APPEAL from the Circuit Court of Henry County; the Hon. PAUL
E. RINK, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
The defendant, Mary A. Sunquist, was charged by information with the murder of her husband, John Dean Sunquist, on January 29, 1976. Following a jury trial before the Circuit Court of Henry County, defendant was found guilty of murder for which she was sentenced to a period of imprisonment of from 14 to 20 years to the Department of Corrections. On appeal, defendant urges that her conviction for the offense of murder be reversed or be reversed and remanded or alternatively that her murder conviction be reduced to a conviction of voluntary manslaughter.
Four issues are presented for review:
1. Whether the court erred in excluding testimony of prior beatings of the defendant because this evidence is probative of defendant's state of mind and thus relevant to her claim of self-defense.
2. Whether the murder instruction failed to inform the jury that the State was required to prove that the defendant's act was not justified.
3. Whether it was error to instruct the jury that the State was not required to prove defendant's motive for acting.
4. Whether the evidence is insufficient to support the murder conviction because the State failed to prove that the defendant did not act in self-defense.
The defendant readily concedes that she shot John Dean Sunquist on January 29, 1976, in their Kewanee, Illinois, home. The Sunquists had been married for four months and the defendant was in the process of obtaining a divorce. There were no eyewitnesses to the shooting, but Patsy Hewitt, a mutual friend of the Sunquists testified that she had a telephone conversation with the defendant on the morning of the occurrence and stated she heard the deceased calling the defendant names. The defendant testified that she and her husband had argued all morning and that there had been some bitter feelings between them over their pending divorce. She stated that following some argument about the divorce she went into the bedroom to dress and prepare to leave the house. As she left the bedroom she picked up the gun that was there on the dresser. She claimed that she took the gun only to show it to her husband if he attempted to strike her. As she re-entered the kitchen where the deceased sat at the table, she told him she was going out for a while. She reported that the deceased then said "you lying bitch" and leaped at her at which point she admitted shooting him. The evidence indicated there were four .25-caliber bullet wounds in the deceased's body. The defendant's theory of defense was that she acted in self-defense.
1 The first claim of error is that the trial court erred in excluding testimony of prior beatings of defendant by prior husbands. There was no indication that John Dean Sunquist had ever struck the defendant and in fact she admitted that he had only threatened her and during arguments called her names. The defendant asserts that the evidence of defendant being beaten by her husbands in prior marriages was probative of her state of mind at the time of the shooting and therefore relevant to a claim of self-defense. The offered evidence is not probative of the fact that defendant would be more likely to be beaten by this husband also. There was also a lack of evidence that the deceased had a reputation for violence. The court excluded the offered evidence for the reasons of irrelevancy and remoteness. We agree. The beatings by prior husbands were very remote in time from the day that defendant shot John Dean Sunquist. The evidence of the prior beatings was irrelevant to the present case. The defendant cites People v. Williams (1st Dist. 1977), 45 Ill. App.3d 338, 359 N.E.2d 736, and Davids v. People (1901), 192 Ill. 176, 61 N.E. 537, for support of her claim that the evidence of prior beatings was relevant. Davids is clearly distinguishable, and we choose not to follow Williams in its reference to defendant's state of mind because the evidence of other crimes in Williams was not nearly as remote in time as is the evidence in the instant case. The case of People v. Johnson (1st Dist. 1969), 108 Ill. App.2d 150, 247 N.E.2d 10, is also distinguishable because the victim was shown to have a reputation for violence and the defendant there was shown to have knowledge of the reputation. Where, as here, the deceased victim did not have a reputation for violence or did not in fact display any violence toward the defendant, the physical attacks upon the defendant by former husbands can have little relevancy. It was the defendant's own admission that her husband had not been guilty of acts of violence toward her. We, therefore, cannot say that the trial court abused its discretion in excluding the evidence of beatings by other husbands as relevant or pertinent to the issue in the trial of defendant. To the extent that some of the language in Williams is inconsistent with this conclusion, we decline to follow or extend Williams by mandating admission of evidence of beatings by former husbands. We reach this conclusion not only for the reason that Williams is distinguishable, but, also, that to do otherwise might give support to a contention that any prior experience, however remote or inapplicable to the facts under consideration, could be recited as a basis of justification for murder.
Defendant also contends that the evidence was insufficient to support her murder conviction. Defendant's evidence of self-defense consisted almost entirely of her own self-serving testimony. However, the pathologist's testimony, both on direct and cross-examination, was inconclusive as to the trajectory of the bullets. It appears the same trajectory would result whether the victim was in a sitting position or was lunging or leaping toward the defendant as she shot. Her reliance on People v. Liddell (1975), 32 Ill. App.3d 828, 336 N.E.2d 815, is misplaced. There sufficient independent evidence of self-defense was found by the majority of the court to support the defendant's self-servicing extra-judicial exculpatory statement.
2 The defendant cites People v. Brown (1st Dist. 1974), 19 Ill. App.3d 757, 312 N.E.2d 789, for authority to reduce her conviction of murder to voluntary manslaughter, because she thought she was reasonably justified in the use of force likely to cause death, and her belief was unreasonable. The reviewing court's power to reduce the crime of murder to manslaughter pursuant to Supreme Court rule 615(b)(3) (Ill. Rev. Stat. 1975, ch. 110A, par. 615(b)(3)) should be cautiously exercised. (People v. Starnes (2d Dist. 1972), 8 Ill. App.3d 709, 289 N.E.2d 264.) We do not believe these facts suggest we should substitute our judgment for that of the trier of facts here and exercise our power pursuant to Supreme Court Rule 615(b)(3).
3 The determinative issue of this case is whether the murder instruction tendered by the prosecution and given to the jury over defendant's objection was reversible error. The prosecution tendered Illinois Pattern Jury Instruction, Criminal, No. 7.02, which instruction omits the State's burden of proof with regard to defendant's claim of self-defense. IPI Criminal No. 7.02 is an instruction on the issues the State has the burden of proving and was not intended for cases where the affirmative defense of self-defense has been properly raised. IPI Criminal No. 25.05 is the substitute issue instruction where the defense of justifiable use of force has been raised. This instruction adds to the other two issues of IPI Criminal No. 7.02 the issue of whether defendant was not justified in using the force which he used and places the burden upon the State to prove beyond a reasonable doubt the lack of self-defense. It is significant that while the defendant objected to IPI Criminal No. 7.02, she did not tender IPI Criminal No. 25.05. The State argues that a defendant who maintains that a particular jury instruction should be given has the affirmative obligation to prepare and tender it to the court and request the court to give it. (People v. Underhill (1967), 38 Ill.2d 245, 230 N.E.2d 837.) However, in People v. Wright (1st Dist. 1975), 32 Ill. App.3d 736, 336 N.E.2d 18, the court observed that the failure to object or tender the proper jury instruction (IPI Criminal No. 25.05) is usually a waiver for purposes of appeal but that the failure to give IPI Criminal No. 25.05 there amounted to reversible error. Consistent with that case we believe the issue of whether IPI Criminal No. 25.05 should have been given should not be considered waived by the defendant's failure to tender the instruction to the court.
4 The controlling inquiry is whether the issue of justifiable use of deadly force in self-defense was properly presented at the trial in the instant case. The State argues that the only indication of a theory of self-defense came from the defendant's own self-serving testimony. To the contrary there is an indication from the cross-examination of the pathologist that the downward trajectory of the bullets could have been caused by the position of the deceased's body as opposed to the standing position of the defendant only, when she fired the gun. On cross-examination the record reflects the following:
"Q. When you talked about the bullet going in in a downward direction, actually that could be caused by one of two variables. One variable would be the position of the firing mechanism and another variable ...