{ "id": 5770492, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROGER MOORE, Defendant-Appellant", "name_abbreviation": "People v. Moore", "decision_date": "2011-03-29", "docket_number": "No. 1\u201409\u20140662", "first_page": "706", "last_page": "714", "citations": [ { "type": "official", "cite": "408 Ill. App. 3d 706" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "189 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224783 ], "year": 2000, "pin_cites": [ { "page": "339", "parenthetical": "\"retrospective fitness hearings are now the norm\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0312-01" ] }, { "cite": "57 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3422167 ], "weight": 10, "year": 1978, "pin_cites": [ { "page": "813" }, { "page": "814" }, { "page": "811" }, { "page": "814" }, { "page": "814" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0809-01" ] }, { "cite": "72 Ill. 2d 421", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443843 ], "year": 1978, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0421-01" ] }, { "cite": "236 Ill. 2d 175", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3627570 ], "weight": 3, "year": 2010, "pin_cites": [ { "page": "186-87" }, { "page": "187" }, { "page": "186-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/236/0175-01" ] }, { "cite": "178 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385528 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "79" }, { "page": "79", "parenthetical": "\"Once the fitness question is raised, the burden falls on the State to establish a defendant's fitness by a preponderance of the evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0065-01" ] }, { "cite": "143 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592134 ], "year": 1991, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0501-01" ] }, { "cite": "193 Ill. 2d 63", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963717 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "110" }, { "page": "110-11" }, { "page": "110-11", "parenthetical": "\"a judge has a duty to order a fitness hearing sua sponte once facts are brought to the judge's attention that raise a bona fide doubt of the accused's fitness to stand trial or be sentenced\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0063-01" ] }, { "cite": "174 Ill. 2d 379", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223619 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "382", "parenthetical": "\"prosecuting a defendant where there is a bona fide doubt as to defendant's fitness renders the proceeding fundamentally unfair\"" }, { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0379-01" ] }, { "cite": "215 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060336 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "178-79" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0167-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186-87", "parenthetical": "a party must object both at trial and in a posttrial motion to properly preserve an issue for appeal" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] } ], "analysis": { "cardinality": 742, "char_count": 19197, "ocr_confidence": 0.767, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.16995643375347366 }, "sha256": "973b133cdd4bf5be0280d4cf53ab5c65c2a958b39d0409ed0118e586d2f863c6", "simhash": "1:eab7f8847a8a31ee", "word_count": 3216 }, "last_updated": "2023-07-14T17:25:24.186889+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. ROGER MOORE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HARRIS\ndelivered the judgment of the court, with opinion.\nPresiding Justice Cunningham concurred in the judgment and opinion.\nJustice Karnezis dissented, with opinion.\nOPINION\nDefendant, Roger Moore, was found guilty by a jury of delivery of a controlled substance and sentenced to seven years\u2019 imprisonment. 720 ILCS 570/401(d)(i) (West 2008). Defendant urges this court to consider whether statements he made to the trial court before his trial commenced, in which he indicated that he had not taken his medication on the day of trial or two days prior to trial, raised a bona fide doubt regarding his fitness to stand trial. We find that the court psychiatrist\u2019s testimony was uncontradicted that defendant needed to be on medications to be fit for trial. The defendant\u2019s not being on medication immediately before and during trial raised a bona fide doubt as to his fitness to stand trial. The trial court erred when it did not sua sponte order a fitness hearing. We remand with directions to the trial court to conduct a retrospective fitness hearing to determine the defendant\u2019s competency at the time of trial.\nJURISDICTION\nThe circuit court sentenced defendant on March 3, 2009. The following day, defendant timely filed his notice of appeal. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, \u00a76; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).\nBACKGROUND\nFollowing a jury trial, defendant was found guilty of delivery of a controlled substance and sentenced to seven years\u2019 imprisonment. 720 ILCS 570/401(d)(i) (West 2008). Prior to trial, the trial court conducted a fitness hearing on August 7, 2008. At the fitness hearing, Dr. Dawna Gutzmann, a psychiatrist with the Forensic Clinical Services for the circuit court of Cook County, testified as to defendant\u2019s fitness to stand trial. Dr. Gutzmann diagnosed defendant with depressive disorder, not otherwise specified, and alcohol, cocaine, and heroin dependence. Dr. Gutzmann testified she had the impression that defendant was \u201cmalingering,\u201d which she explained is \u201cthe intentional feigning or exaggerating of symptoms of physical or mental illness for secondary gain.\u201d Dr. Gutzmann testified that defendant reported to her that he was experiencing auditory hallucinations and that he heard voices, but that he could not understand what the voices were saying. Defendant was prescribed 150 milligrams of Zoloft to be taken each morning and 100 milligrams of doxepin at bedtime. Both medications are for treating depression. On direct examination, when asked whether defendant\u2019s prescribed medications \u201cimpact his ability to cooperate or assist in his defense with counsel,\u201d Dr. Gutzmann responded, \u201c[i]n my opinion, he needs those medications in order to be fit for trial.\u201d On cross-examination, Dr. Gutzmann added, \u201c[fit\u2019s my opinion that if he was not taking the medication, that he would\u2014 there is a substantial probability that he would become unfit to stand trial.\u201d On re-cross-examination, Dr. Gutzmann was asked whether she \u201cfound Mr. Moore fit to stand trial under the assumption that he would continue to be medicated up until and through the trial time.\u201d Dr. Gutzmann responded, \u201cYes.\u201d The trial court found defendant fit to stand trial with medication.\nPrior to selecting the jury, defendant\u2019s attorney renewed the issue of defendant\u2019s fitness to stand trial, arguing that there was no evidence that defendant was on any medication when the crime occurred. The State asked the court to inquire whether defendant had taken his medication, which the trial court did. The following exchange took place between the court and defendant:\n\u201cTHE COURT: When did you take [the medications] last?\nDEFENDANT: Yesterday. I didn\u2019t get none this morning. They didn\u2019t call me out.\nTHE COURT: And when do you take them; everyday?\nDEFENDANT: I take it twice a day.\nTHE COURT: Okay, if Counsel could double check on that. I\u2019m not sure what, if any, affect it would have if he hasn\u2019t yet had his today\u2019s dosage.\nBut you did have it yesterday?\nDEFENDANT: I had last night\u2019s dose but not this morning. I get it in the morning and at night.\nTHE COURT: And when prior to yesterday, when was the last time you got it?\nDEFENDANT: That morning. The morning \u2014 yesterday morning and then last night before we laid down and went to sleep.\nTHE COURT: Oh, you got it again last night.\nDEFENDANT: But I didn\u2019t get it this morning.\nMS. FRANSENE [assistant public defender]: He gets it two times a day.\nDEFENDANT: I get it twice a day.\nTHE COURT: Okay. And have you been getting it \u2014 other than today so far, have you been getting it everyday?\nDEFENDANT: Well, no, not really. A couple of times \u2014 because they had just moved from division eight over to two. So everything is just kind of messed up.\nTHE COURT: But you had it two times yesterday. What about the day before?\nDEFENDANT: No, I didn\u2019t get it.\nTHE COURT: If counsel wants to make an inquiry while we\u2019re on break and revisit it if it\u2019s really an issue, it doesn\u2019t appear to be an issue, but \u2014 the fact that he hasn\u2019t taken it yet today, but I\u2019ll certainly hear you out if that\u2019s the case.\u201d\nDefense counsel did not object to defendant\u2019s fitness based on his failing to receive his medications until after trial.\nAfter the two-day trial was completed, defense counsel filed a supplemental motion for new trial or judgment of acquittal arguing defendant was denied due process because he was tried while he may not have received his medications and, thus, was unfit to stand trial. Defense counsel informed the court that she could only obtain records that showed what medications defendant was taking and how often he was prescribed those medications, not whether defendant actually took the medications. The trial court denied defendant\u2019s motion, reasoning:\n\u201cDefense counsel made an unsuccessful effort to find out exactly when he had medicine, when he may not have had medicine. He was not able to ascertain that.\nThe court was satisfied both with the demeanor of the defendant and the fact he himself stated he had had his medicines as of a prior date.\u201d\nANALYSIS\nDefendant argues that there was a bona fide doubt as to whether he was fit to stand trial based on his indication to the trial court that he had not taken his medications regularly before the trial began. However, defendant did not properly preserve this issue for appeal. Although defendant did object in a posttrial motion to his fitness to stand trial due to his failure to receive his medications, defendant did not make the objection at trial. See People v. Enoch, 122 Ill. 2d 176, 186-87 (1988) (a party must object both at trial and in a posttrial motion to properly preserve an issue for appeal). Defense counsel did object before trial to defendant\u2019s fitness, but the objection was based on the defendant not being on any medication when the crime occurred. Defense counsel did not object, on the basis that defendant failed to receive his medication before trial, until after the trial was completed, even though the trial judge prompted defense counsel to inquire further into the matter. Defendant urges this court to consider his argument on the merits, despite having been forfeited due to a procedural default.\nWe may address defendant\u2019s appeal of his forfeited issue on the merits only if the defendant sustains his burden of persuasion on either of the two prongs of the \u201cplain error\u201d doctrine. The plain error doctrine allows this court to review a forfeited claim of error that affects a substantial right in two instances: \u201cwhere the evidence in a case is so closely balanced that the jury\u2019s guilty verdict may have resulted from the error and not the evidence\u201d or \u201cwhere the error is so serious that the defendant was denied a substantial right, and thus a fair trial.\u201d People v. Herron, 215 Ill. 2d 167, 178-79 (2005); see also Ill. S. Ct. R. 615(a) (\u201cAny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u201d). Under either prong, the defendant bears the burden of persuasion. Herron, 215 Ill. 2d at 187. Prejudice must be proven under the first prong of plain error review. Id. Under the second prong of plain error analysis, prejudice is presumed, but \u201cthe defendant must prove there was plain error and that the error was so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process.\u201d Id. A defendant\u2019s fitness for trial is a fundamental right. People v. Sandham, 174 Ill. 2d 379, 382 (1996) (\u201cprosecuting a defendant where there is a bona fide doubt as to defendant\u2019s fitness renders the proceeding fundamentally unfair\u201d). Accordingly, we will review defendant\u2019s argument regarding his fitness to stand trial on the merits under the second prong of the plain error doctrine.\nA defendant is entitled to a fitness hearing when there is a bona fide doubt as to his fitness to stand trial because it is a violation of the defendant\u2019s due process rights to convict him if he was not fit for trial. People v. McCallister, 193 Ill. 2d 63, 110 (2000). The inquiry into whether a bona fide doubt exists focuses on whether a defendant is able to assist in his defense and whether he can understand the nature and purpose of the proceedings. Id. Defendant has the burden \u201cof proving that, at the time of trial, there were facts in existence which raised a real, substantial and legitimate doubt as to his mental capacity to meaningfully participate in his defense and cooperate with counsel. The test is an objective one.\u201d People v. Eddmonds, 143 Ill. 2d 501, 518 (1991). When facts regarding a defendant\u2019s fitness are brought to the trial judge\u2019s attention, it is the duty of the trial judge to sua sponte order a fitness hearing. McCallister, 193 Ill. 2d at 110-11; see also 725 ILCS 5/104\u201411(a) (West 2008) (\u201cWhen a bona fide doubt of the defendant\u2019s fitness is raised, the court shall order a determination of the issue before proceeding further.\u201d). \u201cOnce the fitness question is raised, the burden falls on the State to establish a defendant\u2019s fitness by a preponderance of the evidence.\u201d People v. Griffin, 178 Ill. 2d 65, 79 (1997); see also 725 ILCS 5/104\u201411(c) (West 2008) (\u201cWhen a bona fide doubt of the defendant\u2019s fitness has been raised, the burden of proving that the defendant is fit by a preponderance of the evidence and the burden of going forward with the evidence are on the State.\u201d).\nFactors that may be considered in determining whether a bona fide doubt as to a defendant\u2019s fitness exists include, \u201ca defendant\u2019s irrational behavior, demeanor at trial, any prior medical opinion on the defendant\u2019s competence, and any representations by defense counsel on the defendant\u2019s competence.\u201d People v. Brown, 236 Ill. 2d 175, 186-87 (2010). Further, \u201c[n]o fixed or immutable sign, however, invariably indicates the need for further inquiry on a defendant\u2019s fitness. [Citation.] Rather, the question is often a difficult one implicating a wide range of manifestations and subtle nuances.\u201d Id. at 187. Whether a bona fide doubt as to a defendant\u2019s fitness exists \u201cdepends on the facts of each case.\u201d People v. Murphy, 72 Ill. 2d 421, 435 (1978). A defendant on medication prescribed to maintain fitness may be tried. People v. Jackson, 57 Ill. App. 3d 809, 813 (1978). The determination of whether a bona fide doubt exists regarding a defendant\u2019s fitness is typically a matter within the discretion of the trial court. Sandham, 174 Ill. 2d at 382.\nThe instant case is factually similar to this court\u2019s decision in People v. Jackson, in which we held that there was a bona fide doubt as to a defendant\u2019s fitness where the defendant had not received the medication prescribed to him to maintain his fitness. Jackson, 57 Ill. App. 3d at 814. The defendant in Jackson had two fitness hearings. Id. at 811. At the first fitness hearing, the psychiatrist testified that defendant understood the proceedings, but was unfit because he could not cooperate in his defense. Id. Six months later, at the second fitness hearing, the same psychiatrist testified that defendant would be fit for trial with medications. Id. The defendant was subsequently found fit to stand trial. Id. However, before defendant was to be sentenced, the trial court ordered a fitness examination with the results to be submitted at the sentencing hearing. Id. at 814. At the sentencing hearing, the court proceeded to sentence the defendant even though it was informed before the hearing that defendant was never given the ordered fitness examination and that prior to the fitness hearing, the defendant was not given his medications. Id. This court reversed, finding:\n\u201cBecause the court\u2019s finding of fitness prior to trial was based upon medical testimony that defendant was able to cooperate with his counsel only while being maintained with the prescribed medication and that at the time of sentencing he had not received his medication, we believe that a bona fide doubt was raised as to his fitness. Our opinion is buttressed by the fact that the court indicated concern in this regard when it ordered the presentence fitness examination.\u201d Id.\nIn this case, at defendant\u2019s fitness hearing, the uncontradicted testimony of Dr. Gutzmann was that defendant \u201cneeds those medications in order to be fit for trial,\u201d and that \u201cif he was not taking the medication *** there is a substantial probability that he would become unfit to stand trial.\u201d Dr. Gutzmann also answered \u201cYes\u201d when asked whether she found defendant \u201cfit to stand trial under the assumption that he would continue to be medicated up until and through the trial time.\u201d The opinion of a medical expert is a factor to consider when determining whether there is a bona fide doubt to a defendant\u2019s fitness. Brown, 236 Ill. 2d at 186-87. Furthermore, the trial court found defendant to be fit to stand trial with medication. Dr. Gutzmann diagnosed the defendant with a depressive disorder, and alcohol, cocaine, and heroin dependence. Up to the time of trial the defendant was on a substantial daily regime of two antidepressants, 150 milligrams of Zoloft and 100 milligrams of doxepin. During the trial the defendant told the court that he had not been given his medication because he was moved from division eight over to two and \u201ceverything is just kind of messed up.\u201d In order to be fit for trial, the defendant had to be on his medication. The fact that defendant had not been given his medication raised a bona fide doubt as to defendant\u2019s fitness. Jackson, 57 Ill. App. 3d at 814. The fact that this chemically dependent defendant was made to suddenly and totally go off his medication just prior to selecting the jury further raises a bona fide doubt as to defendant\u2019s fitness. The trial judge placed the burden on defense counsel to inquire into the matter, which defense counsel never did. That is not relevant as it was the duty of the trial court to sua sponte order a fitness hearing when a bona fide doubt as to defendant\u2019s fitness arises. McCallister, 193 Ill. 2d at 110-11 (\u201ca judge has a duty to order a fitness hearing sua sponte once facts are brought to the judge\u2019s attention that raise a bona fide doubt of the accused\u2019s fitness to stand trial or be sentenced\u201d).\nBased on Dr. Gutzmann\u2019s testimony that defendant was only fit for trial with medication, that \u201cthere is a substantial probability that he would become unfit to stand trial\u201d without the medication, and that he should continue the medication up to and throughout the trial, defendant\u2019s failure to receive his medication raised a bona fide doubt as to his fitness to stand trial. On this information, the trial court erred in not sua sponte ordering another fitness hearing where the State would have to prove defendant fit for trial. See Griffin, 178 Ill. 2d at 79 (\u201cOnce the fitness question is raised, the burden falls on the State to establish a defendant\u2019s fitness by a preponderance of the evidence.\u201d). Without the fitness hearing, it cannot be said what effect defendant\u2019s failure to receive his medication had on his fitness for trial. Accordingly, we remand, directing the trial court to hold a retrospective fitness hearing to determine what effect, if any, defendant\u2019s failure to regularly receive his medication had on his fitness to stand trial. See People v. Mitchell, 189 Ill. 2d 312, 339 (2000) (\u201cretrospective fitness hearings are now the norm\u201d).\nCONCLUSION\nFor the foregoing reasons we retain jurisdiction pursuant to Illinois Supreme Court Rule 615(b)(2) and remand this cause for a retrospective fitness hearing. Ill. S. Ct. R. 615(b)(2). After holding the hearing, the trial court shall deliver to the clerk of this court, within 120 days of this decision, a report of the trial court\u2019s findings and a record of the proceedings on remand.\nCause remanded with directions. Jurisdiction retained.\nDefendant raised several issues on appeal. However, due to our disposition of the issue of his fitness to stand trial, we need not consider his other arguments at this time.", "type": "majority", "author": "JUSTICE HARRIS" }, { "text": "JUSTICE KARNEZIS,\ndissenting:\nI respectfully dissent from the majority view that concludes the trial court should have sua sponte ordered a fitness hearing based on defendant\u2019s failure to regularly receive his medication. I believe that the specific facts of this case are not sufficient to establish a bona fide doubt as to defendant\u2019s fitness.\nDoes the fact that defendant, who had been found fit with medication and did not receive his medication two days before trial and again on the day of trial, standing alone, raise a bona fide doubt as to defendant\u2019s fitness to stand trial? Or, does a judge abuse his discretion where he fails, sua sponte, to order a fitness hearing based on the above factual situation?\nThe majority answers the question in the affirmative and remands this case for a retrospective fitness hearing. I respectfully dissent and suggest that the specific facts of this case are not sufficient to establish a bona fide doubt as to defendant\u2019s fitness and the trial court did not abuse its discretion where it failed to sua sponte order a fitness hearing. The fact that defendant did not receive a portion of his medication on the morning of trial and any of his medication two days prior, standing alone, does not raise a bona fide doubt as to defendant\u2019s fitness. I, therefore, respectfully dissent.", "type": "dissent", "author": "JUSTICE KARNEZIS," } ], "attorneys": [ "Michael J. Pelletier, Patricia Unsinn, Alan D. Goldberg, and Todd T. McHenry, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Anita M. Alvarez, State\u2019s Attorney, of Chicago (Alan J. Spellberg, Ashley A. Romito, Jon Walters, and Robert Schwarz, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROGER MOORE, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201409\u20140662\nOpinion filed March 29, 2011.\nMichael J. Pelletier, Patricia Unsinn, Alan D. Goldberg, and Todd T. McHenry, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nAnita M. Alvarez, State\u2019s Attorney, of Chicago (Alan J. Spellberg, Ashley A. Romito, Jon Walters, and Robert Schwarz, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0706-01", "first_page_order": 722, "last_page_order": 730 }