concurring in part and dissenting in part:
In the instant case, the jurors were instructed by the court that if they found that, as a result of mental disease or mental defect, the defendant lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, then they should find the defendant not guilty by reason of insanity. In such case, the defendant would not be held criminally responsible for his conduct.
The jurors were also instructed that if they found the defendant was mentally ill but not insane, then they should find the defendant
guilty but mentally ill (GBMI). In such case the defendant would be held criminally responsible for his conduct. The trial court went on to define mental illness as a substantial disorder of thought, mood, or behavior which impaired the defendant’s judgment but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of the law.
During their deliberations, the jurors addressed the following written question to the court, “Can Cronic [sic] Depression be the same as Mentally 111? In Layman Terms. Pleasel” The posing of this question by the jurors indicates a lack of a grasp of a clear concept of mental illness. The question also causes me to speculate that, at the time the question was posed, the jurors were probably deliberating between a verdict of either guilty or guilty but mentally ill.
Writing for the majority, Justice Stouder has opined that “only experience will show whether a jury can formulate a clear and understandable conceptualization of the distinction between legal insanity and mental illness when reaching a verdict of GBMI.” Certainly the introduction of this new GBMI verdict form into a criminal trial has introduced a high degree of confusion into the resolution of the insanity defense.
What, after all, are jurors to make of a choice between not guilty by reason of insanity and guilty but mentally ill? Is not an insane person suffering from mental illness? And, if an insane person is not suffering from mental illness, can we say that an insane person is mentally healthy? Taking the legal definition at face value, the demarcation line is that a legally insane person cannot either appreciate the wrongfulness of his behavior or conform his conduct to the requirements of the law and that a person who is merely mentally ill can do either or both of the above. But if that is all there is to it, what then has the GBMI verdict contributed to the administration of criminal justice? The answer is a compromise verdict.
The major impetus for the GBMI verdict is the fear that people who should be held accountable for their conduct will beat the system with a verdict of not guilty by reason of insanity. The introduction of this verdict form into a trial invites a compromise verdict from all of those jurors who either do not understand the distinction or who may believe that a defendant is insane but do not believe that he should be exonerated for that reason. Conceptually, the rendering of this verdict form makes no sense in any other context.
If the point of the verdict were to assure that mentally disordered persons received treatment, then the verdict is superfluous. Any person convicted of a crime who needs treatment is supposed to get treatment. We don’t ask jurors to isolate other conditions in their verdict forms, e.g., guilty but diabetic or guilty but measled.
Part of the confusion, of course, is semantic and arises from the common and accepted practice of referring to behavioral patterns and conduct in terms of illness and disease, e.g., alcoholism. Is a person who cooks soup in his hat and wears a tin pot on his head crazy? Probably. Is he diseased? I don’t know. Any conduct which departs from the supposed norm these days is referred to as “sick.” It is doubtful, however, if such terminology adds any meaning to useful discourse.
Having said that, I have to concur with the majority and with the decision in People v. DeWit (1984), 123 Ill. App. 3d 723, 463 N.E.2d 742, therein cited that the introduction of a GBMI verdict form into a criminal trial does not constitutionally deprive the defendant of procedural due process of law. I further concur that the trial judge misstated the People’s burden of proof and that a reversal and remand for a new trial is thereby necessitated. I further concur that the definition-of-insanity instruction was improperly modified by the addition of language to the effect that abnormality manifested only by criminal, or otherwise antisocial conduct, is not mental disease or mental defect. The stated language was in a People’s instruction, was objected to by defendant, and was a modification of bracketed material set out in the second paragraph of Illinois Pattern Jury Instruction, Criminal, No. 24 — 25.01. I would have serious reservations as to whether that bracketed material should ever be given in any case. Certainly it was error to include it in this one.
Beyond the above, I see no error in the admission of the autopsy photographs in this case and accordingly dissent from that portion of the majority opinion. That the photos were gruesome is of no moment. The defendant was offering an insanity defense in this case. Gruesome photos such as those introduced in evidence would not have been prejudicial to the defense of not guilty by reason of insanity. Indeed, the very gruesomeness of the photos may have been an aid to the defense.
Furthermore, one critical issue at trial was whether the defendant acted in self-defense after his wife attacked him with a knife. One of the most important facts in deciding this issue is the nature of the wounds on the hands of the victim and the defendant. While using slide photographs of the hand wounds of the victim and the defendant to illustrate his opinion, Dr. Donoghue testified that he believed the defendant’s wounds were caused by slippage onto the knife blade during the stabbing and the victim’s wounds were defensive. Two other doctors testified that the defendant was insane when he committed the murder, but admitted that had the defendant obtained the knife from the kitchen, their diagnoses would be different. It is clear that the photographs of the victim’s hands were relevant to the issues of self-defense and insanity. Without these photographs, the jury would have been unable to compare the victim’s wounds with the defendant’s and thus would have been deprived of information crucial to the determination of whether the defendant was insane or acted in self-defense.
The majority’s reliance on Lefler and Landry to justify exclusion of the autopsy photographs is misplaced. In both of those cases, the gruesomeness of the photographs was attributed to the autopsy procedure. In the instant case, the photographs were taken after the blood was washed from the victim’s body but before the autopsy began. The victim’s body had not been altered by any autopsy procedures, therefore, the gruesomeness of the photographs is solely attributed to the acts of the defendant, not to the autopsy.
The majority correctly stated, “One of the issues at trial was Fierer’s mental state and pictures showing the position of the body and the number and type of wounds would be probative of that mental state and would be helpful in supplementing oral testimony.” The pictures of Mary Fierer’s body in the home showed the position of the body, but the wounds were difficult to discern because her body was fully clothed and covered with blood. In the photographs taken in the autopsy room, however, the body had been washed and the stab wounds were clearly visible. Since the autopsy photographs were more illustrative of the 27 stab wounds, were probative of the defendant’s mental state, and were not rendered more gruesome or prejudicial by the performance of any autopsy procedures, the majority incorrectly determined that the trial court erred in admitting the photographs.
For the reasons stated, however, the judgment of the circuit court of Tazewell County must be reversed and the cause remanded for a new trial.