APPEAL from the Circuit Court of Fulton County; the Hon.
SCOTT L. KLUKOS, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
This appeal was initiated by the defendant, Alphonse T. Landry. Even though the defendant was charged with murder, a jury found him guilty of involuntary manslaughter, and the defendant appeals from the judgment of conviction entered on the verdict and the imposition of a sentence of a term of imprisonment of not less than 3 1/3 nor more than 10 years.
The incident underlying the charges against the defendant is a barroom fight in which the defendant admittedly struck Donald Braden, resulting in the death of Braden. The defendant testified that he was provoked by Braden and a companion of Braden. He also testified that he did not remember hitting the victim more than once, but admitted it was possible he did so. The initial blow put Braden flat on his back on the floor. Landry and some others unsuccessfully tried to revive the victim, but it appears he actually died before the ambulance arrived.
There is conflicting evidence from other witnesses as to the provocation. Several witnesses also testified that the defendant landed between three and six punches to Braden's head after he was floored by the first of the defendant's punches. However many blows were struck, they were made with the defendant's bare fists and were landed in and about the head of Braden.
A pathologist testified that there was no visible injury to the back of Braden's head and that Braden's external head injuries were not severe. However, the cause of death was described as a subdural hematoma, with the hemorrhaging being extensive at the base of the brain, resulting from, at least, four blows to the head. This testimony was accompanied by the presentation of autopsic photographs which were admitted into evidence over a defense objection.
• 1, 2 The defendant contends that the trial court committed reversible error by instructing the jury on involuntary manslaughter when there was no evidence of recklessness produced at the trial. Manslaughter is an included offense in a murder charge (People v. Peeler (1st Dist. 1973), 12 Ill. App.3d 940, 299 N.E.2d 382), and it is the function of the jury to determine whether the defendant is guilty of the offense charged or of a lesser included offense. (People v. Thompson (2d Dist. 1976), 35 Ill. App.3d 773, 342 N.E.2d 445.) Where there is evidence in the record which, if believed by the jury, would warrant a finding of guilty of manslaughter rather than murder, it is reversible error for a trial court to refuse to give a manslaughter instruction. (People v. Canada (1962), 26 Ill.2d 491, 187 N.E.2d 243.) Where, as here, the evidence is conflicting and could support either a theory of self-defense or a finding of manslaughter, the trial court should instruct the jury on both theories (see People v. Gajda (1st Dist. 1967), 87 Ill. App.2d 316, 232 N.E.2d 49), but the jury is not required to believe the testimony and evidence warranting the giving of a self-defense instruction merely because such an instruction was given. (See, e.g., People v. Gajda (1st Dist. 1967), 87 Ill. App.2d 316, 232 N.E.2d 49.) Nor is the defendant entitled to have the jury instructed only as to murder where evidence which would support a conviction of involuntary manslaughter exists. See People v. Guthrie (4th Dist. 1970), 123 Ill. App.2d 407, 258 N.E.2d 802.
• 3 In our view, there was sufficient evidence of recklessness to warrant the trial court giving an involuntary manslaughter instruction to the jury. Therefore, the trial court did not commit reversible error by instructing the jury on involuntary manslaughter.
• 4 On the other hand, we believe the trial court did commit reversible error by allowing the autopsic photographs to be exhibited and to be admitted into evidence. When a photograph is offered which has a tendency to result in the possible prejudice of the jury, its admission lies in the sound discretion of the trial court. (People v. Lefler (1967), 38 Ill.2d 216, 230 N.E.2d 827.) Generally, despite their gruesomeness and prejudicial effect on the jury, material and relevant photographs are admissible, as where they tend to prove the cause of death, the number and location of the wounds, the manner in which they were inflicted, the amount of force used or the willfulness of the act in question. (People v. Owens (1976), 65 Ill.2d 83, 357 N.E.2d 465; People v. Nicholls (1969), 42 Ill.2d 91, 245 N.E.2d 771; People v. Speck (1968), 41 Ill.2d 177, 242 N.E.2d 208; People v. Ford (1968), 39 Ill.2d 318, 235 N.E.2d 576; People v. Jenko (1951), 410 Ill. 478, 102 N.E.2d 783; People v. Dee (1st Dist. 1975), 26 Ill. App.3d 691, 325 N.E.2d 336.) However, generally it is only a gruesome crime that warrants the admission of gruesome photographs. People v. Dee (1st Dist. 1975), 26 Ill. App.3d 691, 325 N.E.2d 336.
Photographs of a deceased victim, taken during the autopsy, are highly prejudicial because they tend to arouse the passions of the jury. (See this court's observations in People v. Elwell (1977), 48 Ill. App.3d 628, 630-31, 362 N.E.2d 830, 832.) The photographs were not necessary in the instant case to aid the jury in understanding the pathologist's testimony. If deemed necessary at all, diagrams and drawings could have illustrated the pathologist's testimony without arousing the jury's prejudice with grisly pictures, not of external injury inflicted, but of the autopsy. The record indicates the pathologist adequately established, through his lengthy and detailed testimony, the cause of death and the amount of force used so that the use of the photographs was unnecessary and cumulative. (See Hulsebus v. Russian (2d Dist. 1969), 118 Ill. App.2d 174, 254 N.E.2d 184.) In addition, the pathologist testified that the autopsy procedure may have exaggerated the appearance of superficial injury. To exemplify the distortion caused by the autopsy procedure the following exchange between the prosecutor and his expert witness is presented as it appears in the record:
"Q. On People's Exhibit 10 when I asked you to point to the subdural hematoma, what is the dark area which appears to be on the left side of the decedent's face? I presume that is his nose?
It is readily apparent that the gruesome nature of the photographs was caused by the autopsy procedure, rather than by an act of the defendant. In this respect, we believe the instant case is similar to People v. Jackson (1956), 9 Ill.2d 484, 138 N.E.2d 528, and People v. Lefler (1967), 38 Ill.2d 216, 230 N.E.2d 827.
The only arguable probative value and relevance of these photographs is that they tend to prove that the defendant delivered more than one blow to the head of Braden. However, the defendant testified that, although he believed he struck Braden only once, he may have hit the victim more than once. In addition, the pathologist testified that at least four blows would have to be inflicted to cause the injury which resulted in Braden's death, and several eyewitnesses testified that the defendant struck Braden more than once. Even witnesses friendly to the defendant did not deny that the defendant struck the victim at least three times.
• 5 Certainly, it was not necessary for the pathologist to view the photographs to reach his autopsic conclusions. Nor was it necessary for the jury to view the photographs to understand the pathologist's expert testimony. More importantly, viewing the photographs alone would be meaningless and confusing to the jury. Unless the jury listened to and believed the pathologist's testimony, they could not have understood the significance of the photographs. Therefore, we find that the use of the photographs lent no support to the pathologist's testimony and was merely cumulative. As a result, we hold that the trial court, in weighing the great possibility of ...