APPEAL from the Circuit Court of Cook County; the Hon. R.
EUGENE PINCHAM, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Joseph Butler was charged by information with the murder of his wife and attempt murder of his daughter. After a bench trial, defendant was found not guilty by reason of insanity and was immediately committed to the Department of Mental Health by the trial judge. Defendant appealed from his commitment. We dismissed defendant's appeal for mootness. (People v. Butler (1978), 65 Ill. App.3d 81, 382 N.E.2d 436.) The Supreme Court of Illinois found that our dismissal of the appeal as moot was not justified and ordered that defendant's appeal be reinstated and considered on its merits. The facts are set forth in our first opinion and will be repeated here only as needed in considering the contentions of the parties.
Defendant contends that the failure to conduct a separate civil commitment hearing at the conclusion of the criminal trial to determine whether, at the time of trial (March 1977), he was suffering from a mental disease or defect and as a result was dangerous to himself or others (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 1-11) violated his rights to due process. He also argues that this failure to conduct a separate hearing violated his right to the equal protection of the laws because there is no rational basis for classifying persons who are found not guilty by reason of insanity differently from other persons who are asserted to be in need of mental treatment.
The State argues that defendant's constitutional rights were not violated and that defendant's commitment is supported by clear and convincing evidence.
Although the Criminal Code has been amended since the trial of this case specifically to require a separate hearing under the Mental Health Code of 1967 (Ill. Rev. Stat. 1977, ch. 38, pars. 115-3(b), 1005-2-4(a), (b)), at the time of the trial there was no such specific requirement.
Section 115-3(b) (Ill. Rev. Stat. 1975, ch. 38, par. 115-3(b)) provided:
"(b) Upon conclusion of the trial the court shall enter a general finding, except that, when the affirmative defense of insanity has been presented during the trial and acquittal is based solely upon the defense of insanity, the court shall enter a finding of not guilty by reason of insanity, and shall expressly state whether or not the defendant has recovered from his former condition of insanity."
Section 5-2-4(b) (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-4(b)) provided:
"(b) After a finding or verdict of not guilty by reason of insanity under Section 115-3, or 115-4 of The Code of Criminal Procedure of 1963; and after a determination by the jury, or in the event of a jury waiver by the court that the defendant has not recovered from his insanity, the court shall enter an order finding the defendant to be in need of mental treatment and hospitalizing the defendant in the custody of the Department of Mental Health and Developmental Disabilities for an initial period not to exceed 12 months from the date of such order. The order of the court shall be in the form of and shall produce the same effects and subsequent review proceedings as an order of hospitalization under the Mental Health Code of 1967, and shall include a specific finding as to the legal competence or incompetence of the defendant under the Mental Health Code. The admission, detention, care, treatment, and discharge of the defendant after such order shall be under the Mental Health Code."
The trial court found (1) defendant not guilty by reason of insanity following a trial held pursuant to section 115-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 115-3) and (2) that defendant has not recovered from his insanity and is in need of mental treatment pursuant to 5-2-4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-4(b)), and ordered defendant committed to the Department of Mental Health to be confined for an initial period not to exceed 12 months, with subsequent review proceedings of defendant's status to be regulated according to the Mental Health Code of 1967.
At the trial three psychiatrists testified as to defendant's mental condition on December 11, 1975, the time of the murder and attempt murder with which defendant was charged. The examinations of defendant were made by Dr. Robert Reifman on February 25 and March 23, 1976, by Dr. Bernard Raben on August 17, 1976, and by Dr. Nelson Bradley on October 21, 1976. The trial took place in March 1977. The order of commitment was entered March 21, 1977, after the argument of counsel.
During the trial, only one psychiatrist, Dr. Reifman, was questioned concerning defendant's present mental condition. The transcript for March 10, 1977, shows:
"Q. Do you think he is suffering from that illness today?
A. I can only speak from my examination and say that at the time that I examined him he was in the state of partial remission ...