APPEAL from the Circuit Court of McLean County; the Hon. SAM
HARROD, Ill, Judge, presiding.
MR. PRESIDING JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
Defendant, Robert H. Blumenshine, on July 13, 1977, was found not guilty by reason of insanity of the offense of murder. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-4.) Defendant was ordered hospitalized in the custody of the Department of Mental Health and Developmental Disabilities. A hearing was held approximately one year later, to review the defendant's condition, and following a continuance of this proceeding, a petition for discharge was filed on behalf of the defendant pursuant to section 5-2-4 of the Unified Code of Corrections. (Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-4(e).) Following the presentation of evidentiary depositions at a hearing on September 29, 1978, the trial court denied the petition for discharge. The issue on appeal is whether the court's decision was against the clear and convincing weight of the evidence.
The evidence before the court consisted primarily of the testimony of two psychiatrists, Dr. Aravind K. Pai, who was involved directly in the treatment of the defendant, and Dr. Phillip E. Bornstein, a court-appointed psychiatrist. Dr. Pai testified that the defendant had originally been diagnosed by another psychiatrist as a schizophrenic, paranoid type. When he examined defendant in November 1977, he concluded that his psychosis was in remission. It was Dr. Pai's opinion that the defendant did not require further resident or in-patient treatment and that he should be discharged subject to continued periodic, follow-up treatment through a local mental health center. The appropriate local mental health facility had been contacted and had agreed to perform the necessary follow-up treatment.
The recommendation of release by Dr. Pai was premised on certain other conditions. First, he noted that alcohol abuse had been a contributing factor with regard to the hallucinations and delusions that the defendant had apparently experienced at the time of the killing. The defendant exhibited an awareness of this potential problem, had abstained from alcohol consumption during his hospitalization and was participating in an Alcoholic's Anonymous (A.A.) program. He recommended that defendant's release be subject to his continued participation in an A.A. or similar alcohol counseling program. Dr. Pai also noted that defendant had remained off treatment-related medication for approximately 8 months without exhibiting any adverse physical or psychotic symptoms.
Dr. Pai also recommended that the defendant, if discharged, live with his mother. This condition would serve two purposes. The defendant, who wanted to return to his mother's farm, would then be able to engage in farming. Defendant's desire to take on this responsibility was, in Dr. Pai's opinion, also indicative of his recovery. The release of the defendant to the custody of his mother would further allow the mother to monitor the defendant's condition in conjunction with the local mental health center. No special training, according to Dr. Pai, would be required of the mother to be alerted to a recurrence of any psychotic behavior by the defendant. The third condition, as previously mentioned, was that the defendant continue out-patient treatment.
Dr. Pai in addition testified concerning the propensity for dangerousness of the defendant. From his observations and examinations of the defendant there was no indication of a relapse, although he admitted that defendant, during his hospitalization, had not been exposed to typical financial, family, or other everyday stress. However, he felt that the defendant had been subjected to stress in terms of his confinement and the supervision and regulations incident thereto. Defendant had responded well to these restrictions, was cooperative and had not exhibited violent behavior or loss of temper.
Dr. Pai further noted that the defendant's delusions and paranoid ideations had centered on the murder victim, who was the defendant's girlfriend. He had not demonstrated similar psychotic symptoms toward others or to the community generally.
Upon questioning by the court, Dr. Pai admitted that he could not guarantee that the defendant would not engage in violent or impulsive behavior sometime in the future. He further declined to make a percentage estimate concerning the defendant's likelihood of causing harm to another. He responded that it was impossible to categorically predict whether or not a particular individual would be dangerous in the future. He was, nevertheless, confident, based on his observations and clinical evaluations, that defendant was a nondangerous individual. Defendant had not exhibited the type of behavior indicative of a high propensity for dangerousness.
The testimony of the court-appointed psychiatrist, Dr. Bornstein, who diagnosed defendant's condition as a manic-depressive illness, was essentially consistent with the evaluation and opinion of Dr. Pai. He concluded that there was no value in prolonging the defendant's in-patient hospitalization and similarly recommended that he be conditionally discharged subject to the suggested restrictions of Dr. Pai.
Dr. Bornstein also admitted that it was difficult to predict the dangerous propensity of a given individual with total preciseness. He testified, however, that there are certain indicators which are useful in predicting the dangerousness of a person. He noted that the defendant's age, the absence of past manifestations of violent tendencies or behavior (with the exception of the homicide) and his expressed desire to return to society were all positive factors indicative of a nondangerous person. His marital relationship (divorced) was the sole negative factor. Dr. Bornstein concluded the defendant's profile approximated that of a nondangerous person.
The State concurred in defense counsel's recommendation that defendant be discharged subject to the conditions that he (1) reside with his mother; (2) continue out-patient care; and (3) continue participation in an A.A. program. The trial court, in denying the petition for discharge, concluded that the evidence failed to clearly or convincingly establish that the defendant was no longer in need of mental treatment or that there was a reasonable assurance for the safety of the public.
Before proceeding to a review of the trial court's decision, we note in passing the incongruity of the position of the State taken before the trial court and the stance taken before this court. Logic and the principles of reasoned advocacy would seemingly demand that the State not be allowed to argue that the court's denial of conditional discharge should be upheld when the exact opposite posture was taken before the trial court. In any event, we must determine, apart from the inconsistency of the State's position, whether the conclusion of the trial court can be sustained under the present record. We conclude that it cannot.
Where a defendant has petitioned for discharge, the burden of proof and of going forth with the evidence rests with the defendant. The findings of the court must be supported by clear and convincing evidence. Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-4(g).
The trial court, in denying the petition, found that the defendant was still in need of mental treatment. This conclusion is supported by the clear weight of the evidence inasmuch as both psychiatrists recommended that the defendant, if released, continue consultation with local mental health personnel. However, under the Code, an individual's need for continuing mental treatment does not necessarily preclude his discharge subject to specific conditions. Section 5-2-4(i) provides:
"(i) If the court does not so find [that the defendant is no longer in need of mental treatment], it may order * * * discharge or release under such conditions * * * imposed by the court which reasonably assure the defendant's satisfactory progress in treatment or habilitation and for the safety of the defendant ...