APPEAL from the Circuit Court of Du Page County; the Hon. L.L.
RECHENMACHER, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant, Robert G. Merkel, was found guilty by a jury of the murder of his wife and sentenced to the penitentiary for 30-90 years. In this appeal the defendant contends the following:
(1) that he was not proven guilty beyond a reasonable doubt of the offense of murder,
(2) that the court erred in refusing to instruct the jury that they should not find the defendant guilty of murder unless the facts exclude every reasonable theory of innocence,
(3) that the court erred in not suppressing a statement made by him at the hospital,
(4) that the prosecutor's closing arguments were so prejudicial as to deprive him of a fair trial and,
(5) that the sentence imposed upon him was excessive.
The defendant and his wife, Jesse Merkel, were separated and divorce proceedings were to be heard on November 14, 1972. Jesse Merkel and her three children were residing with her sister in Elmhurst. On the morning of November 13 the decedent left her sister's residence with the three children to drive them to school. She stopped at her home around 9 in the morning, parked her car in the driveway and entered the premises. A scream was heard and the defendant was seen running from the back door. The three children and a neighbor attempted to get into the residence but were unsuccessful. The police were called and they broke the basement door down and entered the premises together with a Mrs. Stevens, the neighbor, and Mrs. Koprowski, decedent's sister. The body of Jesse Merkel was found in the hallway. There was a pool of blood in the kitchen and blood extended from that point to where the body was found in the hallway. A pair of eyeglasses were recovered in the pool of blood in the kitchen. These were subsequently identified as the defendant's eyeglasses. The decedent had been shot in the head and died within 48 hours without regaining consciousness.
The attorney for the defendant contacted the Elmhurst Police Department shortly thereafter and advised the police that the defendant was being taken to the Forest Hospital in Des Plaines. Police officers went to the hospital where they met the defendant in the parking lot. Sgt. Holder asked the defendant if he knew why they were there and the defendant answered, "Yes." He was asked if he had a weapon on his person and he replied, "No." Sgt. Holder then read to the defendant his Miranda warnings in the hospital. The defendant replied that he understood the warnings. The defendant was asked where the gun was and he replied that he had thrown it away as he was driving towards Chicago. At this point the defendant terminated questioning until his attorney was present. At the trial the defendant did not testify.
We consider first the contention of the defendant that the State failed to establish his guilt beyond a reasonable doubt. At the outset it is to be noted that Peter Bianco, the attorney for the defendant, on the day of the shooting, called the Elmhurst Police Department, talked to officer Thomas Hanlan and the attorney inquired about Mrs. Merkel's condition and volunteered the information that the defendant was on his way to the Forest Hospital. The attorney further stated that the police would not have any trouble in apprehending the defendant as he seemed docile. Officer Hanlan had not mentioned that the police were looking for Mr. Merkel when attorney Bianco called the police department. Christine, one of the three children of the decedent and the defendant, was in the car at the time of the shooting and heard her mother scream. She then saw the defendant running from the back door of their residence. Two other witnesses saw the defendant running from the Merkel residence. Likewise, the glasses of the defendant were found in or next to the pool of blood in the kitchen from which point the body apparently had been dragged into the hallway.
In addition to the above, a party stating that he was the defendant called his place of employment and stated that he would not be in to work on the day in question. Likewise, further testimony adduced at the trial indicated that the defendant had inquired about the obtaining of a gun from a fellow worker about a month before the murder. On the day in question the motor vehicle of the defendant was not parked at the residence of the parties, apparently having been parked away from or to the rear of the premises. The estrangement of the parties and the fact that a hearing was set on the divorce proceedings for the day after the killing was presented to the jury.
The defendant contends that there was a reasonable hypothesis arising from the evidence which was consistent with the defendant's innocence and which would leave a reasonable doubt as to his guilt. In support of this contention he theorizes that the decedent could have brought the gun to the premises; that another possibility would be a third person being present; that in view of their marital problems the death might have been accidental resulting from a scuffle and that the defendant fled in fear. The supreme court in People v. Russell (1959), 17 Ill.2d 328, 331, 161 N.E.2d 309, 311, stated that it was possible, of course, to conjure up hypotheses which might be inconsistent with the defendant's guilt. The court went on to state:
"But the requirement that the defendant's guilt be proved beyond a reasonable doubt does not mean that the jury must disregard the inferences that flow normally from the evidence before it. Here all of the inferences from the evidence pointed toward the defendant's guilt. The jury was not required to search out a series of potential ...