Appeal from the Circuit Court of Winnebago County. No. 01--CF--1783 Honorable Rosemary Collins, Judge, Presiding.
The opinion of the court was delivered by: Justice Geiger.
The defendant, Willard Purcell, has filed the instant appeal pursuant to Supreme Court Rule 604(c) (188 Ill. 2d R. 604(c)), seeking review of the September 10, 2001, order of the circuit court of Winnebago County denying bail. On appeal, the defendant argues (1) that section 110--4(b) of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/110--4(b) (West 2000)) is unconstitutional; and (2) that the trial court erred in denying his request for pretrial bail.
On August 2001, the defendant was arrested and indicted on four counts of first-degree murder (720 ILCS 5/9--1(a)(2), (a)(3), (b)(19) (West 2000)). The defendant was alleged to have killed his wife, Barbara Purcell, by striking her repeatedly in the head with a blunt object. If convicted of the charged offense, the defendant may receive a sentence of life imprisonment. 730 ILCS 5/5--8--1(a)(1)(b) (West 2000).
Following his arrest, the defendant filed a motion requesting bail. The defendant also filed a motion seeking a determination that section 110--4 of the Code (725 ILCS 5/110--4 (West 2000)) is unconstitutional. Section 110--4(a) provides that a defendant may not obtain bail where "the proof is evident or the presumption great" that the defendant committed a capital offense or an offense for which he may be sentenced to life imprisonment. 725 ILCS 5/110--4(a) (West 2000). Section 110--4(b) places the burden of demonstrating that the proof of guilt is not evident and the presumption of guilt not great upon the individual seeking release on bail. 725 ILCS 5/110--4(b) (West 2000). In his motion before the trial court, the defendant argued that subsection (b) violates the presumption of innocence accorded to criminal defendants while awaiting trial. See Stack v. Boyle, 342 U.S. 1, 96 L. Ed. 3, 72 S. Ct. 1 (1951).
On August 15, 2001, the trial court denied the defendant's motion to declare section 110--4(b) of the Code unconstitutional. Then, on September 10, 2001, following a hearing, the trial court denied the defendant's motion for pretrial bail. The trial court found that the defendant did not meet his burden of demonstrating that the proof of his guilt was not evident and that the presumption of his guilt was not great. The defendant then filed the instant appeal pursuant to Supreme Court Rule 604(c).
We will first address the defendant's constitutional argument. The right of an accused to obtain pretrial bail is governed by article I, section 9, of the Illinois Constitution of 1970. Ill. Const. 1970, art. I, §9. That section provides:
"All persons shall be bailable by sufficient sureties, except the following offenses where the proof is evident or the presumption great: capital offenses and offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction ***." Ill. Const. 1970, art. I, §9.
Section 110--4 of the Code is a codification of this constitutional provision. That section provides:
"(a) All persons shall be bailable before conviction, except the following offenses where the proof is evident or the presumption great that the defendant is guilty of the offense: capital offenses and offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction ***.
(b) A person seeking release on bail who is charged with a capital offense or an offense for which a sentence of life imprisonment may be imposed shall not be bailable until a hearing is held wherein such person has the burden of demonstrating that the proof of his guilt is not evident and the presumption is not great." 725 ILCS 5/110--4 (West 2000).
Subsection (b) goes beyond the language of article I, section 9, and was added to clarify the issues of proof that might arise during bail proceedings. 725 ILCS Ann. 5/110--4, Committee Comments--1963, at 48 (Smith-Hurd 1992). The language contained in this subsection was taken from section 68(2) of the Code of Criminal Procedure promulgated by the American Law Institute in 1930. ALI Code of Criminal Procedure §68(2) (1930). Under this provision, the burden falls upon the defendant seeking pretrial bail to establish that the proof of his guilt is not substantial.
As the defendant correctly notes, the due process clauses of both the United States and the Illinois Constitutions guarantee the accused that he will not be convicted on proof less than reasonable doubt of every fact necessary to constitute the crime with which he is charged. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2; Sullivan v. Louisiana, 508 U.S. 275, 277-78, 124 L. Ed. 2d 182, 187-88, 113 S. Ct. 2078, 2080 (1993). The complement to this guarantee is that the State bears the burden of proof and that the accused is presumed innocent. People v. Devine, 295 Ill. App. 3d 537, 544 (1998). The presumption of innocence attaches to the accused from the onset of the proceedings and is one of the underpinnings of an accused's right to bail. See Stack, 342 U.S. at 4, 96 L. Ed. at 6, 72 S. Ct. at 3. The traditional right to freedom before conviction permits the unhampered preparation of a defense and serves to prevent the infliction of punishment prior to conviction. Stack, 342 U.S. at 4, 96 L. Ed. at 6, 72 S. Ct. at 3.
The question of whether section 110--4(b) infringes upon an accused's presumption of innocence has not previously been addressed by an Illinois court. However, Illinois' constitutional bail provision is not unique; the constitutions of most states contain similar provisions guaranteeing bail to the accused, except in cases punishable by death or life imprisonment where the proof is evident or the presumption great. As a result, there are a number of reported cases nationwide in which courts have considered the question of whether the State or the accused bears the burden during a bail hearing for an offense for which death or life imprisonment may be imposed, to show, or to disprove, that the proof is evident or the presumption great. See H. Hirschberg, Annotation, Upon Whom Rests Burden of Proof, Where Bail is Sought Before Judgment But After Indictment in Capital Case, as to ...