APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
This is an appeal from the denial of defendant Edward Hinton's Section 72 petition to vacate his conviction under indictment No. 67-1969. A series of criminal acts was committed on May 21, 1967, between the hours of one and three A.M., for which defendant Edward Hinton was indicted. The order of these criminal acts in this two hour period is reflected in the chronology of the indictment numbers.
Indictment No. 67-1961 charged Edward Hinton with the murder of Dwight Wynne. Indictment No. 67-1967 charged Edward Hinton with aggravated battery on the person of Cleveland Wells. Indictment No. 67-1968 charged Edward Hinton with the attempted murder and robbery of John Hall and Lily Starkey. Indictment No. 67-1969 charged Edward Hinton with the attempted murder and armed robbery of Mr. and Mrs. J.C. Your, Lorenzo Loving and Jerome Sauls. Indictment No. 67-1970 charged Edward Hinton with the robbery of Mr. & Mrs. Delton Bailey.
The State elected to proceed on indictment No. 67-1969, the attempted murder and armed robbery of J.C. Your, Rosie Lee Your, Lorenzo Loving, and Jerome Sauls, first. Defendant Hinton pleaded not guilty and was tried on April 25, 1968. He was found guilty by a jury as to four counts of attempted murder and four counts of armed robbery and was sentenced to the penitentiary to concurrent sentence of 15-20 years and 40-60 years respectively. There was a second trial in May of 1969 in which the prosecution tried defendant Hinton on indictment Nos. 67-1967, 67-1968 and 67-1970. A jury found the defendant not guilty as to indictment No. 67-1967. The jury also found the defendant not guilty by reason of insanity as to indictments 67-1968 and 67-1970.
In August of 1969, defendant filed a petition to vacate his conviction under indictment 67-1969 pursuant to Section 72 of the Illinois Civil Practice Act. This appeal comes from a denial of that petition. Defendant contends on appeal: (1) he was denied due process of law by the trial court's failure to conduct a competency hearing; (2) he was denied his right to counsel by the failure of appointed counsel to request a competency hearing; and (3) he was improperly denied relief under Section 72 of the Civil Practice Act since at his subsequent trial he was adjudicated insane at the time of the crime.
The facts adduced at the April, 1968 trial are as follows: On May 21, 1967, at about 2:30 in the morning, Mr. & Mrs. J.C. Your were coming home from a party. They were dropped off by friends near the corner of Lexington and Central Park in the City of Chicago. They intended to walk over to Central Park to a barbeque place to get something to eat to take back to their home. As they crossed the intersection of Lexington and Central Park, four male Negroes approached them with guns drawn. One of them, Edward Hinton, put his gun to Mr. Your's back and said, "hold it, this is a stickup." Mrs. Your evidenced some fright, and her husband said, "it's all right, this is a stickup, they've got guns, don't say anything, be quiet." While the four young men confronted Mr. and Mrs. Your, two other young men, Lorenzo Loving and Jerome Sauls, walked toward the six people. Loving had a pair of roller skates slung over his shoulders and Sauls was carrying a transistor radio. The two were coming from a roller skating rink on Madison Street.
As the two approached, one of the four men stopped Loving and Sauls, and said, "this is a stickup." Hinton and the other three then forced all of these people, Jerome Sauls, Lorenzo Loving and Mr. & Mrs. Your to a basement-way at 3541 West Lexington where they were told to line up against the wall with their hands up against the wall. Each of the four complied. Then the four men searched the Yours, Sauls, and Loving. They took $85.00 from Mr. Your and some three dolars in change. A couple of quarters fell to the ground and Edward Hinton said, "where did that god damn money come from?" Hinton turned his attention to Mrs. Your, removed the purse from her arm and took a bottle of whiskey from it. Finding no money in the purse Hinton reached into Mrs. Your's bosom, but found no money there either. Hinton then turned to his companions and said, "shoot that bitch, she ain't got no money."
At that, Mr. Your looked at Edward Hinton and saw him fire his gun into his wife's face. As Mr. Your clutched his wife, Hinton shot her again, this time in the back. Mr. Your pleaded, "don't hurt her, don't hurt her, shoot me", whereupon Hinton shot Mr. Your in the center of the back. Then all four started shooting. Mr. Your was shot three more times, in the neck, in the side of the head and in the arm. Lorenzo Loving cried out, "don't shoot, please don't shoot" but he and Jerome Sauls were also shot. Edward Hinton and his companions then fled with the money, the radio and the roller skates.
• 1-3 Defendant's first contention is that he was denied due process of law by the trial court's failure to conduct a hearing on his competency to stand trial. An incompetent person is one who is unable, because of a mental condition, to understand the nature and the purpose of proceedings against him or to assist in his defense. (Ill. Rev. Stat. 1967, ch. 38, par. 104-1.) The Illinois Supreme Court requires the trial judge to conduct a hearing on the defendant's competency where the evidence raises a "bona fide doubt" of his competency to stand trial. (People v. Shrake (1962), 25 Ill.2d 141, 182 N.E.2d 754.) Even where counsel does not suggest the incompetency of the defendant, where facts are brought to the attention of the court raising a bona fide doubt as to the defendant's competency, it becomes the duty of the court not to proceed until a jury has been empaneled and the doubt removed by a sanity hearing. People v. Shrake, supra, and People v. Wilson (1963), 29 Ill.2d 82, 193 N.E.2d 449.
In the instant case, defense counsel did not suggest that the defendant was incompetent. Before trial, the judge asked defense counsel:
"THE COURT: It is your opinion, based upon your conversation with him, that he knows the nature of the charge pending against him and is able to cooperate with you?
DEFENSE COUNSEL: Yes sir, he can cooperate, yes, sir. I have been satisfied right along on that."
Also before trial the State incorporated into the record two reports from the Behavior Clinic regarding the competency of the defendant to stand trial. The reports, based on two psychiatric examinations of the defendant, reveal a diagnosis of sociopathic personality disturbance evidenced by emotional immaturity and lack of training and guidance. The reports conclude the defendant knows the nature of the charge and is able to cooperate with his counsel.
• 4-7 The quoted colloquy and the reports were the only evidence brought to the attention of the trial court regarding defendant's competency. No claim was made at any time that defendant was insane. Defendant took the stand in his own defense and stood up well under cross-examination. Nothing in his testimony or demeanor suggests a lack of mental capacity. We see nothing in these facts which establishes such bona fide doubt of defendant's competency as to have required the trial court to cause a sanity hearing to be held. The fact that defendant may possess a sociopathic personality and suffer from psychiatric and social disturbances does not create a bona fide doubt of his competency. (People v. Hammond (1970), 45 Ill.2d 269, 259 N.E.2d 44.) Furthermore, a second jury's adjudication of defendant as insane at the time of other offenses is not, as defendant contends, a fact existing at the time of defendant's trial, which if presented to the court would have raised a bona fide doubt as to his competency. An adjudication of insanity at the time ...