dissenting:
On appeal, the defendant contends the trial court erred in allowing the jury to be instructed on the verdict of guilty but mentally ill. He contends the instruction prejudiced the presentation of the insanity defense, and that there was no evidence to support such an instruction.
In the instant case, Mr. Theodore Mathews, a clinical psychologist, testified that in his opinion the defendant suffered from a schizophrenic condition which rendered the defendant incapable of conforming his conduct to the requirements of the law. Dr. Robert Chapman, a psychiatrist, on the other hand, found no evidence the defendant was suffering from a mental disease or defect. He found the defendant was able to appreciate the criminality of his conduct. Chapman testified he had no reason to believe the defendant could not control his behavior.
Following the close of evidence, the trial court allowed, over the defendant’s objection, the State’s request that the jury be given the instruction on guilty but mentally ill (GBMI). In closing arguments the prosecutor advised the jury numerous times to reject the “popular myth” that someone who would commit this type of brutal murder must be “sick.” Relying on Dr. Chapman’s testimony, the prosecutor argued the defendant was not mentally ill, let alone insane. He repeatedly argued that the burden was on the defendant to prove he “couldn’t help himself.”
In light of the foregoing facts, I believe the judgment should be reversed. The applicable law at the time of trial required the defendant to prove by a preponderance of the evidence that he was not guilty by reason of insanity. (Ill. Rev. Stat. 1989, ch. 38, par. 6—2(e).) In order to obtain a verdict of guilty but mentally ill, the State was required to prove beyond a reasonable doubt (1) the defendant committed the acts charged, (2) the defendant was not legally insane at the time of the commission of those acts, but (3) the defendant was mentally ill. Ill. Rev. Stat. 1987, ch. 38, par. 115—4(j); People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972.
In the instant case, the only way the jury could have found the defendant guilty but mentally ill on the evidence presented was to accept the testimony of Mr. Mathews that the defendant suffered from a schizophrenic condition, but reject Matthews’ opinion that the condition rendered the defendant incapable of conforming his conduct to the requirements of the law. At the same time the jury had to accept Dr. Chapman’s opinion that the defendant could conform his conduct, but reject the underlying opinion that the defendant suffered no mental disease or defect.
Considering the nature of this testimony, I believe it is error to allow the jury to pick and choose what portions of expert psychological testimony to accept or reject. Especially in this case, where the only testimony concerning mental illness was tied inextricably to the opinion of insanity. There was no evidence presented that the defendant was mentally ill and yet sane. The testimony did not meet the definition of mental illness as defined in section 6 — 2(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 6—2(d)) as “a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’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 law.”
Under the GBMI statute, the State bore the burden to prove beyond a reasonable doubt that the defendant was mentally ill, and yet the State completely failed to present any evidence of mental illness. The only evidence presented by the State was that the defendant was not mentally ill. The State therefore failed to carry its burden under the GBMI statute, as the statute read at the time of this trial.
In closing arguments the prosecutor argued the defendant was not mentally ill and that he was sane. The defense argued the defendant had a mental illness which rendered him insane. There was no mention of the guilty but mentally ill option during closing arguments. With no basis in evidence, the jury was allowed to reach a compromise verdict.
The majority’s conclusion on this issue leads to the result that anytime the insanity defense is raised, a guilty but mentally ill instruction is in order. The insanity defense then becomes a trap for the unwary and leads to compromise verdicts as in the case before us. The insanity defense will for all intents and purposes be rendered meaningless.
In addition, I find the prosecutor’s closing arguments misleading vis-a-vis the burden of proof. Though the defendant concedes the issue is waived, I would reach the issue on plain error grounds. Having injected the GBMI matter into the proceedings, it was erroneous for the prosecutor to argue in ambiguous terms that the burden was on the defendant, when under the instructions given the burdens of proof were conflicting and flipped back and forth. The prosecutor’s argument failed to distinguish between the defendant’s burden to prove his insanity, and the State’s burden to prove the defendant’s sanity and mental illness. The majority is wrong when it states that the defendant would have the State argue the defendant’s “total defense.” First the defendant denies this supposition in his reply brief. Second, the GBMI theory of the case was not advanced by the defendant but by the State over the defendant’s objection. Given the State was advancing this theory, it was incumbent upon the prosecutor not to muddy the waters, but to clearly set forth the State’s two arguments: either the jury was to find the defendant guilty or guilty but mentally ill.
I also believe the issues instruction in the instant case was erroneous because it provided for contradictory burdens of proof which were totally irreconcilable. First the jury was to determine whether or not the defendant was guilty of the offense of murder beyond a reasonable doubt. To find this, the jury was to determine if the State had proven the defendant (1) committed the acts alleged and (2) had the requisite intent. If and only if the jury found both of these elements beyond a reasonable doubt was the jury to determine if the defendant had proven his insanity by a preponderance of the evidence. That is, did the defendant’s mental state prevent him from forming the necessary intent.
If the jury found that the defendant had failed to carry his burden, then it was instructed to continue its deliberations to determine whether the defendant was guilty but mentally ill. In line with the GBMI statute, the jury was instructed that to find the defendant guilty but mentally ill, the State had to prove beyond a reasonable doubt that the defendant was guilty of first degree murder, that the defendant was not legally insane at the time of the murder and that the defendant was mentally ill at the time of the murder.
Section 4 — 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 4—3(a)) states that before an individual can be found guilty of an offense (other than absolute liability offenses), as to each element of the offense he must act with the necessary mental state. Section 6 — 2(a) of the Code defines insanity thus: “A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 6—2(a).
The instruction in the instant case required the jury to first find the defendant committed the acts and had the requisite intent beyond a reasonable doubt. Only then could the jury deliberate on whether the defendant had proven his insanity by a preponderance of the evidence. This however would be impossible because the jury had already found beyond a reasonable doubt that he had the necessary intent, in other words he was sane. How could the defendant prove his insanity (that he lacked the requisite intent) by a preponderance of the evidence, when the intent element has already been found beyond a reasonable doubt? In sum, how in the instant case the defendant could be found to have the necessary intent to commit murder, and then be found not to have the ability to form that intent because he is insane, is beyond me.
Secondly, there is the same problem under the GBMI instruction given. Under the instructions, the defendant had the burden of proving his insanity by a preponderance of the evidence while the State had the burden to prove beyond a reasonable doubt the defendant was not insane. The burden under GBMI statute when considered in relation to the burden under the insanity defense is relatively inseparable. In sum, the instructions were so confusing they constituted reversible error.
For the foregoing reasons, I would reverse.