author: MR. JUSTICE UNDERWOOD

text:
    (No. 50913.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES E. TAYLOR, Appellant.

      Opinion filed June 8, 1979.

      Mary Robinson, Michael Mulder, and Ralph Ruebner, of the Office of the State Appellate Defender, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Gerri Papushkewych, Assistant Attorneys General, of Chicago, and William L. Browers, of the State’s Attorney’s Appellate Service Commission, of Elgin, of counsel), for the People.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On December 9, 1976, defendant, James Earl Taylor, was convicted in a bench trial of burglary, armed robbery and rape, and was sentenced to concurrent terms of 6 to 18 years for the two latter offenses. Defendant was 16 years old when the crimes were committed and 17 at the time of trial. On August 12, 1976, before defendant’s criminal trial, the circuit court of Winnebago County had held a transfer hearing pursuant to section 2 — 7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702 — 7(3)) and at its conclusion had ordered that defendant be tried as an adult for the crimes charged. On appeal, defendant argued that the statute permitting transfer of juveniles to criminal court was unconstitutional in that it denied juveniles due process of law; that the trial court should have suppressed a confession defendant gave police; and that the evidence at defendant’s trial had been insufficient to prove his guilt beyond a reasonable doubt. The appellate court found the transfer statute constitutional, but agreed with defendant that his confession should have been suppressed. That court therefore reversed and remanded, finding no need to consider whether the evidence at trial had been sufficient to support defendant’s conviction. (61 Ill. App. 3d 37.) We allowed defendant leave to appeal.

At trial the complaining witness, a 70-year-old woman who lived alone, testified that one night in late July 1976 an intruder broke into her home by removing the dining room window screen. She heard a noise and, turning, saw a black man sitting in the window. When she ran to the front door screaming, the man stopped her, pulled a knife and threatened to kill her if she screamed again. He then tied her hands, covered her head and raped her. Next he made her get her purse and went through it while sitting on top of her. The last time she knew, several months earlier, the purse had contained $2,000 and she never took it out of the house. After the intruder left, the money was missing. The witness could not identify defendant, but the dining room window screen, found outside the home, had defendant’s fingerprint on it.

Defendant was arrested at 9:30 on the morning of July 30, 1976. He was given incomplete Miranda warnings and questioned. When defendant asked to talk to an attorney, he was allowed to place a call and, receiving no answer, leave a message. Questioning continued. The attorney returned defendant’s call and refused to take the case. Defendant told police “he would rather have Mr. Olson but he didn’t know who to get now”; he was upset and crying. Questioning nevertheless continued, and defendant gave a signed statement at 3 p.m., admitting that he went to the victim’s house with another man, but stating that he ran away when the other entered. At 10:45 that night defendant gave another signed statement, admitting the burglary and armed robbery but denying the rape. At sometime during the giving of this statement defendant asked whether he should have an attorney and was told that it was up to him. At 10:30 the following morning defendant was given full Miranda warnings and he signed a waiver form. The officers present testified that he made no specific request for an attorney. He thereafter gave an oral statement admitting the rape as well as the other offenses. The trial court held the first two confessions inadmissible because police elicited them after defendant had requested an attorney. The court held the third confession admissible, however, because defendant had validly waived his right to counsel. The appellate court reversed, holding that the State had not met its “heavy burden” of showing that defendant had waived his previously invoked right to counsel. 61 Ill. App. 3d 37, 44.

Section 2 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702 — 7(3)) provides:

“(3) If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, and, on motion of the State’s Attorney, a Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine such motions, after investigation and hearing but before commencement of the adjudicatory hearing, finds that it is not in the best interests of the minor or of the public to proceed under this Act, the court may enter an order permitting prosecution under the criminal laws.
(a) In making its determination on a motion to permit prosecution under the criminal laws, the court shall consider among other matters: (1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority. The rules of evidence shall be the same as under Section 5 — 1 of this Act.”

Defendant argues that the statute denies juveniles due process in that (1) the judge is not required to state his reasons for ordering the transfer; (2) no standard of proof is articulated; (3) the relaxed rules of evidence used at dispositional hearings are prescribed; (4) the judge is not required to weigh the specified criteria according to a set formula; (5) the juvenile may not appeal a transfer order until after his trial. In sum, defendant contends that the statute does not adequately safeguard the juvenile’s rights at a critically important stage of the proceedings against him because it does not sufficiently circumscribe the untrammeled and potentially arbitrary discretion of the judge.

We do not agree that the statute is constitutionally deficient. The starting point for any due process analysis of juvenile transfer statutes is Kent v. United States (1966), 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045. Interpreting the requirement of “full investigation” in the District of Columbia Juvenile Court Act, and recognizing the “critically important” nature of the transfer proceedings to the juvenile, the Supreme Court there held that certain procedural safeguards must attend a decision to transfer:

“[W]e conclude that, as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court’s decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.” (383 U.S. 541, 557, 16 L. Ed. 2d 84, 95, 86 S. Ct. 1045, 1055.)

Although the Kent decision rests primarily on statutory construction, the suggestion that the safeguards outlined there were guaranteed by due process was reinforced by a subsequent reference to Kent in In re Gault (1967), 387 U.S. 1, 30, 18 L. Ed. 2d 527, 547-48, 87 S. Ct. 1428, 1445. As the United States Court of Appeals for the Fourth Circuit has said:

“Whether Gault and Kent, taken together, form a constitutional imperative as to juvenile waiver proceedings is not self-evident. However, Kent and Gault do make it unquestionably clear that juvenile court proceedings that affect a young person’s substantial rights ‘must measure up to the essentials of due process and fair treatment’ [In re Gault (1967), 387 U.S. 1, 30, 18 L. Ed. 2d 527, 548, 87 S. Ct. 1428, 1445].” Kemplen v. Maryland (4th Cir. 1970), 428 F.2d 169, 173.

See In re Beasley (1977), 66 Ill. 2d 385, 391.

The statute challenged here became effective on October 1, 1973. Under prior law, transfer of juveniles to criminal court had been largely a matter of prosecutorial discretion. (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 7(3); People v. Sprinkle (1974), 56 Ill. 2d 257.) Unlike the prior law, the present statute closely parallels the District of Columbia transfer statute as interpreted by the Supreme Court in Kent. Indeed the council commentary to the new provision indicates that the statute was amended in response to the Kent decision. (Ill. Ann. Stat., ch. 37, par. 702 — 7, Council Commentary, at 81 (Smith-Hurd Supp. 1979).) The six criteria that the statute sets out for the judge to consider closely follow the District of Columbia criteria set out in an appendix to the Kent opinion. (383 U.S. 541, 566, 16 L. Ed. 2d 84, 100, 86 S. Ct. 1045, 1060.) Again the council commentary notes that, although prior law had not specified such standards, “[c] riteria for transfer suggested by the Kent case are now listed in the section.” (Ill. Ann. Stat., ch. 37, par. 702 — 7, CouncE Commentary, at 81 (Smith-Hurd Supp. 1979).) We think that the evidence that the legislature expressly followed the Supreme Court’s guidelines in drafting the present transfer statute reinforces the normal presumption of constitutionality that attaches to all statutes. We note that the only court to consider the constitutionality of this statute rejected a claim that the statutory standards were too ambiguous, holding that they were “specific enough to satisfy due process.” United States ex rel. Pedrosa v. Sielaf (N.D. Ill. 1977), 434 F. Supp. 493, 497.

Turning to defendant’s specific arguments, we believe he may not properly claim that he was denied due process because the statute does not require the judge to state his reasons for ordering a transfer; here the judge did state his reasons. The judge found sufficient evidence for a grand jury to return an indictment for the crimes charged, as well as evidence that the crimes were committed in an aggressive, premeditated and violent manner. He further took judicial notice of the juvenile court file showing that defendant had an extensive prior history of delinquency. Finally, he found, based on expert testimony, that there were no juvenile facilities available for dealing adequately with one in defendant’s situation and that transfer was in the best interests of defendant and the People. We nonetheless comment on defendant’s argument.

The Supreme Court in Kent held that the juvenile court must “accompany its waiver order with a statement of the reasons or considerations therefor *** with sufficient specificity to permit meaningful review.” (383 U.S. 541, 561, 16 L. Ed. 2d 84, 97, 86 S. Ct. 1045, 1057.) The court indicated, however:

“We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact.” (383 U.S. 541, 561, 16 L. Ed. 2d 84, 97, 86 S. Ct. 1045, 1057.)

According to our interpretation of the Illinois transfer statute, the role of the appellate court is to determine whether, in evaluating the evidence in light of the statutory criteria, the juvenile judge has abused his discretion. (People v. Underwood (1977), 50 Ill. App. 3d 908.) Therefore, while no formal statement of reasons or conventional findings of fact are necessary, the juvenile judge must take care to preserve a record sufficiently explicit so that his exercise of discretion may be reviewed meaningfully. The trial judge in the present case made findings of fact, and the council commentary appears to favor a formal statement of reasons. Neither the statute nor Kent, however, precludes more informal means of preserving a record sufficiently adequate to ensure meaningful review. We note that other courts considering this issue have reached the same conclusion. The Supreme Court of Montana has said:

“We do not construe the provisions of the Montana Juvenile Court Act as requiring conventional findings of fact or an express, formal statement of the reasons for ordering the waiver and transfer. If the reasons motivating the exercise of the juvenile court’s discretion in ordering the waiver and transfer sufficiently appear in the record of the hearing to permit meaningful appellate review of the discretion exercised, constitutional requirements are satisfied.” Lujan v. District Court (1973), 161 Mont. 287, 295, 505 P.2d 896, 900-01.

See also In re Welfare of I.Q.S. (1976), 309 Minn. 78, 86, 244 N.W.2d 30, 38; Lewis v. State (1970), 86 Nev. 889, 894, 478 P.2d 168, 171.

We consider next defendant’s contention that the statute denied him due process by failing to articulate a standard of proof, by prescribing for transfer hearings the relaxed rules of evidence used at dispositional hearings, and by failing to specify a formula according to which the judge must weigh the six criteria that the statute lists for his consideration. The statute provides that “[t] he rules of evidence shall be the same as under Section 5 — 1 of this Act” (Ill. Rev. Stat. 1975, ch. 37, par. 702-7(3)(a)), and the council commentary refers, albeit with a typographical error, to the same section for the standard of proof. Section 5 — 1(1) provides:

“After adjudging the minor a ward of the court, the court shall hear evidence on the question of the proper disposition best serving the interests of the minor and the public. All evidence helpful in determining this question, including oral and written reports, may be admitted and may be relied upon to the extent of its probative value, even though not competent for the purposes of the adjudicatory hearing. ***” (Ill. Rev. Stat. 1975, ch. 37, par. 705 — 1(1).)

Defendant contends that in order to comport with due process requirements the statute must render hearsay inadmissible and provide that the State prove by “clear and convincing evidence” that transfer would be in the best interests of the minor and the public. We do not agree.

The standard for determining what due process requires in any juvenile proceeding is “fundamental fairness.” (McKeiver v. Pennsylvania (1971), 403 U.S. 528, 543, 29 L. Ed. 2d 647, 659, 91 S. Ct. 1976, 1985.) To determine what specific procedural safeguards fundamental fairness requires in the context of a particular proceeding, one must understand the nature of the proceeding. The salient feature of the transfer hearing challenged here is that it is not adjudicatory in nature. Regardless of the importance of such a hearing to the juvenile, it does not determine guilt or innocence. Rather, as the statute recognizes, the hearing is dispositional in nature, determining the forum in which guilt or innocence is to be adjudicated. As the Supreme Court of Washington has said:

“In determining whether the essentials of due process and fair treatment were provided in the instant case, it is important to keep in mind the exact nature of a juvenile court transfer hearing. Such a hearing does not result in a determination of delinquency ***; does not result in a determination of guilt as may a criminal trial; and does not directly result in confinement or other punishment as may both a delinquency hearing and a criminal proceeding. In short, the transfer hearing is not an adversary proceeding. Rather, the sole purpose of the transfer hearing, as we have recently said, is to determine ‘whether best interests of the child and of society would be served by the retention of the juvenile court authority over him or whether the juvenile, under all the circumstances, should be transferred to be tried as an adult.’ [Citation.] We believe that this purpose may best be effectuated by the sound exercise of the juvenile court judge’s discretion at an informal hearing, limited of course by the general requirements of due process and fair treatment, but not governed by the strict rules of procedure and evidence applicable at either a criminal trial or at a juvenile court delinquency hearing.” State v. Piche (1968), 74 Wash. 2d 9, 14, 442 P.2d 632, 635-36, cert. denied (1969), 393 U.S. 1041, 21 L. Ed. 2d 588, 89 S. Ct. 666.

See also Clemons v. State (1974), 162 Ind. App. 50, 58-60, 317 N.E.2d 859, 864-65; State v. Carmichael (1973), 35 Ohio St. 2d 1, 298 N.E.2d 568; In re Murphy (1972), 15 Md. App. 434, 291 A.2d 867.

We agree with the Supreme Court of Washington. The transfer hearing not being adjudicatory, the procedural safeguards required at criminal trials and adjudications of delinquency are not mandated by due process. We hold that under our statute the State need only present evidence sufficient to persuade the trial court, in the sound exercise of its discretion, that in light of the statutorily prescribed criteria transfer is warranted.

As regards the standard of proof, we note that the Uniform Juvenile Court Act suggests only a probable cause standard:

“[T]he court *** may transfer the offense for prosecution to the appropriate court having jurisdiction of the offense if: *** (4) the court finds that there are reasonable grounds to believe that (i) the child committed the delinquent act alleged; (ii) the child is not amenable to treatment or rehabilitation as a juvenile through available facilities; (iii) the child is not committable to an institution for the mentally retarded or mentally ill; and (iv) the interests of the community require that the child be placed under legal restraint or discipline.” (9 Uniform Laws Annotated, Uniform Juvenile Court Act, sec. 34(a)(4), at 429 (master ed. 1973).)

Although evidence of the juvenile’s guilt is among the statutory criteria, it is apparent that the greater the evidence of guilt required to be submitted by the State, the greater the likelihood of double jeopardy problems with the subsequent trial. See Breed v. Jones (1975), 421 U.S. 519, 541, 44 L. Ed. 2d 346, 362, 95 S. Ct. 1779, 1791.

The admission of social records containing hearsay is inherent in the nature of a dispositional hearing. The Supreme Court of Wisconsin quoted with approval the following characterization of a Federal district court:

“Unlike a typical criminal action, a juvenile waiver proceeding vests the judge with a wide amount of discretion in making his determination. In his decision making, the juvenile judge does not simply deal with a specific factual incident in the accused’s life as does a criminal court judge, but rather the juvenile judge must consider the juvenile’s past, his future, his mind, and his acts and then balance these factors against the safety, needs, and demands of society.” (In re F. R. W. (1973), 61 Wis. 2d 193, 210, 212 N.W.2d 130, 139, quoting Miller v. Quatsoe (E.D. Wis. 1971), 332 F. Supp. 1269, 1275)

The use of documentary or testimonial evidence of a reliable nature, even though hearsay, constitutes a much less time-consuming method of proof very nearly essential to this type of hearing. Its use in that context is not, in our judgment, constitutionally impermissible.

Finally, as regards assignment of weights to the statutory criteria, we note that the appendix to the Kent opinion comments as follows on the criteria listed there, on which the Illinois criteria are modeled:

“Although not all such factors will be involved in an individual case, the Judge will consider the relevant factors in a specific case before reaching a conclusion to waive juvenile jurisdiction and transfer the case to the U. S. District Court for the District of Columbia for trial under the adult procedures of that Court.” (Kent v. United States (1966), 383 U.S. 541, 567-68, 16 L. Ed. 2d 84, 101, 86 S. Ct. 1045, 1060.)

We believe it is not constitutionally required and would not be feasible for the statute to prescribe a mathematical formula to govern the judge’s discretion. As the Maryland court of special appeals said of a similar constitutional challenge:

“Of course, not all of the relevant factors under Section 70 — 16 need be resolved against the juvenile to justify the waiver of jurisdiction. Nor is there any utility in requiring the court to make an arithmetic-type calculation as to the weight given by it to each factor.” Hazell v. State (1971), 12 Md. App. 144, 155, 277 A.2d 639, 645.

The United States Supreme Court has recognized the constitutionality of the judicial discretion and lack of formal procedure inherent in the juvenile transfer proceeding. In Kent the court observed of the statute that it upheld:

“The statute gives the Juvenile Court a substantial degree of discretion as to the factual considerations to be evaluated, the weight to be given them and the conclusion to be reached.” (383 U.S. 541, 553, 16 L. Ed. 2d 84, 93, 86 S. Ct. 1045, 1053.)

Later in its opinion, after holding that a hearing was required for juvenile transfer, the court explained:

“We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” (383 U.S. 541, 562, 16 L. Ed. 2d 84, 97-98, 86 S. Ct. 1045, 1057.)

Subsequently, in Breed v. Jones (1975), 421 U.S. 519, 537, 44 L. Ed. 2d 346, 360, 95 S. Ct. 1779, 1790, the court noted:

“However, the Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court. We require only that, whatever the relevant criteria, and whatever the evidence demanded, a State determine whether it wants to treat a juvenile within the juvenile-court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, strain, and embarrassment of two such proceedings.”

These observations not only indicate that the procedures urged by defendant are not constitutionally compelled, but also suggest that they are not desirable. The end result of excluding hearsay and placing a burden of clear and convincing evidence on the State would be to make the proceedings more formal and adversarial, thus increasing the expense, delay, strain and embarrassment that are the warning signs of double jeopardy problems. We think the best general answer to defendant’s position is the Supreme Court’s comment in McKeiver v. Pennsylvania (1971), 403 U.S. 528, 551, 29 L. Ed. 2d 647, 664, 91 S. Ct. 1976, 1989:

“If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day, but for the moment we are disinclined to give impetus to it.”

We consider next defendant’s argument that he was denied due process because he was not permitted to appeal the transfer order until after his trial. We see no reason to believe that a right of interlocutory appeal is constitutionally compelled here, and defendant has cited no authority that so holds. We note that the District of Columbia statute upheld in Kent had no such provision. (D.C. Code sec. 11 — 914 (1961), cited in Kent v. United States 383 U.S. 541, 547-48 & n.6, 16 L. Ed. 2d 84, 90 & n.6, 86 S. Ct. 1045, 1050 & n.6.) Moreover, when a party is threatened with a loss of important rights, procedural due process ordinarily requires a meaningful opportunity to be heard, but not a right to immediate appeal before the decision is implemented. (See, e.g., Morrissey v. Brewer (1972), 408 U.S. 471, 489, 33 L. Ed. 2d 484, 499, 92 S. Ct. 2593, 2609, and Gagnon v. Scarpelli (1973), 411 U.S. 778, 782, 36 L. Ed. 2d 656, 661-62, 93 S. Ct. 1756, 1759-60 (loss of liberty); Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (loss of good-time credits); Goldberg v. Kelly (1970), 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (loss of welfare benefits).) Furthermore, as regards the wisdom of allowing such an appeal, we intimated in People v. Martin (1977), 67 Ill. 2d 462, that, if called upon to do so, we would reaffirm our holding in People v. Jiles (1969), 43 Ill. 2d 145. In Jiles, we held that under the predecessor provision of section 2 — 7 the juvenile had no right to an interlocutory appeal from a transfer order, noting, “To permit interlocutory review would subordinate [the issue of guilt or innocence] and defer its consideration while the question of the punishment appropriate for a suspect whose guilt has not yet been ascertained is being litigated in reviewing courts.” (43 Ill. 2d 145, 150.) The evils of delay — failing memories of witnesses, as well as their increasing unavailability — seriously jeopardize the prospect of a just disposition, as this court observed in Jiles. 43 Ill. 2d 145, 150.

Defendant nonetheless argues that a more serious consequence of delay exists here in that delaying a determination of the propriety of the transfer order until the appeal from a criminal conviction denies him the benefits of treatment as a juvenile. That argument overstates the fact. Defendant cites no authority holding that his attainment of his 17th birthday precludes subsequent treatment as a juvenile for conduct occurring prior to his becoming 17. Section 1 — 13 of our Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 701 — 13) defines “minor” as “a person under the age of 21 years ***,” and section 2 — 2 (Ill. Rev. Stat. 1975, ch. 37, par. 702 — 2) defines a delinquent as “any minor who prior to his 17th birthday has violated or attempted to violate *** any federal or state law or municipal ordinance.” Subsequent sections dealing with the initiation and disposition of delinquency proceedings (Ill. Rev. Stat. 1975, ch. 37, pars. 704 — 1, 705 — 1 through 705 — 7) speak of “minors” or “minors under this Act,” and it seems apparent that delay of juvenile proceedings beyond the 17th birthday does not preclude their use for conduct occurring prior to the 17th birthday so long as the juvenile is still under 21. True, some types of disposition available at 16 may not be available at 18 (see, e.g., Ill. Rev. Stat. 1975, ch. 37, par. 705 — 2), but even the interlocutory appeal sought by defendant might well involve that result. This seems particularly pertinent when one considers that, broadly speaking, our cases tend to demonstrate that, as here, it is the older juveniles who are likely to be transferred and prosecuted criminally.

The appellate court did not reach the question whether the evidence adduced at trial was sufficient to sustain defendant’s conviction for armed robbery. We agree with defendant that this was error. When an appellate court reverses a criminal conviction and remands the case for a new trial without deciding defendant’s contention that the evidence at the first trial was insufficient, we believe that the court risks subjecting the defendant to double jeopardy. The United States Supreme Court has held:

“The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.” (Burks v. United States (1978), 437 U.S. 1, 11, 57 L. Ed. 2d 1, 9, 98 S. Ct. 2141, 2147.)

We do not agree, however, that the evidence here was insufficient to support the armed robbery conviction, as defendant argues. Although the complaining witness testified that she had not checked the zipper part of her purse, where she kept the $2,000, for two or three months, she also testified that she lived alone and never took the purse out of the house. Our holding in no way implies, of course, as the State suggests, that we have made a finding as to defendant’s guilt that would be binding on the court on retrial.

Defendant’s final argument is that because he was 16 years old when the crimes for which he was sentenced were committed, he should have been sentenced to the Juvenile Division of the Department of Corrections rather than the Adult Division. Section 5 — 8—6(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—6(c)) provides:

“All offenders under 17 years of age sentenced to imprisonment shall be committed to the Juvenile Division of the Department of Corrections ***.”

Defendant would have us interpret this as “all persons under 17 years of age at the time they commit an offense for which they are subsequently sentenced to imprisonment ***.” Although we agree that the statute is not entirely explicit, we find this construction tortured. It is much more natural to interpret the statute as “all offenders under 17 years of age when sentenced to imprisonment ***.” (See People v. Walker (1978), 61 Ill. App. 3d 891, 897.) The policy of the statute appears to be twofold: to protect the offender who is under 17 from the hardening influence and possible abuse from fellow inmates in the adult penitentiary system and to protect those committed to the Juvenile Division from being preyed on by inmates over 17. The offender’s age when sentenced is therefore the relevant criterion.

The State argues that the appellate court erred in holding that the trial court should have suppressed defendant’s third confession as well as the two prior ones. Our review of the record convinces us that the appellate court correctly held that the State had not sustained its “heavy burden” of proving that defendant knowingly and intelligently waived his previously invoked right to counsel.

In accordance with the above reasoning, the judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE RYAN

license: Public Domain

text:
    (Nos. 51051, 51148 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DONALD LANG, Appellant.—(Julius Lang, Conservator, Appellant, v. Robert A. DeVito, Director of Mental Health and Developmental Disabilities, Appellee.)

      Opinion filed May 24, 1979.

    Rehearing denied June 29, 1979.

      James J. Doherty, Public Defender, of Chicago (Nancy M. Joslyn, Kenneth Fletcher, and Donald Pauli, Assistant Public Defenders, of counsel), for appellant Donald Lang.
    Mark B. Epstein, of Epstein & Kesselman, of Chicago, for appellant Julius Lang, Conservator.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Henry A. Hauser, and Randye A. Kogan, Assistant State’s Attorneys, of counsel), for the People.
    William J. Scott, Attorney General, of Springfield (Alan E. Grischke, William J. Fitzpatrick, and Christine A. Bremer, Special Assistant Attorneys General, of Chicago), for the Department of Mental Health and Developmental Disabilities.
   MR. JUSTICE RYAN

delivered the opinion of the court:

For 14 years the State has been concerned with what to do with Donald Lang, an illiterate deaf mute who has virtually no ability to communicate with other people in any recognized language system. Notwithstanding this severe handicap, Lang has twice been charged with murder, and the State insists that he poses an extreme danger to society. He is admittedly unfit to stand trial and has been held to be not in need of mental treatment and not civilly committable to a mental institution. His legal history for the past 14 years illustrates the nature and complexity of the problem.

In 1965 the State charged Lang with the murder of a woman. He was found unfit to stand trial. His lawyer, who had extensive experience in defending deaf persons, realized that Lang faced indefinite civil commitment and requested that he be tried for murder. The lawyer agreed to waive Lang’s constitutional right not to be tried. The request was denied, and Lang was civilly committed to the Department of Mental Health. (People v. Lang (1967), 37 Ill. 2d 75.) Two years after the commitment the superintendent of the institution in which Lang was confined wrote a letter to the counsel for the Department stating that Lang was unlikely ever to become fit for trial. Sign language training had been completely ineffective. The superintendent recommended that Lang’s lawyer be contacted and that Lang be criminally tried. Lang’s lawyer then filed a petition for a writ of habeas corpus, contending that Lang was being imprisoned for life even though he had never been tried for or convicted of a crime. This court, in People ex rel. Myers v. Briggs (1970), 46 Ill. 2d 281, 288, held that Lang, facing indefinite commitment, “should be given an opportunity to obtain a trial to determine whether or not he is guilty as charged or should be released.” The court remanded the cause for trial. The State subsequently dismissed charges against Lang because the principal witness had died. Lang was released from confinement in February 1971.

In July 1971, Lang was again arrested and charged with the murder of another woman. This second murder involved circumstances quite similar to those of the other homicide. Once again, Lang’s lawyer requested that he be tried. The trial court, following the Myers rationale, proceeded with a trial, taking special precautions in an attempt to compensate for Lang’s inability to communicate. A jury convicted Lang, and he was sentenced to 14 to 25 years’ imprisonment. The appellate court subsequently reversed Lang’s conviction, stating that though the evidence clearly established guilt, no trial procedures could effectively compensate for the handicap of a deaf mute with whom there could be no communication. The appellate court remanded the cause for a fitness hearing. People v. Lang (1975), 26 Ill. App. 3d 648.

At a March 1976 fitness hearing, the trial court ruled Lang unfit and remanded him to the Department of Mental Health and Developmental Disabilities (Department), pursuant to provisions in the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, pars. 1005 — 2—1, 1005 — 2—2), which provide in part:

“Sec. 5 — 2—1. Fitness for Trial or Sentencing.
(a) For the purposes of this Section a defendant is unfit to stand trial or be sentenced if, because of a mental or physical condition, he is unable:
(1) to understand the nature and purpose of the proceedings against him; or
(2) to assist in his defense.
* * *
Sec. 5 — 2—2. Defendant Found Unfit — Commitment and Release.
(a) If the defendant is found unfit to stand trial or be sentenced, the court shall remand the defendant to a hospital, as defined by the Mental Health Code of 1967, and shall order that a hearing be conducted in accordance with the procedures, and within the time periods, specified in such Act. The disposition of defendant pursuant to such hearing, and the admission, detention, care, treatment and discharge of any such defendant found to be in need of mental treatment, shall be determined in accordance with such Act. If the defendant is not ordered hospitalized in such hearing, the Department of Mental Health and Developmental Disabilities shall petition the trial court to release the defendant on bail or recognizance, under such conditions as the court finds appropriate, which may include, but need not be limited to requiring the defendant to submit to or to secure treatment for his mental condition.
(b) A defendant hospitalized under this Section shall be returned to the court not more than 90 days after the court’s original finding of unfitness, and each 12 months thereafter. At such re-examination the court may proceed, find, and order as in the first instance under paragraph (a) of this Section. If the court finds that defendant continues to be unfit to stand trial or be sentenced but that he no longer requires hospitalization, the defendant shall be released under paragraph (a) of this Section on bail or recognizance. Either the State or the defendant may at any time petition the court for review of the defendant’s fitness.
(c) A person found unfit under the provisions of this Article who is thereafter sentenced for the offense charged at the time of such finding, shall be credited with time during which he was confined in a public or private hospital after such a finding of unfitness. If a defendant has been confined in a public or private hospital after a finding of unfitness under Section 5 — 2—6 for a period equal to the maximum sentence of imprisonment that could be imposed under Article 8 for the offense or offenses charged, the court shall order the charge or charges dismissed on motion of the defendant, his guardian, or the Director of the Department of Mental Health and Developmental Disabilities.”

Following that fitness hearing, Lang was placed in the Illinois State Psychiatric Institute, a Department facility, where he again received sign language instruction. Sometime later the Department concluded that Lang was not a “person in need of mental treatment” as that term was defined in section 1 — 11 of the 1967 Mental Health Code (Ill. Rev. Stat. 1975, ch. 9H/2, par. 1 — 11). This section stated:

“Sec. 1 — 11. ‘Person In Need of Mental Treatment’, when used in this Act, means any person afflicted with a mental disorder, not including a person who is mentally retarded, as defined in this Act, if that person, as a result of such mental disorder, is reasonably expected at the time the determination is being made or within a reasonable time thereafter to intentionally or unintentionally physically injure himself or other persons, or is unable to care for himself so as to guard himself from physical injury or to provide for his own physical needs. This term does not include a person whose mental processes have merely been weakened or impaired by reason of advanced years.”

A hearing was held and the trial judge ruled in December of 1976 that Lang did not need “mental treatment.” Lang was unfit, the court ruled, because of a “combined physical and mental condition.” Lang did not have a “clearly diagnosed mental disorder” and was not mentally retarded. Because of these facts, Lang could not be civilly committed under the Code. Instead, the court ordered Lang released on bail (as provided in section 5 — 2—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—2(a))), providing that he must continue in a training program and reside in a secure setting. The court also directed the Department to collaborate with Lang’s attorneys in developing an appropriate program. Shortly thereafter the Department petitioned for the release of Lang from the Psychiatric Institute, and in March 1977 the court vacated an order requiring the Department to hold Lang. Lang’s conservator then filed an application with the Department for Lang’s voluntary or informal admission. Lang remained at the Psychiatric Institute receiving therapy until October 1977, at which time the Department received permission to discharge him to Cook County jail. Lang has been incarcerated in the jail since that time and receives no therapy.

Although the trial court allowed the Department to discharge Lang in October 1977, the judge concurrently ordered that a writ of mandamus issue directing the Department to create and implement an adequate and humane care and treatment program. The trial court had been unable to find an alternative non-Department program for Lang. On appeal, the appellate court reversed the mandamus order but also affirmed an order denying a separate petition for habeas corpus filed on Lang’s behalf by the public defender. (62 Ill. App. 3d 688.) This case is a consolidation of two appeals from that appellate decision.

Four sets of lawyers advance different solutions to the problem of Donald Lang on this appeal. Lang’s conservator, unable to find a training program that will accept Lang because of the pending murder charge, and unable to persuade the Department to treat Lang, cannot obtain his ward’s release on bail. The conservator thus desires a writ of mandamus compelling action by the Department. The Department, claiming that it has no statutory authority to treat people who are not in need of mental treatment refuses to accept or aid Lang, who, according to it and the trial court, is not afflicted with a mental disorder. The public defender, in turn, argues that charges against Lang must be dropped because Lang cannot be tried, cannot be civilly committed, and cannot comply with impossible conditions of bail. Finally, the Cook County State’s Attorney insists that Lang’s constitutional rights have not been violated, given the fact that reasonable bail has been set. The defendant himself, the State contends, has the obligation to obtain treatment. In addition, the State’s Attorney urges that Lang presents a serious danger to society.

Another complication in this case involves an apparent change in the prognosis for Lang’s condition. Until recently, all of the experts considered Lang permanently unfit because of a combination of physical defects, personality defects, and mental retardation. Repeated attempts in the past to train Lang failed. Following the March 1976 placement in the Psychiatric Institute, however, Lang made noticeable progress in learning sign language. This progress occurred primarily under the instruction of one specialist, a woman toward whom Lang developed a close personal attachment. At the bail hearings, this specialist, and several experts on the testing of deaf persons, testified that Lang’s intelligence was normal to bright-normal, and that Lang might be fit to stand trial in 3 to 5 years.

The United States Supreme Court and this court have repeatedly held that trial of an unfit defendant violates due process. Drope v. Missouri (1975), 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896; Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836; People v. McCullum (1977), 66 Ill. 2d 306; People v. Barkan (1970), 45 Ill. 2d 261. See generally, American Bar Foundation, The Mentally Disabled and the Law 408-23 (S. Brakel and R. Rock ed. 1971); Note, Illinois Fitness For Trial: Processes, Paradoxes, Proposals, 6 Loy. Chi. L.J. 678 (1975).

After the Supreme Court decided Dusky v. United States (1960), 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788, in which it stated its definition of fitness, various formulations of the fitness test have been suggested. The Illinois statutory definition provides a typical example. A defendant is unfit to stand trial if, “because of a mental or physical condition, he is unable: (1) to understand the nature and purpose of the proceedings against him; or (2) to assist in his defense.” (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—1.) (See generally, Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 U. Chi. L. Rev. 21 (1977); Note, The Identification of Incompetent Defendants: Separating Those Unfit for Adversary Combat From Those Who Are Fit, 66 Ky. L.J. 666 (1978).) No one questions Lang’s unfitness.

Though the fitness concept has provided substantial due process protection for unfit criminal defendants, it has also generated several side effects. Under traditional procedures, a determination of unfitness resulted in virtually automatic commitment to a mental institution until fitness was attained. If the defendant never became fit, he could thus remain confined permanently. Because of this fact, the unfitness-commitment procedure often produced extremely long periods of confinement for criminal defendants who, had they been fit, might have plea bargained to a relatively light sentence, obtained an outright or insanity acquittal, or received a prison sentence subject both to maximum limits and parole. In short, unfitness determinations often produced confinement disproportionately long in light of the underlying criminal conduct. These unfit defendants obtained none of the procedural protections provided involuntary admittees and often remained in institutions far longer than did civilly committed patients. See generally, Laboratory of Community Psychiatry, Harvard Medical School, Competency to Stand Trial and Mental Illness (1974); A. Brooks, Law, Psychiatry and the Mental Health System 332 (1974); Burt & Morris, A Proposal for the Abolition of the Incompetency Plea, 40 U. Chi. L. Rev. 66 (1972); American Bar Association Commission on the Mentally Disabled, Legal Issues in State Mental Health Care: Proposals for Change, Incompetence to Stand Trial on Criminal Charges, 2 Mental Disability L. Rep. 617 (1977).

The decision of the United States Supreme Court in Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845, drastically altered the practice of committing those persons charged with a crime who were found unfit to stand trial. In that case, the defendant, who was charged with a minor violation, was committed under Indiana law for an indefinite period. The defendant, Jackson, like Lang, was a deaf mute who could not communicate with others. The court, after extensively discussing Indiana’s failure to demonstrate that Jackson presented a danger to himself or others, stated:

“We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.” (Jackson v. Indiana (1972), 406 U.S. 715, 738, 32 L. Ed. 2d 435, 451, 92 S. Ct. 1845, 1858.)

The commit-or-release language of this quotation has been made the focal point of the problem in our case. This problem is accentuated by the accepted belief in Illinois that the unfitness standards are different from the standards for involuntary commitment.

Too often, in considering whether a person is subject to involuntary commitment, attention has focused on the nature of the disability as specified in the statute; that is, Is the individual in need of mental treatment or mentally retarded? (Ill. Rev. Stat. 1975, ch. 91M>, par. 2 — 1.) The term “person in need of mental treatment” was defined in the statute as a person afflicted with a mental disorder. (Ill. Rev. Stat. 1975, ch. 91V2, par. 1 — 11.) It is this requirement that has so often caused the difficulty. Although a person may be unfit to stand trial because he cannot understand the nature and purpose of the proceedings against him or assist in his defense (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—1), he cannot be committed as a person in need of mental treatment if he is found not to be afflicted with a mental disorder.

By focusing on the absence of a mental disorder, adequate consideration has not been given to the more important condition necessary for involuntary commitment, which is also of prime significance in determining what disposition should be made of one who is unfit to stand trial. The Mental Health Code of 1967 provided that, to be committable, not only must the person in need of mental treatment be afflipted with a mental disorder but also as a result of that mental disorder the person must be reasonably expected to be a danger to himself or others. Ill. Rev. Stat. 1975, ch. 911/2, par. 1 — 11.

The existence of the mental disability itself is no longer sufficient justification for involuntarily committing a person to a mental institution for an indefinite period of time. The United States Supreme Court in O’Connor v. Donaldson (1975), 422 U.S. 563, 575, 45 L. Ed. 2d 396, 406-07, 95 S. Ct. 2486, 2493, stated:

“A finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that that term can be given a reasonably precise content and that the ‘mentally ill’ can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.”

The Governor’s Commission for Revision of the Mental Health Code of Illinois, in its 1976 report, recommended changes both in the definition of those who are involuntarily committable and in the procedures for determining fitness to stand trial. Thereafter, the General Assembly repealed the Mental Health Code of 1967, consisting of sections 1 — 1 to 20 — 1 (Ill. Rev. Stat. 1977, ch. 911/2, pars. 1 — 1 to 20 — 1), and replaced it with the Mental Health and Developmental Disabilities (MHDD) Code consisting of sections 1 — 100 to 6 — 107, by the enactment of Public Act 80 — 1414, effective January 1, 1979. The recommendations of the Governor’s Commission with regard to involuntary commitment have been incorporated in sections 1 — 119 and 3 — 700 et seq. of the MHDD Code (Ill. Rev. Stat., 1978 Supp., ch. 91Í4, pars. 1 — 119, 3 — 700 et seq.). Section 3 — 700 of the Code provides that a person who may be involuntarily committed is “[a] person 18 years of age or older who is subject to involuntary admission.” (Ill. Rev. Stat., 1978 Supp., ch. 9114, par. 3 — 700.) Thus the “person in need of mental treatment” designation of the Mental Health Code of 1967 has been removed. A “person subject to involuntary admission” is defined in section 1 — 119 as a “person who is mentally ill and who because of his illness is reasonably expected to inflict serious physical harm upon himself or another in the near future.” (Ill. Rev. Stat., 1978 Supp., ch. 9114, par. 1 — 119.) The necessary requirement of dangerousness has been retained in the definition of one who is committable, but under this definition no longer need he be afflicted with a mental disorder. Although the person must be “mentally ill” the new code does not define that term. The Governor’s Commission, by way of explanation of this recommended change, stated concerning the use of the term “mentally ill”:

“That term is left undefined as in prior codes, largely because any definition which could be made legally explicit would necessarily be so broad or circular as to preclude accurate application. By not providing an explicit statutory definition, a common law definition fashioned by the courts on a case-by-case basis is deemed to be preferable as it has been in the past.” Report, Governor’s Commission for Revision of the Mental Health Code of Illinois, 1976, at 14.

We see no need to perpetuate under the revision of the Code the hiatus which has heretofore existed because of the different standards used to determine fitness to stand trial and involuntary commitment. The “mental disorder” requirement has been removed as a prerequisite of involuntary commitment. Hereafter, if a person is found unfit to stand trial, he should be considered to be mentally ill under the MHDD Code unless his unfitness is due to a solely physical condition. If that person also meets the dangerousness requirement of the Code, he should be considered to be a “person subject to involuntary admission.” (Ill. Rev. Stat., 1978 Supp., ch. 9U/2, par. 1 — 119.) However, as this court noted in People v. Murphy (1978), 72 Ill. 2d 421, 432-33, fitness speaks only within the context of trial. A person may be fit to stand trial, although upon other subjects his mind may be unsound or deranged. (People v. Burson (1957), 11 Ill. 2d 360, 369; Withers v. People (1961), 23 Ill. 2d 131.) Thus, our holding in this case does not suggest that one who may be classified as mentally ill will necessarily be unfit to stand trial.

The Governor’s Commission for Revision of the Mental Health Code, in its report, also recommended changes in the Unified Code of Corrections concerning the determination of fitness to stand trial and procedures for subsequently handling those found to be unfit. The General Assembly did not enact legislation implementing these recommendations, although at the present time a bill designed to incorporate at least some of these recommendations is pending in the General Assembly (Senate Bill 0133, 1979 Session of the 81st General Assembly). Thus, at the present time, the law covering the procedures to be followed in determining the disposition of the defendant in this case incorporates only part of the recommendations of the Governor’s Commission while leaving intact the provisions under sections 5 — 2—1 and 5 — 2—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, pars. 1005 — 2—1, 1005 — 2—2). Until the suggested changes are made, we find it necessary to determine the issues in this case under the law as it now exists. We find that the provisions of the MHDD Code effective January 1, 1979 (Ill. Rev. Stat., 1978 Supp., ch. 911/s>, par. 1 — 100 et seq.), in conjunction with the provisions of section 5 — 2—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—2), provide a means of resolving the questions in our case that have heretofore confounded court and counsel.

Because of the commit-or-release language of the United States Supreme Court in Jackson v. Indiana, the public defender contends that Lang should be released, because it has not been determined that he will be able to stand trial in the foreseeable future. We do not agree. The interpretation which we have placed on the new MHDD Code, applied in conjunction with section 5 — 2—2 of the Unified Code of Corrections, complies with the dictates of Jackson v. Indiana. Under this construction Lang, if found to be dangerous, would not be held indefinitely as a person unfit to stand trial. His unfitness casts him into the class defined as mentally ill by the MHDD Code, and if he also meets the dangerousness test, he would be committed in the same manner as one who is involuntarily civilly committed. (Ill. Rev. Stat., 1978 Supp., ch. 9V/2, pars. 1 — 119, 3 — 700 et seq.) Pursuant to section 5 — 2—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—2), he would be subject to detention, care, treatment and discharge under the provisions of the MHDD Code. This commitment would conform to the commit-or-release language of Jackson v. Indiana.

By following the relevant provisions of the two codes, Lang’s rights will be fully protected. Section 5 — 2—2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—2(b)) provides for a periodic review of the finding of unfitness every 12 months and also that either the State or the defendant may, at any time, petition the court for a review of the unfitness status. Section 3-900 of the MHDD Code (Ill. Rev. Stat., 1978 Supp., ch. 9D/2, par. 3 — 900) authorizes the filing of a petition for discharge by anyone who has been involuntarily committed, and section 3 — 901(b) of the MHDD Code (Ill. Rev. Stat., 1978 Supp., ch. 9114, par. 3-901(b)) provides that if the court finds at a hearing conducted on such a petition that the person is not subject to involuntary admission then it shall enter an order discharging the patient. If a person who has been found unfit to stand trial is later determined, under a hearing as provided in section 3 — 901, to no longer be dangerous and therefore not subject to involuntary admission, the Department, under section 5 — 2—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—2), would then petition the court to admit the defendant to bail. People ex rel. Martin v. Strayhorn (1976), 62 Ill. 2d 296.

In Jackson v. Indiana the court noted that the defendant’s commitment under Indiana law was not justified by any requirement of a finding of dangerousness. The court in that case discussed extensively Greenwood v. United States (1956), 350 U.S. 366, 100 L. Ed. 412, 76 S. Ct. 410, which construed a Federal statute authorizing the commitment of one found incompetent to stand trial as requiring release of an individual after a reasonable period of time unless there is a finding of dangerousness. By applying the construction we have placed on the provisions of the new MHDD Code (Ill. Rev. Stat., 1978 Supp., ch. 9114, par. 1 — 100 et seq.) to the present provisions of sections 5 — 2—1 and 5 — 2—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, pars. 1005 — 2—1, 1005 — 2—2), the possibility of indefinitely committing an individual to a mental facility solely because he has been found unfit to stand trial is avoided.

Concern has been voiced over the holding of an individual under a criminal charge after a finding of unfitness without giving the opportunity to the defendant to have a determination of whether he, in fact, committed the offense. In People ex rel. Myers v. Briggs (1970), 46 Ill. 2d 281, this court held that the defendant should be given a trial to determine whether he was guilty or whether he should be discharged. Such trials are often referred to as “innocent only” hearings. The Report of the Governor’s Commission on Revision of the Mental Health Code of Illinois, 1976, at pages 184 and 185, suggested an amendment to the Unified Code of Corrections which would provide for a “discharge hearing.” In Jackson v. Indiana the United States Supreme Court commented approvingly on such hearings and noted that some States have statutory provisions allowing an unfit defendant a trial at which to establish his innocence. In our case, Lang has been tried for the murder charge and found guilty by a jury. Although the appellate court reversed the conviction as a violation of due process of law because of Lang’s apparent unfitness, nonetheless, the trial afforded an opportunity to determine from the evidence whether or not he should be released as an innocent person. (People ex rel. Myers v. Briggs.) Thus the due process issue inherent in holding pending charges indefinitely over one who will not have a chance to prove his innocence is not present in this case.

We must consider the results of an “innocent only” hearing with our above construction of the MHDD Code and section 5 — 2—2 of the Unified Code of Corrections. If, as a result of that hearing, defendant is found innocent, then his unfitness to stand trial should not subject him to involuntary commitment under the MHDD Code because the criminal charge against him could not be used to establish his dangerousness as the basis for an involuntary commitment. However, the fact that he has been found innocent of the particular charge would not prevent his civil commitment under the provisions of the MHDD Code.

In this case the trial court, following a hearing under the Mental Health Code of 1967 to. determine whether Lang was committable, determined that Lang was not committable. The judge extensively analyzed the evidence and the law and concluded that Lang was not a person in need of mental treatment as defined in the Code because he was not afflicted with a mental disorder. The court did find, however, that there was substantial evidence concerning the dangerous traits which Lang possessed and concluded that he had “clearly manifested dangerous behavior.” The trial court cited testimony of various experts which supported this conclusion. This testimony, coupled with the fact that Lang’s trial had established that he had committed the homicide, which the evidence indicated was quite brutal, is sufficient to support an involuntary commitment under the provisions of the MHDD Code, which became effective January 1, 1979..

Under section 5 — 2—2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—2(b)), a defendant who has been hospitalized shall be returned to the court every 12 months for a reexamination of the determination of his unfitness to stand trial and, if he is found unfit, to determine whether he still requires hospitalization. Since it has been more than a year since Lang was found unfit to stand trial, and more than a year since a hearing was held concerning his involuntary commitment and admission to bail, we remand this cause to the circuit court of Cook County for a hearing as provided in section 5 — 2—2(b) of the Unified Code of Corrections to determine whether he is still unfit to stand trial and, if so, whether he still has the dangerous characteristics required for involuntary admission under sections 1 — 119 and 3 — 700 et seq. of the MHDD Code (Ill. Rev. Stat., 1978 Supp., ch. 9H4, pars. 1 — 119, 3 — 700 et seq.). If Lang is found to be unfit to stand trial for other than a physical condition, and to be a person subject to involuntary admission, then the circuit court of Cook County is directed to enter an order finding him subject to involuntary admission and to make the appropriate dispositional orders under article VIII of the MHDD Code (Ill. Rev. Stat., 1978 Supp., ch. 9D/2, par. 3 — 800 et seq.). If Lang is found unfit to stand trial but not dangerous and thus not subject to involuntary commitment, the court may release him on bail. However in doing so it should specify conditions of bail under section 5 — 2—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—2(a)) which prescribe appropriate treatment by the Department of Mental .Health and Developmental Disabilities in an attempt to establish Lang’s fitness to be tried. As noted above we are aware that at the present time the General Assembly is considering Senate Bill 0133, which proposes amendments to the Unified Code of Corrections that involve certain procedural changes in the determination of fitness to stand trial and the subsequent handling of those found to be unfit. In making the determinations which we have directed in this opinion the procedural safeguards provided by the applicable statutes are to be followed.

The appellate court is affirmed as to that part of its judgment (1) which vacated the circuit court’s order of October 3, 1977, requiring the Department to file a petition detailing a program for the defendant; (2) as to that part of its judgment which vacated the writ of mandamus entered against the Director of Mental Health and Developmental Disability and which reversed the circuit court’s order denying the Director’s motion to vacate, alter or amend that order, and (3) as to that part of its judgment affirming the circuit court’s denial of a petition for a writ of habeas corpus. The judgment of the appellate court is reversed insofar as that judgment reset special conditions of the defendant’s bail. This cause is remanded to the circuit court of Cook County with directions to conduct further proceedings in accordance with this opinion.

Appellate court affirmed in part and reversed in part; cause remanded, with directions.


author: MR. JUSTICE CLARK

text:
    (No. 51320.
    FERD HUMPHREY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Contracting & Material Co., Appellee).

      Opinion filed June 29, 1979.

      Zanoni, Flynn, McElvain & Prall, of Bloomington (Mike McElvain, of counsel), for appellant.
    Cohn, Cohn, Lambert & Phillips, of Chicago (Louis J. Cohn and Julie Badel, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The claimant, Ferd Humphrey, was injured late in the evening in a single-vehicle accident after leaving the construction site where he was employed by the respondent, Contracting 8c Material Co. Both an arbitrator and the Industrial Commission found in favor of the respondent, and the circuit court of Cook County confirmed the decision. The only issue is whether the Commission’s decision that the claimant’s injury had not arisen out of and in the course of his employment by respondent was contrary to the manifest weight of the evidence. We think it was not. The facts are not in dispute, but the inferences to be drawn from them are.

The claimant was employed by the respondent as a timekeeper, and lived in El Paso, about 113 miles from the Rockford area, where respondent was constructing steel towers and lines to carry electrical current. His duties required him to be at the construction site daily to make out progress reports, answer the phone, order parts and do the payroll. While on the job during the workweek, he stayed at a motel, but traveled home each weekend. On Wednesday, September 3, 1975, the day before the injury, the claimant, apparently with the knowledge of respondent’s job superintendent, returned to El Paso after work “because it was a pretty day[,] *** I had got off early, and had some things I needed to take care of.” On Thursday, September 4, the claimant arose at 4 a.m., returned to Rockford, and worked until 6:30 p.m. Because some of the workers were leaving for another construction project, an impromptu party developed inside and outside the trailer office. The group included a superintendent, general and job foremen, steward and workers. Although he did not customarily attend such parties, which respondent agrees were not uncommon, claimant stayed because previous parties resulted in disarranged records and papers. He was not instructed to stay, and he did no actual work. Between 6:30 and 11:30 p.m., claimant rolled dice, drank beer, left the party to buy beer, left again to buy pizza (which he did not get) and more beer, and ate a little food at the trailer. (Between 4:30 and 6:30 p.m., claimant had two drinks of whiskey with the job superintendent.) At 11:30 p.m., claimant departed for his motel, 16 miles away, where he had a reservation. On the way, he decided he would be unable to drive the entire 16 miles because he was sleepy, and so he turned around to return to the site. Approximately four miles from the construction site, he fell asleep, went off the road, awoke in the vehicle, got out and walked toward a man, whom he recognized as a police officer, who was approaching him. He suffered facial laceration, concussion and fracture of vertebrae.

“The Workmen’s Compensation Act was not intended to insure employees against all accidental injuries” but only those arising out of and occurring in the course of employment. (Ace Pest Control, Inc. v. Industrial Com. (1965), 32 Ill. 2d 386, 388.) The issue of whether or not an injury arose out of and in the course of employment is for the Commission to decide, and its findings will not be disturbed on review unless they are contrary to the manifest weight of the evidence. (Bradford Supply Co. v. Industrial Com. (1971), 50 Ill. 2d 190, 194.) We “will not disregard permissible inferences drawn by the Commission, because different inferences might reasonably be drawn from the same facts.” (Malco, Inc. v. Industrial Com. (1976), 65 Ill. 2d 426, 430.) Normally, accidents which occur while an employee is traveling to or from employment are not compensable, but this rule is inapplicable in those cases in which the employment requires the employee to be traveling or away from the employer’s regular premises. (David Wexler & Co. v. Industrial Com. (1972), 52 Ill. 2d 506, 510; U.S. Industries v. Industrial Com. (1968), 40 Ill. 2d 469, 474.) In cases of traveling employees, the determination of whether the injury is in the course of employment “depends upon the reasonableness of the specific conduct and whether it might normally be anticipated or foreseen by the employer.” U.S. Industries v. Industrial Com. (1968), 40 Ill. 2d 469, 475 (where this court determined that the injury of an employee who was sent to Pennsylvania was not compensable because it occurred while he was on a late-night pleasure drive in the mountains). Accord, Ace Pest Control, Inc. v. Industrial Com. (1965), 32 Ill. 2d 386, 388-90; David Wexler & Co. v. Industrial Com. (1972), 52 Ill. 2d 506, 510; Wright v. Industrial Com. (1975), 62 Ill. 2d 65, 69-71.

We cannot say that the Commission incorrectly found claimant’s conduct was unreasonable and unforeseeable by the employer, and that therefore its inferences are impermissibly drawn from the facts here. The Commission could have reasonably concluded the claimant lacked sleep and might have drunk excessively; that the lack of sleep and the drinking were unreasonable and unforeseeable on a working day (Thursday); that claimant’s attendance at the “party” was not expected (because it was not customary for him) and therefore unforeseeable because it occurred on a working day and developed in an admittedly impromptu fashion (cf. Givenrod-Lipe, Inc. v. Industrial Com. (1978), 71 Ill. 2d 440, where we found work-related and compensable deceased’s accident during travel from a social dinner meeting because the dinner was scheduled by the employer, at a place other than the employer’s premises, and his attendance was expected); and that his possible intent to prevent company records from loss or disorder was belied by his joining in the festivities and leaving twice to purchase beer.

For these reasons we affirm the judgment of the circuit court.

Judgment affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 51134.
    SMITH’S TRANSFER CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Helen Shamblin, Appellee).

      Opinion filed June 29, 1979.

      Musschoot, Womack & Galich, of Chicago (Arthur R. Musschoot, James W. Womack, and Andrew A. Galich, of counsel), for appellant.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Robert H. Joyce and David J. Parsons, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This is an action under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) brought by a widow to recover benefits for the death of her husband. The arbitrator, in a decision adopted by the Commission, awarded compensation, and the circuit court of Cook County confirmed the award. The cause is brought to this court under Rule 302(a) (58 Ill. 2d R. 302(a)).

The employee in question, Ray F. Shamblin, was a dispatcher with the respondent company, Smith’s Transfer Corporation, in Chicago. He worked the midnight shift, requiring that he work from midnight to approximately 8 or 8:30 a.m. On June 28, 1973, he suffered a fatal heart attack while at work. His widow and claimant in this cause, Helen, prosecutes this action, alleging that her husband’s death was caused, at least in part, by his job.

Several evidentiary issues are raised by the parties’ arguments. A complete recitation of the evidence is necessary.

Relevant facts preceding Shamblin’s last workday were provided by the testimony of his wife, the claimant Helen Shamblin. In June of 1967, the first year of his employment by respondent, Shamblin broke his leg while at work, and a blood clot developed in the leg. A vein stripping was conducted in 1972, and some veins were removed from the leg. Blood thinner was thereafter prescribed because he was found to be susceptible to clotting.

On June 27, 1973, the day before his death, Shamblin arrived home from work at approximately 10 a.m. He had coffee with Mrs. Shamblin and then slept for three or four hours. Upon awakening, he and Mrs. Shamblin took their son to an appointment with a psychiatrist. At approximately 4 p.m., after returning home, Shamblin returned to bed and slept until approximately 8 p.m. He then had dinner and watched television until he left for work at approximately 11 p.m. According to Mrs. Shamblin, her husband appeared normal on this day.

Harriet J endrach, a fellow employee of Shamblin, was next called by claimant to testify. She appeared pursuant to a subpoena. In her testimony she told of her contact with Shamblin on the day of his death, June 28, 1973. She first testified that she arrived at work shortly after 5 a.m. that day and noticed that Shamblin’s face was grayish in color.

At this point in her testimony, Mrs. Jendrach responded negatively to certain questions posed by claimant’s attorney and asserted a lack of knowledge as to others. The attorney moved to have her declared hostile, alleging lack of cooperation by the witness. Mrs. Jendrach admitted that she was reluctant to testify and that she once had refused to accept a subpoena obtained by claimant’s attorney, but the arbitrator refused to declare her hostile.

In response to further questioning by claimant’s attorney, Mrs. Jendrach did testify that Shamblin was behind in his work on the day of his death and that she helped him with it. When asked if Shamblin had conducted a “yard check,” the witness said that she did not know. A yard check entails moving about the company’s yard area and checking trucks for freight information. She was then asked if she recalled a conversation with claimant’s attorney, approximately one year earlier and shortly after Shamblin’s death, in which she stated that Shamblin did make a yard check. She said that she did not. At this point, claimant’s attorney again unsuccessfully moved to have the witness declared hostile. In response to another question, the witness said that she did not know whether it was Shamblin’s duty to check trucks in the yard.

Claimant’s attorney briefly changed the focus of his inquiry to a conversation between Shamblin and Mrs. Jendrach at approximately 5:30 or 6 a.m. on the day of Shamblin’s death. According to Mrs. Jendrach, Shamblin had said that he was not. feeling well and that he wanted to rest for a while.

The attorney then returned to questioning the witness about yard checks and alleged inconsistent statements. She was first asked if she recalled a conversation with Mrs. Shamblin on the night of Shamblin’s wake. She indicated that she did not recall such a conversation. She was then asked if she recalled telling Mrs. Shamblin, at her husband’s wake, that Shamblin was behind in his work, was under stress, and was running through the yard checking trucks. She responded negatively.

The questioning then returned to the events immediately following Shamblin’s statement that he was not feeling well. Mrs. Jendrach testified that Shamblin sat in a chair and asked for water, but that, before receiving the water, he asked to have Willie Green, another fellow employee, take him to the hospital. Shamblin then walked to Green’s car. According to Mrs. Jendrach, Shamblin’s face was a grayish color at this time, approximately 6:30 a.m.

Willie Green, who drove Shamblin to the hospital, was the next witness called by claimant to testify. He first saw Shamblin at approximately 4:30 a.m. on June 28, and he testified that Shamblin looked well and was in a good frame of mind. According to Green, Shamblin’s appearance did not change during the next couple of hours, but he was pale when Green took him to the hospital at 6:30 a.m. Shamblin told Green that he was experiencing chest and shoulder pains unlike any he had before. When they arrived at the hospital, Shamblin was massaging his shoulder, opening and closing his fist, and making sounds which would indicate that he was in pain.

Green, in his testimony, also related Shamblin’s activities while at work that day. According to Green, Shamblin worked on files and on a teletype machine, and he conducted a yard check of trucks. On cross-examination, however, Green admitted that he did not see Shamblin conduct a yard check. His testimony on direct examination, that Shamblin had conducted a yard check, was apparently hearsay. Green did not relate details of Shamblin’s alleged yard check, nor did he testify that Shamblin was subjected to any sort of stress or exertion on the day of his death.

Following testimony by a witness that is not relevant to the purposes of this appeal, Helen Shamblin returned to the stand and related her version of a conversation that she had with Mrs. Jendrach at Shamblin’s wake. The respondent’s attorney objected to such testimony on the ground that claimant was attempting to impeach her own witness, Mrs. Jendrach. Claimant sought to justify the testimony as an attempt to show a prior inconsistent statement by Mrs. Jendrach, and argued that such evidence is admissible as substantive evidence under a hearsay exception and that such evidence is also admissible for impeachment purposes. The arbitrator overruled respondent’s objection and allowed the witness to testify.

The witness, Helen Shamblin, said that Mrs. Jendrach had told her that Shamblin was running around the yard checking trucks, that he started to perspire, and that he said that he was behind in his work and had not eaten. The witness also said that Mrs. Jendrach told her that Shamblin started to eat a sandwich and that Mrs. Jendrach cautioned him not to eat too much. Mrs. Jendrach allegedly also told Mrs. Shamblin that Shamblin became so ill that Mrs. Jendrach offered to hold him up, that he refused her help, and that he said that he could not raise his arm.

The last two witnesses to testify were Dr. Nathaniel Greenberg, on behalf of claimant, and Dr. William Brice Buckingham, on behalf of respondent. Dr. Greenberg responded affirmatively to the following hypothetical question:

“Assume a *** 51-year-old male [in good apparent health], *** married with two children, who reported to work on June 28, 1973 for his regular midnight to eight-thirty a.m. shift job. ***
That his appearance at four-thirty a.m. on June 28, 1973 was good. That he was performing his work as a dispatcher, and *** had fallen behind in his work, and as a result had sought assistance. That a co-employee had assisted the hypothetical man in his work duties that evening.
That during the evening the hypothetical man made a yard check by running around getting numbers from trucks, and he broke out in perspiration, and explained to the co-employee that he was so far behind in his work.
That [at] five o’clock or five-thirty a.m. his color became gray in appearance, and that was not his normal color. That between five-thirty and six a.m. the hypothetical man told a co-employee he didn’t feel good, and wanted to rest for a while.
That shortly thereafter he drank a glass of water, and then requested to be taken to Christ Community Hospital. That his color remained grayish in appearance.
That *** the hypothetical man [was taken by car] to the hospital at approximately six-thirty a.m.
That the hypothetical man complained of having chest and shoulder pains like he never had before. That the hypothetical man was experiencing *** pain, and was massaging his shoulder, and opening and closing his fist.
That the hypothetical man was admitted to Christ Community Hospital at [six] fifty-five a.m., complaining of chest pain and pain in both arms.
That the course of treatment for the hypothetical man is reflected in Petitioner’s Exhibit No. 6, which you have reviewed.
That he had a cardiac arrest as reflected in the hospital records, and that he was pronounced dead at approximately eight a.m.
Now, Doctor, do you have an opinion, based upon a reasonable degree of medical and surgical certainty, as to whether the hypothetical man’s work activities which I have described to you in the hypothetical question could or might have been a causative factor and condition of ill-being described in the hypothetical which resulted in his death?”

The bracketed and deleted portions represent matters which were amended or stricken pursuant to objection or which were changed to correct minor errors. The doctor’s response, in full, was “[t]hat the physical and emotional pressures of the job as described in the hypothetical question during that night resulted in the fatal myocardial infarction. ”

Respondent’s attorney moved to strike the witness’ reference to emotional stress, saying that there was no such evidence in the record and that the doctor’s reference to emotional stress was impermissibly based on inference rather than evidence in the record. Claimant’s attorney opposed the motion to strike on the ground that an inference of emotional stress was justified because of testimony in the record that Shamblin was behind in his work and required assistance from a fellow employee. Claimant’s attorney further stated that the arbitrator would make the ultimate decision on whether emotional stress was present. Following these arguments, the motion to strike was overruled.

When asked for the basis of his opinion, Dr. Greenberg replied:

“There are several items in the hypothetical question that already mentioned the man was behind in his work, he sought assistance, and he was running around getting numbers from trucks. This certainly indicates that he was under pressure to complete a job, to catch up with his work. That obviously is tantamount to emotional stress. This coupled with the physical stress involved in running around resulted in this fatal myocardial infarction.”

On cross-examination, Dr. Greenberg reiterated that the basis of his opinion was that Shamblin was behind in his work, required assistance, and was running around the yard. According to the witness, Shamblin’s activities involved both physical and emotional stress. He further testified “that the need for haste implies emotional stress.” When asked on cross-examination whether his response would change if Shamblin were merely working on the teletype on the day of his death, the witness said that it would be difficult to formulate an opinion.

Dr. William Brice Buckingham, called by respondent, expressed the opinion that there was no causal relationship between Shamblin’s work activities and the heart attack. To a similar effect was the testimony of James Damron, division manager for respondent, who testified that Shamblin’s job involved no stress and was purely clerical in nature.

It is respondent’s contention that the Commission’s decision is against the manifest weight of the evidence. It alleges an absence of direct evidence of job stress which might have precipitated Shamblin’s fatal heart attack. It argues further that the hypothetical question asked of claimant’s expert witness was based on facts not supported by the evidence, referring specifically to that portion of the question which asked the witness to assume that Shamblin had been running about the truck yard and broke out in perspiration on the day of his death. Respondent claims that this portion of the question reflected testimony that was erroneously admitted by the arbitrator because it represented an attempt by claimant to impeach her own witness, and that the testimony, even if admissible, could be used for impeachment purposes only and could not be considered as substantive evidence and used in a hypothetical question. Respondent concludes its argument by saying that claimant’s expert witness unreasonably inferred from facts stated in the allegedly defective hypothetical question that Shamblin was under stress which resulted in his death. Various evidentiary issues are subsumed in these points raised by respondent, and each will be addressed to the extent necessary, following a brief review of workmen’s compensation law as it relates to heart attacks.

The law applicable in cases such as this in which an employee suffers a heart attack was recently reviewed extensively in the opinion in County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10. We will not duplicate that effort, but we do quote those portions necessary to a decision here:

“If an employee’s existing physical structure gives way under the stress of his usual labor, his death is an accident which arises out of his employment. To come within the statute the employee need only prove that some act or phase of the employment was a causative factor of the resulting injury. Wirth v. Industrial Com. (1974), 57 Ill. 2d 475, 481.
*** The sole limitation to the above general rule is that where it is shown the employee’s health has so deteriorated that any normal daily activity is an overexertion, or where it is shown that the activity engaged in presented risks no greater than those to which the general public is exposed, compensation will be denied. (County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 32-33; Rock Road Construction Co. v. Industrial Com. (1967), 37 Ill. 2d 123, 127; Illinois Bell Telephone Co. v. Industrial Com. (1966), 35 Ill. 2d 474, 477.) Whether, however, the above factors are present is a question of fact for the Commission. Okaw Homes, Inc. v. Industrial Com. (1968), 40 Ill. 2d 81, 84.” 69 Ill. 2d 10, 17-18.

Our review of the record leads us to conclude that the arbitrator erred in admitting vital testimony and that, without this evidence, the Commission’s decision has no factual basis, and its award must be set aside.

The objectionable evidence is the testimony of claimant herself in which she stated that her own witness, Mrs. Jendrach, allegedly once said that Shamblin was running about the truck yard and broke out in perspiration shortly before his death. This constituted an attempt by claimant to impeach her own witness, a course of action which has long been condemned by our cases, both civil and criminal. (People v. Wesley (1959), 18 Ill. 2d 138, 150; People v. Johnson (1924), 314 Ill. 486, 493; American Hoist & Derrick Co. v. Hall (1904), 208 Ill. 597, 601; Rockwood v. Poundstone (1865), 38 Ill. 199, 201.) Furthermore, this out-of-court testimony could not be used as substantive evidence in this case. People v. Bailey (1975), 60 Ill. 2d 37, 42-44; People v. Gant (1974), 58 Ill. 2d 178, 183; People v. Collins (1971), 49 Ill. 2d 179, 194.

Seeking to avoid application of the rule that one cannot impeach one’s own witness, claimant alleges error in the arbitrator’s refusal to declare Mrs. Jendrach hostile. We find no abuse of discretion, however, in this ruling by the arbitrator. While the testimony of Mrs. Jendrach may have been unsatisfactory or disappointing to claimant, we find no surprise or other showing of hostility to support the result which claimant sought. See 58 Ill. 2d R. 238.

Because this portion of Mrs. Shamblin’s testimony was not admissible, it was also error to allow reference to it in the hypothetical question given to claimant’s expert witness. When an expert witness is asked to assume certain matters to be true, those matters must be “within the realm of circumstantial or direct evidence, as supported by the facts or reasonable inferences.” (Guardian Electric Manufacturing Co. v. Industrial Com. (1973), 53 Ill. 2d 530, 535, citing Gus T. Handge & Son Painting Co. v. Industrial Com. (1965), 33 Ill. 2d 201, 206.) Because the testimony was not admissible, it could not be considered by an expert witness in formulating an opinion.

Without this testimony, we find no basis for the Commission’s finding of causation between Shamblin’s work and heart attack. We recognize, as claimant argues, that we are reluctant to reverse the Commission’s decisions that are based on a weighing of conflicting evidence. Without this particular testimony of claimant, however, we find no conflict in the evidence, as we disagree with claimant that other evidence in the record is sufficient to prove that the injury was job related.

It is claimant’s argument in this regard that the decision of the Commission is supported by the testimony that Shamblin was behind in his work and was assisted by Mrs. Jendrach. The evidence cited, however, pertains to the pressures of everyday life, common to many of us, and is not indicative of any stress peculiar to Shamblin’s duties. The essential proof of causation is therefore lacking. As this court said in Rysdon Products Co. v. Industrial Com. (1966), 34 Ill. 2d 326, 329, “That an employee is at his place of work when accidental injury occurs does not, standing alone, justify recovery; there must be a further showing that the injury was due to some cause connected with, or incidental to, the employment, rather than a cause completely unrelated to the employment.” In Illinois Bell Telephone Co. v. Industrial Com. (1966), 35 Ill. 2d 474, 477, a case involving a heart attack, the court said more specifically:

“The Workmen’s Compensation Act requires that an accidental injury or death, to be compensable, must not only be sustained in the course of the employment but must also arise out of it. It must be of such character that it may be seen to have had its origin in the nature of, or have been incidental to, the employment, or it must have been the result of a risk to which, by reason of the employment, the injured employee was exposed to a greater degree than if he had not been so employed. [Citation.] The mere fact that he was at work on the day of his heart attack and left early is not sufficient to establish a causal relationship between his employment and his subsequent death, nor is it enough, where one’s heart has deteriorated so that any exertion becomes an overexertion, to merely show that he had engaged in some kind of physical activity before suffering the attack.” (Emphasis added.)

In County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 19, the court approved an award which was based on evidence of “increased work activities” and unfavorable working conditions. The employee in that case was a clerical worker in the Cook County treasurer’s office, which was responsible for accepting payments on real estate tax bills. Evidence was introduced which indicated that the employee had a preexisting heart condition, that the tax payment deadline was approaching, that the employee and fellow workers handled between 2,000 and 3,000 taxpayers each day during the week preceding his death, and that the office became hot on those days. In approving the award, we said:

“This case is clearly distinguishable from those cases where the employee suffers a heart attack or stroke after walking four blocks (Illinois Bell Telephone Co. v. Industrial Com. (1966), 35 Ill. 2d 474), or after rising from a chair (County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24), or after climbing a set of stairs (D. Lelewer & Son v. Industrial Com. (1965), 33 Ill. 2d 118). In those cases there was nothing to distinguish the work activity complained of from any other daily activity which was at least as stressful.” 69 Ill. 2d 10, 19.

Our consideration of the evidence now before us leads us to conclude that this case is controlled by Illinois Bell and the other cases cited in which awards have been denied. Shamblin’s work activities “presented risks no greater than those to which the general public is exposed” (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18), and the award must therefore be set aside.

In summary, we hold that the Commission’s decision was against the manifest weight of the evidence. The judgment of the circuit court is reversed and the award is set aside.

Judgment reversed; award set aside.