APPEAL from the Circuit Court of Hardin County; the Hon. JOHN
D. DAILY, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendant, Harley Butler, from an order entered by the circuit court of Hardin County denying defendant's petition for post-conviction relief without an evidentiary hearing.
On November 14, 1961, the defendant was found guilty of burglary by a jury in the circuit court of Hardin County, and was sentenced to 10 years to life imprisonment. On October 11, 1965, the defendant filed a pro se notice of appeal and motion for leave to appeal which were denied by the Illinois Supreme Court. On September 29, 1966, the defendant filed a pro se post-conviction petition in the trial court which was accompanied by a motion that he be allowed to proceed in forma pauperis and that counsel be appointed to represent him in that proceeding. The gist of that petition was that he was denied due process of law in that his trial attorney was prevented by law enforcement authorities from having pretrial interviews with an accomplice who testified for the State at defendant's trial. This accomplice was allegedly held in custody before and throughout the trial. On December 19, 1966, the trial court, without appointing counsel, denied defendant's post-conviction petition and found that the supreme court's dismissal of defendant's motion for leave to appeal was res judicata as to defendant's request for a post-conviction hearing. The defendant appealed the trial court's denial of his post-conviction petition to the Illinois Supreme Court. The supreme court reversed (People v. Butler (1968), 40 Ill.2d 386, 240 N.E.2d 592) and remanded for a determination of indigence and, upon a determination of indigence, for the appointment of counsel. The supreme court specifically found that "the post-conviction petition was not barred by our [its] dismissal of the untimely attempt to take a pro se appeal." (40 Ill.2d at 388, 240 N.E.2d 593.) On January 19, 1971, defendant, with the aid of appointed counsel, filed his supplemental petition for post-conviction hearing in the trial court. Among the added allegations were: that the court-appointed trial counsel acted incompetently; that certain jury instructions were incurably prejudicial; that the sheriff, who testified for the State, was in charge of the jury; and that defendant's sentence of 10 years to life constituted cruel and unusual punishment. The State made a motion to dismiss and, on September 16, 1971, the trial court entered an order granting said motion and denying defendant's supplemental petition witthout an evidentiary hearing. The present appeal is from that dismissal.
The defendant raises six contentions in this appeal; first, that he was denied his right to adequate representation by appointed counsel at his trial; secondly, that the incompetency of his counsel at trial requires that the Post-Conviction Hearing Act "provide a proper vehicle for review of those issues as to which review by direct appeal has been unconstitutionally denied by deprivation of the right to appeal"; thirdly, that the trial court erred in refusing "to recognize that the jury was improperly influenced by its bailiff and that defendant was thereby denied a fair trial"; fourthly, that the sheriff's office impeded the preparation and presentation of a "proper defense"; fifthly, that the defendant's conviction must be reversed "because the jury in returning its verdict of guilt did not presume him innocent and did not find him guilty beyond a reasonable doubt"; and lastly, that the defendant's sentence of 10 years to life imprisonment for the offense of "simple burglary" must be reduced.
• 1 The defendant correctly points out that in order to sustain a showing of incompetence of trial counsel sufficient to warrant a reversed conviction, the defendant must clearly establish, (1) actual incompetence by the trial attorney in the performance of his duties, and (2) substantial prejudice, without which the outcome would probably be different. (People v. Morris (1954), 3 Ill.2d 437, 121 N.E.2d 810.) The same standard is applicable in a post-conviction hearing. People v. Stepheny (1970), 46 Ill.2d 153, 263 N.E.2d 83.
Under the defendant's contention of inadequate representation of counsel he alleges at least seven separate instances of incompetency. The general response of the State to these allegations has been to reiterate the heavy burden placed upon the defendant to show a lack of a fair trial due to incompetence of counsel under the Morris test and to suggest that the defendant's appointed counsel committed "at worst, a few minor mistakes." As noted in defendant's reply brief, the State has failed to respond to certain of the alleged instances of incompetency advanced in defendant's main brief. While the defendant contends that each of the alleged instances of incompetence is sufficient to sustain a finding of inadequate representation of counsel, he also contends that the appointed counsel's defense, "taken as a whole, reglected [sic] such incompetence as to preclude the possibility of a fair trial and a finding of innocence." In lieu of a protracted discussion of each of the several alleged instances of incompetency we will address ourselves only to such allegations as are contained in the 1961 record before us.
• 2 Our examination of the record of the 1961 trial confirms that the defendant's appointed counsel tendered two jury instructions which included either the term "preponderates" or "preponderance." The first of these instructions, "Defendants' Instruction # 2," read as follows:
"You are instructed that in passing upon the question of the guilt or innocence of the defendants, or either of them, if upon any disputed fact or state of facts the evidence in the case, considered in light of the court's instructions, is evenly balanced, and you are unable to say which way the evidence preponderates, you have no right to give the benefit of doubt to the prosecution, but in such case the finding on such facts or state of facts should be for the defendants."
Although the other instruction, "Defendants' Instruction # 8," was not so egregious an instruction, it also made reference to "the preponderance of evidence." These two instructions evidence an unwarranted and undesirable encroachment upon the reasonable-doubt standard particularly when proffered by one charged with defending, i.e., protecting the rights of, a person accused of a crime. Another instruction tendered by defendant's appointed counsel, "Defendants' Instruction # 5," defined "reasonable doubt." Even prior to defendant's 1961 trial our supreme court had disapproved of instructions defining "reasonable doubt" and had recommended that such instructions be discontinued (People v. Davis (1950), 406 Ill. 215, 92 N.E.2d 649; People v. Casey (1932), 350 Ill. 522, 183 N.E. 616; People v. Schuele (1927), 326 Ill. 366, 157 N.E. 215) since:
"It [reasonable doubt] is a term which needs no definition, and it is erroneous to give instructions resulting in an elaboration of it." (People v. Schuele, 326 Ill. 366, 372, 157 N.E.2d 215, 217).
Hence, the proffering, by defendant's appointed counsel, of an instruction defining "reasonable doubt" is another distressing example of his lack of familiarity with criminal procedure.
• 3 The record before us reflects not only the foregoing acts of inadequacy by defendant's appointed counsel, but instances where his failure to act manifested his apparent inability to protect the defendant. One such error of omission by defendant's appointed counsel was his failure to object to "People's Instruction No. 8," wherein the State defined "reasonable doubt" as follows:
"The court instructs the jury, as a letter of law, that the doubt which the jury is allowed to retain must be a reasonable one. A doubt produced by undue sensibility of the juror in view of the consequence of his verdict is not a reasonable doubt, and a juror is not allowed to create sources or material of doubt by resorting to trivial and fanciful suppositions and remove conjectures as to possible states of fact differing from that established by the evidence. You are not at liberty to disbelieve as jurors if from the evidence you believe as men. Your oath imposes on you no obligation to doubt when no doubt would exist if no oath has been administered."
In view of the cases previously mentioned defendant's appointed counsel should have objected to the above definition as an unnecessary and prejudicial elaboration of the term "unreasonable doubt." Another error of omission occurred when defendant's appointed counsel failed to object to "People's ...