APPEAL from the Circuit Court of Cook County; the Hon. JAMES
E. STRUNCK, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Mr. PRESIDING JUSTICE GOLDBERG delivered the opinion of the court:
This appeal brings a rare and bizarre set of facts before us. James MacRae (defendant) was tried before a jury for aggravated battery by causing great bodily harm (Ill. Rev. Stat. 1973, ch. 38, par. 12-4(a)), aggravated battery by use of a deadly weapon (par. 12-4(b)(1)) and attempt murder (par. 8-4). He was found guilty of attempt murder and aggravated battery with a dangerous weapon and not guilty of aggravated battery causing great bodily harm. The court imposed sentence of 4 to 6 years on the attempt murder verdict. Defendant has appealed.
In this court defendant contends that the evidence failed to prove him guilty beyond a reasonable doubt; defendant was denied a fair trial by questions of the prosecutor which created a false impression that defendant had committed other crimes; this error was compounded by an improper instruction; the sentence of the court was excessive and the court abused its discretion in denying defendant probation. The People respond by urging that the crimes of attempt murder and aggravated battery were proved beyond a reasonable doubt; cross-examination by the State's Attorney regarding prior criminal acts by defendant did not deny the defendant a fair trial, as such examination was based upon the evidence and was relevant to prove motive; the limiting instruction given by the trial court to the jury was not erroneous and the sentence was reasonable in the light of the circumstances of the case and the gravity of the offense.
All of these crimes were allegedly committed by defendant upon the person of Richard Lockwood, a neighbor of defendant, in the village of Barrington. Defendant was born in China of missionary parents and came to the United States for his high school and college education. He had extensive army service, was an officer in the artillery and an instructor in the use of small arms. Shortly after leaving the army, he entered the advertising business as an employee of a large agency. He did research work and left the company after he had served for a time as vice president. His work centered about communication as related to methods of attracting attention to various products. After other employment, he sought to develop his own projects. He centered his interest upon the process of getting the attention of other people in its relation to the business of advertising and marketing. He attempted to perfect demonstrative techniques including the use of tangible materials and to develop various training programs. He was financially unsuccessful and was obliged to borrow from various creditors from time to time.
Defendant and Lockwood had known each other in China when they were both of high school age. Lockwood moved to Barrington and, in about 1967 or 1968, discovered that defendant had lived there for some time. They renewed their acquaintance on a friendly basis. During all material times, Lockwood was a widower and defendant was married. The latter is the father of six children, some adult and the youngest of high school age. Lockwood has been a college instructor for some 28 years.
In March of 1972, defendant borrowed $5000 from Lockwood. A memorandum of the loan was prepared by an attorney. The document provided that at the end of one year defendant was to pay Lockwood $8000 or extend the loan for another year and then pay $12,000. The interest of defendant and his wife in a parcel of real estate was to be assigned to Lockwood as security for the loan. The memorandum does not legally describe the real estate or state its location other than identifying it as lake frontage on the east side of Washington Island. The evidence shows that the property is located in Wisconsin. The agreement was signed by Lockwood and the money was advanced. It is undisputed that defendant signed his name to the agreement and then took it home to obtain the signature of his wife. Defendant actually signed his wife's name without her knowledge or authority. Defendant testified, and examination of the document shows, that there are visible differences between the handwriting in the two signatures.
Defendant made no money in 1973 or 1974. On April 1, 1973, at the end of the one-year period, defendant did not repay the loan. On February 17, 1974, Lockwood sent defendant a letter directing his attention to the due date. The letter stated that if defendant did not respond within a week, Lockwood would discuss the matter with defendant's wife and would speak to the lawyer who had prepared the loan memorandum to obtain advice regarding procedure in securing his rights in the Wisconsin property. The final sentence of the letter was, "I do not intend to let the matter drag along." On February 19, 1974, defendant replied by mail to the effect that he was prepared to pay the loan and that Lockwood could "expect payment by April 1, 1974."
Defendant testified that, prior to the final due date Lockwood told defendant he believed that the defendant had improperly signed his wife's name to the agreement. Lockwood threatened to expose this fact to defendant's wife. Lockwood testified that defendant first denied then admitted he had signed his wife's name. Lockwood stated he had agreed that he would not inform defendant's wife of these facts.
Defendant was obliged to incur other debts by borrowing. In August 1972, he borrowed $11,600 from another friend. He agreed with this creditor that the loan was to be secured by the same Wisconsin property. This creditor was later informed by the defendant that the Wisconsin real estate had been sold to satisfy an income tax lien against defendant but was not informed that the same property had been designated as collateral five months before for the Lockwood loan. The defendant testified that in January of 1974, he sold the Wisconsin property but he did not deliver these proceeds to his creditors or keep the funds intact as substitute collateral. Defendant had other creditors and estimated that he owed a total of $30,000 to $40,000. By March 30, 1974, these other persons, including Lockwood, were pressing him for payment.
On March 30, 1974, defendant presented a musical appreciation project to Lockwood. They discussed the project which related to teaching musical appreciation by means of creation and development by the students of "the world's oldest musical instrument" and "the world's oldest tune." Defendant desired Lockwood to participate in the development and marketing of this project in lieu of prompt repayment of the debt. Lockwood expressed no interest. The following day, March 31, 1974, defendant called Lockwood and stated that he would visit him later that evening, about 10:30 p.m.
Lockwood testified that on March 30, 1974, he was "mildly apprehensive" regarding defendant's conduct. He had a premonition of danger. He had a conversation with a friend and fellow teacher and told him that he had arranged a meeting on the following night with a man who owed him money; he was going to play his "trump card" by notifying this debtor's wife concerning the loan and if he did not appear at his work on Monday, the friend could assume that "something had happened" to him. Lockwood also wrote a note stating that if anything happened to him the person responsible was likely to be defendant. He taped the note to one of the kitchen cabinets in his home. Lockwood conceded in his testimony that prior to that date defendant had never threatened him with violence and he had not known of any violent conduct by defendant.
Before going to Lockwood's home, defendant attached an awl, or ice pick, to his left wrist with rubber bands, with the point facing up his arm. On the other wrist, he fastened a kitchen knife with rubber bands. Counsel for defendant described the knife as being a serrated kitchen knife approximately 3 inches long. Defendant put a hammer into a plastic bag and placed it in his belt. He also prepared a sign from cut and pasted newspaper print containing a message which would serve apparently to attribute to some nonexistent radical group, what defendant's counsel has referred to as a "simulated murder."
Defendant also took with him gloves, paper towels, some plastic bags and rope. He also wrote out and took with him a checklist of 18 steps as an apparent procedure in the murder of a victim. Heading the list is the statement, "Knife leave it in." Another item is placing the sign on the apparent victim, also removing the knife for purpose of cutting off the victim's genital organ and inserting it into the mouth of the deceased. Defendant testified that all of these items were props which were a part of a dramatic attention getter which he intended to present to Lockwood to obtain his participation in the music appreciation project.
Defendant told his wife he was going to see Lockwood, took possession of his props and walked a distance of two blocks to Lockwood's home. He also took with him a blank check, a pen and a written description of the music appreciation project.
That evening Lockwood waited for the defendant. He was alone in his house, dressed in pajama bottoms, a shirt and bathrobe. He had left his front door open but the screen door closed.
At this point there is a divergence in the testimony of the two men. Lockwood testified that he saw defendant through the window. He then went to the front door. He noted that defendant had a pair of rubbers, or galoshes in one hand but his left hand was obscured. He greeted defendant while opening the screen door with his right hand. He testified that without speaking defendant lunged into the living room "and stuck a knife right into my gut, my left side." Lockwood then pulled out the knife, broke it into two pieces and threw in on the living room floor.
Lockwood also testified that the parties then began a struggle, tumbling and rolling about. Defendant then pulled out the awl, or ice pick and struck at the witness with it. Lockwood succeeded in wrenching it from his hand and he was able then to subdue defendant. He testified that he forced defendant to the floor, sat on his back and ordered him to crawl to the kitchen in order to use the telephone. In the kitchen the fight was renewed. Defendant broke away and Lockwood stabbed him beneath the arm and close to the shoulder blade. Lockwood testified that defendant then pulled out a hammer wrapped in a plastic bag and began striking him. He wrestled the defendant down, seized the hammer and struck defendant several times. He was then able to call the police.
On the contrary, defendant testified that he intended only to obtain Lockwood's attention in a graphic manner to obtain sponsorship of his musical appreciation plan by Lockwood. He testified that he had prepared the checklist only to confront Lockwood with, in the event that the remaining so-called props in his possession only stimulated Lockwood to laughter. He carried a pair of rubbers on the fingers of his left hand only to remind Lockwood about their days in China and the joke they knew concerning Chinese soldiers carrying umbrellas into battle.
He approached the Lockwood residence and Lockwood was at the door. Lockwood looked especially at defendant's left wrist; then with a sudden darting movement he seized the awl and stabbed defendant. Immediately defendant instinctively pulled the knife out of the rubber bands on his right wrist and "stuck it into" Lockwood's side. The combat then surged through the house. When Lockwood subdued him and sat upon his back, he begged Lockwood to move back because he couldn't breathe. Lockwood pricked him with the awl, threatened to kill him and ordered him to crawl into the kitchen. Defendant felt great pain in the waist and realized ...