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People v. Robertson

DECEMBER 23, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KENNETH E. ROBERTSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Iroquois County; the Hon. ROBERT J. IMMEL, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 30, 1976.

Defendant was indicted and tried for the murder of Sharon Williams. After a jury trial, defendant was found guilty of voluntary manslaughter, and was sentenced to an extended term of 6 years 8 months to 30 years.

Defendant's first contention on appeal is that the evidence was insufficient to establish provocation in support of a verdict of voluntary manslaughter.

At the trial defendant testified to his stormy relationship with the victim, Sharon Williams. The details are not necessary to this opinion, but, in summary, Sharon and defendant had separated after living together for two years, and the separation was marked by disputes and mutual accusations which culminated in defendant's arrest for disorderly conduct the day before the shooting.

Other witnesses testified that, the day before the shooting, defendant twice threatened to "get" or "get even with" Sharon. Shortly before the shooting defendant sat in his parked car with a shotgun on the seat beside him and watched Sharon come out of a factory after work and get into a car driven by her friend Faye Thomas. Defendant then drove to the Thomas residence where he saw Sharon standing beside the Thomas car laughing at him. He got out of his car with the gun and fired a shot which struck Sharon in the shoulder. She then ran around the Thomas car and fell to the ground, and defendant moved closer, reloaded his gun, took aim, and shot Sharon in the head from a distance of 20 feet. The second wound was fatal.

A psychiatrist, called as defendant's witness at the trial, testified to his diagnosis that defendant had a "disassociative reaction" at the time of the shooting. Taking into account past events in defendant's life, and his inability to remember the shooting itself, the sight of Sharon laughing at him was said to be enough to trigger a sudden uncontrollable rage which rendered defendant incapable of forming a conscious intent to kill when he shot Sharon.

Defendant's requested instructions on voluntary manslaughter required the State to prove that defendant acted under a sudden and intense passion resulting from previous provocation by the victim (see IPI Nos. 7.03 and 7.04). Defendant argued during the trial that, if the jury did not decide to acquit defendant, evidence of provocation was sufficient to reduce the crime from murder to voluntary manslaughter. Although the State objected strenuously, the court gave the defendant's voluntary manslaughter instructions. On appeal, defendant contends that the evidence of provocation by the victim was inadequate to support the voluntary manslaughter verdict.

Defendant is actually complaining that it was error for the court to accede to his request for instructions on voluntary manslaughter. This, to put it mildly, is not the usual stance of a defendant in a criminal appeal. Whether we characterize this issue as involving invited error (People v. Clements, 316 Ill. 282, 147 N.E.2d 99 (1925)) or as raising a new theory of defense on appeal that was not raised at trial (People v. Brown, 11 Ill. App.3d 67, 296 N.E.2d 77 (2d Dist. 1973)), defendant's contention is without merit.

• 1 This precise issue was presented to this court in People v. Curwick (3d Dist. 1975), 33 Ill. App.3d 757, 338 N.E.2d 468, where we held that a defendant found guilty of voluntary manslaughter may not contest the sufficiency of the evidence of manslaughter after he requested the manslaughter instruction. Our decision in Curwick is controlling in the case at bar.

Defendant also claims that the State failed to prove the requisite intent necessary to support a conviction for either murder or manslaughter. He relies primarily on the psychiatric testimony that a person suffering from a disassociative reaction is incapable of forming a conscious intent to kill.

• 2 We note, first that the jury need not believe the testimony of an expert witness in its entirety. Thus it would not necessarily be inconsistent to accept the psychiatrist's "sudden rage" theory but to reject the conclusion that defendant was incapable of forming a conscious intent to kill. Furthermore, it is clear from the evidence that defendant fired the gun at Sharon, reloaded, took careful aim, and fired a second time. The State is not required to introduce direct evidence of a conscious intent to kill in order to prove either murder or voluntary manslaughter where the probable natural consequence of the defendant's act would be to destroy life. The necessary criminal intent may be implied from the character of the act. (See People v. Matthews (3d Dist. 1974), 21 Ill. App.3d 249, 314 N.E.2d 15; People v. Johnson (4th Dist. 1975), 33 Ill. App.3d 168, 337 N.E.2d 240.) Therefore, we find that the evidence was sufficient to establish the requisite intent.

After carefully reading the record, including a 1193-page report of proceedings, we conclude that defendant's conviction should be affirmed.

Defendant also challenges the 30-year maximum sentence imposed under the "extended term" provision of the Unified Code of Corrections (Ill. Rev. Stat., ...


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