People v. Kidd
Annotate this Case
People v. Kidd, No. 78445 (9/18/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing
of the opinion to request a rehearing. Also, opinions are subject to
modification, correction or withdrawal at anytime prior to issuance of the
mandate by the Clerk of the Court. Therefore, because the following slip
opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of
the following opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final action by the
Court.
Docket No. 78445--Agenda 2--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LEONARD
KIDD, Appellant.
Opinion filed September 18, 1997.
JUSTICE HARRISON delivered the opinion of the court:
Upon remand of this cause to the circuit court of Cook County for a new
trial (People v. Kidd, 147 Ill. 2d 510 (1992)), a jury found the defendant, Leonard
Kidd, guilty of one count of arson and 10 counts of murder in the deaths of 10
children who died as the result of a fire on October 28, 1980, in a residential
building comprised of five apartments. At a separate sentencing hearing the same
jury found defendant eligible for a death sentence and thereafter, upon
consideration of aggravating and mitigating circumstances, determined that there
were no mitigating circumstances sufficient to preclude the imposition of a death
sentence. At the phase of his trial in which his guilt was determined, defendant
represented himself, and the trial court appointed the public defender as standby
counsel. However, at both phases of the sentencing hearing, defendant wished to
be, and was, represented by the public defender, who filed a post-trial motion
seeking a judgment of acquittal or, in the alternative, a new trial and a new
sentencing hearing. At the hearing on the post-trial motion, conducted on
December 16, 1994, defendant's counsel tendered to the court three pro se post-
trial motions by defendant for a new trial. Following that hearing, the trial court
denied defendant's post-trial motions, including that filed by counsel as well as
those proffered by defendant pro se, and sentenced him to death accordingly upon
the convictions of murder. The cause comes directly to this court for review (Ill.
Const. 1970, art. VI, sec. 4(b); 134 Ill. 2d R. 603). Defendant presents for our
consideration 13 issues, many of which consist of numerous subissues. We affirm
the judgment of the circuit court.
Initially, defendant contends that this cause should be remanded for a new
trial because he was taking psychotropic drugs "under medical direction" during
trial and was entitled to a fitness hearing but did not receive one. Upon this
court's remand of this cause for retrial through the conclusion on September 14,
1994, of the aggravation and mitigation phase of defendant's sentencing hearing,
section 104--21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104--
21(a) (West 1992)) provided in relevant part that "[a] defendant who is receiving
psychotropic drugs or other medications under medical direction is entitled to a
hearing on the issue of his fitness while under medication." However, no hearing
is required where the defendant's right to a fitness hearing pursuant to section
104--21(a) is not established (People v. Britz, 174 Ill. 2d 163, 196 (1996)) and the
trial court has not abused its discretion in concluding that no bona fide doubt of
unfitness is present. People v. Kinkead, 168 Ill. 2d 394, 411 (1995). We note that
defendant appears to make no claim that the trial court so abused its discretion as
to bona fide doubt of fitness.
In the first of defendant's pro se post-trial motions, he makes, among
others, the following two assertions: (1) "At the time of the trial I Leonard Kidd
was using drugs. Also befor [sic] the trial I had some weed" and (2) "With the coc
[sic] I had in me I did not understand everything was going on and I did not no
[sic] about the law." In the third of his pro se post-trial motions, he asserts,
"1. Not only in Judge Schreier [sic] courtroom [where the
instant case was tried] but also in Judge Christy Berkos [sic]
courtroom [where an unrelated case against the defendant was
tried] I was on drugs.
2. The pysch medication I was on would always have me
feeling sleep [sic] & I did tell Judge Berkos I did not understand
everything was going on when I was in his courtroom.
3. When I was doing drugs it would be cocaine or weed.
The case's [sic] was to [sic] much on my mind."
At the hearing on his post-trial motion, the trial court expressed the wish
that defendant testify under oath concerning the allegations he had made in his pro
se motions so that a determination of credibility could be made for the record.
Testifying that during the trial he was using marijuana and cocaine, defendant
added, "And time that I wasn't using that, I was, I would be taking my Synaquan
(Phonetic) before I come over here and it make me drowsey [sic] a lot of times."
In response to the defendant's claim that he was "high" on drugs during his trial
in the instant case, he named the drugs he used as follows: "Cocaine, marijuana.
When I didn't have that I used my Synaquan." Although defendant indicated
during his testimony that he had taken the drugs prior to being searched before
being brought to court, he subsequently testified that he had had the drugs in his
mouth when he was searched prior to being brought to court and that when he had
arrived at the courtroom, he had used "cocaine and reefer in the washroom."
Defendant stated that he had obtained the cocaine and "reefer" he used "[t]hrough
the jail" from inmates. He described the effects of marijuana and cocaine upon
him: "Had me high enough lost my mind, if you want to know what that is."
At the conclusion of defendant's testimony, the trial court found that his
testimony "lacks any credibility" and that "[i]t is just a ploy, a maneuver, a
machination to try to undue [sic] this conviction." The trial court found further as
follows:
"[B]ecause defendant lacks credibility that in my judgment he was
not using drugs during the trial in this Court, and I further find that
he exhibited absolutely no sign of drug use.
He was competent, he was totally mentally fit, he was as
sober as anyone in the Courtroom, and he didn't do a bad job as
his own lawyer.
And he could not have done as well as he did under the
influence of drugs."
In support of defendant's position that he was wrongfully denied a fitness
hearing to which he was entitled pursuant to section 104--21(a), he maintains in
his brief to this court that in testimony during his motion for a new trial the fact
emerged that he was taking the "prescribed antidepressant[ ] Sinequan." However,
absent from the record in the trial court is any evidence that the Sinequan
defendant testified to having taken was prescribed for him or was in any way
taken, as section 104--21(a) expressly requires, "under medical direction."
Although the parties disagree as to whether the amended or the A defendant must
be receiving psychotropic drugs "under medical direction" to be entitled to a
hearing on the issue of his fitness while under medication. By virtue of having
failed to satisfy this element of section 104--21(a), defendant has necessarily failed
to establish his entitlement to a fitness hearing with regard to his asserted taking
of Sinequan. Hence, no new trial is warranted on this basis.
In further support of his contention that he was improperly denied a fitness
hearing to which he was entitled under section 104--21(a), defendant declares in
his brief that throughout his trial he was taking Dilantin to control epileptic
seizures and that "[a]ccording to the record in another case before this Court,
People v. Kidd, No. 76490, from time-to-time [sic], Tegretol (another anti-seizure
medication) and Elavil (a tricyclic antidepressant), were also prescribed for him."
In Britz this court construed the reference in section 104--21(a) to "psychotropic
drugs or other medications" as being limited to psychotropic drugs or other such
like medications, with the result that a nonpsychotropic medication is insufficient
to trigger the operation of the statute. Britz, 174 Ill. 2d at 196-97. In the unrelated
case against this same defendant of People v. Kidd, 175 Ill. 2d 1, 18-19 (1996),
which is the case to which he refers in his brief, we determined, in reliance upon
Britz, that Dilantin is not a psychotropic drug for purposes of the fitness provision
of section 104--21(a) with the result that defendant was not entitled to a fitness
hearing under that section. That determination applies equally to defendant's claim
here concerning his use of Dilantin during trial and is dispositive of it.
With respect to defendant's claims about his use of Tegretol and Elavil as
shown by the record in Kidd, we stated there that defendant had "found references
in various portions of the record in this case to his prior treatment with two other
drugs: Tegretol, another epilepsy medication, and Elavil, an antidepressant" (Kidd,
175 Ill. 2d at 19). With regard to his use of Tegretol and Elavil in Kidd, we
concluded that "there is no indication in the record that the defendant was actually
receiving a psychotropic drug at any point near the time of trial or sentencing in
this case. The references to his earlier treatment all predate, by substantial periods,
the beginning of the defendant's trial, in May 1993" (Kidd, 175 Ill. 2d at 20). We
declined to adopt his argument there and, thus, to "order a remand for
development of a further evidentiary record" concerning these two medications,
as he had requested, because to do so "would mean that a remand must be
available in every case in which the record contains some reference to the
defendant's long-ago treatment with a psychotropic drug" (Kidd, 175 Ill. 2d at 20).
In light of our disposition there and the fact that retrial in the instant case occurred
well over a year after his trial in that case began in May of 1993, we find his
contentions here concerning the use of Tegretol and Elavil singularly unpersuasive.
Defendant contends next that he did not knowingly and intelligently waive
the right to assistance of counsel because he is "a brain-damaged and epileptic
retarded man who depended on anti-seizure medication and who also received
anti-depressants." Asserting that his "very condition prevented a knowing and
intelligent waiver," he argues, inter alia, that he lacked "the requisite
comprehension" to waive the right to counsel intelligently and knowingly; that in
light of his "disabilities," the record demonstrates that he did not knowingly and
intelligently waive the right to counsel; that his "mental deficiencies shape the
totality of circumstances surrounding his purported waiver of rights"; that his
"history of mental retardation, his brain damage, his epilepsy," all establish that,
however willingly he waived counsel, he did not do so knowingly or intelligently;
that the admonishments he received in no way cured or corrected his "underlying
disabilities"; and that his waiver was unknowing because the admonishments were
not given in a way suited to his "mental limitations." He cites examples of his
conduct while representing himself that, in his view, support his claims concerning
his disabilities and concomitant failures of understanding and maintains that
People v. Lego, 168 Ill. 2d 561 (1995), and Godinez v. Moran, 509 U.S. 389, 125 L. Ed. 2d 321, 113 S. Ct. 2680 (1993), govern this case and call for reversal.
As we said in Lego, although a court may deem a defendant's decision to
represent himself unwise, if he makes his decision freely, knowingly, and
intelligently, the court must accept it out of that respect for the individual which
is the lifeblood of the law. Lego, 168 Ill. 2d at 564. Because an accused who
manages his own defense relinquishes many of the traditional benefits associated
with the right to the assistance of counsel, in order to represent himself the
accused must knowingly and intelligently forgo those relinquished benefits.
Faretta v. California, 422 U.S. 806, 835, 45 L. Ed. 2d 562, 581, 95 S. Ct. 2525,
2541 (1975); Lego, 168 Ill. 2d at 564. A waiver is, ordinarily, an intentional
relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst,
304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023 (1938); Lego, 168 Ill. 2d at 564. When a defendant seeks to waive counsel, the trial court must not
only determine that he is competent to stand trial but also satisfy itself that his
waiver of this constitutional right is both knowing and voluntary. Godinez, 509 U.S. at 400, 125 L. Ed. 2d at 333, 113 S. Ct. at 2687. Although a defendant need
not possess the skill and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be made aware of the dangers
and disadvantages of such representation, so that the record will establish that
" `he knows what he is doing and his choice is made with eyes open.' " Faretta,
422 U.S. at 835, 45 L. Ed. 2d at 581-82, 95 S. Ct. at 2541, quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 279, 87 L. Ed. 268, 275, 63 S. Ct. 236, 242 (1942); Lego, 168 Ill. 2d at 564-65. The requirement of knowing and
intelligent choice calls for nothing less than a full awareness of both the nature of
the right being abandoned and the consequences of the decision to abandon it.
Patterson v. Illinois, 487 U.S. 285, 292, 101 L. Ed. 2d 261, 272, 108 S. Ct. 2389,
2395 (1988); Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed. 2d 410, 421, 106 S. Ct. 1135, 1141 (1986); Lego, 168 Ill. 2d at 564-65. The determination of
whether there has been an intelligent waiver of the right to counsel must depend,
in each case, upon the particular facts and circumstances of that case, including
the background, experience, and conduct of the accused. Johnson, 304 U.S. at 464,
82 L. Ed. at 1466, 58 S. Ct. at 1023; Lego, 168 Ill. 2d at 565.
The defendant's claims of brain damage and mental retardation appear to
be based largely upon the testimony of Dr. Linda Wetzel, a neuropsychologist,
whom defendant called to testify during the aggravation and mitigation stage of
his sentencing hearing. Dr. Wetzel testified that in her practice she administers,
interprets, and evaluates neuropsychological tests, which are tests of brain
behavior and are primarily designed to measure any brain impairment. This
witness gave defendant a battery of neuropsychological tests while he was in jail
in May of 1993. Prior to testing defendant, Dr. Wetzel had in her possession an
IQ test administered by Dr. Karen Smith as well as school records of IQ tests
performed when defendant was approximately 7, 10, and 15 years old. Subsequent
to the testing performed while defendant was in school, he was classified as
educationally mentally handicapped. Dr. Wetzel did not repeat the IQ test that had
recently been administered to defendant by Dr. Smith but did administer the wide
range achievement test, which is a test measuring the grade level of reading,
mathematics, and spelling, and the multilingual aphasia examination, which is a
test designed to measure the expression and comprehension or understanding of
the English language.
Dr. Wetzel testified that in 1993 Dr. Smith measured defendant's full scale
IQ at 73 and that an IQ between 70 and 75 is documented as "at the high end of
the mentally retarded range of intelligence." Dr. Wetzel stated that Dr. Smith
classified defendant as "borderline mental retarded" and not mentally retarded;
later Dr. Wetzel expressed her own opinion that defendant is "borderline mental
retarded." Concerning the results of the tests that Dr. Wetzel had administered
herself, the witness said that on the wide range achievement test she found
defendant's reading and spelling ability at or below the third-grade level and his
mathematics ability at the third-grade level. While she found his concentration
"very poor," which made it difficult for him to learn or remember new
information, she found his language fluent and grammatical, adding, "He's good
at expressing himself." With respect to his comprehension of sentences, however,
she found that if the sentences became too complex, a lot of repetition became
necessary and the witness had to slow down, even in explaining how defendant
was to complete some of the tests. For the witness, the need to repeat during
testing indicated poor comprehension and, in his case, difficulty in concentrating.
She also found his memory, visual motor ability, and capacity for abstraction to
be impaired as well as his ability to learn "just a list of words" that she repeated
to him several times.
Dr. Wetzel testified that she was aware of defendant's treatment with
Dilantin, which she described as a common medication for a seizure disorder; such
a disorder was, for her, "strong evidence of an impairment of the brain." She
stated that she had learned from the defendant that as the result of a car accident
at the age of 14 he had had a head injury involving a loss of consciousness.
Defendant's scores on the neuropsychological tests fell within "an impaired
range," she said, ranging from mildly to severely impaired on all the tests she
administered to him. Describing defendant as a man with considerable
neuropsychological brain impairment, she expressed the opinion, based upon the
results of her testing, that defendant has "impaired brain functions."
On cross-examination the witness testified that she had spent a total of
approximately three hours with the defendant and that the neuropsychological tests
she had administered to him require the cooperation of the person taking the test.
Asked whether the person being tested could easily provide misleading
information, Dr. Wetzel responded, "I think that there is [sic] certain patterns we
expect to see, especially when we spend 2 or 3 hours administering tests, which
oftentimes indicate when a person is not responding accurately and at his full level
of cooperation." When she gives the wide range achievement test, she said, she
gives the person being tested words to write out until he or she makes 10
consecutive errors, whereupon the test is stopped; in defendant's case he was able
to write three words and then made 10 consecutive errors, whereupon she stopped
the test, in accord with the standard administration of it. She testified that persons
with epilepsy are usually able to function normally when they take Dilantin. She
defined "malingering" as "faking on tests to make yourself look worse than you
really are."
During this phase of the sentencing hearing, defendant called also as a
witness Dr. George Savarese, a clinical social worker who had reviewed available
records and had conducted interviews to prepare a psychosocial developmental
evaluation of him. Among those Dr. Savarese had interviewed were Dr. Wetzel
and Dr. Smith. Dr. Savarese testified that defendant had been diagnosed as being
mentally retarded on three separate occasions, that is, at the ages of 7, 10, and 15,
with scores of 63, 67, and 64, respectively, at those ages, scores that were, he
said, "[a]ll well within the mental retardation range." He stated further,
"For the issue of mental retardation, though, is not simply an issue
of IQ that indicates that. There have to be other areas of social
adaptation as it's referred to, ways to [sic] functioning and living
in the community that also need to show some kind of impairment
as well.
Specifically there were 3 key areas that it appears that
Leonard had difficulties in terms of this functioning. With regard
to the social deficits, skills and relating with other people appears
to be markedly impaired. Tremendous tendency to act very
impulsively in close interactions with other people. And particularly
with problems with peers that he had at school was a lot of
difficulty."
Dr. Savarese also noted that defendant had had problems with self-direction,
which is another area of social functioning considered to be within the framework
of understanding a diagnosis of mental retardation, as well as problems in the area
of "home living," another area of social functioning, which pertains to the ability
to function "within a home, in a neighborhood, in one's environment."
In rebuttal during this stage of the sentencing hearing, the State presented
a stipulation between it and defendant that if Dr. Albert Stipes were called as a
witness, he would testify that he is a licensed psychiatrist employed by the
Psychiatric Institute of the circuit court of Cook County; he would be qualified as
an expert in the field of forensic psychiatry; and he would testify that on
December 9, 1985, pursuant to a court appointment, he had examined defendant
and had concluded that the defendant was malingering.
Defendant bases his contention that he was unable to waive his right to the
assistance of counsel knowingly and intelligently, in part, on facts that are
disputed in the record. Whereas in Lego the testimony of the defendant's expert
witnesses stood unrefuted, here evidence crucial to defendant's claim of mental
impairment is contradicted. Although Dr. Wetzel described an IQ such as
defendant's as falling "at the high end of the mentally retarded range of
intelligence" and expressed the opinions, primarily on the basis of defendant's
performance on tests, that he suffered from impaired brain functions and is
"borderline mental retarded," Dr. Stipes concluded that defendant was malingering,
defined by Dr. Wetzel as "faking on tests to make yourself look worse than you
really are." Moreover, although defendant relies, in part, on the fact that he was
taking anticonvulsant medication to support his claim concerning waiver of the
right to the assistance of counsel, Dr. Wetzel testified on cross-examination that
persons with epilepsy taking the anticonvulsant Dilantin are usually able to
function normally. With respect to defendant's further reliance in support of this
claim on his having received "anti-depressants," we are mindful of the trial court's
assessment of defendant as "totally mentally fit" during trial after the trial court
heard defendant's testimony concerning his alleged use of drugs at trial, including
the antidepressant Sinequan. While we are uncertain whether by "anti-depressants"
defendant refers as well to the antidepressant Elavil, as he did in the prior issue
presented for review, if such a claim is, indeed, intended in support of his
contention of invalid waiver of his right to the assistance of counsel, we deem it
meritless for the reasons already expressed in our consideration of the prior issue.
Thus, on the basis of the record before us we are unable to say that the
defendant's purported mental limitations and disabilities precluded his knowing
and intelligent waiver of the right to the assistance of counsel.
Defendant contends that his waiver of the right to the assistance of counsel
was invalid for the further reason that in admonishing him pursuant to Supreme
Court Rule 401(a) (134 Ill. 2d R. 401(a)), the trial court stated incorrectly both the
charges and the minimum sentence upon conviction. Although one of the charges
against the defendant was arson, the trial court admonished him that he was
charged with aggravated arson.[fn1] Further, although the trial court admonished
defendant that the minimum sentence was 20 years, defendant was convicted on
May 19, 1993, of murdering four persons on January 12, 1984, with the result that
these four prior murder convictions mandated a minimum term of natural life
imprisonment in the instant unrelated case; an amendment to section 5--8--1(a)(1)
of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005--8--
1(a)(1)), effective July 1, 1980, provided that for first degree murder "if the
defendant has previously been convicted of murder under any state or federal law
or is found guilty of murdering more than one victim, the court shall sentence the
defendant to a term of natural life imprisonment." 730 ILCS Ann. 5/5--8--1,
Historical & Statutory Notes, at 795 (Smith-Hurd 1992).
The record reveals that in court on August 23, 1994, the assistant public
defender who was representing defendant following remand notified the court that
defendant had informed him "after a recent jail visit that it's his desire in this
matter to go, pro se." Counsel indicated to the court that his relationship with
defendant "goes back approximately 10 years" and that he had explained to
defendant that "absolutely, he has a right to go pro se" but that it was "probably
not in his best interest" to do so. After counsel said that defendant wished to
address the court on the issue, the following colloquy between defendant and the
trial court occurred:
"DEFENDANT KIDD: Yeah, I feel in my best interest to
go, pro se.
THE COURT: Well, of course, I would disagree. I think
you would be absolutely and totally foolish to undertake this trial
without a good lawyer, an experienced lawyer in this case. A
lawyer who has already fault [sic] one trial for you and knows the
case and has always been extremely vigorous and energetic and
conscientious in trying to defend you.
You know very well that you can receive the death penalty
on this case. You were for 20 years in the Illinois Department of
Corrections through natural life to the death penalty, and you
would be called upon to make your own arguments, to make your
own objections, gather your own legal written instructions at the
end of the case, to introduce evidence.
You have, I think, a good idea from your trials, all that it
takes to conduct a trial, to conduct a defense. And you would be
called upon to do so.
DEFENDANT KIDD: Yeah.
THE COURT: Well--so, I really urge you not to try to
undertake to defend yourself, but to stay with your lawyer.
DEFENDANT KIDD: It looks like that's my only way out.
It's [sic] looks like my best way out, though.
THE COURT: Think about it again and see if you still have
the same thought on September 7th, which is the trial date. It is
going to go ahead on September 7th, whether you are your own
lawyer or you wish Mr. Strunck [the assistant public defender] to
keep defending you.
But particularly in this case, which is not a simple case,
requires presentation of a good cross[-] examination, involves the
death penalty, which calls all kind [sic] of things that you know
about since you went through this trial already.
I have real doubt whether you can do it yourself.
DEFENDANT KIDD: People sit right there on the stand
and lied to you. I do it myself. I ain't going to go through what I
did.
THE COURT: We'll see. You better rethink it. We'll see
you September 7th."
Later that day, during a discussion of deadlines associated with the trial, defendant
stated, "That's cutting it short. I'll do what I can." The trial court replied, "That's
another problem one has when you know, you in custody, trying the defend [sic]
yourself. But do the best you can." In turn, defendant responded, "But sometimes
you have no choice, when people sit right there on the stand and lie, too."
Approximately a week later, after defendant indicated to the trial court that
he wished still to proceed pro se, the trial court admonished him as follows:
"THE COURT: You have to understand that you are
charged with--you're charged with first degree murder and, I
believe, aggravated arson as well.
MS. LACY [Assistant State's Attorney]: I'm not sure if the
aggravated arson was nolle'd. I believe it was nolle'd.
THE COURT: You're charged with ten counts of murder
and a count of arson, aggravated arson, I believe. And I must tell
you then the nature of those charges, which I think you already
know since you went through a trial on them.
Secondly, you should know that on the murder charges, the
minimum is 20 years, and the maximum is the death penalty. You
understand that that's the minimum and the maximum. 20 years is
the minimum; the death penalty is the maximum.
***
You also must be informed, and I'm sure you already know,
that you have a right to counsel, and if you are indigent without
money, counsel, Mr. Strunck, the public defender, will be
appointed for you."
Following the defendant's affirmative response to the trial court that he
understood those admonitions, the trial court reiterated defendant's responsibilities
in undertaking his own defense. Finally, the trial court asked defendant, "And
knowing all those things, do you still wish to represent yourself," to which
defendant responded, "Yeah." At this juncture the trial court stated that it wanted
Strunck "here in the event that [defendant] changes his mind" and indicated for
the record that Strunck was the standby counsel.
Rule 401(a) provides:
"Any waiver of counsel shall be in open court. The court
shall not permit a waiver of counsel by a person accused of an
offense punishable by imprisonment without first, by addressing the
defendant personally in open court, informing him of and
determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed
by law, including, when applicable, the penalty to which the
defendant may be subjected because of prior convictions or
consecutive sentences; and
(3) that he has a right to counsel and, if he is
indigent, to have counsel appointed for him by the court."
134 Ill. 2d R. 401(a).
Substantial compliance with Rule 401(a) is sufficient to effectuate a valid waiver
of counsel if the record indicates the waiver was made knowingly and intelligently
(People v. Coleman, 129 Ill. 2d 321, 333 (1989)) and the admonishment the
defendant received did not prejudice his rights. People v. Haynes, 174 Ill. 2d 204,
236 (1996); People v. Johnson, 119 Ill. 2d 119, 132 (1987). Where a defendant
knows the nature of the charges against him and understands that as a result of
those charges he may be sentenced to death, his knowledge and understanding that
he may be eligible to receive a lesser sentence pales in comparison. Coleman, 129 Ill. 2d at 334.
Here the record shows that the trial court complied substantially with Rule
401(a), informing defendant of the nature of the charges against him, explaining
to him that the death penalty was the maximum sentence, and advising him of his
right to counsel. Thus, we must determine next whether defendant's waiver of
counsel was made knowingly and intelligently, despite the incorrect admonishment
concerning one of the charges and the minimum sentence. See Coleman, 129 Ill. 2d at 334.
Defendant urges that the record "does not show that his waiver did not
hinge on the area of non-compliance." We must disagree. The record indicates that
defendant chose to waive his right to the assistance of counsel because of his
expressed belief that in an earlier trial witnesses had lied, apparently without
defense counsel's having exposed their lies. There is no suggestion in the record
that the trial court's misstatement concerning either the charge of aggravated arson
or the minimum sentence played any part whatever in defendant's waiver of his
right to the assistance of counsel. Moreover, although the trial court did err in
stating that one of the charges against defendant was aggravated arson, rather than
arson, we fail to see how misinformation to the effect that defendant was charged
with a crime more serious than that with which he was actually charged (see
People v. Johnson, 114 Ill. 2d 69, 72 (1986)) could have affected adversely his
decision to proceed pro se, particularly where he was also informed that he was
charged with 10 counts of murder. Defendant was fully apprised that he could
receive the sentence of death actually imposed and, thus, suffered no prejudice as
a result of the trial court's failure to state correctly the minimum penalty to which
he would be subjected if convicted. See Johnson, 119 Ill. 2d at 134. In spite of
the trial court's incorrect admonishment concerning one of the charges against
defendant and the minimum sentence, the record here indicates that he waived
counsel knowingly and intelligently.
Upon retrial the State marshalled an extensive array of evidence of
defendant's guilt. Of the five apartments in the building that burned, three, all
vacant, were located on the first floor, while two families lived in the two
apartments on the second floor. In the second-floor apartment to the east, Brenda
Boyd lived with her five children, four of whom died as a result of the fire; in the
second-floor apartment to the west, Emma Burts lived with her four children, three
of whom died in the fire. During the evening when the fire occurred, Emma's
sister, Gertrude Armstrong, together with her five children, were in Emma's
apartment while Emma worked as a nurse's aide and, according to Gertrude's
testimony, Gertrude's 17-year-old daughter Diane baby-sat for Emma's children.
Three of Gertrude's children, including Diane, perished in the fire. Eight of the
children who died ranged in age from six months to nine years, while a ninth
child was 13 years of age. One of Gertrude's daughters, Renee Armstrong, 14
years old at the time of the fire, was the girlfriend of defendant, who was visiting
Renee at Emma's apartment on the evening of the fire. Defendant's father, Melvin
Kidd, had owned the apartment building prior to his death and was a friend of
Emma Burts' family.
Detective Ernest Rokosik, a police detective certified as an arson
investigator, testified as an expert in the field of fire examination and cause and
origin of fires. The witness arrived at the scene of the fire at 1512 East 65th Place
in Chicago about 9 a.m. the morning after the fire. Evidence, including the
absence of any fire damage at all beneath the first floor, indicated to the witness
that the fire had not originated in the basement but had started on the first floor.
In the front first-floor apartment there was primarily smoke damage and little or
no fire damage, facts indicating that the fire did not start there.
Detective Rokosik testified further that approximately four or five feet into
the second of the three first-floor apartments, that is, the apartment to the east,
there was a pile of clothing and miscellaneous papers and books on the floor that
appeared to have had surface burning on them. There was no damage to the floor
under the pile of burnt papers. The witness found no accidental or providential
causes of that fire and concluded that an open flame had been applied to the
combustible material on the floor. The type of fire the witness saw evidence of
there would not have caused a great deal of smoke. Other areas of the room
showed no path of communication from this point to the heavier fire damage in
the center of the building, and the amount of fire damage in this apartment was
"very minimal."
According to Detective Rokosik, the area of heaviest damage occurred in
the third of the first-floor apartments, that is, the apartment at the rear to the west.
He determined that there was a point of origin in a makeshift closet on the east
wall of the large front room of that apartment. In the northwest corner of the
room, the witness noticed what he believed to be a second point of origin of the
fire, smaller than the main point of origin within the closet on the east wall where
fire had burnt longest and the largest fire had occurred. In the opinion of the
witness, the fire originating in the closet was an intentionally set fire caused, as
was the fire in the northwest corner of the room, by the ignition of an available
combustible by open flame. Debris samples indicated that no flammable liquids
had been applied. The fire damage indicated that the fire did not start in the
kitchen area but in the closet and then communicated upwards, burning through
the ceiling of the closet into the area between the ceiling of the first floor and the
floor of the second floor and, ultimately, through the roof. Detective Rokosik ruled
out an accidental and providential cause of the fire in the building, expressing the
opinion that to a reasonable degree of scientific certainty its cause was the
intentional ignition of ordinary combustibles, that is, "[p]aper, rags, things of that
nature," by some type of open flame, that is, "anything from cigarette lighter to
a candle to a propane torch."
Renee Armstrong testified that at the time of the fire defendant had been
her boyfriend for about three or four months. After defendant came to her aunt's
apartment at about 7 or 8 p.m. on the evening in question, he told Renee that he
smelled smoke. The witness smelled none. Upon saying that he smelled smoke,
defendant said that he was going to go downstairs to see if any of the apartments
there had anything burning. Then he, the witness, and her mother went downstairs
to the first floor. Renee smelled no smoke when she arrived downstairs and saw
no evidence of a fire. Defendant went to the apartment to the east and twisted the
doorknob, but the door was locked, whereupon he kicked in the door. Defendant
went to no other doors on the first floor before kicking in the door of the
apartment to the east. The three went to the back of that apartment and found a
dresser thrown over some books with "a small fire under it." Defendant started
looking for something with which to put out the fire and found a foot tub and
some pails that they filled with water and used to extinguish it.
After the fire was out, defendant said that he wanted to go over into the
other apartment and see if anything was burning there. He told Renee and her
mother to stay where they were and kicked a hole in the wall through which he
entered the apartment on the west side. Renee lost sight of defendant for about
three to five minutes. When he returned, he said that nothing was burning there
and found a blanket with which he covered the hole he had kicked in the wall.
Renee and defendant then went out to a McDonald's restaurant and were
gone about 10 to 15 minutes. When they left the other children were asleep. When
she and defendant returned to the apartment building, as they walked inside the
hallway on the first floor, defendant said that he still smelled something burning.
Renee smelled nothing and said so. She also told defendant, "I don't care what
you're smelling. I'm going on upstairs and eating my food." She went upstairs
alone, leaving defendant on the first floor. After she had begun to eat, defendant
came upstairs and told her that he still smelled something burning. She still
smelled nothing. When he told her mother that he smelled something burning, her
mother got up. Renee heard then what seemed to be the sound of defe
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing
of the opinion to request a rehearing. Also, opinions are subject to
modification, correction or withdrawal at anytime prior to issuance of the
mandate by the Clerk of the Court. Therefore, because the following slip
opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of
the following opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final action by the
Court.
Docket No. 78445--Agenda 2--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LEONARD
KIDD, Appellant.
Opinion filed September 18, 1997.
JUSTICE HARRISON delivered the opinion of the court:
Upon remand of this cause to the circuit court of Cook County for a new
trial (People v. Kidd, 147 Ill. 2d 510 (1992)), a jury found the defendant, Leonard
Kidd, guilty of one count of arson and 10 counts of murder in the deaths of 10
children who died as the result of a fire on October 28, 1980, in a residential
building comprised of five apartments. At a separate sentencing hearing the same
jury found defendant eligible for a death sentence and thereafter, upon
consideration of aggravating and mitigating circumstances, determined that there
were no mitigating circumstances sufficient to preclude the imposition of a death
sentence. At the phase of his trial in which his guilt was determined, defendant
represented himself, and the trial court appointed the public defender as standby
counsel. However, at both phases of the sentencing hearing, defendant wished to
be, and was, represented by the public defender, who filed a post-trial motion
seeking a judgment of acquittal or, in the alternative, a new trial and a new
sentencing hearing. At the hearing on the post-trial motion, conducted on
December 16, 1994, defendant's counsel tendered to the court three pro se post-
trial motions by defendant for a new trial. Following that hearing, the trial court
denied defendant's post-trial motions, including that filed by counsel as well as
those proffered by defendant pro se, and sentenced him to death accordingly upon
the convictions of murder. The cause comes directly to this court for review (Ill.
Const. 1970, art. VI, sec. 4(b); 134 Ill. 2d R. 603). Defendant presents for our
consideration 13 issues, many of which consist of numerous subissues. We affirm
the judgment of the circuit court.
Initially, defendant contends that this cause should be remanded for a new
trial because he was taking psychotropic drugs "under medical direction" during
trial and was entitled to a fitness hearing but did not receive one. Upon this
court's remand of this cause for retrial through the conclusion on September 14,
1994, of the aggravation and mitigation phase of defendant's sentencing hearing,
section 104--21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104--
21(a) (West 1992)) provided in relevant part that "[a] defendant who is receiving
psychotropic drugs or other medications under medical direction is entitled to a
hearing on the issue of his fitness while under medication." However, no hearing
is required where the defendant's right to a fitness hearing pursuant to section
104--21(a) is not established (People v. Britz, 174 Ill. 2d 163, 196 (1996)) and the
trial court has not abused its discretion in concluding that no bona fide doubt of
unfitness is present. People v. Kinkead, 168 Ill. 2d 394, 411 (1995). We note that
defendant appears to make no claim that the trial court so abused its discretion as
to bona fide doubt of fitness.
In the first of defendant's pro se post-trial motions, he makes, among
others, the following two assertions: (1) "At the time of the trial I Leonard Kidd
was using drugs. Also befor [sic] the trial I had some weed" and (2) "With the coc
[sic] I had in me I did not understand everything was going on and I did not no
[sic] about the law." In the third of his pro se post-trial motions, he asserts,
"1. Not only in Judge Schreier [sic] courtroom [where the
instant case was tried] but also in Judge Christy Berkos [sic]
courtroom [where an unrelated case against the defendant was
tried] I was on drugs.
2. The pysch medication I was on would always have me
feeling sleep [sic] & I did tell Judge Berkos I did not understand
everything was going on when I was in his courtroom.
3. When I was doing drugs it would be cocaine or weed.
The case's [sic] was to [sic] much on my mind."
At the hearing on his post-trial motion, the trial court expressed the wish
that defendant testify under oath concerning the allegations he had made in his pro
se motions so that a determination of credibility could be made for the record.
Testifying that during the trial he was using marijuana and cocaine, defendant
added, "And time that I wasn't using that, I was, I would be taking my Synaquan
(Phonetic) before I come over here and it make me drowsey [sic] a lot of times."
In response to the defendant's claim that he was "high" on drugs during his trial
in the instant case, he named the drugs he used as follows: "Cocaine, marijuana.
When I didn't have that I used my Synaquan." Although defendant indicated
during his testimony that he had taken the drugs prior to being searched before
being brought to court, he subsequently testified that he had had the drugs in his
mouth when he was searched prior to being brought to court and that when he had
arrived at the courtroom, he had used "cocaine and reefer in the washroom."
Defendant stated that he had obtained the cocaine and "reefer" he used "[t]hrough
the jail" from inmates. He described the effects of marijuana and cocaine upon
him: "Had me high enough lost my mind, if you want to know what that is."
At the conclusion of defendant's testimony, the trial court found that his
testimony "lacks any credibility" and that "[i]t is just a ploy, a maneuver, a
machination to try to undue [sic] this conviction." The trial court found further as
follows:
"[B]ecause defendant lacks credibility that in my judgment he was
not using drugs during the trial in this Court, and I further find that
he exhibited absolutely no sign of drug use.
He was competent, he was totally mentally fit, he was as
sober as anyone in the Courtroom, and he didn't do a bad job as
his own lawyer.
And he could not have done as well as he did under the
influence of drugs."
In support of defendant's position that he was wrongfully denied a fitness
hearing to which he was entitled pursuant to section 104--21(a), he maintains in
his brief to this court that in testimony during his motion for a new trial the fact
emerged that he was taking the "prescribed antidepressant[ ] Sinequan." However,
absent from the record in the trial court is any evidence that the Sinequan
defendant testified to having taken was prescribed for him or was in any way
taken, as section 104--21(a) expressly requires, "under medical direction."
Although the parties disagree as to whether the amended or the A defendant must
be receiving psychotropic drugs "under medical direction" to be entitled to a
hearing on the issue of his fitness while under medication. By virtue of having
failed to satisfy this element of section 104--21(a), defendant has necessarily failed
to establish his entitlement to a fitness hearing with regard to his asserted taking
of Sinequan. Hence, no new trial is warranted on this basis.
In further support of his contention that he was improperly denied a fitness
hearing to which he was entitled under section 104--21(a), defendant declares in
his brief that throughout his trial he was taking Dilantin to control epileptic
seizures and that "[a]ccording to the record in another case before this Court,
People v. Kidd, No. 76490, from time-to-time [sic], Tegretol (another anti-seizure
medication) and Elavil (a tricyclic antidepressant), were also prescribed for him."
In Britz this court construed the reference in section 104--21(a) to "psychotropic
drugs or other medications" as being limited to psychotropic drugs or other such
like medications, with the result that a nonpsychotropic medication is insufficient
to trigger the operation of the statute. Britz, 174 Ill. 2d at 196-97. In the unrelated
case against this same defendant of People v. Kidd, 175 Ill. 2d 1, 18-19 (1996),
which is the case to which he refers in his brief, we determined, in reliance upon
Britz, that Dilantin is not a psychotropic drug for purposes of the fitness provision
of section 104--21(a) with the result that defendant was not entitled to a fitness
hearing under that section. That determination applies equally to defendant's claim
here concerning his use of Dilantin during trial and is dispositive of it.
With respect to defendant's claims about his use of Tegretol and Elavil as
shown by the record in Kidd, we stated there that defendant had "found references
in various portions of the record in this case to his prior treatment with two other
drugs: Tegretol, another epilepsy medication, and Elavil, an antidepressant" (Kidd,
175 Ill. 2d at 19). With regard to his use of Tegretol and Elavil in Kidd, we
concluded that "there is no indication in the record that the defendant was actually
receiving a psychotropic drug at any point near the time of trial or sentencing in
this case. The references to his earlier treatment all predate, by substantial periods,
the beginning of the defendant's trial, in May 1993" (Kidd, 175 Ill. 2d at 20). We
declined to adopt his argument there and, thus, to "order a remand for
development of a further evidentiary record" concerning these two medications,
as he had requested, because to do so "would mean that a remand must be
available in every case in which the record contains some reference to the
defendant's long-ago treatment with a psychotropic drug" (Kidd, 175 Ill. 2d at 20).
In light of our disposition there and the fact that retrial in the instant case occurred
well over a year after his trial in that case began in May of 1993, we find his
contentions here concerning the use of Tegretol and Elavil singularly unpersuasive.
Defendant contends next that he did not knowingly and intelligently waive
the right to assistance of counsel because he is "a brain-damaged and epileptic
retarded man who depended on anti-seizure medication and who also received
anti-depressants." Asserting that his "very condition prevented a knowing and
intelligent waiver," he argues, inter alia, that he lacked "the requisite
comprehension" to waive the right to counsel intelligently and knowingly; that in
light of his "disabilities," the record demonstrates that he did not knowingly and
intelligently waive the right to counsel; that his "mental deficiencies shape the
totality of circumstances surrounding his purported waiver of rights"; that his
"history of mental retardation, his brain damage, his epilepsy," all establish that,
however willingly he waived counsel, he did not do so knowingly or intelligently;
that the admonishments he received in no way cured or corrected his "underlying
disabilities"; and that his waiver was unknowing because the admonishments were
not given in a way suited to his "mental limitations." He cites examples of his
conduct while representing himself that, in his view, support his claims concerning
his disabilities and concomitant failures of understanding and maintains that
People v. Lego, 168 Ill. 2d 561 (1995), and Godinez v. Moran, 509 U.S. 389, 125 L. Ed. 2d 321, 113 S. Ct. 2680 (1993), govern this case and call for reversal.
As we said in Lego, although a court may deem a defendant's decision to
represent himself unwise, if he makes his decision freely, knowingly, and
intelligently, the court must accept it out of that respect for the individual which
is the lifeblood of the law. Lego, 168 Ill. 2d at 564. Because an accused who
manages his own defense relinquishes many of the traditional benefits associated
with the right to the assistance of counsel, in order to represent himself the
accused must knowingly and intelligently forgo those relinquished benefits.
Faretta v. California, 422 U.S. 806, 835, 45 L. Ed. 2d 562, 581, 95 S. Ct. 2525,
2541 (1975); Lego, 168 Ill. 2d at 564. A waiver is, ordinarily, an intentional
relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst,
304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023 (1938); Lego, 168 Ill. 2d at 564. When a defendant seeks to waive counsel, the trial court must not
only determine that he is competent to stand trial but also satisfy itself that his
waiver of this constitutional right is both knowing and voluntary. Godinez, 509 U.S. at 400, 125 L. Ed. 2d at 333, 113 S. Ct. at 2687. Although a defendant need
not possess the skill and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be made aware of the dangers
and disadvantages of such representation, so that the record will establish that
" `he knows what he is doing and his choice is made with eyes open.' " Faretta,
422 U.S. at 835, 45 L. Ed. 2d at 581-82, 95 S. Ct. at 2541, quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 279, 87 L. Ed. 268, 275, 63 S. Ct. 236, 242 (1942); Lego, 168 Ill. 2d at 564-65. The requirement of knowing and
intelligent choice calls for nothing less than a full awareness of both the nature of
the right being abandoned and the consequences of the decision to abandon it.
Patterson v. Illinois, 487 U.S. 285, 292, 101 L. Ed. 2d 261, 272, 108 S. Ct. 2389,
2395 (1988); Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed. 2d 410, 421, 106 S. Ct. 1135, 1141 (1986); Lego, 168 Ill. 2d at 564-65. The determination of
whether there has been an intelligent waiver of the right to counsel must depend,
in each case, upon the particular facts and circumstances of that case, including
the background, experience, and conduct of the accused. Johnson, 304 U.S. at 464,
82 L. Ed. at 1466, 58 S. Ct. at 1023; Lego, 168 Ill. 2d at 565.
The defendant's claims of brain damage and mental retardation appear to
be based largely upon the testimony of Dr. Linda Wetzel, a neuropsychologist,
whom defendant called to testify during the aggravation and mitigation stage of
his sentencing hearing. Dr. Wetzel testified that in her practice she administers,
interprets, and evaluates neuropsychological tests, which are tests of brain
behavior and are primarily designed to measure any brain impairment. This
witness gave defendant a battery of neuropsychological tests while he was in jail
in May of 1993. Prior to testing defendant, Dr. Wetzel had in her possession an
IQ test administered by Dr. Karen Smith as well as school records of IQ tests
performed when defendant was approximately 7, 10, and 15 years old. Subsequent
to the testing performed while defendant was in school, he was classified as
educationally mentally handicapped. Dr. Wetzel did not repeat the IQ test that had
recently been administered to defendant by Dr. Smith but did administer the wide
range achievement test, which is a test measuring the grade level of reading,
mathematics, and spelling, and the multilingual aphasia examination, which is a
test designed to measure the expression and comprehension or understanding of
the English language.
Dr. Wetzel testified that in 1993 Dr. Smith measured defendant's full scale
IQ at 73 and that an IQ between 70 and 75 is documented as "at the high end of
the mentally retarded range of intelligence." Dr. Wetzel stated that Dr. Smith
classified defendant as "borderline mental retarded" and not mentally retarded;
later Dr. Wetzel expressed her own opinion that defendant is "borderline mental
retarded." Concerning the results of the tests that Dr. Wetzel had administered
herself, the witness said that on the wide range achievement test she found
defendant's reading and spelling ability at or below the third-grade level and his
mathematics ability at the third-grade level. While she found his concentration
"very poor," which made it difficult for him to learn or remember new
information, she found his language fluent and grammatical, adding, "He's good
at expressing himself." With respect to his comprehension of sentences, however,
she found that if the sentences became too complex, a lot of repetition became
necessary and the witness had to slow down, even in explaining how defendant
was to complete some of the tests. For the witness, the need to repeat during
testing indicated poor comprehension and, in his case, difficulty in concentrating.
She also found his memory, visual motor ability, and capacity for abstraction to
be impaired as well as his ability to learn "just a list of words" that she repeated
to him several times.
Dr. Wetzel testified that she was aware of defendant's treatment with
Dilantin, which she described as a common medication for a seizure disorder; such
a disorder was, for her, "strong evidence of an impairment of the brain." She
stated that she had learned from the defendant that as the result of a car accident
at the age of 14 he had had a head injury involving a loss of consciousness.
Defendant's scores on the neuropsychological tests fell within "an impaired
range," she said, ranging from mildly to severely impaired on all the tests she
administered to him. Describing defendant as a man with considerable
neuropsychological brain impairment, she expressed the opinion, based upon the
results of her testing, that defendant has "impaired brain functions."
On cross-examination the witness testified that she had spent a total of
approximately three hours with the defendant and that the neuropsychological tests
she had administered to him require the cooperation of the person taking the test.
Asked whether the person being tested could easily provide misleading
information, Dr. Wetzel responded, "I think that there is [sic] certain patterns we
expect to see, especially when we spend 2 or 3 hours administering tests, which
oftentimes indicate when a person is not responding accurately and at his full level
of cooperation." When she gives the wide range achievement test, she said, she
gives the person being tested words to write out until he or she makes 10
consecutive errors, whereupon the test is stopped; in defendant's case he was able
to write three words and then made 10 consecutive errors, whereupon she stopped
the test, in accord with the standard administration of it. She testified that persons
with epilepsy are usually able to function normally when they take Dilantin. She
defined "malingering" as "faking on tests to make yourself look worse than you
really are."
During this phase of the sentencing hearing, defendant called also as a
witness Dr. George Savarese, a clinical social worker who had reviewed available
records and had conducted interviews to prepare a psychosocial developmental
evaluation of him. Among those Dr. Savarese had interviewed were Dr. Wetzel
and Dr. Smith. Dr. Savarese testified that defendant had been diagnosed as being
mentally retarded on three separate occasions, that is, at the ages of 7, 10, and 15,
with scores of 63, 67, and 64, respectively, at those ages, scores that were, he
said, "[a]ll well within the mental retardation range." He stated further,
"For the issue of mental retardation, though, is not simply an issue
of IQ that indicates that. There have to be other areas of social
adaptation as it's referred to, ways to [sic] functioning and living
in the community that also need to show some kind of impairment
as well.
Specifically there were 3 key areas that it appears that
Leonard had difficulties in terms of this functioning. With regard
to the social deficits, skills and relating with other people appears
to be markedly impaired. Tremendous tendency to act very
impulsively in close interactions with other people. And particularly
with problems with peers that he had at school was a lot of
difficulty."
Dr. Savarese also noted that defendant had had problems with self-direction,
which is another area of social functioning considered to be within the framework
of understanding a diagnosis of mental retardation, as well as problems in the area
of "home living," another area of social functioning, which pertains to the ability
to function "within a home, in a neighborhood, in one's environment."
In rebuttal during this stage of the sentencing hearing, the State presented
a stipulation between it and defendant that if Dr. Albert Stipes were called as a
witness, he would testify that he is a licensed psychiatrist employed by the
Psychiatric Institute of the circuit court of Cook County; he would be qualified as
an expert in the field of forensic psychiatry; and he would testify that on
December 9, 1985, pursuant to a court appointment, he had examined defendant
and had concluded that the defendant was malingering.
Defendant bases his contention that he was unable to waive his right to the
assistance of counsel knowingly and intelligently, in part, on facts that are
disputed in the record. Whereas in Lego the testimony of the defendant's expert
witnesses stood unrefuted, here evidence crucial to defendant's claim of mental
impairment is contradicted. Although Dr. Wetzel described an IQ such as
defendant's as falling "at the high end of the mentally retarded range of
intelligence" and expressed the opinions, primarily on the basis of defendant's
performance on tests, that he suffered from impaired brain functions and is
"borderline mental retarded," Dr. Stipes concluded that defendant was malingering,
defined by Dr. Wetzel as "faking on tests to make yourself look worse than you
really are." Moreover, although defendant relies, in part, on the fact that he was
taking anticonvulsant medication to support his claim concerning waiver of the
right to the assistance of counsel, Dr. Wetzel testified on cross-examination that
persons with epilepsy taking the anticonvulsant Dilantin are usually able to
function normally. With respect to defendant's further reliance in support of this
claim on his having received "anti-depressants," we are mindful of the trial court's
assessment of defendant as "totally mentally fit" during trial after the trial court
heard defendant's testimony concerning his alleged use of drugs at trial, including
the antidepressant Sinequan. While we are uncertain whether by "anti-depressants"
defendant refers as well to the antidepressant Elavil, as he did in the prior issue
presented for review, if such a claim is, indeed, intended in support of his
contention of invalid waiver of his right to the assistance of counsel, we deem it
meritless for the reasons already expressed in our consideration of the prior issue.
Thus, on the basis of the record before us we are unable to say that the
defendant's purported mental limitations and disabilities precluded his knowing
and intelligent waiver of the right to the assistance of counsel.
Defendant contends that his waiver of the right to the assistance of counsel
was invalid for the further reason that in admonishing him pursuant to Supreme
Court Rule 401(a) (134 Ill. 2d R. 401(a)), the trial court stated incorrectly both the
charges and the minimum sentence upon conviction. Although one of the charges
against the defendant was arson, the trial court admonished him that he was
charged with aggravated arson.[fn1] Further, although the trial court admonished
defendant that the minimum sentence was 20 years, defendant was convicted on
May 19, 1993, of murdering four persons on January 12, 1984, with the result that
these four prior murder convictions mandated a minimum term of natural life
imprisonment in the instant unrelated case; an amendment to section 5--8--1(a)(1)
of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005--8--
1(a)(1)), effective July 1, 1980, provided that for first degree murder "if the
defendant has previously been convicted of murder under any state or federal law
or is found guilty of murdering more than one victim, the court shall sentence the
defendant to a term of natural life imprisonment." 730 ILCS Ann. 5/5--8--1,
Historical & Statutory Notes, at 795 (Smith-Hurd 1992).
The record reveals that in court on August 23, 1994, the assistant public
defender who was representing defendant following remand notified the court that
defendant had informed him "after a recent jail visit that it's his desire in this
matter to go, pro se." Counsel indicated to the court that his relationship with
defendant "goes back approximately 10 years" and that he had explained to
defendant that "absolutely, he has a right to go pro se" but that it was "probably
not in his best interest" to do so. After counsel said that defendant wished to
address the court on the issue, the following colloquy between defendant and the
trial court occurred:
"DEFENDANT KIDD: Yeah, I feel in my best interest to
go, pro se.
THE COURT: Well, of course, I would disagree. I think
you would be absolutely and totally foolish to undertake this trial
without a good lawyer, an experienced lawyer in this case. A
lawyer who has already fault [sic] one trial for you and knows the
case and has always been extremely vigorous and energetic and
conscientious in trying to defend you.
You know very well that you can receive the death penalty
on this case. You were for 20 years in the Illinois Department of
Corrections through natural life to the death penalty, and you
would be called upon to make your own arguments, to make your
own objections, gather your own legal written instructions at the
end of the case, to introduce evidence.
You have, I think, a good idea from your trials, all that it
takes to conduct a trial, to conduct a defense. And you would be
called upon to do so.
DEFENDANT KIDD: Yeah.
THE COURT: Well--so, I really urge you not to try to
undertake to defend yourself, but to stay with your lawyer.
DEFENDANT KIDD: It looks like that's my only way out.
It's [sic] looks like my best way out, though.
THE COURT: Think about it again and see if you still have
the same thought on September 7th, which is the trial date. It is
going to go ahead on September 7th, whether you are your own
lawyer or you wish Mr. Strunck [the assistant public defender] to
keep defending you.
But particularly in this case, which is not a simple case,
requires presentation of a good cross[-] examination, involves the
death penalty, which calls all kind [sic] of things that you know
about since you went through this trial already.
I have real doubt whether you can do it yourself.
DEFENDANT KIDD: People sit right there on the stand
and lied to you. I do it myself. I ain't going to go through what I
did.
THE COURT: We'll see. You better rethink it. We'll see
you September 7th."
Later that day, during a discussion of deadlines associated with the trial, defendant
stated, "That's cutting it short. I'll do what I can." The trial court replied, "That's
another problem one has when you know, you in custody, trying the defend [sic]
yourself. But do the best you can." In turn, defendant responded, "But sometimes
you have no choice, when people sit right there on the stand and lie, too."
Approximately a week later, after defendant indicated to the trial court that
he wished still to proceed pro se, the trial court admonished him as follows:
"THE COURT: You have to understand that you are
charged with--you're charged with first degree murder and, I
believe, aggravated arson as well.
MS. LACY [Assistant State's Attorney]: I'm not sure if the
aggravated arson was nolle'd. I believe it was nolle'd.
THE COURT: You're charged with ten counts of murder
and a count of arson, aggravated arson, I believe. And I must tell
you then the nature of those charges, which I think you already
know since you went through a trial on them.
Secondly, you should know that on the murder charges, the
minimum is 20 years, and the maximum is the death penalty. You
understand that that's the minimum and the maximum. 20 years is
the minimum; the death penalty is the maximum.
***
You also must be informed, and I'm sure you already know,
that you have a right to counsel, and if you are indigent without
money, counsel, Mr. Strunck, the public defender, will be
appointed for you."
Following the defendant's affirmative response to the trial court that he
understood those admonitions, the trial court reiterated defendant's responsibilities
in undertaking his own defense. Finally, the trial court asked defendant, "And
knowing all those things, do you still wish to represent yourself," to which
defendant responded, "Yeah." At this juncture the trial court stated that it wanted
Strunck "here in the event that [defendant] changes his mind" and indicated for
the record that Strunck was the standby counsel.
Rule 401(a) provides:
"Any waiver of counsel shall be in open court. The court
shall not permit a waiver of counsel by a person accused of an
offense punishable by imprisonment without first, by addressing the
defendant personally in open court, informing him of and
determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed
by law, including, when applicable, the penalty to which the
defendant may be subjected because of prior convictions or
consecutive sentences; and
(3) that he has a right to counsel and, if he is
indigent, to have counsel appointed for him by the court."
134 Ill. 2d R. 401(a).
Substantial compliance with Rule 401(a) is sufficient to effectuate a valid waiver
of counsel if the record indicates the waiver was made knowingly and intelligently
(People v. Coleman, 129 Ill. 2d 321, 333 (1989)) and the admonishment the
defendant received did not prejudice his rights. People v. Haynes, 174 Ill. 2d 204,
236 (1996); People v. Johnson, 119 Ill. 2d 119, 132 (1987). Where a defendant
knows the nature of the charges against him and understands that as a result of
those charges he may be sentenced to death, his knowledge and understanding that
he may be eligible to receive a lesser sentence pales in comparison. Coleman, 129 Ill. 2d at 334.
Here the record shows that the trial court complied substantially with Rule
401(a), informing defendant of the nature of the charges against him, explaining
to him that the death penalty was the maximum sentence, and advising him of his
right to counsel. Thus, we must determine next whether defendant's waiver of
counsel was made knowingly and intelligently, despite the incorrect admonishment
concerning one of the charges and the minimum sentence. See Coleman, 129 Ill. 2d at 334.
Defendant urges that the record "does not show that his waiver did not
hinge on the area of non-compliance." We must disagree. The record indicates that
defendant chose to waive his right to the assistance of counsel because of his
expressed belief that in an earlier trial witnesses had lied, apparently without
defense counsel's having exposed their lies. There is no suggestion in the record
that the trial court's misstatement concerning either the charge of aggravated arson
or the minimum sentence played any part whatever in defendant's waiver of his
right to the assistance of counsel. Moreover, although the trial court did err in
stating that one of the charges against defendant was aggravated arson, rather than
arson, we fail to see how misinformation to the effect that defendant was charged
with a crime more serious than that with which he was actually charged (see
People v. Johnson, 114 Ill. 2d 69, 72 (1986)) could have affected adversely his
decision to proceed pro se, particularly where he was also informed that he was
charged with 10 counts of murder. Defendant was fully apprised that he could
receive the sentence of death actually imposed and, thus, suffered no prejudice as
a result of the trial court's failure to state correctly the minimum penalty to which
he would be subjected if convicted. See Johnson, 119 Ill. 2d at 134. In spite of
the trial court's incorrect admonishment concerning one of the charges against
defendant and the minimum sentence, the record here indicates that he waived
counsel knowingly and intelligently.
Upon retrial the State marshalled an extensive array of evidence of
defendant's guilt. Of the five apartments in the building that burned, three, all
vacant, were located on the first floor, while two families lived in the two
apartments on the second floor. In the second-floor apartment to the east, Brenda
Boyd lived with her five children, four of whom died as a result of the fire; in the
second-floor apartment to the west, Emma Burts lived with her four children, three
of whom died in the fire. During the evening when the fire occurred, Emma's
sister, Gertrude Armstrong, together with her five children, were in Emma's
apartment while Emma worked as a nurse's aide and, according to Gertrude's
testimony, Gertrude's 17-year-old daughter Diane baby-sat for Emma's children.
Three of Gertrude's children, including Diane, perished in the fire. Eight of the
children who died ranged in age from six months to nine years, while a ninth
child was 13 years of age. One of Gertrude's daughters, Renee Armstrong, 14
years old at the time of the fire, was the girlfriend of defendant, who was visiting
Renee at Emma's apartment on the evening of the fire. Defendant's father, Melvin
Kidd, had owned the apartment building prior to his death and was a friend of
Emma Burts' family.
Detective Ernest Rokosik, a police detective certified as an arson
investigator, testified as an expert in the field of fire examination and cause and
origin of fires. The witness arrived at the scene of the fire at 1512 East 65th Place
in Chicago about 9 a.m. the morning after the fire. Evidence, including the
absence of any fire damage at all beneath the first floor, indicated to the witness
that the fire had not originated in the basement but had started on the first floor.
In the front first-floor apartment there was primarily smoke damage and little or
no fire damage, facts indicating that the fire did not start there.
Detective Rokosik testified further that approximately four or five feet into
the second of the three first-floor apartments, that is, the apartment to the east,
there was a pile of clothing and miscellaneous papers and books on the floor that
appeared to have had surface burning on them. There was no damage to the floor
under the pile of burnt papers. The witness found no accidental or providential
causes of that fire and concluded that an open flame had been applied to the
combustible material on the floor. The type of fire the witness saw evidence of
there would not have caused a great deal of smoke. Other areas of the room
showed no path of communication from this point to the heavier fire damage in
the center of the building, and the amount of fire damage in this apartment was
"very minimal."
According to Detective Rokosik, the area of heaviest damage occurred in
the third of the first-floor apartments, that is, the apartment at the rear to the west.
He determined that there was a point of origin in a makeshift closet on the east
wall of the large front room of that apartment. In the northwest corner of the
room, the witness noticed what he believed to be a second point of origin of the
fire, smaller than the main point of origin within the closet on the east wall where
fire had burnt longest and the largest fire had occurred. In the opinion of the
witness, the fire originating in the closet was an intentionally set fire caused, as
was the fire in the northwest corner of the room, by the ignition of an available
combustible by open flame. Debris samples indicated that no flammable liquids
had been applied. The fire damage indicated that the fire did not start in the
kitchen area but in the closet and then communicated upwards, burning through
the ceiling of the closet into the area between the ceiling of the first floor and the
floor of the second floor and, ultimately, through the roof. Detective Rokosik ruled
out an accidental and providential cause of the fire in the building, expressing the
opinion that to a reasonable degree of scientific certainty its cause was the
intentional ignition of ordinary combustibles, that is, "[p]aper, rags, things of that
nature," by some type of open flame, that is, "anything from cigarette lighter to
a candle to a propane torch."
Renee Armstrong testified that at the time of the fire defendant had been
her boyfriend for about three or four months. After defendant came to her aunt's
apartment at about 7 or 8 p.m. on the evening in question, he told Renee that he
smelled smoke. The witness smelled none. Upon saying that he smelled smoke,
defendant said that he was going to go downstairs to see if any of the apartments
there had anything burning. Then he, the witness, and her mother went downstairs
to the first floor. Renee smelled no smoke when she arrived downstairs and saw
no evidence of a fire. Defendant went to the apartment to the east and twisted the
doorknob, but the door was locked, whereupon he kicked in the door. Defendant
went to no other doors on the first floor before kicking in the door of the
apartment to the east. The three went to the back of that apartment and found a
dresser thrown over some books with "a small fire under it." Defendant started
looking for something with which to put out the fire and found a foot tub and
some pails that they filled with water and used to extinguish it.
After the fire was out, defendant said that he wanted to go over into the
other apartment and see if anything was burning there. He told Renee and her
mother to stay where they were and kicked a hole in the wall through which he
entered the apartment on the west side. Renee lost sight of defendant for about
three to five minutes. When he returned, he said that nothing was burning there
and found a blanket with which he covered the hole he had kicked in the wall.
Renee and defendant then went out to a McDonald's restaurant and were
gone about 10 to 15 minutes. When they left the other children were asleep. When
she and defendant returned to the apartment building, as they walked inside the
hallway on the first floor, defendant said that he still smelled something burning.
Renee smelled nothing and said so. She also told defendant, "I don't care what
you're smelling. I'm going on upstairs and eating my food." She went upstairs
alone, leaving defendant on the first floor. After she had begun to eat, defendant
came upstairs and told her that he still smelled something burning. She still
smelled nothing. When he told her mother that he smelled something burning, her
mother got up. Renee heard then what seemed to be the sound of defe
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