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07/26/88 the People of the State of v. Billie Gene Hightower

July 26, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BILLIE GENE HIGHTOWER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

526 N.E.2d 1129, 172 Ill. App. 3d 678, 122 Ill. Dec. 590 1988.IL.1151

Appeal from the Circuit Court of Williamson County; the Hon. Robert H. Howerton, Judge, presiding.

APPELLATE Judges:

JUSTICE CALVO delivered the opinion of the court. HARRISON, P.J., and LEWIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO

The circuit court of Williamson County sentenced defendant, Billie Gene Hightower, to 25 years of imprisonment after a jury found defendant guilty of the murder of his wife, Cathy C. Hightower. Defendant alleged that he was insane at the time of the commission of the offense. Both parties presented expert testimony regarding defendant's sanity, and the jury was instructed, pursuant to section 3-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 3-2), that defendant had the burden to prove by a preponderance of the evidence that he was not guilty by reason of insanity. The sole issue defendant presents on appeal is whether section 3-2 (Ill. Rev. Stat. 1985, ch. 38, par. 3-2) violates the due process provisions of the United States Constitution and Illinois Constitution.

Prior to 1984, section 3 -- 2 read as follows:

"(a) 'Affirmative defense' means that unless the State's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.

(b) If the issue involved in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 3-2 (hereinafter old section 3-2).)

The Illinois legislature changed the statute in 1984 to provide the following:

"(a) 'Affirmative defense' means that unless the State's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.

(b) If the issue involved in an affirmative defense, other than insanity, is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense. If the affirmative defense of insanity is raised, the defendant bears the burden of proving by a preponderance of the evidence his insanity at the time of the offense." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 3-2 (hereinafter new section 3-2).)

Defendant argues that the change in the law is unconstitutional because it places the burden on the defendant to prove his insanity when the State has the burden to prove all of the elements of the offense against a defendant. The State essentially argues that sanity is not an element of the crime, so that the statute does not unconstitutionally shift the burden of proof.

We hold that section 3-2 does not offend the due process clause of the United States Constitution. The familiar passage of the Constitution states that no one shall be deprived "of life, liberty, or property without due process of law." (U.S. Const., amend. XIV.) In 1952, the Supreme Court upheld an Oregon statute which required a defendant to prove his insanity beyond a reasonable doubt. (Leland v. Oregon (1952), 343 U.S. 790, 96 L. Ed. 1302, 72 S. Ct. 1002.) Eighteen years later, the Court held that the due process clause of the Constitution required the State to prove beyond a reasonable doubt every element of a crime charged against a defendant. (In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068; Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881.) In 1976, the Delaware Supreme Court followed Leland and upheld the constitutionality of its statute which required a defendant to prove his or her insanity by a preponderance of the evidence. (Rivera v. Delaware (Del. 1976), 351 A.2d 561.) The Supreme Court refused to review Rivera for lack of a substantial Federal question. (Rivera v. Delaware (Del. 1976), 351 A.2d 561, appeal dismissed (1976), 429 U.S. 877, 50 L. Ed. 2d 160, 97 S. Ct. 226.) One year later, the Supreme Court refused to reconsider either Leland or Rivera. (Patterson v. New York (1977), 432 U.S. 197, 207, 53 L. Ed. 2d 281, 290, 97 S. Ct. 2319, 2325.) Some State and Federal courts have interpreted the Court's actions in Rivera and Patterson to mean that Leland does not violate the due process requirement established in Winship and Mullaney. (See Boswell v. State (1979), 243 Ga. 732, 732, 256 S.E.2d 470, 471; Price v. State (1980), 274 Ind. 479, 483, 412 N.E.2d 783, 785; In re Certified Question (1986), 425 Mich. 457, 468, 390 N.W.2d 620, 624; State v. Bowling (1986), 151 Ariz. 230, 232, 726 P.2d 1099, 1101; Grace v. Hopper (5th Cir. 1978), 566 F.2d 507, 509; Nelson v. Hutto (8th Cir. 1979), 597 F.2d 137, 138.) One Illinois appellate court has just recently held that section 6-2(e) (Ill. Rev. Stat. 1985, ch. 38, par. 6-2(e)), which simply reiterates the burden of proof standard for insanity contained in section 3-2, is constitutional under the due process clause of the United States Constitution pursuant to Rivera and Patterson. (People v. Martin (1988), 166 Ill. App. 3d 428, 436, 519 N.E.2d 1085, 1090.) We, likewise, hold that based on this line of Supreme Court cases, section 3-2 does not offend the due process clause of the United States Constitution.

Even though section 3 -- 2 passes muster under the United States Constitution, it may still be violative of the Illinois Constitution. A "state cannot deny a right or impose a liability which is contrary to the federal concept of due process," but it can "create [additional] protections for its citizens which might not be required under the federal concept." (People v. District Court for County of Jefferson (1968), 165 Colo. 253, 261, 439 P.2d 741, 745.) Consequently, we must decide whether our State's due process right, as interpreted by our courts, establishes stricter guidelines in this area of the law such that section 3 -- 2 violates our constitution. We note that this case presents for the first time the issue of whether this statute violates the due process provision of our State Constitution.

The Illinois Constitution contains the exact language found in the due process clause of the United States Constitution; namely, that no person shall be deprived "of life, liberty or property without due process of law." (Ill. Const. 1970, art. I, § 2.) This, however, does not end our inquiry. Although the language of the two constitutions is the same, the scope of Illinois' due process provision need not be identical to that of the United States Constitution. As we just noted, the constitution of Illinois affords no less protection than the United States Constitution, but it may provide more protection.

The State argues that the constitutions of Illinois and the United States guarantee equal due process rights. The State points to Knight v. Board of Education (1976), 38 Ill. App. 3d 603, 348 N.E.2d 299, to support its proposition. Knight, however, only held that "[ as ] applied to the actions of a State agency upon an individual, the Illinois due process clause guarantees the same rights as does the due process clause of the Fourteenth Amendment." (Emphasis added.) (Knight, 38 Ill. App. 3d at 606, 348 N.E.2d at 301.) The case at bar does not involve the actions of a State agency upon an individual, so Knight is inapplicable. We must, therefore, separately analyze the boundaries of the Illinois due process clause as it concerns the burden of proof of the sanity of a defendant in a criminal case.

Defendant's argument follows four avenues of thought. He first contends that Illinois case law has established that once a defendant produces enough evidence to rebut the presumption of sanity, sanity becomes an element of a crime. Thus, defendant argues that because the State has the burden to prove beyond a reasonable doubt all the elements of a crime charged against a defendant (In re Winship, 397 U.S. at 364, 25 L. Ed. 2d at 375, 90 S. Ct. at 1072-73; People v. Weinstein (1966), 35 Ill. 2d 467, 470, 220 N.E.2d 432, 434), the statute unconstitutionally shifts the burden of proof. We note that sanity is not a per se element of a crime. Under both old section 3-2 and new section 3-2, a defendant is presumed sane. Only if the defendant presents enough evidence to rebut the presumption is the issue of sanity, and the burden of proof thereof, raised. (Ill. Rev. Stat. 1981, ch. 38, par. 3-2(a); Ill. Rev. Stat. 1985, ch. 38, par. 3-2(a); People v. Burnside (1977), 52 Ill. App. 3d 524, 528, 367 N.E.2d 733, 737.) Defendant, however, is correct that "the prosecution has the burden of proving beyond a reasonable doubt all the material and essential facts constituting the crime." (Weinstein, 35 Ill. 2d at 470, 220 N.E.2d at 434.) Consequently, if sanity is an element of an offense, then the State must bear the burden of proving sanity.

Defendant cites several cases in support of his proposition that sanity is a separate element of an offense, but we believe that defendant has misinterpreted the cases he cites for this proposition. Defendant points to the language in the following cases:

"Under the law of this State the presumption [of sanity] is overcome by evidence, tending to prove insanity of the accused, which is sufficient to raise a reasonable doubt of sanity at the time of the commission of the act for which the accused is sought to be held accountable. When that is done the presumption of sanity ceases and the prosecution is then required to prove the sanity of the accused beyond a reasonable doubt, as a necessary ...


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