No. 2--94--1341
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
) No. 93--CF--2711
v. )
)
JOHN K. STEINMETZ, ) Honorable
) John R. Goshgarian,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
Defendant, John Steinmetz, was convicted of felony retail
theft (720 ILCS 5/16A--3(a) (West 1992)). Defendant appeals,
contending that (1) the trial court should have conducted a hearing
on defendant's fitness to stand trial where the record shows that
defendant was taking psychotropic medication at the time of trial;
(2) the court erred in denying defendant's motion for a continuance
to obtain medical records to support his insanity defense; and (3)
the court erred in requiring defendant to stand trial in his jail
uniform.
Daniel Meier, a part-time security guard at a Jewel store, saw
defendant take 10 packs of cigarettes from a display and put them
in a shopping basket carried by a male companion. As defendant and
his companion proceeded down aisle 5, defendant put the cigarettes
in his jacket pocket. He then went to the front of the store and
sat down. After his companion went through the checkout line and
paid for items in the basket, defendant started to leave the store.
Meier detained the pair because defendant had not paid for the
cigarettes. When Meier confronted defendant, he initially denied
that he had any cigarettes. He then gave Meier two packs, then
another two packs. The remaining packs fell to the floor and
defendant tried to kick them under a display case. Defendant then
said that he had forgotten to pay for the cigarettes.
An information filed December 16, 1993, charged defendant with
retail theft. The charge was enhanced to a felony because
defendant had prior theft convictions.
Defendant filed a motion requesting a hearing on his fitness
to stand trial. The motion asserted, among other things, that
defendant advised defense counsel that he had undergone psychiatric
care for bipolar disorder and was then taking Lithium, Valium, and
Doxepin. The motion also recited defense counsel's personal
observations of defendant and concluded that he was unable to
understand the nature of the proceedings or assist in his defense.
On February 18, 1994, the court found defendant unfit to stand
trial. The court ordered him placed in the custody of the
Department of Mental Health for evaluation and treatment.
The court held another fitness hearing on August 25, 1994.
Defense counsel stipulated to the contents of a report from the
Elgin Mental Health Center. The report, prepared by psychologist
Connie Kinast, states that defendant had been prescribed
psychotropic medication, specifically, Diazepam and Lithium
Carbonate. Kinast concluded that defendant was fit to stand trial.
Defense counsel contended, however, that defendant remained
unfit. Defendant testified. After considering the report,
defendant's testimony, and counsels' arguments, the court found
defendant fit to stand trial, on the same date of August 25, 1994,
and set the case for trial on September 19, 1994.
On September 16, defendant filed and the court heard a motion
to continue the trial date but apparently did not rule on the
motion. The motion alleged that defendant was not prepared for
trial because his "extensive mental health history" was "being
compiled." The motion further alleged:
"Most of these in-patient hospitalizations do appear to
impact on the defendant's mental state at the time of the
commission of the alleged offense as each appear [sic] to be
related to the same ongoing and longstanding mental disorders
and disabilities."
The motion asserted that the mental health records were expected to
arrive within the next week. The court denied the motion for a
continuance on September 19, 1994, the day of trial.
On September 19, 1994, defense counsel said that he expected
to receive the records at any time. He requested a continuance of
no more than one week to receive and review the records. The court
denied the motion. Defense counsel then requested a brief
continuance to permit defendant to change into street clothes
rather than having defendant tried in his jail uniform. The court
denied that motion as well and the cause proceeded to trial.
Meier was the State's only witness. Defendant testified that
he was taking medication every day. Without the medication, he
felt dizzy and occasionally blacked out. At the time of trial, he
was taking medication to calm him, but it was not working very
well. He remembered nothing about being in the Jewel store that
night. He had talked with doctors at a Veterans' Administration
(VA) hospital and at the Elgin Mental Health Center about his
memory problems.
The court instructed the jury on the insanity defense, but the
jury found defendant guilty. The court denied defendant's post-
trial motion and sentenced him to three years' imprisonment.
Defendant filed a timely notice of appeal.
Defendant first contends that the court should have sua sponte
ordered a fitness hearing because the record reveals that defendant
was taking psychotropic medication at the time of trial. The State
responds that defendant had a fitness hearing and is not entitled
to another.
Due process prohibits the prosecution of a defendant who is
unfit to stand trial. People v. Brandon, 162 Ill. 2d 450, 455-56
(1994). A defendant is considered unfit if, because of a mental or
physical condition, he is unable to understand the nature and
purpose of the proceedings or to assist in his defense. 725 ILCS
5/104--10 (West 1992); People v. Eddmonds, 143 Ill. 2d 501, 512
(1991). The circuit court has a duty to order a fitness hearing
whenever a bona fide doubt exists of a defendant's ability to
understand the charges and participate in his defense. People v.
Kinkead, 168 Ill. 2d 394, 407 (1995).
At the time of trial, section 104--21(a) of the Code of
Criminal Procedure of 1963 provided that "[a] defendant who is
receiving psychotropic drugs or other medications under medical
direction is entitled to a hearing on the issue of his fitness
while under medication." 725 ILCS 5/104--21(a) (West 1992). In a
line of recent cases beginning with Brandon, the supreme court has
held that a trial court must order a fitness hearing when it
receives information that a defendant is taking psychotropic
medication, even if defendant does not request one. Brandon, 162
Ill. 2d at 457; People v. Birdsall, 172 Ill. 2d 464, 476-77 (1996).
If the record does not fully disclose the circumstances of
defendant's use of psychotropic drugs, the remedy is a partial
remand for the taking of evidence on this question. Kinkead, 168
Ill. 2d at 415.
Of course, defendant acknowledges that the trial court
conducted a fitness hearing within a month of the trial date and
found defendant fit to stand trial. However, defendant complains
that this was merely a "general" fitness hearing that did not
specifically consider the effects of the psychotropic medication.
Defendant argues that, "[h]ad there been a full-blown hearing on
the issue of the medication's effects, the psychologist making the
report presumably would have been required to testify to the bases
for her conclusions, so that the court could determine whether the
medication being given, while perhaps calming defendant,
nevertheless affected defendant's ability to make cognitive
decisions about how to proceed at trial."
Neither section 104--21(a) nor the Brandon line of cases
creates a right to a separate fitness hearing on the effect of
psychotropic medication on a defendant's ability to understand and
participate in the proceedings. The statute and cases merely
provide that a defendant's ingestion of psychotropic drugs is one
circumstance which may raise a bona fide doubt of his fitness to
stand trial.
In this case, the trial court relied on Kinast's report in
concluding that defendant was fit for trial. The one-page report
notes that defendant was then being prescribed Diazepam and Lithium
Carbonate and concludes that defendant was fit for trial. The only
logical conclusion that can be drawn from the report is that Kinast
considered the medications' effect in reaching her conclusion that
defendant was fit for trial. If defendant wanted to explore the
bases of Kinast's conclusions he could have subpoenaed her to
testify at the hearing or perhaps obtained an independent
evaluation. Instead, defendant stipulated to the contents of the
report and relied on his own testimony to attempt to establish his
continuing unfitness.
We decline to hold that Brandon's nonwaiver rule requires a
trial court not only to order a hearing sua sponte if defense
counsel fails to request one, but also to override counsel's trial
strategy in the conduct of that hearing. Whether to present the
testimony of a particular witness is generally a question of trial
strategy. People v. Jones, 155 Ill. 2d 357, 369 (1993). Here,
defendant's use of psychotropic drugs was known to the psychologist
conducting the evaluation and to the trial court. Defendant had
the opportunity to present additional evidence. Under these
circumstances, defendant is not entitled to a second opportunity to
establish his unfitness for trial.
People v. Johnson, 276 Ill. App. 3d 656 (1995), and People v.
Guttierez, 271 Ill. App. 3d 301 (1995), on which defendant relies,
are distinguishable. In those cases, although the trial court, the
prosecutor, and defense counsel were aware of reports stating that
defendants were "mentally fit for trial, with medication," the
courts failed to conduct the required fitness hearings.
Defendant next contends that the court erred in denying his
request for a short continuance to obtain medical records that he
claims were necessary to establish an insanity defense. Although
defendant testified at trial about his history of mental illness
and treatment, he presented no medical opinions on this question.
Thus, defendant contends, the inability to secure his medical
records prior to trial hampered his ability to present a defense.
The granting of a motion for a continuance is within the trial
court's sound discretion, and its ruling will not be reversed
absent an abuse of that discretion. People v. Collins, 106 Ill. 2d
237, 281 (1985). In reviewing the denial of a continuance to
secure evidence, the court should consider (1) whether defendant
was diligent; (2) whether the evidence was material and might have
affected the jury's verdict; and (3) whether defendant was
prejudiced. People v. Ward, 154 Ill. 2d 272, 307 (1992).
We agree with the State that defendant failed to establish his
diligence in securing the medical records. Nothing in the record
shows when defense counsel first requested the records, or
documents defendant's subsequent efforts to secure their timely
production.
Even if defendant established his diligence, however, he
cannot demonstrate prejudice from the absence of the records at
trial. As the State points out, when the records were eventually
produced, the virtually unanimous conclusion of the professionals
who examined defendant was that he was faking symptoms of mental
illness. Kinast's report from the Elgin Mental Health Center
states that defendant had a "tendency to exaggerate symptoms,
resulting in a 'faking bad' profile." Another psychologist, John
Dunne, examined defendant before sentencing. He concluded that the
results of psychological tests he administered suggested a "high
likelihood of an invalid profile due to the over-reporting of
psychopathology."
A report from the VA hospital states that defendant had spoken
about memory problems, but no clear memory deficit was apparent.
Rather, defendant exhibited a "selective memory loss when he chose
not to recall things." Speaking of the instant offense, defendant
told a nurse, " 'I've been doing this for years, sometimes I get
caught and sometimes I don't.' "
In light of the overwhelming opinion of the experts that
defendant was faking symptoms, we conclude that defendant has not
established he was prejudiced by not having the reports available
at trial. Defendant does not point to anything specific in the
medical records that would have supported his insanity defense.
The trial court did not abuse its discretion in denying a
continuance.
Defendant's final contention is that the court erred by
denying his motion for a continuance on the morning of trial so
that defendant could change from his jail uniform into street
clothes. Defense counsel stated, "I have already discussed this
with the Jail on Friday and this morning. They advised me that
would be done." The trial court stated that it was not done, but
denied the motion.
A defendant's right to a fair trial is violated when he is
forced to appear before the jury in readily identifiable jail
clothing. Estelle v. Williams, 425 U.S. 501, 505-06, 48 L. Ed. 2d
126, 131, 96 S. Ct. 1691, 1693-94 (1976). However, the right not
to be tried in jail clothing is, like many other rights of criminal
defendants, subject to harmless-error analysis. Estelle, 425 U.S.
at 506, 48 L. Ed. 2d at 131-32, 96 S. Ct. at 1694; People v.
Medley, 111 Ill. App. 3d 444, 448 (1983).
In Medley, the court observed that defendant "had ample
opportunity to obtain civilian clothing before his trial" and
decried defendant's motion for a continuance as a "delaying
tactic." Medley, 111 Ill. App. 3d at 448. In this case, defense
counsel represented that he contacted jail officials twice in an
attempt to assure that defendant would have access to "civilian"
clothing for trial and jail personnel assured him that "it would be
done." However, on the morning of trial, defendant apparently was
brought to court in his jail uniform. Under these circumstances,
we decline the State's invitation to find that defendant's request
was merely a delaying tactic. We can perceive no tactical
advantage from a delay of 15 to 30 minutes. The trial court should
have granted defendant's request for a brief continuance.
However, we find that the error was harmless beyond a reason-
able doubt in light of the overwhelming evidence of defendant's
guilt. Meier saw defendant place the cigarettes in a basket,
transfer them to his coat pocket, and walk past the cash registers
without paying for them. When Meier confronted defendant, he first
denied having any cigarettes. Then, when several packs fell out of
his pocket, he attempted to kick them under a display case.
Defendant's actions demonstrate his consciousness of guilt and
belie his assertions that he merely forgot to pay for the
cigarettes. In light of this substantial and direct evidence of
defendant's guilt, defendant's appearance before the jury in jail
clothing could not have affected the jury's verdict.
The judgment of the circuit court of Lake County is affirmed.
Affirmed.
GEIGER, P.J., and BOWMAN, J., concur.