APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Wallace R. Hancock, was initially arrested for the murder of his 20-month-old daughter, Tanya. A three-count indictment filed on December 19, 1975, enlarged the charges to include murder, rape and deviate sexual assault. Pursuant to a change of venue, defendant was tried before a jury in Washington County rather than in St. Clair County where the alleged crimes occurred. He presented an insanity defense. At the close of the State's case, the court dismissed the rape charge and trial resumed. The jury found defendant guilty of murder and deviate sexual assault; however, the court entered a sentence on the murder verdict only. The sentence imposed was 100 to 200 years imprisonment. Defendant appeals.
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 might arise on a subsequent retrial of this case.
On November 19, 1975, the trial court entered an order on the request of defendant, directing Dr. Clifford Gilpin to conduct an examination upon defendant to determine his sanity and competency to stand trial. A similar order on a State request for psychiatric examination was entered on February 27, 1976; however, due to the continuing illness of the psychiatrist named in the February order, the court subsequently appointed Dr. Francis Parks to examine defendant.
On April 8, 1976, a hearing to determine defendant's fitness for trial was conducted before the court, sitting without a jury. The only witnesses to testify at the hearing were psychiatrists Dr. Gilpin and Dr. Parks. The defendant first offered the testimony of Dr. Gilpin. Dr. Gilpin was of the opinion that defendant suffered from a psychosis of schizophrenia, that he had lost touch with reality and that as a result of this mental condition he was unable to properly assist in his defense. Dr. Parks, however, testifying for the State, gave an opposing opinion as to defendant's fitness for trial. He diagnosed defendant as a life-long schizoid personality and further testified that he was a situationally depressive neurotic. On cross-examination, Dr. Parks stated that he assumed that the depression was the result of these events rather than having been present at the time of the alleged crimes' commission.
Defendant contends that he was found fit for trial pursuant to a statute which improperly placed the burden of persuasion upon him, thus denying him due process of law and entitling him to a new hearing on the question of his fitness to stand trial. He further contends that at fitness hearings the burden on the State must be to prove the defendant fit for trial beyond a reasonable doubt, not by a preponderance of the evidence.
The statute in question is section 5-2-1(i) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1(i)). It provides:
"(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."
1 After our supreme court's decision in People v. McCullum (1977), 66 Ill.2d 306, 362 N.E.2d 307, it is settled that section 5-2-1(i) is unconstitutional to the extent that it places on the defendant the ultimate burden of proving his unfitness to stand trial. See People v. Garlick (5th Dist. 1977), 46 Ill. App.3d 216, 360 N.E.2d 1121, appeal denied (1977), 66 Ill.2d 626, cert. denied (1977), 434 U.S. 988, 54 L.Ed.2d 484, 98 S.Ct. 620, reaching the same conclusion prior to the McCullum decision.
The following quotation from McCullum reveals the court's reasoning in reaching this conclusion:
"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. [Citation.]" 66 Ill.2d 306, 314, 362 N.E.2d 307, 310-11.
2 From the facts of record it is apparent that the unconstitutional portion of this statute was applicable to the instant case. The defendant raised the question of defendant's fitness to stand trial, and consequently went forward with the evidence at the hearing as is required by statute of the party raising the question. (See Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1(j).) Although the judge did not specifically mention who carried the burden of persuasion, in the absence of any indication to the contrary, we must assume that the trial judge, in allocating the burden of proof on fitness, followed the clear direction of section 5-2-1(i). People v. Hubert, 51 Ill. App.3d 394, 398, 366 N.E.2d 909, 912; see also People v. Bilyew (5th Dist. 1977), 55 Ill. App.3d 69, 73, 370 N.E.2d 585, 588; People v. Harris (1st Dist. 1977), 53 Ill. App.3d 868, 871, 369 N.E.2d 152, 155.
3 With the exception of People v. Goff (4th Dist. 1978), 57 Ill. App.3d 384, 373 N.E.2d 71, in every case in which this issue has been presented, the reviewing court has reversed the judgment and remanded the cause with directions to conduct a new competency hearing in accordance with the proper allocation of burden. (See People v. McCullum; People v. Garlick; People v. Bilyew; People v. Hubert; People v. Harris.) The new hearing is concerned with defendant's fitness at the time of the new hearing. If found fit, defendant is afforded a new trial. Although the State has made several arguments with regard to ...