APPEAL from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Defendant was found guilty of the murder of his wife in a jury trial and on March 24, 1966, was sentenced to serve 60-75 years in the Illinois penitentiary.
Defendant's notice of appeal from this order was not filed until over 1 1/2 years later, on November 11, 1967. For this reason, his appeal was dismissed. Thereafter on April 2, 1970, defendant filed a post-conviction petition which was dismissed because the same issues were once again before this court as a result of defendant's motion to reinstate his direct appeal.
Defendant's petition before the Illinois Supreme Court for leave to appeal from the dismissal of his post-conviction petition was denied. He then instituted that appeal before this court. On July 11, 1972, we finally allowed defendant's motion to reinstate his direct appeal and consolidated it with his appeal from the dismissal of his post-conviction petition because of the similarity of issues in each appeal. All of the issues presented in defendant's appeals will now be considered.
Defendant has presented seven issues for our determination in his attempt to persuade us to reverse his conviction: First, whether defendant's written inculpatory statement was the product of violations of the principles announced in Escobedo v. Illinois (1964), 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758; and accordingly, if the Escobedo principles were followed, was the statement given by defendant voluntary; second, whether the trial judge's examination of defendant's expert psychiatric witness and his rulings with respect to the appropriate tests for the defense of insanity precluded defendant from presenting his defense of insanity; third, whether the State proved defendant's sanity at the time of the murder beyond a reasonable doubt; fourth, whether the alleged prejudicial inflamatory nature of certain photographs introduced into evidence outweighed their probative value; fifth, whether certain closing remarks of the prosecution were improper or prejudicial; sixth, whether it was incumbent upon the trial judge to instruct the jury as to the definition and elements of the offense of murder on his own motion. Finally, whether the instructions which were given to the jury were proper.
There is no dispute as to the basic facts which precipitated defendant's indictment for murder. Defendant and his wife had been having marital problems; a divorce proceeding between them was pending in the spring of 1965. Having consumed a substantial amount of alcohol throughout the day and evening of May 26, 1965, the defendant became determined to find his wife, Karen, to attempt a reconciliation. When he located her, at approximately 10 P.M. in a rural section of Belvidere, Illinois, she was accompanied by her friend, Vicky Carlson.
While Karen Lane and Vicky Carlson were stopped at a stop sign, defendant approached their vehicle and asked his wife if he could talk to her. She agreed to talk to defendant and he then entered the rear seat of the car which Karen was driving. Karen then drove down a Belvidere rural road. Upon being told by his wife that she was no longer interested in saving their marriage and that she had "found someone else," defendant begin beating her in the head. Consequently the car swerved off the road and hit a utility pole. Vicky Carlson was knocked unconscious; and defendant knocked his wife unconscious with either his fist or a whiskey bottle.
Defendant then walked or ran approximately 1 mile back to his automobile and secured a half-gallon can of gasoline and returned to the car wherein the two young women still lay unconscious. After soaking the car with gasoline, defendant ignited it with a match. As a result, the bodies of the two women were burned beyond recognition.
Thereafter, defendant returned to his car and drove home to Rockford where he resided with his sister. He told his sister what he had done and then directed her to burn his clothing, which she did. The next morning Rockford police officers Prentice and Carr arrested defendant and brought him to the Rockford police station at approximately 9:30 A.M. Upon completion of routine custodial procedure, defendant was interrogated between approximately 12:30 and 1:55 P.M., at which time he signed a written confession relating the facts just mentioned. Defendant was tried and convicted for the murder of his wife only.
Defendant now contends, as he did in his pretrial motion, that the admission into evidence of his written inculpatory statement deprived him of his constitutional rights to counsel. Defendant relies upon Escobedo v. Illinois (1964), 378 U.S. 478, 12 L.E.2d 977, 84 S.Ct. 1758, in support of this ground for reversing his conviction. Apart from Escobedo, defendant further argues that his confession was involuntarily rendered and that its admission into evidence deprived him of due process of law.
• 1 Since defendant's trial occurred in January, 1966, the constitutional principles announced in Escobedo, as interpreted by our Supreme Court in People v. Hartgraves (1964), 31 Ill.2d 375, 202 N.E.2d 33, are dispositive of this issue. In Hartgraves, our supreme court interpreted Escobedo as holding that if a defendant is not advised of his constitutional right to remain silent, and requests and is denied the assistance of counsel, his subsequent admission is inadmissible as evidence against him. See also People v. Heise (1966), 35 Ill.2d 214, 220 N.E.2d 438; People v. Mallett (1970), 45 Ill.2d 388, 259 N.E.2d 241.
At the hearing on defendant's motion to suppress his confession, all of the law officers who were with him from the time of his arrest until he signed the statement testified that defendant never requested to consult with an attorney. Rather, these witnesses consistently stated that upon being advised of his right to consult with an attorney, defendant replied that an attorney would be of no use to him. Furthermore, although the record is unclear as to whether defendant was advised of his right to remain silent prior to his initial interrogation, the record clearly reflects that defendant was so advised prior to making and signing his written statement.
The only evidence in the record that defendant ever requested counsel before signing the confession came from defendant himself. The discrepancy between the testimony of the law officers and defendant presented a factual question which the trial judge could, and did, resolve unfavorably to defendant. Therefore, the Escobedo standards are not applicable and do not render the confession inadmissible. People v. Mallett (1970), 45 Ill.2d 388, 259 N.E.2d 241; People v. Ackerson (1967), 37 Ill.2d 117, 224 N.E.2d 849.
• 2 Having determined that the principles recited in Escobedo are inapplicable, we next direct our attention to the question of the voluntariness of defendant's confession. (People v. McGuire (1966), 35 Ill.2d 219, 220 N.E.2d 447.) Since defendant's trial occurred prior to the decision in Miranda v. Arizona (1967), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, the appropriate standard for determining the voluntariness of defendant's confession is the "totality of circumstances" test. (Haynes v. Washington (1963), 373 U.S. 503, 10 L.Ed.2d 513, 83 S.Ct. 1336.) Accordingly, an independent examination of the circumstances under which defendant made his confession becomes necessary. People v. Hester (1968), 39 Ill.2d 489, 237 N.E.2d 466.
In his attempt to reveal the involuntary nature of his confession, defendant asserts that the law officers who interrogated him utilized psychological coercion. Specifically, defendant contends that he was told that if he did not give and sign a written statement that he would have to view the charred remains of his wife at the Belvidere Hospital. Defendant argues that this "interrogational ploy" precipitated his confession and served only to take advantage of his unstable emotional makeup.
The record in this case includes the report and testimony of the two psychiatrists who thoroughly examined defendant. Essentially, their findings reveal defendant as a frightened and deeply insecure person with serious characterological impairment and that he was suffering from an incipient ...