Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
On June 7, 1974, a grand jury indicted John William Bilyew for rape, murder and concealment of homicidal death in connection with the death of Frances Buckner. On defendant's motion the circuit court of Williamson County appointed two psychiatrists and two psychologists to examine the defendant regarding his fitness to stand trial. The court held a fitness hearing on November 21 and 22, 1974; three weeks later the trial judge ruled that defendant was fit to stand trial. On March 3, 1975, defendant pleaded guilty to murder and concealment of homicidal death, and was sentenced to 50 to 100 years' imprisonment for murder and 1 to 3 years' imprisonment for concealment of homicidal death, the sentences to run consecutively. On appeal, the appellate court vacated the finding of fitness and all subsequent proceedings and remanded for a new fitness hearing. (55 Ill. App.3d 69.) The appellate court held that the trial judge presumably had erroneously allocated the burden of proof to the defendant in the fitness hearing, pursuant to a statute then in effect but subsequently held unconstitutional by this court in People v. McCullum (1977), 66 Ill.2d 306. We granted the People leave to appeal.
Defendant's confession, introduced in support of the guilty plea, stated that on June 1, 1974, defendant was sitting on the front steps of his apartment building when he saw the deceased, a young girl to whom he had spoken once before, walking down the street. He approached her and asked her to come over and sit on his porch. She began to comply, but as they reached his yard he asked her for sex. When she refused he lost his temper and choked her to death with his hands. After undressing the body, he wrapped it in a blanket that he got from his apartment and hid it under a nearby house. Three days later, after hearing a "voice" commanding him to turn himself in, defendant dragged the body into the street and threw a rock through a neighbor's window to attract attention.
At the fitness hearing two of the expert witnesses, Dr. Harris B. Rubin and Dr. Gordon E. Rader, testified for the defendant and the deposition of a third defense witness, Dr. A.S. Norris, was admitted into evidence. One expert witness, Dr. Leonard Horecker, testified for the People. Two of defendant's witnesses were of the opinion that defendant was not fit to stand trial; one of defendant's witnesses and the People's witness were of the opinion that defendant was fit.
Dr. Rubin, a psychologist specializing in sexual problems, testified that defendant had never matured socially and had difficulty relating to people, especially females. The witness expressed doubt about how meaningful the defendant's understanding of the charges against him and of the legal process were. The defendant appeared not to understand the seriousness of the charges because he thought that he would be sentenced to only 1 to 12 years' imprisonment. Dr. Rubin further testified that during the interview he had been able to manipulate the defendant's responses to questions. He concluded from this that defendant could not always tell fact from fantasy and would not be able to assist counsel effectively because he would attempt to respond in the way his attorney considered appropriate.
The evidence deposition of Dr. Norris, a psychiatrist, relied heavily on I.Q. scores. In 1968 defendant was classified as mildly mentally retarded, with an I.Q. of 63, equivalent to a mental age of approximately 10 years. In 1972 his I.Q. was measured as 41, equivalent to a mental age of approximately six years. Dr. Norris based much of his testimony on this latter score. The witness observed that defendant was functionally illiterate, knew little arithmetic, and could not recall the witness' name although it had been told to him several times. Dr. Norris testified that defendant understood the charges against him but did not appreciate their seriousness, since he kept asking when he was going to get out of jail. Defendant understood what bond was and was aware of prison but would not, in Dr. Norris' opinion, appreciate what 20 years in prison meant. The witness testified that defendant could cooperate with counsel, but only to the degree that a six-year-old child could.
Dr. Rader, a clinical psychologist, gave defendant standardized psychological tests, one of which measured defendant's I.Q. at 66. The witness concluded that defendant was mentally deficient. He testified, however, that defendant could understand the basic purposes of the legal proceedings and the potential consequences of a conviction and could assist counsel with his defense, although "to a lesser extent than a person who is fully functioning."
Dr. Horecker, a psychiatrist, testified that defendant was alert, spoke coherently and rationally, and gave the witness a detailed chronological history of himself. Defendant understood what murder and rape were and considered them serious charges, and he was aware in a general sense of criminal trial proceedings and prison. The witness testified that defendant could make judgments concerning questions and suggestions of his counsel and therefore could assist in his own defense. Dr. Horecker stated in response to cross-examination that defendant may have been better able to answer his questions because of the prior interviews with the other doctors.
In ruling that defendant was fit, the trial judge analyzed the evidence in detail; her findings clearly indicate what evidence she considered most probative. Noting that fitness involves only the defendant's ability to function within the context of the trial, the judge disregarded the evidence of defendant's social immaturity and his hearing of voices, neither of which the experts had testified would make him unfit. The judge found the evidence to indicate that defendant understood what rape and murder were and what the purpose of the proceedings was. The judge noted that all the experts agreed that defendant could communicate with his counsel, though they differed on the degree of communication. The judge further noted Dr. Norris' reliance on the I.Q. score of 41 and she specifically found that the score of 66, recorded after Dr. Norris' examination, was more reliable. Finding that defendant understood the nature and purpose of the proceedings and could cooperate with his attorneys in his defense, the trial judge ruled that defendant was fit to stand trial.
The statute governing fitness to stand trial at the time of the hearing had been amended in 1972 to include a provision allocating this burden of proof at a fitness hearing:
"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." (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1(i).)
The Council Commentary stated that this provision merely clarified prior law. (Ill. Ann. Stat., ch. 38, par. 1005-2-1, Council Commentary, at 220 (Smith-Hurd 1973).) In fact, however, this court had consistently held that in a competency hearing the People bore the ultimate burden of establishing the defendant's fitness by a preponderance of the evidence and that any allocation of this burden to the defendant denied him due process of law. (People v. Thompson (1967), 36 Ill.2d 332, 334-35; People v. Bedford (1964), 31 Ill.2d 227, 228-29; People v. Bender (1960), 20 Ill.2d 45, 53-54.) Consequently, section 5-2-1(i) was unconstitutional on its face when enacted.
In People v. McCullum (1977), 66 Ill.2d 306, this court held section 5-2-1(i) unconstitutional as a violation of due process "to the extent that it places on the defendant the ultimate burden of proving unfitness to stand trial." (66 Ill.2d 306, 314.) The Appellate Court for the Fifth Judicial District had previously held the statute unconstitutional on the same grounds. (People v. Garlick (1977), 46 Ill. App.3d 216.) That court in this case held that McCullum required reversal of the trial judge's determination that defendant Bilyew was fit to stand trial.
We agree with defendant that the trial judge must be presumed to have followed the fitness statute in effect at the time of the hearing. Unless a trial court holds a statute unconstitutional, the court must follow the mandate of the statute until its validity is determined. (People v. Papas (1942), 381 Ill. 90, 94.) However, not every determination made pursuant to a statute, one provision of which is unconstitutional, requires automatic reversal. In this case the record fails to support the conclusion that the unconstitutional burden of proof provision entered into the trial court's determination.
The statutory allocation of the burden of proof becomes significant in a given case only when the evidence is so nicely balanced that neither fitness nor unfitness is established by a preponderance of the evidence. In such a case, the determination must be adverse to the party bearing the burden. As the United States Court of Appeals ...