                                                                       THIRD DIVISION
                                                                       DECEMBER 9, 2009




No. 1-07-2235


THE PEOPLE OF THE STATE OF ILLINOIS,                                   )       Appeal from the
                                                                       )       Circuit Court of
                       Plaintiff-Appellee,                             )       Cook County.
                                                                       )
                v.                                                     )       No. 05 CR 18154
                                                                       )
ASUQUO ESANG,                                                          )       Honorable
                                                                       )       Michael P. Toomin,
                       Defendant-Appellant.                            )       Judge Presiding


       JUSTICE COLEMAN delivered the opinion of the court:

       Following a jury trial in which he acted as his own counsel, Asuquo Esang was convicted

of aggravated battery of a police officer and resisting arrest and sentenced to two concurrent two-

year terms of imprisonment. He seeks reversal of his convictions, asserting that (1) the trial court

erred in finding him competent to waive his right to counsel at a hearing to determine his fitness

to stand trial; (2) the court failed to conduct a sufficient hearing to determine his fitness to stand

trial; (3) the court improperly removed him from the courtroom, depriving him of the right to

present evidence in his defense or make a closing argument; (4) the court erred in failing to

appoint standby counsel; and (5) his conviction for resisting arrest, because it arose from the

same physical act as his conviction for aggravated battery of a police officer, must be vacated as

violative of the one-act, one-crime principle. We find that the trial court, having once found

Esang unfit to stand trial, did not conduct a hearing sufficient to support its finding that he had
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been restored to fitness. We accordingly reverse his convictions and remand for further

proceedings.

                                        BACKGROUND

       On July 21, 2005, Cook County sheriff's deputies were called to respond to a report of a

disturbance outside of administrative offices in the Daley Center in Chicago. Deputy Sheriff

Phillip Mackey testified that defendant Asuquo Esang was upset and yelling about not being able

to see someone about a case. Mackey and other officers asked Esang to leave the building, he

refused, the officers attempted to remove him, and a struggle ensued in which officers reported

that they had been kicked and bitten. Esang was charged with aggravated battery and resisting or

obstructing a peace officer.

       In August 2005, the office of the Cook County public defender was appointed to

represent Esang, and in October 2005, the appointed public defender asked that Esang's fitness

for trial be evaluated. A clinical psychologist, Dr. Debra Ferguson, provided the court with the

written opinion that although Esang may have been "suffering from a Delusional Disorder," he

was aware of the charges against him, familiar with legal proceedings and the roles of court

personnel, and able to assist in his own defense. The psychologist's report concluded that Esang

was fit to stand trial and sane at the time of his alleged crimes. On November 7, 2005, the trial

court found Esang fit to stand trial. In December 2005, Esang informed the trial court that he

was "having a hard time" with his appointed counsel, and that he wished to have a different

attorney appointed to represent him. In January 2006, after Esang repeatedly informed the court

that he did not wish to be represented by the public defender, the trial court admonished him of




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his rights and obligations regarding appointed counsel and self-representation, and then ruled that

Esang could represent himself.

       In February 2006, Esang filed a "Motion For Judgment of the Pleadings to Dismiss

Indictment for Cause of Harassment and Intimidation, Abuse of Process, Pre-Indictment Delay

and Case Mismanagement." At a March 2, 2006 hearing on the motion, the prosecution, asked

for its response to Esang's motions, commented, "Our position is the motions failed to support,

he actually fails to support in his motions, any assertions he makes in the motions with any

substantive evidence. They are rambling assertions, they touch on topics that are collateral to the

substantive charge in this case. What the defendant appears to be complaining of is simply that

he's unhappy about being in custody and unhappy about facing criminal charges. But nothing he

touches on in his motions actually touches on the charges on the case at bar."

       At the same hearing, the court stated to Esang, "What you filed here is incomprehensible

and incapable of being responded to. . . . It's a lot of gibberish is what it is. You're representing

yourself and you don't know what you're doing. And you have a serious case here." The court

also remarked, "You were indicted in a timely manner within the statute of limitations. Case was

assigned to Judge Moran. Because you weren't happy there, it was reassigned to me. It was

proceeding. In a timely fashion, until you fired your lawyer. After you went to the 10th floor to

see if you were fit to stand trial. Probably should go back there again because your delusions

indicate to me that you may not be fit for trial."

       At hearings on April 21, May 30, and June 1, 2006, Esang contended that he had not

received from the prosecution various items of discovery. At the May 30 hearing, the court

advised Esang, "You need a lawyer, sir." Esang answered, "Your Honor, I am not willing to do



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that, Judge." On June 1, 2006, Esang made additional assertions regarding documents he had not

been given, and the court interjected: "The more I hear you saying things, Mr. Esang, the more

you articulate yourself - - the more I'm of the opinion you're going to go to the 10th Floor to be

examined. I don't think you're competent to stand trial." Over Esang's objection, the court

ordered a second clinical examination.

       On July 14, 2006, Dr. Ferguson, the clinical psychologist who found Esang fit to stand

trial in November 2005, reported to the court that Esang would not cooperate with a second

examination, making a comprehensive fitness examination impossible. Ferguson stated that

Esang manifested "paranoid, persecutory and grandiose delusions which significant[ly] impair

his perceptions of reality." Her report continued: "His current thinking is predominated by these

irrational beliefs and render him unable to have a rational understanding of the nature of the

proceedings against him and or to realistically assess his legal situation." Ferguson concluded

that Esang was unfit to stand trial. On August 23, 2006, a jury found Esang unfit for trial, and

also found that there was a substantial probability that, if provided with treatment, he would

attain fitness within one year. Esang was placed in the custody of the Department of Mental

Health and Developmental Disabilities on November 21, 2006. He continually objected to

further fitness proceedings, insisting that he was fit to stand trial and that the proceedings merely

delayed the presentation of his defense on the criminal charges.

       On March 14, 2007, forensic psychiatrist Jonathan Kelly advised the trial court by letter

that he had examined Esang and that Esang was fit to stand trial. The court also received a 90-

day evaluation dated March 7, 2007 and signed jointly by clinical psychologist Michael Watrous

and psychiatrist Farzana Husain. The 90-day evaluation noted that throughout the course of his



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hospitalization, Esang had "engaged in obstinate and contrary behavior," "vehemently refused all

psychotropic medication," "refused to acknowledge any mental or personality condition," and

"occasioned several instances of contemptuous and noncompliant behavior which has resulted in

the mobilizing of security staff." The evaluation reported that Esang agreed to take medication

for his physical problems and always attended fitness restoration group sessions.

        On March 15, 2007, the court advised Esang of the fitness evaluations. "So, Mr. Esang,

you are here today on the basis of two reports by doctors saying that you are fit for trial. In order

to put the case back on the trial calendar we must restore you to fitness, which can be done

simply by stipulating to those reports." The court asked if Esang would stipulate to the reports,

and he asked for copies. The court then asked again, "So, are you in concurrence with the

opinion of the psychiatrist?"

        Esang replied, "Well, normally like I said before I always feel fit. There was never a time

I disagreed I am not fit to stand trial."

        The court continued, "So, you are saying you agree with their conclusions that you are fit

for trial?"

        Esang answered, "Your Honor it is not that I am not agreeing, that I have agreed with

their conclusion. My conclusion has totally been affirmed that I agreed. This is me that was here

last. I didn't take no psychiatric treatment. I didn't know, take no, any kind of medication from

them, take nothing from them. This is me. I have always been fit. This report, those testimony

from Miss Debra Ferguson was nothing but formalities."

        The court stated, "I understand you are saying you are fit for trial," and Esang responded,

"I am fit for trial. I have been fit for trial right from day one. Statement of Miss Ferguson doesn't



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count." The court concluded, "We will indicate the defendant is restored to fitness." After

extended discussion about Esang's wishes, the court appointed the office of the public defender

to represent him at trial.

        On May 11, 2007, Esang's appointed counsel advised the court that his client desired to

file motions that he could not agree to present, and asked that the office of the public defender be

permitted to withdraw from the matter. Esang advised the court of his belief that counsel was not

representing him effectively, and stated that he had a constitutional right to object to his

attorney's performance. The court answered, "You would if this case were just starting here, but I

don't believe you're competent to represent yourself." The court denied counsel's motion to

withdraw.

        Counsel advised the court that Esang would not cooperate with his attempts to prepare an

answer to the prosecution's charges, and the court commented, "Maybe the answer is that he

should go back to the 10th floor and have him examined. If he's not able to cooperate with

counsel - - he obviously is not able to represent himself." The court then ordered a third

behavioral clinical examination. On May 22, 2007, forensic psychiatrist Jonathan Kelly advised

the court by letter that he had examined Esang on May 16. In Kelly's opinion, Esang was "able to

assist in his defense, if he chooses to do so." Kelly also stated that Esang's "lack of cooperation

and oppositional behavior are volitional and likely related to his Personality Disorder, rather than

due to a mental illness." Kelly concluded that Esang was fit to stand trial.

        On May 25, 2007, Esang again discussed with the court his desire to represent himself:

                        "ESANG: I'm going to represent myself.




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                   THE COURT: You understand you have a right to have a

            lawyer?

                   ESANG: Judge, if he want to withdraw, let him withdraw,

            but I want –

                   THE COURT: He didn't say he wanted to withdraw. I'm

            asking you what you want to do.

                   ESANG: Judge, I want to represent myself. If he want to

            stand in the fashion of limited representing, fine. If you want to

            withdraw, fine.

                   THE COURT: I haven't heard him say he wants to

            withdraw. They say that you're fit for trial as long as you

            cooperate, if you want to.

                   ***

                   ESANG: Your Honor, I want Mr. Maldonado to withdraw

            and I want the motion because it's an appealable motion.

                   ***

                   THE COURT: And you know that you have a right to have

            appointed counsel?

                   ESANG: I know, Your Honor.

                   THE COURT: And you don't want appointed counsel?

                   ESANG: At this time, no.




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                       THE COURT: You want to represent yourself as you did

               once before?

                       ESANG: I want to represent myself, and I am asking that

               my motion should be responded in writing just as I did in writing.

                       THE COURT: We'll get to that. First of all, I want to make

               sure that Mr. Maldonado is not going to represent you.

                       ESANG: Yes, Your Honor.

                       THE COURT: I'll give you leave to withdraw, Mr.

               Maldonado.

                       PUBLIC DEFENDER: Thank you, Your Honor.

       Esang's jury trial commenced on June 4, 2007. Esang made an opening statement, and

cross-examined the three officers who testified for the prosecution regarding his arrest. After the

close of the prosecution's case, Esang expressed a desire to present "exhibits," which apparently

consisted of police reports, hospital records and grand jury transcripts intended to impeach the

arresting officers' testimony about the injuries they suffered in their encounter. Outside the

presence of the jury, the court ruled that the exhibits were inadmissible hearsay. Esang continued

the discussion after the jury was recalled, stating, "You are not being fair, Your Honor," and

asserting that the exhibits were not hearsay.

       Asked if he had evidence other than the excluded exhibits, Esang again referred to the

exhibits, and suggested that the exhibits should be permitted in lieu of witnesses. The court

responded, "I wasn't supposed to call anybody. You decided who you wanted to call. You fired

your lawyer, you should have made arrangements to call." Esang said, "Your Honor, that's



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irrelevant. If I can't submit evidence, if you don't allow me to submit evidence, what else is

there?"

          The court then ordered Esang removed from the courtroom and he was not present for the

remainder of the trial, including the prosecution's closing argument, the instruction of the jury,

and the jury's return of guilty verdicts on one count of aggravated battery and one count of

resisting or obstructing a peace officer. The trial court sentenced him to a two-year term of

imprisonment for each count, to be served concurrently. This appeal followed.

                                             ANALYSIS

          Esang contends that the March 2007 hearing that determined him to be fit to stand trial

was insufficient. We agree. "A trial court's determination of fitness may not be based solely

upon a stipulation to the existence of psychiatric conclusions or findings." People v. Contorno,

322 Ill. App. 3d 177, 179 (2001). "The ultimate decision as to a defendant's fitness must be

made by the trial court, not the experts. People v. Bilyew, 73 Ill. 2d 294, 302 (1978). A trial

court must analyze and evaluate the basis for an expert's opinion instead of merely relying upon

the expert's ultimate opinion. In re T.D.W., 109 Ill. App. 3d 852, 855 (1982)." Contorno, 322

Ill. App. 3d at 179. See also People v. Goodman, 347 Ill. App. 3d 278, 287 (2004). When a

defendant has previously been found unfit, a finding of restored fitness must be based not only

upon a stipulation to the conclusion of psychiatric reports, but upon an affirmative exercise of

the court's discretion to determine the defendant's mental state. People v. Thompson, 158 Ill.

App. 3d 860, 865 (1987). In the instant case, the trial court's finding that Esang had been

restored to fitness appeared to be based solely upon his stipulation to psychiatric conclusions that

he was fit to stand trial. "To accept defendant's opinion that he is able to co-operate with counsel



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in his defense, when the purpose of the hearing is to determine that very fact, would make a sham

out of the sanity hearing." People v. McKinstray, 30 Ill. 2d 611, 616-17 (1964). Esang's

stipulation was especially unreliable in light of the medical evaluation's report, confirmed by

Esang himself, that he had refused all psychotropic treatment, thereby suggesting that his medical

condition was minimally changed from the time of the earlier finding that he was unfit.

        A trial court's failure to independently analyze and weigh expert testimony in making a

fitness finding is a constitutional error, properly considered under the plain error doctrine and

reversible unless it can be proved to be harmless beyond a reasonable doubt. People v. Contorno,

322 Ill. App. 3d at 179-80. Given the trial court's clear doubt about Esang's fitness to stand trial

both before and after the March 2007 restoration determination, we cannot conclude that the

insufficient fitness restoration hearing in the instant case was harmless beyond a reasonable

doubt. Accordingly, we reject the State's contention that Esang has waived review of the issue by

failing to raise it at trial and in a posttrial motion.

        The State suggests that even if Esang's restoration hearing was inadequate, the proper

remedy is a retrospective fitness hearing rather than a new trial. We are unpersuaded by this

contention. Although in "exceptional cases," retrospective fitness hearings may accurately

discern the mental state of a defendant during a trial held many years earlier, retrospective

hearings "will normally be inadequate to protect a defendant's due process rights when more than

a year has passed since the original trial and sentencing." People v. Neal, 179 Ill. 2d 541, 553-54

(1997). Our supreme court found such "exceptional" circumstances to be present in Neal, where

the defendant asserted not that he suffered from a long-standing condition that rendered him

unfit, but that he was rendered unfit by the use of specific psychotropic drugs used at the time of



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his trial. 179 Ill. 2d at 545-46. The Neal court found that long after any individual use of the

drugs in question, medical experts could establish that, when taken in known doses, they would

not have caused impairment sufficient to render the defendant unfit to stand trial. "If the

chemical properties of medication are such that their effects could accurately be assessed in light

of a defendant's known medical history, * * * it would not matter whether the evaluation

followed the original trial and sentencing by 15 days or 15 years. The result would be the same."

Neal, 179 Ill. 2d at 554.

       Doubt regarding Esang's fitness for trial in the instant case was noted by the court a full

year prior to the fitness restoration hearing, and was not asserted to have been produced by any

specific prescription of medication. Since Esang's condition was not alleged to have been

produced by a single, easily identified and readily assessed factor, and since his documented lack

of cooperation with medical personnel limited the extent of his evaluations, we do not believe

that the instant case presents the exceptional circumstance that would enable an accurate

judgment of his mental state more than two years after his trial. We therefore conclude that the

general principle stated by the Neal court must prevail here, and that the inadequacy of Esang's

restoration hearing requires reversal of his convictions and sentences.

       Esang also contends that despite his assertion of his right to represent himself, the court

committed reversible error in failing to appoint counsel to represent him or, at minimum, to act

as standby counsel. Where a bona fide doubt exists as to a defendant's competency to stand trial,

that defendant cannot intelligently waive his constitutional right to representation by counsel, and

permitting him to represent himself is reversible error. People v. Rath, 121 Ill. App. 3d 548, 550-

51 (1984).



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       In the instant case, Esang's in-court conduct, though exhibiting familiarity with the

charges against him and the nature of the court proceedings, was sufficiently troubling to the

court to prompt it to order, sua sponte, two additional medical examinations after the original

examination requested by his counsel. We believe that the trial court's repeated and explicit

expressions of concern regarding Esang's mental state demonstrated the existence of a bona fide

doubt regarding his competency, and that in the presence of such doubt, Esang's waiver of his

right to counsel cannot be held to have been intelligently made.

       We also note that since Esang's trial, the United States Supreme Court has shed additional

light on a court's ability to strike a balance between a defendant's right to determine the course of

his own defense and the desire, readily apparent in the trial court's conduct here, to protect that

defendant from the consequences of an unsound decision to represent himself. It has now

explicitly been held that a defendant may be competent to stand trial while at the same time

incompetent to represent himself, and that in such circumstances, he suffers no constitutional

injury from a trial court's refusal to permit him to represent himself. Indiana v. Edwards, 554

U.S. _____, 171 L. Ed. 2d 345, 128 S. Ct. 2379 (2008).

                                          CONCLUSION

       For the foregoing reasons, we reverse Esang's convictions and sentences and remand to

the circuit court of Cook County for proceedings consistent with this opinion.

       Reversed and remanded.

       QUINN and STEELE, JJ., concur.




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