People v. Garlick

Mr. JUSTICE JONES, dissenting:

With principal reliance upon the Supreme Court case of Leland v. Oregon (1952), 343 U.S. 790 , 96 L. Ed. 1302 , 72 S. Ct. 1002 , I respectfully dissent.

“The defendant has been deprived of due process,” the majority says, while holding unconstitutional that statute which places upon defendant the burden of proving his incompetence to stand trial when it is he who raises the question of his competency. Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—1, (i) and (j).

The constitutionality of the statute was neither litigated during the trial nor questioned in defendant’s post-trial motion. Accordingly, the matter has been waived and defendant should have been, but was not, precluded from raising the question in this appeal. People v. Howell (1975), 60 Ill. 2d 117 , 324 N.E.2d 403 ; People v. Curry (1973), 56 Ill. 2d 162 , 306 N.E.2d 292 ; People v. Pickett (1973), 54 Ill. 2d 280 , 296 N.E.2d 856 .

A competency hearing is a preliminary civil proceeding in which the accused’s competency is to be determined by a preponderance of the evidence. (People v. Rosochacki (1969), 41 Ill. 2d 483 , 244 N.E.2d 136 ; People v. Bender (1960), 20 Ill. 2d 45 , 169 N.E.2d 328 ; People v. Reeves (1952), 412 Ill. 555 , 107 N.E.2d 861 ; People v. Cornelius (1946), 392 Ill. 599 , 65 N.E.2d 439 .) The significance of the fact that a proceeding to determine competency is civil in nature is amplified by the fact that in an appropriate case the court may direct a jury verdict of competency. (People v. Rosochacki; People v. Woods (1963), 26 Ill. 2d 557 , 188 N.E.2d 1 , cert. denied, 373 U.S. 945 , 10 L. Ed. 2d 699 , 83 S. Ct. 1555 .) In the Rosochacki case the supreme court affirmed the direction of a verdict of competency by applying the rule of Pedrick v. Peoria ir Eastern R.R. Co. (1967), 37 Ill. 2d 494 , 229 N.E.2d 504 .

What is due process of law depends on the circumstances. It varies with the subject matter and the necessities of the situation. By due process of law is meant one which, following the forms of law, is appropriate to the case, and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law. Hagar v. Reclamation District (1884), 111 U.S. 701, 708 , 28 L. Ed. 569, 572 , 4 S. Ct. 663 . “The essence of due process is the requirement that ‘a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.’ Joint Anti-Fascist Comm. v. McGrath, 341 U.S., at 171-72 (Frankfurter, J., concurring). All that is necessary is that the procedures be tailored, in light of the decision to be made, to ‘the capacities and circumstances of those who are to be heard,’ Goldberg v. Kelly, 397 U.S., at 268-269 (footnote omitted), to insure that they are given a meaningful opportunity to present their case.” Mathews v. Eldridge (1976), 424 U.S. 319, 348-49 , 47 L. Ed. 2d 18, 41 , 96 S. Ct. 893, 909 .

The due process clause of the fourteenth amendment of the U.S. Constitution does not control mere forms of procedure in State courts or regulate practice therein. Holmes v. Conway (1916), 241 U.S. 624 , 60 L. Ed. 1211 , 36 S. Ct. 681 ; Louisville & Nashville R.R. Co. v. Schmidt (1900), 177 U.S. 230 , 44 L. Ed. 747 , 20 S. Ct. 620 .

The establishment of presumptions and rules respecting the burden of proof is clearly within the domain of State governments. James-Dickinson Farm Mortgage Co. v. Harry (1927), 273 U.S. 119 , 71 L. Ed. 569 , 47 S. Ct. 308 ; Hawkins v. Bleakly (1917), 243 U.S. 210 , 61 L. Ed. 678 , 37 S. Ct. 255 .

In Simon v. Craft (1901), 182 U.S. 427 , 45 L. Ed. 1165 , 21 S. Ct. 836 , it was stated that thé due process clause of the fourteenth amendment does not necessitate that the proceedings in the State court be by a particular mode but only that there be a regular course of proceeding in which notice is given of the claim asserted and opportunity is afforded to defend against it.

In Leland v. Oregon, the foregoing principles were applied in a factual setting similar to that posed in the case under consideration. Although the statute in question dealt with insanity as a defense to a crime rather than with competency to stand trial, the governing due process principles are without question the same. I consider the Supreme Court’s disposition in Leland to be conclusive authority for the validity of the statute which the majority has voided.

In Leland defendant was charged with first degree murder. He entered a plea of not guilty and gave notice of his intention to prove insanity. Oregon statutes required appellant to prove his insanity beyond a reasonable doubt and made “a morbid propensity” no defense. The principal question as stated by the Supreme Court was whether the statute deprived defendant of life and liberty without due process of law as guaranteed by the fourteenth amendment.

The jury was told in instructions that the burden of proof of defendant’s guilt was upon the State and that this burden did not shift, but rested upon the State throughout the trial, just as, according to the instructions, appellant was presumed to be innocent until the jury was convinced beyond a reasonable doubt that he was guilty. The jurors were to consider separately the issue of legal sanity per se — an issue set apart from the crime charged, to be introduced by a special plea and decided by a special verdict. On this issue appellant had the burden of proof under the statute in question.

The Supreme Court stated:

“Today, Oregon is the only state that requires the accused, on a plea of insanity, to establish that defense beyond a reasonable doubt. Some twenty states, however, place the burden on the accused to establish his insanity by a preponderance of the evidence or some similar measure of persuasion. While there is an evident distinction between these two rules as to the quantum of proof required, we see no practical difference of such magnitude as to be significant in determining the constitutional question we face here. Oregon merely requires a heavier burden of proof. In each instance, in order to establish insanity as a complete defense to the charges preferred, the accused must prove that insanity. The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

Nor is this a case in which it is sought to enforce against the states a right which we have held to be secured to defendants in federal courts by the Bill of Rights. In Davis v. United States, supra, we adopted a rule of procedure for the federal courts which is contrary to that of Oregon. But ‘[i]ts procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.’ Snyder v. Massachusetts, supra, at 105 . ‘The judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice and is not to be based upon the idiosyncrasies of a merely personal judgment. ” # # An important safeguard against such merely individual judgment is an alert deference to the judgment of the state court under review.’ Mr. Justice Frankfurter, concurring in Malinski v. New York, 324 U.S. 401, 417 (1945). We are therefore reluctant to interfere with Oregon’s determination of its policy with respect to the burden of proof on the issue of sanity since we cannot say that policy violates generally accepted concepts of basic standards of justice.” (Emphasis supplied.) Leland v. State of Oregon, 343 U.S. 790, 798-99 , 96 L. Ed. 1302 , 1308-09, 72 S. Ct. 1002, 1007-08 .

A footnote to the opinion in Leland v. Oregon, 343 U.S. 790, 798 , 96 L. Ed. 1302 , 1308, 72 S. Ct. 1002 , 1007, noted the following:

“Twenty-two states, including Oregon are mentioned as holding that the accused has the burden of proving insanity, at least by a preponderance of the evidence, in 9 Wigmore, Evidence (3d ed. 1940 and Supp. 1951) §2501.”

The most definitive discussion of due process in the Illinois cases is found in People v. Niesrmn (1934), 356 Ill. 322, 325-26 , 190 N.E. 668 , where it was stated:

“Due process of law implies the administration of equal laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing. (McGehee on Due Process of Law, p. 1.) The guaranty of due process of law requires that every man shall have the protection of his day in court and the benefit of the general law, — a law which hears before it condemns, which proceeds not arbitrarily or capriciously but upon inquiry and renders judgment only after trial, so that every citizen shall hold his fife, liberty, property and immunities under the protection of the general rules which govern society. (Truax v. Corrigan, 257 U.S. 312 ; Simon v. Craft, 182 id. 427 ; Hurtado v. California, 110 id. 516; Ex parte Wall, 107 id. 265). An orderly proceeding in which a person is served with notice, actual or constructive, and has an opportunity to be heard and to protect and enforce his rights before a court having power to hear and determine the cause, is due process of law. (City of Chicago v. Cohn, 326 Ill. 372 , People v. Cohen, 219 id. 200). The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. Simon v. Craft, 182 U.S. 427 ; Lent v. Tillson, 140 id. 316; Turpin v. Lemon, 187 id. 51; City of Chicago v. Cohn, 326 Ill. 372 ."

The same attributes of due process are also noted in Griffin v. Cook County (1938), 369 Ill. 380 , 16 N.E.2d 906 ; and People ex rel. Nelson v. Depositors State Bank (1941), 377 Ill. 602 , 37 N.E.2d 326 .

Without question the case of People v. Bender, relied upon by the majority, stands for the proposition that it was a deprivation of due process when the court conducting his sanity 1 hearing instructed the jury and permitted argument that the burden of proving insanity was upon the defendant. However, the reason for that holding, in perfect accord with Leland v. Oregon and People v. Niesman, was that Bender was treated differently procedurally than others with which the court found him to be similarly situated. Under the statute governing the “sanity” of an accused to stand trial (Ill. Rev. Stat. 1953, ch. 38, par. 593) it had been long ago determined and consistently held that the burden to prove defendant’s sanity was on the State. (E.g., People v. Cornelius.) And, as stated by the court in Bender: “As we have observed, in the trial of a criminal case the burden is upon the State to prove defendant’s sanity. We see no reason why the burden of proof should shift to the defendant in a pretrial sanity hearing.” 20 Ill. 2d 45, 53 .

The essence of due process is the avoidance of arbitrariness in the application of law. Any criminal defendant, guilty or innocent, is entitled to a fair, orderly, and impartial trial in accordance with the law of the land. (People v. Black (1937), 367 Ill. 209 , 10 N.E.2d 801 ; People v. Wagoner (1956), 8 Ill. 2d 188 , 133 N.E.2d 24 .) It was the trial court’s failure to conduct defendant’s trial “in accordance with the law of the land” that led the court in Bender to find a violation of due process.

The other cases cited by the majority, McKinstray, Bedford, Thompson and Yonder, stand for the same proposition as People v. Bender and arose in the same factual manner, that is, in each instance the burden of proof of sanity to stand trial was placed on defendants, thereby subjecting them to treatment not accorded others under the governing statute.

Neither Bender nor any of the cases following it discuss the propriety of the legislature regulating the procedure and burden of proof in a sanity (competency) hearing within the purview of the due process clause. Under the authorities I have cited above I would find that the legislature plainly does have such power and that the statute in question here does comport with due process.

In view of the footnote to Leland v. Oregon, which notes that 22 States have statutes which cast the burden of proof of insanity upon a defendant, I find it unnecessary to discuss further authorities. I would mention, however, that other States have cast the burden of proof of competency to stand trial upon the defendant. Colorado (Gomez v. District Court (1972) 179 Colo. 299 , 500 P.2d 134 ); Louisiana (State v. Bastida (La. 1975), 310 So. 2d 629 ); New Mexico (State v. Armstrong (1971), 82 N.M. 358 , 482 P.2d 61 ); and Pennsylvania (Commonwealth v. Davis (1975), 459 Pa. 575 , 330 A.2d 847 ).

I also disagree with the majority in their conclusion that the admission of the gruesome photograph would constitute reversible error. It is well established that the admission into evidence of a photograph of a murder victim is within the sound discretion of the trial court, and when the photograph is relevant to establish any fact in issue it is admissible despite its gruesome nature. People v. Speck (1968), 41 Ill. 2d 177 , 242 N.E.2d 208 ; People v. Williams (1975), 60 Ill. 2d 1 , 322 N.E.2d 819 .

In the instant case Dr. Abelson testified regarding the nature and extent of the head wound, and the photograph could have been admitted to aid the jury in understanding his medical testimony. (People v. Smith (1972), 5 Ill. App. 3d 648 , 283 N.E.2d 727 ; People v. Johnson (1975), 28 Ill. App. 3d 139 , 327 N.E.2d 535 .) The mere fact that there was oral testimony describing the wound did not make the photograph unnecessarily cumulative. People v. Henenberg (1973), 55 Ill. 2d 5 , 302 N.E.2d 27 .

More importantly, however, the photograph was relevant in negating, at least partly, the defense of insanity. After defendant fired the shot into the Lamp home, he fled to the jail in McLeansboro where he announced that he “had just blew his old lady’s head off.” The photograph depicted the condition of Rosalinda Garlick, which defendant very likely saw before he fled. In that respect, the photograph coupled with the flight would tend to show that defendant did have sufficient capacity to appreciate the criminality of his conduct. The court did not abuse its discretion in admitting the photograph.

In 1963 the legislature amended the applicable statute to substitute “incompetency” for the earlier descriptive word “insanity,” and in 1973 the terminology was again changed to “unfitness.”