specially concurring:
Although I dissented from the first appellate decision in this case, I reluctantly agree that this case must be remanded for a third trial and therefore concur in today’s decision. However, I respectfully disagree with the majority opinion’s rationale.
I
The majority holds that defendant was denied a fair trial because it concludes that the State is not permitted to comment on the possir ble consequences of a verdict. To reach the conclusion that a new trial is warranted, however, the court likens this case to People v. Wilson (1983), 120 Ill. App. 3d 950, 458 N.E.2d 1081, and its progeny. In Wilson, the State argued that defendant would be “automatically released” if he was found NGRI. The State did not make that argument in this case. Thus, I conclude that this case is more like People v. Fox (1970), 131 Ill. App. 2d 604, 264 N.E.2d 502, where the State raised the possibility (not the certainty) of defendant’s release. In Fox, as in this case, the NGRI argument was initiated by the State, commented on by defense counsel and then rebutted by the State. (Fox, 131 Ill. App. 2d at 612, 264 N.E.2d at 508.) Indeed, this case is stronger than Fox, for here the record contains testimony that defendant taught Bohr how to fake an insanity defense and repeatedly stated that he intended to be transferred to the Chester Mental Health Facility, begin acting normal and obtain a release. The State’s argument on this point was therefore less prejudicial than that in Fox.
I agree with the majority that it was improper for the State to argue that defendant intended to kill again upon release, as the State failed to present evidence to that effect. I also agree that the State had every right to use Bohr’s testimony to show that defendant was sane when he killed his wife and infant son. I disagree with the majority opinion to the extent that it suggests that the State may never refer to the possibility that a defendant found NGRI may be released at some future date. The introduction of testimony such as that provided by Bohr in this case argues for an exception to the sort of rule announced today. However, as the majority reaches the contrary conclusion, it is unnecessary for me to reach the issue of whether defendant would be entitled to a “possible consequences” instruction in such a case. See People v. Glenn (1992), 233 Ill. App. 3d 666, 680-81, 599 N.E.2d 1220, 1229-30 (leaving open the question of whether prosecutorial comment would justify an instruction).
II
After reversing and remanding the case due to the State’s arguments regarding defendant’s “plan,” the majority addresses at length a number of issues that may arise on retrial. I disagree with the majority opinion’s disposition of some of these issues.
For example, the majority opinion concludes that the trial court erred in tendering the “sociopath” instruction (Illinois Pattern Jury Instructions, Criminal, No. 24—25.01 (2d ed. 1981)) to the jury. Yet in the case relied upon by the majority, People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972, the trial court improperly struck the word “repeated” from the instruction and the record indicated that the defendant had no record of illegal or antisocial conduct (and in fact had a long and distinguished professional career). (Fierer, 124 Ill. 2d at 192, 529 N.E.2d at 978.) In contrast, the instruction here was not so altered and the State introduced a number of defendant’s prior bad acts. I am not convinced that this court must venture at this time into the area of determining how “repeated” bad acts must be to warrant the instruction. Even if it was error to give the instruction, that error would not, by itself, warrant a reversal in this case. See People v. Vanda (1982), 111 Ill. App. 3d 551, 569, 444 N.E.2d 609, 622.
III
The majority concludes that the State should not be permitted to use defendant’s acknowledged understanding of his Miranda rights as proof of his sanity. I agree with this conclusion, though not for the reason suggested by the majority.
The majority opinion, relying on the previous decisions in this case and on Wainwright v. Greenfield (1986), 474 U.S. 284, 88 L. Ed. 2d 623,106 S. Ct. 634, indicates:
“The stated rationale of those decisions was that it is fundamentally unfair for the prosecution to breach the implied promise which accompanies the giving of Miranda rights, namely, that the exercise of the right to remain silent and to counsel will not be used as evidence against defendant.” (244 Ill. App. 3d at 185.)
The majority opinion concludes that the “implied promise” rationale applies to the facts in this case, but fails to explain this conclusion. The record indicates that defendant eventually spoke to the police after he was informed of his Miranda rights; thus, there is no use of post-arrest silence to prove defendant’s sanity. I therefore conclude that the aforementioned “implied promise” of Miranda is not at issue.
Indeed, Miranda requires that
“[t]he warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it.” (Miranda v. Arizona (1966), 384 U.S. 436, 469, 16 L. Ed. 2d 694, 720-21, 86 S. Ct. 1602, 1625.)
That defendant’s statements may be held against him in court could be said to be one of the “express promises” of the Miranda warnings. There are exceptions made where the defendant also invokes one of his or her Miranda rights. (See, e.g., People v. Anderson (1986), 113 Ill. 2d 1, 5-6, 495 N.E.2d 485, 486-87.) But defendant here did not invoke his right to remain silent and does not raise an issue regarding other Miranda rights.
Nevertheless, I agree that the acknowledgement here could not be used to prove defendant’s legal sanity. In some cases, the probative effect of post-arrest, post-Miranda warning silence on the issue of legal sanity is outweighed by its prejudicial effect. (Greenfield v. Wainwright (11th Cir. 1984), 741 F.2d 329, 332, aff’d on other grounds (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634.) The same is true of a defendant’s post -Miranda warning request for an attorney. (Vanda, 111 Ill. App. 3d at 563, 444 N.E.2d at 619.) The assertion of paranoid schizophrenia may fall within the scope of these rules. The appellate decision in Greenfield stated:
“[T]he evidence was probative only of petitioner’s ability to understand English and to remain calm, which would be consistent with the mental disease of paranoid schizophrenia. The evidence accordingly was not probative of petitioner’s sanity.” (Greenfield, 741 F.2d at 334.)
The appellate decision in Greenfield is not the only decision recognizing this phenomenon:
“A manic depressive has manic phases; a paranoid schizophrenic need not, and need not be the less dangerous for not having them.” (Thomas v. Indiana (7th Cir. 1990), 910 F.2d 1413,1414.)
The record in this case contains the expert testimony of Dr. Stipes, who opined that defendant suffered from a paranoid type of schizophrenia. The State has failed to identify any portion of the record that would suggest that defendant’s acknowledgment of Miranda warnings is inconsistent with defendant’s insanity defense. Despite this apparent lack of evidence, and contrary to the State’s position on appeal, the State used the acknowledgment to argue that defendant was sane at the time of the killings. The argument was improper.
Whether the argument was reversible error is another question. An isolated reference to post-Miranda warning silence as evidence of sanity was deemed harmless in the Vanda case. (Vanda, 111 Ill. App. 3d at 570-72, 444 N.E.2d at 624.) The Vanda court so held based on the extensive record developed on the sanity issue at trial. The Federal decisions denying habeas corpus relief in the Vanda case elaborated on this point, noting that multiple experts testified on the sanity issue, testimony relating to Vanda’s early childhood was introduced and there was evidence suggesting that the insanity defense was fabricated. (See United States ex rel. Vanda v. Lane (N.D. Ill. 1991), 758 F. Supp. 1252, 1257-58, aff’d (7th Cir. 1992), 962 F.2d 583, 585.) The record here is similar in all of these respects. It is therefore possible that the argument, when considered in isolation, would not warrant reversal. However, when combined with the other closing arguments disapproved in the majority opinion, the State’s closing arguments cumulatively rise to the level of plain error requiring reversal.
IV
The State should not seek solace in this opinion. The State should conclude that this court was in unanimous agreement that the record on appeal contained numerous instances where the State unfairly prejudiced defendant’s right to a fair trial. This court also unanimously agrees that it is regrettable that the victim’s family will be forced to endure a third trial. The People of the State of Illinois, including the victim’s family, are not well served by prosecutorial misconduct. I urge the State to take the steps necessary to ensure that the third trial in this case is the last.