Opinion
NO. 4-15-0748
06-06-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY A. STEEPLES, Defendant-Appellant.
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).
Appeal from the Circuit Court of Coles County
No. 14CF143
Honorable Mitchell K. Schick, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Presiding Justice Harris and Justice Cavanagh concurred in the judgment.
ORDER
¶ 1 Held: (1) The trial court's finding that defendant was fit to stand trial was not against the manifest weight of the evidence.
(2) Defendant has failed to rebut the presumption that the trial court was impartial.
¶ 2 In April 2014, the State charged defendant, Larry A. Steeples, with the first degree murder of Gina Giberson (720 ILCS 5/9-1(a)(1) (West 2014)); and in August 2015, a jury found him guilty but mentally ill. The trial court sentenced him to life imprisonment. Defendant appeals, arguing that (1) the trial court's finding that defendant was fit to stand trial was against the manifest weight of the evidence and (2) the court abandoned its impartiality during the fitness hearing and became an advocate for the State. Because we find no merit in either argument, we affirm.
¶ 3 I. BACKGROUND
¶ 4 A. The Appointment of Dr. Marilyn Frey To Do a Fitness Examination
¶ 5 In September 2014, defense counsel moved that the trial court appoint a psychological expert to examine defendant and determine whether he was fit to stand trial. Because defendant had been diagnosed as having a mental illness and had been prescribed medication for it, defense counsel argued there was a bona fide doubt of defendant's fitness. The State expressed no opposition to the motion. The trial court granted the motion and, appointed a licensed clinical psychologist, Marilyn Marks-Frey, to examine defendant. In granting the motion, the court explained that even though, in a previous case, defendant had undergone a fitness examination and had been found to be fit, the court thought it would be best to "err on the side of caution."
¶ 6 B. Frey's Report
¶ 7 In October 2014, after interviewing, examining, and testing defendant, Frey submitted her report to the trial court. Much of the report described defendant's performance on various psychological tests.
¶ 8 In the Mini Mental Status Examination—2nd Edition, defendant "performed exceptionally poorly on a task measuring memory when a significant amount of interference was presented."
¶ 9 The Minnesota Multiphasic Personality Inventory—2nd Edition suggested he was "a highly anxious and agitated man." He was "very fearful" and had "[c]oncentration and attention difficulties," "memory deficits," and "poor judgment." "Behavior [was] likely to be unpredictable and inappropriate," and "[r]eactive behaviors [might] be due to processing difficulties, where he [did] not read the behavioral cues of others appropriately."
¶ 10 When administering the State Trait Anger Expression Inventory—2nd Edition to defendant, Frey perceived he was "unable to control his emotions and display them in appropriate ways." He was "over reactive, and the [reasons] for this [were] likely partially neurologically based."
¶ 11 To measure defendant's "executive functioning," Frey administered the Booklet Category Test, which "measure[d] the ability to learn new material and apply what [was] learned to subsequent similar tasks." Defendant did poorly on this test, "respond[ing] incorrectly to almost every stimuli presented" and becoming so "agitated" that he "called the guard and told them to come get him," apparently out of concern that he would hurt Frey. She wrote: "Performance and behavior suggests [sic] that [defendant] has an executive functioning deficit. When he is overwhelmed with information or stimuli, he cannot process what is happening, then panics and overreacts."
¶ 12 This overreactiveness caused Frey to doubt that defendant could endure the experience of a trial. Under the heading "Competence To Stand Trial," she wrote:
"On the surface, it appears that [defendant] has the verbal abilities to comprehend what occurs in a court setting and at a trial. Verbally it appears as if he understands the charges against him. He understands the role of a Judge, a Jury[,] and Lawyers, including the one that represents him.
[Defendant] does not have the processing ability to understand his actions or to control his over reactiveness to situations. Concerns exist regarding if and when he will be fit to stand trial and if he will ever be in a place where he is not a risk to others."
¶ 13 The next heading in Frey's report was "Review of Collateral Material." Under that heading, she noted:
"[Defense counsel] sent a letter listing multiple traumas to the brain that her client had experienced since his mid twenties, as well as other types of medical traumas. She writes that he cannot concentrate or focus when [she] tries to talk to him about his case. These behaviors are consistent with behaviors observed during my interview and evaluation of [defendant] when he appeared to be over stimulated.
Dr. Jerry Boyd conducted an Examination for Competency to Stand Trial evaluation on May 23, 2006. *** He summarized, 'It is my professional opinion, within reasonable psychological certainty, that [defendant] was FIT TO STAND TRIAL as of the time of the allegations." (Emphasis in original.)
¶ 14 As for herself, Frey concluded: "Based on the above methodology, it has been determined that [defendant] is UNFIT TO STAND TRIAL. Executive functioning is extremely impaired. Rote memory is adequate[,] but memory with interference is exceptionally limited." However, despite these observations, her report included no diagnoses. Nor did it specify when, in Frey's opinion, defendant would attain fitness.
¶ 15 C. An Addendum to Frey's Report
¶ 16 In November 2014, at the trial court's request, Frey submitted an addendum, in which she opined that, "with medication to control anger," defendant could become fit to stand trial within a year.
¶ 17 D. A Stipulation By the Parties To Further Supplement Frey's Report
¶ 18 On November 17, 2014, the attorneys, by stipulation, further supplemented Frey's report with the following information. Frey diagnosed defendant as suffering from a cognitive disorder, not otherwise specified; an antisocial personality disorder, a general anxiety disorder, an adjustment disorder with extreme anxiety, and a dysthymic disorder. Also, defendant "show[ed] signs of Karaskoff [sic] Syndrome," "a memory interference or dementia caused by alcohol or substance abuse."
¶ 19 Defendant scored only 9 out of 25 points on the part of the mini Mental Status Evaluation—2nd Edition that measured auditory memory with interference. He could "recite rote memory" but could not "process interference memory (one subject is addressed, second subject is addressed, and then [he] was asked questions about the first subject again). [His] interference memory [was] impaired," possibly because of "severe or repeated brain trauma or injury, drug use, and/or environmental issues." He "ha[d] fine verbal skills, but he ha[d] memory issues. His memory was scattered in the beginning of Dr. Frey's interview with [defendant]. He showed a lot of anxiety. After awhile [sic] [defendant] was fairly coherent. Dr. Frey could not keep [defendant] on track very long."
¶ 20 However, when it came to defendant's fitness to stand trial, Frey seemed more concerned about his volatility than his digressions. She had "concerns with [his] being in the courtroom because his behavior [was] explosive." He had "executive function deficits," "mean[ing] that a person [is] agitated." Frey expressed her concern as one of courtroom disruption and behavior control. She was concerned about courtroom security and safety in the courtroom. The "intermittent explosive disorder" that defendant suffered from was probably "neurologically based," and it could be "controlled or monitored with psychotropic medication."
¶ 21 E. On Its Own Initiative and With Notice to the Parties, the Trial Court
Obtains Some Documentary Evidence For the Upcoming Fitness Hearing
¶ 22 Also, on November 17, 2014, the trial court held a hearing that was preliminary to a fitness hearing. The court stated to the attorneys: "I had talked with both counsel this morning about records that the Court had ordered transferred from the Illinois Department of Corrections under seal. Those records include any disciplinary records—records of any disciplinary action while [defendant] was in custody there and medical records, pharmaceutical records." Before releasing the records to the State, the court wanted defense counsel to review the records, confer with defendant, and tell the court whether he had any objection to releasing the records to the State. The court asked defense counsel if she had had an opportunity to talk with defendant about this.
¶ 23 Defense counsel responded that she had indeed spoken with defendant that morning and he objected to the records from the Department of Corrections, both on the ground of irrelevancy and on the ground of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq. (2012)).
¶ 24 The trial court asked, "What's the State's response [to defendant's objections]?" The prosecutor responded that, in his view, the records were relevant and admissible. He argued that "[t]he defendant[,] by filing the Motion for Fitness[,] has placed his psychological well-being at issue, including his medical issue and disciplinary issue, his behavioral issue." The prosecutor cited section 104-16(b)(3) of the Code of Criminal Procedure of 1963, which provides that, "[s]ubject to the rules of evidence, matters admissible on the issue of the defendant's fitness include[d] *** [t]he defendant's social behavior and abilities." (725 ILCS 5/104-16(b)(3) (West 2014)).
¶ 25 The trial court agreed that the records were relevant to defendant's "mental condition" and his ability to get along with people. The court observed that "part of the records
include[d] disciplinary reports regarding his ability to socialize, to communicate," and the court deemed "[a]ll of that [to be] relevant to a fitness determination." Therefore, over defendant's objection, the court ruled that the records from the Department of Corrections would be admitted in the fitness hearing.
¶ 26 Next, the trial court addressed a letter it had obtained, by e-mail, from Dennis Drake, who "employed [defendant] for about two weeks immediately prior to this charge being filed." Several days before the hearing, the court had asked the prosecutor and defense counsel if they would be willing to stipulate to the letter in lieu of the court's "subpoenaing that witness into court as a Court's witness." At the hearing, the State indicated it was willing to stipulate to the letter. The court then asked defense counsel for defendant's position. Defense counsel answered, "We object to the stipulation." The court responded, "Okay. I'm going to direct[,] then[,] that the circuit clerk issue a subpoena for trial. I'll provide the contact information."
¶ 27 Finally, the trial court noted for the record that, as a condition of defendant's bond in a separate case, the court had ordered him to undergo a psychiatric examination and that he had seen a psychiatrist, "Dr. Jekyll." The court explained: "It was my desire that if you need your medication, and these experts are saying you need medication, that you get that medication. So that's why I ordered the psychiatric exam." It was the court's understanding, though, that "when the jail presented [defendant] with the consent for that exam to take place," defendant "refused to sign that consent." Defendant explained as follows to the court: "I believe you people are trying to get me life in prison. I'm not signing nothing to help you do anything." Defense counsel remarked that, regardless, she did not believe Jekyll had even asked defendant to sign a consent yet. So, it was unclear whether one was even necessary. She added that Frey had not asked defendant to sign a consent.
¶ 28 F. The Fitness Hearing
¶ 29 On November 21, 2014, the trial court conducted a fitness hearing. At its beginning, the parties stipulated to Frey's report and to the addendum and supplement to her report.
¶ 30 Defense counsel then moved to continue the fitness hearing so Frey could testify. The trial court denied the motion, stating it would not be "assisted in any way by further testimony of Dr. Frey."
¶ 31 At the State's request, the trial court then took judicial notice of transcripts in the present case, transcripts from previous criminal cases against defendant, and Boyd's report from 2006 opining defendant was fit.
¶ 32 The State then called Sean Beck, who testified that after November 6, 2014, he was housed in the same cell block as defendant in the Coles County jail. He recounted two or three conversations he had with defendant in the jail. Beck testified defendant told Beck he was not really mentally ill but that he was going to give his attorney a defense of post-traumatic stress disorder, on which he was doing research, and that he even was practicing "the rock." Indeed, Beck had seen him rocking back and forth at the waist, like a mentally disturbed person.
¶ 33 Although a burglary charge was pending against Beck, he denied he had been promised anything for his testimony or that he was testifying out of a hope for leniency. He insisted he was testifying voluntarily, on his own initiative, because he was sickened by what defendant had told him about the offense.
¶ 34 The trial court asked Beck what defendant had said about the offense that made him sick. Beck answered that defendant had told him he beat Giberson with a studded belt when she pulled a baseball bat on him one time. The court asked Beck if defendant had told him
anything else about the offense. Beck answered that defendant said he was across the street from Giberson's house the night before he shot her, pulling the trigger on the gun, "just like he had no remorse."
¶ 35 Defendant interrupted Beck's testimony, denounced him as a liar, and demanded that he stop lying. The trial court told defendant to control himself, and defendant calmed down.
¶ 36 Beck also testified that defendant had told him he fired five rounds into Giberson, he wished it was more than five, and he would be willing to accept a plea deal of one year in prison for each round he put in her.
¶ 37 Defense counsel objected when the State asked Beck if defendant had said anything about a 911 call. She argued that alleged admissions by defendant regarding the offense were relevant in a trial but not in a fitness hearing. The trial court responded that such evidence was relevant to defendant's powers of memory. Even so, the court sustained the objection, stating, "I've heard enough testimony regarding *** the statements."
¶ 38 The State then called Lisa Tillis, the administrator of the Coles County jail. She identified some nonlegal letters that defendant had sent from the jail. Defense counsel made a foundation objection, arguing the letters were inadmissible because defendant's identifying information on them could have been written by others and was insufficient to authenticate them. The trial court overruled the objection, stating, "I do believe the appropriate foundation has been made. This is a proceeding civil in nature."
¶ 39 After Tillis testified, the trial court called Dennis Drake as the court's witness. Drake was the president of Drake Excavating and Construction. Before the fitness hearing, Drake sent the court an e-mail, in which he answered some questions the court asked him regarding defendant.
¶ 40 Drake testified he employed defendant for about two weeks in March 2014 and that defendant was a good worker who was able to follow instructions and work closely with others. Defendant never became angry or got into arguments, and Drake never saw him take medication. Drake was never concerned for his safety around defendant, and none of the other workers ever complained about him. Defendant quit the job after an incident, unrelated to the job, in which his throat was cut. Drake had not seen him since.
¶ 41 Next, the trial court proposed, sua sponte, to admit the disciplinary and medical records pertaining to defendant that the court had obtained from the Department of Corrections. The court asked defense counsel if she wished to object to the admission of these records. Defense counsel replied:
"MS. THOMPSON: Judge, the defendant is requesting me to object to all of the Court's exhibits. With all due respect, he feels that the Court is assisting the prosecution against him[,] and that's why he wishes me to make the objection.
* * *
THE COURT: ***
[Defendant], fitness hearings are different than trials. We're not here to determine whether you're guilty of anything. That's not the purpose of this proceeding.
The purpose of this proceeding is to determine whether or not you're competent to stand trial.
Do you understand that concept?
DEFENDANT STEEPLES: I don't understand where it's the judge's job to aid the prosecutor in his job.
THE COURT: Well, because it's not designed to prove guilt or innocence. I'm not doing anybody's job but my job. The—
DEFENDANT STEEPLES: Well, if you contacted Mr. Drake and [the] Department of Corrections for the prosecutor, it would seem to me that you're doing the prosecutor's job and trying to do your job at the same time.
THE COURT: I didn't contact the Department of Corrections or Mr. Drake for the prosecution. I contacted them to provide information so that I can have that information to review that information and make a determination as to whether you're fit or whether or not [sic] you're not fit, and if not fit, to order that you be taken into custody and sent for treatment that might render you fit.
Do you understand that concept?
DEFENDANT STEEPLES: Yeah, I guess."
The court admitted the records over defendant's objection.
¶ 42 Defense counsel then called her investigator, Herman Wills, and questioned Wills about two conversations Wills had had with defendant. Wills testified that in both conversations defendant was easily distracted and had difficulty concentrating. He would often ramble, was unable to stay on topic, and paced a lot.
¶ 43 At the conclusion of the hearing, the trial court found defendant to be fit to stand trial. The court explained that Frey's conclusion of unfitness was belied by the court's own observations of defendant, the transcripts of hearings in which he participated, and Drake's testimony.
¶ 44 G. The Jury Trial
¶ 45 Defendant's jury trial occurred in August 2015. The State called police officers of the Charleston police department, who were dispatched to a house in response to a 911 call. The front door of the house looked as if it had been forced open. Inside the house, they heard a man yelling from behind the closed door of a bedroom. They commanded anyone inside the bedroom to come out with their hands up. Defendant emerged from the bedroom, walking backward, with his hands in the air. He repeatedly said, " 'I put five in her.' " In the bedroom, the police found a woman on a bed, bleeding from four gunshot wounds. One of the police officers asked defendant where the gun was. Defendant directed their attention to a pistol lying on top of a safe, at the foot of the bed. As the police removed defendant from the house, he repeated that he had put five in her, and he added that he would have killed another person if he had been in the house.
¶ 46 Defendant testified extensively in his own defense. While testifying, defendant did not have any outbursts and was able to answer all the questions asked, including going into detail concerning the circumstances and reasons for shooting the victim. Following trial, the jury found defendant guilty but mentally ill.
¶ 47 II. ANALYSIS
¶ 48 A. Whether the Finding of Fitness Is
Against the Manifest Weight of the Evidence
¶ 49 Defendant argues that the trial court's finding that he was fit to stand trial was against the manifest weight of the evidence. See People v. Haynes, 174 Ill. 2d 204, 226 (1996) ("The trial court's ruling on the issue of fitness will be reversed only if it is against the manifest weight of the evidence."). He argues that Frey's report rebutted the statutory presumption of fitness (see 725 ILCS 5/104-10 (West 2014)) and, under any reasonable view, the State failed to carry its burden of proving by a preponderance of the evidence that he was fit to stand trial. See 725 ILCS 5/104-11(c) (West 2014). According to defendant, "Frey's opinion that [he] lacked the
ability to rationally consult with defense counsel" not only was "facially credible" but was "the only expert psychological testimony as to [his] present mental state offered at the fitness hearing." Both the State and the court presented their own evidence in the fitness hearing, but, as defendant sees it, none of this evidence "contradict[ed] the basis for Frey's opinion—[his] inability to rationally consult with defense counsel about his case because of an executive functioning deficit."
¶ 50 If indeed a mental or physical condition made defendant unable to "rationally consult with defense counsel," he would be unfit to stand trial. To be fit, he had to be able to "assist in his defense" (725 ILCS 5/104-10 (West 2014)), and to assist in his defense, he had to be able to "consult with his lawyer with a reasonable degree of rational understanding." People v. Holt, 2014 IL 116989, ¶ 51.
¶ 51 The trouble with defendant's contention is that nowhere in her report does Frey state that defendant has an "inability to rationally consult with defense counsel about his case." In his brief, defendant repeatedly contends that "Dr. Frey offered a facially credible opinion that [he] was unable to rationally assist defense counsel," but defendant never cites the page of Frey's report where she stated that opinion—and for good reason because, in fact, Frey never said any such thing in her report.
¶ 52 The only place in her report where Frey so much as mentions the interaction between defendant and defense counsel is in the following passage:
"[Defense counsel] sent a letter listing multiple traumas to the brain that her client had experienced since his mid twenties, as well as other types of medical traumas. She writes that he cannot concentrate or focus when [she] tries to talk to him about his case. These behaviors are consistent with behaviors
observed during my interview and evaluation of [defendant] when he appeared to be over stimulated." (Emphasis in original.)
An argument could be made that if, because of a mental or physical condition, a defendant is unable to focus or concentrate when talking with defense counsel about the case, the defendant is unable to assist in his defense. But Frey herself does not state that defendant is unable to focus or concentrate when talking with defense counsel about the case. Instead, Frey states that defense counsel has so reported, and, after noting this lack of focus or concentration reported by defense counsel, Frey writes, "These behaviors are consistent with behaviors observed during my interview and evaluation of [defendant] when he appeared to be over stimulated." (Emphasis in original.) Therefore, Frey could be interpreted as saying that when defendant is overstimulated, he loses focus and concentration, but that is a long way from saying he is unable to assist in his defense.
¶ 53 Granted, Frey concludes in her report that defendant is "UNFIT TO STAND TRIAL." "[T]he conclusions of experts[,]" however, "are only as valid as the basis or reasons for them" (internal quotation marks omitted) (People v. Baugh, 358 Ill. App. 3d 718, 734 (2005)), and we do not see where in her report Frey backs up her conclusion by showing that defendant meets any of the criteria in section 104-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-10 (West 2014)). That section provides "[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." Id.
¶ 54 Frey gives two reasons for her conclusion that defendant is unfit to stand trial: (1) his executive functioning is exceptionally impaired, and (2) his memory with interference is exceptionally limited. Her report states, "[b]ased on the above methodology, it has been
determined that [defendant] is UNFIT TO STAND TRIAL. Executive functioning is exceptionally impaired. Rote memory is adequate[,] but memory with interference is exceptionally limited."
¶ 55 Frey appears to define "executive functioning" as "the ability to learn new material and apply what is learned to subsequent similar tasks." We infer this definition because under the heading "Neurological Assessment of Executive Functioning," she writes that she administered to defendant a test designed to measure "the ability to learn new material and apply what is learned to subsequent similar tasks." Whereas defendant was "calm and appropriate prior to the test" (Frey reports), he "almost immediately" "became highly agitated" during the test, and consequently she felt the need to cut the test short. Frey wrote "[p]erformance and behavior suggests [sic] that [defendant] has an executive functioning deficit. When he is overwhelmed with information or stimuli, he cannot process what is happening, then panics and overreacts. This impacts his daily functioning and behavior."
¶ 56 Not only does defendant have "difficulties" with "[c]oncentration and attention," according to Frey, but he also has "memory deficits." Frey also wrote that defendant's "[s]hort term memory with minimal to no interference was adequate. In contrast, he performed exceptionally poorly on a task measuring memory when a significant amount of interference was presented." Thus, his memory when interference is present is poor; he has difficulty remembering information after being asked to perform other tasks—that is, after being interrupted.
¶ 57 So, judging from the test results and assuming a good-faith effort on his part in taking the tests, defendant has problems with executive functioning and interference memory—but nowhere in her report does Frey come out and state that these problems make him "unable to
understand the nature and purpose of the proceedings against him or to assist in his defense." Id. Instead, under the heading of "Competence To Stand Trial," she writes as follows:
"On the surface, it appears that [defendant] has the verbal abilities to comprehend what occurs in a court setting and at a trial. Verbally it appears as if he understands the charges against him. He understands the role of a Judge, a Jury[,] and Lawyers, including the one that represents him.
[Defendant] does not have the processing ability to understand his actions or to control his over reactiveness to situations. Concerns exist regarding if and when he will be fit to stand trial and if he ever will be in a place where he is not a risk to others."
¶ 58 Thus, Frey rules out any concern that defendant is "unable to understand the nature and purpose of the proceedings against him." Id. That leaves the rest of the statutory definition of unfitness: "unable *** to assist in his defense." Id. And again we return to the fundamental problem: nowhere in her report does Frey state that because of his impaired executive functioning and interference memory, defendant is unable to "assist in his defense" (id.) or, in other words, that he lacks a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" (Holt, 2014 IL 116989, ¶ 51)—let alone explain how impaired executive functioning and interference memory would make defendant unable to assist in his defense.
¶ 59 Consequently, Frey's conclusion that defendant was "UNFIT TO STAND TRIAL" rested on nothing, or at least nothing that section 104-10 recognizes as unfitness. Without any underlying reasons or basis that satisfied section 104-10, her conclusion of unfitness deserved no deference and created no bona fide doubt of defendant's fitness. See Schultz v.
Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 298-99 (2002); Baugh, 358 Ill. App. 3d at 734.
¶ 60 We realize the trial court went ahead and held a fitness hearing and that one was required only if there was a bona fide doubt of defendant's fitness. See 725 ILCS 5/104-11(a) (West 2014). Nevertheless, the mere granting of a motion for a fitness hearing does not establish a bona fide doubt of the defendant's fitness (People v. Brown, 236 Ill. 2d 175, 228-29 (2010)), and we may affirm the judgment for any reason the record supports, regardless of whether the trial court explicitly relied on that reason. People v. Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 83.
¶ 61 Given the record before us, it would not have been an abuse of discretion to find an absence of bona fide doubt. See People v. Tuduj, 2014 IL App (1st) 092536, ¶ 87. Accordingly, we are unconvinced the trial court displayed bias against defendant by expressing reservations about Frey's conclusion of unfitness. On its face, her report provided no valid basis for the conclusion that defendant was unfit—which, besides, the court had difficulty squaring with its own observations of defendant. Far from displaying bias against defendant, the court, out of an abundance of caution, held a fitness hearing to which, in the absence of bona fide doubt, defendant really was not entitled.
¶ 62 We also note that in the fitness hearing, defendant convincingly demonstrated his ability to assist in his defense by making the same argument of judicial bias that defense counsel makes to us now, on appeal. Defendant could be quite eloquent in his own defense, and he zeroed in on Beck's weakness as a jailhouse snitch.
¶ 63 The record of the subsequent jury trial further supports the trial court's ruling. Throughout the 101 pages of direct examination, cross-examination, and redirect examination,
defendant gives answers that, with rare exceptions, are responsive to the questions. People v. Sims, 34 Ill. 2d 206, 209 (1966) ("This conclusion [of malingering] is further borne out by a reading of his testimony at trial[,] where he testified in a clear, lucid manner and had no difficulty in answering questions by respective counsel"); People v. Marshall, 114 Ill. App. 3d 217, 229 (1983); People v. Thompson, 3 Ill. App. 3d 684, 688 (1972). He demonstrates "rational understanding" in answering the questions. Holt, 2014 IL 116989, ¶ 51. Evidently, he could stay on topic and "communicate with counsel" when he chose to do so. 725 ILCS 5/104-16(b)(2) (West 2014). He demonstrated, at great length, an ability to focus on questions and answer them—even when the questions jumped back and forth in time and from one topic to another.
¶ 64 For instance, defense counsel at first asked defendant to recount the occasion when, after he and Giberson returned home from grocery-shopping at Walmart, Giberson put the car in reverse and tried to run over him as he was getting his power saw out of the trunk. Then defense counsel asked him questions about the preceding trip to Walmart, and he seemed to have no difficulty answering those questions. Then defense counsel asked him how the power saw got in the trunk of the car, and he seemed to have no difficulty explaining how he had put the saw in the trunk earlier in the morning and the projects on which he intended to use the saw.
¶ 65 Even when a question was interrupted by an objection, the record shows no indication that defendant was unable to remember the question after the trial court ruled on the objection. For example, defense counsel asked defendant:
"Q. *** During the time that you dated Gina Giberson between 2012 and 2014, did you know her to use illegal drugs?
[PROSECUTOR]: Objection, Your Honor, relevance—
THE COURT: Overruled.
[PROSECUTOR]: —and foundation.
DEFENDANT STEEPLES: Constantly."
For another example, defense counsel asked defendant:
"Q. Larry, did you intentionally kill Gina Giberson on April 7, 2014?
A. [PROSECUTOR]: Objection, Your Honor, calls for a legal conclusion.
THE COURT: Overruled.
DEFENDANT STEEPLES: No, I never."
Also, on redirect examination, after defense counsel asked defendant some questions, she asked him if he could remember something the prosecutor had asked him in the preceding cross-examination:
"Q. The State's Attorney asked you about your relationship with Gina Giberson[,] and he asked you how volatile it was, correct?
A. Correct."
Apparently, then, the "interference" of defense counsel's intervening questions did not erase defendant's memory of the prosecutor's cross-examination.
¶ 66 In sum, notwithstanding Frey's unsupported conclusion of unfitness, a reasonable conclusion may be drawn from the record that defendant was able to assist in his defense. See Baugh, 358 Ill. App. 3d at 735-36. As this court wrote in People v. Bleitner, 189 Ill. App. 3d 971, 976 (1989):
"[T]he mere fact a psychiatrist expressed the opinion defendant was unfit does not mandate a similar finding by the trial court. The ultimate issue is for the trial court, not the experts, to decide. The credibility and weight to be given psychiatric testimony in a fitness hearing are for the trier of fact. [Citation.] The trial court
should analyze and evaluate the factual basis for the expert's opinion rather than relying on the ultimate opinions themselves."
¶ 67 For the reasons stated, we conclude that the finding of fitness is not against the manifest weight of the evidence. The presumption of defendant's fitness to stand trial is unrebutted. See 725 ILCS 5/104-10 (West 2014).
¶ 68 B. The Impartiality of the Trial Court
¶ 69 1. "Performing an Extensive Investigation of Sources
of Evidence in Which the State Showed Little Interest"
¶ 70 In the fitness hearing, the trial court, on its own initiative, called Dennis Drake as a witness. Also on its own initiative, the court considered disciplinary and medical records pertaining to defendant from the Illinois Department of Corrections. Defendant claims that by doing those things on its own initiative, the court cast aside its impartiality and became an advocate for the prosecution.
¶ 71 Defendant acknowledges that "a court both generally and in fitness hearings specifically has discretion to present its own evidence and question witnesses in order to elicit truth and clarify obscure issues." He cites, among other authorities, Illinois Rule of Evidence 614 (eff. Jan. 1, 2011), which, in paragraphs (a) and (b), provides:
"(a) Calling by Court: The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine the witnesses thus called.
(b) The court may interrogate witnesses, whether called by itself or by a party." Ill. Rs. Evid. 615(a), (b) (eff. Jan. 1, 2011).
Also, he quotes section 104-11(c) of the Code of Criminal Procedure of 1963, which provides that, in a fitness hearing, "the court may call its own witnesses and conduct its own inquiry." 725
ILCS 5/104-11(c) (West 2014). Defendant contends nevertheless that in exercising its powers to "call its own witnesses and conduct its own inquiry" (id.), the trial court must not become an advocate for one party or the other. People v. Evans, 2017 IL App (1st) 150091, ¶ 25. We agree but conclude on this record that although we understand defendant's concerns, the trial court's conduct at the fitness hearing was not inappropriate.
¶ 72 Locating the line between an impartial search for truth and advocacy for one party or the other can be problematic, considering that the evidence the court adduces might aid one party or the other, perhaps decisively. The line is fuzzy because, as defendant acknowledges, the mere fact that the evidence aids one party or the other does not mean the court crossed the line into advocacy; additional relevant evidence always has the potential to aid one party or the other. See People v. Murray, 194 Ill. App. 3d 653, 658 (1990).
¶ 73 If a resulting benefit to one party or the other does not amount to advocacy, what does? Defendant has an answer. It is advocacy, he argues, for a court to come up with new ideas for one party or the other and to implement them sua sponte. On the authority of Village of Kildeer v. Munyer, 384 Ill. App. 3d 251, 260-61 (2008), and In re R.S., 117 Ill. App. 3d 698, 704-05 (1983), he argues a court lacks discretion "to open up entire areas of inquiry in which the parties have expressed no interest." The new "area of inquiry" in Munyer, so to speak, was sua sponte using previously admitted evidence as other-crimes evidence (Munyer, 384 Ill. App. 3d at 261), and the new "area of inquiry" in R.S. was sua sponte calling a witness and eliciting testimony from him that the respondent-minor was an accomplice in the charged burglary. R.S., 117 Ill. App. 3d at 704. Defendant argues that in the present case, the trial court impermissibly opened up an entire area of inquiry by calling Drake as a witness and by putting into evidence the records from the Illinois Department of Corrections.
¶ 74 This argument, however, puts defendant into an apparent contradiction. If calling Drake as a witness and putting into evidence the records from the Department of Corrections had to be the State's idea instead of the trial court's idea, the court really did not have authority to, as defendant says, "present its own evidence" and, as section 104-11(c) says, "call its own witnesses and conduct its own inquiry." 725 ILCS 5/104-11(c) (West 2014). It is unclear how a court has authority to "conduct its own inquiry" (emphasis added) (id.) if, as defendant argues, a court may not "open up entire areas of inquiry in which the parties have expressed no interest."
¶ 75 In any event, we disagree that the trial court opened up an entire area of inquiry in which the parties had expressed no interest. Frey's report already was an area of inquiry in the fitness hearing. The court had the right to explore whether her impressions and test results squared with the reality of defendant's day-to-day existence. See 725 ILCS 5/104-16(b)(2), (3) (West 2014). According to Frey, the "Booklet Category Test" suggested that defendant had difficulty "learn[ing] new material and apply[ing] what [was] learned to subsequent similar tasks." She also found that "[w]hen he [was] overwhelmed with information or stimuli, he [could not] process what [was] happening, [and] he panic[ked] and overreact[ed]." One might expect that these difficulties or vulnerabilities would manifest themselves in the workplace. To find out, the court called defendant's former employer, Drake, as a witness. Also, Frey opined that defendant lacked "the processing ability to understand his actions or to control his over reactiveness to situations." If that were an accurate description of defendant, one might expect him to have a disciplinary or medical history at the Department of Corrections—thus the court's acquisition and presentation of those records.
¶ 76 In short, "a trial judge may aid in bringing out the truth in a fair and impartial manner." People v. Evans, 2017 IL App (1st) 150091, ¶ 25. To that end, Illinois Rules of
Evidence 614(a) and (b) (Ill. Rs. Evid. 614(a), (b) (eff. Jan. 1, 2011) permit the trial judge, sua sponte, to call his or her own witnesses and to question them. Id. ¶ 25. The trial court in this case exercised such authority in an impartial manner, allowing defendant ample opportunity to object to Drake's testimony and the records from the Department of Corrections. Cf. Munyer, 384 Ill. App. 3d at 261 (by announcing, sua sponte, that it would regard certain evidence as other-crimes evidence, without allowing an opportunity for the parties to make arguments for and against the use of the evidence for that purpose, the trial court created an appearance that it was working in tandem with the prosecution). We find no abuse of discretion in this respect. See Evans, 2017 IL App (1st) 150091, ¶ 31. The court is presumed to have been impartial, and defendant has failed to carry his burden of rebutting that presumption. See People v. Faria, 402 Ill. App. 3d 475, 482 (2010).
¶ 77 2. "Bending the Rules of Evidence"
¶ 78 a. Beck
¶ 79 The State called defendant's cellmate, Sean Beck, and elicited from him testimony that defendant had expressed an intent to feign post-traumatic stress disorder. Afterward, the trial court asked Beck what defendant had told him about the offense. Beck answered that defendant had recounted beating Giberson with a studded belt on an occasion when she pulled a baseball bat on him. Also, according to Beck, defendant had told him that, in the early morning hours before shooting Giberson, he waited across the street from her house, watching the house and pulling the trigger of the pistol. On redirect examination, the State asked Beck if defendant was "able to tell [him] how many rounds were fired." Beck answered, "Five." Then the State asked Beck if defendant had said anything about a plea deal. Beck answered,
"One year for every round he put in her." Also, according to Beck, defendant had remarked that five rounds were not enough for Giberson.
¶ 80 At that point, defense counsel objected on the ground of relevancy. In response, the trial court reasoned that statements defendant had made regarding the offense were relevant to his ability to recall events. Ultimately, though, the court ruled:
"THE COURT: ***
I'm going to sustain the objection. I've heard enough testimony regarding—
DEFENDANT STEEPLES: He's a liar.
THE COURT: Regarding the statements."
¶ 81 Defendant argues that, in its questioning of Beck, the trial court displayed bias against him by "mov[ing] beyond any plausible relevance to the fitness hearing" and embarking on "a general hunt for any comments [defendant] had made 'about the offense,' that is, admissions of guilt." He claims the court "abandoned its role as a neutral fact[ ]finder in bending the rules of evidence to allow both itself and the State to present evidence prejudicial to [him]." Although the court reasoned that such evidence was relevant to defendant's powers of memory, defendant argues, "[defendant's] gross memory of the events surrounding the shooting was not at issue. Frey had opined not that [defendant] was suffering from amnesia, but from an inability to appropriately focus in conversations with defense counsel." (Emphasis in original.)
¶ 82 However, Frey also opined that defendant "[did] not have the processing ability to understand his actions." Beck's testimony was relevant to the question of whether defendant had such "processing ability." Arguably, if defendant was able to "recollect" and "relate" his actions to Beck (725 ILCS 5/104-16(b)(2) (West 2014)), from the time he waited outside Giberson's
house to the time he shot her—and not only recount his actions in vivid detail (e.g., doing a mock shooting ahead of time by idly pulling the trigger) but express a wish that he had fired more rounds into her, even if it meant serving a year of imprisonment for each round—defendant had "the processing ability to understand his actions."
¶ 83 Section 104-16(b)(2) provides:
"(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:
***
(2) The defendant's ability to observe, recollect[,] and relate occurrences, especially those concerning the incidents alleged ***." 725 ILCS 5/104-16(b)(2) (West 2014).
Following the plain terms of this statute was not indicative of bias.
¶ 84 b. An Incorrect Rationale for Overruling an
Admittedly Unmeritorious Foundation Objection
¶ 85 When the State offered defendant's correspondence in evidence, defense counsel objected on the ground of a lack of foundation. The trial court overruled the objection, stating, "This is a proceeding civil in nature." Although defendant acknowledges that the correspondence was admissible under Illinois Rule of Evidence 901(b)(4) (eff. Jan. 1, 2011) (providing that a document can be authenticated by "distinctive characteristics, taken in conjunction with the circumstances"), he argues the court revealed its bias against him by contriving a "baseless rationale" for a ruling that "was ultimately sound." According to defendant, the court's rationale was baseless for two reasons: (1) the fitness hearing was part of a criminal proceeding and thus was regulated by the Code of Criminal Procedure of 1963 (725 ILCS 5/100-1 et seq. (West 2014)), and (2) even if the hearing were civil in nature, the same standard for establishing a
foundation applied to criminal and civil evidentiary hearings, i.e., a document was authenticated by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Ill. R. Evid. 901(a) (eff. Jan. 1, 2011).
¶ 86 Actually, the trial court was correct that "a fitness hearing is a preliminary civil proceeding separately conducted to determine an accused's competency to stand trial." People v. Williams, 205 Ill. App. 3d 715, 721 (1990). Nonetheless, defendant is correct that the standard for laying a foundation is the same regardless of whether the proceeding is civil or criminal. See Ill. R. Evid. 901(a) (eff. Jan. 1, 2011). Even so, "[e]rroneous rulings by the trial court are insufficient reasons to believe that the court has a personal bias for or against a litigant." (Internal quotation marks omitted.) People v. Tally, 2014 IL App (5th) 120349, ¶ 44. An erroneous rationale for a correct ruling is even less of a reason to believe a court is biased.
¶ 87 c. "Finding Irrelevant Bases on Which To Discredit Dr. Frey's Opinion"
¶ 88 Defendant argues that "the trial court focused heavily on features of Dr. Frey's opinion with no obvious connection to its credibility in order to reject it: the delay in the return of the report, the lack of unnecessary detail in the report, and the initial omission of an opinion whether [defendant] could be returned to fitness within a year."
¶ 89 But those were not the reasons the trial court gave for disagreeing with Frey. The court was quite clear about its reasons:
"If I were simply to accept Dr. Frey's opinion that [defendant] is unfit because he's a danger in the courtroom or he's unable to concentrate or to remember, I would have to reject all of the observations made by myself and the prior judges, including all this year in proceedings where he's entered pleas, he's acknowledged understanding, he's cooperated with attorneys. I would have to
reject his employer, who had very good things to say about him. Mr. Drake, who just a few weeks prior to [defendant's] being take[n] into custody, reported that he had no issues that Dr. Frey was concerned about, no issues in getting along and communicating and understanding, in remembering tasks or following tasks. That draws me to the conclusion that I reach that it isn't an ability issue, but it's a desire issue with respect to [defendant's] conduct.
If I am also to consider all of the evidence, it appears there is evidence in this case offered by witness called by the State today [(that is, Beck)] that [defendant] is actively practicing a defense to his case by feigning symptoms of a disease that perhaps would be a defense to the charge."
At this point, defendant further practiced a defense: he interrupted the judge to denounce Beck as a "jailhouse snitch" with "no credibility," and he deplored the "pettiness" of the State in calling such a witness, who, as he put it, had come "in here to steal a noodle." He characterized the proceedings as "pathetic," given that this clearly was a "self-defense case here."
¶ 90 After assuring defendant that the trial court was not denying he had a "legitimate defense" in the upcoming jury trial, the court continued: "But my findings are based on the way you have behaved in court, appropriately and competently, and I know you have the ability to do that with your attorney if you so choose."
¶ 91 Thus, the trial court's reason for disagreeing with Frey was not her delay in writing her report or her initial failure to include in her report a diagnoses and an opinion as to when defendant would be fit to stand trial. Rather, the court disagreed with Frey because her opinions that defendant "was unfit because [he was] a danger in the courtroom" and was "unable to concentrate or remember" were inconsistent with the court's own observations of him. We do
not see how the court could be fairly criticized in this respect. After all, the issue of fitness was for the court, not the expert, to decide (see People v. Bilyew, 73 Ill. 2d 294, 302 (1978)), and we have repeatedly exhorted trial courts that they must be active, not passive, in assessing a defendant's fitness. People v. Gillon, 2016 IL App (4th) 140801, ¶ 21; People v. Shaw, 2015 IL App (4th) 140106, ¶ 25. "[Lay] opinions of mental condition or capacity[,] based on facts observed, including conversations," "may overcome an expert opinion." Bleitner, 189 Ill. App. 3d at 976. The court's own observations of the defendant can serve as a basis for rejecting an expert's conclusion of unfitness, especially if the conclusion has no valid basis. Baugh, 358 Ill. App. 3d at 735-36.
¶ 92 III. CONCLUSION
¶ 93 For the reasons stated, we affirm the trial court's judgment, and we award the State $75 in costs against defendant.
¶ 94 Affirmed.