APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. RICHARD J. FITZGERALD, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
The defendant, Edward Hinton, filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) in the circuit court of Cook County to vacate his prior conviction in that court for attempted murder and armed robbery. After a hearing his petition was denied, and on appeal the Appellate Court, First District, affirmed. People v. Hinton (1971), 132 Ill. App. 409, 270 N.E.2d 93. We granted leave to appeal.
The defendant and three others were charged in five separate indictments with the commission of a series of criminal acts at different locations in Chicago between the hours of 1 A.M. and 3 A.M. on May 21, 1967. In point of time the various acts apparently occurred in the same order as the numerical sequence of the indictment numbers. No. 67-1961 charged the murder of Dwight Wynne; No. 67-1967 charged aggravated battery on the person of Cleveland Wells; No. 67-1968 charged attempted murder and robbery of John Hall and Lily Starkey; No. 67-1969 charged attempted murder and armed robbery of Mr. and Mrs. J.C. Your, Lorenzo Loving and Jerome Sauls; and No. 67-1970 charged robbery of Mr. and Mrs. Delton Bailey. For purposes of this opinion these indictments will be referred to as indictments 1 through 5 respectively.
The State chose to proceed first on indictment 4 which charged attempted murder and armed robbery of Mr. and Mrs. Your, Lorenzo Loving and Jerome Sauls. Counsel was appointed to represent the defendant, and he entered a plea of not guilty. On June 15, 1967, the court ordered a Behavior Clinic examination of the defendant for the purpose of ascertaining his competency to stand trial. On June 29, 1967, William H. Haines, M.D. filed his report of psychiatric examination which concluded with the diagnosis: "Sociopathic Personality Disturbance. He knows the nature of the charge and is able to cooperate with his counsel."
During a pretrial appearance in court to seek a continuance, defendant was found guilty of direct contempt of court for what the court found to be unprovoked assault on a deputy sheriff in the courtroom. Thereafter, additional motions for psychiatric examination were made and allowed, and on January 10, 1968, another order was entered by the court directing a further Behavior Clinic examination to determine competency and sanity. Defendant was again examined by Dr. Haines who filed another report of psychiatric examination on January 31, 1968. The report made reference to information obtained from another agency which knew him from 1961 until 1966 to the effect that defendant was "an emotionally immature, inadequate, hostile, narcissistic youth who had a medical background of asthma and headaches." Although he lacked training, supervision and guidance, "his formal mental status disclosed no defects in the sensorium, orientation or memory" and "he was not mentally ill and not in need of mental treatment in a psychiatric facility." As in the case of the previous report, the diagnosis was: "Sociopathic Personality Disturbance. He knows the nature of the charge and is able to cooperate with his counsel."
Prior to commencement of the trial on April 23, 1968, the Behavior Clinic reports were made a part of the record and the following colloquy took place between the trial judge and defense counsel:
"The Court: It is your opinion, based upon your conversations 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."
The trial then commenced. There was testimony that at about 2:30 A.M. on May 21, 1967, Mr. and Mrs. Your were returning home from a party when they were stopped on the street by the defendant and three other persons with guns drawn. Defendant held his gun to Mr. Your's back and said "hold it, this is a holdup." Mr. Your told his wife to be quiet. At this point two young men, Lorenzo Loving and Jerome Sauls, happened by on the street and were also stopped by defendant and his companions. Mr. and Mrs. Your, Loving and Sauls were searched by the four men. Eighty-five dollars in cash was taken from Mr. Your. Defendant took Mrs. Your's purse and removed a bottle of whiskey from it. He then searched her person, and upon finding no money, he said, "We might as well shoot that bitch because she ain't got no money."
Defendant then shot Mrs. Your first in the face and then in the back. Mr. Your pleaded, "don't hurt my wife, shoot me if you want to hurt anybody," whereupon defendant shot Mr. Your in the back. All four of the assailants then started shooting which resulted in Mr. Your being shot three more times in the neck, head and arm. Loving and Sauls were also shot. Defendant and his compansions the fled with the money and other items they had taken from the victims.
Defendant presented an alibi defense. He testified that on Friday and Saturday, May 19 and 20, he helped some friends named Robinson move furniture to a new house and that he was at their house early the following morning when the incidents in question took place. The three co-defendants, who were friends of his, came to the house in the early morning hours of May 21, 1967, but they left at about 2 A.M. Defendant remained at the Robinson house until about 2:45 A.M. when he left and took the bus to his home to wash up and change clothes. He then returned to the Robinson house at about 5:30 A.M. He denied any involvement in the crimes he was charged with committing.
On April 25, 1968, the jury returned a verdict of guilty as to four counts of attempted murder and four counts of armed robbery, and defendant was sentenced to the penitentiary for concurrent terms of 15 to 20 years and 40 to 60 years respectively. About one year later, in May of 1969, the defendant was tried on indictments 2, 3 and 5. In that trial he interposed an insanity defense, and he was found not guilty as to indictment number 2 and not guilty by reason of insanity as to indictments number 3 and 5. The jury also found that the defendant was still insane at that time, and he was committed to the Department of Mental Health in May, 1969. Defendant's section 72 motion alleges that he was released from the Department of Mental Health on the same date and transferred to the Cook County jail to await transfer to the penitentiary to begin serving the sentence imposed on his prior conviction on indictment number 4.
The purpose of a section 72 petition is to permit the vacation of judgments where facts existed which, had they been known at the time judgment was entered, would have prevented its rendition. The various types of error of fact which the petition may be employed to correct include such matters as death of a party pending suit and before judgment, infancy where the party is not properly represented, incompetency at the time of trial, and a valid defense which was not made due to duress, fraud or excusable mistake. (Glenn v. People (1956), 9 Ill.2d 335; People v. Quidd (1951), 409 Ill. 137; Schroers v. People (1948), 399 Ill. 428.) The gist of defendant's section 72 petition and his argument in support thereof is that he was insane at the time of commission of the crimes charged in indictment 4; that he was also insane at the time of his trial on that indictment; and that the second jury's finding that he was not guilty by reason of insanity as to indictments 3 and 5 and the various factors on which these findings were based were "facts" which, if known, would have precluded the court's entering judgment on the jury's verdict of guilty at the first trial.
The principal issues raised by the record and pleadings before us are twofold: (1) Did the defendant's section 72 petition and supporting evidence establish facts which create a bona fide doubt that defendant was competent to stand trial at the first trial; and (2) do the constitutional mandates of due process of law and the provisions of section 72 require that the defendant's conviction in the first trial on indictment 4 where he did not raise the defense of insanity be ...