental fitness and insanity are different and apply

to different timeframes, a finding that the defendant is fit to stand trial does not preclude a finding

that he was insane at the time of the offense, and vice versa. See, e.g., Pate, 383 U.S. at 384

(addressing the possible incompetency of a defendant found sane at the time of the offense); Ake,

470 U.S. at 86 (addressing the possible insanity of a defendant found competent to stand trial).

¶ 18 In Illinois, a defendant whose conduct would otherwise subject him to a finding of

guilt may instead be found “not guilty by reason of insanity” if he can prove by clear and

convincing evidence that “at the time of [his] conduct, as a result of mental disease or mental

-5- defect, he lack[ed] substantial capacity to appreciate the criminality of his conduct.” 720 ILCS

5/6-2(a) (West 2020); see id. § 6-2(b) (“The terms ‘mental disease or mental defect’ do not include

an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”). To meet

this evidentiary burden at trial, the defendant will obviously need evidence that he suffered from

a mental disease or mental defect at the time of his conduct. The United States Supreme Court has

held that

“when [an indigent] defendant demonstrates to the trial judge that his sanity at the

time of the offense is to be a significant factor at trial, the State must, at a minimum,

assure the defendant access to a competent psychiatrist who will conduct an

appropriate examination and assist in evaluation, preparation, and presentation of

the defense.” Ake, 470 U.S. at 83.

¶ 19 The State acknowledges this standard in its brief but argues that defendant was

instead required to “show that the requested expert assistance [was] necessary in proving a crucial

issue in the case and that the lack of funds for the expert [would] therefore prejudice him.” People

v. Taylor, 2022 IL App (3d) 190281, ¶ 17 (Taylor I), aff’d, 2023 IL 128316 (Taylor II), cert.

denied, 144 S. Ct. 246 (2023). However, the case Taylor I cited for this proposition involved a

defendant who wanted “to obtain the services of a fingerprint and shoeprint expert” rather than a

psychological expert as in Ake. People v. Lawson, 163 Ill. 2d 187, 218-19 (1994). Although the

supreme court in Lawson did mention Ake in passing, the court based its decision not on Ake or

the United States Constitution but on prior Illinois Supreme Court decisions applying the Illinois

Constitution. See id. at 222. On its face, Lawson appears to demand more than Ake, which allows

for the appointment of a psychiatrist “to help determine whether the insanity defense is viable.”

Ake, 470 U.S. at 82. If a defendant requesting funds to obtain the services of a psychiatrist under

-6- Ake cannot be required to demonstrate that the insanity defense is even viable, then it does not

seem he could ever be required to demonstrate that the psychiatrist’s services were necessary to

prove insanity at trial under Lawson.

¶ 20 In any event, we need not decide whether the State’s preferred standard is in fact

more demanding than Ake because we may follow the supreme court’s lead in Taylor II and

consider Ake alone. See Taylor II, 2023 IL 128316, ¶ 41 (affirming Taylor I when “the basis for

the appellate court’s ruling was its analysis of the requirements set forth in Ake”); cf. Lawson, 163

Ill. 2d at 222 (declining to extend Ake when well-established Illinois caselaw provided a sufficient

basis for deciding the case). Under both standards, we review the trial court’s decision for an abuse

of discretion. Taylor II, 2023 IL 128316, ¶ 27 (citing Lawson, 163 Ill. 2d at 230).

¶ 21 B. Forfeiture of the Issue

¶ 22 The State argues that defendant forfeited this issue for appeal on the sole basis that

the trial court never held a hearing or formally ruled on the October 2020 motion. See People v.

Redd, 173 Ill. 2d 1, 35 (1996) (“A movant has the responsibility to obtain a ruling from the court

on his motion to avoid [forfeiture] on appeal.”). However, the court specifically addressed the

motion at the hearing where it allowed defense counsel to withdraw, stating that it would not order

an examination because it was unpersuaded by the motion; it said nothing to indicate that it was

reserving its decision until after it held a hearing. See Selby v. Danville Pepsi-Cola Bottling Co.,

169 Ill. App. 3d 427, 439 (1988) (“When a trial court reserves a ruling, the party seeking the ruling

must seek a decision in order to preserve the matter for review.”).

¶ 23 Despite the State’s argument to the contrary, we find that this constituted a ruling

on the merits of defendant’s motion sufficient to avoid forfeiture of the issue on appeal. See Adams

v. Bath & Body Works, Inc., 358 Ill. App. 3d 387, 399 (2005) (noting that the trial court’s ruling

-7- on a motion must address its substantive merits). As for defendant’s failure to simply make an

identical motion after counsel withdrew, we do not encourage, much less require, a defendant to

badger the court for a formal ruling on a renewed motion when the court has literally spoken to

the motion’s lack of merit. Cf. People ex rel. Klaeren v. Lisle, 202 Ill. 2d 164, 178 (2002) (“[T]here

is no need to object when it is apparent that an objection would be futile.”).

¶ 24 C. Procedural Requirements

¶ 25 Ake does not mandate the appointment of a psychiatrist whenever the defendant

asks for one; Ake specifically requires the defendant “to make an ex parte threshold showing to

the trial court that his sanity is likely to be a significant factor in his defense.” Ake, 470 U.S. at 82-

83. The State argues that the defendant must make this showing by formally notifying the State

that he intends to pursue the affirmative defense of insanity pursuant to section 115-6 of the Code

of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-6 (West 2020)) and Illinois Supreme Court

Rule 413(d) (eff. July 1, 1982). This argument immediately falters in the face of Ake’s holding that

the necessary threshold showing can be made on an ex parte basis, i.e., without involving the State.

Furthermore, a per se requirement that the defendant must express an intent to pursue the insanity

defense in the absence of psychiatric evidence to support that defense would present two major

difficulties.

¶ 26 First, it might put defense counsel to an ethical dilemma: (1) assert the insanity

defense in the absence of concrete facts that the defendant suffers from a mental disease or mental

defect even if counsel strongly suspects that a psychiatrist would reach that conclusion or

(2) decline to assert a potentially meritorious insanity defense. See Ill. R. Prof’l Conduct (2010)

R. 3.1 (eff. Jan. 1, 2010) (“A lawyer shall not bring or defend a proceeding, or assert or controvert

an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.”). Indeed,

-8- the appointment of a psychiatrist is partly intended “to help determine whether the insanity defense

is viable.” Ake, 470 U.S. at 82. The State’s proposed approach would put the cart before the horse

by requiring defense counsel to conclude that the insanity defense is viable without first receiving

input from a psychiatrist. See Schultz v. Page, 313 F.3d 1010, 1017 (7th Cir. 2002) (“[W]e find it

difficult to understand how [the defendant] could have formally asserted an insanity defense before

the appointment of a psychiatrist.”).

¶ 27 Second, a defendant’s notice to the State that he intends to pursue an insanity

defense triggers the State’s own statutory right to an examination by a psychologist or psychiatrist

of its choice. 725 ILCS 5/115-6 (West 2020). Similarly, Rule 413(d) is intended to enable the State

to respond to the defendant’s evidence of insanity at trial by requiring him to disclose that evidence

well in advance. See Ill. S. Ct. R. 413(d), Committee Comments (adopted Oct. 1, 1971) (“Such

discovery eliminates unfair surprise and allows the opposing party to establish the truth or falsity

of the defense.”). However, the trial court would presumably still have the discretion to conclude

that the defendant had not made the showing required by Ake, leaving the psychiatric evidence

solely in the hands of the State’s expert if the defendant nevertheless attempted to pursue the

insanity defense at trial. Even if the court did order an examination pursuant to Ake, the appointed

psychiatrist might conclude that the defendant had no mental disease or defect, requiring the

defendant to withdraw his intent to pursue the insanity defense despite having supplied the State

with a psychological examination and discovery it would not have otherwise received.

¶ 28 Accordingly, we decline to hold that noncompliance with either section 115-6 of

the Code or Rule 413(d) categorically bars a defendant from seeking the appointment of a

psychiatric expert under Ake.

¶ 29 D. Application of Ake

-9- ¶ 30 Our inquiry now turns to whether the trial court’s denial of the motion constituted

an abuse of discretion. “Generally, a court abuses its discretion when its decision is fanciful,

arbitrary, or unreasonable to the degree that no reasonable person would agree with it.” People v.

Ortega, 209 Ill. 2d 354, 359 (2004). As noted above, defendant was required to show that “his

sanity [was] likely to be a significant factor in his defense” (Ake, 470 U.S. at 82-83) or, in other

words, that his sanity was “seriously in question” (id. at 70). We share the State’s concern about

the perfunctory nature of defendant’s two-page motion for a psychiatric examination on both

insanity and fitness, but under Ake, the trial court was obligated to consider not just the motion

itself but all the facts before it at the time, including matters that were also pertinent to defendant’s

fitness. See id. at 86 (“On the record before us, it is clear that [the defendant’s] mental state at the

time of the offense was a substantial factor in his defense, and that the trial court was on notice of

that fact when the request for a court-appointed psychiatrist was made.”). After reviewing this

record, we find the trial court’s conclusion that defendant failed to make the required showing was

reasonable on two separate grounds.

¶ 31 First, defendant needed to raise a serious question that “he lack[ed] substantial

capacity to appreciate the criminality of his conduct” at the time of the offense. 720 ILCS 5/6-2(a)

(West 2020). This long-established approach to the insanity defense is known as the moral

incapacity test (Clark, 548 U.S. at 751) and applies when the defendant’s insanity “obliterat[es]

the sense of right and wrong as to the particular act done,” Hopps v. People, 31 Ill. 385, 392 (1863).

The moral incapacity test is difficult to satisfy, even for a defendant with an extremely distorted

perception of reality; for instance, someone with paranoid schizophrenia may appreciate that it is

wrong to kill someone even if he believes that the victim is not really a person but an inhuman

witch or alien. See, e.g., Commonwealth v. Bruno, 466 Pa. 245, 253 (1976) (upholding a

- 10 - determination that the defendant understood the wrongfulness of his conduct when he hid the gun

he had used to shoot someone he believed to be a “black witch”); Clark, 548 U.S. at 745 (similar,

the victim was believed to be an alien impersonating a police officer).

¶ 32 In the present case, defendant’s conduct—drawing a loaded gun on a trapped and

defenseless woman and shooting her in the face at point-blank range—does not fall in a moral gray

area. Defendant points to nothing in the record showing that his sense of right and wrong was ever

distorted, much less so distorted that he failed to appreciate the wrongfulness of this clearly

abhorrent conduct. Indeed, defendant’s brief fails to address the moral incapacity test altogether;

he refers only to the fact that he has “trust issues” and saw a counselor from the age of 4 to 11 or

12. It is far from obvious how this bears on defendant’s sense of right and wrong at age 28 when

he shot the victim, but in any event, a reasonable person could agree with the trial court’s finding

that these facts did not place defendant’s sanity seriously in question under the moral incapacity

test.

¶ 33 In arguing for a contrary result, defendant relies principally on People v. Kegley,

175 Ill. App. 3d 335, 340 (1988), but his reliance is misplaced. When Kegley was decided in 1988,

a defendant could prove his insanity by showing that “he lacked substantial capacity *** to

conform [his] conduct to the requirements of law.” People v. Moore, 147 Ill. App. 3d 881, 885

(1986) (citing Ill. Rev. Stat. 1983, ch. 38, ¶ 6-2(a)). This approach to the insanity defense is known

as the volitional incapacity test (Clark, 548 U.S. at 749) and has since been abolished in Illinois.

People v. Ramsey, 192 Ill. 2d 154, 157 (2000). Moreover, Kegley is easily distinguishable on its

facts, as shown by an addendum to the motion for a psychiatric examination that the trial court

denied in that case:

- 11 - “The addendum asserted that three days prior, [defense counsel] learned that

defendant had been hospitalized at the Elgin State Mental Hospital pursuant to court

order sometime in 1973; that defendant had been treated several times at the

Alcohol Treatment Center in Waukegan; that he had been treated at the Lake

County Mental Health Center on two occasions between 1981-84; and that he had

been hospitalized at St. Therese Hospital’s psychiatric ward on a number of

occasions between 1972-74. The addendum further asserted that at the time of his

arrest, defendant acted erratically in that he had requested to be shot by arresting

officers and threw himself against the bars and walls of his cell and that he also had

a history of arrests involving abnormal behavior.” Kegley, 175 Ill. App. 3d at 338.

The addendum to the motion in Kegley is much more complete than the conclusory and largely

fact-free motion filed in this case. In addition, in Kegley, we found that the denial of the motion

“was clearly an abuse of the trial court’s discretion” (id. at 343), i.e., no reasonable person would

have doubted that the defendant’s sanity at the time of the offense was seriously in question.

Although we cannot precisely delineate when a threshold showing under Ake is sufficient to find

an abuse of discretion on appeal (see Ake, 470 U.S. at 86 (conducting a case-specific factual

analysis)), we have no trouble concluding that the trial court acted within its discretion in finding

that defendant here failed to satisfy that standard.

¶ 34 Second, assuming for the sake of argument that defendant had shown “he lack[ed]

substantial capacity to appreciate the criminality of his conduct” (720 ILCS 5/6-2(a) (West 2020)),

he nevertheless failed to show that his moral incapacity manifested in some way other than “by

repeated criminal or otherwise antisocial conduct” (id. § 6-2(b)). Absent this showing, defendant’s

sanity could not have been a significant factor in his defense, so the trial court did not abuse its

- 12 - discretion in denying defendant’s motion for a psychological examination. See People v. Foster,

43 Ill. App. 3d 490, 495-96 (1976) (“[W]hen the evidence only shows an abnormality manifested

by repeated criminal or otherwise anti-social conduct,” “the evidence would not be sufficient to

raise the affirmative defense of insanity.” (Emphasis omitted.)); cf. People v. Wilson, 191 Ill. 2d

363, 382 (2000) (finding no abuse of discretion when the trial court refused to order further testing

into the cause of the defendant’s mental problems when that information was not necessary to

ascertain the effect of the defendant’s mental problems on the issue before the court).

¶ 35 Finally, defendant appears to argue that the threshold showing required by Ake

should be lower if the State’s evidence of guilt is strong. While it is true that Ake was concerned

with ensuring an indigent defendant could fairly respond to the State’s charges in the adversarial

process of a trial, that concern was motivated not by a desire to facilitate the defense of insanity

per se but by a desire to ensure the finder of fact is presented with accurate information when an

indigent defendant’s sanity is genuinely at issue. See Ake, 470 U.S. at 82. Ake was not intended to

provide indigent defendants with a license to confuse the issues at trial simply because it might

make the State’s otherwise straightforward case more difficult to prove.

¶ 36 III. CONCLUSION

¶ 37 For the reasons stated, we affirm the trial court’s judgment.

¶ 38 Affirmed.

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