APPEAL from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Winnebago
County; the Hon. FRED J. KULLBERG, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
This case requires a determination of: the propriety of the trial court's refusal to give instructions based upon the defense of a dwelling and to permit the defendant, who asserted the defense of self-defense, to testify as to his state of mind; the sufficiency of the evidence to convict the defendant of the offense of murder beyond all reasonable doubt; and whether the defendant was denied a fair trial by reason of improper final argument by the State.
A jury in the circuit court of Winnebago County found the defendant guilty of the murder of LaVerne Giley. Judgment was entered on the verdict, and he was sentenced to the penitentiary for a period of 14 to 20 years.
The defendant's principal employment was in the maintenance, repair and installation of instruments for industrial testing of electronic equipment, but he was also a part-time dance instructor at the Arthur Murray Dance Studio. He went to work there about 1:00 or 2:00 P.M. In the latter part of May, 1969, he met Brenda Giley, also a dance instructor at the studio. She and her husband, LaVerne, were having marital difficulties.
Brenda and LaVerne were married in August of 1965, and one daughter, Malocca, was born of their marriage. Brenda filed suit for divorce in April of 1966. She did not proceed with that action, but she and LaVerne were intermittently separated on many occasions. In June of 1969, she again filed complaint for divorce on the ground of cruelty, which set forth instances of physical cruelty on the part of LaVerne toward her.
The defendant first met LaVerne Giley one evening in May of 1969, when Giley came to the dance studio and Brenda ran from him and asked others not to let her husband get to her or hit her. LaVerne waited for her in the parking lot and would not leave, even when police were summoned. On this occasion, Brenda went away with another lady dance instructor, and did not go to her own apartment.
On June 13, 1969, upon leaving the dance studio, the defendant drove Brenda to her car. LaVerne drove up behind them and would not leave. The defendant then started to drive Brenda to her mother's house. LaVerne followed in his car, attempted to force the defendant's car off the road and yelled that the defendant had better stop before he (LaVerne) killed them all. The defendant stopped in the emergency parking lot of a hospital where it would be light and where people would be present. LaVerne opened the car door, tried to pull Brenda from the car and hit her. The defendant exhibited a gun and LaVerne backed off. The defendant and Brenda then reported the incident to the police. Brenda thereafter kept the gun in her apartment for protection.
On June 15, when the defendant was driving Brenda to her mother's house, he noticed LaVerne nearby in his car. They drove by, and he followed them, and tried to force them off the road. At a red light, LaVerne pulled up, ran in front of the defendant's car and pulled the wire from the distributor, causing the car to stop. He insisted that Brenda go with him. She agreed, if she could drive. She started to drive, and LaVerne started hitting her and swearing at her.
On June 17, LaVerne again attacked Brenda. She called the defendant and told him what was happening. He told her to call the police. LaVerne grabbed the phone and started swearing at the defendant. LaVerne then followed Brenda to her mother's house. Brenda again called the defendant and LaVerne grabbed the phone and threatened to kill him. A similar incident occurred the following day.
On another occasion when the defendant was leaving the dance studio, LaVerne appeared and started questioning the defendant. Brenda was not present. LaVerne became angry and rushed at the defendant, who closed and locked a door to protect himself. At another time, when the defendant and Brenda were leaving work, LaVerne followed them. When they stopped in traffic, LaVerne got out of his car, ran to the defendant's car, and struck the defendant in the face. The defendant was able to pull away and drove to the police station.
On June 16, an injunction was issued in the pending divorce proceeding enjoining LaVerne from striking or harming Brenda. At the time of the hearing, LaVerne wanted to know where Brenda was living, but neither Brenda nor her attorney would tell him because of fear for her safety. Brenda tried to conceal knowledge of the location of her apartment from him. On July 11, LaVerne had the right of visitation with their small daughter, Malocca. He made Brenda bring her to a pool hall, and she was to pick her up the following day. LaVerne did not keep his commitment relative to returning Malocca to Brenda and when she finally got the child on the following day, she and LaVerne had an argument. He indicated that he knew where she lived.
Brenda had asked the defendant to be at her apartment on that day. She told the defendant of her fight with LaVerne. Brenda, Malocca and the defendant had dinner and then watched television. LaVerne knocked at the door, asked for the keys to a car and other articles, and also wanted in. Brenda opened the door slightly, but left the safety chain lock on. LaVerne insisted that he be admitted. Brenda threatened to call the police and her lawyer, but there was no phone in her apartment.
LaVerne kept asking if the defendant was there, and became angrier and angrier. In answer to LaVerne's questions, Malocca indicated to him that the defendant was there. LaVerne then cursed the defendant and angrily threatened harm to him; he got his arm through the door opening and Brenda hit it with an umbrella. The defendant then went to the kitchen cabinet and got the gun he had given to Brenda. LaVerne pushed on the door with sufficient force to break the safety chain lock and rushed into the apartment. At this point he was shouting, "I'll kill him."
The defendant retreated with the gun pointed at LaVerne and told him to get out or he would be in real trouble, but LaVerne kept on advancing and tried to kick the defendant. He hit the defendant in the face and came at him with arms raised as though he was going to choke or hit him. It was then that the defendant shot LaVerne three times. ...