People v. Pitsonbarger

• Decision Date: 23 May 2002
• Docket Number: No. 89368.,89368.
• Citation: 275 Ill.Dec. 838,793 N.E.2d 609,205 Ill.2d 444
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Jimmy Ray PITSONBARGER, Appellant.
• Court: Illinois Supreme Court

793 N.E.2d 609

205 Ill.2d 444

275 Ill.Dec. 838

The PEOPLE of the State of Illinois, Appellee, v. Jimmy Ray PITSONBARGER, Appellant.

No. 89368.

Supreme Court of Illinois.

May 23, 2002.

Robert H. Farley, Jr., Naperville, and Stephen E. Eberhardt, Tinley Park, for appellant.

James E. Ryan, Attorney General, Springfield (Joel D. Bertocchi, Solicitor General, and William L. Browers and Michael M. Glick, Assistant Attorneys General, Chicago, of counsel), for the People.

Justice GARMAN delivered the opinion of the court:

Petitioner, Jimmy Ray Pitsonbarger, appeals from orders of the circuit court of Peoria County dismissing 34 of the 35 claims raised in his second post-conviction petition and denying the sole remaining claim after an evidentiary hearing. Because petitioner was sentenced to death for the underlying convictions, his appeal lies directly to this court. 134 Ill.2d R. 651(a). For the reasons that follow, we affirm the judgment of the circuit court.

I. BACKGROUND

This court has previously described the facts underlying petitioner's conviction and sentencing in our opinion on his direct appeal. See People v. Pitsonbarger, 142 Ill.2d 353, 154 Ill.Dec. 562, 568 N.E.2d 783 (1990). Thus, we will summarize here only the proceedings that have occurred since his conviction.

In 1988, petitioner was convicted in a bench trial of the murders of Claude and Alta Brown. The death penalty hearing was held before a jury, which found the petitioner eligible for the death penalty based on the presence of two aggravating factors, and further found that no mitigating factors sufficient to preclude imposition of the death penalty were present. The circuit court sentenced petitioner to death. On direct appeal, this court addressed 14 separate claims of error, affirmed two convictions for intentional murder, vacated four convictions for felony murder, and affirmed the sentence of death. Pitsonbarger, 142 Ill.2d 353, 154 Ill.Dec. 562, 568 N.E.2d 783. Petitioner's petition for a writ of certiorari to the United States Supreme Court was denied. Pitsonbarger v. Illinois, 502 U.S. 871, 112 S.Ct. 204, 116 L.Ed.2d 163 (1991).

In April 1992, petitioner filed a post-conviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1992)). The circuit court dismissed the petition without an evidentiary hearing, finding that all seven of the claims raised were either barred by res judicata, because they had already been addressed on direct appeal, or waived, because they had not been raised on appeal even though they were available to be raised. Counsel filed a "Motion to Reconsider and Vacate" in May 1992, which the circuit court denied almost 11 months later. The clerk of the court did not give notice of this decision to counsel. Thus, when counsel filed a "Motion to File Late Notice of Appeal" in November 1993, the motion was granted. However, after counsel failed to timely file a brief, this court denied various motions for extensions of time and for reconsideration and eventually dismissed the matter for want of prosecution in June 1994.

Petitioner filed a petition for habeas corpus relief in March 1995, in the United States District Court for the Central District of Illinois, raising 11 claims. The district court issued an unpublished decision on October 5, 1995, denying habeas relief. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed the district court's decision. Pitsonbarger v. Gramley, 103 F.3d 1293 (7th Cir.1997). That judgment was vacated by the United States Supreme Court in Pitsonbarger v. Gramley, 522 U.S. 802, 118 S.Ct. 37, 139 L.Ed.2d 6 (1997) (vacating and remanding for reconsideration in light of Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). The court of appeals thereafter entered a revised decision, again affirming the denial of habeas relief. Pitsonbarger v. Gramley, 141 F.3d 728 (7th Cir.1998). The Supreme Court denied petitioner's petition for a writ of certiorari. Pitsonbarger v. Gramley, 525 U.S. 984, 119 S.Ct. 448, 142 L.Ed.2d 402 (1998).

On February 28, 1996, while his appeal was pending before the Seventh Circuit, petitioner filed a second post-conviction petition in the circuit court of Peoria County, raising 35 claims of error. The State responded by filing a motion to dismiss on the basis that the entire petition was time-barred under the statute of limitations contained in section 122-1 of the Act (725 ILCS 5/122-1 (West 1996)). In the alternative, the State argued that all 35 claims were either waived by petitioner's failure to raise them in earlier proceedings or barred by res judicata. Petitioner responded that his first post-conviction proceeding was "fundamentally flawed" due to its virtual "abandonment" by post-conviction counsel and, thus, consideration of the claims raised in his second post-conviction petition was not barred by section 122-1 or by the waiver provision contained in section 122-3 of the Act (725 ILCS 5/122-3 (West 1996)). Therefore, he argued, all 35 issues should be addressed. In addition, petitioner argued that one claim in particular-his claim that he was denied a fitness hearing in 1988 due to ineffective assistance of counsel-should be addressed on the merits. Following a hearing on the State's motion on October 31, 1997, the circuit court ruled that "only those paragraphs in the Petition that are directed toward * * * the issue of fitness need be answered and the Petition is dismissed in other regards." The State then filed an answer addressing the sole surviving claim, which was the subject of an evidentiary hearing on April 11, 2000.

At the evidentiary hearing, the parties stipulated that prior to and during petitioner's bench trial he was taking psychotropic medication, specifically 10 milligrams of Librium three times a day. Petitioner argued that this fact alone is sufficient to put the burden on the State to prove that he had been fit to stand trial in 1988. Further, petitioner argued that he should be given a new trial because a retrospective fitness hearing more than a decade later could not meet due process standards. Other than stipulating to the contents of the medication records, the petitioner introduced no evidence and presented no testimony.

The State argued that the mere fact petitioner was receiving medication is not sufficient to require a new trial. Rather, he must demonstrate that trial counsel was ineffective for failing to request a fitness hearing and appellate counsel was ineffective for failing to raise the issue on direct appeal. According to the State, petitioner could prevail on these claims only by demonstrating he would have been found unfit to stand trial if he had been given a fitness hearing in 1988, and he had failed to make the required showing. When the circuit court again denied the State's request to dismiss this claim, the State called two witnesses.

Robert E. Chapman, M.D., a psychiatrist who interviewed petitioner in 1988 to evaluate his fitness to stand trial and the applicability of insanity or intoxication as defenses, testified that he was aware during his interview with petitioner that he had been receiving three 10-milligram doses of Librium per day. Chapman described Librium as "an anti-anxiety medication" and "a minor tranquilizer." During the interview, Chapman found petitioner "oriented, alert, cooperative, [and] inquisitive." Petitioner "showed no evidence of psychosis or other symptoms of a severe mental disease or mental disorder." Further, he showed no evidence of drug side effects such as slurring of speech or staggering or other gait disturbance. Petitioner did not report insomnia or other sleep disturbances. Chapman found petitioner's behavior appropriate and his thought processes intact. Asked for his opinion, within a reasonable degree of medical certainty, of petitioner's fitness to stand trial in 1988, Chapman testified that petitioner "was fit." When specifically asked if that opinion took into account that petitioner was taking Librium at the time, Chapman responded, "Yes."

On cross-examination, Chapman stated that his opinion as to petitioner's fitness for trial in 1988 would not be altered by learning that he subsequently attempted suicide. He also acknowledged that one of the effects of Librium is to cause the patient to be subdued or quiet or to have an emotionless expression, and that the patient might tend to become withdrawn from other people. However, Chapman explained that these effects occur only if the dosage of Librium is "approaching toxic levels." When asked by the court to clarify, Chapman explained that one would have to take "hundreds of milligrams a day" before experiencing these effects.

Phillip Jobe, Ph.D., a professor of pharmacology at the University of Illinois College of Medicine in Peoria, explained that Librium is used primarily for treatment of anxiety as well as to treat insomnia. Jobe was asked to describe, to a reasonable degree of scientific certainty, the effect on a 24- to 25-year-old male, weighing approximately 165 pounds, of three 10-milligram doses of Librium per day. Jobe stated that such a dosage would not impair that person's ability to understand the nature of charges against him or to understand legal proceedings. Further, it would not impair the person's abilities to communicate with counsel, to observe, recollect, or relate occurrences, or to control his motor processes, including facial expressions. Jobe was also asked how long Librium would remain in the system of a 165-pound male after the medication was discontinued. Jobe explained that the drug, including its metabolites, would "essentially [be] gone from most people in ten days to 15 days" and that the drug would be "active" for a much shorter period.

Jobe acknowledged on cross-examination that Librium's side effects include confusion, drowsiness, fainting, and nausea, and "[i]f the dose were...