APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
The defendant, Bernard Thiem, was charged by indictment with the murder of Arthur Daniels. (Ill. Rev. Stat. 1973, ch. 38, par. 9-1(a)(2).) Although initially found unfit to stand trial, *fn1 he was subsequently determined fit for trial, and was found not guilty by reason of insanity after a bench trial. (Ill. Rev. Stat. 1977, ch. 38, par. 115-3.) Pursuant to section 5-2-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-4(a)), the trial court on March 22, 1978, entered an order finding the defendant in need of mental treatment and consequently committing him to the Department of Mental Health and Developmental Disabilities (hereinafter Department). The trial court also found the defendant incompetent. Ill. Rev. Stat. 1977, ch. 91 1/2, par. 9-11.
On appeal, the defendant contends that: (1) the trial court erred in committing him to the Department under the law in existence at the time of his trial rather than under the law in effect at the time of the offense; (2) the judgment of commitment was invalid for lack of sufficient clarity; and (3) the evidence did not support the trial court's finding of legal incompetence.
We affirm in part and reverse and remand in part.
At the trial the parties stipulated that, if called, certain witnesses would testify that on April 15, 1976, while at his place of employment, the defendant walked up to the victim with a pipe in his hand and, without provocation, struck him several times on his head, causing his death. The defense called Dr. Frank Lorimer, a staff psychiatrist for the Psychiatric Institute of the circuit court of Cook County, who testified that he had conducted several examinations of the defendant, including an examination shortly after the murder and an examination approximately one month before the defendant's trial, which consisted of verbal communications and observation. His diagnosis of the defendant was that of a "paranoid state in a person of long term psycho-sexual conflict (homosexuality) and anti-social record." Dr. Lorimer explained that "the paranoid state" is a psychosis or mental illness and that it was his opinion that the defendant was insane on the date of the crime in that he lacked a substantial capacity to appreciate the criminality of his acts as a result of his mental illness. Dr. Lorimer further testified that the defendant's psychosis, which he concluded was long term in nature, rendered him dangerous to others and in need of mental treatment, although in his opinion the prognosis for correcting this condition was dismal.
The trial court found the defendant not guilty of murder by reason of insanity. The court concluded that the defendant had not recovered from his insanity, was in need of mental treatment and was legally incompetent. Therefore, it remanded him to the custody of the Department of Mental Health "for an indefinite time not to exceed the maximum amount of time that the defendant would have been required to serve * * * Defendant is not to be discharged or released for any period of time from the custody of the Department of Mental Health, however, without written notice of the Superintendent of the Department of Mental Health not less than thirty (30) days prior to such release or discharge to both the court and the State's Attorney. If either the court or State's Attorney requests a hearing, it must be held within thirty (30) days of the motion for a hearing."
The quoted portions of the trial court's order resemble the statutory requisites of section 5-2-4(b) and (d)(2) of the Unified Code of Corrections as amended and effective January 1, 1978 (hereinafter amended act) (Ill. Rev. Stat. 1977, ch. 38, pars. 1005-2-4(b), (d)(2)) upon an acquittal by reason of insanity and the court's determination that the defendant was in need of mental treatment as defined by the Mental Health Code of 1967 (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 1-1 et seq.). Prior thereto section 5-2-4(b) provided that after an acquittal by reason of insanity the jury, or if a jury was waived, then the court would ascertain if defendant's insanity persisted. If defendant was found to be insane at that time, he would be committed to the Department for a period not to exceed 12 months, and further hospitalization would be under the provisions of the Mental Health Code of 1967. The prior statute did not require that the Department notify the trial court and State's Attorney prior to releasing a defendant previously committed, and it provided that the court would determine if a defendant was competent. Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-4.
1 Initially, we should note that the People have filed a motion seeking to strike portions of the defendant's reply brief for violating Supreme Court Rule 341 which provides that an appellant shall raise issues, which he wishes to be considered on appeal, in his original brief and that any issues raised for the first time in the appellant's reply brief shall be deemed waived on appeal. (Ill. Rev. Stat. 1977, ch. 110A, par. 341(e)(7).) This Rule, however, does not deny a court of review of the jurisdiction to entertain issues first raised in a reply brief if justice and fairness require their consideration. (Hux v. Raben (1967), 38 Ill.2d 223, 230 N.E.2d 831; Brown v. Brown (1978), 62 Ill. App.3d 328, 379 N.E.2d 634; Huber Pontiac, Inc. v. Wells (1978), 59 Ill. App.3d 14, 375 N.E.2d 460.) In the present case, we find that a just result dictates our consideration of all the issues raised by the appellant. We should note that our decision to entertain the defendant's additional arguments has not acted to prejudice the People's opportunity to present responsive argument in this appeal (Hux v. Raben) in that the People have filed a supplemental brief in which they have responded to the defendant's additional arguments. Accordingly, we deny the People's motion to strike portions of the defendant's reply brief.
The defendant contends that the trial court was governed by the law in effect at the time of the commission of the offense and that, in fact, the trial court stated that it was proceedings under the version of section 5-2-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-4) in effect at the time of the commission of the offense. Therefore, the defendant maintains that the trial court's entry of the March 22, 1978, order, which placed restrictions on the defendant's release from the Department, not statutorily authorized when the offense was committed, exceeded the trial court's statutory authority. Additionally, the defendant argues that the order violated the prohibiton against ex post facto laws and violated the defendant's equal protection rights.
2 The retroactive application of criminal statutes is specifically prohibited by the ex post facto provisions of the United States and the Illinois constitution (U.S. Const., art. I, § 9; Ill. Const. 1970, art. 1, § 16; e.g., People v. Hill (1980), 78 Ill.2d 465, 401 N.E.2d 517; People v. Wyckoff (1969), 106 Ill. App.2d 360, 245 N.E.2d 316) and the rules of statutory construction (Ill. Rev. Stat. 1977, ch. 131, par. 4; 34 Ill. L. & Prac. Statutes § 193 (1958)). A statute is characterized as retroactive if it "takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past." 34 Ill. L. & Prac. Statutes § 193, at 154 (1958).
The Illinois Supreme Court in People v. Valdez (1980), 79 Ill.2d 74, 402 N.E.2d 187, recently addressed the propriety of applying the amended act to instances where the offense, which was the basis for the defendant's acquittal by reason of insanity, was committed prior to the effective date of the amended act. Valdez was charged with the April 4, 1977, murders of Lecia Agsaoay and Dr. Jesus Lim but acquitted by reason of insanity on May 3, 1978. As in the case at bar, at the time of the murders, section 5-2-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-4) was in effect, while at the time of the trial the amended act was in effect. (Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-4.) The trial court found the defendant in need of mental treatment and remanded him to the Department. Thereafter, in response to a notice of the Department that it was considering granting Valdez "off ground privileges" the States Attorney, pursuant to the amended act, requested a hearing. The trial court conducted an evidentiary hearing and entered an order denying the requested privileges and further ordered certain changes in the overall treatment program of Valdez. On direct appeal to the supreme court (Ill. Rev. Stat. 1977, ch. 110A, par. 302), the defendant argued that the retroactive application of the amended act violated the established rules of statutory construction and equal protection.
3 In reaching the first issue, the court rejected the defendant's characterization of the statute as retroactive. The court explained that:
"The occurrence which invoked the provisions of the statute was not the commission of the offenses with which defendant was originally charged; the statute was invoked by his acquittal by reason of insanity. Furthermore, the amendment did not affect any right which defendant had acquired as of the effective date of the change [Citation.] * * *." (People v. Valdez (1980), 79 Ill.2d 74, 81.)
Under the supreme court's holding in Valdez, which controls this case, we must reject the defendant's argument that the trial court exceeded its authority in applying the amended act to the defendant. Moreover, we must also reject the defendant's constitutional argument that the retroactive ...