APPEAL from the Circuit Court of Cook County; the Hon. JACQUES
HEILINGOETTER, Judge, presiding.
MR. JUSTICE BUA DELIVERED THE OPINION OF THE COURT:
In a jury trial in the Circuit Court of Cook County, the defendant was convicted on one count of murder (Ill. Rev. Stat. 1969, ch. 38, par. 9-1) and two counts of aggravated battery (Ill. Rev. Stat. 1969, ch. 38, par. 12-4(b)(1)). Prior to sentencing, the trial judge, sitting without a jury, held a hearing on the defendant's fitness. It was found that the defendant had been fit at the time of his trial and was fit for sentencing. The court imposed a sentence of imprisonment for a term of from 15 to 45 years. At the fitness hearing, however, the trial court allocated to the defendant the ultimate burden of proving his own unfitness, as provided by section 5-2-1(i) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-2-1(i)). We take notice of this plain constitutional error and, accordingly, reverse and remand for a new trial.
On April 17, 1971, the defendant shot and killed Prince Sledge in a Chicago tavern known as the Seaway Lounge. Two other individuals present in the tavern, Vannie Lee Robinson and Sidney Fitzgerald, also suffered gunshot wounds. The defendant was indicted for the murder of Sledge, and for two counts of aggravated battery against each of the two other victims. A jury trial began on October 21, 1974.
On October 23, 1974, the jury found the defendant guilty of the murder of Prince Sledge, and of one count of aggravated battery against each of the two other victims. Judgments were entered on the verdicts.
At the request of defense counsel, on November 21, 1974, the court ordered a behavior clinic examination to determine the defendant's fitness for sentencing. This examination was performed by Dr. Edward Kelleher, director of the Psychiatric Institute of the Circuit Court of Cook County. The report of this examination, filed December 12, 1974, indicated Dr. Kelleher's conclusion that the defendant was not fit for sentencing, and also suggested that the defendant had not been fit at the time of his trial.
Pursuant to an extension of time granted by the court, the defendant's written motion for a new trial was filed on December 30, 1974. Among other grounds, this motion alleged the defendant's unfitness at the time of his trial, making reference to Dr. Kelleher's report. In connection with this allegation, defense counsel asked the court to order a second examination by Dr. Kelleher, specifically for the purpose of determining the defendant's fitness at the time of his trial. This request was granted. In addition, the court granted the State's request that the defendant also be examined by Dr. Clifton Rhead of the Illinois State Psychiatric Institute. Both examinations were carried out in January 1975, and reports were filed with the court.
• 1 On March 6, 1975, a hearing was held before the trial judge, sitting without a jury, on the issues of the defendant's fitness at trial *fn1 and for sentencing. The only witnesses to testify at the hearing were Dr. Kelleher and Dr. Rhead. The defendant offered the testimony of Dr. Kelleher, who was of the opinion that the defendant had been unfit at the time of his trial and was unfit for sentencing. Dr. Rhead, however, testifying for the State, gave an opposing opinion. The court properly took notice of the trial proceedings.
At the conclusion of the fitness hearing, the trial judge found that the defendant had been fit for trial and was fit for sentencing. Other grounds raised in the defendant's motion for a new trial were also denied. After a hearing on aggravation and mitigation, the court imposed a sentence of imprisonment for 15 to 45 years.
The defendant's first contention on appeal is that the court erred in finding him fit for trial because he had established his unfitness by a preponderance of the evidence.
Section 5-2-1(i) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-2-1(i)), in effect at the time of the defendant's fitness hearing, provided that where, as here, the defendant raised the issue of his fitness for trial, the burden was on him to prove his unfitness by a preponderance of the evidence. *fn2 At trial, the defendant did not object to the allocation of the burden of proof under Section 5-2-1(i). Nor did he do so in his brief or argument on appeal, but rather, as indicated, acknowledged his burden under that provision and argued that he had in fact proved his unfitness. However, while this case was awaiting decision on appeal, the Illinois Supreme Court, in People v. McCullum (1977), 66 Ill.2d 306, 313-14, 362 N.E.2d 307, 310-11, found section 5-2-1(i) to be unconstitutional insofar as it placed the ultimate burden of proving unfitness on the defendant, saying:
"The United States Supreme Court has also recognized the inherent legal disability of an accused, alleged to be unfit, when it stated: `[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently "waive" his right to have the court determine his capacity to stand trial.' (Pate v. Robinson (1966), 383 U.S. 375, 384, 15 L.Ed.2d 815, 821, 86 S.Ct. 836.) It is equally erroneous to argue that a defendant who has raised a bona fide doubt as to his fitness to stand trial can be presumed to possess the intelligence and understanding necessary to assist his counsel in gathering, coordinating, and presenting facts required to prove his unfitness. Though the legislature has the authority to determine the allocation of the burden of producing evidence and the burden of persuasion, it may not allocate these burdens in a manner that `offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Speiser v. Randall (1958), 357 U.S. 513, 523, 2 L.Ed.2d 1460, 1471, 78 S.Ct. 1332.
The concept of fitness to stand trial is grounded on the notion that it is fundamental to an adversary system of justice. (Drope v. Missouri (1975), 420 U.S. 162, 171-72, 43 L.Ed.2d 103, 113, 95 S.Ct. 896.) Fundamental fairness dictates that, where a defendant has raised a bona fide doubt as to his fitness to stand trial, the State, as a matter of due process, should bear the ultimate burden of proving defendant's fitness to stand trial. (See United States v. DiGilio (3d Cir. 1976), 538 F.2d 972, 988.) We find section 5-2-1(i) to be unconstitutional to the extent that it places on the defendant the ultimate burden of proving unfitness to stand trial."
Under these circumstances, we think it appropriate that we grant the defendant a new trial.
• 2 The rule stated in McCullum that the defendant, as a matter of due process, may not be made to bear the burden of proving his own unfitness for trial is clearly the law applicable to the present case. It is true that where a decision sets forth a new constitutional rule of criminal law or procedure that rule will not be applied, on direct or collateral review, to transactions which occurred prior to its enunciation unless it is found, upon consideration of the particular circumstances, to warrant "retroactive" application. This is the doctrine developed by the progeny of Linkletter v. Walker (1965), 318 U.S. 618, 14 L.Ed.2d 601, 85 S.Ct. 1731 (see generally Beytagh, Ten Years of Non-Retroactivity: A Critique and Proposal, 61 Va. L. Rev. 1557 (1975)). McCullum, however, set forth no new rule. Section 5-2-1(i) became effective on ...