The trial court believed that the homicide exception to the physician-patient privilege allowed theprosecution to use the statements defendant made to Dr. Conroe even though defendant's statements weremade during Dr. Conroe's examination to determine defendant's fitness and sanity. We note that during thetrial the information from Dr. Conroe's report was not introduced by the State by calling Dr. Conroe as awitness, but rather the trial court allowed the State to cross-examine defendant with the statements defendantmade to Dr. Conroe, as noted in his report, during his fitness and sanity examination of defendant. In Peoplev. Doe, 211 Ill. App. 3d 962 (1991), the court defined the parameters of the homicide exception to thephysician-patient privilege. In Doe, a grand jury subpoena was issued to a therapist of a housing corporationwhich called for "any and all information on all male tenants of 7720, Inc." The issue was whether theinformation requested in the subpoena could be disclosed under the homicide exception. The court did notapply the homicide exception in Doe, noting that the legislature intentionally included the words "directly"and "immediate" in the exception. There must be a showing that the disclosure directly relates to theimmediate circumstances of the homicide and the State failed to make such a showing. Doe, 211 Ill. App.3d at 968. Therefore, the court held the order denying the motion to quash the subpoena duces tecum wasimproper because "a showing that the disclosure merely relates to the circumstances of a homicide is notsufficient to invoke the exception." Doe, 211 Ill. App. 3d at 967.

In People v. Wilson, 164 Ill. 2d 436 (1994), the court applied the Doe interpretation of the homicideexception. The defendant sought to preclude the use of statements he made to a therapist by arguing that thestatements he made did not relate "directly" to the facts of the homicide. In Wilson, the therapist visited thedefendant in jail in order to assess whether defendant was suicidal. The therapist suggested to the defendantthat he write a journal about his thoughts as a way to relieve stress. Over time, the defendant shared partsof that journal with the therapist and told the therapist that people could tell that he "did it." The court heldthat statements which the defendant made to the therapist fell within the homicide exception and wereadmissible since the statements referred directly to the facts of the homicide. Wilson, 164 Ill. 2d at 456.

We conclude the statements made by the defendant to Dr. Conroe and elicited by the prosecutionduring cross-examination of the defendant directly relate to the facts or immediate circumstances of thehomicide. However, the situation contemplated by the homicide exception is application to statements madeby the defendant in the context of professional services rendered by physicians that are unrelated to fitnessor sanity examinations. Such was the case in Wilson, where the therapist met with the defendant to ascertainwhether he had any suicidal tendencies, not to determine his fitness or sanity. We note the homicideexception to the physician-patient privilege also applies in reckless homicide cases (People v. Hart, 194 Ill.App. 3d 997, 1003 (1990)) and in prosecutions where the written results of blood-alcohol tests are admissible(People v. Bates, 169 Ill. App. 3d 218, 225 (1988)). However, these cases do not address application of thehomicide exception to statements made by a criminal defendant during the course of a fitness and sanityexamination to the doctor conducting that examination.

The trial court believed that the homicide exception applied even though the initial examination wasto determine defendant's fitness and sanity. We note that, under the facts of this case, defendant would nothave had any contact with Dr. Conroe except as to determine his fitness and sanity as these issues related tothe criminal charges pending against him and as these issues related to his defense to those criminal charges. Therefore, the statements made by defendant during the examination fell within the terms of section 104-14of the fitness statute of the Code of Criminal Procedure, "Use of Statements Made During Examination orTreatment" 725 ILCS 5/104-14 (West1992).

We are mindful of the fact that the State can, under certain circumstances, cross-examine thedefendant with statements made during a fitness examination pursuant to section 104-14. Use of thesestatements, however, is limited to specific situations. In People v. Kashney, consolidated with People v. Lee,111 Ill. 2d 454, 461 (1986), our supreme court held that it was not error for the trial court to allow the Stateto impeach the defendant by questioning him about statements he made to psychiatrists who examined himfor fitness. The defendant claimed he was coerced into confessing by demons that possessed one of theofficers who questioned him. Defendant argued that the explanation for his false confession did not raisethe affirmative defense of insanity and therefore section 104-14 prohibited the State from using statementshe made during his fitness examinations. The supreme court noted that defendant introduced the substanceof statements he made during his fitness examination and "* * * waived whatever protection might beafforded by section 104-14(a) by calling the court-appointed psychiatrists to testify in support of his claimthat his confession was coerced by alleged demonic possession." Kashney, 111 Ill. 2d at 461. In this case,however, defendant did not call the psychiatrist to testify in his defense, did not introduce the substance ofstatements he made to Dr. Conroe and therefore, unlike Kashney, did not waive the protection afforded bysection 104-14(a) to the statements he made to the psychiatrist, Dr. Conroe.

In Lee, the defendant was initially interviewed at the court's direction by a psychologist after heindicated that he might raise an insanity defense. At trial, however, the defendant did not raise the insanitydefense. Instead, a psychiatrist was called to testify that the defendant suffered from post-traumatic stresssyndrome. In rebuttal, the State called the psychologist who interviewed defendant and elicited incriminatingstatements made by the defendant. Our supreme court found that because defendant did not raise the defenseof insanity, the prosecution "* * * was barred by the exclusionary language of section 104-14(a) from callingthe court-appointed psychologist and eliciting from her statements made by the defendant during theexamination." Kashney consolidated with Lee, 111 Ill. 2d at 465. Here, like Lee, defendant did not raise thedefense of insanity even though he was initially examined by Dr. Conroe to determine his fitness and sanity. Rather, defendant testified that he acted in self-defense when the victim attacked him. Therefore, becausedefendant did not present an insanity defense, any statements he made to Dr. Conroe during a fitnessexamination are barred by the exclusionary language of section 104-14(a) of the fitness statute whichspecifically provides that: "Statements made by the defendant * * * in the course of any examination * * *ordered under section 104-13 * * * shall not be admissible against the defendant unless he raises the defenseof insanity * * *." 725 ILCS 5/104-14(a) (West 1992).

We note that the due process clause of the fourteenth amendment prohibits the prosecution of aperson who is unfit to stand trial. U.S. Const. amend. XIV; Medina v. California, 505 U.S. 437, 120 L.Ed.2d353, 112 S. Ct. 2572 (1992); People v. Eddmonds, 143 Ill. 2d 501, 512 (1991). As such, the fitness statutewas enacted to protect the integrity of the criminal process by establishing a defendant's fitness before anytrial process begins where fitness to stand trial may be an issue. The fitness statute was not designed as aninvestigative tool to further criminal prosecution by providing information, incriminating or otherwise, tobe used against a defendant who is being examined by a psychiatrist to resolve fitness or sanity issues. Thefitness statute is particularly designed to be used with criminal defendants. Our supreme court has held thatwhere there are two statutory provisions, one of which is designed to apply to cases generally, and the otherwhich is particular, the particular provision must prevail. Hernon v. E. W. Corrigan Construction Co., 149Ill. 2d 190, 195 (1992). Under the facts of this case, to the extent that the admissibility provision of section104-14(a) of the fitness statute of the Code of Criminal Procedure and the homicide exception to thephysician-patient privilege under section 8-802 of the Code of Civil Procedure are in conflict, we concludethat the more specific and detailed fitness scheme particularly designed for criminal cases where fitness andsanity issues are raised is controlling. Section 104-14(a) of the fitness statute prohibits the State from cross-examining defendant with statements he made to Dr. Conroe during a fitness and sanity examination wherethe defense of insanity is not raised.

B. Application of Attorney-Client Privilege to Communications By Defendant to Nontestifying

Psychiatrist Who Examined Defendant For Fitness and Sanity

In People v. Knuckles, 165 Ill. 2d 125 (1995), the supreme court addressed the issue of whether theattorney-client privilege applies to communications between a defendant who raises an insanity defense anda nontestifying psychiatrist who examines the accused at the request of defense counsel to aid in thepreparation of the defense. Although the court in Knuckles addressed the attorney-client privilege, not theapplication of the homicide exception to the physician-patient privilege, we find the case instructive. Knuckles involved facts similar to the present case where the defendant was interviewed by a psychiatristin order to assist the public defender in preparing a possible defense. However, the psychiatrist nevertestified for the defense at any court proceeding and the defense did not include the psychiatrist on its listof witnesses for trial. The defense relied on two defenses: insanity and self-defense. The State subpoenaedthe psychiatrist to testify at trial and subpoenaed the notes taken during the psychiatrist's interview with thedefendant. The trial court quashed the subpoenas and held that "* * * a psychiatrist hired by defense counselto examine the client for purposes of trial preparation is an agent of defense counsel and therefore thecommunications between the defendant and the defense-retained psychiatrist are protected by the attorney-client privilege * * * the privilege is not waived by the assertion of the insanity defense; the State is notallowed to discover or elicit the opinions and notes of the defense psychiatrist unless the psychiatrist testifiesat trial." Knuckles, 165 Ill. 2d at 129. The appellate court affirmed the trial court's ruling.

The supreme court noted the tension between two competing policies: "one that favors the broaddiscovery of relevant information and another that guards the narrow discovery exemptions, based onprivilege, which are deeply rooted in the common law and the Federal and State Constitutions." Knuckles,165 Ill. 2d at 129. The court recognized that the policies underlying the attorney-client privilege exist apartfrom and run counter to the primary goals of discovery. The supreme court cited to cases in Illinois whichrecognize that the "raison d'etre of the privilege is to secure for the client the ability to confide freely andfully in his or her attorney, without fear that confidential information will be disseminated to others." Peoplev. Adams, 51 Ill. 2d 46, 48 (1972) (client's communications are protected from disclosure unless the privilegeis waived); People v. Knippenberg, 66 Ill. 2d 276 (1977) (privilege applies to communications made todefense lawyer's investigator.)

The supreme court in affirming the trial and appellate courts noted that, in many cases, theexploration of all possible defenses will require the assistance of a psychiatric expert. Knuckles, 165 Ill.2dat 130. The court acknowledged that such an expert who is retained by the defense is not actually anemployee of that attorney in the same sense as a typist or a law clerk. Knuckles, 165 Ill. 2d at 130. However,the court also explained that psychiatric assistance is often critical to the attorney's ability to present adefense. Knuckles, 165 Ill.2d at 130-131. The court noted that most courts presented with this issue haveapplied the attorney-client privilege to statements defendants make to psychiatric experts retained by theirattorneys to aid in preparation of the defense. Knuckles, 165 Ill. 2d at 133. Thus, the court concluded that,despite the relevance of the evidence, the attorney-client privilege applies to communications between thedefense and nontestifying mental health experts. Knuckles, 165 Ill. 2d at 130. The court further pointed outthat if it were to accept the argument that the relevance of the evidence justified its admission,notwithstanding the attorney-client privilege, no claim of privilege could ever prevail because the exceptionwould devour the rule:

"[W]e hold that the attorney-client privilege applies to communicationsbetween the defense and nontestifying mental health experts retained by thedefense to probe the defendant's mental condition in anticipation of relevantdefenses. We further hold that the privilege is not waived merely by theassertion of defenses which place the defendant's mental condition in issue. Finally, we decline to adopt a generalized public interest exception in thecase at bar to allow the State's interest in gathering evidence to overcomethe attorney-client privilege." Knuckles, 165 Ill. 2d at 145.

The question resolved by the Knuckles court was whether communications by defendant made to anexpert witness, such as a psychiatrist, whose engagement by the defense is necessary to the preparation ofan insanity defense, are protected by the attorney-client privilege. Knuckles, 165 Ill. 2d at 130. Here, as inKnuckles, defendant was referred to a psychiatrist for the purpose of exploring a possible insanity defenseand to address fitness. Further, similar to Knuckles, the record reflects that the defense did not include Dr.Conroe on its list of witnesses to be called. In Knuckles, even though an insanity defense was to be presentedthe supreme court found that the attorney-client privilege applied to communications between the defendantand nontestifying mental health experts. Knuckles, 165 Ill. 2d at 130. The court made it clear that "theprivilege is waived only with respect to the testimony and reports of those experts who are identified by thedefense as witnesses, who will be called to testify on behalf of the defendant at trial, or whose notes andreports are used by other defense experts who testify." Knuckles, 165 Ill. 2d at 139.

Here, application of the privilege is even more justified because although defendant was referred toDr. Conroe for purposes of the defense exploring the possibility of an insanity defense, unlike Knuckles, noinsanity defense was ever presented. Dr. Conroe was not identified by the defense as a witness, the defensenever called Dr. Conroe as a witness, and his notes and reports were in no way used by any other defenseexperts or defense witnesses. Therefore, under the facts of this case, applying the Knuckles analysis, theState's use of the defendant's statements to Dr. Conroe violated the attorney-client privilege since thestatements were made by defendant to a nontestifying mental health expert during an examination todetermine defendant's fitness and sanity.

We are mindful of the public interest in the truth finding process. In this case where the State'sability to prove defendant guilty beyond a reasonable doubt will in no way be hampered by the State beingprohibited from cross-examining defendant with statements he made to Dr. Conroe, a nontestifying defensewitness, we find no reason for the attorney-client privilege to yield to the public interest in the truth findingprocess. There is nothing in this record to indicate that application of the attorney-client privilege therebyexcluding the State from cross-examining defendant with statements he made to Dr. Conroe will deprive thetrier of fact of valuable evidence so as to undermine the public interest in the administration of justice. Wedecline to adopt a generalized public interest exception under the facts of this case to allow the State'sinterest in using the defendant's statements to overcome the attorney-client privilege.

Finally, extending the homicide exception to the facts of this case and allowing it to trump theconfidentiality provided by the fitness statute and the protection afforded by the attorney-client privilegewould create an unsolvable dilemma for defense counsel by placing the right to effective counsel at odds withfitness and sanity examinations. Defense counsel who decided to pursue the possibility of an insanitydefense could expose his client to the risk of providing incriminating information to the prosecution andthereby violate his client's sixth amendment right to the effective assistance of counsel. In Knuckles thesupreme court noted that the essence of the sixth amendment right to counsel is privacy of communicationwith counsel and found no reason to depart from that view. Knuckles, 165 Ill. 2d at 137. The "centrality ofopen client and attorney communication to the proper functioning of our adversary system of justice"mandates application of the attorney-client privilege. United States v. Zolin, 491 U. S. 554, 562, 105 L.Ed.2d469, 485, 109 S. Ct. 2619, 2626 (1989). While the attorney client privilege is not given expressconstitutional protection it is inextricably related to the right to counsel under the sixth amendment.

The supreme court recognized the importance of the relationship between the sixth amendment rightto counsel and the attorney-client privilege in People v. Knippenberg, 66 Ill. 2d 276, 285 (1977). InKnippenberg, a communication by the defendant to a defense investigator was used at trial by the prosecutionto impeach the defendant. The court emphasized that lawyers have a duty to fully investigate their clients'case and held that an investigator's interview with the client, at the request of defense counsel, is protectedby the attorney-client privilege. Knippenberg, 66 Ill. 2d at 284 (1977). The supreme court concluded thatthe use of the communication by the state to impeach the defendant was" * * * prejudicial error of anintolerable character and violated the defendant's constitutional assurance of the effective assistance ofcounsel under the sixth amendment and to a fair trial under the due process clause of the fourteenthamendment." Knippenberg, 66 Ill. 2d at 285 (1977). Here, the statements of the defendant made to thenontestifying psychiatrist during an examination for fitness and sanity are protected by the attorney-clientprivilege which is inextricably related to the defendant's sixth amendment right to counsel.

We conclude the statements made by defendant to Dr. Conroe, a nontestifying psychiatrist, duringthe defendant's examination for fitness and sanity may not be used by the State to cross-examine defendantas admissions against interest or as impeachment under the homicide exception to the physician-patientprivilege because the plain language of the fitness statute section 104-14(a), prohibits the statements madeby defendant to Dr. Conroe from being admitted against the defendant. 725 ILCS 5/104-14(a) (West 1992). The exception to the use of such statements as provided by the fitness statute does not apply here as thedefense of insanity or drugged or intoxicated condition was not raised. 725 ILCS 5/104-14(b) (West 1992). Moreover, under the holding in Knuckles, the cross-examination of defendant with statements he made toa nontestifying psychiatrist during a fitness and sanity examination was a violation of the attorney-clientprivilege. Knuckles, 165 Ill. 2d at 130. Under Knippenberg, the cross-examination of defendant withstatements he made to a nontestifying psychiatrist during a fitness and sanity examination was a violationof defendant's constitutional assurance of the effective assistance of counsel under the sixth amendment andto a fair trial under the due process clause of the fourteenth amendment. Here, where no insanity defensewas raised, Dr. Conroe was not called as a defense witness, and Dr. Conroe's notes were not used by anydefense witness, the trial court abused its discretion by allowing the State to cross-examine defendant withstatements made by defendant to Dr. Conroe during a fitness and sanity examination. Such cross-examination will not be allowed on retrial. The prosecution is also prohibited from making any referencein closing argument regarding defendant's statements to Dr. Conroe in which he failed to mention the skateand in which he described the fight with the victim as involving only fists. II. PRIOR BAD ACTS

Defendant contends that the trial court erred in allowing the State to impeach his testimony

with evidence that he allegedly battered the victim three months prior to killing her. In a pretrial motion, theState argued that the prior domestic violence was admissible to show defendant's antagonistic and hostilenature as well as his intent to kill or do great bodily harm to the victim. In addressing the defense objection,the trial court stated:

"The State wants to introduce testimony that some three monthsprior to the murder, the victim's mother arrived at the victim's home andobserved bruises upon the victim's face, and how the victim had told themother how she received those bruises and how a complaint was filed andthe emergency order of protection was obtained. * * * [E]vidence wouldbe hearsay and not be allowed in the State's case in chief. However, thecourt is of the opinion it would be probative for impeachment purposes ifthere was a defense of self defense, or for some other reason, to show thebad attitude towards the victim in this particular case. * * * So again, thatevidence may be relevant and reliable again in impeachment, but not in theState's case in chief. "