                                       2014 IL 115804



                                  IN THE
                             SUPREME COURT
                                    OF
                           THE STATE OF ILLINOIS



                                    (Docket No. 115804)

     THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TERRIS E. STAHL,
                                Appellee.


                                 Opinion filed May 22, 2014.



        JUSTICE KARMEIER delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis
     concurred in the judgment and opinion.



                                             OPINION

¶1       Due to brain damage from a self-inflicted gunshot wound to his face, defendant,
     Terris E. Stahl, cannot remember any of the events surrounding the incidents leading to
     home invasion (720 ILCS 5/12-11(a)(4) (West 2010)) and aggravated unlawful
     restraint (720 ILCS 5/10-3.1(a) (West 2010)) charges against him. The trial court found
     defendant unfit to stand trial. Later, after a discharge hearing, he was found “not not
     guilty” of the charges against him and the circuit court of St. Clair County remanded
     him to the Department of Human Services (DHS) for extended terms of treatment of 24
     months for home invasion and 15 months for unlawful restraint. After DHS determined
     that defendant had been restored to fitness, a fitness restoration hearing was held and
     the trial court found that defendant remained unfit to stand trial and that it was not
     reasonably probable that he would be fit within one year. The State appealed, arguing
     that the trial court’s ruling that defendant remained unfit to stand trial was against the
     manifest weight of the evidence because a defendant’s amnesia related to the events
     surrounding the charges against him is not sufficient, in and of itself, to support a
     finding of unfitness. The appellate court affirmed. 2013 IL App (5th) 110385, ¶¶ 19,
     33. This court granted the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July
     1, 2013).



¶2                                      BACKGROUND

¶3       The following testimony about the crimes was presented at the discharge hearing
     held after the initial finding of unfitness. Defendant’s former wife, Erin Kreup, filed for
     divorce from defendant, and shortly thereafter he threatened to shoot her. Erin then
     sought and obtained an order of protection, which prohibited defendant from entering
     her home or coming within 500 feet of her. She also changed the locks and installed an
     alarm system at her home.

¶4       A few weeks later, at approximately 4 a.m. on April 6, 2009, defendant broke into
     Erin’s home. At the time, Erin and Owen, the four-year-old son of Erin and defendant,
     were asleep in the master bedroom; Owen’s babysitter, Alyssa Schmitt, was asleep on
     the living room couch; and Chuck Smith, a mutual friend of Erin and defendant, was
     asleep in the guest bedroom. Erin and Alyssa were awakened by sounds of breaking
     glass and the alarm going off. Defendant entered Erin’s bedroom and forced her into
     the living room at gunpoint. Erin managed to dial 911, scream for help, and report that
     defendant was in her home before defendant knocked the phone out of her hand. By
     this time, defendant had awakened Chuck at gunpoint.

¶5       Defendant told Erin, Alyssa, and Chuck that they were all going to die that night
     and, at gunpoint, ordered them into the basement. There, defendant put a gun in Erin’s
     face, stating he would change because he wanted his family to work and did not want
     anyone else to be with Erin. Defendant then put a gun to his head and threatened to kill
     himself. When Erin told him not to, defendant pointed the gun at her, moved the gun
     slightly away, and fired, saying, “Now you know I’m serious, bitch.”

¶6       After defendant separated Erin from Alyssa and Chuck, he told Erin that his keys
     did not work and that he had walked around the house for 30 to 40 minutes trying to get
     in before using a hammer to break the back door. He threatened to kill Erin and himself
     and stated that the burglar alarm was the only thing that saved Erin’s life.

¶7      Defendant allowed Alyssa to go upstairs to check on Owen after they heard a noise
     upstairs. While Alyssa was upstairs, she saw a police officer outside and motioned to
     him, holding her hand in the shape of a gun and pointing to her head and then pointing
                                            -2-
       down the hallway toward the basement door. The officer returned to his squad car and
       called for backup. Alyssa took Owen and left the house.

¶8         Defendant continued holding Erin and Chuck at gunpoint. Defendant told Erin that
       if he could not have her, he would kill her. A tactical response team arrived, and an
       officer tried to talk to defendant by megaphone. Defendant eventually decided that he
       would talk to an officer he knew, if that officer was there. Defendant sent Chuck
       upstairs to see if the officer was there. Police officers directed Chuck out the front door.

¶9         When Chuck did not return to the basement, defendant again threatened to kill Erin
       and stated that he would not go to prison “over this.” He told Erin to tell Owen that he
       would always love him, to take Owen to his parents’ house, what to do with his
       insurance policy and car, how to arrange his funeral, and to visit his grave site with
       cigarettes and flowers. He said goodbye to Erin, kissed her cheek, hugged her, and told
       her to leave. As she backed up toward the stairway, defendant, pointing a gun at her,
       said, “I’ll see you on the other side.” She turned to go up the stairs, heard a gunshot and
       ran up the stairs. When she exited the house, she was hysterical and said that defendant
       had shot himself in the face.

¶ 10       Defendant was found lying face down and bleeding at the top of the basement
       stairs. He was taken to the hospital by ambulance. The crime scene revealed blood near
       defendant’s head, down the basement steps, in the basement away from the steps to the
       southwest corner, and in the corner. No blood was found on Erin, Alyssa, or Chuck.
       Two firearms, both operational and in firing condition, were found in the basement: (1)
       a .22-caliber revolver found in a pool of blood with its hammer cocked, two discharged
       casings, and seven unfired cartridges in the cylinder; and (2) a .32-caliber revolver with
       one fired cartridge and four unfired cartridges in the cylinder. The glass in the rear door
       to the house was shattered.

¶ 11       Firearms expert Ronald Locke testified that, in his experience, there have been
       cases where someone with a severe gunshot wound to the head continued to have the
       ability to fire and/or reload a weapon. Locke did not examine defendant’s ability to
       reload a weapon or conduct additional testing normally performed in suicide cases.
       Police did not take Erin’s fingerprints, test her for gunshot residue, or examine the
       firearms and bullets in comparison to defendant’s alleged position and injuries; nor did
       police find a fired bullet in the basement.

¶ 12      Defendant survived his injury and, in May 2009, was charged by complaint with
       home invasion and aggravated unlawful restraint. Defendant was conditionally
                                                -3-
       released to live with his parents because the county jail could not meet his medical
       needs. In June 2009, defendant was indicted on both charges.

¶ 13       On October 1, 2009, defendant filed a motion challenging his fitness to stand trial
       under article 104, “FITNESS FOR TRIAL, TO PLEAD OR TO BE SENTENCED,” of
       the Code of Criminal Procedure of 1963 (Code). See 725 ILCS 5/104-11 (West 2010).
       Prior to the hearing on this motion, two psychiatrists had provided opinions as to
       defendant’s fitness: Dr. Kenneth Gilbert and Dr. John Rabun. Dr. Gilbert initially
       interviewed defendant on July 30, 2009, after defendant’s mother hired him to evaluate
       defendant’s risk of suicide. On January 18, 2010, Dr. Gilbert provided a report based
       on his July 2009, evaluation. He opined that defendant suffered two types of memory
       deficit as a result of the gunshot wound. First, defendant could not recall the events at
       issue or anything that happened in the 48 hours leading up to those events. Second, his
       ability to form new short-term memories was severely impaired. While Dr. Gilbert
       found defendant to be totally aware of the charges against him and the potential for
       long-term punishment if convicted, he found defendant unfit to stand trial because of
       his inability to recall the events of the day in question. Dr. Gilbert also found that
       defendant could not cooperate with his attorney to assist in his own defense because his
       short-term memory impairment would make it impossible for him “to track what
       happened in court from one day to the next,” and because he lacked an “appreciation of
       the seriousness of the potential consequences for his life.” Dr. Gilbert thought that it
       was possible that defendant’s short-term memory would improve, but he could not
       predict whether this would occur. Further, Gilbert concluded that there was no
       probability that defendant would recover his memories of the events at issue or the 48
       hours leading up to those events, which would, in and of itself, render defendant unfit
       to stand trial.

¶ 14       The State retained Dr. John Rabun to independently evaluate defendant in response
       to his motion challenging his fitness. On April 30, 2010, Dr. Rabun provided a report
       finding that defendant had no memory of the day of the events charged and had
       “significant deficits in his capacity to learn and retain new information.” He noted that
       defendant’s cognitive difficulties were significant enough that his parents had been
       appointed to act as his plenary legal guardians. Dr. Rabun concluded that defendant
       lacked the capacity to understand the nature of the proceedings against him and to
       assist in his own defense. Dr. Rabun noted that if defendant’s amnesia as to the day of
       the events charged were his only impairment, it would be Dr. Rabun’s opinion that
       defendant was fit to stand trial. He also maintained that defendant had reached his

                                               -4-
       maximum improvement in his cognitive abilities and would not regain his capacity to
       stand trial within one year.

¶ 15        At the July 21, 2010, fitness hearing, the parties stipulated that, if called to testify,
       Dr. Rabun would testify in accordance with the opinions expressed in his report. The
       parties also stipulated to Dr. Rabun’s finding that defendant was unfit to stand trial and
       that there was not a substantial probability that he would attain fitness within one year.
       Accordingly, the trial court entered an order, finding that defendant was unfit to stand
       trial and that there was no substantial probability that he would attain fitness within one
       year.

¶ 16       On November 15, 2010, the trial court held a discharge hearing. See 725 ILCS
       5/104-25 (West 2010). After hearing evidence about the crimes and arguments of
       counsel, the court took the matter under advisement. On November 24, 2010, the court
       entered an order finding defendant “not not guilty” of home invasion and aggravated
       unlawful restraint and remanding him to the custody of DHS for extended terms of
       treatment of 24 months for home invasion and 15 months for unlawful restraint. See
       725 ILCS 5/104-25(d) (West 2010). On February 24, 2011, defendant was admitted to
       Alton Mental Health Center. Less than one month later, on March 18, 2011, staff there
       filed a progress report signed by Dr. David Montani, a psychiatrist who was treating
       defendant, indicating that he was now fit to stand trial. See 725 ILCS 5/104-18(a)(2)
       (West 2010).

¶ 17       On May 13, 2011, the trial court held a fitness restoration hearing. The State
       tendered three recent progress reports, and both parties asked the court to take judicial
       notice of all prior reports, including the 2010 reports of Drs. Gilbert and Rabun. Dr.
       Montani testified for the State that, in his opinion, defendant was fit to stand trial if the
       court made certain accommodations for any short-term memory deficits. Because
       defendant understood the charges, the possible penalties if convicted, the roles of court
       personnel, his pleading options, and other basic rights, Dr. Montani concluded that
       defendant was able to understand the nature and purpose of the proceedings against
       him. He also believed that defendant was able to assist in his defense, explaining that in
       March 2011, defendant had discussed the details of the November 15, 2010, discharge
       hearing with him. Defendant discussed the order of the witnesses who testified and his
       perceived shortcomings in the evidence including, inter alia, inconsistencies between
       the testimony of Erin and police, lack of any fingerprint or gunshot residue testing, and
       issues raised by the blood trail in the basement. Dr. Montani found it significant that
       after retaining information from the discharge hearing, defendant was able not only to
                                                 -5-
       verbally articulate those memories, but also to draw conclusions from that retained
       information. He also noted defendant’s ability to learn and comply with the rules at
       Alton Mental Health Center.

¶ 18       Dr. Montani acknowledged that testing to assess the extent of defendant’s memory
       deficit showed he was in the bottom percentile in his ability to recall new information
       after 20 to 30 minutes. It was his opinion, however, that reasonable accommodations,
       including allowing defendant to take notes and giving him frequent recesses to confer
       with counsel, would compensate for his short-term memory deficits. Thus, Dr. Montani
       concluded that defendant’s difficulties in forming new memories did not prevent him
       from assisting in his defense. He believed that defendant’s amnesia as to the events that
       led to the charges against him, by itself, was insufficient to find him unfit.

¶ 19       Criminal defense attorney John O’Gara testified as an expert witness for defendant.
       O’Gara described how defendant’s amnesia as to the relevant events could negatively
       impact his ability to assist defense counsel. O’Gara explained that: (1) defendant could
       not tell counsel his version of the events or what his state of mind was at the time,
       information that is critical to understanding what defenses might be available; (2) he
       could not meaningfully testify in his own defense because he could not remember the
       events at issue; and (3) he could not even intelligently decide how to plead because he
       did not know whether he committed any of the acts charged. On cross-examination,
       O’Gara disagreed with the proposition that a defendant’s amnesia as to the events of
       the crime would not, in and of itself, render him unfit.

¶ 20       On May 24, 2011, the trial court entered an order which, in its entirety, stated: “The
       Defendant, TERRIS E. STAHL, is unfit to stand trial and is unlikely to become fit to
       stand trial within one year.” The State filed a motion to reconsider, arguing defendant’s
       amnesia, by itself, did not support a finding that he is unfit to stand trial and that “the
       defendant is fit to stand trial because he understands the nature and purpose of the
       proceedings against him, and he can assist in his own defense.” At the hearing on the
       motion, defense counsel reiterated that, at the fitness hearing, in addition to all three
       psychiatrists agreeing that defendant had “physical amnesia” of the events, there was
       evidence that defendant could not assist counsel at trial due to his short-term memory
       deficits. Thereafter, the State’s motion to reconsider was denied.

¶ 21       The State then appealed, arguing that the trial court’s ruling that defendant
       remained unfit to stand trial was against the manifest weight of the evidence because a
       defendant’s amnesia related to the events surrounding the charges against him is not

                                                -6-
       sufficient to support a finding of unfitness. The appellate court disagreed and affirmed.
       2013 IL App (5th) 110385, ¶¶ 19, 33. For the purposes of appeal, the panel
       “assume[d]” that defendant’s short-term memory impairment could be accommodated
       adequately, and focusing its discussion on whether defendant’s inability to recall the
       events at issue made him unfit to stand trial, the court concluded that it did. Id. ¶ 21.

¶ 22        The State argues that: (1) amnesia as to the events surrounding the crime does not
       per se render defendant unfit to stand trial; and (2) under the totality of the
       circumstances, defendant is fit to stand trial. Defendant responds that: (1) the appellate
       court did not hold that his amnesia per se renders him unfit to stand trial; and (2) the
       trial court’s finding that he remained unfit to stand trial was not against the manifest
       weight of the evidence.



¶ 23                                        ANALYSIS

¶ 24        It is well-settled that “ ‘the criminal trial of an incompetent defendant violates due
       process.’ ” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Medina v.
       California, 505 U.S. 437, 453 (1992)); accord People v. Haynes, 174 Ill. 2d 204, 226
       (1996). The federal constitutional test for incompetence is also well-settled. “A
       defendant may not be put to trial unless he ‘ “has sufficient present ability to consult
       with his lawyer with a reasonable degree of rational understanding ... [and] a rational as
       well as factual understanding of the proceedings against him.” ’ ” Cooper, 517 U.S. at
       354 (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)).

¶ 25        The primary issue in this case is whether, under article 104 of the Code, defendant’s
       amnesia as to the events surrounding the crime alone renders him per se unfit to stand
       trial, as the appellate court held. This issue of statutory construction is a question of law
       that is reviewed de novo. Home Star Bank & Financial Services v. Emergency Care &
       Health Organization, Ltd., 2014 IL 115526, ¶ 22. If we do not find that such amnesia
       renders defendant per se unfit to stand trial, then we must determine whether the circuit
       court’s finding of unfitness is against the manifest weight of the evidence.

¶ 26       Under article 104, “[a] defendant is presumed to be fit to stand trial.” 725 ILCS
       5/104-10 (West 2010). “A defendant is unfit if, because of his mental or physical
       condition, he is unable to understand the nature and purpose of the proceedings against
       him or to assist in his defense.” Id. “When a bona fide doubt of the defendant’s fitness
       has been raised, the burden of proving that the defendant is fit by a preponderance of

                                                 -7-
       the evidence and the burden of going forward with the evidence are on the State.” 725
       ILCS 5/104-11(c) (West 2010). Matters that are admissible on the issue of the
       defendant’s fitness include, but are not limited to:

                 “(1) The defendant’s knowledge and understanding of the charge, the
              proceedings, the consequences of a plea, judgment or sentence, and the
              functions of the participants in the trial process;

                 (2) The defendant’s ability to observe, recollect and relate occurrences,
              especially those concerning the incidents alleged, and to communicate with
              counsel; [and]

                  (3) The defendant’s social behavior and abilities; orientation as to time and
              place; recognition of persons, places and things; and performance of motor
              processes.” 725 ILCS 5/104-16(b) (West 2010).

       Ultimately, fitness must be judged based on the totality of the circumstances. See
       People v. Kinkead, 182 Ill. 2d 316, 340 (1998) (our case law demonstrates the inherent
       difficulties in attempting to apply a bright-line rule of law to specific factual
       circumstances involving defendants’ fitness to stand trial; the case-by-case approach
       comports with due process and does not impose an unduly restrictive burden on the
       State); People v. Clay, 361 Ill. App. 3d 310, 331 (2005).

¶ 27      The issue of whether a defendant’s amnesia as to the events surrounding the crime
       per se renders him unfit to stand trial is one of first impression before this court.
       However, this issue has been addressed by several districts of our appellate court and
       many federal courts. These courts have concluded, almost without exception, that
       amnesia as to the events surrounding the charges against a defendant does not per se
       render him unfit to stand trial. See, e.g., People v. Thomas, 246 Ill. App. 3d 708, 712
       (1993) (“[T]he inability to recollect the events of the day of the offense due to amnesia
       does not, by itself, warrant the conclusion that the defendant was unfit.”). As stated in
       People v. Schwartz, 135 Ill. App. 3d 629, 638-39 (1985):

              “[T]he psychiatric evidence at the pretrial fitness hearing was that although
              defendant was suffering from *** amnesia as to what occurred on the day of the
              offenses with which he was charged, defendant was entirely lucid on what his
              lawyer was trying to do for him, understood the proceedings against him, and
              could effectively communicate with his lawyer and make trial decisions, except
              he could not cooperate in his defense concerning the amnesiac period. We

                                               -8-
               believe from this evidence that defendant was able to understand the nature and
               purpose of the proceeding against him and to assist in his defense, as
               contemplated under our statute, and his inability to recollect the events on the
               day of the offenses due to his amnesia does not, by itself, warrant a contrary
               conclusion.”

¶ 28       Similar holdings are found in the federal courts which have examined this issue. In
       United States v. Villegas, 899 F.2d 1324, 1341 (2d Cir. 1990), cert denied, 498 U.S.
       991 (1990), the court flatly stated: “A defendant’s amnesia about events surrounding
       the crime will not automatically render him incompetent to stand trial. See also United
       States ex rel. Parson v. Anderson, 481 F.2d 94, 96 (3d Cir. 1973) (per curiam) (“the
       fact that the defendant suffered amnesia as to the commission of the crime, does not, in
       and of itself, render the defendant incompetent to stand trial”), cert. denied, 414 U.S.
       1072 (1973); United States v. Mota, 598 F.2d 995, 998 (5th Cir. 1979) (“amnesia does
       not constitute incompetency per se to stand trial”), cert. denied, 444 U.S. 1084 (1980);
       United States v. Andrews, 469 F.3d 1113, 1118-19 (7th Cir. 2006) (“amnesia alone
       does not render a defendant incompetent to stand trial”); Leach v. Kolb, 911 F.2d 1249,
       1260-61 (7th Cir. 1990) (“ ‘[A]mnesia is not a bar to prosecution of an otherwise
       competent defendant.’ ” (quoting United States v. Stevens, 461 F.2d 317, 320 (7th Cir.
       1972))), cert. denied, 498 U.S. 972 (1990); Davis v. Wyrick, 766 F.2d 1197, 1202 (8th
       Cir. 1985), cert. denied, 475 U.S. 1020 (1986) (same). 1

¶ 29       The defendant in Schwartz, 135 Ill. App. 3d at 632, like defendant here, suffered a
       self-inflicted gunshot wound and claimed he was unable to remember the events
       involved in the charges against him. At a hearing to determine his fitness to stand trial,
       a psychiatrist testified that the defendant could not recall the events of the day of the
       offenses but could understand the nature and purpose of the proceedings and
       communicate with his attorney. Id. After concluding that there was no authority
       holding a defendant incompetent to stand trial solely on the basis of amnesia, the trial
       court found the defendant fit to stand trial. Id.

¶ 30       On appeal, the defendant in Schwartz argued that the trial court erred in concluding,
       after a pretrial fitness hearing, that his amnesia did not render him unfit to stand trial.
       Id. at 636-37. The State, in response, argued that the defendant was fit to stand trial
       because the evidence adduced at the fitness hearing showed that, even though he had

           1
            Further support for this conclusion can be found in Jonathan M. Purver, Annotation, Amnesia as
       Affecting Capacity to Commit Crime or Stand Trial, 46 A.L.R.3d 544, § 4 (1972).

                                                   -9-
       amnesia, he was able to understand the nature and purpose of the proceedings against
       him and to assist counsel in his defense. Id. at 637. In Schwartz, the panel concluded
       that the trial court correctly found the defendant fit to stand trial where he was able to
       understand the nature and purpose of the proceedings against him and to assist in his
       defense and that his inability to remember the events at the time of the offenses due to
       his amnesia did not, by itself, warrant a contrary conclusion. Id. at 639.

¶ 31       The defendant in Schwartz also raised a due process argument. Id. More
       specifically, he argued that his amnesia precluded him from presenting the only
       possible evidence of his state of mind at the time of the offenses—his own testimony.
       Id. He argued that the lack of his own testimony about his state of mind substantially
       impaired his ability to effectively present his insanity defense and therefore deprived
       him of a fair trial. Id. at 640.

¶ 32       The Schwartz court found that the defendant’s amnesia as to the events at the time
       of the offenses did not substantially impair his ability to effectively present his insanity
       defense because: (1) the defendant was able to effectively communicate with his
       attorney and provide him with all the factual information pertinent to the presentation
       of his insanity defense, except for the brief amnesiac period; (2) he took the stand in his
       own defense and gave accurate and detailed testimony about the stressful events
       preceding his amnesiac period; (3) he presented testimony of other witnesses
       corroborating these stressful events, which also supported his insanity defense; and (4)
       he presented testimony of mental health experts to support his insanity defense. Id.
       Under these circumstances, the court in Schwartz found that the defendant was able to
       fully develop and effectively present his insanity defense. Id. Thus, the court concluded
       that the lack of the defendant’s own testimony as to his state of mind at the time of the
       offenses did not deprive him of a fair trial. Id.

¶ 33       In the present case, the Appellate Court, Fifth District disagreed with the reasoning
       of the First District in Schwartz, stating:

                  “We believe the Schwartz court ignored express statutory language
              applicable to fitness hearings. *** [T]he statute expressly provides that the
              court should consider the defendant’s ability to recall the events involved in the
              charges against him and relate those to defense counsel. Indeed, the statute
              emphasizes the defendant’s ability to relate these events. 725 ILCS
              5/104-16(b)(2) (West 2010). We thus decline to follow Schwartz.” 2013 IL App
              (5th) 110385, ¶ 26.

                                                - 10 -
       The appellate court herein further distinguished Schwartz, stating:

                  “It is also important to note that, while the Schwartz court held that
              complete amnesia of the events surrounding the charged behavior does not
              automatically support a finding of unfitness, the court did not hold that a
              defendant who lacks any memory of the events at issue may never be found
              unfit on this basis alone. In that regard, the instant case is distinguishable from
              Schwartz. In Schwartz, the defendant was able to provide his attorney with
              information about the events leading up to the charged incident that helped him
              present his insanity defense. Here, the defendant is unable to recall anything
              that occurred in the 48 hours leading up to the events at issue, and there is no
              indication that an insanity defense would be appropriate or that the defendant
              can provide his attorney with any information that will help him to present any
              other defense.” (Emphases in original.) Id. ¶ 27.

¶ 34       In rejecting the State’s argument herein that defendant could, in fact, assist in his
       own defense because he was able to review police reports and discuss witness
       testimony with his attorney, the appellate court stated:

              “We are not persuaded. The defendant here is unable to provide counsel with
              any information at all concerning the events at issue. This is far more critical aid
              to a defense attorney than the ability to read police reports and assess witness
              testimony. The defendant’s recollection of the events at issue is information the
              attorney has no other means of obtaining. Thus, the fact that the defendant may
              be able to discuss aspects of the trial with his attorney does not override the fact
              that he is unable to provide his attorney with any information concerning the
              crimes charged.” Id. ¶ 29.

       This statement seems to suggest that, under the Code, amnesia as to the events
       surrounding the crime will always render a defendant unfit to stand trial because he or
       she will be unable to provide defense counsel with any information concerning the
       crimes charged. We disagree.

¶ 35       Ultimately, fitness must be judged based on the totality of the circumstances. See
       People v. Kinkead, 182 Ill. 2d 316, 340 (1998) (our case law demonstrates the inherent
       difficulties in attempting to apply a bright-line rule of law to specific factual
       circumstances involving defendants’ fitness to stand trial; the case-by-case approach
       comports with due process and does not impose an unduly restrictive burden on the

                                               - 11 -
       State); People v. Clay, 361 Ill. App. 3d 310, 331 (2005). 2 As earlier stated, under
       article 104, matters that are admissible on the issue of a defendant’s fitness include, but
       are not limited to:

                   “(1) The defendant’s knowledge and understanding of the charge, the
                proceedings, the consequences of a plea, judgment or sentence, and the
                functions of the participants in the trial process; [and]

                   (2) The defendant’s ability to observe, recollect and relate occurrences,
                especially those concerning the incidents alleged, and to communicate with
                counsel[.]” 725 ILCS 5/104-16(b) (West 2010). 3

¶ 36       As to subsection 104-16(b)(1), the evidence before this court shows potential
       problems with the factors therein, where Dr. Gilbert found that, despite defendant’s
       awareness of the charges against him and the potential for long-term punishment if
       convicted, he lacked “an appreciation of the seriousness of the potential consequences
       for his life.” Dr. Rabun concluded that defendant lacked the capacity to understand the
       nature of the proceedings against him, and Dr. Montani, while believing defendant
       understood the nature and purpose of the proceedings against him, acknowledged that
       defendant was in the bottom 1% in his ability to recall new information after 20 to 30
       minutes.

¶ 37       Next, as to subsection 104-16(b)(2), the evidence predominantly reflects that
       defendant cannot satisfy either fitness concern identified. Dr. Gilbert found defendant
       unfit to stand trial because of his inability to: (1) recall the events of the day in question;
       and (2) cooperate with his attorney because defendant’s short-term memory
       impairment made it impossible for him to, inter alia, “track what happened in court
       from one day to the next.” Dr. Rabun concluded that defendant was unfit to stand trial,
       as he had no memory of the day of the events charged and had “significant deficits in
       his capacity to learn and retain information.” We believe this latter finding relates to
       defendant’s ability to communicate with counsel, as Dr. Rabun also noted that if
       defendant’s amnesia were his only impairment, he would be fit to stand trial.

           2
             We note that, at oral argument before this court, counsel for both the State and defendant agreed,
       inter alia, that the trial court must consider the totality of the circumstances in determining whether a
       defendant is fit to stand trial.
           3
            Although the statute mentions a defendant’s inability to recall the incident as a matter “especially”
       admissible on the issue of fitness, a court must consider all the factors listed, and all others presented in
       order to determine fitness. See 725 ILCS 5/104-16(b) (West 2010).

                                                       - 12 -
¶ 38       Further, while it was Dr. Montani’s opinion that defendant’s difficulties in forming
       new memories did not prevent him from assisting in his defense, expert witness
       O’Gara, a criminal defense attorney, described how defendant’s amnesia as to the
       relevant events could negatively impact his ability to assist defense counsel. O’Gara
       explained that: (1) defendant could not tell counsel his version of the events or what his
       state of mind was at the time, information that is critical to understanding what
       defenses might be available; (2) he could not meaningfully testify in his own defense
       because he could not remember the events at issue; and (3) he could not even
       intelligently decide how to plead because he did not know whether he committed any
       of the acts charged.

¶ 39       Thus, we find that there are a number of factors, including defendant’s inability to
       communicate with counsel because he cannot recollect his actions and mens rea
       surrounding the incident, and his inability to adequately communicate and assist
       counsel due to his near complete loss of short-term memory, that should be considered
       on the issue of fitness. Accordingly, under article 104 of the Code, amnesia as to the
       events surrounding the crime does not per se render a defendant unfit to stand trial.
       Rather, the fact that a defendant cannot recollect the incident at issue is just one of the
       circumstances that may be considered in determining a defendant’s fitness. See 725
       ILCS 5/104-16(b)(2) (West 2010). We therefore hold that a court must consider the
       totality of the circumstances to determine whether a defendant is fit to stand trial. See
       Kinkead, 182 Ill. 2d at 340.

¶ 40       We turn then to the issue of whether, under the totality of the circumstances in this
       case, the trial court’s finding that defendant remained unfit to stand trial was against the
       manifest weight of the evidence. See Haynes, 174 Ill. 2d at 226 (a trial court’s ruling on
       the issue of fitness to stand trial will be reversed only if it is against the manifest weight
       of the evidence). All three psychiatric experts concluded that defendant had no
       recollection of the events leading to the charges against him, or of what occurred up to
       48 hours prior to those events. Further, two of the three psychiatrists concluded that
       defendant’s short-term memory was substantially impaired and would affect his ability
       to assist in his own defense. The third, although believing steps could be taken at trial to
       compensate for defendant’s short-term memory deficits, acknowledged that defendant
       ranked in the lowest one percentile with regard to short-term memory retention after 20
       to 30 minutes. Therefore, based on the totality of the circumstances, we cannot say that
       the trial court’s finding that defendant remained unfit to stand trial was against the
       manifest weight of the evidence.

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¶ 41                                  CONCLUSION

¶ 42       For the foregoing reasons, we affirm the judgment of the appellate court, which
       affirmed the trial court’s finding that defendant remained unfit to stand trial.



¶ 43      Affirmed.




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