People v. Kinkead ( 1995 )

JUSTICE MILLER,

dissenting:

I do not agree with the majority’s conclusion that the defendant is entitled to have the present case remanded to the circuit court for the hearing required by today’s decision.

This case raises once more questions previously considered in People v. Gevas (1995), 166 Ill. 2d 461, and People v. Brandon (1994), 162 Ill. 2d 450, regarding the operation of section 104—21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104—21(a) (West 1992)). Section 104—21(a) provides that a defendant using psychotropic drugs is "entitled” to a fitness hearing. The defendant in the present case entered an open plea to charges of first degree murder, armed robbery, residential burglary, and home invasion and, following a capital sentencing hearing, was sentenced to death for the murder conviction. On appeal the defendant argues, among other issues, that he was entitled to a fitness hearing under section 104—21(a) because he had been taking the antipsychotic drug Thorazine around the time he entered his guilty plea. No issue regarding the defendant’s fitness was ever raised in the trial court, however, and so the defendant presses the related contention that defense counsel was ineffective in failing to request a fitness hearing pursuant to section 104—21(a).

As the majority opinion acknowledges, the record in this case fails to show both how much Thorazine the defendant was taking and when he was receiving it. To fill these gaps in the record, the majority proposes to remand the cause to the trial court so that the defendant can belatedly introduce evidence on this threshold issue and thus establish whether he might have been entitled to a fitness hearing under the provisions of section 104—21(a). Rather than being grounds for a limited remand, however, these missing pieces of information demonstrate to me the defendant’s utter failure to make an adequate record on matters he now wishes to raise on appeal.

More fundamentally, I disagree with the majority’s assertion that the legislature, through section 104—21(a), has essentially equated the use of psychotropic drugs with the presence of a bona fide doubt concerning fitness. Under the fitness provisions, a trial court is required to conduct a hearing when a bona fide doubt exists regarding a defendant’s competency. (725 ILCS 5/104—11(a) (West 1992) ("When a bona fide doubt of the defendant’s fitness is raised, the court shall order a determination of the issue before proceeding further”).) Relying on Brandon and Gevas, the majority concludes that a fitness hearing is also required under section 104—21(a) if the defendant is receiving psychotropic drugs, even though the defendant fails to make a timely request for a hearing. The majority effectively imposes on trial judges the duty to make a special inquiry in every case and to conduct a fitness hearing sua sponte if evidence of psychotropic drug usage is found. As the result in this case illustrates, unless the trial judge takes those steps, a defendant who was receiving psychotropic drugs at some point during the circuit court proceedings may wait until appeal to raise the question of fitness under section 104—21(a). The majority’s analysis, however, goes well beyond the terms of the statute.

To say that a defendant is "entitled” to a fitness hearing is much different from saying that a hearing is absolutely required in all circumstances, no matter how tardy the defendant’s request might be. A defendant may be "entitled” to a fitness hearing yet still be compelled to raise the issue in a timely manner; there is no inconsistency in requiring a defendant to establish his entitlement by invoking the statute in an appropriate fashion. Under the majority’s reasoning, however, the provision in question simply becomes a trump card that the defendant may play on appeal, following conviction and sentence, without regard to his failure to raise the issue properly in the trial court.

CHIEF JUSTICE BILANDIC and JUSTICE HEIPLE join in this dissent.