APPEAL from the Circuit Court of Morgan County; the Hon. JOHN
B. WRIGHT, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
On April 11, 1975, defendant Larry Gerecke was found guilty by a Morgan County jury for the murder of Charles "Booky" Howell and attempt (murder) of Elva Gerecke Cockerham, defendant's former wife. Defendant was sentenced to concurrent terms of 75 to 100 years for murder and 50 to 100 years for attempt (murder).
Testimony at trial disclosed that defendant went to the South Side Tavern in Meredosia, Illinois, at about 11:15 p.m. on November 7, 1974. He had two mixed drinks while talking to the bartender. Defendant's ex-wife arrived, accompanied by "Booky" Howell. Defendant proceeded to play pool with Howell and had two to three more mixed drinks while playing. Defendant showed no animosity towards Howell at the time, the bartender testified. After Elva and "Booky" left, defendant remained, talking to Dennis Englebrecht, the bartender. Englebrecht closed the tavern at 12:15 or 12:30 a.m. and he and defendant drove around town until 1 a.m. drinking a six-pack of beer. While driving around they drove past Elva's apartment several times and once defendant commented that they weren't home yet. Defendant took Englebrecht home about 1 a.m.
Elva's testimony concerning the events at the tavern on that evening was essentially consistent with Englebrecht's testimony. She did testify, however, that once before they were divorced defendant threatened to kill her if she ever tried to take the children away from him. Elva then testified that after she and "Booky" left the tavern, they went to his house and watched T.V. for an hour; then, walking to her apartment, they saw defendant drive by in his car. Once at the apartment, they saw defendant drive by several more times and also saw him leave Pat Jobe's apartment next door. Elva and "Booky" then went to bed about 2 a.m. Soon thereafter Elva heard a knock on the door, then a knock on the window. "Booky" looked out and said, "It's Larry, you better see what he wants." She went to the back door where defendant appeared and said, "You went to bed with him didn't you." and "Where is he?" Defendant started to pull on the screen door and she slammed the inside wooden door and ran into the living room where "Booky" was sitting in a chair. "Booky" then ran into the kitchen. Elva heard a loud crash and saw defendant in the kitchen. While standing between the living room and kitchen Elva saw "Booky" throw up his hands and saw flames shooting from a long barreled gun held by the defendant. She then saw another flame shoot out of the gun and found that she was wounded.
Elva then ran to Pat Jobe's apartment next door and told Pat to call the police, that defendant had shot her and "Booky". She then ran back to her apartment and laid down on the floor next to "Booky" where she was discovered by two members of the Meredosia Rescue Squad at 3 a.m. "Booky" Howell was dead, lying face down in the kitchen, in a pool of blood with his right arm across Elva who was on the floor next to him.
Defendant was arrested about 3 a.m. after crashing his automobile into a school building. Defendant's breath smelled of alcohol, and a shotgun, a six-pack of beer and a hunting vest containing shells were found in his car.
Defendant's mother and father testified that he came to their house that evening and borrowed his father's shotgun to go duck hunting. He returned later, running into the house and shouted, "They're shot, I caught them in bed, I'm going to kill myself."
Mary Grady, a neighbor of Elva's, testified that she heard three gunshots close together about 3 a.m.
Patricia Jobe testified that, as Elva's next door neighbor, she knew both Elva and the defendant. She testified that defendant was at her apartment about 1:30 to 2 a.m. and had about three beers. At 3 a.m. Elva ran into her apartment and asked her to call the ambulance because defendant had shot "Booky" and her.
The autopsy showed that Howell died of bleeding caused by a shotgun blast from a distance in excess of two feet. Expert testimony established that the muzzle was from five to nine feet from Howell when the shot was fired and that three spent shells found in Elva's apartment had been fired from the gun in the defendant's car. Defendant's father identified that gun as the one defendant had borrowed from him on the night in question.
Defendant testified in his own defense. His testimony was consistent with that of Englebrecht as to the events prior to 1 a.m. After dropping off Englebrecht, defendant purchased another six-pack and went to Pat Jobe's apartment where, while talking to her for 30 to 45 minutes, he consumed three to four more beers. Defendant then decided to go duck hunting, went home, borrowed a shotgun from his father and picked up a hunting coat with shells in it. The defendant then testified that he was lonely and went to Elva's apartment to talk. He left the gun in the car and knocked on the door, then the window. Seeing Howell in the window, defendant got mad. He got the gun because he was scared and thought there would be trouble since he caught "Booky" and Elva there together. He loaded three shells in the gun on the way to the house.
Defendant then testified that Elva slammed the door in his face when he told her he would get the kids since he caught them there together. Defendant asked, "Where is he?" and broke down the door. Once inside, the defendant maintains that Howell yelled at him, grabbed him and hit him. This led defendant, according to his testimony, to run out and get his gun which had been propped near the back door. While coming in the door, the gun accidentally hit the door and discharged. When defendant pointed the gun at "Booky", "Booky" hit him and the gun went off accidentally hitting Elva. Defendant then shot "Booky" because he was mad that Elva had been shot and because he was afraid of "Booky". On cross-examination, defendant admitted that at no time did he think that "Booky" was armed.
Defendant then drove home, ran into the house and yelled that he had caught them in bed and shot them and that he was going to kill himself. He then drove the car into the school building in an unsuccessful suicide attempt and was apprehended soon thereafter.
• 1 First, defendant contends that he was denied a fair trial because of the introduction of five color photographs of the deceased: two taken at the scene, three taken at the morgue. Defendant maintains that these pictures were so gruesome, inflammatory and irrelevant as to become inadmissible according to the guidelines established in People v. Lefler (1967), 38 Ill.2d 216, 230 N.E.2d 827. Lefler recognizes that admission of photographs is within the discretion of the trial court but is distinguishable from this case. In Lefler, the trial court permitted the introduction of color photos taken during the process of autopsy. The pictures were projected on a 44" x 26" screen and showed the chest cavity after bone, blood vessels and organs had been removed. Other photos showed the skull and brain after portions of the skull had been removed. The supreme court stressed that these pictures had little evidentiary value because "the gruesome nature of ...