People v. Bortnyak

• Decision Date: 29 May 1968
• Docket Number: No. 38417,38417
• Citation: 39 Ill.2d 545,237 N.E.2d 451
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Joseph BORTNYAK, Appellant.
• Court: Illinois Supreme Court

Page 451

237 N.E.2d 451

39 Ill.2d 545

The PEOPLE of the State of Illinois, Appellee, v. Joseph BORTNYAK, Appellant.

No. 38417.

Supreme Court of Illinois.

May 29, 1968.

Prentice H. Marshall, Champaign, Appointed by the Court, for appellant.

William G. Clark, Atty. Gen., Springfield, and John J. Stamos, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and Howard Levine, Asst. State's Attys., of counsel), for appellee.

HOUSE, Justice.

Defendant, Joseph Bortnyak, then 27 years of age, was convicted of murder on August 27, 1947, by a jury in the circuit court of Cook County and sentenced to life imprisonment. He now seeks to have the judgment vacated and the cause remanded for a hearing to determine his competence to stand trial.

On August 11, 1947, one week after indictment, the then Public Defender of Cook County, who had been appointed to represent defendant, moved for the appointment of three psychiatrists to examine the defendant. The motion recited that the public defender had interviewed defendant and believed him to be suffering from a mental illness and that defendant should be examined to determine his sanity. The motion was denied. Two additional oral motions filed on successive days were allowed, granting relief that defendant be examined by the Cook County Behavior Clinic on a question of sanity. The result of the examination was not made a part of the record.

On March 24, 1949, the defendant prayed for a free transcript of proceedings, and again on May 23, 1951, alleging that he was indigent. Both were denied. On February 11, 1957, following the decision in Griffin v. Illinois, 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585, upon motion of counsel an order was entered under our rule 65--1(a) directing that a transcript of the trial proceedings be furnished. No report of proceedings was prepared because the two reporters who reported the trial had died. Strenuous efforts were made by defendant's present counsel, appointed in 1964, to find someone who could transcribe the notes of E. M. Allen and Gerald Healy, but without success. The question of total unavailability of a complete record because of the death of the reporter is not raised as in People v. Norvell, 25 Ill.2d 169, 182 N.E.2d 719, affirmed by the Supreme Court of the United States in Norvell v. State of Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456. Rather, it is suggested that because of the absence of a transcript significant circumstances are not available for review by this court.

Our attention is directed to the partial record which shows that the defendant had recently committed a crime with psychiatric overtones, that his trial counsel believed defendant was suffering from a 'mental illness,' that the trial court twice ordered the defendant examined, and that trial counsel tendered an instruction based upon the defense of insanity in another case less than four weeks prior to the time of this trial. Counsel forthrightly concedes that none of the foregoing circumstances alone has been held by this court to be sufficient to raise a Bona fide doubt as to defendant's competence to stand trial, but he asserts that in their totality they show that defendant's counsel (and perhaps the court) did entertain doubts as to the sanity of defendant.

Counsel for defendant correctly states our view that a formal motion for a pretrial sanity hearing need not always be made to raise the issue. 'When, before or during the trial, facts are brought to the attention of the court, either by way of suggestion of counsel or the State, or by its own observation, which raise a Bona fide doubt of the defendant's present sanity, a duty devolves upon the court to then cause a sanity hearing to be held as provided by law.' (People v. Burson, 11 Ill.2d 360, 370, 143 N.E.2d 239, 245.) It is further conceded that under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; People v. Bender, 27 Ill.2d 173, 188 N.E.2d 682, and Burson, retrospective inquires into a defendant's competence at a time many years in the past cannot be made, but it is contended that this does not foreclose meaningful inquiry. This argument is grounded upon People v. Anderson, 31 Ill.2d 262, 201 N.E.2d 394, and McDowell v. People, 33 Ill.2d 121, 210 N.E.2d 533, where we reviewed dismissal of petitions in the nature of writ of error Coram nobis and reversed and remanded for determination whether 'facts were present which, had they been known to the trial court, would have raised a Bona fide doubt as to defendant's sanity.' (33...