hearing to place the court's may fifth order also requested a separate evaluation from the department of human services which dr schweigert completed i may sixteenth of twenty fourteen and as part of that evaluation she c june thirteenth and considered by the word on june thirtieth but she actually conducted her valuation only three weeks after dr lowe had found mr gill on it and so what the trial court had before it because these reports  conducting the about the way she so for all intents and purposes what we're looking at in terms of fitness is reports that are so close in time as to be contemporaneous oh isn't that something  we can speculate about that is it seems close in time but i remember as a trial judge back of the middle ages getting really people to  because of medication for and i wouldn't ask this court to make some sort of per se rule that three weeks is too short of a time for a defendant to perhaps recover but what the three week time period informs is the dispute between the two evaluat was what impact the diagnoses would have on mr killen's behavior and given the short turnaround time and that fundamentally the stude between the two reports by the experts it was inherently within the province of the trial court to look at mr killen and to ask counsel and to work with counsel and mr gillon to determine whether or not in fact dr low's report still governed whether or not the diagnoses did in fact still impact his be here or whether or not the d h s report in fact  opinion that was a scientifically persuasive or medically persuasive as dr low but really what the issue boils down to is what the trial court did with the reports not necessarily what evidence yuri value the reports themselves had so we talked about the the ultimate disagreement between the reports and then it was the trial court's duty to marshal that disagreement and come to a determination after carefully considering those reports on the record to determine whether or not it was in fact dr  comply with people versus those no one the facts of this case and i think the dispute again between what the reports actually found and the fact the relevant dispute was the impact of mr killen's well so this would be different from a routine f case in that regard i think so yes because we're not we're not talking about the trial courts need to rely on medical opinion testimony about mr guillen's mental state his ability to understand or comprehend both dr low and schweikert agreed on that point what they disagreed on was how those diagnoses were impacting mr guillen's behavior and the parties that were most responsible for marshalling that behavior throughout the remainder of the proceedings would have been a trial work defense counsel and mr  the the onus in this at this point in the proceedings on the trial court to make an affirmative action to have an affirmative exercise of discretion shown on the record so stipulation well the first thing instructor asked me is what's your position defense to this reporter i have nothing further than what's the court supposed to say i think that would be appropriate and i think that was the case of what happened similar  we people versus thompson is a sim of is a similar case the court ultimately found that the restoration hearing was inadequate but under people versus sha and people versus lewis itself i think if counsel were to make that representation on the record then this case would but counsel have you spoken with counsel the let me pause right there i read a lot of these cases i don't recall any where the trial judge didn't hear of this or where our court of review said the some sort of question they are dialogue with the defendant personally is there some case law that says oh yeah this is what she do to gauge in this trial i don't have a specific case that requires that word even forcefully suggest a recall one word actually happened i don't i literally don't remember us no i mean i think most of the copies that are engaged in between the court and a member another person in the courtroom were between the court and counsel but i could see there and i don't have a i could see  can't just agree to what the experts say you're supposed to do something else the something else is never clear in this matter frank that step equally there is nothing else it's not as if there's some other expert the has exam of this guy not as if there's some other evidence that is going to be forthcoming what so when they say well you just can't accept the dependence or the report prosecutors got no further evidence the defense attorney offered something on the record to indicate that what the trial court did was engage with the reports that were presented before it and engage with defense counsel in a case in which the reports indicate that the real problem is psychiatric diagnoses leading to an inability to behave appropriately so i think there's a lot more deference to be given to an expert opinion when the expert opinion talks about whether or not a defendant is understanding what his intellectual capabilities let's assume that's what those report saying was and they read that the defendant was fed and what those two reports actually said what were they when they were discussing my recollection the facts is that the defendant had certain comprehension issues had an inability to understand and appreciate what was going on and had an ability and had there were concerns with whether or not he could understand and the report ultimately found that he would be able to understand and so when we're talking about an expert to something that is eminently within the medical experts you know you were talking about a lot more deference that can be given to the trial court's acceptance of nothing more than an evidentiary stipulation in this case of course that's not what we have we have a disagreement about whether or not mr gillon can behave appropriately we have a stipulation that takes the improper form even under people person shop and then we have the trial court directly linking its fitness determination to the determination of  engaging the record in any sort of affirmative exercise of its discretion when it was imperative that the trial court be the one that make the ultimate fitness determination and just briefly to address the issue to throughout the proceedings mr gillon presented behavior and testimony that should have called into mind the prior finding of unfitness and the prior disagreement between those two psychiatric words and should have raised a bonafide doubt in the mind of the susan or bana was out to get him wanted to harm him at elizabeth order had some sort of blade on her and was going to work with jack came to harm him and then it really went from a rodeo sort of tangentially related to a self defense claim as to the assault charge so completely delusional and paranoid on cross examination and i see my time is up if they said oh sure and so what we have is mr going to hating  and the state's position is that the statement that they're considering in two different times of the record shows that there was those magic going can't ations and although you disagree that those are necessary and the state also agrees with you we find that the magical yes the court said after asking them if they both have the report it said they both stipulated to the report and the court said all right will show the court has considered that report it was up there on may twenty second two thousand and fourteen from the from v h s to the state wish further evidence then mr state's attorney and at that time both parties waived evidence and argument and the court stated again i have considered that report it is the turn their determination of  working with and then the rest of what counsel said and so yes he did say yes so i do find that he's able to assist but that considered is the magical word that is said here that shows as i stated in my brief the definition of consider is you know to analyze to think about i believe it's a sherman of active judicial especially the trial court exercised here and on the state does agree with your point on the magical incantation words and how they are unnecessary i think this case has those so you don't have to make a difficult decision which is this person kimberly shrink places clinical social worker there's a record identify her as being a to lead and or stand trial and your honors found that sufficient whereas here we have that additional magical word that i have considered i believe that goes a step beyond what is required by shaw when looking at the second issue which is whether the trial court there when it did not reopen the issue of defendant's fitness the state's position is that it did not ever give the record shows that defendant was able to understand the nature and purpose of the proceedings yes he did interrupt various times but when he interrupted he showed that he did understand what was going on he said the witness was lying that shows he was comprehending what she was saying and that i was in conflict with this testimony when he was told not to interrupt he complied until it was time to testify yes he testified he was clearly able to assist in his own defense these are the requirements to rebut the presumption of fitness and defendant do not overcome these requirements and then when looking at what would raise  doubt of his fitness his demeanor yes he was quite lively throughout the proceedings but you know some defendants are that way it doesn't mean that he's not fit for trial another important aspect of this although not dispositive was defense counsel's representations of defendant's fitness as runners are aware it was the defense counsels and initial concerns with his fitness which is what the trial court order a fitness violation if it was then found unfit that he was restored to finesse and then throughout the proceedings defense counsel never made any more remarks or concerns about fans fitness i believe this is an important aspect showing that he believed defendant was fit even if he was a little rambunctious then looking at prior medical opinion again he did us some issues but many defendants have many issues that doesn't mean that he's not fit for trial so the state's position is that the trial court did not air if your honour's look at the transcript it's on page thirty two of the state's relief defendant made some statements about how he was previously off his medicine he had trouble remembering what was occurring he apologized long winded rambling statements then the trial court continu defendant continues to interrupt and then at one of these interruptions he states one more thing i wasn't involved no plea bargains enough them i was thinking like i was wondering why come defense counsel's name only called me one time out of nine months before  and didn't get no plea bargains and i didn't get no i i would call it i'm trying to think what you call innocent of counsel and possibly upon having the review of the record in front of you you could see maybe there was some sort of assistance claim there but when you're in the trial court's decision where the defendant is interrupting multiple times throughout trial making ambiguous statements just rambling it's obviously a minimal to more than one interpretation and when you look at the reply brief from counsel he states that the defendant's remarks which i disclosed it for specific and  that it's discussing so the state's position would be that it was completely ambiguous statement that did not complete the requirement of bringing in effect of assistance claim to the truck with attention so there was no  concern for that recitation of magic words is really a double edged sword because we don't want to devalue the due process clause by simply require reports to say words that ultimately do nothing but at the same time we don't want to insulate can say this report was authored by someone so it was done and then engaged with the findings of the report that the report finds mr gillon restored to fitness on its basis based on my observations and the representations of counsel i find  what the standard is because regarding stipulations generally i mean i don't recall ever making such a statement and i'm surprised that we're now saying the trial court has to do that i think it helps to look at what the content of the what's being incorporated by stipulation is inherently ambiguous is the state stipulating to the report's conclusions is the state stipulating to all of the findings in the report what is the state actually stipulating to the on this is over here this document the report which to say something more about what the report means to the court house it's going to accept to pass muster recluse i think yes and i think well there's no dialogue required additional dialogue that's required   fence counsel and as we discussed previously there's no dialogue acquired between the court and the defendant i think some dialogue between the court and the may have been helpful in this case given the facts in the reports in particular you know my time is up i was