## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Stah l , 2013 IL App (5th) 110385

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellant, v. TERRI S E. STAHL , Def

endant- Appellee

.

District & N o. Fifth District Docke t No. 5-11-0385

Filed Fe bruar y 19, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant was rende red unfit to stand trial on charg es of home invasion and ag g rava

ted unlawful restra int arising from an incident in which he invaded the residenc e of his former wife, since the b ra i n injury he suffe red when he shot himself with one of his wea po n s re n d ered him unable to rec all any of the events surrounding the incident and there was testimony that defe ndant could not understand the nature of the
proce eding s ag ainst him or assist in hi s defe nse.

Dec ision Under Review Appea l from the Circuit Court of S t. Clair County
, No

. 0 9 -C F- 567; the Hon. J an V. F iss, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Br endan F. Kelly
, State’s Attorney
, of Be lleville (P at ri ck Delfino, Stephen E. Norris, an d J ennife r Camden, all of State’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

J ustin A. Kuehn and Matthew P. Young
, both of Kuehn L aw Firm, of Be lleville, for appe llee.

Panel J USTI CE CHAPMAN delivere d the judgme nt of the court, with opinion.
J ustices Welch and Goldenher sh concur red in the judgme nt and opinion.

OP INION

¶ 1 The defe ndant, Terris E. Stahl, is unable to reme mber any of the events surrounding the incidents leading to charg es of home invasion and ag g ravated unlawful restra int due to brain d am age resulting from a self-inflicte d gunshot wound. He was found unfit to stand tri al

. After a subsequent fitness restora tion hearing, the court ag ain found that the defe ndant was unfit to stand trial and that it was not rea sonably pro b ab l e that he could be fit within one year

. The State appea ls, arg uing that the defe ndant’s inability to rec all events does not rende r him unfit to st and trial. We af firm. ¶ 2 The events at issue occur red shortly afte r the defe ndant’s former wife, Erin Krue p, filed for divorce

. Acc ording to testimony prese nted at a discharg e hearing afte r the initial finding of unfitness, Krue p s p en t th e evening of April 5, 2009, at her home with Chuck Smit h (a friend of both Kruep and th e defe ndant), Aly ssa S chmitt (Kruep’s 17-y ear -old baby sitter), and Wil liam Marsha ll (Schmitt’s boy friend)

. At 1 i n t h e m o rn ing, Krue p went to bed and invited her three guests to stay overnight. Marsha ll left some time later, but Smit h fell aslee p in Krue p’s guest room and Schmitt fell aslee p on the living room sofa. Krue p and the defe ndant had a four- year -old son, Owen, who was asleep in his bedroom when these events took place. ¶ 3 At 4 in the morning
, Krue p and Schmitt woke up when t h ey h ea rd gl ass brea k and Krue p’s burg lar alar

m g o off. The defe ndant pointed a gun at Schmitt and demande d to know wher e Krue p was. He then found Krue p in her bedroom, pointed a gun at her, and threatened
to kill her. The defe ndant woke Smit h by g oing to the guest room and pointing a second gun in Smit h’s fac e. Wit h one gun pointed at Kruep and Schmitt and the other pointed at Smit h, the defe ndant told them that they wer e all “g onna die” that night. Krue p manag ed to ca ll 9-1-1 on her cell phone and ask for help before the defe ndant knocke d the phone f rom her hand. ¶ 4 The def

en d an t o rd ered Krue p, Schmitt, and Smit h into the baseme nt. He continued to hold all three at gunpoint, with one g un in e ach hand. He told Kr uep that if she would take

-2-him back, he would chang e. Howeve r, he then fired a shot into the wall and told her, “Now

you know I ’m serious, bitch.” ¶ 5 Owen woke up and turned on the bathroom light. The defe ndant allowed Schmitt to g o upstairs to take car e of him. Whil e Schmitt was upstairs with Owen, she looked o u t the window and saw a police office r outside who had arrived in response to Krue p’s 9-1-1 call. Schmitt motioned to the office r through the window. She held her hand in the shape of a gun and pointed to her head, then pointed down the hallway tow ar d t h e baseme nt door. The office r re tu rned to his squad car and called for backup. Schmitt took Owen and left the house. ¶ 6 The defe ndant continued to point the guns at Krue p and Smit h. He told Krue p that if he could not have her, he would kill her. L ater , the police tactica l response forc e arrived at the h o u s e. An office r attempted to talk to the defe ndant with a meg aphone. The defe ndant
eventua lly decide d that he would be willing to talk to a police office r he knew if that office r

was at the scene

. He sent Smit h upstairs to find out whether the office r was there

. Some time later, the defe ndant told Krue p that he did not want to g o to jail. He tol d h er wh at kind of funer al he wanted and what he wanted her to tell their son about his death. He then told her
to leave

. As Kru ep was leaving
, she hear d a gunshot. She ran from the house and told the office rs that the def

endant ha d shot himself. ¶ 7 The d ef

en d an t was found lying fac edown in a doorwa y on the main floor of Kruep’s home. He was taken to the hospital. A trail of blood le d from the defe ndant down the stairs leading to the baseme nt. Two guns wer e found in the baseme nt, includi n g a .22 that was found in a pool of blood with its hammer coc ked. ¶ 8 The defe ndant was arr ested in May 2009 and charg ed with home inv as i o n (720 I L CS 5/12-11(a) (1) (West 2008)) and ag g ravated unlawful restra int (720 I L CS 5/10-3.1(a) (West 2008)). He was conditionally rele ased to live with his pare nts beca use the county jail could
not meet his medical needs. He was indicted on both charg es on J une 12, 2009. On October 1, 2009, the def

endant f iled a motion for a he aring to determine his fitness to stand trial. ¶ 9 Prior to the initial fitness hearing, two psycholog ists provided opinions
, Dr

. Ke n n et h Gilbert and Dr. J ohn Rabun. Dr. Ke nneth Gilbert initially evaluated the defe ndant in J uly 2009, afte r the defe ndant’s mother hired him to evaluate the defe ndant’s risk of suicide. Dr. Gilbert provided a report in J anuar y 2010 based upon his Jul y 2009 evaluation. He opined that the defe ndant suffe red tw o t y p es o f memory defic it as a result of the gunshot wound. First, the defe ndant was unable to rec all the events at issue or any thing that happene d in the 48 hours leading up to those events. Second, the defe ndant’s ability to form new short-term memories was sever ely impaired. Dr. Gilbert explained t h at t h i s short-term memory i mpairment would make it impossibl e for the defe ndant “to trac k what happene d in co u rt from one da

y to the next.” ¶ 10 Dr. Gilbert explained that the ty pe of brain injury sustained by the defe ndant could lead
to memory loss be cause the “swe lling and distortion of brain tissue” cause d by the gunshot in t erru p t s the proce ss of cre ating neurolog ical connec tions that establish memories. Dr. Gilbert opined that i t wa s possible for the defe ndant’s short-term memory impairment to improve, although he could not predic t with any cer tainty whether this would be the case

. He

-3-opined, howeve r, that there was “no probability” that the defe ndan t wo u l d rec over his

memories of the events at i s s u e or t he 48 hours l eading up to them. He concluded that the defe ndant could not understand the nature of the proce eding s ag ainst him or assist in his own defe nse. ¶ 11 Dr. J o h n R ab un was retained by the S tate to perf orm an independent evaluation of the defe ndant. He provided a repor t in April 2010. Dr. Rabun essentially agree d with Dr. Gilbert. He found that the defe ndant had n o m em o ry of the day of the events charg ed as well as “significant deficits in his capa city to lear n and retain new information.” Dr

. R ab u n n o ted that the defendant’s cognitive difficulties were significa nt enough that his fa t h er h ad been appointed to act as his plenar y leg al gu ar dian as a result. Dr. Rabun conclude d that the defe ndant was unable to understand the nature of the proce eding s ag ainst him and unable to assist in his defe nse. He opined that all of the defe ndant’s m em o ry impairments wer e unlikely to improve. ¶ 12 In J uly 2010, the matter was called for a hearing. The parties stipulated that Dr. Gilbert

an d Dr

. R ab un would testify in acc ordanc e with the opinions expressed in their repor ts if called to testify . In light of the fac t that both psycholog ists believe d that the defe ndant was
not fit to stand trial, the State stipulated to a finding of unfitness. The court held a discharg e hearing in N ovember 2010. After hearing the testimony set out pr eviously
, the court found the defe ndant “not guilty” and order ed him c ommitt ed to Alton Mental Hea lth Center. The defe ndant was a dmitted to Alton on Februa ry 24, 2011. ¶ 13 On Marc h 17, 2011, Alton staff filed a progress repor t with the court indicating that the defe ndant was now fit to sta nd trial. See 725 I L CS 5/104-18(a )(2) (West 2010)

. The repor t

was signe d by Dr. David Montani, a staff psycholog ist who was treating the defe ndant. Dr. Montani stated that the defe ndant still was completely unable to rec all the events at issue and continued to have difficulty in forming new memories. He explained that the defe ndant had been tested by Dr. Ronald S el l ers to assess the extent of his memory defic it. Dr. Sellers’ testing revea led that the defenda nt was in the bot tom perc entile i n his ability to rec all new information afte r 20 to 30 minutes. Dr. Montani never theless opined that the defe ndant was fi t t o stand trial. He noted that the defe ndant was able to tell him the roles of the judge
, prosec utor, defe nse counsel, and jury in a trial. He also noted that the defe ndant was able to discuss with him t he proc eeding s at the Nove mber 2010 discha rg e hea ring

. ¶ 14 The court held a fitness restoration hearing on May 13, 2011. At the outset of the hea ring
, defe nse counsel stated that “both parties would ask the court to take judicial notice of all the prior repor

ts.” He noted that this included the repor ts of Dr. Gi l b er t an d Dr. Rabun from 2010, which had previously been admitted. The prosec utor stated, “Tha t’s corr ect, Your Honor.” ¶ 15 Dr. Montani testified for t h e State that the defe ndant had a basic understanding of the charg es ag ainst him a

nd the possible pe nalties as we ll as the roles of c ourtroom per sonnel. He f urther te stified that when hediscussed the November 2010 discha rg e hea ringwith the defe ndant, the defe ndant was able to rec all and discuss the evidenc e prese nted at that hearing. The defe ndant was able to tell Dr. Montani about discrepa ncies in the testimony of witnesses at the hea ringand comment on the f act that no gunshot residue testing was conducted. Dr.

-4-Montani acknow ledg ed that the defe ndant still suffe red from signific ant short-term memory

impairment, but he believed that this would not preve nt him from functioning in the context of a trial if he wer e provided with note-taking materia ls and sufficie nt brea ks during the testimony to conf

e r with counsel. Dr. Montani also acknow ledg ed that the defe ndant was still completely unable to rec all any of the events charg ed in the indictment. He testified that the defe ndant was not likely

to rec over the se memories through treatment. ¶ 16 Criminal defe nse attorney J ohn O’Ga ra testified as an expert witness for the defe ndant. He described how the defe ndant’s inability to reme mber the rele vant events could impact his ability to assist de fense counsel. O’Ga ra explained that the re was no way for the defe ndant
to tell his attorney his version of the events at issue or what his state of mind was at the time, information that is critica l to deter mining what defe nses might be avai l ab l e. He further testified that the defe ndant cannot meaning fully testify in his own defe nse beca use he cannot

reme mber the events at i s s u e. Fi n ally
, O’Ga ra testified that the defe ndant cannot even intelligently decide how to plead beca use he does not know whether he committed any of the
acts c harg ed. ¶ 17 The court then hea rd arguments from the parties’ attorney s. The defenda nt argued that the State was require d to prove the defe ndant fit to stand trial by clea r and convincing evidenc e, while the State arg ued that it only neede d to pr ove he was fit by a preponde ranc e of t he evidence. The cour t asked both par

ties to submitproposed or ders that a ddresse d the
appropriate standa

rd. The c ourt then took the matter unde r adviseme nt. ¶ 18 On May 24, 2011, the court enter ed an order finding that the defe ndant was unfit to stand trial and was unlikely to become fit ag ain. The State filed a motion to rec onsider, which the court de nied. The State the n filed the instant appe al. ¶ 19 The State contends that the trial court’s ruling was aga i n s t t h e manifest weight of the evidenc e beca

use a defe ndant’s amnesia rela ted to the events surrounding the charg es ag ainst him is notsufficie nt to support a findingof unfitness. We disagree

. ¶ 20 A def

endant is not fit to stand trial if he is una ble to unde rstand the purpose and nature of the procee dings ag ainst him or i f he is unable to assist counsel in his defense

. People v

. Clay
, 361 I ll. App. 3d 310, 330, 836 N.E.2d 872, 889 (2005) (quoting 725 I L CS 5/104-10 (West 2000)). Once a bona fide doubt is raised as to the defe ndant’s fitness to stand trial, the State must prove the defe ndant fit by a prepondera nce of the evidence. Clay
, 361 I ll. App. 3 d at 331, 836 N.E.2d at 889. In deter mining a defe ndant’s fitness, courts are to consider,

am o n g o ther things, the “def endant’ s ability to observe
, rec ollect and relate occur renc es , espec ially those conce rning the incidents alleged .” (Emphasis added.) 725 I L CS 5/ 1 0 4- 16(b)( 2) (West 2010)

. O n a p p e a l f rom a court’s deter

mination reg arding a defe ndant’s fitness to stand trial, we r eview to de termine whe ther the c ourt’s findingwas a g ainst the manifest weight of the evide nce. Clay , 361 I ll. App. 3d at 331, 836 N.E.2d at 889. ¶ 21 As previously noted, the defe ndant in this case su ff er s fr o m t wo t y

p es o f memory impairment, both of which have some impact on his fitness to stand trial. Howeve r, there is evidenc e that the defe nd an t ’s short-term memory improved somewhat, and Dr. Montani opined that the defe ndant could overc ome his difficulties with rea sonable acc ommodations. On appea l, the defe ndant focuse s his arguments on his complete amnesia as to the events at

-5-issue in th e i n dictment. For purposes of this appea l, we may assume that the defe ndant’s

short-term memory impairment can be acc ommodated adequately and focus our discussion

on whether his inability to rec all the events at i ssue m akes him unfit to stand trial. For the

rea sons that follow, we c onclude that it is. ¶ 22 In support of i ts position, the S tate cites People v. Schwartz
, 135 I ll. App. 3 d 629, 482 N.E.2d 104 (1985). There
, the defe ndant was charg ed with arson and murder. Schwartz
, 135 I ll. App. 3d at 631, 482 N.E.2d at 105-06. L ike the defe ndant here
, the defe ndant in Schwartz suffe red a self-inflicte d gunshot wound and was unable to reme mber the events involved in the charg es ag ainst him. Schwartz
, 135 I ll. App. 3d at 632, 482 N.E.2d at 106. At a hearing
to deter mine his fitness to stand trial, a psychi at ri s t t est ified that the defe ndant could not

rec all the events of the day of t he offenses but could understand th e nature and purpose of the proce eding s and communicate with his attorney

. Schwartz
, 135 I ll. App. 3d at 632, 482 N.E.2d at 106. The court found the def endant f it to st and trial. The defe ndant continued to

asser t the issue of his fitness throughout the trial without succe ss. Schwartz
, 135 I ll. App. 3d at 632, 482 N.E.2d at 106. ¶ 23 The defenda

nt pled not guilty b y re ason of i nsanity

. Schwartz
, 135 I ll. App. 3d at 635, 482 N.E.2d at 108. Both the defe ndant and the State prese nted extensive testimony about the
events in the wee ks leading up to the offe nses. Schwartz
, 135 I ll. App. 3d at 633, 482 N.E.2d
at 107. This included the defe ndant’s own testimony

. Schwartz
, 135 I ll. App. 3d at 635, 482 N.E.2d at 108. ¶ 24 On appea l, the defe ndant argued that the trial court err ed in finding him fit to stand trial. Schwartz
, 135 I ll. App. 3d at 636-37, 482 N.E.2d at 10 9

. T h e Second District found that althoug h the defe ndant was unable to “coope rate in his defe nse conce rning the amnesiac period,” he was able to communicate with his attorney about trial decisions. Schwartz
, 135 I ll. App. 3d at 638-39, 482 N.E.2d at 1 10-11. The court found that this was all our statute contemplates in providing that a fit defe ndant is one who is able to assist in his own defe nse. Schwartz , 135 I ll. App. 3d at 639, 482 N.E.2d at 111. ¶ 25 In addition, the defe ndant there raised g ener al due proce ss conce rns reg arding the impact of his memory loss on the fairne ss of his trial. More specific ally
, he argued that his memory loss preve nted hi m from offering his own t estimony as t o his state of m i n d at t h e t i me t he offe nses took place

. Schwartz , 135 I ll. App. 3d at 639, 482 N.E.2d at 111. In reje ctingthis claim, the appellate court noted that the defe ndant was able to tell h is attorney about the
events leading up to the arson and murder which supported his insanity d ef ense. The defe ndant was even able to testify about these events. Schwartz
, 135 I ll. App. 3d at 640, 482 N.E.2d at 111-12. The court foun d that under the “par ticular circ umstances” befor e it, the defe ndant was able to fully develop and prese nt his insanity defe nse. Schwartz
, 135 I ll. App. 3d at 640, 482 N.E.2d at 112. ¶ 26 We believe the Schwartz court ignor ed express statutory languag e applica

ble to fitness hearings. As previously stated, the statute expressly provides that the court should consider the defe ndant’s ability to rec all t h e ev en ts involved in the charg es ag ainst him and relate those to defe nse counsel. Indeed, the statute emphasizes the defe ndant’s ability to relate these
events. 725 I L CS 5/104-16(b)( 2) (West 2010). We thus decline to follow Schwartz

. S ee

-6-People v. Pruitt
, 239 I ll. App. 3d 200, 209, 606 N.E.2d 866, 872 (1992) (noting that one

district of the appellate court is not re quired to follow the holdingof anothe r district of the appellate court). ¶ 27 It is also important to note that, while the Schwartz court held that complete amnesia of th e ev ents surrounding the charg ed behavior does not automatically support a finding of unfitness, the court did not hold that a defe ndant who lacks any memory of the events at issue
may neve r be found unfit on this basis alone. In that reg ard, the instant case is distinguishable from Schwartz

. In Schwartz
, the defe ndant was able to provide his attorney with information about the ev en ts leading up to the charg ed incident that helped him prese nt his insanity defe nse. Her e, the defe ndant is unable to rec all any thing that occur

red in the 48 hours leading
up to the event s at i ssue, and there is no indication that an insanity defe nse would be
appropriate or that the defe ndant can provide his attorney with any information that will help him to present any

other de fense

. ¶ 28 The State argues, howeve r, that conce rns about a defe ndant’s ability t o re m ember the
events at issue are more proper ly raised in an appea l after trial and framed in terms of g ener al due proce ss conce rns. In support of this argument, the State points to the proce dural history of Schwartz

. There
, as previously discussed, the defe ndant challeng ed his conviction on the
g rounds both that he should not have been found fit to stand trial and that his inability to

reme mber events deprive d him of a fair trial beca use he could not prese nt all of the evidenc e rele vant to his insanity defe nse. We have alre ady reje cted the holding in Schwartz

. Moreove r,

we do not rea d the opinion to hold that a defe ndant suffe ring from amnesia must alway s g o through a trial and then challeng e his conviction on g ener al due proce ss g rounds instead of challeng ing the court’s fitness deter mination. As we have alre ady discussed, the applicable
statute expressly emphasizes the defe ndant’s ability to rec all and relate to counsel the events at issue in the charg es ag ainst him. Her e, the defe ndant has no such ability

. To hold that this issue is not a question of fitness would b e at o d ds with the very purpose of our provisi ons related to fitness to stand trial. ¶ 29 The State further argues that the defe ndant in fac t can assist in his own defe nse beca use he is able to revie w police r eports and disc uss witness testimony with his attorney . We are not persuade d. The de fenda nt here is una

ble to pr ovide counsel with a ny information at all

conce rning the events at issue. This is far more criti cal aid to a defe nse attorney than the ability to rea d police reports and asse ss w itness te stimony . The de fenda nt’s rec ollection of the events at issue is information the attorney has no other means of obtaining. Thus, the fac t that the defe ndant may be able to discuss as p ec t s o f the trial with his attorney does not

override t he fact t hat he is unable t o provide his attorney with any information concerning the cr imes char g ed. ¶ 30 In addition, the State arg ues that the court err ed in considering the repor ts of Dr. Gilbert and Dr. Rabun beca

use our fitness statute addre sses a defe ndant’s curr en t condition, and those repor

ts wer e based on evalua

tions of the defe ndant which took place more than a year befor e the fitness restoration hearing. This argument corr ectly states the law. Schwartz
, 135 I ll. App. 3d at 63 1
, 482 N.E.2d at 105-06. Howeve r, the undisputed medical evidenc e showed that while the defe ndant’s condition had improved in some respe cts, his inability to

rec all the rele vant events had not chang ed. We also note th at th e State acquie sced to the

-7-defe ndant’s reque st that the court take judicial n o t i ce of the repor ts and that Dr. Montani considere d them in rende ringhis opinion. W e find no e rror

. ¶ 31 Finally
, the State argues that the court was not fre e to d i s re gar d Dr. Montani’s expert

o p inion wher e there was no opinion to contra dict it. Ag ain, we disagree

. As previ o u s l y discussed, all of the psycholog ical evidence–including Dr. Montani’s testimony and
repor ts–indicated that the defe ndant had no memory of the events at issue and was unlikely

ever to r ecove r his me mory of what occ urre d. Dr. Montani’s c onclusion that the defe ndant

was fit to stand trial was a leg al conclusion, not a p s y ch iatric opinion. The ultimate leg al conclusion as t o t h e d ef

en dant’s fitness was an issue for the court to deter mine. People v. Hayne s , 174 I ll. 2d 204, 231, 673 N.E.2d 318, 331 (1996). ¶ 32 For the rea sons stated, we aff i rm t h e t ri al court’s order finding the defe ndant unfit to stand trial.

¶ 33 Affir

med.

-8-