APPEAL from the Circuit Court of Peoria County; the Hon.
RICHARD E. EAGLETON, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Eddie Allen was found guilty of the murder of his wife. He was sentenced to a term of imprisonment for not less than 18 years nor more than 50 years. The issues presented by his appeal are whether the cross-examination of defendant impermissibly infringed on his Fifth Amendment right to remain silent at the time of his arrest and whether an instruction on self-defense was improper.
The State's evidence showed that on the date of the offense, January 3, 1974, defendant and his wife were separated, and Mrs. Allen was residing with the Moores. At approximately 3 p.m., Mrs. Allen returned from work and defendant arrived at the Moore home shortly thereafter.
Mrs. Moore went to the bathroom to do some mopping, leaving defendant and his wife in the living room. She then heard Mrs. Allen run down the hall to the back door screaming that defendant had a gun. Defendant caught his wife at the back door, at which point Mrs. Moore heard a sound, which she described as "A blow, sort of like a crash." Mrs. Moore went to the back door and noticed that Mrs. Allen was bleeding from the back of her head.
Mrs. Allen went into the bathroom with Mrs. Moore, where the wound was cleaned. According to Mrs. Moore, defendant was asking a lot of questions and defendant's wife was "kind of incoherent" and was holding on to Mrs. Moore. Defendant and his wife then went into the living room where Mrs. Allen sat in a chair and defendant kneeled in front of her. Mrs. Moore began to call her husband from a telephone on the kitchen wall, where she could see both defendant and his wife. Before the call was completed, defendant started shooting at his wife. Mrs. Moore saw Mrs. Allen attempt to rise from the chair at the time defendant started to shoot. Defendant took a step toward his wife, who was lying on the floor, pointed the handgun and attempted to fire the then empty weapon. Defendant said, "She is dead now. Call the police." Mrs. Moore was unable to make the call, so defendant notified the police.
State criminalists tested scrapings obtained from defendant's handgun, which were found to be human blood. The blood could not be typed, however, due to contamination.
Defendant presented several witnesses in his behalf in an attempt to show that the killing was in self-defense.
Both Mr. and Mrs. Moore testified for the defense. The substance of their testimony was that at approximately 3 a.m. on December 30, 1973, defendant had been at the Moore house with Mr. Moore when Mrs. Allen and Mrs. Moore arrived there. Defendant asked his wife where she had been, and she became hysterical and grabbed a steak knife. Mr. Moore wrestled the knife away from her, and Mrs. Allen then made a threat indicating that she wished to see defendant dead.
There was testimony that Mrs. Moore and Mrs. Allen had been with Mr. Lemons and Mr. King on the evening of December 29, 1973. During the course of the evening, the two men told Mrs. Allen that if she desired, they would have defendant killed.
Defendant testified that he purchased the handgun for his protection because his wife threatened to have him killed. He also testified to the argument at the Moore's on December 30, 1973, and the threat made by Mrs. Allen. He went to the Moore's on January 3, 1974, to meet his wife and to discuss a divorce. When he informed her that he knew of the two men and the threats, his wife ran into the kitchen and grabbed a butcher knife. A struggle then took place and his wife fell and struck her head against the kitchen door. After defendant and his wife went back into the living room, Mrs. Allen told defendant that if she got the chance she would kill him herself.
Defendant was nervous and reached into his pocket for a cigarette. Mrs. Allen said something about there being a gun in his pocket and reached for her purse. Defendant remembered jumping up and pulling the trigger of his gun once. He did not remember firing any other shots, nor did he remember pointing the empty gun at his wife's body and pulling the trigger. Over objection, defendant stated that he thought his wife had a knife or gun in her purse and that he was "scared to death."
When the police arrived at the house, defendant met Officer Melloy at the sidewalk. The officer asked what had happened and defendant replied, "I shot my wife." Defendant also told Officer Melloy that the gun was on a table in the house and that his wife was "hurt pretty bad."
Officer Melloy had previously testified for the State that defendant appeared very calm while making these statements. The officer had then entered the Moore house and attempted to give first aid to Mrs. Allen. At this point, defendant was placed under arrest, and, after being given his Miranda warnings, he apparently made no further statements.
During the cross-examination of defendant, the following colloquy took place, over objection of defense counsel:
"Q. Now, Mr. Allen, when the police show up pursuant to your call on January 3, 1974, at 431 West 7th in Peoria, and you talked to Officer Melloy, you never mentioned any fear for your life did you?
A. Would you repeat the question?
Q. When the police showed up at 431 West 7th on January 3, 1974 pursuant to your call, you never told them you were in fear for your life from your wife did you?
Q. In fact, you never told any law enforcement officer this did you?
Q. In fact, the first statements regarding this are from the stand in this trial aren't they? * * *
Q. Now this King and Lemons that testified here, you never mentioned them ...