(concurring):
I join the majority in reversing Shickles’ conviction. However, I write separately both to elaborate on the rationale for my conclusion that the trial court must state reasons for imposing a sentence of middle severity and to explain a point of disagreement with the majority regarding the failure to adequately instruct as to the consequences of the verdicts.
First, I agree that the trial court erred in not explaining why it imposed the sentence of middle severity. Section 76-3-201(6)(b) of the Code requires a statement of “reasons for [any] sentence choice.” Utah Code Ann. § 76-3-201(6)(b) (Supp.1987). On the other hand, section 76-3-201(5)(d) requires that when a court imposes a minimum mandatory term higher or lower than the middle term specified by statute, that court must “set forth on the record the facts supporting and reasons for imposing the upper or lower term.” Utah Code Ann. § 76-3-201(5)(d) (Supp.1987). These two provisions appear to conflict, because the former seems to require a statement of reasons for every sentencing choice, while the latter requires explanation only when either the high or low, but not the middle minimum mandatory term is selected. One way to resolve this conflict is to conclude that section 76-3-201(6)(b) is effectively superseded by section 76-3-201(5)(d) in cases involving mandatory minimum terms. Under this reading, if the term of middle severity is imposed no reason must be given for that choice. I do not find such a reading of these sections compelling.
Both subsections currently numbered (5)(d) and 6)(b) were enacted in 1983 as subsections (6) and (9), respectively, of section 76-3-201. See Utah Code Ann. § 76-3-201 (Supp.1983). As enacted, they were both parallel, freestanding subsections and presented the same seeming conflict that is evident today in their current numbering incarnations. Rather than construe them together so as to render section 76-3-201(6)(b) meaningless, I agree with Justice Stewart that they should be read to operate cumulatively. Whenever a sentence is imposed under a minimum mandatory statute, reasons for the sentence choice must be given. But when the court chooses a sentence other than the term of middle severity, it must set forth not only the reason, but also the facts supporting its choice. This construction seems to make the most sense of a rather confused set of provisions. In the present case, the trial court erred when it failed to explain why it chose the term of middle severity.
On the second point, I agree with Justice Stewart that when a prosecutor makes a remark misstating the law, which may prejudice the jury, the proper procedure is for the trial court to give a clarifying instruction. The prosecutor’s statement that if Shickles were found not guilty by reason of insanity he would “walk out the door” is a technical misstatement of the law and probably required a curative instruction. However, I conclude that the prosecutor’s technical misstatement of the law was adequately cured by the colloquy between counsel before the jury. That misstatement alone, taken in context, would not lead me to vote to reverse because I find any remaining effect of the error harmless. See State v. Knight, 734 P.2d 913, 919-20 (Utah 1987).
I am persuaded, however, by Justice Stewart’s argument for the proposition that juries should routinely be instructed on the consequences of the alternative verdicts of guilty and mentally ill or not guilty by reason of insanity, regardless of whether the prosecutor has first misstated the legal consequences of the verdicts. The meanings of these two possible verdicts are not self-evident. In State v. Baker, 671 P.2d 152 (Utah 1983), State v. Hansen, 734 P.2d 421 (Utah 1986), and other cases requiring lesser-included offense instructions, *304we have recognized the practical fact that in deciding whether to return a particular verdict, a jury may take into account the real or imagined consequences of that verdict and should be given all verdict choices reasonably supported by the evidence. See, e.g., Hansen, 734 P.2d at 424; Baker, 671 P.2d at 156-57. Implicit in that line of cases is an assumption that the jury will have some understanding of the relative consequences of the verdicts available to it. When faced with a choice between verdicts of guilty and mentally ill or not guilty by reason of insanity, however, the jury can only guess at the consequences of one versus the other. Therefore, they should be given some guidance.