dissenting:
Because I believe this defendant was deprived of a fair trial I respectfully dissent. In People v. Meeker (1980), 86 Ill. App. 3d 162, 407 N.E.2d 1058, this court specifically reserved the question of whether under special circumstances, such as misleading prosecutorial comments on the consequences of acquittal by reason of insanity, an instruction such as that requested by defendant here should be given. In People v. Hebein (1982), 111 Ill. App. 3d 830, 444 N.E.2d 782, the defendant’s contention that such misleading prosecutorial comments had been made was rejected by the court so the issue was again not decided. In this cause, although the majority has not addressed that specific issue, it is clear to me that we are squarely presented with it.
The prosecution successfully prevented defense counsel from having the jury instructed that a verdict of not guilty by reason of insanity would not automatically result in the defendant’s release from custody. The pertinent section of the barred instruction stated:
“In the event of a verdict of not guilty by reason of insanity, a hearing shall be held to determine whether the defendant is subject to involuntary admission.”
In final argument to the jury the prosecutor then made statements which appear to have been calculated to give the jury precisely the erroneous impression which this instruction would have prevented them from drawing. The prosecutor told them:
“The psychiatrist tells you yes. There was no excuse to be an alcoholic for what he did. They tell you there’s ten million alcohol dependents out there and if you believe Dr. Bobby Wright, every one of them has a license to kill, go out and commit free murders because they are all not responsible.
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He says if Mr. Ford drinks, he will kill again. Well, that’s fine. You want to let that happen? Let him go.
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That’s the defense. They want you to give him a free murder.
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One doesn’t accept this, I won’t use the word B.S., this insanity defense, this fake insanity defense, this cloud insanity defense guise in alcoholism, because then there are ten million insanity defenses in this country and then there are ten million Joseph Ar-dells yet to die.”
Clearly these arguments implied to the jury that their acceptance of defendant’s insanity defense would automatically result in his release. (See People v. Brown (1982), 104 Ill. App. 3d 1110, 433 N.E.2d 1081.) This in a case where according to the arresting officer five witnesses described the defendant as “crazy” and where the testimony of defendant’s expert witness, if believed by the jury, would have resulted in his acquittal by reason of insanity.
Under these circumstances I believe defendant has been deprived of a fair trial. (Dipert v. State (1972), 259 Ind. 260, 286 N.E.2d 405.) I would reverse his conviction and remand the cause for a new trial at which the prosecution may seek his conviction in a manner consonant with his duty to see that justice is done.