APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE MODIFIED OPINION OF THE COURT ON DENIAL OF PETITION FOR REHEARING:
Defendant was indicted for the murder of his wife, Joyce Towers. After a bench trial, he was found guilty of voluntary manslaughter (Ill. Rev. Stat. 1969, ch. 38, par. 9-2(a) (1)) *fn1 and was sentenced to three to 12 years.
Defendant contends: (1) that the State failed to prove him guilty of voluntary manslaughter beyond a reasonable doubt in that it was not proven that he was acting under a sudden and intense passion resulting from serious provocation; and that the evidence was insufficient to prove that death occurred as the result of criminal conduct on his part; and (2) that he was denied due process of law because of ineffective assistance of counsel.
At trial Officer Henry W. Boucher testified as a witness for the State that on Saturday, June 13, 1970, at about 9:30 A.M., he went to defendant's apartment in response to a domestic disturbance radio call. Defendant answered the door, told him everything was all right now, and that he and his wife had made up. Defendant told him there had been an argument. After asking to see defendant's wife, the defendant opened the bathroom door so that he saw a woman in the bathtub. He could see her head, shoulders and part of her breast. There was nothing unusual about these parts of her body. The woman said she was Mrs. Towers. Upon inquiry as to how she was, the woman replied groggily that she was fine. At no time did she ask him to remain or to arrest the defendant. He then left the apartment.
Maurice Koen, a long-time acquaintance of the defendant, testified as a witness for the State: He saw defendant on a Saturday in June, although he could not remember the exact date. Defendant told him that a dope peddler had approached him about doing away with a body, and defendant asked him whether he wanted to make some money. Two or three days later, on Monday or Tuesday, he received a phone call from defendant. Defendant wanted to borrow his car so that he could leave town. Defendant told him during this conversation that he had "offed" a guy. The expression was common in the neighborhood. During cross-examination Koen testified that he thought defendant meant that he got the better of a deal over someone, although the term also meant killing someone.
The caretaker of defendant's apartment building testified as a witness for the State: He saw defendant on Saturday morning, June 13, as he was sweeping the steps. He again saw defendant on June 15, at about 12:00 or 1:00 in the afternoon. At this time defendant was going toward the apartment building and defendant mentioned to him that he was going upstairs to see if his dog was at home. About ten minutes later defendant left the building. He did not see which apartment the defendant entered.
Mrs. Billie Gibson, the deceased's sister, testified as a witness for the State that on June 15, 1970, around 9:00 or 9:30 P.M., she tried to see the decedent, but no one answered the door to the apartment. She then called the police who gained entrance into the apartment. Officer Young, the policeman who met Mrs. Gibson at the apartment, testified as a witness for the State that when he arrived at the apartment, he heard either the radio or television playing, but there was no response from inside. He gained entrance through an unlocked window and then unlocked the front door for Mrs. Gibson. Upon entering the kitchen, he saw that the refrigerator was tied with an electrical cord. When he untied the cord and opened the refrigerator, he found the deceased, wrapped in a blanket, inside.
The pathologist, Dr. Kearns, testified that he examined the deceased on June 16, 1970. His examination indicated that she had been dead for several days. The cause of death was a hemorrhage over the skull that resulted from external violence to the head. It was later stipulated between counsel for defendant and the State that Dr. Kearns found that the deceased had marks and bruises over her head and neck area indicating that there was extreme violence administered to the head and neck area.
On January 31, 1971, defendant was arrested in California.
Defendant testified in his own behalf: On Saturday, June 13, 1970, at about 9:00 or 9:30 A.M., he and his wife had been arguing over an address that she had left lying around. He admitted that there was a fight between him and his wife. He never struck his wife; it was merely a pulling scrape over the telephone number. When his wife tore it and snatched it, she fell backwards and bumped her head on a chest of drawers, and that is when the fight ended. This all occurred before the police came. There was no fight after the police left. He then took their baby and went to the grocery store. Upon his return home, his wife was in the bathtub. About 15 or 20 minutes later he went to check on his wife. He had spoken to her once or twice during this interim period, but there had been no reply. When he went into the bathroom, she was just sitting there as if asleep, lying on her side. He tried to awaken her and, seeing something wrong, tried to revive her. When these attempts failed, he panicked. He never had any intention of attacking his wife.
On cross-examination defendant admitted speaking with Koen, asking to borrow his car, telling him a dope peddler wanted him to get rid of a body and telling Koen that he had "offed" somebody. Defendant maintained that when he said "offed" someone, he was referring to a deal he made. He never called a doctor for his wife and left her in the bathtub for a couple of days. He eventually hid her body in the refrigerator. There was no blood in the bathtub nor on a bed upon which he had placed his wife's body, nor in the refrigerator. His wife was never unconscious but did complain of dizziness. Some of this testimony was impeached when police officer Huffman was called as a witness for the State in rebuttal: He was in the apartment on June 15 and identified photographs introduced into evidence showing blood on the blanket covering the deceased and in the refrigerator.
During closing argument defendant's counsel admitted that the "* * * evidence establishes that the dispute elevated itself into a fight an altercation, I think as a result of it the deceased met her death." Counsel went on to argue:
"* * * It is not an easy thing for a man to have to live with the fact that he is either directly or indirectly responsible for the demise of his own flesh and blood. It is not an easy thing.
I suggest to Your Honor that this was an emotional incident, not one with intent or malice or forethought that went beyond that point where certainly the deceased anticipated that it would go and no doubt beyond ...