dissenting.
I must respectfully dissent from the majority, and here set forth my reasons for taking a contrary view.
The majority finds it necessary to consider only one of two issues on appeal, the guilty plea and not the second issue, petitioner’s Sixth Amendment right to a public trial. Since I disagree on the first issue I would reach the second and likewise reverse, but for present purposes it is not necessary to explain my views upon that second issue.
I fully agree with the principles and supporting cases cited by the majority, and only disagree with their interpretation as applied to the particular facts of this case. I do not believe those cases compel the result reached.
The guilty plea, made after the government had completed its case in chief and the defendant had testified in his own behalf, must be viewed in the context of the *1060trial, the evidence and the surrounding circumstances shown in the record at the time the plea was made. I believe that perspective is necessary in order for us to try to determine whether or not the defense attorney’s allegedly incorrect advice to petitioner was a sufficient motivating factor to invalidate the guilty plea as the majority holds.
To attempt this I believe the uncontroverted evidence of the murder should be lifted out of the footnote and expanded from the record. This is not for the purpose as in People v. Healey, 23 Ill.App.3d 214, 318 N.E.2d 89 (1974), of determining whether or not the allegedly mistaken advice was only harmless error due to the overwhelming evidence of guilt, but rather to try to better understand all the circumstances surrounding the change of plea in order to determine whether that advice may have motivated the change of plea, or whether some other consideration was controlling.
The state’s case consisted of the testimony of police officers, investigators, laboratory technicians and other witnesses typical to a murder case. It was not, however, a circumstantial case. There was no question of the identity of the assailant or of the nature of the attack upon the deceased. The murder took place in the adjacent apartment of a neighbor, Mrs. Dussalt, who witnessed the whole tragedy.
Mrs. Dussalt testified that Mrs. Healey ran screaming from the nearby Healey apartment into Mrs. Dussalt’s apartment with her husband, the petitioner, in close pursuit. Mrs. Dussalt endeavored to close the door, but the petitioner forced his way in firing a shot from an automatic pistol he was carrying. The bullet lodged in the kitchen wall between Mrs. Healey and Mrs. Dussalt. Mrs. Healey then ran into Mrs. Dussalt’s living room with petitioner still in pursuit. He fired two more shots. Mrs. Healey fled back into the kitchen now holding her side. Mrs. Dussalt ran to protect her young son while Mrs. Healey’s screaming continued. Then the screaming stopped and Mrs. Dussalt saw the petitioner standing over his wife stretched out on the kitchen floor. He told Mrs. Dussalt that it was all over and to call the police, but then he fled leaving the gun behind.
The police testified that the butt of that gun was covered with blood, hair and skin tissue. Several deep gouges were observed in Mrs. Healey’s body, part of her ear had been torn off, and her skull was caved in. A pathologist, who performed a partial autopsy on Mrs. Healey, testified that Mrs. Healey had two fractured hands, two bullet holes in her chest, many cuts and bruises on her face and many deep fractures throughout her skull. The story unfolded that the gun had jammed after the first three shots, and petitioner had then used it as a club to beat his wife to death.
In his own defense the petitioner took the stand and testified about his marital problems, drinking habits and the events leading up to the murder. He related that he went to the apartment which had been shared by his wife and himself, the door was open, and his wife, who the evidence showed was fully clothed, was present. Petitioner thought he saw someone run out the other door to the apartment. I do not believe, however, that the record supports the majority’s statement that “he thought he observed a man” leave the apartment. The petitioner was not sure whether the person may have been a man or a woman. He told how he pursued his wife into Mrs. Dussalt’s apartment with his gun, but then his testimony becomes somewhat vague about the actual details of the murder. It does however outline the testimony of Mrs. Dussalt. One more defense witness, petitioner’s uncle, was called to confirm that petitioner had called him from Nebraska where petitioner had fled after the murder. At this point in the case some matters were taken up in chambers outside the presence of the jury. Defense counsel advised the court that he had two priests to be called as witnesses, and also an expert' to whom he intended to propound a hypothetical question about the petitioner’s mental state. It appeared to be petitioner’s purpose to try to establish that his act was manslaughter, not murder. The state objected to calling the *1061priests unless the testimony of the priests was to relate to “insanity, provocation or drunkenness” for purposes of manslaughter consideration. Defense counsel’s response was that the testimony of the priests would go to “the jury’s consideration as whether it is a proper case for the death penalty.” The court sustained the objection after a prolonged discussion and an offer of proof on the basis that the testimony was immaterial to the manslaughter issue. The majority opinion states that the priests could have testified about petitioner’s mental state and degree of intoxication immediately prior to the accident, but the record shows that one priest visited with petitioner only on Monday and the other only on Wednesday before the Thursday murder. Next the parties undertook to consider in chambers the proposed hypothetical question. After long recitations of the evidence as assumptions, the hypothetical question requested the doctor’s opinion as to whether the hypothetical person in killing his wife was acting under a sudden and intense passion resulting from serious provocation by the individual killed. The state objected on the grounds that the question invaded the province of the jury by calling for an answer to the ultimate question, and further because there was no evidence of any provocation from petitioner’s wife. The objection was sustained, the court holding that there was no evidence bearing out a manslaughter theory. Consequently there was to be no manslaughter instruction. It was at this point that defense counsel asked for a short opportunity to confer with his client, and after ten or fifteen minutes came back at which time the plea was changed to guilty. During that short conference outside the presence of the court the appeal opinion was given by defense counsel upon which the majority bases its holding.
It is at that point in the proceeding, against the background of overwhelming evidence adverse to petitioner and the collapse of the defense effort, that we must try to reconstruct from the record what the motivating factor was for petitioner’s decision to change his plea. It is the majority view that the petitioner’s “urgent concern for the preservation of trial errors for appellate review, and his decision to change his plea only after extracting assurances from his lawyer regarding the appealability of the trial court’s rulings, minimizes any fear of the death penalty as a motivating factor in his plea.” Quite to the contrary, I believe that record illustrates that the change was induced by the basic human desire of petitioner to save his own life. He did not have to plead guilty in order to have trial errors reviewed on appeal. The thread of that concern with the death penalty runs throughout.
The jury had been qualified for the death penalty. Any rational view of the evidence then pending before the jury would have to be that a vicious murder had been proven well beyond a reasonable doubt, if not all doubt. It was not the rulings of the trial judge that robbed petitioner of a manslaughter defense. Viewing the record, including the proffered testimony, there is no evidence which shows insanity, provocation, or drunkenness at the time of the murder, or any other excuse so as to sustain only a manslaughter charge. Even the psychiatrist chosen by the defense had concluded that petitioner suffered from no mental illness. Nothing in the record shows any provocation on the part of the deceased wife. If someone did run out the back door and if it was a man, in the circumstances shown to have existed then and there it could not be considered provocation. The petitioner was admittedly a heavy drinker, but there is insufficient evidence to show that excessive alcohol at the time was a factor in the murder. After petitioner arose on Thursday morning, he drove various places, then drove to their apartment, parked his car, had a conversation with the janitor who noticed no alcohol odor or anything unusual about the defendant, climbed the stairs to their apartment and began the fatal attack on his wife. It was obvious petitioner had no defense.
The influence on petitioner of the possible death penalty is illustrated by various things including petitioner’s own allegation *1062that he was “threatened” by the trial judge and prosecutor with the death penalty. At the state post-conviction hearing the petitioner testified as to what had taken place in the short attorney-client conference. The first question from petitioner’s counsel at that hearing was:
“What did your attorney say to you with regard to the possibility of entering a guilty plea at that point?
A. You mean the results of it?
Q. What did he say to you?
A. He said he thought we should plead guilty that because of the way things were working out there was no defense and that the jury — he claimed that it looked like I would get the death penalty.”
And later:
Q. Did he explain to you what it meant to enter a plea of guilty?
A. It just meant — he first said it meant that I would probably get a lighter sentence than if I had persisted in going on with the trial.”
On cross examination the petitioner responded to the question:
“You entered a plea, did you not. Mr. Healey, because you felt you would receive a lesser sentence than you would if you proceeded on with the conclusion of the trial? Is that correct?
A. Yes, that was the general feeling.”
The advice from his attorney about appeal was mentioned by petitioner in his testimony, but I cannot view those comments as having anything but minimal significance compared with the death penalty potential.
Petitioner’s father, who had also been present at the attorney-client conference, testified at the post-conviction hearing that defense counsel told them “that it was not proper to continue the trial, that it would not be in my son’s favor and that in view of the fact that the manslaughter instruction was not allowed, it would be futile, it would only incense and anger the judge.” The father testified that when asked by his son what to do he advised him to plead guilty because the judge would be more lenient as the son had never been convicted of a crime before and because he had voluntarily surrendered. The father testified that he asked counsel “three times” about the appeal possibilities. In the testimony of defense counsel, however, I find no mention of even one question on that issue from the father, nor even any confirmation of the father’s questions in the testimony of petitioner.
What defense counsel did say, as appears from his testimony in the post-conviction proceeding, was that “the decision was based on the fact that there is the everpresent [sic] possibility the jury would recommend the death penalty.” Defense counsel confirmed he had given petitioner limited advice about an appeal, although the majority accepts the broader version testified to by petitioner and his father. The defense counsel explained to petitioner and his father that the court’s rulings on the hypothetical question and the manslaughter instruction were preserved. However, the defense counsel testified that he did not advise that it was his opinion that the case would be reversed and remanded. I do not see that it is probable or reasonable to conclude that petitioner changed his plea as a result of such uncertain and limited appeal advice. Further, petitioner’s mother testified at the post-conviction proceeding that just shortly before petitioner changed his plea that he told his mother that his attorney had “sold him out”. If petitioner believed that, I find it unlikely that he would have put so much faith and confidence in that appeal advice so as to cause him to admit the crime.
The majority also reasons that if “petitioner considered entering a plea of guilty solely to escape execution the propitious time for doing so would have been prior to trial rather than [at its] conclusion.” I cannot accept that as a general rule. It is not unusual for the defense to wait and test out the state’s evidence in trial to see if some weakness can be developed in the state’s case. What developed before the jury in this case, however, was a clear and *1063convincing case of murder, and the total collapse of a weak unsubstantiated manslaughter theory of defense. Petitioner waited until the last minute before he changed his plea to avoid the death penalty.
When petitioner changed his plea he was asked by the trial judge if he had something to say.
“Yes, Your Honor, Up to now I — I just wanted to tell the story, and face up to it.”
I do not see that to be the comment of an accused confessing merely to get on with an appeal. At that same time the father asked the trial judge about who would make the determination of the sentence, but neither the father nor any one else made any inquiry of the court about appeal. Further, the petitioner then admitted to the court that he understood that unequivocally he was admitting that he had committed the offense of murder done without lawful justification and with intent to kill his wife, shoot her with a gun and beat her about the head thereby causing her death.
Appeal did follow, but only upon the issue of alleged excessiveness of the sentence. I find nothing in the record to show that any effort was made by petitioner to raise on that appeal any alleged trial errors or the issue of the alleged incorrect advice of counsel about appeal as inducing the guilty plea. It would seem that if appeal on those issues was what prompted the guilty plea something would be reflected in the appeal that immediately followed.
The Brady trilogy * cited by the majority is not antagonistic to my view of this case. Brady makes it clear that fear of death as a factor in a plea of guilty does not invalidate the plea, and says what we have been trying to say here:
The voluntariness of Brady’s plea can be determined only by considering all of the relevant circumstances surrounding it. Cf. Haynes v. Washington, 373 U.S. 503, 513 [,83 S.Ct. 1336, 10 L.Ed.2d 513] (1963); Leyra v. Denno, 347 U.S. 556, 558 [,74 S.Ct. 716, 98 L.Ed. 948] (1954). One of these circumstances was the possibility of a heavier sentence following a guilty verdict after a trial. It may be that Brady, faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty and thus limit the penalty to life imprisonment rather than to elect a jury trial which could result in a death penalty. (Footnote omitted.) Brady, supra, 397 U.S. at 749, 90 S.Ct. at 1469.
And further at page 751, 90 S.Ct. at page 1471:
The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious — his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages * * It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty, a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury. (Footnote omitted.)
McMann notes that even though a guilty plea must be intelligently made it is not a requirement that all advice offered by the defendant’s lawyer withstand retrospective examination in a post-conviction hearing. McMann, supra at 770, 90 S.Ct. 1441. As I *1064read that case the advice of counsel would have to be gross error which actually prompted the change of plea before the plea should be invalidated.
The majority also cites Colson v. Smith, 438 F.2d 1075 (5th Cir. 1971) in which the court held that there was no evidence that counsel’s advice to plead was based on any evaluation of the petitioner’s chances had he gone to trial. That is not our issue. That case in reliance on the Brady trilogy takes note, however, that “guilty pleas are meant to be and should be final. And if there was ever any doubt in our minds of the inviolability of that principle, there is certainly no longer any doubt after the Supreme Court’s recent decision declaring with unmistakable clarity its firm commitment to the finality of guilty pleas.” In my view we are drastically weakening that principle in the present case.
I find no justification for invalidating the guilty plea. I do not, as the trial court and the majority did, find that “petitioner’s reliance upon the advice of his attorney induced his plea. . . .”, and to say that he did it to avoid the death penalty is “incredible”, nor do I find in the record that it is “incontrovertible” that petitioner relied on the appeal advice of counsel in terminating the trial proceedings. In a clear case of murder in which there was no defense, we now, in effect, permit petitioner to manufacture for himself an undeserved opportunity, seven years after the murder, to try the second time to avoid responsibility for the murder which he admitted in court. This case may prompt much sifting and reconstruction of attorney advice to suit their immediate purposes by others seeking a way out after a change of heart. I believe petitioner was properly put where he belongs and where the public deserves to have him kept until his sentence has been served. I would reverse.
Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).