dissenting:
I fear that the majority opinion establishes the proposition that one can enhance the probability of having his conviction reversed if he persists in obdurate obstructionist tactics. If there were the slightest chance that the defendant was not sane when the offense was committed, or that he was not competent at the time the guilty plea was entered, I would vote to reverse the conviction. Under the facts of this case, however, I find no reason to do other than to affirm the judgment of the trial court. As will be discussed later, the majority opinion omits any reference to that part of the record which supports the trial court’s denial of the motion for further testing and the denial of the motion to withdraw the plea of guilty.
As noted in the majority opinion, the defendant was represented by numerous attorneys. The trial court was a model of patience in tolerating the defendant’s conduct and exhibited the highest degree of judicious and humane consideration in assuring adequate legal representation for a very difficult defendant.
First, I must state that I do not understand the nature of the order that was entered by the majority in this case. Prior to defendant’s plea of guilty, there had been a fitness hearing, and the jury found the defendant fit to stand trial. He then entered his plea of guilty. Following the imposition, of the death sentence, this court was informed that the defendant did not want to appeal. However, we held that an appeal from a death penalty is automatic and appointed the State Appellate Defender to represent the defendant. The circuit court was directed to permit the late filing of a motion to withdraw the plea of guilty.
Instead of filing a motion to withdraw the plea of guilty, Ralph Ruebner, Deputy State Appellate Defender, sought to generate evidence to the effect that the defendant was not sane at the time the offense was committed by filing the motion for further examination and testing. After the denial of this motion, Mr. Ruebner filed a motion to withdraw the plea of guilty which was denied.
The majority now reverses the circuit court of Cook County to allow both parties to conduct a complete psychological, psychiatric, and neurological examination of the defendant without setting aside the plea of guilty. Under the order of this court, it is only if the allegations of the petition filed by Mr. Ruebner are proved that the plea of guilty will be set aside and a new trial ordered. Presumably, if the allegations of the petition are not proved, the plea of guilty will not be vacated, and the sentence will stand. However, if the allegations of the petition are proved, the defense of insanity will have been established without the formality of a trial and without having vacated the plea of guilty This appears to be placing the cart before the horse. If defendant was competent and voluntarily and knowingly entered a plea of guilty, as discussed later, he waived the defense of insanity
The proper determination that should have been made is whether or not the trial court abused its discretion in failing to allow the defendant’s motion to withdraw his plea of guilty. If the trial court did abuse its discretion, then the judgment should be reversed and the cause remanded with directions to permit the defendant to withdraw his guilty plea and for further proceedings.
I do not find that the trial court abused its discretion in denying the defendant’s motions. I have noted that there had been a fitness hearing and that the jury found the defendant fit to stand trial. After the defendant stated he wanted to plead guilty, the court fully admonished him, as required by Supreme Court Rule 402 (87 Ill. 2d R. 402), and determined that the plea was voluntary. At the sentencing hearing, defendant acknowledged that he shot two police officers with the intent to kill them. He also stated that he shot them because he thought they were involved in the earlier police raid on his house. Thus, the defendant demonstrated he was well aware of, and fully understood, the nature of the charge against him.
Nothing presented to the trial court following our remand rebuts the prior finding that the defendant was fit to stand trial. Most of the information presented to the trial court by Mr. Ruebner relates to Dr. Kaplan’s belief that the defendant was legally insane when the offense was committed. The tests to be applied in determining whether a defendant is competent to stand trial are entirely different from the test of insanity when it is used to relieve a defendant from criminal responsibility. (People v. Hinton (1973), 11 Ill. App. 3d 907, 909; People v. Britton (1970), 119 Ill. App. 2d 110, 113.) The defendant’s motion to the trial court only vaguely referred to defendant’s present sanity or fitness to stand trial. The primary thrust of the motion concerned the defendant’s sanity at the time the offense was committed.
In addition to the finding that defendant was fit to stand trial, an extremely cautious and considerate trial judge admonished defendant as to the results of his plea of guilty and determined that the plea was voluntary. At the sentencing hearing, as noted, the defendant stated he shot the two policemen and intended to kill them and stated the reason for doing so. Under these facts, I just cannot say that the trial court abused its discretion in denying the motion of the defendant for further mental examination and the motion to withdraw the defendant’s plea of guilty.
As to the possible defense of insanity, to which Dr. Kaplan’s affidavit alludes, since the defendant was found competent to stand trial and was fully admonished as to the effects of his plea of guilty, he waived the defense of insanity when he entered his guilty plea. The defense of insanity is an affirmative defense, and, unless it is raised at the time of trial, it is waived. People v. Milligan (1963), 28 Ill. 2d 203, 205.
In addition to the above reasons for affirming the judgment of the circuit court, as noted at the outset of this dissent, the majority opinion omits any reference to that part of the record which supports the trial court’s denial of the motions presented by defense counsel Ruebner. As noted above, prior to filing the motion to withdraw the plea of guilty, Ruebner filed a motion for the production of the previously produced medical records of the Veterans’ Administration Hospital concerning defendant’s head injury and the resultant surgery, all of which had occurred approximately seven years prior to the commission of the crimes. The motion was granted and the records were produced, including a summary of the defendant’s treatment for a skull fracture. According to the summary, the defendant had complained of headaches and “there was some question whether the patient had sensory seizures in the hospital.” Surgery was performed. The majority opinion states “a portion of defendant’s brain was removed during surgery for a depressed skull fracture.” That statement makes it sound as though the surgery could be quite relevant and significant in any consideration of defendant’s sanity However, the hospital record, in describing the surgery, makes no mention of removing a part of defendant’s brain. The hospital record simply states, in describing the operation performed, “elevation of depressed skull fracture with removal of bone chips and debridement of wound.”
The hospital record also states, “An EEG [was then] performed which did not show any seizure activity but the patient was prophylactically put on anti-seizure medication.” (Emphasis added.) Ruebner showed all of the medical records to Dr. Kaplan, a psychiatrist who had testified at the competency hearing. In an affidavit prepared for the court, Dr. Kaplan set out his opinion that the records indicated a possible seizure condition in the defendant and the possibility that the defendant was thereby insane at the time of the offenses. Dr. Kaplan indicated that he felt an EEG and further psychiatric testing were necessary in order to determine the defendant’s sanity at the time of the offenses as well as his fitness for execution. Citing Dr. Kaplan’s affidavit and the medical records, Ruebner presented the trial court with the motion for further psychiatric and clinical testing of the defendant. A hearing on the motion was held on October 15,1980.
As the majority opinion notes, Ruebner orally argued that the motion should be granted, saying that the records and Dr. Kaplan’s affidavit substantiated the need for further testing to determine the defendant’s sanity as of the present date and at the time of the offenses. The majority opinion acknowledges that the State argued against granting the motion, but states that Dr. Kaplan’s affidavit was uncontroverted because the State offered “no evidence to support its conclusions or to rebut Dr. Kaplan’s findings ***.” (101 Ill. 2d at 33.) The majority’s characterization overlooks the fact that the State’s Attorney read the previously quoted summary of the defendant’s treatment to the court to support the State’s position that further testing was not necessary because the summary of treatment indicated no seizure activity. The State also pointed out that subsequent treatment charts contain notes that no seizure activity was present. The fact that the records had also been available to earlier counsel was also noted.
The State pointed out that the medical records reveal that the defendant had been seen as an outpatient of the Veterans’ Administration Hospital over a four-year period, after which he was no longer seen as an outpatient. The State called the court’s attention to the fact that there is nothing in the records that would indicate that the defendant has any mental disease or defect, or that he has any problem as a consequence of his head injury and operation, nor is there any showing of seizure activity. It was further pointed out that these hospital records had been originally procured by defense counsel Wolfson and Cutrone and had been made available to defense counsel Toole, who had them in his file. Mr. Toole had full knowledge of the defendant’s injury and the nature of the treatment and, during the course of the competency hearing, elected not to introduce testimony concerning these events. Finally, the State called the court’s attention to the defendant’s reasonably articulate conduct throughout the course of the competency hearing and also invited the court’s consideration of the fact that the jury had an opportunity to observe the defendant’s conduct during that hearing.
Thus, Dr. Kaplan’s findings and recommendations for additional testing to do not stand unrebutted, as the majority opinion states. The medical records upon which the defendant now relies were not newly discovered evidence. They were known to defense counsel at the time of the competency hearing. The State used these records to rebut defense counsel Ruebner’s assertion and Dr. Kaplan’s recommendation that additional testing is needed.
The majority opinion acknowledges that ordinarily the consequences of a defendant’s refusal to cooperate with his attorney will not serve as grounds for reversal, citing People v. Myles (1981), 86 Ill. 2d 260, 270-71, and People v. Solomon (1962), 24 Ill. 2d 586, 589-90. However, the majority states:
“[I]n this case defendant’s lack of cooperation with his attorneys imposed a substantial burden which, in effect, denied the trial court access to information relating to the factual basis for the guilty plea as well as the affirmative defense of insanity at the time of the offense.” (101 Ill. 2d at 35.)
However, in People v. Solomon, this court stated:
“Since defendant utterly refused to co-operate with his counsel, he cannot now be heard to complain that [the consequences] embarrassed his defense or prejudiced his rights.” (People v. Solomon (1962), 24 Ill. 2d 586, 590.)
In my opinion, it is difficult to find much support for the majority’s holding in the defendant’s conduct in this case.
Even if I were to assume that the defendant did suffer from seizures after his surgery, I find it impossible to accept the defense’s theory that he was insane at the time of the offenses. We have here a defendant who carefully researched the addresses of intended victims, visited a glazier’s shop to determine the possibility of successfully attacking police officers in a squad car, and then launched his attack. Also, I have noted how the defendant acknowledged that he shot the officers with the intent to kill them and thereby avenge himself for his prior arrest. This series of acts is hardly consistent with the brief, albeit excruciating, nature of seizures. (See The Nature of Aggression During Epileptic Seizures, 305 New England Journal of Medicine 711 (Sept. 17, 1981); People v. Speck (1968), 41 Ill. 2d 177, 206.) Therefore, I believe that, whatever the medical records may show with regard to the defendant’s past mental problems, it is impossible to credit the defense’s theory that a seizure condition linked with the paranoia perceived by Dr. Kaplan to substantially impair the defendant’s ability to refrain from wrongful conduct. The defendant’s paranoia was presented to a jury by Dr. Kaplan at the competency hearing. The jury still found him competent to stand trial. I believe that even a history of seizures would add no additional credibility to a claim of incompetence or insanity in this case.
It is for the above reasons I feel that the majority opinion was wrong in entering the order that it did remanding the case to the trial court for further proceedings. I must therefore dissent.
JUSTICE UNDERWOOD joins in this dissent.