Later courts went against this
Overruled in part, on other grounds by People v. Lewis, 75 Ill. App. 3d 560 (1979)
People v. Morthole (1977), 51 Ill. App. 3d 919, 932, 366 N.E.2d 606, 615, overruled on other grounds, People v. Lewis (1979), 75 Ill. App. 3d 560, 393 N.E.2d 1380.
The opinion
Mr. JUSTICE GEORGE J. MORAN, dissenting:
I believe the evidence before the trial court in this case pertaining to defendant’s mental incompetence clearly raised a bona fide doubt as to his fitness to stand trial. Accordingly, I think the trial court abused its discretion in refusing to conduct a hearing to determine defendant’s fitness.
As the majority has noted, defense counsel made several motions for a fitness hearing during the trial. At one point, after the proceedings in the chambers were concluded, defendant was knocked unconscious by a fall as he returned to the court room. When he could not be revived he was taken to a nearby hospital and treated by Dr. Ko. Later that day the court and counsel questioned Dr. Ko as to the defendant’s ability to proceed with the trial. I think the following colloquy is very important:
“The Court: I mean, could he sit in a chair and listen physically?
Dr. Ko: I don’t think so.
The Court: You don’t think he can?
Dr. Ko: If it’s acute depression * * *.
The Court: I mean physically?
Dr. Ko: In normal conversation I don’t think so. It takes time.
The Court: I’m not talking about mentally. Is there any physical reason why he cannot sit in a chair and listen?
Dr. Ko: I very doubt it [sic].
The Court: That he physically cannot sit in a chair?
Dr. Ko: Physically he can sit down but I don’t think normal hearing or interpretation or judgment. My impression is that he may, you know, difficulty [sic].”
After this testimony of Dr. Ko, the court again denied defendant’s motion for hearing to determine his fitness to stand trial, restating his belief that defendant was faking an acute depressive reaction.
While the totality of the evidence is contrary to the trial court’s finding, it may well be that the defendant was in fact faking his apparent mental problems. However, without the fitness hearing with its appointed neutral experts, we are left in the position of merely guessing as to his actual mental state. It seems very likely that the trial judge confused the quantum of evidence necessary to grant a hearing to determine defendant’s competency with the ultimate quantum of proof necessary at the hearing. Similarly, we cannot apply the same standard in reviewing a sanity hearing that we use in determining whether the trial court committed error in refusing to grant such a hearing.
If the defendant is required to demonstrate his mental incompetence in his motion for a fitness hearing, then what is the purpose of having the hearing? Would not his preliminary proof have already established his incompetence, thereby eliminating the necessity for further evidence at such a hearing? The illogic of such a conclusion is obvious. I think it is clear that the evidence necessary to require a sanity hearing is far short of that necessary to actually establish mental incompetency. (See People v. McCullum, 66 Ill. 2d 306 , 362 N.E.2d 307 , where the Supreme Court of Illinois declared section 5 — 2—l(i) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—l(i)) unconstitutional to the extent that it places the ultimate burden of proving unfitness to stand trial on the defendant.)
Relying on the above distinction, I believe that while there may have been insufficient evidence in the record to indicate that the defendant was mentally unfit to stand trial, there was more than enough evidence to require a sanity hearing to make such a determination.