APPEAL from the Circuit Court of White County; the Hon. HENRY
LEWIS, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
On February 17, 1970, defendant, Ernest Garlick, was charged by indictment with the murder of his wife, Rosalinda Garlick. On July 21, 1970, a hearing was held to determine the defendant's competency to stand trial. The court found defendant incompetent to stand trial and committed him to the custody of the Department of Mental Health. Pursuant to a motion by the State, a second competency hearing was held on May 20, 1974, at which the court found defendant competent to stand trial. At the trial which was thereafter commenced before a jury on June 25, 1974, defendant was found guilty. He was later sentenced to a term of imprisonment of 25 to 40 years.
The essential facts giving rise to this case are not in dispute. On February 6, 1970, at approximately 6 p.m., the defendant received a telephone call from his estranged wife, Rosalinda Garlick. After their conversation the defendant became extremely agitated and began pacing back and forth in the dining room and kitchen of his mother's house. He then went outside and drove off in his car. Between 8 and 8:30 p.m. that same evening, a shotgun was fired from the front porch into the home of Lindley and Melba Lamp, the parents of the defendant's wife. Rosalinda was living with her parents at that time and had been watching television in the living room when the gun went off. The deer slug fired from the shotgun passed through a glass storm door and a glass portion of the closed front door before striking Rosalinda in the forehead. Rosalinda died about two hours later.
Investigating officers recovered a slipper embedded in the mud approximately 72 feet to the northeast of the Lamp home and followed the tracks about one-fourth of a mile to a road where a car had been parked. The police found a 16-gauge semiautomatic shotgun near a ditch farther up this road. This shotgun, later determined to be the one used in the shooting, belonged to the defendant's eldest brother.
At about 9:30 p.m., the defendant walked into the basement of the Hamilton County Courthouse in McLeansboro, which is about 20 miles from the Lamp home. The courthouse basement was the home of then Deputy Sheriff Coy Braden and his family. Mr. Braden's wife, Monette, was home when the defendant entered without knocking. The defendant's clothes were muddy and he was wearing only one slipper. He said that he was looking for the sheriff, that he needed help, and that he "had just blew [his] old lady's head off." After being summoned to the Braden residence, Sheriff Mobley of White County immediately brought over the slipper that had been found in the front lawn of the Lamp home. The two slippers matched. In addition, Sheriff Mobley found six 16-gauge shotgun shells with deerslug loads in the possession of the defendant.
While defendant has made numerous assignments of error, our disposition of this case makes it necessary to consider only those questions concerning the defendant's competency to stand trial and other matters which could possibly arise on a subsequent retrial of this case.
After a significant portion of defendant's trial had been completed, defendant moved for and was granted a third hearing to determine his fitness to stand trial. After hearing the evidence on this motion, the trial court, sitting without a jury, found that defendant had failed to prove that he was unfit to stand trial:
"The party who filed the Petition has the burden of proving this by the preponderance of the evidence. As counsel has said, there has been one psychiatrist who has said that he is able to assist in his defense; the other psychiatrist says no. One psychologist says yes; the other says no. * * * The court has heard all this evidence and believes that the motion has not been sustained; that the defendant is fit to stand trial under the statute and will make an order so finding * * *."
The next day the trial was resumed before the jury.
The provisions which govern a hearing to determine a person's fitness to stand trial are set forth in section 5-2-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1). Subsections (i) and (j) of section 5-2-1 provide:
"(i) The burden of proving the defendant is not fit is on the defendant if he raises the question and on the State if the State or the court raises the question.
(j) The party raising the question has the burden of going forward with the evidence. If the court raises the question, the State shall have the burden of going forward with the evidence. At a fitness hearing held at the instance of the court, the court may call and examine witnesses on the question of fitness."
As noted in the Council Commentary (Ill. Ann. Stat., ch. 38, par. 1005-2-1 (Smith-Hurd 1973), section 5-2-1 of the Unified Code of Corrections (effective Jan. 1, 1973) replaces comparable sections of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1963, ch. 38, pars. 104-1 and 104-2). Under the former law there was an express provision regarding the burden of going forward with the evidence (Ill. Rev. Stat. 1963, ch. 38, par. 104-2(c)), but no express provision with respect to the burden of proof. The Council Commentary of section 5-2-1 of the present Unified Code of Corrections explains the change by stating:
"Subparagraphs (i) and (j) merely clarify former law by making explicit that the burden of proof (as well as the burden of going forward) rests with the party requesting a determination of the issue of fitness, and that where the court requests it, the burden falls upon the State." Ill. Ann. Stat., ch. 38, par. 1005-2-1, at 220 (Smith-Hurd 1973).
Both the defendant and the State have stated in their briefs that the above-quoted commentary is in error because the courts> of this State have consistently interpreted the former sections (Ill. Rev. Stat. 1963, ch. 38, pars. 104-1 and 104-2) as placing the burden of proof on the State in all cases, thus making the present statutory provision not a clarification but rather a significant change in the law. Defendant argues that a series of cases establish that placing the burden of proof in a competency hearing upon a criminal defendant is a violation of the defendant's right to due process of law and that the present statute, having shifted to the defendant the burden of proof in cases where defendant requests a hearing, violates this constitutional right.
• 1, 2 State procedures must be adequate to protect the constitutional right of a defendant not to be tried and convicted while he is incompetent. (Pate v. Robinson, 383 U.S. 375, 15 L.Ed.2d 815, 86 S.Ct. 836 (1966).) Numerous Illinois cases interpreting the former law have found the burden of proof in a hearing to determine fitness to stand trial to be on the State, irrespective of the origin of the request for the hearing. (See People v. Bender, 20 Ill.2d 45, 169 N.E.2d 328; People v. McKinstray, 30 Ill.2d 611, 198 N.E.2d 829; People v. Bedford, 31 Ill.2d 227, 201 N.E.2d 420; People v. Thompson, 36 Ill.2d 332, 223 N.E.2d 97; People v. Yonder, 44 Ill.2d 376, 256 N.E.2d 321, cert. denied, 397 U.S. 975.) These authorities make it clear that the Council Commentary quoted above is, as defendant and the State have noted, an erroneous statement of the prior law. However, in order to show a deprivation of due process by placing the burden of proof on the defendant in a hearing to determine his competency to stand trial, it is necessary that the placing and carrying of such a burden present a problem of constitutional magnitude. Accordingly, we shall review in detail these earlier authorities to determine if their holdings were derived through an adherence to constitutional mandates relative to the defendant's ultimate burden in any competency hearing or merely an outgrowth of a statute lacking an explicit requirement that defendant bear the burden of proof.
In People v. Bender, 20 Ill.2d 45, 169 N.E.2d 328, a case where the defendant requested the competency *fn1 hearing, it is apparent that the decision was in fact based on the due process requirement that the State bear the burden of proof in all competency hearings. The following series of quotations from that case clearly illustrate this point:
"Several errors are assigned, but in the view which we take of the case, we find it necessary to consider only one of these assignments. Defendant contends that the procedure at the sanity hearing was so erroneous and irregular that he was deprived of due process of law." 20 Ill.2d 45, 47.
"The sanity hearing which is thus prescribed is no empty formality, but is designed to preserve the constitutional right of a defendant not to be placed on trial while he is insane. It is, therefore, of great importance that such a hearing should be free from prejudicial error and that the hearing proceed in accordance with proper rules ...