APPEAL from the Circuit Court of McHenry County; the Hon.
WILLIAM GLEASON, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
The defendant, Donald Wayne John Kuntz, age 16, was charged with the murder of Guy Aubuchon, age 6. Due to the age of the defendant, the State petitioned the juvenile court pursuant to the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-7(3)) to transfer the case to the adult division of the circuit court. Following a hearing, the petition was granted; thereafter defendant was found guilty by a jury and sentenced to 14 years to 15 years imprisonment.
At trial, Gerald Collins, an eight-year-old playmate of the victim testified that late in the afternoon of April 15, 1975, Guy and he were playing in a dump next to the Wonder Lake fire station searching for spray paint. During the search they separated. Gerald heard Guy cry and started to look for him. He climbed a hill and saw a man dressed in a blue jean jacket and blue jeans with a white tee shirt sticking out from the jacket leaning over Guy and struggling with him. Gerald sought help at this point and returned to the scene with his father. Alfred Collins, Gerald's father, testified that at the request of his son, the two proceeded to the dump where they found Guy. A police car arrived on the scene and later, a rescue squad; the rescue squad transported Guy to McHenry Hospital, where he was pronounced dead at 7:48 p.m.
An autopsy revealed that there were eleven incised wounds on the victim's back as well as an incised wound on the anterior of the neck. Two of the incised wounds punctured the lungs and caused the death. Two photographs, one showing the neck wound and the other showing the wounds to the victim's back were admitted into evidence over the objections of defense counsel.
Mrs. LaFern, mother of the defendant, testified that defendant had returned home at 5:30 p.m. with the left front of his shirt covered with blood. The defendant stated he had found a wounded bird. Upon hearing a radio report of a boy found with his throat cut, she questioned the defendant who told her that Guy was swearing at him, calling him dirty names and that the next thing he remembered was holding Guy in his arms. The defendant's parents thereupon brought the defendant to the police station. The defendant was given his Miranda warnings; he repeated the statement he had given his mother to the officers; he was then taken to the scene of the incident where a search for the weapon was being conducted. The defendant eventually directed the officers to the area where the knife was found.
Adam Prushinski and his son, Edmond, who lived next door to each other, testified that while working outside their houses between 5:15 p.m. and 6 p.m. they saw the defendant walking out of a field adjacent to the Edmond Prushinski home. The field where Guy Aubuchon was found was directly northwest of the Kuntz home behind the Prushinski homes.
The defense called two of the defendant's schoolmates to testify concerning various attempts to hypnotize the defendant. Eric Esau testified that he was 17 years old, his father was a psychiatrist, and he had read several books on hypnosis. He testified that prior to April 15, he had attempted to hypnotize the defendant, that the defendant seemed to enter a trance and become hostile. Keith Carr, also 17 years old, testified that he was present at these sessions and that on one occasion the defendant had muttered, "kill, kill," and had lunged at Keith. On direct examination defense counsel asked Eric Esau if he had an opinion, based on his contact with the defendant, as to whether or not the defendant was suffering from a mental disease or defect. The State's objection to the question was sustained.
Dr. Gary Kisler, District Coordinator of Pupil Personnel Services in the defendant's school district, and Susan Carpenter, a school psychologist, testified as to their encounters with the defendant. Both had recommended that the defendant seek psychiatric treatment. Dr. Anthony Pavkovic, a psychiatrist specializing in child and adolescent psychiatry, testified that the defendant had been referred to him some three or four years prior to this incident, but as both the parents and the defendant felt nothing was wrong, no treatment was commenced. On March 8, 1975, the Woodstock school referred the defendant to him and he in turn referred the defendant to the Mental Health Center in McHenry County, Illinois. Following the incident on April 15, Dr. Pavkovic saw the defendant for a total of eight hours. He diagnosed the defendant as a paranoid schizophrenic; he was of the opinion that the defendant did not appreciate the criminality of his act.
In rebuttal, the State called two McHenry County deputy sheriffs who had observed the defendant on April 15, 1975. Henry Nulle testified that in his 21 years as a deputy sheriff he had observed over 200 persons he felt were insane and that, in his opinion, the defendant was sane. Richard Heisler testified that he had been a deputy sheriff for approximately eight years and a juvenile officer for about five and a half years and had transported persons to Elgin State Hospital. Based on his experience, it was his opinion that the defendant was sane. Both opinions were objected to by defense counsel, but the objections were overruled.
The final rebuttal witness for the State was Dr. Werner Tuteur, a psychiatrist who had reviewed the history in reference to defendant's behavior and who examined the defendant on August 15, 1975. It was Dr. Tuteur's opinion, based upon his examination of the defendant, that the defendant was not suffering from any mental disease or defect on April 15, 1975.
On appeal, the defendant contends that three erroneous rulings of the trial court operated to deprive him of a fair trial.
• 1, 2 The first alleged error occurred when the trial court allowed the two photographs of the victim to go to the jury. In People v. Jenko (1951), 410 Ill. 478, 482, 102 N.E.2d 783, 785, the court stated:
"Evidence having a natural tendency to establish the facts in controversy should be admitted. A party cannot have competent evidence excluded merely because it might arouse feelings of horror and indignation in the jury. Any testimony concerning the details of a murder or other violent crime may have such tendencies, but manifestly this could not suffice to render it incompetent. Of course, where spectacular exhibits having little probative value are offered for the principal purpose of arousing prejudicial emotions they should be promptly excluded. But questions relating to the character of the evidence offered, and the manner and extent of its presentation, are largely within the discretion of the trial judge, and the exercise of that discretion will not be interfered with unless there has been an abuse to the prejudice of the defendant."
In the Jenko case the court held that there was no error in admitting into evidence certain photographs taken of the victim's body at the hospital and ...