APPEAL from the Circuit Court of Cook County; the Hon.
LAWRENCE I. GENESEN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
This is an appeal from the denial of the discharge petition of William Gann, who had been acquitted of murder by reason of insanity and committed to the Illinois Department of Mental Health and Developmental Disabilities. We affirm.
Petitioner raises two issues on appeal: (1) whether the trial judge erred in denying conditional discharge to the petitioner on the basis of the record before him; and (2) whether the trial judge has the authority to order the Illinois Department of Mental Health and Developmental Disabilities to test petitioner for alcohol-induced psychosis.
Petitioner was charged with the murders of Alvin Sharp and Ernest Liebsch. Petitioner stabbed Sharp and Liebsch in an unprovoked attack on November 25, 1973. A bench trial was held on February 17, 1977. The evidence adduced at trial showed petitioner had a past, recurring history of violence. In 1953 petitioner was sentenced to the Indiana Department of Corrections for assault with a deadly weapon. In 1959 during divorce proceedings, petitioner took a sheriff's gun and threatened those in the courtroom for which he was subsequently sentenced to 8 years' imprisonment. While imprisoned, he was transferred to a hospital within the Indiana Department of Mental Health, from which he was eventually discharged on August 22, 1966. Ten months later, in June 1967, petitioner was charged with assault with a deadly weapon. He was acquitted by reason of insanity and committed to the Indiana Department of Mental Health. Over the protest of the treating physicians, he was discharged in December 1970.
Petitioner also offered into evidence the stipulated testimony of Dr. Robert Reifman, assistant director of the Psychiatric Institute of the Circuit Court of Cook County. Dr. Reifman had examined petitioner five times during the period from April 1974 through March 1976. Dr. Reifman consistently diagnosed petitioner as suffering from "schizophrenic reaction, paranoid type symptomatized by delusion." In addition to the stipulated testimony of Dr. Reifman, petitioner offered into evidence the stipulated testimony of four other psychiatrists, two medical doctors, one of whom specialized in neuropsychology, and a psychologist, who had all diagnosed petitioner as schizophrenic. Based on the stipulated evidence presented, the court found petitioner not guilty by reason of insanity; that he had not recovered and was in need of mental treatment. Commitment followed. In November 1978, petitioner requested a hearing for discharge pursuant to section 5-2-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-4(e)).
The discharge hearing was held on February 15, 1979, before the trial judge who found petitioner not guilty by reason of insanity and who committed him. Petitioner offered into evidence the testimony of two psychiatrists, Dr. Garth Smith and Dr. Dusan Gojkovich, in support of his discharge petition.
Dr. Smith had interviewed petitioner once, in November 1978. The interview lasted approximately 30 minutes. Dr. Smith had not examined previous psychiatric reports concerning petitioner prior to the interview. The only information available to Dr. Smith regarding petitioner prior to the interview was that petitioner had been found innocent of murder by reason of insanity and had requested discharge from the hospital; and that he had been a good patient with no problems and was on no medication. Based on his single interview with petitioner only and not on other psychiatric reports, Dr. Smith testified that petitioner was a paranoid personality, but was not psychotic. On direct examination Dr. Smith testified that the probability that petitioner would injure himself or others did not greatly differ from any other person. On cross-examination respondent posed a hypothetical question to Dr. Smith which incorporated the facts of petitioner's murder offense as well as the diagnoses by several doctors that petitioner was schizophrenic. In response to the hypothetical, Dr. Smith could give no opinion as to whether petitioner would be dangerous in the future.
Dr. Gojkovich had interviewed petitioner on several occasions beginning in 1975. He last interviewed petitioner one week prior to the discharge hearing. Although Dr. Gojkovich had not read the transcript from petitioner's murder trial, he was aware that petitioner had stabbed two people to death and that he had previously shot another; that since 1952 he had been in need of emotional support or treatment, and that approximately 10 years previously he had been given electric shock treatments. Dr. Gojkovich consistently diagnosed petitioner as having a paranoid personality disorder. Following his last interview of petitioner, he concluded that petitioner was free of any active or acute mental disorder requiring treatment in a hospital environment, although he believed petitioner would benefit from supervised release. Dr. Gojkovich testified that people with paranoid personality disorders were prone to act out under stress, especially when under the influence of alcohol. In response to a question posed on direct examination as to the propensity of a person with a paranoid personality to be dangerous to others, Dr. Gojkovich testified that such a determination must be made on an individual basis. It was Dr. Gojkovich's opinion that petitioner was vulnerable. Should petitioner become intoxicated and provoked simultaneously, petitioner might more probably react than others. Dr. Gojkovich noted, however, that petitioner had a trouble-free record during his confinement in the hospital. Dr. Gojkovich also speculated that petitioner might have killed Sharp and Liebsch due to a pathological reaction to alcohol, a very unusual condition, although petitioner had never been diagnosed as suffering from this condition nor even tested for it. Dr. Gojkovich concluded that petitioner presently had fully recovered from any emotional or mental disorder or was in full remission.
Dr. Robert Reifman, whose stipulated testimony was offered into evidence by petitioner at his murder trial, testified for the State at the discharge hearing. Dr. Reifman last interviewed petitioner on December 13, 1978, approximately two months prior to the discharge hearing. The purpose of the examination which had been ordered by the court was to determine petitioner's current need for mental treatment. In Dr. Reifman's opinion, petitioner was delusional, suffering from schizophrenia paranoid type and was still in need of mental treatment. Dr. Reifman believed that there was a high degree of probability that petitioner would violently react under stressful circumstances in the foreseeable future and was still a danger to others. In making his diagnosis, Dr. Reifman had considered petitioner's previous history of violence, elicited during his interviews with petitioner.
Following the presentation of evidence and the arguments of counsel, the trial court denied the petition for discharge. The court based its decision on the following: (1) that the stipulated facts and evidence in the record showed that petitioner killed two people but was psychotic at the time of the occurrence; (2) that at least five psychiatrists had previously diagnosed petitioner as psychotic; (3) that at the time of his bench trial and prior to that time petitioner had a history of both psychosis and acts of violence; (4) that petitioner has been with the Department of Mental Health and had not demonstrated in that controlled environment any specific acts of violence; (5) that unresolved possibilities remained, however; should he be released the precipitating mental conditions bringing about his prior acts of violence could occur again such as alcohol; (6) that even though petitioner was still in or may be in remission, the underlying psychosis still exists; and (7) therefore, petitioner would reasonably be expected to be dangerous within a reasonable time. Petitioner appeals.
Petitioner has sought discharge pursuant to section 5-2-4 of the Unified Code of Corrections. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-2-4.) That section governs the proceedings for the commitment, discharge or conditional discharge of a defendant who has been acquitted of a felony by reason of insanity. However, subsequent to the denial of the defendant's discharge petition by the trial court, section 5-2-4 of the Unified Code of Corrections was amended, effective September 19, 1980, by Pub. Act No. 81-1497, 1980 Ill. Legis. Serv. 2277 (West). Subsection (1) of the 1980 amendment specifically provides that it shall apply to all persons who have been found not guilty by reason of insanity and "who are presently committed to the Department of Mental Health and Developmental Disabilities." (Pub. Act No. 81-1497, § 5-2-4(1), 1980 Ill. Legis. Serv. 2281 (West).) The 1980 amendment became effective during the pendency of petitioner's appeal to this court of the denial of his discharge petition.
• 1 Although under subsection (1) petitioner is an individual included within the scope of persons to whom the amendment is applicable, neither petitioner nor respondent brought the 1980 amendment to the attention of this court, nor argued its applicability to this case. Nevertheless, the general rule applies that where the legislature has amended a law during the pendency of an appeal, the case must be disposed of by the reviewing court under the law as it exists at the time its decision is rendered, and not as it existed at the time the decision was made by the trial court. Rios v. Jones (1976), 63 Ill.2d 488, 348 N.E.2d 825, appeal dismissed (1976), 429 U.S. 934, 50 L.Ed.2d 304, 97 S.Ct. 346.
The briefs filed by both petitioner and respondent in this case referred only to section 5-2-4 as it existed prior to amendment. As the pertinent provisions of the 1980 amendment were not discussed by either party, a review of the relevant provisions of the act as it existed at the ...