dissenting:
The majority correctly states that low intelligence does not ipso facto render an accused incapable of understanding or waiving constitutional rights. However, both expert witnesses agreed that defendants disability went beyond mere low intelligence. Dr. Graybill stated that defendant had a chronic brain syndrome with psychosis, which he described as a state of mind in which an individual departs from reality. He equated the psychosis with the legal term “insanity”; (an insane person cannot know of his constitutional rights, nor intelligently waive them, [People v. Lambersky (1951), 410 Ill. 451, 454; People v. Shroyer (1929), 338 Ill. 324, 325]) and said that although defendant’s psychosis became more florid at times, it was somewhat continuous. Similarly, Mr. Gould stated that defendant had brain damage and suffered from mental illness, which he described as an ambulatory disorder which would be likely to cause her to break down under stress. He further testified as follows:
“Q. Well, with .regard to waiving her constitutional rights, would Dorothy Reed, under these circumstances, have the independent will to waive these rights?
MR. ROE: I object to that because there is not a proper foundation; they’re not stating the circumstances.
MR. MAHONEY: I have given the circumstances. The circumstances are the ones already given the witness as a prelude on the day in question to Defendants Exhibit +tl. I’m referring to the warning given by — right in the first statement — first sentence by Mr. Messer. ‘You have the right to remain silent and anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer, and have him present while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one. Do you understand these rights I have explained to you and having these rights in mind, do you wish to talk to us now and make a statement?’ and she says, Tes’, and I am asking him if she had the will at that time under those circumstances, which I have already related to the witness, giving him that statement, to waive her constitutional rights.
THE COURT: In his opinion?
MR. MAHONEY: In his opinion.
THE COURT: All right, he can answer the question.
A. In my opinion she would not understand the question; she would not understand the concept of constitutional rights; she would not understand the word, waive’; she would not know what it was that she was expected to do, and consequently, the question of will is one that at this point is meaningless. She would not know what it was that was expected of her. She would not know what it was that she was doing in that circumstance.
MR. MAHONEY: Your witness.
MR. ROE: I have no questions.”
On the basis of the above testimony, I would conclude that the trial court’s finding that defendant’s mental condition rendered her unable to understand or intelligently • waive her constitutional rights was not against the manifest weight of the evidence. While I agree that the trial court’s finding is to some degree inconsistent with its earlier finding that defendant was competent to stand trial (see People v. Hart (1966), 35 Ill.2d 548, 552), I do not think that this requires reversal. A person is competent to stand trial if he can understand the nature and purpose of the proceedings against him, and can assist in his defense. (Ill. Rev. Stat. (1969), ch. 38, sec. 104 — 1.) This standard is not the same as, and probably less restrictive than, that required in order to make an understanding and intelligent waiver of constitutional rights.
I further disagree with the majority conclusion as to paragraphs (B) and (C) of the trial court’s order. The State has neither argued nor briefed the issues raised by these paragraphs, both of which raise difficult questions never specifically decided in Illinois. The State’s brief says:
“The ‘constitutional fact’ which the People attack in this forum was stated in the suppression order as follows:
‘(A) That the defendant, on February 5, 1971, was because of her mental condition testified to by Dr. Graybill and Mr. Gould, unable to understand or intelligently waive her constitutional rights as enumerated in the Miranda warnings read to her.’ ”
Neither paragraph (B) nor (C) would have the effect of suppressing all of defendant’s statements, as does paragraph (A). Paragraph (B) suppresses only defendant’s conversation with the polygraph operator. Paragraph (C) suppresses only the signed confession of the defendant, due to the fact that it was signed after an attorney was appointed to represent defendant, and without notice being given to this attorney. We should hold that the issues raised by paragraphs (B) and (C) of the suppression order are waived. Ill. Rev. Stat. 1971, ch. 110A, sec. 341 (e) (7).