People v. Harrison

Docket No. 102859.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DWIGHT HARRISON, Appellant.

Opinion filed October 18, 2007.

JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, Garman, and
Karmeier concurred in the judgment and opinion.
Justice Burke specially concurred, with opinion, joined by Justice
Freeman.

OPINION

Dwight Harrison was charged in the Cook County circuit court
with two counts of first degree murder for the July 9, 1998, beating
death of Theotrie Archie. He pleaded not guilty and raised the defense
of insanity. Following a bench trial, he was adjudicated not guilty by
reason of insanity (NGRI).
After a hearing, he was found in need of inpatient mental-health
services and committed to the custody of the Department of Human
Services. He appealed, contending that his trial counsel was ineffective
for failing to move to suppress defendant’s confession after the court
found him insane at the time of the offense. He also contended the
evidence at trial was insufficient to establish his guilt beyond a
reasonable doubt. The appellate court dismissed the appeal, holding
that the trial court judgment was an acquittal for all purposes and that
a reviewing court could not grant any substantive relief greater than
the freedom from guilt established by the acquittal. 366 Ill. App. 3d
210, 218. This court allowed defendant’s petition for leave to appeal
(210 Ill. 2d R. 315), and we now affirm the appellate court judgment.

BACKGROUND
Theotrie Archie was beaten to death in the hallway outside his
Chicago apartment. Defendant was identified as the perpetrator by
Noble Foggs, a former roommate of Archie, who saw defendant
beating the victim. Chicago Police Detectives Thomas Benoit and Jean
Romic found defendant at his sister’s apartment. Defendant agreed to
accompany them to the police station, where he was given a Miranda
warning before he was interviewed. Initially, he denied any
responsibility for Archie’s murder and agreed to take a polygraph
examination the following morning. Shortly after defendant entered
the examination room, the polygraph examiner told detectives
defendant wanted to talk to them. Following another Miranda
warning, defendant confessed to the murder.
Assistant State’s Attorney Robert Robertson then arrived,
introduced himself, told defendant he was a prosecutor and not a
defense lawyer, and again gave defendant a Miranda warning.
Robertson allowed defendant to have a cigarette and use the
washroom. Defendant then acknowledged to Robertson that he had
been treated well and had no complaints about his treatment.
Defendant also agreed to give a handwritten statement confessing to
the murder. The statement was ultimately admitted as an exhibit at
trial.
Defendant entered a not-guilty plea, and the trial court ordered
behavioral examinations. Based on those examinations, the court
found defendant fit to stand trial with medications. Defendant then
filed a motion to quash his arrest and suppress his confession.
At the suppression hearing, the court heard testimony from the
detectives, Robertson, defendant’s attorney, and a psychiatrist, Dr.
Roni Selzberg, who was appointed by the court to evaluate defendant

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and render an opinion on his mental capacity. Dr. Selzberg was unable
to offer an opinion on whether defendant intelligently waived his
Miranda rights because she could not date her impressions back to the
time of his arrest. The court granted defendant’s motion to suppress,
and the State appealed.
In an unpublished opinion, the appellate court reversed the
suppression order, finding that defendant’s confession was voluntary,
based on the totality of the circumstances. People v. Harrison, 324 Ill.
App. 3d 1132 (2001) (unpublished order under Supreme Court Rule
23). This court denied leave to appeal. People v. Harrison, 198 Ill. 2d
600 (2002) (table).
On remand, defendant filed an “Amended Motion to Suppress
Statements,” again claiming defendant’s confession was involuntary.
In response, the State invoked collateral estoppel, prohibiting
reopening the motion to suppress. Although the trial court granted
defendant’s motion to reopen the suppression motion, defense counsel
later withdrew it. Defendant then waived a jury trial, and the cause
was tried before the Cook County circuit court.
The State presented only four witnesses. Bobbie Archie, the
victim’s sister, identified her brother, described his physical stature,
and stated that he appeared in good health when he left her apartment
on the day of the murder. William Meador of the Chicago police
department was the first officer to arrive at the murder scene. He
testified he found the victim lying in the fifth-floor hallway, attended
by paramedics. Meador was unable to find any eyewitnesses, but he
spoke to an unnamed person in the building who identified the victim
as Theotrie Archie, who lived in apartment 504.
The State then called Noble Foggs, who testified that he and the
victim had been roommates. On the evening of the crime, Foggs and
a friend, Shirley Graham, were in his apartment drinking beer and
using crack cocaine while listening to music through headphones.
When Foggs removed the headphones, he heard a “commotion” in the
hallway and opened the door. He saw defendant, whom he recognized
from the neighborhood, standing over the victim. Foggs testified that
defendant “stomped” on Archie’s throat a few times. Foggs said
“don’t kill him” and retreated inside his apartment fearing defendant
might attack him because defendant was a “pretty big guy.” Foggs
feared for his life because he was smaller and high on crack cocaine.

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Foggs admitted to prior felony narcotics convictions and also admitted
he did not immediately tell investigating police officers what he saw
on the evening of the crime. He did not give the police his account of
defendant’s actions until he was later interviewed at the police station
following a failed polygraph examination.
Transcripts of the suppression hearing testimony of Detectives
Benoit and Romic, and Assistant State’s Attorney Robertson were
admitted by stipulation. Also admitted pursuant to stipulation was the
handwritten statement of defendant, confessing to the murder.
Defendant’s attorney made an oral motion for a directed finding
and waived argument. The motion was denied, and the entire defense
case, raising the issue of insanity, was then presented by stipulation.
The State stipulated that Drs. Selzberg and Markos, psychiatrists who
examined defendant, would testify consistently with their prior reports
tendered to the court in 1999, stating that defendant was, at the time
of the murder, suffering from schizophrenia and, as a result, unable to
appreciate the criminality of his conduct or to conform his behavior
with the requirements of law.
The State further stipulated to incorporate and adopt the
proceedings at the various motion hearings as part of defendant’s
case-in-chief. In rebuttal, the State offered the stipulated testimony of
Dr. Wahlstrom, who examined defendant in August 1999, and
reported that, in his opinion, no mental-health professional could
testify as to defendant’s state of mind at the time of the crime because
of defendant’s inability to recall the actual date of the murder or his
activities that day.
The trial court found that the State had proved first degree
murder, but defendant had established by clear and convincing
evidence that he was insane at the time of the offense. The court
entered a finding of NGRI and referred defendant to the Department
of Human Services (Department) for evaluation.
Two Department psychiatrists evaluated defendant and concluded
in their written reports that defendant was in need of inpatient mental-
health services. At a hearing to determine whether defendant should
be immediately released from custody, the parties stipulated to the
admission of the reports. The court committed defendant to the
custody of the Department until June 28, 2028, subject to statutory
early release based on a finding that he is no longer in need of

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inpatient mental-health services. See 730 ILCS 5/5–2–4(d), (e) (West
2002).
Defendant appealed, challenging only the court’s predicate finding
that he committed first degree murder. He contended that his counsel
was ineffective for failing to move to reopen the suppression motion
after the court found he was insane at the time of the offense and that
the evidence, with his confession excluded from consideration, was
insufficient to prove his guilt beyond a reasonable doubt. The State
requested that the appeal be dismissed as moot because the trial
court’s NGRI finding constituted an acquittal and the reviewing court
could not grant any relief. The appellate court agreed and dismissed
the appeal, holding that “an NGRI verdict is, in all form and
substance, an acquittal.” 366 Ill. App. 3d at 214.
The appellate court further noted that even if it were to review
defendant’s claims on appeal, the record indicated they had no
substantive merit. The ineffective assistance of counsel claim failed
because defendant could not satisfy the prejudice prong of the
Strickland test. See Strickland v. Washington, 466 U.S. 668, 687, 80
L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). The court rejected
defendant’s claim that the trial court’s insanity finding contradicted the
appellate court’s prior finding that his intellectual functioning was
“low average to average,” noting that defendant cited no authority and
that the court had considered numerous relevant factors in making its
determination. Thus, consideration of the statement was proper, and
defendant failed to demonstrate the requisite prejudice to establish his
ineffective assistance claim. 366 Ill. App. 3d at 218-19.
The appellate court then noted that defendant’s statement
corroborated the testimony of Noble Foggs and that assessing the
credibility of witnesses is an appropriate trial court function. Hence,
the court concluded there was sufficient evidence to support the trial
court’s finding that defendant’s acts constituted first degree murder.
366 Ill. App. 3d at 219-20.
This appeal followed.

ANALYSIS
Defendant argues that the appellate court erred in holding that a
NGRI judgment is an acquittal for all purposes and, thus, not subject

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to appellate review. He further argues that the predicate findings for
the charged offense are still subject to appellate review and that the
evidence was insufficient to prove his guilt beyond a reasonable doubt.
The question of whether a defendant has been acquitted is, for
purposes of appeal, entirely one of law. Price v. Vincent, 538 U.S.
634, 639, 155 L. Ed. 2d 877, 885, 123 S. Ct. 1848, 1852 (2003);
People v. Flaherty, 396 Ill. 304, 311 (1947). Hence, the applicable
standard of review in this case is de novo. People v. Breedlove, 213
Ill. 2d 509, 512 (2004).
Defendant argues that a NGRI judgment is actually a finding of
guilty but insane and therefore should not be treated substantively as
an acquittal barring appellate review. He contends that the holding in
this case conflicts with People v. Wells, 294 Ill. App. 3d 405 (1998),
where the court considered whether a defendant adjudged NGRI is
entitled to expungement of his arrest records pursuant to the Criminal
Identification Act. Section 5 of that statute provided that the arrest
record of a defendant acquitted of a charge, or released without being
convicted, may be expunged. 20 ILCS 2630/5(a) (West 1994). The
trial court in Wells found that expungement need not be ordered in
every case where a person had been acquitted or released because the
conviction had been set aside. Rather, the court must balance the
public safety interest of the state against the individual needs of the
defendant. Accordingly, the trial court denied defendant’s petition for
expungement.
On review, the appellate court affirmed, holding that the use of the
word “may” rather than “shall” in the statute invested the trial court
with discretion to allow or deny a petition for expungement. Wells,
294 Ill. App. 3d at 409. The court then reviewed the trial court ruling
and concluded it was not an abuse of discretion. Wells, 294 Ill. App.
3d at 410.
Defendant argues that the Wells court held that “a defendant
found NGRI is not acquitted of the crime charged because the State
must prove the defendant guilty beyond a reasonable doubt of each of
the elements of each of the offenses charged before a defendant may
be found NGRI. [Citation.]” Wells, 294 Ill. App. 3d at 408. Defendant
reasons that the need for this predicate finding supports his claim that
a NGRI judgment is not an acquittal for purposes of appellate review.
We disagree.

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 The issue in Wells was whether the expungement statute applied
to a defendant found NGRI. 294 Ill. App. 3d at 407-09. The court
held that the defendant could seek relief under the statute because he
was released without being convicted. Wells, 294 Ill. App. 3d at 408.
Hence, the court’s statement that a NGRI judgment is not an acquittal
is dicta because it is not necessary to the disposition of the case. See
Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d 342, 356 (2006).
Further, the court’s observation is unsupported by citation to
authority, and we do not find it persuasive.
Here, the appellate court noted that an “acquittal” is defined as the
“ ‘ “release, absolution or discharge from an obligation, liability, or
engagement.” ’ ” 366 Ill. App. 3d at 214, quoting People v. Thon, 319
Ill. App. 3d 855, 863 (2001), quoting Black’s Law Dictionary 25 (6th
ed. 1990). The Code of Criminal Procedure of 1963 (Code) states
that, in a bench trial as here, “when the affirmative defense of insanity
has been presented during the trial and acquittal is based solely upon
the defense of insanity, the court shall enter a finding of not guilty by
reason of insanity.” (Emphases added.) 725 ILCS 5/115–3(b) (West
2002). In addition, the Code provides for a discharge hearing to
determine the sufficiency of the evidence against a person involuntarily
committed for mental-health treatment prior to trial who is unlikely to
be fit to stand trial within one year. 725 ILCS 5/104–25(a) (West
2002). If the court finds the defendant NGRI at the discharge hearing,
it “shall enter a judgment of acquittal.” (Emphasis added.) 725 ILCS
5/104–25(c) (West 2002). Even more importantly, the Code of
Corrections, entitled “Proceedings after Acquittal by Reason of
Insanity,” requires a defendant found NGRI to be discharged from
custody if the trial court determines there is no need for mental-health
services. (Emphasis added.) 730 ILCS 5/5–2–4(a) (West 2002).
A finding of NGRI is substantively different from a finding of
guilty but mentally ill (GBMI). The Code of Criminal Procedure
provides that a person who, at the time of the offense, “was not insane
but was suffering from a mental illness, is not relieved of criminal
responsibility *** and may be found guilty but mentally ill.” 720 ILCS
5/6–2(c) (West 2002). This court has held that a defendant found
guilty but mentally ill is “no less guilty than one who is guilty and not
mentally ill; unlike insanity, a GBMI finding or plea does not relieve
an offender of criminal responsibility for his conduct.” People v.

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Crews, 122 Ill. 2d 266, 278 (1988). On the other hand, the legislature
has provided that “[a] person is not criminally responsible for
conduct if at the time of such conduct, as a result of mental disease or
mental defect, he lacks substantial capacity to appreciate the
criminality of his conduct.” (Emphasis added.) 720 ILCS 5/6–2(a)
(West 2002).
The language of these statutes demonstrates the significant
differences between a finding of GBMI and a finding of NGRI. A
defendant found NGRI is completely absolved of the crime and will
not face punishment, while a defendant found GBMI remains
criminally responsible for the offense. The State’s burden of
establishing the charges against the NGRI defendant beyond a
reasonable doubt is not relevant to our analysis. Even if some error in
the underlying proceeding could be shown or if the State did not meet
its burden of proof, the defendant’s legal status would not change.
The defendant would still be acquitted of the charged offenses and
would still face the possibility of involuntary commitment for inpatient
mental-health treatment.
The legal term “insanity” must be understood in this context. If a
person lacks substantial capacity to appreciate the criminality of the
conduct, then all criminal responsibility is negated. This court has long
recognized this principle. See People v. Shroyer, 336 Ill. 324, 326
(1929); Hopps v. People, 31 Ill. 385, 392-93 (1863).
In this case, defendant’s two-count indictment charged that he
acted knowing that his actions created a strong probability of death or
great bodily harm to Theotrie Archie in violation of section 9–1(a) (2)
of the Code (720 ILCS 5/9–1(a)(2) (West 2002)), and that he
intentionally or knowingly beat Archie with his feet in violation of
section 9–1(a)(1) of the Code (720 ILCS 5/9–1(a)(1) (West 2002)).
The finding of NGRI is incompatible with guilt of the crime charged
because the trial court expressly found he was unable to appreciate the
criminality of his conduct. Accordingly, defendant’s argument that a
NGRI judgment is really a finding of “guilty but insane” is totally
unsupported by the relevant statutory provisions and case law.
Nonetheless, defendant also argues that although the NGRI
judgment is not a conviction, he is still aggrieved in this case. He
asserts that his involuntary commitment for up to 28 years affects a
substantial liberty interest. This court has recognized that “[i]t is well

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settled that detention of an individual at a mental health care facility
implicates a substantial liberty interest.” Radazewski v. Cawley, 159
Ill. 2d 372, 378 (1994). Further, if findings that defendant committed
the offense of first degree murder are reversed but he is still found in
need of mental-health treatment, his care could be provided with
fewer restrictions and more alternative treatment options, because as
a nonmurderer, the question of his danger to himself or others would
be viewed differently. Thus, defendant argues the appellate court’s
conclusion that he is not aggrieved by the NGRI judgment is
unsupported. Accordingly, he contends the issue of guilt is not moot
and is subject to appellate review.
Defendant points to decisions from Texas, Connecticut, and
Louisiana supporting the exercise of appellate jurisdiction in cases
similar to this one. See Louisiana v. Branch, 759 So. 2d 31 (La.
2000); Celani v. State of Texas, 940 S.W.2d 327 (Tex. App. 1997);
Connecticut v. Marzbanian, 198 A.2d 721 (Conn. App. 1963). The
State acknowledges those holdings, but notes that, unlike Illinois, not
one of those jurisdictions has express constitutional prohibitions
against appeals of judgments of acquittal. Our state constitution
provides that “after a trial on the merits of a criminal case, there shall
be no appeal from a judgment of acquittal.” Ill. Const. 1970, art. VI,
§6. The express constitutional language does not limit the prohibition
to attempted appeals by the State. Thus, if the NGRI judgment is an
acquittal, it may not be appealed.
The appellate court cited with approval the analysis in State v.
Baxley, 102 Haw. 130, 73 P.3d 668 (2003), where Hawaii’s supreme
court held it lacked jurisdiction to hear the appeal of a defendant
acquitted of kidnaping charges on the ground of insanity because
appellate jurisdiction in criminal cases requires that the defendant be
“aggrieved.” 366 Ill. App. 3d at 217-18. The Hawaii court concluded
the defendant was not aggrieved because his rights were not adversely
affected by his acquittal. See Baxley, 102 Haw. at 133-34, 73 P.3d at
671-72.
The appellate court noted that, just as in Baxley, defendant was
not aggrieved because, as a result of his NGRI acquittal, he faces no
criminal responsibility. His confinement does not result from his guilt
but is imposed for his own safety and for the safety of society. Once
it is determined that his confinement is no longer necessary for those

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purposes, his literal freedom will accompany his already guaranteed
freedom from guilt. 366 Ill. App. 3d at 218.
We agree with the appellate court. If defendant is in fact aggrieved
by his involuntary commitment, his grievance results from the court’s
posttrial finding that he was in need of inpatient mental-health
services. He chose not to challenge that finding. See 730 ILCS
5/5–2–4(e) (West 2002). The finding is still open to challenge if
defendant can demonstrate that he is no longer in need of inpatient
services. See 730 ILCS 5/5–2–4(e) (West 2002). Defendant is not
aggrieved by the NGRI judgment because its effect is to absolve him
of guilt for the charged crime. This absolution is exactly the same as
that conferred by any other not-guilty judgment, whether based on the
State’s failure of proof or establishment of an affirmative defense.
Defendant has been freed of any criminal responsibility for the charged
crime and thus is acquitted for all purposes.
The Fifth District of our appellate court recently reached a
contrary conclusion in People v. Trotter, 371 Ill. App. 3d 869 (2007).
In that case, the reviewing court rejected the State’s argument that it
lacked jurisdiction to hear defendant’s appeal because she was
acquitted of criminal charges by a NGRI verdict. The Trotter court
disagreed with the appellate court’s prior analysis in this case. Trotter
specifically rejected the Harrison court’s conclusion that a NGRI
verdict is “ ‘in all form and substance’ ” an acquittal and, thus, not
subject to appellate review. Trotter, 371 Ill. App. 3d at 871, quoting
366 Ill. App. 3d at 214.
The court reasoned that the existence of two fundamental
differences between a general acquittal and a finding of NGRI are
sufficient to confer appellate jurisdiction. Trotter, 371 Ill. App. 3d at
871. First, the court noted differences in procedure following a
general acquittal and a NGRI finding. In the former circumstance, the
case ends. In the latter, the court must first conduct a hearing to
determine whether defendant is in need of inpatient mental-health
services, and only if defendant is not in need of those services may he
be discharged. Trotter, 371 Ill. App. 3d at 871-72, citing 730 ILCS
5/5–2–4 (West 2004). The court noted, without explanation, that
although the legislature used the term “acquittal” in section 5–2–4,
proceedings under that statute are “too far removed from those that

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follow a general acquittal to legitimately be equated therewith.”
Trotter, 371 Ill. App. 3d at 872.
Nevertheless, the court first held that while a general acquittal
implicates no liberty interest, a NGRI finding can implicate a
substantial liberty interest if the trial court finds long-term
commitment for mental-health services is necessary. In addition, a
defendant found NGRI may continue to bear the inherent stigma
associated with the underlying factual allegations. Noting these
differences between a general acquittal and a NGRI finding, the court
concluded that a defendant who is found NGRI is more “aggrieved”
than a defendant who receives a general acquittal. Trotter, 371 Ill.
App. 3d at 873.
Second, Trotter held that a general acquittal and a NGRI finding
are fundamentally different because only after it is established that
defendant has committed an act constituting a criminal offense does
the trier of fact consider the defense of insanity. No similar
requirement exists for a general acquittal. Thus, the court concluded
that a general acquittal and a NGRI finding are not legal equivalents
for all purposes. Trotter, 371 Ill. App. 3d at 873.
Further, Trotter noted that the position taken by the Harrison
court would also create “the untenable situation in which one who was
found guilty but mentally ill would have the same full appellate
rights–including the right to challenge the sufficiency of the
evidence–as anyone else convicted of a criminal offense, while one
found NGRI would not be able to challenge the facts of the underlying
offense.” Trotter, 371 Ill. App. 3d at 874. Hence, the court concluded
that because of these “fundamental differences,” a NGRI finding is not
the equivalent of a general acquittal as contemplated by the framers of
our state constitution. Trotter, 371 Ill. App. 3d at 874.
We disagree with the Trotter court and now overrule that decision
as inconsistent with this opinion. Of course there are differences in
procedures following a NGRI acquittal as opposed to a general
acquittal. Nonetheless, a finding of NGRI is no less an acquittal. Its
effect is to absolve a defendant from guilt, thus falling within the
definition of an acquittal. If the framers of our state constitution had
intended to allow an exception to its general prohibition of appeals
from criminal acquittals, they clearly could have done so. Further,
defendant’s grievance arises from his postacquittal adjudication rather

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than the NGRI judgment. The trial court was required by statute to
discharge defendant if it found him not to be in need of mental-health
treatment. In addition, defendant is provided a statutory means to
raise periodic challenges to his continued confinement (see 730 ILCS
5/5–2–4(e) (West 2006)) and thus is not without a remedy.

CONCLUSION
For the reasons stated, we hold that a NGRI acquittal is not
subject to appellate review. We therefore affirm the judgment of the
appellate court.

Appellate court judgment affirmed.

JUSTICE BURKE, specially concurring:
I concur with the result reached by the majority because I believe
it is mandated by the plain language of the Code of Criminal
Procedure (Code) and our constitution. Section 115–3(b) of the Code,
which sets forth the various findings a court may make following a
bench trial, provides, “when the affirmative defense of insanity has
been presented during the trial and acquittal is based solely upon the
defense of insanity, the court shall enter a finding of not guilty by
reason of insanity.” 725 ILCS 5/115–3(b) (West 2004). Article VI,
section 6, of our constitution, in turn, provides, “there shall be no
appeal from a judgment of acquittal.” Ill. Const. 1970, art. VI, §6.
Thus, because a not guilty by reason of insanity (NGRI) verdict is
clearly an acquittal, no appeal can be taken. Accordingly, the appellate
court was correct to conclude that it had no jurisdiction. However, for
the following reasons, I am concerned about the consequences of
denying a defendant found NGRI the right to challenge the findings of
the trier of fact.
A finding of NGRI may be entered following a bench trial only if
insanity is the sole basis for the trial court’s finding that the defendant
is not guilty of the crime charged. 725 ILCS 5/115–3(b) (West 2004).
In other words, as the majority has explained, the court will have
determined that the “act” charged had been proven by the State, but,
because the defendant was insane, he lacked the “ ‘substantial capacity
to appreciate the criminality of his conduct’ ” and thus did not commit

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the “crime.” Slip op. at 8, quoting 720 ILCS 5/6–2(a) (West 2002).
See also 725 ILCS 5/115–4(j) (West 2004) (following a trial by jury,
“a special verdict of not guilty by reason of insanity may be returned
instead of a general verdict but such special verdict requires a
unanimous finding by the jury that the defendant committed the acts
charged but at the time of the commission of those acts the defendant
was insane”).
Once an NGRI verdict is delivered, the court’s actions are
governed by section 5–2–4 of the Unified Code of Corrections, which
sets out the procedures that must be followed subsequent to an
acquittal by reason of insanity. 730 ILCS 5/5–2–4 (West 2006). First,
the court must determine whether the Department of Human Services
will evaluate the defendant’s mental health on either an inpatient or
outpatient basis. 730 ILCS 5/5–2–4(a) (West 2006). If a defendant is
found to be in need of mental-health services on an outpatient basis,
he may be conditionally released. But if a defendant is found to be in
need of mental-health services on an inpatient basis, he faces a much
different future.
Section 5–2–4(a) of the Code of Corrections mandates that a
defendant awaiting or receiving treatment on an inpatient basis is
“placed in a secure setting” and is not “permitted outside the facility’s
housing unit unless escorted or accompanied by personnel of the
Department of Human Services or with the prior approval of the
Court for unsupervised on-grounds privileges as provided herein.”
Further, during any transportation “off facility grounds” these
defendants “shall be placed in security devices or otherwise secured
during the period of transportation.” 730 ILCS 5/5–2–4(a) (West
2006). Thus, the distinction between inpatient and outpatient
treatment is not a small one. As the majority notes, “[t]his court has
recognized that ‘it is well settled that detention of an individual at a
mental health care facility implicates a substantial liberty interest.’ ”
Slip op. at 8-9, quoting Radazewski v. Cawley, 159 Ill. 2d 372, 378
(1994).
A court determining whether a defendant requires mental-health
services on an inpatient or outpatient basis must consider whether the
defendant is one “who due to mental illness is reasonably expected to
inflict serious physical harm upon himself or another and who would
benefit from inpatient care or is in need of inpatient care.” 730 ILCS

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5/5–2–4(a)(1)(B) (West 2006). In making this determination, the trial
court may consider, among other things, “whether the defendant
appreciates the harm caused by the defendant to others and the
community by his or her prior conduct that resulted in the finding of
not guilty by reason of insanity.” (Emphasis added.) 730 ILCS
5/5–2–4(g)(1) (West 2006).
It is this latter section that concerns me. The “prior conduct” that
determines whether a defendant is in need of mental-health services on
an inpatient care basis is the same act that the trial court found
defendant committed during the trial proceedings. Under today’s
ruling, defendant is precluded from challenging that finding. An NGRI
defendant thus has no avenue to challenge the sufficiency of the
evidence proving he committed the very conduct that will influence
the court’s decision of whether he must be confined to inpatient
treatment immediately following his trial or upon the filing of a
challenge to continued inpatient treatment pursuant to section
5–2–4(e) of the Code of Corrections (720 ILCS 5/5–2–4(e) (West
2006)).
I recognize that many defendants asserting an insanity defense
admit to committing the acts charged. However, there will also be
instances where a defendant will deny committing the act charged and
also raise the affirmative defense of insanity. People v. Ford, 39 Ill. 2d
318, 321 (1968); see also People v. Moore, 147 Ill. App. 3d 881, 885
(1986). It is these situations that illustrate the problem with denying
a defendant found NGRI the right to a review of the findings made by
the trier of fact.
Because of the serious consequences that follow a finding that an
NGRI defendant is in need of mental-health services on an inpatient
basis, I urge our legislature to craft a remedy that affords these
defendants an opportunity to contest the finding that they committed
the act charged.

JUSTICE FREEMAN joins in this special concurrence.

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