People v. Miraglia

Illinois Official Reports

Appellate Court

People v. Miraglia, 2013 IL App (1st) 120286

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KATHY MIRAGLIA, Defendant-Appellant.

District & No. First District, First Division
Docket No. 1-12-0286

Filed December 2, 2013

Held Where the appellate court found on direct appeal from defendant’s
(Note: This syllabus convictions for criminal sexual assault that the trial court erred when it
constitutes no part of the determined, outside defendant’s presence, that there was no bona fide
opinion of the court but doubt as to her fitness to stand trial that would require a fitness hearing
has been prepared by the and remanded the cause to the trial court for a retrospective fitness
Reporter of Decisions hearing, the trial court properly rejected defendant’s request for a jury
for the convenience of determination of her retrospective fitness, since the issue was raised
the reader.) after the trial began and the statute provides that the court is to
determine defendant’s fitness at that time, and in defendant’s case, the
trial court’s finding that she was fit at the time of the trial was not
against the manifest weight of the evidence, especially in view of the
testimony that she understood the nature of the proceedings and could
assist in her defense, there was no conclusive evidence she was taking
psychotropic medication at the time of the trial or was under any
specific doctor’s care, and there was no observation of any behavior
suggesting unfitness.

Decision Under Appeal from the Circuit Court of Cook County, No. 04-CR-15651; the
Review Hon. Gilbert J. Grossi, Judge, presiding.

Judgment Affirmed.
 Counsel on Michael J. Pelletier, Alan D. Goldberg, and Emily S. Wood, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
William L. Toffenetti, and Margaret G. Lustig, Assistant State’s
Attorneys, of counsel), for the People.

Panel JUSTICE HOFFMAN delivered the judgment of the court, with
opinion.
Justices Cunningham and Delort concurred in the judgment and
opinion.

OPINION

¶1 The defendant, Kathy Miraglia, appeals from the circuit court order which both denied her
a retrospective jury determination on the question of her fitness to stand trial and found her fit
to stand trial. For the following reasons, we affirm.
¶2 Following a bench trial in 2006, the defendant was convicted of two counts of criminal
sexual assault (720 ILCS 5/12-13(a)(4) (West 2004)) and sentenced to two consecutive
four-year terms of imprisonment. The evidence adduced at trial revealed the following facts. In
2003, the defendant, a clinical psychologist at Hillside Academy High School, held group
counseling sessions which included J.B., a 16-year-old male junior at the school. J.B. testified
that he began to meet with the defendant in private sessions and that their conversations
became “deeper.” They eventually exchanged phone numbers and the conversations became
sexual in nature. Thereafter, the defendant met with J.B. outside of school, and they engaged in
sexual intercourse. On several occasions, the defendant bought liquor for J.B. and gave him
money to buy marijuana, which they shared. Mike Miraglia, the defendant’s husband, testified
that on three separate occasions, he discovered letters written by the defendant to J.B.,
detailing the couple’s drug and alcohol use and their sexual relationship.
¶3 Prior to trial, the State raised the question of the defendant’s fitness to stand trial by
informing the court that records indicated that the defendant was taking antidepressant
medication and had checked herself into a mental health facility before her arrest in June 2004.
Defense counsel requested a hearing outside of the defendant’s presence to discuss the issue of
her fitness to stand trial. The court expressed its reservations, but granted counsel’s request and
ordered the courtroom cleared. Defense counsel informed the court that the defendant had
previously attempted suicide and had been hospitalized. He confirmed that she had been taking
antidepressant medication, but could not verify the specific medication. The court noted that it
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 had not developed any bona fide doubt concerning the defendant’s fitness, but opined that
defense counsel was better situated to make such a judgment and elicited his opinion. After
counsel concurred with the court’s assessment, the court concluded that was “all we have to go
on,” and the matter proceeded to trial without a fitness hearing.
¶4 On direct appeal, the defendant argued, in relevant part, that she was denied her right to be
present during a critical stage of the trial because the court discussed the issue of her fitness
outside of her presence. This court reviewed the issue, finding that a proceeding at which a
defendant’s fitness to stand trial is discussed is a critical stage for purposes of a defendant’s
right to be present. People v. Miraglia, No. 1-06-2654 (2008) (unpublished order under
Supreme Court Rule 23). We concluded that the trial court erred in excluding the defendant
from the proceeding and remanded “the matter to the trial court for a retrospective fitness
hearing.” Id. We held that, if the trial court determined that the defendant was unfit for trial, her
convictions should be vacated and the court should conduct further proceedings pursuant to
section 104-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/104-10 (West
2004)). Miraglia, No. 1-06-2654. We further held that, if the trial court determined that the
defendant was fit, her convictions and sentences shall stand. Id.
¶5 On remand, the matter was returned to Judge Grossi, the trial judge in Maywood who
presided over the defendant’s trial. The defendant requested that a jury be impaneled for
purposes of retrospectively determining her fitness to stand trial. Thereafter, the matter was
transferred to the criminal courthouse in Chicago where jury trials on fitness are conducted. On
April 12, 2011, the State moved to strike the defendant’s request for a jury determination on
the issue of her fitness, asserting that she was not entitled to a jury because the proceeding was
to take place after trial and after her convictions were entered of record.
¶6 On May 9, 2011, Judge Mary Brosnahan granted the State’s motion, finding that the facts
of the case did not present a scenario in which the defendant requested a jury determination of
her fitness hearing prior to trial. Rather, the court determined that, under the facts presented
here, the defendant was not entitled to a jury trial on the issue of her fitness as the issue of the
defendant’s fitness was first raised after her trial had begun. See People v. Melka, 319 Ill. App.
3d 431 (2000). The matter was then transferred back to Judge Grossi’s courtroom in Maywood
for a nonjury determination of the defendant’s fitness.
¶7 On August 3, 2011, the fitness hearing proceeded before Judge Grossi. Dr. Christofer
Cooper, a forensic psychologist, testified that he received the defendant’s medical records,
police reports, and transcripts of some of the trial court proceedings, including the defendant’s
statement in allocution. He also met with the defendant on September 22, 2008, for over two
hours to evaluate her present fitness. Dr. Cooper explained that to evaluate a defendant’s
retrospective fitness, he considers the defendant’s current fitness and assesses whether there
have been any significant changes or differences in the defendant’s mental state or brain
functioning from the time of trial. Dr. Cooper noted that the defendant had a doctorate in
psychology and had been employed as a school counselor at the time of her offense. After her
arrest, the defendant worked full-time for Ameri-Suites Hotel until the time of her trial. At the
time of her trial, the defendant stated she had been taking medications prescribed by Dr. Blaise
Wolfrum. However, Dr. Cooper noted that Dr. Wolfrum’s records showed that he had not
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 treated the defendant for approximately nine months before her trial. There was also no record
of any prescriptions from Dr. Wolfrum. According to the records, the defendant was not under
any doctor’s care in June 2006.
¶8 Dr. Cooper testified that he also reviewed records from Dr. James Corcoran, who treated
the defendant for anxiety and depression about two months after her conviction. Dr. Cooper
found it relevant that the defendant did not exhibit any psychotic symptoms, such as
hallucinations, delusions or confused thinking when she saw Dr. Corcoran. He also noted that
the defendant was not seen by a psychiatrist or psychologist for any mental health treatment
from the time of her trial in June 2006 until she saw Dr. Corcoran in August 2006.
¶9 Upon examination, Dr. Cooper found the defendant to be cogent and coherent and that she
did not display any signs of disorganized thinking, confusion or psychotic symptoms. He
acknowledged that, before her June 2004 arrest, the defendant was hospitalized for depression
and anxiety for nine days and then reported ongoing symptoms after that point. However,
based on her clinical history, Dr. Cooper opined that, although the defendant had a history of
depression, that diagnosis did not render her unfit to stand trial. Dr. Cooper concluded that the
defendant was fit to stand trial in June 2006, because there was no clinical indication that she
suffered from significant symptoms of mental health disease that would have precluded or
impeded her fitness at the time of trial. In his opinion, the defendant was able to assist in her
defense in June 2006 and was able to understand the nature and purpose of the proceedings
against her.
¶ 10 Dr. Peter Lourgos, a forensic psychiatrist, testified that he evaluated the defendant to
determine her fitness to stand trial in June 2006. He reviewed her psycho-social history, police
reports, and her medical and court records; he also interviewed the defendant. Dr. Lourgos
noted that the defendant’s statement in allocution demonstrated that, at the time of trial, she
had “very clear and organized thoughts.” He reviewed her medical records from 2004, which
showed that the defendant had a history of depressive symptoms and anxiety. Dr. Lourgos
testified that the defendant reported being on medication at the time of trial, but the medical
records and the probation department records do not indicate that she was on any medication.
Dr. Lourgos noted that the defendant was not being treated at the time of trial. He also noted
that, after her conviction, the defendant saw Dr. Corcoran, who documented that she suffered
from depression and anxiety. Dr. Lourgos agreed that the defendant’s symptoms seemed to
demonstrate situational depression, the result of the stress of her convictions, incarceration and
pending divorce. Based upon his review of the defendant’s medical history and the court
transcripts, Dr. Lourgos concluded that the defendant understood the proceedings against her
and participated in her defense. Dr. Lourgos noted that the defendant’s history of depression
did not include any evidence that her illness rendered her nonfunctioning as she completed her
graduate education and maintained steady employment through the time of trial. Dr. Lourgos
opined that the defendant was fit to stand trial in June 2006, because she was not suffering from
a severe mental illness which would have impaired her understanding of the nature and
purpose of the proceedings against her, the roles of the various court personnel, or her ability to
assist in her defense.

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¶ 11 The defense called Dr. Tony Allen Fletcher, a forensic psychologist, who testified that he
conducted a retroactive fitness evaluation of the defendant and found her unfit at the time of
trial. Dr. Fletcher stated that he relied upon collateral interviews he conducted with the
defendant’s family members, prior psychiatrist and prior attorney to evaluate her state of mind
at the time of trial. He also reviewed her prior medical records. Dr. Fletcher testified that he
learned that the defendant was severely depressed and had suicidal thoughts when she was
treated at River Edge Hospital in 2004. Those records noted that the defendant had auditory
hallucinations and delusional paranoid thoughts.
¶ 12 Dr. Fletcher also reviewed the defendant’s medical records from August 2006, which he
testified showed that she suffered from major depression after her conviction. He noted that
Dr. Corcoran prescribed three different medications for the defendant’s depression, mood, and
anxiety. Dr. Fletcher also observed that, after hearing her sentence, the defendant collapsed
and was placed on suicide watch at Cermak Hospital. He noted that the defendant has had
depression and anxiety symptoms since her conviction. He also noted that Dr. Corcoran
documented that the defendant had poor concentration, depressed mood, and poor
decision-making ability when he saw her after her conviction.
¶ 13 Dr. Fletcher testified that the defendant’s parents reported to him that, at the time of trial,
the defendant appeared to be staring into space and neglected her appearance. They informed
him that she did not understand the charges against her or her potential sentence. The
defendant’s brother related that, during the time of trial, he would find the defendant in a fetal
position in bed, crying and incoherent. The defendant’s trial attorney, Randy Franklin, told Dr.
Fletcher that he knew the defendant was on medication but he did not know which drugs she
was taking. Franklin reported that the defendant deferred a few decisions to him, and he
considered her to be depressed. Franklin told Dr. Fletcher that the defendant, at times, was
explosive and distraught and became confused about what was going on.
¶ 14 Upon interviewing the defendant, Dr. Fletcher noted that she was unable to appreciate the
penalties she faced and was unable to “think things through for herself,” but she understood the
roles and purposes of the court personnel and understood the “factual information about what
was going on.” In his opinion, Dr. Fletcher did not believe that the defendant was fit to stand
trial in June 2006, because she had major depressive disorder with psychotic features.
¶ 15 On cross-examination, Dr. Fletcher stated that he did not think the defendant understood
the severity of the charges against her, but she knew that she was in the criminal court. He did
not believe that she understood the nature and the purpose of the proceedings. Dr. Fletcher
admitted that he did not review the trial transcripts and was unaware that the defendant made a
statement in allocution.
¶ 16 Frederick Allen, the defendant’s brother, testified that, in May 2004, the defendant called
him and threatened to kill herself. He called the police to assist her and she was hospitalized.
Allen traveled to Chicago to sign the defendant out of the hospital, but when he arrived, she
was abrasive and incoherent. He chose not to sign her out at the time. At the time of the trial,
Allen observed the defendant curled up in a fetal position and frantically crying. He described
the defendant as incoherent and stated that she cried about not wanting to lose custody of her
children. Allen tried to speak to the defendant about her trial, but she could not speak rationally
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 about the situation. She would tell him that probation was the only option because she had to be
with her children. After her conviction, Allen helped the defendant write her statement in
allocution. However, Allen denied that he told the defendant what to write.
¶ 17 In her statement in allocution, the defendant stated that she was sorry for what she had
done. She explained that the past several years had been traumatic considering her divorce, a
battle with cancer, and the criminal charges. She stated she cared for her elderly parents and
her three children and that her marriage had been abusive. However, Allen testified that he was
unaware that the defendant cared for their parents in any way. In allocution at trial, the
defendant also stated that J.B. had sexually harassed her at school, drugged her, and fondled
her. She claimed that he threatened her and threatened that his gang would kill her family if she
told anyone about the incident. According to the defendant, J.B. also threatened her if she did
not call him regularly, which explained the phone records admitted at trial. The defendant
stated that she was too afraid to report any of this to the police. The defendant said that, on one
occasion, J.B. raped her at her home. She denied that the letters that her husband found, which
were admitted into evidence, represented her true feelings. The defendant expressed regret for
her handling of the situation and stated that she acted out of fear and humiliation.
¶ 18 Following the retrospective fitness hearing, the trial court concluded that, based on the
defendant’s statement in allocution and the State’s two doctors’ testimony, she was fit to stand
trial in June 2006. The court noted that Dr. Fletcher had not reviewed the defendant’s statement
in allocution. Moreover, the court noted that Dr. Fletcher’s diagnosis was major depression,
which was insufficient to render the defendant unfit to stand trial.
¶ 19 On November 17, 2011, the defendant filed a motion for reconsideration, arguing both that
she should have received a jury determination on the question of her fitness and that the
evidence supported a finding of unfitness. The trial court denied the motion, and this appeal
followed.
¶ 20 The defendant first argues that, on remand, she should have been granted a hearing before a
jury on the issue of her fitness to stand trial. We disagree.
¶ 21 In the initial proceedings before the defendant’s trial, the State inquired as to whether the
defendant was fit to stand trial because her medical records revealed that she had been
prescribed psychotropic medication and had received in-patient mental health treatment. The
trial court and defense counsel agreed that the defendant exhibited no signs of being unfit and
therefore the court determined that there was no bona fide doubt of fitness which would require
a hearing. On appeal, we determined that the court erred in making its determination outside of
the defendant’s presence. We did not determine whether the court’s conclusion that no bona
fide doubt existed as to the defendant’s fitness was erroneous. We merely remanded the
“matter to the trial court for a retrospective fitness hearing.”
¶ 22 There is no constitutional right to a jury determination of a defendant’s fitness to stand
trial. People v. Manning, 76 Ill. 2d 235, 239 (1979). Rather, the provision for a jury
determination of a defendant’s fitness is statutory in origin. Id. Section 104-12 of the Code
states:

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 “Right to Jury. The issue of the defendant’s fitness may be determined in the first
instance by the court or by a jury. The defense or the State may demand a jury or the
court on its own motion may order a jury. However, when the issue is raised after trial
has begun or after conviction but before sentencing, or when the issue is to be
redetermined under Section 104-20 or 104-27, the issue shall be determined by the
court.” 725 ILCS 5/104-12 (West 2004).
¶ 23 Whether the defendant was entitled to a jury trial on the issue of fitness is a question of
statutory interpretation subject to de novo review. People v. Giraud, 2012 IL 113116, ¶ 6.
When interpreting a statute, our primary objective is to ascertain and give effect to legislative
intent, which is done using the statutory language itself, given its plain and ordinary meaning.
Id. In determining the plain meaning of statutory terms, we consider the statute in its entirety,
keeping in mind the subject it addresses and the apparent intent of the legislature in enacting it.
Id. Where the language of the statute is clear and unambiguous, we must apply it as written,
without resorting to extrinsic aids to statutory construction. Id. Applying these principles, we
consider the plain language of section 104-12 of the Code.
¶ 24 Section 104-12 provides that the State or the defense may demand or the trial court may
order a jury determination of the question of a defendant’s fitness to stand trial unless one of
three situations occur: (1) the issue is raised after the trial has begun; (2) the issue is raised after
conviction but before sentencing; or (3) the issue of fitness is being redetermined under section
104-20 or 104-27 of the Code (725 ILCS 5/104-20, 104-27 (West 2004) (which involve
secondary determinations of fitness after an initial finding of unfitness)). It is clear that the
third situation was not involved here as this case did not involve a second determination of the
defendant’s fitness under either section 104-20 or section 104-27 of the Code.
¶ 25 The parties, however, dispute whether the first two situations apply in this case. The State
argues that the defendant did not demand a jury or fitness hearing until she filed her appeal and
that a retrospective fitness determination cannot be considered to have been made in the first
instance before the trial began. The defendant argues that her first opportunity to demand a jury
occurred on remand, but the issue of her fitness was first raised before her trial.
¶ 26 Construing the language of the statute, giving its words their plain and ordinary meaning,
we conclude that section 104-12 unambiguously provides that the defendant does not have a
right to a jury determination of her fitness when the demand is made “after trial has begun.”
725 ILCS 5/104-12 (West 2004). Section 104-12 of the Code explicitly states that either the
defense or the State may demand a jury or the court may order one except “when the issue is
raised after trial has begun.” Id. After trial has begun, a defendant’s fitness “shall be
determined by the court.” Id. In this case, neither the State nor the defense demanded nor did
the court order a jury determination before the defendant’s trial commenced. During pretrial
proceedings, while in the presence of the defendant, the State raised the issue of fitness, but it
did not demand a jury determination of her fitness to stand trial. The defendant, defense
counsel, and the trial court also did not demand or order a jury determination of her fitness. It
was not until the remand, long “after trial began,” that the defendant raised the issue of a jury
determination of her retrospective fitness. Because the issue was raised after trial began, the
statute provides that the court, not a jury, was to determine the defendant’s fitness to stand trial.
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 Therefore, based on the plain language of section 104-12 of the Code, the trial court did not err
in refusing the defendant’s request for a jury determination of her retrospective fitness.
¶ 27 We note that the trial court relied on Melka, 319 Ill. App. 3d at 443, for its decision that the
defendant was not entitled to a jury determination of her retrospective fitness to stand trial. We
do not find that persuasive because, unlike the defendant here, the defendant in Melka did not
request a jury trial upon remand. Id. at 435-36. Nevertheless, the trial court’s application of the
statute was correct, even if its reliance on Melka was misplaced.
¶ 28 Next, we consider the defendant’s argument that the trial court erred in determining that
she was fit to stand trial. “The trial court’s ruling on the issue of fitness will be reversed only if
it is against the manifest weight of the evidence.” People v. Haynes, 174 Ill. 2d 204, 226
(1996). A finding is against the manifest weight of the evidence only if the opposite conclusion
is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence
presented. People v. Deleon, 227 Ill. 2d 322, 332 (2008). Under the manifest weight standard,
we give deference to the trial court as the finder of fact because it is in the best position to
observe the conduct and demeanor of the parties and witnesses. Id.
¶ 29 A defendant is presumed fit to stand trial (725 ILCS 5/104-10 (West 2004); People v.
Stephens, 2012 IL App (1st) 110296, ¶ 90, appeal denied, No. 115299 (Ill. Jan. 30, 2013)), and
the State has the burden of proving the defendant’s fitness by a preponderance of the evidence
(725 ILCS 5/104-11(c) (West 2004)). 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.” 725 ILCS 5/104-10 (West 2004); Stephens, 2012 IL
App (1st) 110296, ¶ 90. “Fitness speaks only to a person’s ability to function within the context
of a trial; a defendant may be fit to stand trial even though his mind is otherwise unsound.”
Haynes, 174 Ill. 2d at 226. Section 104-16 of the Code states that the trial court may consider
evidence of the defendant’s fitness, including but not limited to: his knowledge and
understanding of the charge, the proceedings, and the functions of the participants in the trial
process; his ability to observe and relate occurrences, especially those related to the offense
involved; and his social behavior and orientation to time and place. See 725 ILCS 5/104-16
(West 2004).
¶ 30 In this case, there was ample evidence supporting the trial court’s finding that the
defendant was fit to stand trial in June 2006. The State presented Drs. Cooper and Lourgos,
who both opined that, despite her depression and anxiety, the defendant was able to understand
the nature and purpose of the proceedings against her and assist in her defense. Even Dr.
Fletcher, the defense’s expert, admitted that the defendant understood the roles of the trial
court personnel, understood she was in criminal court, and understood the factual information
surrounding the proceedings. Dr. Fletcher’s diagnosis of depression was also consistent with
the diagnoses of Drs. Cooper and Lourgos and with the diagnosis documented in the
defendant’s pretrial hospital stay. In addition, there was no conclusive evidence that the
defendant was taking any psychotropic medication at the time of her trial or that she was under
any specific doctor’s care at that time. Dr. Fletcher also admitted that he had not read the
defendant’s statement in allocution, which demonstrated the defendant’s ability to coherently
discuss the events and the evidence related to her offense. Furthermore, neither the court nor
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 defense counsel observed any behavior by the defendant during the pretrial proceedings or the
trial and sentencing hearing that suggested that she was unfit. Given the record before us, we
cannot conclude that the trial court’s finding of the defendant’s fitness is against the manifest
weight of the evidence.
¶ 31 Based on the foregoing reasons, we affirm the judgment of the circuit court of Cook
County.

¶ 32 Affirmed.

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