                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




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




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    TERRIS E. STAHL, Defendant-Appellee.



District & No.             Fifth District
                           Docket No. 5-11-0385


Filed                      February 19, 2013


Held                       Defendant was rendered unfit to stand trial on charges of home invasion
(Note: This syllabus       and aggravated unlawful restraint arising from an incident in which he
constitutes no part of     invaded the residence of his former wife, since the brain injury he
the opinion of the court   suffered when he shot himself with one of his weapons rendered him
but has been prepared      unable to recall any of the events surrounding the incident and there was
by the Reporter of         testimony that defendant could not understand the nature of the
Decisions for the          proceedings against him or assist in his defense.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of St. Clair County, No. 09-CF-567; the
Review                     Hon. Jan V. Fiss, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino,
Appeal                     Stephen E. Norris, and Jennifer Camden, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.

                           Justin A. Kuehn and Matthew P. Young, both of Kuehn Law Firm, of
                           Belleville, for appellee.


Panel                      JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
                           Justices Welch and Goldenhersh concurred in the judgment and opinion.




                                              OPINION

¶1          The defendant, Terris E. Stahl, is unable to remember any of the events surrounding the
        incidents leading to charges of home invasion and aggravated unlawful restraint due to brain
        damage resulting from a self-inflicted gunshot wound. He was found unfit to stand trial.
        After a subsequent fitness restoration hearing, the court again found that the defendant was
        unfit to stand trial and that it was not reasonably probable that he could be fit within one
        year. The State appeals, arguing that the defendant’s inability to recall events does not render
        him unfit to stand trial. We affirm.
¶2          The events at issue occurred shortly after the defendant’s former wife, Erin Kruep, filed
        for divorce. According to testimony presented at a discharge hearing after the initial finding
        of unfitness, Kruep spent the evening of April 5, 2009, at her home with Chuck Smith (a
        friend of both Kruep and the defendant), Alyssa Schmitt (Kruep’s 17-year-old babysitter),
        and William Marshall (Schmitt’s boyfriend). At 1 in the morning, Kruep went to bed and
        invited her three guests to stay overnight. Marshall left some time later, but Smith fell asleep
        in Kruep’s guest room and Schmitt fell asleep on the living room sofa. Kruep and the
        defendant had a four-year-old son, Owen, who was asleep in his bedroom when these events
        took place.
¶3          At 4 in the morning, Kruep and Schmitt woke up when they heard glass break and
        Kruep’s burglar alarm go off. The defendant pointed a gun at Schmitt and demanded to know
        where Kruep was. He then found Kruep in her bedroom, pointed a gun at her, and threatened
        to kill her. The defendant woke Smith by going to the guest room and pointing a second gun
        in Smith’s face. With one gun pointed at Kruep and Schmitt and the other pointed at Smith,
        the defendant told them that they were all “gonna die” that night. Kruep managed to call
        9-1-1 on her cell phone and ask for help before the defendant knocked the phone from her
        hand.
¶4          The defendant ordered Kruep, Schmitt, and Smith into the basement. He continued to
        hold all three at gunpoint, with one gun in each hand. He told Kruep that if she would take

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       him back, he would change. However, he then fired a shot into the wall and told her, “Now
       you know I’m serious, bitch.”
¶5         Owen woke up and turned on the bathroom light. The defendant allowed Schmitt to go
       upstairs to take care of him. While Schmitt was upstairs with Owen, she looked out the
       window and saw a police officer outside who had arrived in response to Kruep’s 9-1-1 call.
       Schmitt motioned to the officer through the window. She held her hand in the shape of a gun
       and pointed to her head, then pointed down the hallway toward the basement door. The
       officer returned to his squad car and called for backup. Schmitt took Owen and left the
       house.
¶6         The defendant continued to point the guns at Kruep and Smith. He told Kruep that if he
       could not have her, he would kill her. Later, the police tactical response force arrived at the
       house. An officer attempted to talk to the defendant with a megaphone. The defendant
       eventually decided that he would be willing to talk to a police officer he knew if that officer
       was at the scene. He sent Smith upstairs to find out whether the officer was there. Some time
       later, the defendant told Kruep that he did not want to go to jail. He told her what kind of
       funeral he wanted and what he wanted her to tell their son about his death. He then told her
       to leave. As Kruep was leaving, she heard a gunshot. She ran from the house and told the
       officers that the defendant had shot himself.
¶7         The defendant was found lying facedown in a doorway on the main floor of Kruep’s
       home. He was taken to the hospital. A trail of blood led from the defendant down the stairs
       leading to the basement. Two guns were found in the basement, including a .22 that was
       found in a pool of blood with its hammer cocked.
¶8         The defendant was arrested in May 2009 and charged with home invasion (720 ILCS
       5/12-11(a)(1) (West 2008)) and aggravated unlawful restraint (720 ILCS 5/10-3.1(a) (West
       2008)). He was conditionally released to live with his parents because the county jail could
       not meet his medical needs. He was indicted on both charges on June 12, 2009. On October
       1, 2009, the defendant filed a motion for a hearing to determine his fitness to stand trial.
¶9         Prior to the initial fitness hearing, two psychologists provided opinions, Dr. Kenneth
       Gilbert and Dr. John Rabun. Dr. Kenneth Gilbert initially evaluated the defendant in July
       2009, after the defendant’s mother hired him to evaluate the defendant’s risk of suicide. Dr.
       Gilbert provided a report in January 2010 based upon his July 2009 evaluation. He opined
       that the defendant suffered two types of memory deficit as a result of the gunshot wound.
       First, the defendant was unable to recall the events at issue or anything that happened in the
       48 hours leading up to those events. Second, the defendant’s ability to form new short-term
       memories was severely impaired. Dr. Gilbert explained that this short-term memory
       impairment would make it impossible for the defendant “to track what happened in court
       from one day to the next.”
¶ 10       Dr. Gilbert explained that the type of brain injury sustained by the defendant could lead
       to memory loss because the “swelling and distortion of brain tissue” caused by the gunshot
       interrupts the process of creating neurological connections that establish memories. Dr.
       Gilbert opined that it was possible for the defendant’s short-term memory impairment to
       improve, although he could not predict with any certainty whether this would be the case. He


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       opined, however, that there was “no probability” that the defendant would recover his
       memories of the events at issue or the 48 hours leading up to them. He concluded that the
       defendant could not understand the nature of the proceedings against him or assist in his own
       defense.
¶ 11        Dr. John Rabun was retained by the State to perform an independent evaluation of the
       defendant. He provided a report in April 2010. Dr. Rabun essentially agreed with Dr. Gilbert.
       He found that the defendant had no memory of the day of the events charged as well as
       “significant deficits in his capacity to learn and retain new information.” Dr. Rabun noted
       that the defendant’s cognitive difficulties were significant enough that his father had been
       appointed to act as his plenary legal guardian as a result. Dr. Rabun concluded that the
       defendant was unable to understand the nature of the proceedings against him and unable to
       assist in his defense. He opined that all of the defendant’s memory impairments were
       unlikely to improve.
¶ 12        In July 2010, the matter was called for a hearing. The parties stipulated that Dr. Gilbert
       and Dr. Rabun would testify in accordance with the opinions expressed in their reports if
       called to testify. In light of the fact that both psychologists believed that the defendant was
       not fit to stand trial, the State stipulated to a finding of unfitness. The court held a discharge
       hearing in November 2010. After hearing the testimony set out previously, the court found
       the defendant “not guilty” and ordered him committed to Alton Mental Health Center. The
       defendant was admitted to Alton on February 24, 2011.
¶ 13        On March 17, 2011, Alton staff filed a progress report with the court indicating that the
       defendant was now fit to stand trial. See 725 ILCS 5/104-18(a)(2) (West 2010). The report
       was signed by Dr. David Montani, a staff psychologist who was treating the defendant. Dr.
       Montani stated that the defendant still was completely unable to recall the events at issue and
       continued to have difficulty in forming new memories. He explained that the defendant had
       been tested by Dr. Ronald Sellers to assess the extent of his memory deficit. Dr. Sellers’
       testing revealed that the defendant was in the bottom percentile in his ability to recall new
       information after 20 to 30 minutes. Dr. Montani nevertheless opined that the defendant was
       fit to stand trial. He noted that the defendant was able to tell him the roles of the judge,
       prosecutor, defense counsel, and jury in a trial. He also noted that the defendant was able to
       discuss with him the proceedings at the November 2010 discharge hearing.
¶ 14        The court held a fitness restoration hearing on May 13, 2011. At the outset of the hearing,
       defense counsel stated that “both parties would ask the court to take judicial notice of all the
       prior reports.” He noted that this included the reports of Dr. Gilbert and Dr. Rabun from
       2010, which had previously been admitted. The prosecutor stated, “That’s correct, Your
       Honor.”
¶ 15        Dr. Montani testified for the State that the defendant had a basic understanding of the
       charges against him and the possible penalties as well as the roles of courtroom personnel.
       He further testified that when he discussed the November 2010 discharge hearing with the
       defendant, the defendant was able to recall and discuss the evidence presented at that hearing.
       The defendant was able to tell Dr. Montani about discrepancies in the testimony of witnesses
       at the hearing and comment on the fact that no gunshot residue testing was conducted. Dr.


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       Montani acknowledged that the defendant still suffered from significant short-term memory
       impairment, but he believed that this would not prevent him from functioning in the context
       of a trial if he were provided with note-taking materials and sufficient breaks during the
       testimony to confer with counsel. Dr. Montani also acknowledged that the defendant was still
       completely unable to recall any of the events charged in the indictment. He testified that the
       defendant was not likely to recover these memories through treatment.
¶ 16        Criminal defense attorney John O’Gara testified as an expert witness for the defendant.
       He described how the defendant’s inability to remember the relevant events could impact his
       ability to assist defense counsel. O’Gara explained that there was no way for the defendant
       to tell his attorney his version of the events at issue or what his state of mind was at the time,
       information that is critical to determining what defenses might be available. He further
       testified that the defendant cannot meaningfully testify in his own defense because he cannot
       remember the events at issue. Finally, O’Gara testified that the defendant cannot even
       intelligently decide how to plead because he does not know whether he committed any of the
       acts charged.
¶ 17        The court then heard arguments from the parties’ attorneys. The defendant argued that
       the State was required to prove the defendant fit to stand trial by clear and convincing
       evidence, while the State argued that it only needed to prove he was fit by a preponderance
       of the evidence. The court asked both parties to submit proposed orders that addressed the
       appropriate standard. The court then took the matter under advisement.
¶ 18        On May 24, 2011, the court entered an order finding that the defendant was unfit to stand
       trial and was unlikely to become fit again. The State filed a motion to reconsider, which the
       court denied. The State then filed the instant appeal.
¶ 19        The State contends that the trial court’s ruling 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 to support a finding of unfitness. We disagree.
¶ 20        A defendant is not fit to stand trial if he is unable to understand the purpose and nature
       of the proceedings against him or if he is unable to assist counsel in his defense. People v.
       Clay, 361 Ill. App. 3d 310, 330, 836 N.E.2d 872, 889 (2005) (quoting 725 ILCS 5/104-10
       (West 2000)). Once a bona fide doubt is raised as to the defendant’s fitness to stand trial, the
       State must prove the defendant fit by a preponderance of the evidence. Clay, 361 Ill. App.
       3d at 331, 836 N.E.2d at 889. In determining a defendant’s fitness, courts are to consider,
       among other things, the “defendant’s ability to observe, recollect and relate occurrences,
       especially those concerning the incidents alleged.” (Emphasis added.) 725 ILCS 5/104-
       16(b)(2) (West 2010). On appeal from a court’s determination regarding a defendant’s fitness
       to stand trial, we review to determine whether the court’s finding was against the manifest
       weight of the evidence. Clay, 361 Ill. App. 3d at 331, 836 N.E.2d at 889.
¶ 21        As previously noted, the defendant in this case suffers from two types of memory
       impairment, both of which have some impact on his fitness to stand trial. However, there is
       evidence that the defendant’s short-term memory improved somewhat, and Dr. Montani
       opined that the defendant could overcome his difficulties with reasonable accommodations.
       On appeal, the defendant focuses his arguments on his complete amnesia as to the events at


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       issue in the indictment. For purposes of this appeal, we may assume that the defendant’s
       short-term memory impairment can be accommodated adequately and focus our discussion
       on whether his inability to recall the events at issue makes him unfit to stand trial. For the
       reasons that follow, we conclude that it is.
¶ 22        In support of its position, the State cites People v. Schwartz, 135 Ill. App. 3d 629, 482
       N.E.2d 104 (1985). There, the defendant was charged with arson and murder. Schwartz, 135
       Ill. App. 3d at 631, 482 N.E.2d at 105-06. Like the defendant here, the defendant in Schwartz
       suffered a self-inflicted gunshot wound and was unable to remember the events involved in
       the charges against him. Schwartz, 135 Ill. App. 3d at 632, 482 N.E.2d at 106. 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. Schwartz, 135 Ill. App. 3d at 632, 482
       N.E.2d at 106. The court found the defendant fit to stand trial. The defendant continued to
       assert the issue of his fitness throughout the trial without success. Schwartz, 135 Ill. App. 3d
       at 632, 482 N.E.2d at 106.
¶ 23        The defendant pled not guilty by reason of insanity. Schwartz, 135 Ill. App. 3d at 635,
       482 N.E.2d at 108. Both the defendant and the State presented extensive testimony about the
       events in the weeks leading up to the offenses. Schwartz, 135 Ill. App. 3d at 633, 482 N.E.2d
       at 107. This included the defendant’s own testimony. Schwartz, 135 Ill. App. 3d at 635, 482
       N.E.2d at 108.
¶ 24        On appeal, the defendant argued that the trial court erred in finding him fit to stand trial.
       Schwartz, 135 Ill. App. 3d at 636-37, 482 N.E.2d at 109. The Second District found that
       although the defendant was unable to “cooperate in his defense concerning the amnesiac
       period,” he was able to communicate with his attorney about trial decisions. Schwartz, 135
       Ill. App. 3d at 638-39, 482 N.E.2d at 110-11. The court found that this was all our statute
       contemplates in providing that a fit defendant is one who is able to assist in his own defense.
       Schwartz, 135 Ill. App. 3d at 639, 482 N.E.2d at 111.
¶ 25        In addition, the defendant there raised general due process concerns regarding the impact
       of his memory loss on the fairness of his trial. More specifically, he argued that his memory
       loss prevented him from offering his own testimony as to his state of mind at the time the
       offenses took place. Schwartz, 135 Ill. App. 3d at 639, 482 N.E.2d at 111. In rejecting this
       claim, the appellate court noted that the defendant was able to tell his attorney about the
       events leading up to the arson and murder which supported his insanity defense. The
       defendant was even able to testify about these events. Schwartz, 135 Ill. App. 3d at 640, 482
       N.E.2d at 111-12. The court found that under the “particular circumstances” before it, the
       defendant was able to fully develop and present his insanity defense. Schwartz, 135 Ill. App.
       3d at 640, 482 N.E.2d at 112.
¶ 26        We believe the Schwartz court ignored express statutory language applicable to fitness
       hearings. As previously stated, the 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. See


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       People v. Pruitt, 239 Ill. App. 3d 200, 209, 606 N.E.2d 866, 872 (1992) (noting that one
       district of the appellate court is not required to follow the holding of another district of the
       appellate court).
¶ 27        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.
¶ 28        The State argues, however, that concerns about a defendant’s ability to remember the
       events at issue are more properly raised in an appeal after trial and framed in terms of general
       due process concerns. In support of this argument, the State points to the procedural history
       of Schwartz. There, as previously discussed, the defendant challenged his conviction on the
       grounds both that he should not have been found fit to stand trial and that his inability to
       remember events deprived him of a fair trial because he could not present all of the evidence
       relevant to his insanity defense. We have already rejected the holding in Schwartz. Moreover,
       we do not read the opinion to hold that a defendant suffering from amnesia must always go
       through a trial and then challenge his conviction on general due process grounds instead of
       challenging the court’s fitness determination. As we have already discussed, the applicable
       statute expressly emphasizes the defendant’s ability to recall and relate to counsel the events
       at issue in the charges against him. Here, the defendant has no such ability. To hold that this
       issue is not a question of fitness would be at odds with the very purpose of our provisions
       related to fitness to stand trial.
¶ 29        The State further argues that the defendant in fact can assist in his own defense because
       he is able to review police reports and discuss witness testimony with his attorney. 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.
¶ 30        In addition, the State argues that the court erred in considering the reports of Dr. Gilbert
       and Dr. Rabun because our fitness statute addresses a defendant’s current condition, and
       those reports were based on evaluations of the defendant which took place more than a year
       before the fitness restoration hearing. This argument correctly states the law. Schwartz, 135
       Ill. App. 3d at 631, 482 N.E.2d at 105-06. However, the undisputed medical evidence
       showed that while the defendant’s condition had improved in some respects, his inability to
       recall the relevant events had not changed. We also note that the State acquiesced to the

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       defendant’s request that the court take judicial notice of the reports and that Dr. Montani
       considered them in rendering his opinion. We find no error.
¶ 31       Finally, the State argues that the court was not free to disregard Dr. Montani’s expert
       opinion where there was no opinion to contradict it. Again, we disagree. As previously
       discussed, all of the psychological evidence–including Dr. Montani’s testimony and
       reports–indicated that the defendant had no memory of the events at issue and was unlikely
       ever to recover his memory of what occurred. Dr. Montani’s conclusion that the defendant
       was fit to stand trial was a legal conclusion, not a psychiatric opinion. The ultimate legal
       conclusion as to the defendant’s fitness was an issue for the court to determine. People v.
       Haynes, 174 Ill. 2d 204, 231, 673 N.E.2d 318, 331 (1996).
¶ 32       For the reasons stated, we affirm the trial court’s order finding the defendant unfit to
       stand trial.

¶ 33      Affirmed.




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