{ "id": 4292575, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ASUQUO ESANG, Defendant-Appellant", "name_abbreviation": "People v. Esang", "decision_date": "2009-12-09", "docket_number": "No. 1\u201407\u20142235", "first_page": "833", "last_page": "842", "citations": [ { "type": "official", "cite": "396 Ill. App. 3d 833" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "554 U.S. 164", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3677287 ], "weight": 3, "year": 2008, "opinion_index": 0, "case_paths": [ "/us/554/0164-01" ] }, { "cite": "121 Ill. App. 3d 548", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3559978 ], "year": 1984, "pin_cites": [ { "page": "550-51" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0548-01" ] }, { "cite": "179 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801358 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "553-54" }, { "page": "545-46" }, { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0541-01" ] }, { "cite": "30 Ill. 2d 611", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826213 ], "year": 1964, "pin_cites": [ { "page": "616-17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0611-01" ] }, { "cite": "158 Ill. App. 3d 860", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3578588 ], "year": 1987, "pin_cites": [ { "page": "865" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/0860-01" ] }, { "cite": "347 Ill. App. 3d 278", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3948572 ], "year": 2004, "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0278-01" ] }, { "cite": "109 Ill. App. 3d 852", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448787 ], "year": 1982, "pin_cites": [ { "page": "855" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0852-01" ] }, { "cite": "73 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5440812 ], "year": 1978, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0294-01" ] }, { "cite": "322 Ill. App. 3d 177", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126425 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "179" }, { "page": "179" }, { "page": "179-80" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0177-01" ] } ], "analysis": { "cardinality": 928, "char_count": 20510, "ocr_confidence": 0.75, "pagerank": { "raw": 4.9000268466172346e-08, "percentile": 0.30906473697887404 }, "sha256": "4dee67ffb02713a7d460a4df9428382c5c66e8a85efb905052aee61b3cecdde8", "simhash": "1:b4f9f120571ac3cd", "word_count": 3384 }, "last_updated": "2023-07-14T21:39:01.503812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ASUQUO ESANG, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COLEMAN\ndelivered the opinion of the court:\nFollowing a jury trial in which he acted as his own counsel, Asuquo Esang was convicted of aggravated battery of a police officer and resisting arrest and sentenced to two concurrent two-year terms of imprisonment. He seeks reversal of his convictions, asserting that (1) the trial court erred in finding him competent to waive his right to counsel at a hearing to determine his fitness to stand trial; (2) the court failed to conduct a sufficient hearing to determine his fitness to stand trial; (3) the court improperly removed him from the courtroom, depriving him of the right to present evidence in his defense or make a closing argument; (4) the court erred in failing to appoint standby counsel; and (5) his conviction for resisting arrest, because it arose from the same physical act as his conviction for aggravated battery of a police officer, must be vacated as violative of the one-act, one-crime principle. We find that the trial court, having once found Esang unfit to stand trial, did not conduct a hearing sufficient to support its finding that he had been restored to fitness. We accordingly reverse his convictions and remand for further proceedings.\nBACKGROUND\nOn July 21, 2005, Cook County sheriffs deputies were called to respond to a report of a disturbance outside of administrative offices in the Daley Center in Chicago. Deputy Sheriff Phillip Mackey testified that defendant Asuquo Esang was upset and yelling about not being able to see someone about a case. Mackey and other officers asked Esang to leave the building, he refused, the officers attempted to remove him, and a struggle ensued in which officers reported that they had been kicked and bitten. Esang was charged with aggravated battery and resisting or obstructing a peace officer.\nIn August 2005, the office of the Cook County public defender was appointed to represent Esang, and in October 2005, the appointed public defender asked that Esang\u2019s fitness for trial be evaluated. A clinical psychologist, Dr. Debra Ferguson, provided the court with the written opinion that although Esang may have been \u201csuffering from a Delusional Disorder,\u201d he was aware of the charges against him, familiar with legal proceedings and the roles of court personnel, and able to assist in his own defense. The psychologist\u2019s report concluded that Esang was fit to stand trial and sane at the time of his alleged crimes. On November 7, 2005, the trial court found Esang fit to stand trial. In December 2005, Esang informed the trial court that he was having a hard time with his appointed counsel and that he wished to have a different attorney appointed to represent him. In January 2006, after Esang repeatedly informed the court that he did not wish to be represented by the public defender, the trial court admonished him of his rights and obligations regarding appointed counsel and self-representation, and then ruled that Esang could represent himself.\nIn February 2006, Esang filed a \u201cMotion For Judgment of the Pleadings to Dismiss Indictment for Cause of Harassment and Intimidation, Abuse of Process, Pre-Indictment Delay and Case Mismanagement.\u201d At a March 2, 2006, hearing on the motion, the prosecution, asked for its response to Esang\u2019s motions, commented, \u201cOur position is the motions failed to support, he actually fails to support in his motions, any assertions he makes in the motions with any substantive evidence. They are rambling assertions, they touch on topics that are collateral to the substantive charge in this case. What the defendant appears to be complaining of is simply that he\u2019s unhappy about being in custody and unhappy about facing criminal charges. But nothing he touches on in his motions actually touches on the charges on the case at bar.\u201d\nAt the same hearing, the court stated to Esang, \u201cWhat you filed here is incomprehensible and incapable of being responded to.... It\u2019s a lot of gibberish is what it is. You\u2019re representing yourself and you don\u2019t know what you\u2019re doing. And you have a serious case here.\u201d The court also remarked, \u201cYou were indicted in a timely manner within the statute of limitations. Case was assigned to Judge Moran. Because you weren\u2019t happy there, it was reassigned to me. It was proceeding. In a timely fashion, until you fired your lawyer. After you went to the 10th floor to see if you were fit to stand trial. Probably should go back there again because your delusions indicate to me that you may not be fit for trial.\u201d\nAt hearings on April 21, May 30, and June 1, 2006, Esang contended that he had not received from the prosecution various items of discovery. At the May 30 hearing, the court advised Esang, \u201cYou need a lawyer, sir.\u201d Esang answered, \u201cYour Honor, I am not willing to do that, Judge.\u201d On June 1, 2006, Esang made additional assertions regarding documents he had not been given, and the court interjected: \u201cThe more I hear you saying things, Mr. Esang, the more you articulate yourself \u2014 the more I\u2019m of the opinion you\u2019re going to go to the 10th Floor to be examined. I don\u2019t think you\u2019re competent to stand trial.\u201d Over Esang\u2019s objection, the court ordered a second clinical examination.\nOn July 14, 2006, Dr. Ferguson, the clinical psychologist who found Esang fit to stand trial in November 2005, reported to the court that Esang would not cooperate with a second examination, making a comprehensive fitness examination impossible. Ferguson stated that Esang manifested \u201cparanoid, persecutory and grandiose delusions which significant[ly] impair his perceptions of reality.\u201d Her report continued: \u201cHis current thinking is predominated by these irrational beliefs and render him unable to have a rational understanding of the nature of the proceedings against him and or to realistically assess his legal situation.\u201d Ferguson concluded that Esang was unfit to stand trial. On August 23, 2006, a jury found Esang unfit for trial, and also found that there was a substantial probability that, if provided with treatment, he would attain fitness within one year. Esang was placed in the custody of the Department of Mental Health and Developmental Disabilities on November 21, 2006. He continually objected to further fitness proceedings, insisting that he was fit to stand trial and that the proceedings merely delayed the presentation of his defense on the criminal charges.\nOn March 14, 2007, forensic psychiatrist Jonathan Kelly advised the trial court by letter that he had examined Esang and that Esang was fit to stand trial. The court also received a 90-day evaluation dated March 7, 2007, and signed jointly by clinical psychologist Michael Watrous and psychiatrist Farzana Husain. The 90-day evaluation noted that throughout the course of his hospitalization, Esang had \u201cengaged in obstinate and contrary behavior,\u201d \u201cvehemently refused all psychotropic medication,\u201d \u201crefused to acknowledge any mental or personality condition,\u201d and \u201coccasioned several instances of contemptuous and noncompliant behavior which has resulted in the mobilizing of security staff.\u201d The evaluation reported that Esang agreed to take medication for his physical problems and always attended fitness restoration group sessions.\nOn March 15, 2007, the court advised Esang of the fitness evaluations. \u201cSo, Mr. Esang, you are here today on the basis of two reports by doctors saying that you are fit for trial. In order to put the case back on the trial calendar we must restore you to fitness, which can be done simply by stipulating to those reports.\u201d The court asked if Esang would stipulate to the reports, and he asked for copies. The court then asked again, \u201cSo, are you in concurrence with the opinion of the psychiatrist?\u201d\nEsang replied, \u201cWell, normally like I said before I always feel fit. There was never a time I disagreed I am not fit to stand trial.\u201d\nThe court continued, \u201cSo, you are saying you agree with their conclusions that you are fit for trial?\u201d\nEsang answered, \u201cYour Honor it is not that I am not agreeing, that I have agreed with their conclusion. My conclusion has totally been affirmed that I agreed. This is me that was here last. I didn\u2019t take no psychiatric treatment. I didn\u2019t know, take no, any kind of medication from them, take nothing from them. This is me. I have always been fit. This report, those testimony from Miss Debra Ferguson was nothing but formalities.\u201d\nThe court stated, \u201cI understand you are saying you are fit for trial,\u201d and Esang responded, \u201cI am fit for trial. I have been fit for trial right from day one. Statement of Miss Ferguson doesn\u2019t count.\u201d The court concluded, \u201cWe will indicate the defendant is restored to fitness.\u201d After extended discussion about Esang\u2019s wishes, the court appointed the office of the public defender to represent him at trial.\nOn May 11, 2007, Esang\u2019s appointed counsel advised the court that his client desired to file motions that he could not agree to present and asked that the office of the public defender be permitted to withdraw from the matter. Esang advised the court of his belief that counsel was not representing him effectively and stated that he had a constitutional right to object to his attorney\u2019s performance. The court answered, \u201cYou would if this case were just starting here, but I don\u2019t believe you\u2019re competent to represent yourself.\u201d The court denied counsel\u2019s motion to withdraw.\nCounsel advised the court that Esang would not cooperate with his attempts to prepare an answer to the prosecution\u2019s charges, and the court commented, \u201cMaybe the answer is that he should go back to the 10th floor and have him examined. If he\u2019s not able to cooperate with counsel \u2014 he obviously is not able to represent himself.\u201d The court then ordered a third behavioral clinical examination. On May 22, 2007, forensic psychiatrist Jonathan Kelly advised the court by letter that he had examined Esang on May 16. In Kelly\u2019s opinion, Esang was \u201cable to assist in his defense, if he chooses to do so.\u201d Kelly also stated that Esang\u2019s \u201clack of cooperation and oppositional behavior are volitional and likely related to his Personality Disorder, rather than due to a mental illness.\u201d Kelly concluded that Esang was fit to stand trial.\nOn May 25, 2007, Esang again discussed with the court his desire to represent himself:\n\u201cESANG: I\u2019m going to represent myself.\nTHE COURT: You understand you have a right to have a lawyer?\nESANG: Judge, if he want to withdraw, let him withdraw, but I want\u2014\nTHE COURT: He didn\u2019t say he wanted to withdraw. I\u2019m asking you what you want to do.\nESANG: Judge, I want to represent myself. If he want to stand in the fashion of limited representing, fine. If you want to withdraw, fine.\nTHE COURT: I haven\u2019t heard him say he wants to withdraw. They say that you\u2019re fit for trial as long as you cooperate, if you want to.\nESANG: Your Honor, I want Mr. Maldonado to withdraw and I want the motion because it\u2019s an appealable motion.\nTHE COURT: And you know that you have a right to have appointed counsel?\nESANG: I know, Your Honor.\nTHE COURT: And you don\u2019t want appointed counsel?\nESANG: At this time, no.\nTHE COURT: You want to represent yourself as you did once before?\nESANG: I want to represent myself, and I am asking that my motion should be responded in writing just as I did in writing.\nTHE COURT: We\u2019ll get to that. First of all, I want to make sure that Mr. Maldonado is not going to represent you.\nESANG: Yes, Your Honor.\nTHE COURT: I\u2019ll give you leave to withdraw, Mr. Maldonado.\nPUBLIC DEFENDER: Thank you, Your Honor.\u201d\nEsang\u2019s jury trial commenced on June 4, 2007. Esang made an opening statement and cross-examined the three officers who testified for the prosecution regarding his arrest. After the close of the prosecution\u2019s case, Esang expressed a desire to present \u201cexhibits,\u201d which apparently consisted of police reports, hospital records and grand jury transcripts intended to impeach the arresting officers\u2019 testimony about the injuries they suffered in their encounter. Outside the presence of the jury, the court ruled that the exhibits were inadmissible hearsay. Esang continued the discussion after the jury was recalled, stating, \u201cYou are not being fair, Your Honor,\u201d and asserting that the exhibits were not hearsay.\nAsked if he had evidence other than the excluded exhibits, Esang again referred to the exhibits and suggested that the exhibits should be permitted in lieu of witnesses. The court responded, \u201cI wasn\u2019t supposed to call anybody. You decided who you wanted to call. You fired your lawyer, you should have made arrangements to call.\u201d Esang said, \u201cYour Honor, that\u2019s irrelevant. If I can\u2019t submit evidence, if you don\u2019t allow me to submit evidence, what else is there?\u201d\nThe court then ordered Esang removed from the courtroom and he was not present for the remainder of the trial, including the prosecution\u2019s closing argument, the instruction of the jury, and the jury\u2019s return of guilty verdicts on one count of aggravated battery and one count of resisting or obstructing a peace officer. The trial court sentenced him to a two-year term of imprisonment for each count, to be served concurrently. This appeal followed.\nANALYSIS\nEsang contends that the March 2007 hearing that determined him to be fit to stand trial was insufficient. We agree. \u201cA trial court\u2019s determination of fitness may not be based solely upon a stipulation to the existence of psychiatric conclusions or findings.\u201d People v. Contorno, 322 Ill. App. 3d 177, 179 (2001). \u201cThe ultimate decision as to a defendant\u2019s fitness must be made by the trial court, not the experts. People v. Bilyew, 73 Ill. 2d 294, 302 (1978). A trial court must analyze and evaluate the basis for an expert\u2019s opinion instead of merely relying upon the expert\u2019s ultimate opinion. In re T.D.W., 109 Ill. App. 3d 852, 855 (1982).\u201d Contorno, 322 Ill. App. 3d at 179. See also People v. Goodman, 347 Ill. App. 3d 278, 287 (2004). When a defendant has previously been found unfit, a finding of restored fitness must be based not only upon a stipulation to the conclusion of psychiatric reports, but upon an affirmative exercise of the court\u2019s discretion to determine the defendant\u2019s mental state. People v. Thompson, 158 Ill. App. 3d 860, 865 (1987). In the instant case, the trial court\u2019s finding that Esang had been restored to fitness appeared to be based solely upon his stipulation to psychiatric conclusions that he was fit to stand trial. To accept defendant\u2019s opinion that he is able to cooperate with counsel in his defense, when the purpose of the hearing is to determine that very fact, would make a sham out of the sanity hearing. People v. McKinstray, 30 Ill. 2d 611, 616-17 (1964). Esang\u2019s stipulation was especially unreliable in light of the medical evaluation\u2019s report, confirmed by Esang himself, that he had refused all psychotropic treatment, thereby suggesting that his medical condition was minimally changed from the time of the earlier finding that he was unfit.\nA trial court\u2019s failure to independently analyze and weigh expert testimony in making a fitness finding is a constitutional error, properly considered under the plain error doctrine and reversible unless it can be proved to be harmless beyond a reasonable doubt. People v. Contorno, 322 Ill. App. 3d at 179-80. Given the trial court\u2019s clear doubt about Esang\u2019s fitness to stand trial both before and after the March 2007 restoration determination, we cannot conclude that the insufficient fitness restoration hearing in the instant case was harmless beyond a reasonable doubt. Accordingly, we reject the State\u2019s contention that Esang has waived review of the issue by failing to raise it at trial and in a posttrial motion.\nThe State suggests that even if Esang\u2019s restoration hearing was inadequate, the proper remedy is a retrospective fitness hearing rather than a new trial. We are unpersuaded by this contention. Although in \u201cexceptional cases\u201d retrospective fitness hearings may accurately discern the mental state of a defendant during a trial held many years earlier, retrospective hearings \u201cwill normally be inadequate to protect a defendant\u2019s due process rights when more than a year has passed since the original trial and sentencing.\u201d People v. Neal, 179 Ill. 2d 541, 553-54 (1997). Our supreme court found such \u201cexceptional\u201d circumstances to be present in Neal, where the defendant asserted, not that he suffered from a long-standing condition that rendered him unfit, but that he was rendered unfit by the use of specific psychotropic drugs used at the time of his trial. 179 Ill. 2d at 545-46. The Neal court found that long after any individual use of the drugs in question, medical experts could establish that, when taken in known doses, they would not have caused impairment sufficient to render the defendant unfit to stand trial. \u201cIf the chemical properties of medication are such that their effects could accurately be assessed in light of a defendant\u2019s known medical history, *** it would not matter whether the evaluation followed the original trial and sentencing by 15 days or 15 years. The result would be the same.\u201d Neal, 179 Ill. 2d at 554.\nDoubt regarding Esang\u2019s fitness for trial in the instant case was noted by the court a full year prior to the fitness restoration hearing and was not asserted to have been produced by any specific prescription of medication. Since Esang\u2019s condition was not alleged to have been produced by a single, easily identified and readily assessed factor, and since his documented lack of cooperation with medical personnel limited the extent of his evaluations, we do not believe that the instant case presents the exceptional circumstance that would enable an accurate judgment of his mental state more than two years after his trial. We therefore conclude that the general principle stated by the Neal court must prevail here and that the inadequacy of Esang\u2019s restoration hearing requires reversal of his convictions and sentences.\nEsang also contends that despite his assertion of his right to represent himself, the court committed reversible error in failing to appoint counsel to represent him or, at minimum, to act as standby counsel. Where a bona fide doubt exists as to a defendant\u2019s competency to stand trial, that defendant cannot intelligently waive his constitutional right to representation by counsel and permitting him to represent himself is reversible error. People v. Rath, 121 Ill. App. 3d 548, 550-51 (1984).\nIn the instant case, Esang\u2019s in-court conduct, though exhibiting familiarity with the charges against him and the nature of the court proceedings, was sufficiently troubling to the court to prompt it to order, sua sponte, two additional medical examinations after the original examination requested by his counsel. We believe that the trial court\u2019s repeated and explicit expressions of concern regarding Esang\u2019s mental state demonstrated the existence of a bona fide doubt regarding his competency and that, in the presence of such doubt, Esang\u2019s waiver of his right to counsel cannot be held to have been intelligently made.\nWe also note that since Esang\u2019s trial, the United States Supreme Court has shed additional light on a court\u2019s ability to strike a balance between a defendant\u2019s right to determine the course of his own defense and the desire, readily apparent in the trial court\u2019s conduct here, to protect that defendant from the consequences of an unsound decision to represent himself. It has now explicitly been held that a defendant may be competent to stand trial while at the same time incompetent to represent himself and that, in such circumstances, he suffers no constitutional injury from a trial court\u2019s refusal to permit him to represent himself. Indiana v. Edwards, 554 U.S. 164, 171 L. Ed. 2d 345, 128 S. Ct. 2379 (2008).\nCONCLUSION\nFor the foregoing reasons, we reverse Esang\u2019s convictions and sentences and remand to the circuit court of Cook County for proceedings consistent with this opinion.\nReversed and remanded.\nQUINN and STEELE, JJ., concur.", "type": "majority", "author": "JUSTICE COLEMAN" } ], "attorneys": [ "Michael J. Pelletier, Patricia Unsinn, and Emily E. Filpi, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Anita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg, and Clare Wesolik Connolly, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ASUQUO ESANG, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201407\u20142235\nOpinion filed December 9, 2009.\nMichael J. Pelletier, Patricia Unsinn, and Emily E. Filpi, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nAnita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg, and Clare Wesolik Connolly, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0833-01", "first_page_order": 849, "last_page_order": 858 }