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App. 3d 611, 470 N.E.2d 1252 (Stack I), this court reversed and remanded on various grounds defendant Richard Stack\u2019s convictions and concurrent natural life sentences imposed for the brutal murders of his wife and infant son. Our supreme court affirmed in part the opinion of this court in People v. Stack (1986), 112 Ill. 2d 301, 493 N.E.2d 339 (Stack II), and remanded the case for retrial. The circuit court held a second jury trial, which resulted in defendant being found guilty again. Because we believe the State has denied defendant a fair trial a second time, we reverse and remand for a new trial.\nFor purposes of brevity, we adopt, with one major exception discussed below, the recitation of facts given by this court in Stack I. While no witnesses\u2019 testimony will be the same in two different trials, and while witnesses testified in this case who did not testify in Stack I, the recitation of facts in Stack I is sufficiently similar for purposes of this appeal.\nThe exception we note is the testimony of John Bohr, whom the State called during its rebuttal case. Bohr did not testify at defendant\u2019s first trial. We summarize his testimony as follows.\nAccording to Bohr, while imprisoned at the Maynard Psychiatric Unit of the Illinois Department of Corrections on charges of violation of probation, theft and aggravated battery, he and defendant had daily conversations regarding the deaths of defendant\u2019s wife and infant son. Defendant informed Bohr on how to go about acting insane so as to get a not-guilty-by-reason-of-insanity (NGRI) verdict. Defendant told Bohr that Bohr should walk along and talk aloud as if he were talking to someone who was not there, tell the doctors that he (Bohr) sees devils and demons coming out of people and also to stand in the yard singing to himself. On more than one occasion, defendant told him that his plan was to get a NGRI verdict, then go to Chester Mental Health Facility and start acting normal so he could be released.\nBohr testified that before the murders, defendant\u2019s wife was nagging defendant about drinking too much and his inability to hold a job. Defendant told Bohr he just exploded and stabbed his wife to death with either a broom or pool stick and threw his son against the wall because he got in the way. Defendant told Bohr he knew he was in trouble so he went to the window where he yelled to the police that he had been waiting and had just killed his wife and child. After leaving Maynard, Bohr wrote a letter to then Cook County State\u2019s Attorney Richard M. Daley and repeated in the letter the conversations he had with defendant.\nI\nWe first address defendant\u2019s contention that the State failed to rebut his insanity defense by proof beyond a reasonable doubt. In Stack I, we rejected defendant\u2019s sufficiency argument on the ground that the evidence presented a classic question of fact to be resolved by a jury after a fair trial. As noted, the evidence the State presented to counter defendant\u2019s insanity defense in the two trials was substantially the same; Bohr\u2019s testimony only made the State\u2019s case stronger. Accordingly, we again hold that the evidence presented in the second trial raised a question of fact which the jury was entitled to resolve against defendant.\nII\nWe next address whether defendant was denied a fair trial when, according to defendant, the prosecution repeatedly told the jury that defendant would be \u201cautomatically released\u201d and \"free to kill again\u201d if the jury returned a NGRI verdict. Defendant\u2019s claim of prosecutorial error is predicated upon the following discourse during the State\u2019s rebuttal argument:\n\u201cMR. DI BENNEDETTO [Assistant State\u2019s Attorney]: John Bohr. What did he tell you about this guy? He told you that this is what the defendant said. He\u2019s going to go back, get found not guilty by reason of insanity, go to Chester, and get out. That\u2019s what the defendant said.\nMR. KUNZ [Defense attorney]: Objection.\nMR. DI BENNEDETTO: He\u2019s going to take the pool cues\u2014\nTHE COURT: Overruled. The jury heard the testimony.\nMR. DI BENNEDETTO: He\u2019s going to take these pool cues right out of here and go chalk up another one.\nMR. KULL [Defense attorney]: Objection.\nMR. DI BENNEDETTO: That\u2019s the chance you have to take\u2014\nMR. KULL: Objection.\nTHE COURT: Sustained.\nMR. DI BENNEDETTO: From a guy like this.\nTHE COURT: Sustained, counsel. * * *\nMR. DI BENNEDETTO: Ladies and gentlemen, you have to end the mission because the mission isn\u2019t over for Mr. Stack, and the mission that he\u2019s on won\u2019t be over until he does what he told Bohr. He beats a case by not guilty by reason of insanity, and he gets out the door after going to Chester.\nMR. KULL: Objection.\nTHE COURT: Sustained.\nMR. DI BENNEDETTO: That\u2019s his mission.\nTHE COURT: Sustained. The jury will be instructed to disregard the last comment.\nMR. DI BENNEDETTO: Ladies and gentlemen, that\u2019s the mission that he laid out in that penitentiary. The only way you can stop that mission, the only way that you can win is not to let him win. He cannot beat this case. He could conform his conduct. He knew what he was doing. That\u2019s clear from the evidence. You can\u2019t let him win. The consequences are too severe.\u201d\nThe trial ended on this note.\nWe first address how our opinion in Stack I implicates our present analysis of the above comments. In Stack I, this court cited as error the prosecutor\u2019s repeated statement during closing argument that \u201csociety would \u2018have to live with\u2019 \u201d defendant if the jury allowed him to escape responsibility. Defendant there contended that the statements misled the jury into believing that if he was acquitted for reasons of insanity, he would be returned immediately to society.\nRelying on People v. Wilson (1983), 120 Ill. App. 3d 950, 458 N.E.2d 1081, we ruled over a dissent that the complained-of remarks were error. This ruling was not affected by the supreme court\u2019s opinion in Stack II and, accordingly, became the law of the case. (See Stack, 112 Ill. 2d at 314, 493 N.E.2d at 345.) In this appeal, defendant contends that notwithstanding this court\u2019s ruling in Stack I, the prosecution violated the law of the case by repeating the comments.\nWe believe the law of the case doctrine has limited application to the comments in question in light of Bohr\u2019s testimony. Under the doctrine, where the evidence on a subsequent appeal is the same as that on the first or prior appeal, or substantially so, the adjudications of the prior appeal become the law of the case. (People v. Lyles (1990), 208 Ill. App. 3d 370, 376, 567 N.E.2d 396, 400.) We believe Bohr\u2019s testimony, which was not present in Stack I, requires that we distinguish Stack I and independently assess whether the prosecutorial comments in question constituted improper comment on the consequences of a NGRI verdict.\nAlthough we distinguish Stack I on account of Bohr\u2019s testimony, we nevertheless hold that the State has again improperly commented on the consequences of a NGRI verdict. Contrary to the State\u2019s belief, Bohr\u2019s testimony did not give the prosecution a license to arouse fear in the minds of jurors that defendant could in fact walk the streets again if his \u201cmission\u201d were to succeed. Bohr\u2019s testimony was only relevant on the issue of defendant\u2019s sanity at the time of the crime. (See Ill. Rev. Stat. 1979, ch. 38, par. 6\u20142 (\u201cA person is not criminally responsible for conduct if at the time of such conduct ***\u201d).) To this end, the prosecution had every right to make the most of this testimony insofar as it related to defendant\u2019s sanity at the time of the murders. We believe the prosecution went well beyond this parameter, however, and instead used Bohr\u2019s testimony to hammer home the idea that only the jury\u2019s guilty verdict stood between defendant being free to kill again and being incarcerated. These types of comments could only play on an insanity jury\u2019s inherent fear that its verdict might set a dangerous man free.\nTo support our holding, we again cite People v. Wilson (1983), 120 Ill. App. 3d 950, 960-61, 458 N.E.2d 1081, 1088. Wilson prohibits prosecutorial comments which convey, implicitly or explicitly, that a jury\u2019s NGRI verdict may result in a defendant\u2019s release. See also People v. Alerte (1983), 120 Ill. App. 3d 962, 458 N.E.2d 1106; People v. Brown (1982), 104 Ill. App. 3d 1110, 433 N.E.2d 1081; cf. People v. Etten (1975), 29 Ill. App. 3d 842, 847, 331 N.E.2d 270, 274-75, cert. denied (1976), 425 U.S. 994, 48 L. Ed. 2d 818, 96 S. Ct. 2207; People v. Hering (1975), 27 Ill. App. 3d 936, 944-45, 327 N.E.2d 583, 590-91.\nContrary to the State\u2019s assertion, the Wilson line of cases, which includes our prior ruling in Stack I, is nevertheless persuasive despite the fact that the prosecution here did not comment that defendant would be automatically released upon rendition of a NGRI verdict. The State claims that because the prosecutor only told the jury that defendant could be set free sometime down the road rather than right away, the prejudicial nature of the comments is lessened. We disagree as this purported distinction ignores the fact that the prosecutor clearly planted the seed that a NGRI verdict could set defendant free.\nWe also decline the State\u2019s invitation to find the comments proper because they were in response to defense counsel\u2019s closing argument, who argued:\n\u201cMR. KULL [Defense counsel]: And more importantly, what\u2019s the real real [sic] flaw? Well Richard Stack, he says, tells him I\u2019ll go. Ill [sic] be found not guilty by reason of insanity I\u2019ll go to Chester. I\u2019ll convince the doctors I am sane, and I\u2019ll walk out. That ain\u2019t what the law is.\nMR. STOCK [Assistant State\u2019s Attorney]: Objection.\nTHE COURT: Sustained.\nMR. KULL: That\u2019s not the law.\nTHE COURT: Counsel.\nMR. KULL: It is what they said in their argument.\nTHE COURT: Okay. The objection is sustained.\nMR. KULL: Fine.\nTHE COURT: Counselor, don\u2019t\u2014\nMR. KULL: It ain\u2019t true.\nMR. STOCK: Judge, objection.\nMR. KULL: What he told you what Richard Stack says is not what happened.\nTHE COURT: The jury will be instructed to disregard it.\u201d\nWhile defense counsel\u2019s argument was itself improper, we do not believe the intent underlying the prosecutor\u2019s comments in rebuttal was to respond to counsel\u2019s comments. First, notwithstanding our decision in Stack I, the prosecutor throughout the entire trial pushed defendant\u2019s fair trial rights to the limit. His comments in rebuttal are only one instance of this unsound trial tactic and cannot, therefore, have as their motive an intent to reply to defense counsel\u2019s comments. Second, one of the State\u2019s themes in closing argument was to emphasize Bohr\u2019s testimony, not as to how it impacted defendant\u2019s insanity at the time of the crime, but what could happen to defendant after trial. A comparison of the State\u2019s treatment of Bohr\u2019s testimony in initial close and rebuttal reveals this much:\n\u201cMR. STOCK [Assistant State\u2019s Attorney]: Ladies and gentlemen, we also know what Richard Stack is about. What\u2019s his plan?\nJohn Bohr told you what Richard Stack\u2019s plan is. Richard Stack told John Bohr, play the role a little longer, play the game a little longer; I\u2019ll beat the case. I\u2019ll be found not guilty by reason of insanity.\nI\u2019ll go back to Chester. I\u2019ll stay there awhile, and then I\u2019m just going to convince the doctors that I\u2019m sane because he knew he could convince the doctors that he was sane.\nThat\u2019s Richard Stack\u2019s plan. That\u2019s the plan he brought into this courtroom. * * *\nYou, folks, are going to have to make Richard Stack take responsibility. It is up to you folks, to stop Richard Stack\u2019s plan, his plan to be found NGRI, go back to Chester, convince the doctor\u2019s that I\u2019m sane.\u201d\nBecause we determine that the prosecutor\u2019s comments were not an invited response to defendant\u2019s closing argument, we distinguish People v. Myers (1966), 35 Ill. 2d 311, 220 N.E.2d 297, and People v. Fox (1970), 131 Ill. App. 2d 604, 264 N.E.2d 502. These cases were not cited by the parties, but are the two closest cases we have found on the matter.\nIn Myers, defense counsel argued that the jury should not sentence defendant to death and should instead \u201cgamble\u201d that defendant would stay behind bars in a mental institution where he would present no problem to society. The prosecution responded by questioning the jurors whether they wanted to accept this gamble where defendant could inevitably be released and free to kill another. The prosecutor also replied that if this inevitability were to occur, the jury would be giving defendant the gun and telling him, \u201c \u2018[Gjood boy, John, go out and kill another Carole Ballard\u2019 \u201d (Myers, 35 Ill. 2d at 335). In finding the comments to not constitute error, the court held that the State\u2019s legitimate reply was invited by defendant\u2019s argument. Myers, 35 Ill. 2d 311, 220 N.E.2d 297.\nIn Fox, defense counsel argued in closing that a NGRI verdict would not result in defendant\u2019s release where defendant was still insane. The State responded that although insane, a defendant found NGRI would be subjected to the State\u2019s machinery and it would be difficult to determine whether he would be released in 20 years, two years, two weeks or as little as two days. In rejecting defendant\u2019s contention that the State had argued that defendant would be released in as little as two days if found NGRI, the court found the State\u2019s comments were an invited response to defense counsel\u2019s argument and were not seriously prejudicial. Fox, 131 Ill. App. 2d at 611-12, 264 N.E.2d at 508.\nAs the above discussion shows, the holdings of Fox and Myers deal with prosecutorial comment which defense counsel has invited. Such a situation did not occur here. Moreover, the \u201cinvited response\u201d rationale cannot be used to justify comments which, as here, operate to a defendant\u2019s substantial prejudice and deny him a fair trial.\nHaving determined that the prosecutor\u2019s comments were error, we must next ascertain whether reversal is required. Prosecutorial misconduct in closing argument warrants reversal and a new trial if the improper comments constitute a material factor in the conviction. (People v. Linscott (1991), 142 Ill. 2d 22, 28, 566 N.E .2d 1355, 1358.) The issue is whether the jury could have reached a contrary verdict had the improper remarks not been made. (Linscott, 142 Ill. 2d at 28, 566 N.E.2d at 1358.) If a reviewing court cannot say that the prosecutor\u2019s improper comments did not contribute to the defendant\u2019s conviction, the court should order a new trial. Linscott, 142 Ill. 2d at 28, 566 N.E.2d at 1358.\nThis was an emotionally charged case, with a mother and infant horrendously murdered on Mother\u2019s Day. Although objections to many of the comments were sustained and the jury instructed to disregard the comments, the prosecution continued with the comments despite the objections. Moreover, the court\u2019s subsequent, boiler-plate instruction that the jury was not to concern itself with sentencing or punishment during deliberations was insufficient to cure the damage. (See Illinois Pattern Jury Instructions, Criminal, No. 1.01(4) (2d ed. 1981).) The damage was done. The prosecutor repeatedly played on the jury\u2019s inherent fear that its verdict could set a dangerous man free. The jury was invited to convict defendant, even though it might believe defendant to be insane, in order to keep defendant off the streets and away from society. (United States v. Jackson (7th Cir. 1976), 542 F.2d 403, 411.) As the evidence on insanity was closely balanced, we cannot say the comments in question did not influence the outcome of the case.\nOur decision to grant defendant a new trial is supported by the recent decision of United States ex rel. Alerte v. Lane (N.D. Ill. 1989), 725 F. Supp. 936, aff\u2019d on other grounds sub nom. Alerte v. McGinnis (7th Cir. 1990), 898 F.2d 69, a habeas corpus review of this court\u2019s decision in People v. Alerte (1983), 120 Ill. App. 3d 962, 458 N.E.2d 1106.\nIn Alerte, the prosecutor made repeated comments regarding the consequences of a NGRI verdict:\n\u201cMr. Goggin: Are we going to let Frank Alert [sic] skate? Are we going to let him get a slap on the wrist again and walk out of this courtroom and\u2014\nMr. O\u2019Donnell: Objection.\nMr. Goggin: (continuing) \u2014 and scoff at all of us?\nThe Court: Punishment is left up to me.\nMr. Goggin: Let him laugh at all of us and escape responsibility? Let him laugh at the Kelly family, a family that no longer has their son, their brother, the baby of the family, the tennis player, the kid with the future, who had a scholarship to college? Tell the Kelly family, \u2018Forget it, forget it.\u2019 We are going to slap him on the wrist and let him walk out because of somebody like [Dr.] Frank Lorimer.\u201d Lane, 725 F. Supp. at 940.\nDuring his closing argument, defense counsel unsuccessfully attempted to respond to the prosecutors\u2019 statement concerning the effect of a finding of insanity. The court, however, sustained the State\u2019s objections.\nIn rebuttal argument, a different prosecutor commented:\n\u201cMr. Owen: Your job is not to evaluate the pluses or minuses of mental health programs of our society; of whether or not we treat mental patients in a good or bad or indifferent manner. Your job is not to determine whether or not what happened to him will deter others, but let me just say this on that point; that there\u2019s one deterrent when you find, that guy, guilty of murder. The deterrent is that he will not get the opportunity to murder anybody else. That\u2019s the deterrent.\nMr. O\u2019Donnell: Object to that, and that\u2019s not the law.\nThe Court: Jury heard the evidence.\u201d (Emphasis in original.) (Lane, 725 F. Supp. at 940.)\nWhile this court found the above comments to be error, we nevertheless found a substantial basis for supporting the verdict and that it would not have been different had the comments not been made. Alerte, 120 Ill. App. 3d at 972, 458 N.E.2d at 1113.\nIn petitioning the Federal district court for habeas corpus relief on the ground that the prosecutor\u2019s comments denied him a fair trial, the district court, after reviewing the entire record, disagreed with this court\u2019s assertion that the erroneous comments did' not deny defendant a fair trial. In its analysis, the district court expressed its view that the comments were prejudicial and that the trial court failed to cure this prejudice by sustaining counsel\u2019s objection and instructing the jury to disregard the comments. Rather, the district court believed the trial court\u2019s comment, that the \u201c[j]ury heard the evidence,\u201d was ambiguous, and \u201c[pjunishment is left up to me,\u201d potentially confusing. The trial court\u2019s action of disallowing defense counsel a response to the comments similarly did nothing to minimize the prejudice. Lane, 725 F. Supp. at 943.\n\"The district court in its analysis also criticized this court for not giving adequate review of the entire record. It believed that evidence of Alerte\u2019s insanity was strong, as shown by the testimony that defendant had seen numerous psychiatrists and psychologists since the age of five, spent time in several mental institutions and received medication to control his violent behavior. Lane, 725 F. Supp. at 943.\nOn the one hand, Lane can be distinguished from the instant case. The trial court\u2019s treatment of the comments did not amount to an implicit approval of them. Similarly, unlike Lane, where the court did not sustain the defendant\u2019s objections or give any curative instructions, the trial court here did both. Also, unlike the defendant in Lane, defendant here did not have a history of psychiatric treatment, aggressive behavior and repeated institutionalization from the age of five. Finally, Lane did not have the testimony of John Bohr and the State\u2019s other lay witnesses, who all described defendant as \u201cnormal\u201d up until the morning of the murders.\nOn the other hand, Lane and this case share in common an egregious murder, a hotly disputed insanity defense, repeated prosecutorial comments designed to play on the jury\u2019s inherent fear that its verdict could set a dangerous man free, inadequate judicial response to the comments, a trial court\u2019s prohibition of fair response by defense counsel and the lack of any consequence instruction to cure the prejudice of the comments. On balance, we believe that Lane is more analogous to this case than not.\nThe specially concurring opinion in this case argues that a defendant suffers a lesser degree of prejudice when the State merely comments that a defendant may be released sometime after a NGRI verdict as opposed to being automatically released. The specially concurring opinion further takes issue with our absolute prohibition against NGRI consequence comments, both by the defense and the State, where witnesses like Bohr testify at trial.\nWe wish to make clear that the State\u2019s error in this case occurred because of how it used Bohr\u2019s testimony. Again, Bohr\u2019s testimony was only relevant to show defendant\u2019s sanity at the time of the murders. Instead, the State invited the jury to consider Bohr\u2019s testimony for the purpose of reflecting upon the consequences of its returning a NGRI verdict. This was error and, under the facts of the case, reversible error.\nWe wish to further make clear that there is no distinction between consequence comments which speak in terms of an automatic release, an immediate release in the near future, or one sometime down the road. All such comments have the same prejudicial effect in insanity cases, and all are not to be tolerated. This is especially so where individuals like Bohr testify. In the face of such testimony, a little consequence comment can go a long way.\nIn summary, we reverse and remand the case for a new trial. In light of this disposition, our remaining focus is on issues which may reappear on remand.\nIll\nOne issue which may so appear is whether, as a matter of course, the trial court must instruct the jury with defendant\u2019s \u201cconsequence\u201d instruction, which provided:\n\u201cIf you find the defendant not guilty by reason of insanity, he will be evaluated by the Department of Mental Health and Development Disabilities.\nA hearing will be held before this Court to determine whether he should be committed to the Department of Mental Health until this Court approves.\nIf the Court so orders, the defendant will not be released by the Department of Mental Health until this Court approves.\u201d\nInitially, we again reject defendant\u2019s argument that the \u201claw of the case\u201d doctrine required that this instruction be given by the trial court in the instant case. In Stack I, we did not hold that the circuit court erred when it failed to give a curative instruction which correctly set forth the consequences of a NGRI verdict. We only noted that such an instruction was not given. (Stack I, 128 Ill. App. 3d at 620, 470 N.E.2d at 1258.) Thus, Stack I did not dictate that the circuit court was required to give defendant\u2019s consequence instruction on remand.\nWe next reject defendant\u2019s argument that consequence instructions should be given as a matter of course in all insanity cases. Recently, in People v. Glenn (1992), 233 Ill. App. 3d 666, 599 N.E.2d 1220, we addressed this very issue and concluded that such instructions will not as a matter of course result in an insanity jury reaching a more true and correct verdict in all cases.\nTo support our conclusion, we noted that while our supreme court had yet to address the issue, we had addressed and rejected it in People v. Meeker (1980), 86 Ill. App. 3d 162, 407 N.E.2d 1058. The tendered instruction in Meeker provided:\n\u201cIf the defendant is found not guilty by reason of insanity, a hearing shall be held pursuant to Illinois statute to determine whether the defendant is in need of mental treatment.\u201d Meeker, 86 Ill. App. 3d at 169, 407 N.E.2d at 1065.\nIn Meeker, we rejected the argument that a consequence instruction is necessary to forestall an otherwise uninstructed jury from convicting merely to prevent an insanity defendant from returning to the streets. Rather, we found more persuasive the argument that such an instruction invited the jury to be influenced by the consequences of its verdict and to reach compromise verdicts. (Meeker, 86 Ill. App. 3d at 170, 407 N.E.2d at 1065.) We also noted that the then-in-effect Illinois statute dealing with post-verdict consequences in insanity cases (see Ill. Rev. Stat. 1979, ch. 38, par. 1005\u20142\u20144) \u201cpresented] a major obstacle to formulation of an instruction concerning consequences.\u201d Meeker, 86 Ill. App. 3d at 171, 407 N.E.2d at 1065.\nIn Glenn, we noted that no Illinois case had deviated from Meeker although other States had reached a contrary conclusion following our decision in Meeker. Nevertheless, we agreed with Meeker that the giving of a consequence instruction will not as a matter of course result in the jury reaching a more true and correct verdict.\nWe again adhere to this position. Adequate protections exist to assure that a jury focuses on the sanity determination and not the consequences of its verdict. First, trial courts are charged with control of the courtroom. It is their responsibility in the first instance to assure that the jury understands its role is to determine guilt, not punishment. Second, by promptly sustaining objections and instructing the jury to disregard improper comment, a jury\u2019s attention should remain properly focused. Finally, consequence instructions such as defendant\u2019s are not satisfactory. A jury\u2019s fear, already heightened by the nature of an insanity case, may not be alleviated by such instructions and may even be more focused after the giving of the instruction. Indeed, defendant\u2019s instruction tells the jury that defendant may still be released upon court approval. Thus, the instruction could prompt the same reaction it seeks to avoid. For these reasons, we believe that consequence instructions, as such, have no place in insanity cases.\nFinally, we reject defendant\u2019s argument that People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146, cert. denied (1988), 488 U.S. 910, 102 L. Ed. 2d 252, 109 S. Ct. 264, has so weakened Meeker\u2019s rationale that consequence instructions be given as a matter of course. In Gacho, the court held that a capital sentencing jury in a multiple murder case must be instructed that if it finds sufficient mitigating factors to preclude the imposition of death, the defendant will be sentenced to natural life without the possibility of parole, and can only be freed by executive clemency. Gacho, 122 Ill. 2d at 262, 522 N.E.2d at 1166.\nWe again rely on our analysis in Glenn wherein we addressed and rejected this very same argument. There, we distinguished Gacho on the ground that jurors impanelled to pass on the death sentence are concerned with sentencing while insanity jurors are impanelled to decide guilt or innocence. While the decision in Gacho was prompted by juror misconception in death penalty cases, and while misconceptions similarly exist in insanity cases, the purpose of the respective juries required that Gacho be found inapplicable to the insanity setting. Glenn, 233 Ill. App. 3d at 681-82, 599 N.E.2d at 1230.\nIn summary, we reject defendant\u2019s argument that the law of the case required that a consequence instruction be given in the instant case and that, on remand, such an instruction should be given as a matter of course. On retrial, the trial court is to do whatever is necessary and proper to assure that neither party comments on the consequences of an NGRI verdict. If Bohr again testifies, this will be difficult. To this end, we reiterate that Bohr\u2019s testimony is relevant only as it pertains to defendant\u2019s mental state at the time of the crime. The court should assure that the parties\u2019 comments are curtailed accordingly and, perhaps, provide a limiting instruction to this effect. We independently urge the State to adopt a trial strategy which will not risk yet another trial.\nIV\nWe briefly address other prosecutorial comments to assure that they will not be repeated on remand.\nDefendant contends that he was denied a fair trial when the prosecutor assumed a highly prejudicial fact not in evidence during the cross-examination of defendant\u2019s expert and then later repeated the matter in closing argument. During cross-examination of Dr. Garvin, the prosecutor asked Dr. Garvin: \u201cOf course, [Richard] didn\u2019t tell you that in July of 1979 he was arrested in a bar and he began punching patrons in the bar and he threatened to kill anyone who signed [a complaint].\u201d Defendant\u2019s objection to this question was sustained. Later, during the prosecutor\u2019s rebuttal argument, the prosecutor stated: \u201c1979. When he beat somebody up in a bar and then threatened to kill them if they signed a [complaint].\u201d Defendant\u2019s objection to this comment was sustained.\nWe agree that the question and subsequent comment in closing argument were error. Error occurs when the State, on cross-examination, asks a defense witness questions, presuming facts not in evidence, as a precursor to impeachment of that witness, in the absence of rebuttal evidence to substantiate the inquiry. (People v. Braggs (1988), 184 Ill. App. 3d 756, 760, 540 N.E.2d 767, 769; People v. Rivera (1986), 145 Ill. App. 3d 609, 619, 495 N.E.2d 1088, 1095.) The danger inherent in such questioning is that the jury will ignore any denial, presume the accuracy of the questions\u2019 insinuation or innuendo, and substitute that presumption for proof. Braggs, 184 Ill. App. 3d at 760, 540 N.E.2d at 769; Rivera, 145 Ill. App. 3d at 619, 495 N.E.2d at 1095.\nHere, the State failed to prove in rebuttal that defendant \u201cbeat somebody up in a bar [in 1979] and then threatened to kill them if they signed a complaint.\u201d While the State introduced some testimony regarding a 1979 incident involving defendant becoming abusive in a bar, the State never established that defendant \u201cbeat\u201d another person, threatened to kill anyone or was arrested.\nThe State similarly erred when defendant\u2019s expert, Dr. Stipes, was asked during cross-examination if defendant had a breakthrough and began to feel emotion about the murders after receiving his wife\u2019s death benefit check from her work which he, according to the State, used to purchase clothes for himself. Defendant\u2019s objection was sustained, but no curative instruction was given.\nThe question posed by the State was obviously improper. No evidence exists to show that defendant profited from his wife\u2019s death. With this question, the State again attempted to prove its case through innuendo. This is not proper. See People v. Littlejohn (1986), 144 Ill. App. 3d 813, 494 N.E.2d 677 (reversing conviction in part for State\u2019s insinuation that insanity defendant gave psychiatric seminars).\nWe agree with defendant that other prosecutorial misconduct occurred during trial. We list them as a warning to the State that they not be repeated again: (1) the prosecution\u2019s interjection of his personal opinion regarding the contents of experts\u2019 records and files: \u201cI've looked at those records and files, and I can\u2019t find much [good in defendant] either\u201d; (2) the prosecution referring to the Psychiatric Institute, which is a branch of the circuit court of Cook County, as the \u201carmpit\u201d of the courts; (3) the prosecutor asking defendant\u2019s expert on cross-examination whether temporary insanity existed in Illinois; and (4) the State repeatedly emphasizing to the jury that defendant killed his wife on Mother\u2019s Day.\nNone of the above comments were proper. First, a prosecutor\u2019s personal beliefs have no bearing on a criminal trial. (E.g., People v. Scott (1990), 194 Ill. App. 3d 634, 645, 551 N.E.2d 288, 295.) Second, calling a branch of this State\u2019s courts an \u201carmpit\u201d does not deserve comment. Third, the subject of temporary insanity is not relevant in Illinois. (People v. Littlejohn (1986), 144 Ill. App. 3d 813, 494 N.E.2d 477; People v. Eckhardt (1984), 124 Ill. App. 3d 1041, 465 N.E.2d 107.) Finally, comments which are designed solely to arouse the passions and sympathy of the jury are improper. (Littlejohn, 144 Ill. App. 3d 813, 494 N.E.2d 477.) On remand, we strongly urge the State to refrain from the course of conduct it took during this trial.\nV\nWe next address whether the circuit court erred by giving the jury, over defense objection, the \u201csociopath\u201d instruction. The instruction at issue is the second paragraph of the insanity instruction, which provides:\n\u201c[Abnormality manifested only by repeated criminal, or otherwise anti-social conduct, is not mental disease or mental defect.]\u201d (Illinois Pattern Jury Instructions, Criminal, No. 24\u2014 25.01 (2d ed. 1981) (hereinafter IPI Criminal 2d).)\nThe committee note to this instruction states that the second paragraph is to be given only when the evidence shows \u201crepeated criminal or other anti-social conduct.\u201d (IPI Criminal 2d No. 24\u201425.01, Committee Note, at 549.) It has been held to be error to give this instruction when not supported by the evidence. People v. Fierer (1988), 124 Ill. 2d 176. 529 N.E.2d 972.\nThe State goes to great length to paint defendant as a sociopath. To this end, the State lists every possible bad act defendant ever committed during his adult life. These incidents include drug use, heavy social drinking, husband-wife arguments and barroom fighting. While these incidents may be indicative of a sociopathic personality, the incidents are of insufficient number to justify the giving of a \u201csociopath\u201d instruction. On remand, assuming the same general evidence of defendant\u2019s background, the instruction should not be given. Fierer, 124 Ill. 2d 176, 529 N.E.2d 972.\nOur holding on this issue obviates the need to address whether the prosecutor erred when he told the jury during initial closing argument that \u201canti-social conduct *** [i]s not evidence of mental disease.\u201d Such comments on remand are not to recur unless the evidence supports the giving of the instruction.\nVI\nWe next address whether the court erred when, according to defendant, the court precluded defendant\u2019s lay witnesses from stating their opinions as to defendant\u2019s sanity or mental condition. During the direct examination of defense witness John Principato, defendant asked the witness to give his opinion based on his observation of defendant whether \u201csomething was happening to his mental health.\u201d The court sustained the State\u2019s objection. During the direct examination of defense witness Father Lutz, counsel asked a series of questions which attempted to elicit the witness\u2019 opinion on whether defendant\u2019s conduct seemed normal. Again, the court sustained the State\u2019s objections to these questions. Later, the court explained its ruling by stating that the questions were asked in objectionable form.\nWe review this issue only to assure that the court on remand does not unnecessarily restrict defendant\u2019s lay testimony. While the court\u2019s comments indicate that the State's objections were sustained because of the improper form of the question, the court\u2019s comments leave some doubt as to whether the court understands Illinois law regarding lay testimony.\nIn Illinois, \u201ca lay witness may give his opinion regarding the mental condition of an individual based on personally observed facts, which must be stated in detail.\u201d (People v. Wright (1985), 111 Ill. 2d 128, 148-49, 490 N.E.2d 640, 647, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 179, 107 S. Ct. 1327; People v. Chatman (1986), 145 Ill. App. 3d 648, 659, 495 N.E.2d 1067, 1074; M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7704.3 (5th ed. 1990).) Here, the court\u2019s comments may be read as indicating that lay testimony on a defendant\u2019s \u201cmental condition\u201d is improper. This is an erroneous view of the law.\nBy our discussion of this issue, we do not intend to limit the court\u2019s discretion in determining whether proper foundation has been established. We have only addressed the issue on the chance that the court entertained an incorrect view of the law.\nVII\nWe next address whether the circuit court erred in limiting defendant\u2019s cross-examination of John Bohr. Bohr testified that in August 1986, he wrote a letter to Cook County State\u2019s Attorney Richard M. Daley relating what defendant had told him. At that time, certain members of Bohr\u2019s family had filed aggravated battery charges in another county against Bohr.\nDuring Bohr\u2019s cross-examination, and in an attempt to show that in fact a deal with the prosecution had been struck, defendant sought to use statements contained in a police report to show the jury that the beatings the victims took were severe and, consequently, Bohr\u2019s motive to curry the prosecution\u2019s favor was great. The court sustained the State\u2019s objection that the statements were hearsay and could not be used.\nOn further cross-examination, counsel elicited that after Bohr wrote the letter, the aggravated battery charge, which potentially carried a penalty of years in prison, was reduced to simple misdemeanor battery. Bohr pleaded guilty to this charge and ultimately spent little time in prison because of credit received for time served.\nOn redirect examination, Bohr testified that he never had any charges pending against him in Cook County, that he never mentioned in the letter to Daley that he had charges pending against him, and that he received nothing in exchange for his testimony. Bohr further testified that the charges were reduced because Bohr\u2019s family did not want to prosecute.\nDefendant later in surrebuttal attempted to call Bohr\u2019s sister, Lisa Oberman, who would testify, according to defense counsel\u2019s offer of proof, that she did not agree to drop the charges against Bohr and was never contacted by the prosecution. The court ruled that defendant should bring Oberman to court to make an offer of proof and, after hearing her testimony, the court would make its ruling. Oberman was never brought to court.\nWe find that the circuit court made no error in limiting Bohr\u2019s cross-examination. The court properly prevented defense counsel from using unsupported, unproven allegations within a police report to establish the specifics of the aggravated battery charge. Not only were the allegations hearsay (see People v. Watkins (1981), 98 Ill. App. 3d 889, 900, 424 N.E.2d 701, 709), they were also the written statements of a third person being used for impeachment purposes. This is not proper impeachment. People v. Lucas (1989), 132 Ill. 2d 399, 548 N.E.2d 1003.\nAs for defendant\u2019s allegation of error that Lisa Oberman was denied the opportunity to testify, this simply is not true. A review of the record shows that the court wanted to first hear Oberman\u2019s testimony before allowing her to testify in court. Defendant never produced Oberman. Thus, contrary to defendant\u2019s assertion, the court did not prevent Oberman from testifying.\nVIII\nWe next address whether the circuit court erred when it allowed testimony regarding defendant\u2019s receipt of his Miranda warnings and defendant\u2019s subsequent responses. Before trial, defendant moved in limine to exclude evidence of defendant\u2019s post-arrest silence after he received his Miranda warnings. During argument on the motion, all parties acknowledged the opinions in Stack I and II regarding this issue, and all agreed that evidence of defendant\u2019s post-arrest silence was improper. The court ultimately ruled that evidence could be received which showed that defendant received his Miranda rights and acknowledged understanding them.\nDuring the prosecution\u2019s case in chief, Officer Scott testified that upon arriving at the murder scene, defendant was given his Miranda warnings and indicated that he understood each of them. Later, in the State\u2019s rebuttal case, Officer Foley testified that defendant was given his Miranda rights and indicated he understood them.\nDuring closing argument, the State referred the jury back to the scene of the crime at the point in time when Officers Scott and Foley arrived. The prosecutor stated without any defense objection: \u201cWhy didn\u2019t he hear God when Scott and Foley put the gun on him and said, go to the door. Why didn\u2019t he hear a demon all of a sudden and jump through the window?\u201d Later, and again without objection, the prosecutor stated:\n\u201cHe gave him his rights, and he understood his rights. One of them is so important, it shows you the kind of mind that this guy has, that he had that day. Anything you say can and will be used against you in a court of law, Mr. Stack, and translating into a mind of a person who does that, is anything I say can and will be used for me in court, and so he tells Foley, yeah I killed them.\u201d\nWe address the issue of whether the State can use a defendant\u2019s acknowledged understanding of his Miranda rights as affirmative proof of his sanity. In Stack I and II, the courts held that it was improper for the State to use evidence which showed that defendant invoked Miranda\u2019s guarantee of silence as affirmative proof of his sanity. 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. (Stack, 112 Ill. 2d at 306-07, 493 N.E.2d at 1257; Stack, 128 Ill. App. 3d at 617-18, 470 N.E.2d at 341; see also Wainwright v. Greenfield (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634.) We believe the implied promise rationale, which underlies the decisions in Stack I, Stack II, and Wainwright, covers the situation at bar.\nThe State should not be allowed to ask whether a defendant understands his Miranda rights, rights the State is required to give, and then use his acknowledgement of those rights as evidence of sanity. As stated by the court in Stack II, the State may not \u201cexploit the recital of Miranda warnings to sing the Siren\u2019s song and lure a defendant into creating evidence against himself.\u201d (Stack, 112 Ill. 2d at 307, 943 N.E.2d at 341.) This rationale is equally applicable to the acknowledgement of Miranda rights.\nIn light of the disposition of this issue, we do not address the propriety of the prosecutor\u2019s closing comment. On remand, as evidence pertaining to defendant understanding his Miranda warnings is inadmissible, the comments should not be repeated.\nIX\nDefendant has raised other issues on appeal which we do not address. We find each of these contentions to be without merit.\nX\nIn conclusion, this case is remanded for a new trial. Defendant\u2019s second trial was less than fair. While defendant is not entitled to a perfect trial, he is entitled to one fair trial. Two trials, each less than fair, do not amount to the one fair trial to which he is constitutionally entitled.\nWe recognize that our opinion requires the victim\u2019s family to endure yet another trial. Fault rests with the State, not this court. We urge again that the State take precautions to assure that defendant receives a fair trial.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is reversed and remanded.\nReversed and remanded.\nO\u2019CONNOR, J., concurs.", "type": "majority", "author": "JUSTICE BUCKLEY" }, { "text": "JUSTICE CAMPBELL,\nspecially concurring:\nAlthough 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\u2019s decision. However, I respectfully disagree with the majority opinion\u2019s rationale.\nI\nThe 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 \u201cautomatically released\u201d 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\u2019s 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\u2019s argument on this point was therefore less prejudicial than that in Fox.\nI 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\u2019s 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 \u201cpossible consequences\u201d 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).\nII\nAfter reversing and remanding the case due to the State\u2019s arguments regarding defendant\u2019s \u201cplan,\u201d the majority addresses at length a number of issues that may arise on retrial. I disagree with the majority opinion\u2019s disposition of some of these issues.\nFor example, the majority opinion concludes that the trial court erred in tendering the \u201csociopath\u201d instruction (Illinois Pattern Jury Instructions, Criminal, No. 24\u201425.01 (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 \u201crepeated\u201d 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\u2019s prior bad acts. I am not convinced that this court must venture at this time into the area of determining how \u201crepeated\u201d 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.\nIII\nThe majority concludes that the State should not be permitted to use defendant\u2019s 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.\nThe 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:\n\u201cThe 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.\u201d (244 Ill. App. 3d at 185.)\nThe majority opinion concludes that the \u201cimplied promise\u201d 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\u2019s sanity. I therefore conclude that the aforementioned \u201cimplied promise\u201d of Miranda is not at issue.\nIndeed, Miranda requires that\n\u201c[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.\u201d (Miranda v. Arizona (1966), 384 U.S. 436, 469, 16 L. Ed. 2d 694, 720-21, 86 S. Ct. 1602, 1625.)\nThat defendant\u2019s statements may be held against him in court could be said to be one of the \u201cexpress promises\u201d 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.\nNevertheless, I agree that the acknowledgement here could not be used to prove defendant\u2019s 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\u2019d on other grounds (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634.) The same is true of a defendant\u2019s 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:\n\u201c[T]he evidence was probative only of petitioner\u2019s 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\u2019s sanity.\u201d (Greenfield, 741 F.2d at 334.)\nThe appellate decision in Greenfield is not the only decision recognizing this phenomenon:\n\u201cA manic depressive has manic phases; a paranoid schizophrenic need not, and need not be the less dangerous for not having them.\u201d (Thomas v. Indiana (7th Cir. 1990), 910 F.2d 1413,1414.)\nThe 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\u2019s acknowledgment of Miranda warnings is inconsistent with defendant\u2019s insanity defense. Despite this apparent lack of evidence, and contrary to the State\u2019s position on appeal, the State used the acknowledgment to argue that defendant was sane at the time of the killings. The argument was improper.\nWhether 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\u2019s 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\u2019d (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\u2019s closing arguments cumulatively rise to the level of plain error requiring reversal.\nIV\nThe 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\u2019s right to a fair trial. This court also unanimously agrees that it is regrettable that the victim\u2019s family will be forced to endure a third trial. The People of the State of Illinois, including the victim\u2019s 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.", "type": "concurrence", "author": "JUSTICE CAMPBELL," } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney of Chicago (Renee Goldfarb, Carol L. Gaines, Janet C. Mahoney, and Michele I. Lavin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD STACK, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201487\u20142212\nOpinion filed March 15, 1993.\nCAMPBELL, J., specially concurring.\nRandolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney of Chicago (Renee Goldfarb, Carol L. Gaines, Janet C. Mahoney, and Michele I. Lavin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0166-01", "first_page_order": 186, "last_page_order": 209 }