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People v. Foster





APPEAL from the Circuit Court of Madison County; the Hon. JOHN GITCHOFF, Judge, presiding.


Defendant, Warren Foster, was charged by indictment filed in the circuit court of Madison County with the offense of murder. Following a jury trial defendant was found guilty as charged and was sentenced to a term of 14 to 18 years' imprisonment. From the judgment entered by the trial court, defendant appeals.

On appeal, defendant contends that his conviction should be reduced to voluntary manslaughter, that certain evidence was erroneously excluded, and that certain jury instructions were improperly given.

On the morning of September 21, 1974, defendant shot and killed Solomon Rogers. He then surrendered himself to the police. Soon after surrendering himself at about 11:30 a.m. of that same day the police interrogated defendant. The interrogation was recorded on a tape recorder. Later that same day at 3:15 p.m., defendant made a confession which was recorded on videotape. A motion to suppress the videotaped confession was denied and during the trial, the jury saw and heard the videotape. The videotape was the State's primary source of evidence at trial.

According to the defendant's videotaped confession, on the day of the occurrence, defendant was at the house of Bud Naylor, a private residence which was also a tavern and gambling casino. When Rogers arrived, he approached defendant and stated that he would not pay a $35 debt owed to defendant. Defendant and Rogers had been friends since their boyhood but the friendly relationship was severed in 1964 when defendant had refused to submit a false statement in connection with a law suit by Rogers against a railroad. Since that time Rogers had insulted, threatened and, at times, had struck defendant. In addition to refusing to pay the debt, Rogers ridiculed and criticized defendant. Defendant responded in kind by ridiculing Rogers. During the argument, Rogers slapped defendant's face. Defendant then walked over to Houston Terrell and he handed his gun to Terrell to hold for him in order to avoid trouble. Rogers, however, continued by calling defendant a "white folks snitcher," and by displaying a knife. Defendant stated, "Sol, if I were you, I wouldn't use it, if you do I'm going to kill you." Thereafter defendant stated, "If you hit me again, I'm going to kill you." Rogers, after hearing this, slapped defendant again. Defendant took a step toward Rogers but Rogers was then either pushed out of the door by other customers or he backed out of the door. As he was leaving Rogers stated, "I'll be back."

Defendant went to Terrell and demanded to have his gun. Terrell resisted but defendant grabbed the gun and he stated, "I'm tired of him beating me up and I'm sick of him." He then followed Rogers while shouting, "* * * you called me a white folk snitcher and I told you, God damn it, if you hit me again, I was going to kill you." Rogers walked quickly down a driveway; defendant, around 40 feet behind him, shouted, "Turn around so I won't have to shoot you in the back." Rogers replied, "If you are going to shoot me, you are going to have to shoot me the way I'm going." To this defendant stated, "You're damn sure shot." Defendant fired the weapon and Rogers fell and died of a gunshot wound to the back of the head. Defendant went back into the house and announced that he had killed Rogers. Before surrendering himself to the police, defendant went to his home and informed his wife that he had killed Rogers because "* * * he slapped me and he treated me like a damn dog and I got sick of it and I begged him to leave me alone and he didn't do it and I did it intentionally and it wasn't no accident."

Other evidence produced by the State showed that when defendant surrendered at the Alton Police Station, he appeared to be calm, rational and not intoxicated.

At trial, defendant asserted the defenses of insanity, intoxication and self-defense. Instructions and verdict forms were also given, on defendant's request, on voluntary manslaughter. Extensive uncontroverted evidence was presented concerning Rogers' reputation in the community for being a violent and dangerous person. The defendant testified that many times in the ten years since the railroad incident, he had been subjected to abuse and threats by Rogers. On three occasions Rogers showed defendant a shotgun which Rogers kept in his car and he threatened to use it against defendant. The last such threat occurred only a week prior to the shooting. Defendant testified that he had grabbed his gun from Terrell because he had thought that Rogers was going to get the shotgun that was in Rogers' car. He denied that he had himself threatened to kill Rogers and he denied having any conversation with Rogers once outside the house. Furthermore, he testified that he was intoxicated during the time that he had made the videotaped confession and that he had been instructed by the police on what to say. He also said that he only intended to wound Rogers in the shoulder to force him to drop the knife and to prevent Rogers from reaching the shotgun.

In support of his defense of insanity, defendant testified that he was an alcoholic and that while intoxicated in March, 1974, he had attempted to put his wife's head into hot water and in June, 1974, he had attempted to jump out of a moving automobile. Nathan Blackman, a psychiatrist who examined defendant on three occasions prior to trial, testified that defendant suffered from a degree of pathological intoxication which deprived him of the capacity to conform his behavior to the requirements of the law. Blackman stated, however, that a psychological report indicated that defendant had only very minimal brain damage.

On rebuttal, the State presented the tape recording of the first interrogation of defendant. A transcript of this recording was not made part of the record on appeal. Deputy Robert Hertz testified that the videotape was made after it was determined that portions of the first tape recording were inaudible. Hertz denied that defendant was intoxicated at the time or had been instructed on what to say.

Defendant first contends that the evidence shows that he had believed that circumstances existed at the time of the killing which justified his use of deadly force in "self-defense" against Rogers although his belief was, in fact, unreasonable. Thus, he argues that his murder conviction was not supported by sufficient evidence and he should have only been found guilty of voluntary manslaughter. The State responds by contending that this issue was waived by defendant.

The record shows that defendant tendered voluntary manslaughter instructions and verdict forms and that these were given by the trial court. In closing argument, defendant argued that he should only be found guilty of voluntary manslaughter. In his written post-trial motion, defendant alleged that the jury's verdict of murder was not supported by "evidence sufficient to justify such a finding." It appears from the record that the trial court, in fact, had focused upon the issue now raised on appeal and that the language used in the post-trial motion had been sufficient to inform the court of this point. We therefore will consider the merits of defendant's contention.

Defendant argues that the evidence shows that he had believed that Rogers had left the Naylor house and was walking to his automobile in order to get the shotgun that was in the trunk of the auto. Thus in the heated atmosphere, defendant argues, he believed that deadly force was justified in order to prevent his own imminent death or great bodily harm.

Section 9-2(b) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 91-2(b)), under which defendant bases ...

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