Docket No. 83281-Agenda 2-May 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ANTHONY MITCHELL, Appellant.

Opinion filed January 27, 2000.

JUSTICE RATHJE delivered the opinion of the court:

A jury convicted defendant, Anthony Mitchell, of two counts of first degree murder. The same jury also determined that defendant was eligible for the death penalty and that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the circuit court of St. Clair County sentenced defendant to death.

On direct review, we affirmed defendant's conviction and sentence. People v. Mitchell, 152 Ill. 2d 274 (1992) (Mitchell I). The United States Supreme Court denied defendant's petition for a writ of certiorari. Mitchell v. Illinois, 508 U.S. 962, 124 L. Ed. 2d 685, 113 S. Ct. 2936 (1993). On December 7, 1993, defendant filed a petition for post-conviction for relief, and on May 16, 1996, defendant filed an amended petition. The State moved to dismiss the amended petition without an evidentiary hearing. Defendant then filed three additional claims for post-conviction relief, based on this court's decisions in People v. Brandon, 162 Ill. 2d 450 (1994), and People v. Nitz, 173 Ill. 2d 151 (1996). The court allowed the State's motion to dismiss to stand against the additional counts. The court granted the State's motion to dismiss, and this appeal followed. Because the judgment challenged in defendant's petition imposed a sentence of death, the appeal was taken directly to this court. 134 Ill. 2d R. 651(a).

BACKGROUND

Defendant's convictions arose from the stabbing deaths of teenagers David and Dawn Lieneke in July 1989. The facts detailing the crime and the investigation leading to defendant's arrest are set out in our original opinion, and we provide only a brief summary here. Additional facts will be noted where necessary to address the particular arguments defendant raises.

David and Dawn lived with their grandparents. On the evening of July 4, 1989, their grandparents were out playing bingo. The grandparents returned home at approximately 10:30 p.m. and found David's and Dawn's dead bodies. Eighteen-year-old David was lying in a pool of blood in the hallway. He had been stabbed seven times. The wounds were large and deep, and David had died from blood loss caused by a stab wound to the liver and from the collapse of both lungs, due to a stab wound to his chest. Thirteen-year-old Dawn was lying in a pool of blood on her grandmother's bed. She also had seven stab wounds in her body, including one that went through the right temple and penetrated her brain. Dawn bled to death from knife wounds to the aorta and liver.

The police located defendant by tracing the license plate number of his sister's car. Defendant had been driving that car on the night of the murders. Witnesses had spotted the car at the scene. Defendant confessed to the crime, explaining that he had gone to the Lieneke's house looking for Viroon Williams, whom defendant claimed had tried to run him down with a car the day before and who had stolen a VCR, radio, and video game from defendant's mother's house. Williams sometimes stayed with the Lienekes. Defendant went into the house and stabbed David, and then killed Dawn when she screamed his name and ran into the bedroom. David was still alive and was threatening to tell Williams, so defendant stabbed him again.

In addition to defendant's confession, the State relied upon the testimony of Maurice Douglas, who was with defendant on the night of the murders. Defendant showed the bloody knife to Douglas and told him that he had just killed two persons. The police recovered the murder weapon-a survival knife-from defendant's basement. The knife had blood on it, and the blood was consistent with a mixture of David's and Dawn's blood. The police also recovered black clothes and a pair of two-toed shoes. Blood on a pair of pants recovered from defendant's basement was consistent with Dawn's blood. One of the two-toed shoes matched a shoe print that was left in the mud near where defendant's sister's car was seen parked in the victims' neighborhood.

Defendant testified and denied any involvement in the crime. Defendant's testimony suggested that Williams was the murderer. Defendant denied owning the clothes or the knife, but said that Williams had an outfit like the one recovered and that he had seen Williams with the knife. Defendant denied showing the knife to Douglas or saying that he killed two persons. Defendant testified that the police made him sign the confession by raising their voices.

Defendant was convicted of the murders and sentenced to death. After his convictions and sentence were affirmed by this court and his petition for a writ of certiorari to the United States Supreme Court was denied, defendant filed a post-conviction petition. As twice amended, defendant's post-conviction petition contained 28 counts. Eleven counts, however, restated constitutional arguments that were rejected on direct appeal. In dismissing the petition without an evidentiary hearing, the trial court ruled that the majority of defendant's claims were barred by waiver and res judicata. As to defendant's claims of ineffective assistance of counsel, the court ruled that defendant had not made a substantial showing that his constitutional rights had been violated.

The trial court found merit to one of defendant's claims based on Brandon and Nitz. Defendant argued that at the time of his trial and sentencing he was taking two medications to control his epilepsy-Depakote and Phenobarbital-and that these medications were psychotropic. Defendant contended he was denied due process when he did not receive a fitness hearing and that he received the ineffective assistance of counsel when his trial and appellate attorneys failed to invoke his right to such a hearing. The trial court agreed that Depakote was psychotropic medication and that defendant therefore would have been entitled to a fitness hearing. See Ill. Rev. Stat. 1989, ch. 38, par. 104-21(a); Brandon, 162 Ill. 2d 450. However, the trial court ruled that defendant could not prevail on this claim because he was seeking to benefit from the retroactive application of a "new rule" announced in Brandon.⁽¹⁾ The court based its analysis on Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989); and People v. Flowers, 138 Ill. 2d 218 (1990), which held that, except in certain limited situations, new constitutional rules of criminal procedure are not applied retroactively to cases pending on collateral review. Accordingly, the trial court dismissed defendant's petition without an evidentiary hearing. Defendant raises six issues on appeal.

ANALYSIS

Standard of review

A petition filed pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1998)) is a collateral attack on a prior conviction and sentence. People v. Mahaffey, 165 Ill. 2d 445, 452 (1995). To obtain relief under the Act, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that produced the judgement being challenged. 725 ILCS 5/122-1(a) (West 1998); People v. Tenner, 175 Ill. 2d 372, 378 (1997).

An evidentiary hearing on the petition is required only when the allegations of the petition, supported by the trial record and the accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Hobley, 182 Ill. 2d 404, 428 (1998). For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in the supporting affidavits are to be taken as true. People v. Caballero, 126 Ill. 2d 248, 259 (1989). If the circuit court determines that the petition should be dismissed without an evidentiary hearing, its judgment is subject to de novo review. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

Psychotropic Medication

Defendant argues that he was denied due process when he did not receive a hearing to determine his fitness for trial while under medication. The statute in effect at the time of his trial provided, in part, as follows:

"A defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication." Ill. Rev. Stat. 1989, ch. 38, par. 104-21(a).

Defendant further argues that he received the ineffective assistance of counsel when his trial attorney failed to invoke his right to a fitness hearing and when his counsel on direct appeal failed to raise the due process and ineffective assistance of counsel arguments as they related to his failure to receive a section 104-21(a) fitness hearing.

The factual basis for defendant's claim, as provided in his post-conviction petition and the accompanying affidavits, is as follows. Defendant has suffered from epilepsy since the age of six, when he suffered a head injury. To control his seizures, defendant has been taking medications for many years. During his trial and sentencing, defendant's epilepsy medications were Depakote and Phenobarbital. The trial court was aware that defendant was taking medication for epilepsy.

The Physicians' Desk Reference categorizes Depakote as an "antimanic agent," which is a subcategory of "psychotherapeutic agents."⁽²⁾ Physicians' Desk Reference 215 (53d ed. 1999) (PDR). Defendant attached to his petition the affidavit of Dr. James O'Donnell, a pharmacology consultant. O'Donnell states in the affidavit that Depakote and Phenobarbital are both central nervous system depressants that are prescribed to prevent epileptic seizures. O'Donnell lists the probable side effects of the drugs as "sedation, hallucinations, dizziness, incoordination, depression, emotional changes and behavioral deterioration, psychosis and aggression." O'Donnell further states that "[t]he combination of the effects of both of these drugs can cloud the sensorium (alter the ability to think clearly) and thus effect [sic] any individual's ability to make certain decisions." O'Donnell concludes that "[t]he overall sedative effect may have caused Mr. Mitchell to appear too relaxed or too detached during court proceedings."

Before deciding the merits of defendant's arguments, we address the State's contention that Phenobarbital and Depakote are not psychotropic medications. In People v. Britz, 174 Ill. 2d 163, 198 (1996), we adopted the definition of "psychotropic medications" found in the Mental Health and Developmental Disabilities Code:

" 'Psychotropic medication' means medication whose use for antipsychotic, antidepressant, antimanic, antianxiety, behavioral modification or behavioral management purposes is listed in AMA Drug Evaluations, latest edition, or Physicians's Desk Reference, latest edition, or which are administered for any of these purposes." 405 ILCS 5/1-121.1 (West 1998).

We further relied on the definition given by the United States Supreme Court in Washington v. Harper, 494 U.S. 210, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990):

"[P]sychotropic drugs are 'medications commonly used in treating mental disorders such as schizophrenia,' the effect of which is 'to alter the chemical balance in the brain, the desired result being that the medication will assist the patient in organizing his or her thought processes and regaining a rational state of mind.' " Britz, 174 Ill. 2d at 198, quoting Washington, 494 U.S. at 214, 108 L. Ed. 2d at 193, 110 S. Ct. at 1032.

The trial court found that Depakote was a psychotropic drug, but that Phenobarbital was merely "an anticonvulsant barbiturate." We agree that Depakote falls within the purview of section 104-21(a)'s reference to "psychotropic drugs or other medications." Ill. Rev. Stat. 1989, ch. 38, par. 104-21(a). Depakote is listed in the PDR as a psychotherapeutic antimanic agent and thus clearly falls within the Britz definition. Further, Dr. O'Donnell stated in his affidavit that the combination of Depakote and Phenobarbital could affect the individual's ability to think clearly and to make certain decisions. We thus agree with defendant that his ingestion of Depakote would have entitled him to a fitness hearing under section 104-21(a). This conclusion renders unnecessary a discussion of whether Phenobarbital fits the Britz definition.

Our decision is not in conflict with People v. Kidd, 175 Ill. 2d 1 (1996), another case in which a defendant argued that his epilepsy medication was a psychotropic drug. In Kidd, the defendant was taking Dilantin to control his seizures. We applied the Britz definition and held that Dilantin was not psychotropic medication because its use for psychotropic purposes was not listed in the PDR or the AMA Drug Evaluations. Further, it was not being administered to the defendant for psychotropic purposes. Kidd, 175 Ill. 2d at 17-19. By contrast, Depakote is listed in the PDR as a psychotherapeutic antimanic medication, and thus falls squarely within the Britz definition.

We turn now to the merits of defendant's arguments. Defendant argues that the trial court erred in finding that Brandon could not be applied retroactively to cases pending on collateral review, and points out that Nitz and People v. Neal, 179 Ill. 2d 541 (1997), were both cases in which this court applied Brandon in post-conviction cases. The State counters that it did not raise the Flowers/Teague retroactivity rule in those cases and therefore this court has not yet ruled on this issue. According to the State, the Flowers/Teague rule bars application of Brandon to petitioner's case. We need not address this issue, however, as we believe that the dismissal of defendant's psychotropic medication claims was proper for other reasons.

Due Process

We first address defendant's argument that he was denied due process when he did not receive the fitness hearing to which he was entitled. Petitioner's claim-that denial of a section 104-21(a) fitness hearing is a denial of due process-has its genesis in Nitz. In Nitz, the defendant raised a Brandon issue for the first time in a post-conviction petition. The State argued that Brandon was not applicable because the defendant did not argue that he received the ineffective assistance of counsel. Thus, the defendant's claim was lacking a constitutional foundation. We rejected the State's argument and held that the court's failure to follow the relevant statutory procedures resulted in a due process violation to the defendant. Nitz, 173 Ill. 2d at 160-61.

The reasoning in Nitz was as follows. The due process clause of the fourteenth amendment prohibits the prosecution of a defendant who is unfit for trial. U.S. Const., amend. XIV; Medina v. California, 505 U.S. 437, 120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992). Where information raises the possibility that an accused is incompetent, the failure to inquire concerning competency violates the accused's due process rights. Pate v. Robinson, 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966) (holding that the Illinois court's failure to invoke the relevant statutory procedures deprived the defendant of an inquiry concerning his fitness to stand trial, and defendant therefore suffered a due process violation). The relevant statute-section 104-21(a)-provides for a fitness hearing, and therefore the court's failure to invoke it denied defendant an inquiry into his fitness for trial and consequently denied him due process. Nitz, 173 Ill. 2d at 155-61.

Nitz correctly recognized that due process does not mandate a particular procedure for an inquiry into fitness; it requires only that there be an adequate procedure to implement the right to an inquiry. Nitz, 173 Ill. 2d at 160, citing Drope v. Missouri, 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975). Nitz further correctly recognized that the particular procedures to be invoked are purely by legislative design and that the right to a particular procedure is wholly statutory. Nitz, 173 Ill. 2d at 160.

Although we recognized in Nitz that defendant's right to section 104-21(a)'s procedure was wholly statutory, we reached the somewhat contradictory conclusion that the trial court's failure to invoke the statute denied defendant due process. The relevant passage in Nitz is our conclusion that, "Here, as in Pate, because no procedure was invoked, defendant was denied inquiry into the issue of his fitness. Due process was thereby denied." Nitz, 173 Ill. 2d at 161. This conclusion does not follow from the recognition that the particular procedure to be invoked is purely by legislative design and that defendant's right to that procedure is wholly statutory. Three members of the court dissented in Nitz, on the basis that a defendant's right to a section 104-21(a) fitness hearing was statutory and that the court was creating a constitutional deprivation where none existed. See Nitz, 173 Ill. 2d at 165-66 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). The dissent concluded that defendant's petition (which did not argue ineffective assistance of counsel) should have been dismissed because it lacked a constitutional foundation. After careful consideration and reevaluation, we have determined that the dissent's position in Nitz was correct and that this court erred in holding that a denial of a section 104-21(a) fitness hearing was in and of itself a due process violation.

In Nitz, we failed to distinguish the United States Supreme Court's decision in Pate. In that case, the Supreme Court held that the defendant should have received a fitness hearing because the evidence introduced on his behalf established a bona fide doubt of his fitness. Pate, 383 U.S. at 385, 15 L. Ed. 2d at 822, 86 S. Ct. at 842. The court's failure to inquire into the defendant's fitness in the face of evidence establishing a bona fide doubt of his fitness deprived the defendant of his constitutional right to a fair trial. Pate, 383 U.S. at 385, 15 L. Ed. 2d at 822, 86 S. Ct. at 842. The Supreme Court later explained its Pate holding in Drope:

"In Pate v. Robinson, 383 U.S. 375[, 15 L. Ed. 2d 815, 86 S. Ct. 836] (1966), we held that the failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Although in Robinson we noted that Illinois 'jealously guard[ed] this right,' id., at 385, we held that the failure of the state courts to invoke the statutory procedures deprived Robinson of the inquiry into the issue of his competence to stand trial to which, on the facts of the case, we concluded he was constitutionally entitled. The Court did not hold that the procedure prescribed by Ill. Rev. Stat., ch. 38,